Course Professor Exam Date Exam Time Room

Civil Procedure STRESEMAN, KENT 5/13/19 8:30 PM 510

The Role & Reach of American Courts and What it Means for Choosing Where to
Litigate .................................................................................................................................. 1
Personal Jurisdiction Issue ...................................................................................................................... 1
Subject Matter Jurisdiction Issue ............................................................................................................. 7
What Law Applies in Federal Courts: The Erie Doctrine...................................................................... 11
The Path of Civil Litigation .............................................................................................. 15
Pleading.................................................................................................................................................. 15
Discovery ................................................................................................................................................ 19
Summary Judgment: Adjudication without Trial ................................................................................... 24
The Trier and the Trial ........................................................................................................................... 24
Directed Verdicts/JMOL ........................................................................................................................ 25
Motion for a New Trial ........................................................................................................................... 25
The Effect of Judgments ................................................................................................... 27
Claim Preclusion (Res Judicata) ............................................................................................................ 27
Issue Preclusion ..................................................................................................................................... 28
Beyond P vs. D: Procedure & Complex Litigation ........................................................ 30
Joinder of Claims ................................................................................................................................... 30
Joinder of Parties ................................................................................................................................... 31
Compulsory Joinder ............................................................................................................................... 32
Joinder: Class Actions! .......................................................................................................................... 33
The Role & Reach of American Courts and What it Means for
Choosing Where to Litigate
→ Civil court needs three things to hear and decide a case before it:
1) Personal jurisdiction over the defendant;
2) Subject matter jurisdiction over type of claim before it; and
3) Venue in the proper judicial district.

Personal Jurisdiction Issue

I. Personal jurisdiction (PJ) = the power of a court to exercise control over particular person or property.
❖ Three types:
• in personam = jurisdiction over a defendant by virtue of their relationship with the forum
state.
• in rem = jurisdiction over a defendant because they own property in the forum state
(ownership of property is itself at stake).
• quasi in rem = defendant’s property is used only as jurisdictional hook to allow litigation of
claim(s) unrelated to that property (state court seizes defendant’s forum state property).
❖ Each have both statutory and constitutional limitations. Constitutional limitations originate from
Due Process Clause of the Fourteenth Amendment: a state "shall [not] deprive any person of life,
liberty, or property, without due process of law."
II. Underlying Themes in Pennoyer v. Neff: Power, Consent, and Notice
❖ Idea that court had in personam jurisdiction over person if they:
o were domiciled in the state (intent to remain indefinitely)
o were personally served with process in the state
o consented to or waived jurisdiction
❖ Technically quasi in rem case.
III. Redefining Constitutional Power
❖ Milliken v. Meyer (1940): Domicile in forum state is alone sufficient to bring absent defendant
within reach of state’s jurisdiction for purposes of a personal judgment by means of appropriate
substituted service (i.e. service other than personal service in forum state).
o Enjoying privileges of residency in a state = forum state courts’ personal jurisdiction, not
dissolved by mere temporary absence.
o Substituted service must be reasonably calculated in order to give actual notice
(“traditional notions of fair play and substantial justice” not disturbed).
❖ International Shoe Co. v. Washington (1945): If a defendant is not physically present within a
state’s territory, due process requires defendant to have certain minimum contacts with the state
“such that the maintenance of the suits does not offend traditional notions of fair play and
substantial justice.”
o Broad concept of “continuous and systematic.”
o Modernized PJ by focusing on fairness, but makes it more difficult to apply.
o Low level of activities (contacts) = jurisdiction only over issues relevant to agent’s
activities within the state.
• Specific jurisdiction: defendant’s contacts are less than substantial and fall short of
general jurisdiction, so court focuses on both (1) the extent of those contacts and
(2) the relation between defendant’s contacts with state and plaintiff’s claim.
o High level of activities (contacts) = jurisdiction even over claims unrelated to activities.
• General jurisdiction: defendant’s contacts with forum state are so substantial to
make it fair to assert jurisdiction even over claims unrelated to those contacts,
such that every individual/corporation in the U.S. has at least one state where they
can be sued on any claim or be considered “at home.”

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 ❖ McGee v. Int’l Life Ins. Co. (1957): Nationalizing economy, state interest in providing redress for
its citizens in private claims, and minimum sufficient contacts justify expanding scope of PJ.
o Mailing policy back and forth was minimum sufficient contacts for specific jurisdiction.
❖ Hanson v. Denckla (1958): Minimum contacts with forum state = purposeful availment of benefits
and protections of the forum state.
o Unlike McGee, DE trust company did not purposefully avail themselves of the benefits
and protections of FL law.
IV. Absorbing In Rem Jurisdiction
❖ Shaffer v. Heitner (1977): Quasi in rem jurisdiction and in rem jurisdiction cannot be exercised
arbitrarily—may only be exercised when the interests of the persons in the property seized have
sufficient contacts, ties, or relations to the state (minimum contacts).
o Effectively abolishes quasi in rem jurisdiction.
o In rem will usually satisfy minimum contacts anyway.
o In other words: can't use property as basis for jurisdiction without minimum contacts (bye
bye quasi in rem), unless suit is solely about claims over that property (basically in rem).
V. Specific Jurisdiction
❖ World-Wide Volkswagen Corp. v. Woodson (1980): Foreseeability alone is not sufficient to
establish PJ—D must also purposefully avail themselves of benefits and protections of the forum
state.
o Ask: do D’s contacts and connection with the forum state make it foreseeable that their
conduct/connections could cause them to be sued there?
o Clear notice – when a corp. "purposefully avails itself of the privilege of conducting
activities within the forum State," it has constructive knowledge that suits are possible; has
notice to alleviate risk of burdensome litigation if it so wishes.
o If no contacts, ties, relations with the forum state, cannot be sued there for any old claim.
❖ J. McIntyre Machinery, Ltd. v. Nicastro (2011): Even if foreseeable that corp. D’s products would
be sold in forum state, D’s conduct must still specifically target the market within that state court’s
jurisdiction such that they invoked the benefits and protections of its laws.
o “Stream of Commerce” – need:
• Purposeful targeting market within state court’s jurisdiction;
• Awareness that suit could arise from conduct.
o Another way to conceptualize consenting to PJ.
❖ Abdouch v. Lopez: PJ over D is proper if D engaged in conduct purposely directed at forum state.
o The internet and the Zippo sliding-scale test: considers website's interactivity and nature
of commercial activities conducted over internet to determine whether the court in
question has personal jurisdiction over nonresident D.
• One end = D clearly does business over internet, enters into contracts with
residents of foreign jurisdiction that involve knowing and repeated transmission of
computer files over internet → PJ is proper.
• Other end = D only posts info on website, which is then accessible to users in
foreign jurisdictions → PJ is improper.
• Middle ground = interactive websites where user can exchange info with website
→ exercise of jurisdiction depends on the level of interactivity and commercial
nature of exchange of information occurring on website.
o The internet and the Calder Effects Test: test applied when purposeful availment breaks
down, when a defendant reaches into a forum state in a harmful way that foreseeably
causes effects explicitly felt in the forum.
o Defendant’s conduct must have:
1) been intentional;
2) been uniquely or expressly aimed at the forum state; and
3) caused harm, the brunt of which was suffered—and which the defendant knew was
likely to be suffered—in the forum state.

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 VI. General Jurisdiction
❖ Goodyear Dunlop Tires Operations, S.A. v. Brown (2011): Court may exercise GPJ over D to hear
any/all claims when their affiliations with the forum state are so "continuous and systematic" as to
render them essentially “at home” in forum state.
❖ Daimler, AG v. Bauman (2014): GPJ is purposefully narrow, because it allows courts to hale
someone into court for literally any and all claims.
o GPJ isn’t restricted to just the domicile, incorporation, or PPB (can purposefully avail in
other ways), but extending far beyond this to relatively few contacts would still be
unreasonable to say they render D “at home” in forum state.
❖ Burnham v. Superior Court (1990)
o No majority, so we have two competing visions for transient jurisdiction: (1) presence is
sufficient regardless; vs. (2) must still push through “purposeful availment” analysis,
whether being sued was reasonably foreseeable given personal presence.
VII. Consent as a Substitute for Power
❖ General idea: a party with a potential defense based on personal jurisdiction waives that defense by
failing to assert it at an early stage of litigation—either as a pre-answer motion or in the answer.
❖ However, has mostly been used by courts where parties have prior contractual dealings.
o Pros for businesses:
• Reduced costs for litigation – don’t have to find lawyers to litigate cases in foreign
jurisdictions.
• If req. to testify, company officers wouldn’t have to disrupt business to travel.
• Lower costs and greater inconveniences for D = increased costs and
inconveniences for P.
❖ Carnival Cruise Lines, Inc. v. Shute (1991): Forum-selection clauses are presumptively valid, so
long as reasonable (provides notice to parties and is not contracted in bad faith).
o TNFPSJ:
• If D operates in numerous locales, it is in their interest to keep litigation in one
forum state.
• Saves both parties time and expenses of determining correct forum.
• Reducing costs of litigation for corp. D will reduce costs for customers.
• Contractual consent clauses must be in good faith to be reasonable.
o Other types of clauses exist that disrupt default procedural rules:
• Choice of law clauses – substantive law of a particular jurisdiction will govern
disputes arising under the contract.
• Consent-to-jurisdiction clauses – parties consent to suit in a particular place,
thus waiving challenges to personal jurisdiction.
• Arbitration clauses – take disputes out of the hands of the judiciary and place
them in an arbitration system beyond judicial review.
VIII. The Constitutional Requirement of Notice
❖ Post-Pennoyer, Pre-Mullane: individuals being sued in personam must receive some form of
notice, but with in rem, assumption that people will keep an eye on their property, so we presume
notice from seizure of property.
❖ Mullane v. Central Hanover Bank & Trust Co. (1950): Method of notice should be reasonably
designated and readily calculated to inform parties that their rights are being affected.
o If identity and/or addresses of parties are unknown, and publication is the next most viable
alternate means available for providing notice, then that is appropriate.
o Court destroyed the distinction between "constructive" notice that sufficed for in rem
cases vs. personal service required for in personam case—instead, ALL cases require a
form of notice that is sensible under the circumstances and reasonably likely to actually
inform the defendant of the lawsuit.
o Courts consider factors such as:
• Nature of the action;
• Whether party's whereabouts or identity are known or unknown;
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 • Whether party is a resident of the forum state;
• Whether party has attempted to avoid personal service.

❖ Rule 4: Summons
IX. Statutory Restraints on Jurisdiction: Long-Arm Statutes
❖ Long-Arm Statute = historical name stuck for an extension of courts' jurisdiction behind their
physical borders.
o Basically…these should be called short-arm statutes
o Further restrict PJ beyond what due process already limits.
❖ We ask two questions:
1) Does the long-arm statute allow this state's courts to assert PJ in these circumstances? If
not, we stop there.
2) If so, is asserting PJ on the facts of this case constitutional (due process)?
❖ Gibbons v. Brown (1998): The plaintiff must allege sufficient jurisdictional facts within the
coverage of the long-arm statute and must show sufficient minimum contacts with the state to
satisfy due process.
X. Venue as a Further Localizing Principle
❖ Just like personal jurisdiction, venue determines where litigation will take place. But UNLIKE
personal jurisdiction, venue flows from statutory sources.
❖ General federal venue statute = 28 U.S.C. §1391
❖ PJ and venue statutes can work together – the former tells you which state you can sue in, while
the latter tells you which district WITHIN that state you can sue in (more localizing).
❖ Thompson v. Greyhound Lines (2012): §1391(b): venue is put (1) "where any defendant resides,"
if all defendants reside in the same state, or (2) where "a substantial part of the events or omissions
giving rise to the claim occurred."
o Goal: place suits in judicial districts connected either to (1) the parties, or (2) the events
giving rise to the action.
o P has burden to show venue is proper.
o If not satisfying (1) or (2), then move to (3): “if there is no district in which an action may
otherwise be brought as provided in this section, any judicial district in which any
defendant is subject to the court’s personal jurisdiction with respect to such action.”
o Default is to dismiss, but court CAN (and it's relatively common) evoke transfer provision
with discretion if it's in the interest of justice.

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XI. Declining Jurisdiction: Transfer and Forum Non Conveniens
❖ Two rationales for declining to exercise jurisdiction:
1) Common law doctrine of forum non conveniens: Affects both state and federal courts,
concerns issues of justice and fair play.
2) Transfer among federal judicial districts under 28 U.S.C. §1404: Apples only to federal
courts, concerns issues of justice and proper venue under statutory law.
• Allows federal courts OR parties to move cases around the country "for the
convenience of parties and witnesses, in the interests of justice.”
• Many state statutes are similar to this federal one, conferring state courts with
similar power.
❖ 28 U.S.C. §1406(a): “The district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to
any district or division in which it could have been brought.”
o If fuck up venue, court has discretion to dismiss or transfer in the interest of justice.
o §1404 = motion by parties or courts.
o §1406 = judicial cure for improper venue under 1391.
❖ Forum non conveniens
o Piper Aircraft v. Reyno (1981): A court must weigh the strong presumption in favor of P’s
choice of forum against potential private and public interest factors that support a
dismissal or transfer on grounds of forum non conveniens.
• Forum non conveniens = judge-made, discretionary doctrine. Broader than power
outlined in §1404(a), often invoked where claim is rooted abroad.
1) First step: presumption in favor of where P chose to bring suit (based on
assumption that P will typically bring suit in forum state, where it is most
convenient).
2) Second step: if P is choosing to bring suit somewhere outside of
home/forum state, evidence that P is shopping wherever they can get most
favorable outcome—which is okay! But the strong presumption should
erode because its underlying assumption is no longer true.
3) Third step: public and private factor analysis:
-- Private interest --
i. Ease of access to sources of evidence;
ii. Access to proof outside of location of events giving rise to claim;
iii. Difficulty in impleading potential third-party defendants who
might help a party’s case.
-- Public interest --
iv. Applying two sets of laws would confuse jury;
v. Court's lack of familiarity with foreign law;
vi. Forum state’s interest in litigation.
• Possibility of change in substantive law in another, less favorable forum shouldn't
be conclusive or substantial factor in weighing forum non conveniens inquiry.
o Doing so would render the doctrine useless
o Unfavorable change in law in an alternative forum should only be given
substantial weight if the remedy provided by the alternative forum is so
clearly inadequate or unsatisfactory that is isn't a remedy at all.
❖ Transfer under §1404
o Atlantic Marine Co. v. U.S. District Court (2013): When parties have entered into a valid
forum-selection clause that designates a federal venue, the case should be transferred to
the designated district by enforcing §1404(a), unless extraordinary circumstances exist that
are unrelated to the convenience of the parties.
• In this case, venue was proper, but not in line with forum-selection clause.
• §1406 or Rule 12(b)(3) transfer would be appropriate only if venue is improper
under §1391 (see Thompson (2012)).

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How to analyze PJ on an exam:
❖ STEP 1: Traditional bases for PJ, with notice?
1) is domiciled in the forum state, principal place of business in forum state, place of
incorporation in forum state? or
2) received service of process while physically present in the forum state (unless the
defendant was in the state only to answer a summons or was brought there by force or
fraud)? or
3) consented to personal jurisdiction in the forum state expressly (contract, statute) or
implicitly by conduct? or
4) waived their objection for lack of personal jurisdiction expressly or by substantial
participation on the merits?
→ If yes, PJ (general jurisdiction).
❖ STEP 2: State long-arm statute + “minimum contacts”?
o General jurisdiction—contacts so continuous and systematic that basically “at home” in
forum state?
→ If yes, PJ for anything, even if unrelated to events giving rise to claim(s).
o Specific jurisdiction—(1) purposefully availed themselves of the benefits and protections
of forum state, and (2) foreseeable that activities in forum state could result in defendant
being haled into that forum state’s courts?
→ If yes, PJ for claims directly related to contacts.
❖ STEP 3: Offend “traditional notions of fair play and substantial justice?
o Blatantly wrongful conduct (i.e. tricking defendant into entering forum state)?
o Fairness factors
• D’s interest: burden of litigation in forum state
• P’s interest: efficient and convenient relief
• Forum state’s interest: providing forum for P, regulating the activity involved
• Several State’s interest: efficiency, social policy
→ EXAMPLE FROM PAULINE’S MIDTERM:
CONCLUSION:
Personal jurisdiction over Twitter is likely improper in VA.
RULES:
A state court’s personal jurisdiction over a non-resident defendant is derived from the state’s long-arm
statute, subject to the limits imposed by the Due Process Clause of the U.S. Constitution. Twitter is not a resident
of VA because it is incorporated in Delaware and has its principal place of business in CA. Thus, the plaintiff
must rely on VA’s long-arm statute, which permits personal jurisdiction to the limits of the U.S. Constitution.
The Due Process Clause allows a state court to assert personal jurisdiction over a non-resident defendant
who has sufficient minimum contacts with the state. The minimum contacts analysis examines the connections
among the defendant, the forum state, and the litigation; the purpose is to determine whether the defendant has
created connections with the forum state, such that the exercise of personal jurisdiction comports with traditional
notions of fair play and substantial justice.
As part of this framework, personal jurisdiction can be divided into two types: general and specific
jurisdiction. General jurisdiction applies where the defendant’s contacts with the forum state are so continuous
and systematic that it can be sued there on any cause of action, even those that are unconnected to the forum.
Specific jurisdiction applies where the cause of action arises out of the defendant’s contacts with the forum state.
APPLICATION:
General jurisdiction requires systematic and continuous contacts with the forum state, such that the
defendant can be considered “at home” there. For corporations, the state of incorporation or the state in which it
maintains its principal place of business, or “nerve center,” is the state(s) in which the corporation has contacts so
continuous and systematic that the corporation is deemed “at home.” Because Twitter is incorporated in Delaware
and has its PPB in California, it is not “at home” in VA. Thus, VA probably does not have general personal
jurisdiction over Twitter.

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 This conclusion aligns with traditional notions of fair play and substantial justice. Courts consider many
factors to determine whether exercising personal jurisdiction is consistent with these notions, including: the
burden on the defendant, the forum state’s interest in adjudicating the dispute, and the efficient operation of the
interstate judicial system. These factors do not favor the plaintiff’s attempt to sue Twitter in VA. Twitter is “at
home” in Delaware and California, which suggests that litigating in Virginia will be less convenient for Twitter.
Additionally, other than the plaintiff’s personal convenience, judicial efficiency gains nothing by adjudicating the
claim in VA. Further, allowing courts to exercise personal jurisdiction over Twitter in any state where an
individual brings a suit of this nature would subject Twitter to suit across the country. Thus, traditional notions of
fair play and substantial justice reinforce the conclusion that VA lacks personal jurisdiction over Twitter.
However, even if Twitter is not “at home” in VA and general jurisdiction is not applicable, Twitter could
still be haled into VA court if specific jurisdiction exists. The court here would assess the quantity and quality of
Twitter's contacts with the forum state and their relation to the cause of action, focusing on contacts that evidence
purposeful availment of the benefits and privileges of interacting with the forum; the Zippo sliding scale would
seem to matter here too. Here, there is a lot of contact, but few that seem to give rise to the cause of action. Twitter
does a lot of stuff involving VA, but the cause of action does not arise out of most of them. The claim seems to be
just that Twitter made a platform available that was used by Virginians to say negative comments about Nunes.
Additionally, the allegations about Twitter's contacts in paragraph 6 of the complaint focus on Twitter's
"ubiquity" and "targeting of Virginians" for advertising. But this is not a case that arising out of Twitter's ad
targeting, and there are not allegations supporting the idea that Twitter targeted VA/Virginians for tortious
conduct. Thus, although Twitter has some contacts with the forum state, in order for specific jurisdiction to be
available over Twitter, the cause of action needs to stem from those contacts. Here, Nunes’ allegations do not stem
from Twitters contacts with the state and, as such, SPJ is unavailable to the courts in the forum state.
Notably, GPJ may be proper over Twitter under a consent theory to GPJ. A corporation consents to GPJ by
appointing an agent for service or registering to do business within the forum state. Twitter has registered to do
business in VA and has a registered office and agent in VA, which may qualify as Twitter’s consent to PJ in VA. If
Twitter’s registration to do business is deemed consent to personal jurisdiction, then the court may exercise GPJ
over Twitter in VA. However, it is unlikely Twitter’s registration to do business in VA will amount to consent to
personal jurisdiction. Thus, PJ over Twitter is improper in VA.

Subject Matter Jurisdiction Issue

I. Generally, 4 ways to satisfy SMJ:
1) Federal question
2) Diversity jurisdiction
3) Supplemental jurisdiction
4) Removal
II. The Idea and the Structure of Subject Matter Jurisdiction
❖ Personal jurisdiction = limits power between state and federal courts and a defendant
❖ Subject matter jurisdiction = limits between powers of state courts and federal courts

Doctrine: PJ Federal SMJ

Constitutional Due Process Clause of the Fourteenth Article III of the Constitution
Source: Amendment
Statutory State and federal long-arm statutes (e.g. Rule Federal jurisdictional statutes (e.g. 28 U.S.C.
Source: 4(k)(1)(A)) §§1331, 1332, etc.)
Effect: Limits power of state and federal courts in any Limits power of federal courts to certain kinds of
given state over cases. cases.
Involving defendants without sufficient
connections to that state.

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 ❖ Why should litigants care?
o Practical reasons
1. Some federal courts have shorter waiting times until trial
2. D could be likely to get more sympathetic hearing from local state judge than
from federal judge in a city at the other end of a state, for instance
3. Jury compositions in various regions (verdict, damages, etc.)
4. Liberal vs. conservative views of judges
5. Opposing lawyer could be uncomfortable with fast-paced federal litigation
o Political reasons
1. Federal judges have lifetime tenure, less worried with unpopular cases and dealing
with them accordingly
III. Federal Question Jurisdiction
❖ 28 U.S.C. §1331: District courts have jurisdiction over cases "arising under" the Constitution,
statutes, or treaties of the federal govt.
❖ Louisville & Nashville R.R. v. Mottley (1908): “well-pleaded complaint” rule
o "arising under the Constitution, laws, or treaties of the United States" refers to whether P's
cause of action shows that the case is based upon those laws or Constitution, not a
possible/anticipated defense.
o Rationale: enforcing this rule early on in litigation helps preserve resources and prevent
cases from having extremely protracted timelines.
IV. Diversity Jurisdiction
❖ 2 requirements:
1) Complete diversity; and
2) Exceeds $75,000 amount-in-controversy.
❖ Rationales:
o Provide a neutral forum for controversies arising between sovereignties/citizens of
different sovereignties
o "National case" scenarios, like class action lawsuits, where cases have national scope and
implication and should be heard in federal court, even if governing law is state law.
❖ Redner v. Sanders (2000): For purposes of diversity jurisdiction under §1332(a)(2), the
controversy at issue must be between citizens of different states or citizens/subjects of a foreign
state. Merely residing in a foreign state but maintaining U.S. citizenship is insufficient to meet this
requirement.
❖ Diversity is established at the commencement of the action, the date on which the complaint is
filed.
❖ §1332 "Complete diversity" rule = even in a case with multiple diverse parties the existence of a
single party with the same state citizenship as that of an opposing party will destroy diversity.
❖ Hertz Corp. v. Friend (2010): "Principal place of business," as it's used in §1332(c)(1), refers to
the place where the corporation's high-level officers direct, control, and coordinate the
corporation's activities—AKA “the nerve center.”
o Typically, corporate HQ.
o No perfect test, esp. now that businesses are doing much of their communication over the
phone and computer, may divide command and coordination among officers who work at
different locations.
❖ LLCs = partnership/collection of individuals; for purposes of diversity jurisdiction, deemed to be
citizens of all states of which partners are citizens.
❖ Amount-in-controversy requirement
o Inability of P to actually recover the full amount in pleading is not product of bad faith
sufficient to remove from jurisdiction, unless:
1) it's apparent to a legal certainty that the P won't be able to recover the amount
claimed, or
2) if, from the proofs, the court is pretty certain that the P never was entitled to recover
that amount and the claim was just colorable for the purpose of conferring jurisdiction.
→ In these cases, case should be dismissed.
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 oIf amount is overwhelmingly punitive damages, court will often find this insufficient.
oInjunctions can also count toward AIC; application varies according to jurisdiction
(benefit to P, cost to D, hybrid, etc.).
❖ Aggregation:
o Multiple claims by same P against same D are aggregable.
o Separate P’s cannot aggregate claims against same D, unless P’s are in partnership or have
other undivided interest.
o One P cannot aggregate claims against more than one D, unless D’s have common and
undivided interest or are joint tortfeasors.
o It may be possible to aggregate claim w/ compulsory counterclaim (varies by jurisdiction).
V. Supplemental Jurisdiction
❖ Stretches federal jurisdiction to cover supplemental claims that, if brought independently, wouldn't
fit within federal courts' subject matter jurisdiction.
❖ 28 U.S.C. §1367: In any case where district courts have original jurisdiction, also have
supplemental jurisdiction over any other claim so related to that action that they form part of the
same case/controversy.
o When it comes to cases where district courts have original jurisdiction by virtue of
diversity of citizenship (§1332), also have supplemental jurisdiction over claims by
plaintiffs against persons made parties under FRCP Rule 14 (impleader), 19 (compulsory
joinder), or 20 (permissive joinder).
o Can decline to exercise supplemental jurisdiction in cases where:
• the claim raises a novel or complex issue of state law,
• the claim substantially predominates over the claim(s) over which the district
court has original jurisdiction,
• the district court has dismissed all claims over which it has original jurisdiction, or
• in exceptional circumstances, other compelling reasons for declining jurisdiction.
o If no supplemental jurisdiction, and federal court dismisses case, you have 30 days to re-
file in state court, even if statute of limitations has passed.
❖ In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (2007): Supplemental
jurisdiction is proper where there is a sufficient nexus between state and federal claims, and
statutory discretionary factors do not weigh in favor of a decision to decline to exercise
supplemental jurisdiction.
o Factual connection may be loose, so long as “common and operative.”
o To determine whether facts are common and operative, courts compare facts necessary to
prove the federal claim(s) with those necessary to prove the state claim(s).
❖ Szendrey-Ramos v. First Bancorp (2007): A court may decline to exercise supplemental
jurisdiction where (1) the state law claims raise complex or novel issues, or (2) the state law claims
substantially predominate over the federal claim. (1367 factors).
VI. Removal
❖ Jurisdictional statutes have mostly given P’s initial choice of state vs. federal for cases in which
those jurisdictions overlap… → BUT Congress has also given D’s power to move the case if P’s
choose a state court in cases that could have been brought in federal court.
❖ Removal = base text in 28 U.S.C. § 1441
o Procedure for removal = 28 U.S.C. §1446
o Procedure for challenging removal = 28 U.S.C. §1447
❖ Congress has placed numerous limitations on diversity jurisdiction:
o occasionally increasing amount-in-controversy requirement (also b/c inflation);
o creating dual citizenship for corporations and thereby decreasing odds of diversity
citizenship;
o one-year time limit on diversity-based removal;
o more restrictions on supplemental jurisdiction in diversity cases;
o etc.

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 ❖ Caterpillar, Inc. v. Lewis (1996): If federal jurisdiction is proper at time of judgment, then a
district court's error in prematurely removing a case doesn’t warrant vacating the verdict.
o Basically: this was an error of the trial court, but not a fatal error, so we shouldn’t burden
state courts by remanding it.
o Explains the pitfalls of removal—P’s can manipulate jurisdiction more than D’s, can add
nondiverse parties and drop them after the 1-year limit on removal. But §1446(c)(1) also
allows removal after a year if P’s found to have acted in bad faith to block removal.
o Removal is a shit show!
❖ Cases with joinder claims – If such claims are nonremovable by statute or not within
original/supplemental jurisdiction of federal court, court can remove the whole case to federal
court and remand those single claims to state court.

How to analyze SMJ on an exam:

→ EXAMPLE FROM PAULINE’S MIDTERM:
CONCLUSION:
The motion to remand will be granted because the federal court lacks subject matter jurisdiction over this
action. 28 U.S.C. §1441(a) governs the process of removal.
RULES:
A case is removable if the plaintiff could have originally filed in federal court and if the federal court
would have had subject matter jurisdiction if the plaintiff filed there. Thus, the court must determine whether the
plaintiff could have properly filed his complaint in federal court. Federal courts may have subject matter
jurisdiction when a case presents a federal question by “arising under” federal law, or where there is diverse
citizenship of the parties.
28 U.S.C. § 1331 grants federal courts jurisdiction over cases that “arise under” federal law. According to
the well-pleaded complaint rule, a case “arises under” federal law when (1) the plaintiff’s cause of action is based
upon federal law or the Constitution, (2) the plaintiff’s original cause of action arises under federal law or the
Constitution, or (3) the right violated is a right given by federal law or the Constitution.
APPLICATION:
None of these scenarios are present here. The plaintiff’s well-pleaded complaint does not allege an express
or implied federal cause of action, nor does plaintiff’s complaint allege a state law cause of action in which federal
law is an essential element. Each of the counts in plaintiff’s complaint arise under state tort law.
The fact that (1) Plaintiff uses Supreme Court First Amendment precedent to counter any arguments that
may be presented by the defendants and that (2) Defendant Twitter intends to rely on a federal Act as a defense
does not alter the analysis in this case. Therefore, in order to originally file the complaint in federal court, plaintiff
would have been forced to rely on diversity jurisdiction.
RULES:
For diversity jurisdiction, 28 U.S.C. § 1332(a) requires (1) complete diverse citizenship among the
parties and (2) an amount in controversy greater than $75,000.00.
APPLICATION:
The complaint indicates that the amount in controversy is $250,000,000.00. While this satisfies one
requirement for diversity jurisdiction, the parties lack complete diversity. The plaintiff, Devin G. Nunes, is a
citizen of California. In order for there to be complete diversity, every defendant must be from a different state
than the plaintiff. However, as discussed above, Twitter is a citizen of both Delaware (its state of incorporation)
and California (its PPB). Thus, Twitter and Nunes are both citizens of California, thereby rendering diversity
jurisdiction inapplicable. Even if complete diversity existed – if, for example, twitter wasn’t a defendant,
defendants still cannot remove because Mair defendants are citizens of the state in which the action was brought.
CONCLUSION:
Accordingly, because the plaintiff could not have originally filed the case in federal court under federal
question or diversity jurisdiction, the case is not removable under §1441(a). Therefore, the motion to remand will
be granted.

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 What Law Applies in Federal Courts: The Erie Doctrine
I. State courts can hear cases arising under federal law, and federal courts sitting in diversity can hear cases
arising under state law. Can get tricky to determine what kind of law applies → conflict of laws.
❖ Rules of Decision Act (RDA) (now codified in 28 U.S.C. §1652): "The laws of the several states,
except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded
as rules of decisions in civil actions in the courts of the United States, in cases where they apply."
❖ Swift v. Tyson (1842): Federal courts, sitting in diversity, must follow the statutory laws of a state,
but not the common law. Free to give attention to common law, but not binding.
o Federal courts effectively gained the power to interpret and/or ignore state law however
they pleased.
o Caused blatant forum shopping and discrimination against citizens of a state by NON-
citizens with the ability to relocate/re-incorporate (in the case of corporations) wherever
they felt most secure in suit.
o Overruled by Erie.
❖ Erie Railroad v. Tompkins (1938): Federal court sitting in diversity must apply state substantive
law, whether statutory or common law.
o Swift doctrine is unconstitutional: violates Equal Protection Clause of Fourteenth
Amendment, and attempts to override authority of sovereign states.
o Constitution does not give federal courts power to create a “general federal common law”
or create/alter laws of statutes—to do so would undermine sovereignty of state govts.
❖ Guaranty Trust Co. v. York (1945): Federal courts sitting in diversity must abide by state rules that
affect the outcome (Outcome Determinative Rule) of cases, including state statutes of limitation.
o Immaterial whether statutes of limitation are considered "substantive" or "procedural";
question hinges on whether enforcing law/rule would substantially affect outcome of case.
o Just how far does this outcome-determinative test go? Are there federal rules that should
still supersede state rules, in order to protect federal interests?
❖ Byrd v. Blue Ridge Rural Electric Cooperative (1958): If the fear of outcome inconsistency is not
present, and there is a strong countervailing federal interest, the federal practice should not be
superseded by state practice (balancing).
o Whether immunity is decided by the judge or jury may substantially affect the outcome of
the case, so maybe we should apply state law.
o HOWEVER, other interests are at play: Seventh Amendment rights! Federal Constitution
considers the jury an essential factor in the trial process, demands that federal courts
reserve questions of fact to juries.
❖ Hanna v. Plumer (1965): A federal practice flowing from FRCP or federal statute from REA
must be followed if constitutional and tells a federal court to do something (Constitution gave
Congress power to dictate rules of procedure to federal courts it creates).
o Basically: where a valid federal rule or statute of procedure controls the case, the federal
standard applies, even if it conflicts with a state law or rule.
o Dealt with rules around service of process (state law rules were stricter).
o Unlike Erie, Guaranty Trust, and Byrd, Hanna frames main issue in terms of statute rather
than Constitution—puts rules and REA at front of many Erie issues and leaves
Constitution in background.

11
12
How to Analyze an Erie question on an exam:
→ EXAMPLE FROM PAULINE’S MIDTERM:
Under the Rules of Decision Act, the federal court will apply California rules of decision—i.e., California
substantive law of defamation and conspiracy—to Nunes’s action. But, put roughly, federal courts under the RDA
apply state “substantive” law and federal “procedural” law. And the issue of whether the state anti-SLAPP rule
applies in federal court depends on application of the substance/procedure standards in Hanna v. Plumer.
Under Hanna, where a valid federal rule or statute of procedure controls the case, the federal standard
applies, even if it conflicts with a state law or rule. Under this standard, the federal rule must be (1) broad enough
to govern the issue and require displacement of the state rule and (2) valid under the Constitution and, if a federal
rule rather than a statute, valid under the statutory limits of the Rules Enabling Act.
Conflict between federal and state rules? Here, the Anti-SLAPP rules arguably conflict with federal rules
that govern motions practice and discovery. I will address the motions rule and the discovery stay provision
separately.
Conflict: FRCP vs. anti-SLAPP motions rule. It is a close and difficult question whether the anti-
SLAPP rules regarding a special “motion to strike” conflict with federal rules. The California rule allows for
defendants to file a “special motion” challenging the validity of a lawsuit. There is no analogous motion permitted
under the FRCP. FRCP 12(b) allows for seven defenses to be presented by motion prior to filing a responsive
pleading; it does not provide for a defense like that described in the anti-SLAPP rule. Additionally, the California
rule is described as providing for a “motion to strike.” But FRCP 12(f) governs motions to strike in federal court,
and the federal rule applies only to insufficient defenses and to redundant, immaterial, impertinent, or scandalous
matter. Furthermore, the anti-SLAPP provisions impose a burden-shifting standard on the non-moving party that
have no analogue in the FRCP. Because the anti-SLAPP rules insert motions practices into litigation that depart
from the FRCP, the federal court could conclude that they conflict with the federal rules.
But in cases both before and after Hanna [see pp. 282-283 and 270-271], the Supreme Court occasionally
has construed federal rules or statutes not to conflict with state rules; this would allow the federal court to
accommodate and apply the state rule. In Hanna, the federal rule and the state rule could not co-exist: either
service of process was proper (federal rule) or it wasn’t (state rule). But a court might conclude that the anti-
SLAPP rule could co-exist with federal rules: it contemplates a motion much like a motion to dismiss a complaint
for failure to state a cause of action under Rule 12(b)(6) or a motion for summary judgment under Rule 56. The
federal rules do not address the special substantive concerns embodied in California’s anti-SLAPP motions rule;
rather than foreclosing a particular process for vexatious, anti-expressive lawsuits, they simply don’t speak to the
issue. And FRCP 8 makes clear that parties can present and litigate defenses created by state law.
Conflict: FRCP vs. the anti-SLAPP provision staying discovery. The “discovery stay” provision seems
to sharply conflict with federal rules governing discovery and motions practice. First, Rule 26 and other FRCP
contain no provision requiring a court to stay discovery while it considers a motion. Second, the anti-SLAPP rule
requires plaintiffs, at the outset of a lawsuit and without the benefit of discovery, to affirmatively present evidence
demonstrating they are likely to prevail. This conflicts with the principles embodied in the federal rules that
motions practice at the outset of litigation generally will challenge the legal sufficiency rather than the evidentiary
sufficiency of the claim. [Furthermore, the stay rule might conflict with Rule 56(d) governing motions for
summary judgment; far from calling on a court to dismiss factually insufficient claims without allowing for
discovery, that rule authorizes courts to deny or defer deciding a motion for judgment and allow for discovery
when a party cannot yet present facts to justify its opposition to a motion for judgment.] Accordingly, a court likely
will find that the discovery-stay provision conflicts with the federal rules.
Validity of FRCP. In the case of a conflict between a federal procedural rule or statute and a state rule, the
federal rule will apply if it is valid. A rule must be a valid exercise of Congress’s authority under the Constitution
to regulate procedure in the federal court; it must also be valid under the Rule Enabling Act. The rule must really
regulate procedure: the judicial process for enforcing rights and remedies recognized by the substantive law. And,
under the REA, it cannot abridge, enlarge, or modify a substantive right.
Here, the federal rules at issue are valid. The Supreme Court has never struck down a FRCP as invalid
under the Constitution or REA, and it surely would not start by striking down fundamental rules of motions and
discovery. FRCP 12, 26 et al. are rationally capable of being classified as procedural: they govern the conduct of
parties in litigating cases, not persons’ general out-of-court behavior.

13
 If the issue is not controlled by a federal procedural rule or statute. In cases where a federal rule does
not control—where, for example, a judge-made federal practice diverges from state rules—the court faces a
“relatively unguided Erie choice.” So if the court determines that the FRCP are not broad enough to foreclose
application of California’s anti-SLAPP rule, it might turn to this prong of the analysis. Hanna instructs that federal
courts should apply state rules only if applying different standards in state and federal courts would be “outcome-
determinative” under the twin aims of Erie: would the diverging practices lead to forum shopping or inequitable
administration of the laws?
California’s anti-SLAPP law is probably outcome-determinative under this standard. The law
reflects the California rulemakers’ concern that parties might use suits under state tort or other substantive law to
infringe on the substantive rights (free expression et al.) of others. So the rules are, in the parlance of the Supreme
Court in Byrd, bound up with substantive rights and obligations created by state law. If state courts would apply
the anti-SLAPP laws to allow defendants to readily and cheaply dispose of vexatious claims and federal courts
would not, defendants would strongly favor a state forum over a federal forum. And, under those circumstances,
differently-situated defendants would face inequitable administration of the law.
If a plaintiff in a SLAPP suit could bring only state law claims against an in-state defendant, that defendant
could only be sued in state court, and that defendant thus could invoke the anti-SLAPP protections. But if a
plaintiff were able to base a claim on federal law or sue only an out-of-state defendant, that plaintiff could bring a
claim in federal court and avoid the anti-SLAPP rules. The defendant would not be able to prevent this, as nothing
would allow a defendant properly sued in federal court to “remove” the action to state court.
The Court in Byrd took an additional step, asking whether, even in the face of an arguably outcome-
determinative rule choice, countervailing interests inherent in the federal system nevertheless tip in favor of
applying the federal standard. In Byrd, the Court said that the federal practice of have a jury resolve certain issues
need not give way in the face of a conflicting state practice because the distribution of trial functions between
judge and jury was an essential characteristic of the federal judicial system. Here, there does not appear to be a
policy inherent in the federal system that favors SLAPP suits. A court might accept that the anti-SLAPP motion
and discovery procedures conflict with the principles of motions practice and discovery embodied in the Federal
Rules of Civil Procedure. But that would lead us back to the analysis discussed above: that if this is a case about
the clash between the FRCP and state anti-SLAPP rules, the FRCP would apply because they are valid.

14
The Path of Civil Litigation
Pleading
I. [IN SUM] Requirements – A valid complaint should include the proper:
❖ Elements
o Jurisdictional basis for the claim.
o Short and plain statement of the claim.
o The relief sought.
❖ Language
❖ Code Requirements
o Must allege material and ultimate facts upon which P’s rights of action is based.
❖ Federal Rules Requirements
o Under Rule 8(a), a complaint must contain the following:
1) short and plain statement of grounds upon which court’s jurisdiction
depends.
2) short and plain statement of claim showing the pleader is entitled to relief.
3) demand for judgment for the relief the pleader seeks.
❖ The Right to Relief
o Under Rule 8(a)(2), the pleader must show that he is entitled to relief.
o Complaint lacking a material element should not be dismissed if P can prove the
material element at trial.
❖ Alternative and Inconsistent Allegations
o Rule 8(e)(2) permits alternate pleadings even when they are inconsistent.
o Most jurisdictions now permit inconsistent allegations whether or not separately
stated. Several states have modified their pleading rules to permit inconsistent
allegations.
❖ Damages
o Rule 9(g) requires that special damages must be specifically stated.
o Moreover, special damages must be pleaded before evidence relating to such
damages is introduced.
❖ Relief
o Rule 8(a)(3) states that a complaint that claims a relief must contain a demand for
judgment for the said relief.
II. Rule 12(b)(6): How to Present Defenses–failure to state a claim upon which relief can be granted
❖ Haddle v. Garrison I, II, and III: "A court should not dismiss a complaint for failure to
state a claim unless it is clear that the plaintiff can prove 'no set of facts in support of his
claim which would entitle him to relief.'"
o Testing legal sufficiency.
o If a case has merits, it’s worth going through the expensive litigation process; but
we shouldn’t waste time and resources on meritless claims. Removing meritless
claims from litigation at the earliest possible stage is therefore another purpose (or
maybe byproduct) of the pleadings process.
III. Rule 7: Pleadings Allowed; Form of Motions and Other Papers
IV. How Much Detail in a Complaint?
❖ Rule 8: General Rules of Pleading
o Lists general ingredients and types of defenses.
o Rule 8(a): In order to adequately state a claim for relief, pleading must include:

15
 1) a "short and plain statement" of grounds for jurisdiction,
2) a "short and plain statement" of claim showing why entitled to relief, and
3) demand for relief.
o D might not always understand right off the bat what's being alleged in a
complaint, at least in full detail, but it is acceptable so long as it gives D fair notice
of what the P's claim is ad the grounds upon which it rests.
❖ Bell Atlantic Corp. v. Twombly (2007): Plausibility standard = not quite absolutely
probable, but also more than just possible = plausible on its face.
o Thought to have only applied to antitrust cases, given large costs of discovery.
❖ Ashcroft v. Iqbal (2009): A well-pleaded complaint requires nonconclusory, plausible,
and factual pleadings.
o Expands to all civil actions, not just antitrust claims.
o Recitation of elements of claim and conclusions are not enough, must be able to
draw connections
o Now, pleadings require more than just fair notice to D’s; must include factual
allegations informing it of the support for P's claim(s).
o Instructs courts facing a challenged complaint to first (1) disregard "conclusory"
allegations and then (2) decide whether remaining non-conclusory allegations
appear plausible "in light of judicial experience and common sense.”
V. Special Cases: Requiring and Forbidding Specificity in Pleading
❖ Rule 9: Pleading Special Matters
o Drafters carved out some areas where pleadings might require more detail (legal
existence of organizations as parties; allegations of fraud or mistake; allegations of
malice, intent, knowledge, and other conditions of a person's mind; prior
judgments; official documents or acts; allegation of time and/or place; etc.).
❖ Stradford v. Zurich Ins. Co. (2002): In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake under FRCP 9(b), including
the “time, place, and nature” of the alleged misrepresentations,” in order to give adequate
notice to the other party.
o On the flip side of things, some statutes forbid specificity or make clear that it is
not required
➔ Ex: In CA, legislature has forbidden plaintiff seeking damages from
stating specific amount in initial complaint, instead the defendant can
request a statement of damages after receiving the complaint. Enacted
after string of heart attacks from seeing damages amounts.
VI. Allocating Elements of a Claim: “Burden” of Pleading an Issue
❖ Pleading rules also hold different parties responsible for alleging different things/elements
o Rule 8(c) lists affirmative defenses a party responding to a pleading must assert.
❖ Jones v. Bock (2007): Determine burden of pleading by a close reading of the statute;
o The Prison Litigation Reform Act (PLRA) required exhaustion of admin. remedies
before bringing federal action, but P’s claim arose out of 42 U.S.C. § 1983, which
doesn't mention exhaustion requirement at all.
o Therefore, since the list of aff. defenses in Rule 8(c) is non-exhaustive, exhaustion
is an affirmative defense that must be pleaded and proved by the defendant.
o Long-term, this matters because whoever has the burden of pleading an element of
a claim typically has the burden of producing evidence to demonstrate that
allegation and the burden of persuasion.

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VII. Ethical Limitations in Pleading—and Litigation Generally
❖ Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court;
Sanctions.
o Covers every aspect of litigation that involves a written document, not just
pleadings (with the exception of discovery).
o 11(b) requires attorney to at least make a reasonable inquiry of the facts (not as
intensive as discovery, but more than taking whatever client says at face value).
o 11(c)(2) requires motions for sanctions to be filed separately from other motions.
o Under Rule 11(c)(3), court order the party to show cause why conduct specifically
described in the order has not violated Rule 11(b).
❖ Walker v. Norwest Corp. (1996): It is not the courts’ job to do research for the parties; for
instance, Rule 11 sanctions may be appropriate for P’s failure to meet burden of pleading
diversity of citizenship of the parties.
❖ Christian v. Mattel, Inc. (2003): Exemplifies two parts of Rule 11: (1) Rule 11 sanctions
are limited to papers signed during the pleadings process in violation of the rule; and (2)
attorney’s duty to conduct adequate factual investigation.
o Rule 11(b)(4) allows courts to order sanctions as a fine, going to court instead of
attorney.
o Possible reasons to motion for sanctions:
1) Larger award for moving party;
2) Sanctions, punitive damages can serve as deterrence for complained-of
conduct;
3) Some states require attorneys to report accused Rule 11 violations, which
may result in disciplinary proceedings;
4) Judicial attention of Rule 11 sanctions, deterrent for sanctionable conduct.
VIII. Responding to the Complaint
❖ Ultimately three main choices:
1) Default
o Rule 55: D’s who fail to respond to a complaint can have default judgment
issued against them.
2) Pre-Answer Motion
o Motions to challenge personal or subject matter jurisdiction, motion to dismiss
based on the fact that the allegations even if true do not state a claim, etc.
o Still, must respond to the substantive allegations of the complaint by either
admitting or denying.
o If a D doesn’t want to default but would also prefer to avoid expense and time
of answer to complaint and litigation, Rule 12(b) includes list of 7 defenses
that can be included in an answer or pre-answer motion.
o Often used to postpone, but cannot be frivolous (Rule 11 sanctions).
o Rule 12(a)(1) = D has 21 days to answer the complaint (extended to 60 days if
waives service of process under Rule 12(a)(1)(A)) → but under Rule 12(a)(4),
pre-answer motion stops the clock.
o Looking over complaint and seeing if Rule 12 motions apply should be first
thing you do when you receive a complaint.
3) Answer
o If no available Rule 12 motion, D must respond to factual allegations by
denying, admitting, or raising some additional matter constituting a defense.
o Denials = most common response.

17
 •Rule 8(b): answer must deny only those allegations that they actually
dispute; Rule 8(b)(6): any allegation that is not denied is deemed
admitted.
• General denial = allegation that denies each and every allegation of the
complaint.
• Specific denial = more limited form of denial; denies each and every
allegation of a specific paragraph/group of paragraphs.
• Zielinski v. Philadelphia Piers, Inc. (1956)
o Affirmative defenses
• Denial of critical allegation of complaint = defense.
• By contrast, affirmative defense = additional allegation, not just a
denial of an allegation in a complaint, that defeats liability.
• Non-exhaustive list in Rule 8(c).
➔ Some other choices in moving forward:
4) Reply
o Most of the time, pleadings stop with answer, with two small exceptions:
a. Reply - Rule 7(a)(7) allows a judge to order a reply to an answer, usually
when answers include both denials and several affirmative defenses
b. Counterclaims - FRCP 7(a)(3) requires P to answer if D’s answer
contains a counterclaim designated as such (does not include affirmative
defenses).
5) Amendments
o Rule 15: allows revisions of parties' original stories and limits extent and
timing of such changes in litigation (usually 21 days after service, or later if by
order of court).
• Under Rule 15(a)(2), all other timelines require opposing party's written
consent or the court's leave.
• “The court should freely give leave when justice so requires." → within
the discretion of the district court.
o "Prejudice" = the idea that at some point the other side has to make decisions
about how to investigate and present its case, which may become difficult if
story it has to meet continually shifts.
o Beeck v. Aquaslide 'N' Dive Corp. (1977): The opponent of a motion for leave
to amend must show that they will be prejudiced by the grant of leave under
FRCP 15(a)(2).
• The district court, in its exercise of discretion, will search record for
evidence of bad faith and prejudice which might overbalance the ability
of the court to freely give leave. If none found, no reason not to.
• "The court should freely permit an amendment when doing so will aid
in presenting the merits and the objecting party fails to satisfy the
court that the evidence would prejudice that party’s action or defense
on the merits."
o BASIC IDEA: Courts have read the "freely give leave [to mean] when justice
so requires" to mean:
1. the would-be amender should have a good reason for not getting
pleading right the first time ("bad faith"); and
2. allowing the change now shouldn't hurt the other side too much
("prejudice").
o Rule 15(c): Relation back = way of getting around SoL.
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 • Moore v. Baker (1993): A claim that does not arise out of the same
conduct, transaction, or occurrence as the original claim does not relate
back to the original pleading under Rule 15(c)(2).
▪ Therefore, if statute of limitations has run, amended
pleading is barred.
▪ Critical issue is whether original complaint gave notice to D
of the claim now being asserted.
• Bonerb v. Richard J. Caron Found. (1994): If allegations in amended
and original complaints derive from same nucleus of operative facts,
amended complaint relates back to date of original complaint.
▪ True even if introducing whole new legal theory/argument.
Discovery
I. Master Rule: Rule 26
❖ Required Disclosures:
o Certain information is required to be disclosed. Within this scope, only info
which is then reasonable available to a party.
▪ Within 14 days of pretrial conference (unless served or joined later, or
objecting at conference).
❖ Scope and Limits:
o In general, "any nonprivileged matter that is relevant to any party's claim or
defense and proportional to the needs of the case" (considering a slew of
factors in 26(b)(1)).
o Limitations on frequency and extent of discoverable information, relating to
undue burden, costs, amount in cumulation, etc.
o Limitations on claims of privilege.
❖ Protective Orders
❖ Conference of the Parties, Planning for Discovery:
o Parties must confer and discuss (1) basis of claims and possibilities for
promptly settling, (2) make or arrange for required disclosures under 26(a)(1),
(3) discuss any issues with preserving discoverable info, and (4) make a plan
for discovery.
o Must submit plan for discovery within 14 days after conference.
o Rule 26(f)(3): required contents of discovery plan.
❖ Signing Disclosure and Discovery Requests, Responses, and Objections:
o Similar to FRCP 11 – failure to sign or comply with disclosure req. could result
in striking of the discovered material, or even sanctions.
❖ Sequence of Discovery:
II. Rule 16: Pretrial Conferences
❖ Purpose:
o expediting disposition of action;
o establish early, continuing control so case won't be protracted due to lack of mgmt;
o discourage wasteful pretrial activities;
o improve quality of trial through thorough prep;
o facilitate settlement.
❖ Scheduling:
o Judge must schedule either within 90 days after any D has been served with
complaint, or 60 days after any D has appeared (whichever is earlier)

19
 ❖ Sanctions:
o If party/attorney does not attend pretrial conference(s), is substantially unprepared
to participate or does not participate in good-faith, or fails to obey scheduling or
other pretrial order.
III. Rule 34: Requests to Produce Documents, Electronically Stored Information, etc.
❖ Must describe with reasonable specificity.
❖ Must respond within 30 days after being served, explain basis for any objections, provide
responses to each request.
❖ Rule 34(b)(2)(E)(i): requires responding parties to keep documents as they are in business
order, or label and organize them if requested in particular categories—could be useful
tool for requesting party to avoid being drowned with documents
IV. Rule 45: Subpoenas
V. Rule 33: Interrogatories
❖ No more than 25, leave to serve more may be granted.
❖ Same scope as discovery.

20
VI. Rule 36: Requests for Admission
VII. Rule 30: Depositions by Oral Examination
VIII. Rule 35: Physical and Mental Examinations
IX. Stages of Discovery
❖ First Round: Required Disclosures
o Everything in support of claims and
defenses available at that time.
o Not everything relevant if weakens claims
or defenses, though!
❖ Second Round: Requests for Disclosure
o After discovery plan is made, requests any
documents party knows exist/might exist.
o Usually broad requests are allowed, because
parties might not always know what
documents the responding party has.
o Might include language requesting all
documents in custody or control of
responding party that "refer, relate, or
pertain in any manner" to a subject.
o Responding party might object as overly
broad, use Rule 26(b)(2)(C).
o OR responding party might point to giant
warehouse to drown them.
❖ Third Round: Interrogatories
o Can be cheaper than depositions, but often
yield less value given limitations (only
permitted 25, cannot submit to nonparty
witnesses, etc.).
❖ Fourth Round: Depositions, Physical and Mental
Evaluations
o Mostly used to tie together information
already obtained.
o Under oath.
o Verbatim transcript, must be shared.
o Unlike trials, depositions:
1) allow questions to be asked in long-winded manner to explore all avenues
(intentionally don't do this during trial, in order to obtain single, coherent,
clear story);
2) seek to uncover whatever stories witnesses/parties want to tell and decide
what to do with it moving forward;
3) free lawyers from some constraints on evidentiary rules of trial.
o Unlike interrogatories, depositions:
1) allow lawyers to persistently question party or witness if giving
evasive/vague answers;
2) are way more expensive;
3) limit amount of depositions taken by one side to ten, limit duration of
deposition to one day of 7 hours, and prohibit multiple depositions of same
party/witness without permission from court or other side (30(a)(2)(A)(i)).
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 ❖ Last Round: Required disclosures of witnesses and other evidence.
❖ Rarely moves in this exact order, usually moves more fluidly back and forth.
X. Scope of Discovery
❖ Rule 26(1): without court approval, parties can seek discovery "regarding any
nonprivileged matter that is relevant to any party's claim or defense." But does not turn on
relevance alone:
o Rule 26(b)(1) protects privileged information even if relevant;
o Rule 26(b)(1) and (b)(2)(c) protects information if cumulative, duplicative,
burdensome, or not proportional to the needs of the case;
o Rule 26(b)(2)(c) protects information if its potential for annoyance,
embarrassment, oppression, or undue burden or expense outweigh evidentiary
value.
❖ Relevance
o To be admissible at trial, evidence must relevant → links admissibility to (1)
substantive law and (2) common sense patterns of inference.
o Information can be relevant and discoverable but not necessarily admissible at
trial; can be helpful in trying to reach other relevant and admissible evidence.
o Favale v. Roman Catholic Diocese of Bridgeport (2005): Discovery of highly
personal information will not be compelled where it is not relevant to conduct
alleged to have caused P’s harms.
❖ Proportionality and Privacy
o Party can seek protection of information if they believe that burdens of producing
information outweigh benefits.
o Price v. Leflore County Detention Center Public Trust (2014)
▪ Requested discovery would have clear relevance and importance to
resolving P’s claim, and there was no alternative or less burdensome means
of obtaining the information.
▪ However, court does find that it can limit the time frame of the request to
avoid imposing an unreasonable burden and expense on D.
o Rengifo v. Erevos Enterprises, Inc. (2007): Protective order may be issued to
prevent certain matters from being inquired into to protect party/person from
annoyance, embarrassment, oppression, or undue burden or expense (Rule 26(c)).
o These protections are based on highly discretionary weighing of burdens to
producing party's money, privacy, and even liberty against likely evidentiary value
of information sought.
❖ Privilege
o Protect information from certain sources, not the information itself.
o Any privilege may be waived if taking action inconsistent with claiming privilege.
XI. Reconciling Adversarial Impulses and Other Social Goals: Attorney Work-Product Doctrine
❖ AKA "trial preparation material" doctrine.
❖ Hickman v. Taylor (1947): Material obtained by counsel in prep. for litigation is work
product of the lawyer; while such material isn’t protected by the attorney-client privilege,
it is not discoverable on mere demand without showing of necessity of justification.
o Otherwise, would chill efficiency of legal counsel and allow free-riding off of
opposing parties' arguments.

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XII. Ensuring Compliance and Controlling Abuse of Discovery
❖ Common disputes:
1) Proper scope of discovery – one party thinks requesting party is making overbroad
requests for materials or privileged information; or requesting party thinks the other
is resisting appropriate requests for discoverable material.
2) Whether party has lost or destroyed importance evidence – failure to preserve, or
destruction of, documents (especially digital documents) is called spoliation, and
courts can sanction parties for it.
❖ Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
o Usually requires notice, certification that party has at least tried in good faith to
confer with party failing to make disclosure or cooperate in discovery.
o Specific motions:
1) To Compel Disclosure – if party fails to make disclosure required by Rule
26(a), other party may move to compel and for sanctions;
2) To Compel a Discovery Response – may be made if (i) deponent fails to
answer a question asked under Rules 30 or 31, (ii) corporation/entity fails
to make designation under Rules 30(b)(6) or 31(a)(4), (iii) party fails to
answer interrogatory, or (iv) party fails to produce documents or respond
that inspection is permitted (or fails to permit inspection);
3) Related to a Deposition - party asking question during oral deposition can
complete or adjourn the examination before moving for an order.
o Establishes system of sanctions for violations of specific obligations of discovery.
o Ensures discovery methods have enforcement mechanisms—court may impose
punishments ranging from awards of expenses, limiting evidence presented at trial,
to default judgments.
❖ Zubulake v. UBS Warburg LLP (2003): If party has violated duty to preserve evidence,
trial judge has discretion to craft sanction that addresses party's violation and resulting
injury to other party.
o Spoilation of useful evidence at trial = could warrant inference that evidence
would have been unfavorable to that party.
▪ Party seeking such inference in jury instruction, or other sanctions, must
establish 3 elements:
1) that party having control over evidence had duty to preserve it;
2) that records were destroyed with a "culpable state of mind”;
3) that destroyed evidence was "relevant" to party's claim or defense such
that a reasonable trier of fact could find that it would support that
claim or defense.
o Various steps should be taken to preserve evidence, this party failed to follow (i.e.
once party reasonably anticipates litigates, must put "litigation hold" on records).
o Ordered sanctions against UBS:
1) jury instruction that UBS deleted favorable e-mails;
2) costs of any depositions or re-depositions required by the late
production of relevant e-mails;
3) costs of the motion for sanctions
4) self-executing sanction – because Zubulake was unable to question
UBS's witnesses using newly produced e-mails, UBS was also unable
to prepare its employees with the aid of those e-mails; employees
provided contradicting testimony.
❖ Security Nat'l Bank of Sioux City v. Abbott Laboratories (2014): Where a judge has
determined that counsel has engaged in discovery abuse, the judge may specially tailor a
23
 sanction, designed to further the deterrent purpose of Rule 30(d) by specifically targeting
abuses the attorney has engaged in.
Summary Judgment: Adjudication without Trial
I. Motion Summary Judgment vs. Rule 12(b)(6) Motion
❖ Summary Judgment: taking facts as true, turns to consider who would win at trial.
o Trial would be pointless—no reasonable jury could find for nonmoving party.
o Sometimes if critical (or only) dispute concerns the law, could be appropriate
(provided no genuine dispute as to material fact).
o Or, law is clear, but one party lacks evidence supporting critical element of claim.
o Can file up to 30 days before close of discovery.
❖ Rule 12(b)(6) motion: taking facts as true, law doesn't allow claim for recovery. asks
whether, if facts were true, they'd be legally sufficient.
II. Burdens on the Moving and Nonmoving Parties
❖ "1986 Trilogy": Celotex, Anderson, Matsushita – broader authority to grant SJ.
❖ Celotex Corp. v. Catrett (1986): Moving party does not need to provide affirmative
evidence (e.g. in the form of affidavits) to support its motion, so long as they show
evidentiary support for the absence of genuine issue of material fact.
o D can be granted SJ just by pointing to the fact that P has failed to provide
evidence in support of a crucial element of their claim, even without offering any
affirmative evidence → must still at least point to something, like discovery.
❖ Transforms SJ into something that is symmetrical: the burdens that parties bear on SJ are
symmetrical to the burden that parties bear at trial.
III. How Courts Assess Evidence
❖ Burden is on movant to show absence of genuine issue of fact, then burden shifts to non-
movant to show there is indeed a genuine issue of fact.
o Anderson: View evidence in light most favorable to non-moving party.
o Matsushita: When burden shifts to non-movant, need to show more than just
“some metaphysical doubt” as to the facts.
❖ Tolan v. Cotton (2014): SJ may only be granted when the evidence, viewed in the light
most favorable to the non-movant, establishes that the movant is entitled to judgment as a
matter of law.
❖ Bias v. Advantage Int’l, Inc. (1990): Once moving party has made a prima facie showing
to support MSJ, it is granted unless the nonmoving party establishes specific facts
showing a genuine issue of material fact for trial.
o In other words, general rule is that MSJ is granted where moving party shows that
pleadings, dep., answers to interrogatories, and admissions—together with
affidavits—show that there is no genuine issue, and moving party is entitled to
judgment as a matter of law.
IV. Rule 56: Summary Judgment
The Trier and the Trial
I. Right to a Jury Trial
❖ Rule 38: Right to a Jury Trial
o Arises from Seventh Amendment.
o Parties may demand right to jury trial by (1) serving other parties with a written
demand, included in a pleading, no later than 14 days after last pleading directed
on the issue is served; and (2) filing demand in accordance with FRCP 5(d).
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 o If not properly demanded, right is waived.
❖ Rule 39: Trial by Jury or by the Court
o Jury trial available unless: (1) parties/attorneys file a stipulation to a nonjury trial
or so stipulate on the record; or (2) court, by motion or on its own, finds that some
or all issues don't entitle the parties to federal jury trial.
Directed Verdicts/JMOL
I. “Judgment as a Matter of Law” (JMOL)
❖ Rule 50: Judgment as a Matter of Law in a Jury Trial
o In general, if party has been fully heard on an issue during a jury trial, and court
finds that a reasonable jury would not have had a legally sufficient evidentiary
basis to find for that party, court can resolve the issue against the jury’s verdict on
its own or by motion to grant directed verdict/jmol.
o Party can submit motion at any time before case is submitted to the jury. Must (1)
specify judgment sought and (2) point out exact laws and facts that entitle movant
to that requested judgment.
❖ Useful when jury reaches an insupportable conclusion even without any contamination by
outside influences.
❖ If granted, jury does not receive case.
❖ Reid v. San Pedro, L.A. & S.L. R.R. (1911): P has burden of presenting evidence that
shows it is more probable than not that D is liable in order to overcome a motion for a
directed verdict for the D.
❖ Pa. R.R. v. Chamberlain (1933): A party offering evidence that tends equally to sustain
two inconsistent propositions does not meet the burden of proof.
❖ Court DO NOT weigh credibility of evidence, only whether parties meet their burden of
production in asserting a claim or defense.
o If so, will go to jury.
o If not, could grant motion for direct verdict/JMOL.
Motion for a New Trial
I. Rule 50: Related Motion for a New Trial; Conditional Ruling
❖ Renewing the Motion After Trial; Alternative Motion for a New Trial:
o If court denies Rule 50(a) motion, and case is submitted to jury, and returns verdict
against moving party.
o No later than 28 days after entering judgment, movant may file for renewed Rule
50(a) motion → may include alternative/joint request for new trial under Rule 59.
o Judge can (1) allow judgment on jury’s verdict; (2) order a new trial; or (3) direct
entry of JMOL.
o Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial
II. Rule 59: New Trial, Altering or Amending a Judgment
❖ Must be filed no later than 28 days after judgment.
❖ Within same period, court may also order a new trial on its own initiative and for
justifiable reasons not mentioned in a party's motion.
III. Why grant a new trial?
❖ Two main reasons for granting new trials:
1) Flawed procedures
• Process leading up the verdict was flawed. Ex:
o improper jury instructions;
o impermissible argument made to the jury;

25
 o judge's error in admitting certain evidence;
o juror misbehavior.
• Court can give new trial on its own initiative.
2) Flawed verdicts
• Can occur even if trial went perfectly.
• Most common ground is that verdict was against the weight of the
evidence.
• Similar to JMOL, in that both result from little or no evidentiary support
for a verdict → but different!
o JMOL = higher standard, results in immediate entry of judgment for
loser of the verdict.
o Granting new trial = lower standard, merely begins the contest
again where verdict is "against the great weight of the evidence."
❖ Lind v. Schenley Industries (1960): Where nothing indicates that jury was improperly
presented with incorrect, distorted, or incomplete evidence, judge should not set aside jury
verdict as contrary to weight of evidence simply because they would have come to a
different conclusion.
o Trial judges cannot simply order a new trial because they would have come to a
different conclusion (for instance, if evidence was in conflict, b/c this is still a jury
question); would be an invasion of jury's role.
o Instead, should exercise discretion in viewing verdict in overall setting of trial,
considering:
1) character of the evidence;
2) complexity/simplicity of legal principles which jury was bound to apply to
the facts (if jury simply could not grasp these concepts); and
3) if the jury reached a seriously erroneous result.
o Examples of “undesirable elements” which could taint jury:
1) improperly admitted evidence;
2) prejudicial statements by counsel;
3) improper charge to jury;
4) newly discovered evidence.
❖ Conditional Trials
o New Trial Limited to Damages – judge must be convinced that whatever
supposedly led the jury astray as to its determination of damages didn't also lead it
astray as to the overall liability judgment either.
o Remittitur and Additur
▪ Remittitur = judge orders new trial unless P agrees to accept reduced
damages (P must choose between two).
▪ Additur = judge orders new trial unless D agrees to additional damages
➔ ruled unconstitutional in federal courts, as a violation of the Seventh
Amendment, in Dimick vs. Schiedt, 293 U.S. 474 (1935).
❖ Reexamination Clause – Jury as a Black Box
o Peterson v. Wilson (1998): Admission of juror testimony to impeach a jury verdict
is prohibited.
▪ Court may not impeach a jury verdict on the basis of jurors' statements
which reveal the jury's mental processes as they were deliberating the
case, or statements indicating that the jury disregarded the court's
instructions in reaching its verdict.

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The Effect of Judgments
Claim Preclusion (Res Judicata)
I. AKA Res Judicata or Estoppel by Judgment
❖ Forbids party from litigating a claim that was, or could and should have been, raised in
former litigation.
❖ Basic point: an entire second action is barred when the case concerns:
1) the same claim as the prior action,
2) litigated by the same parties,
3) when the first action resulted in a final judgment,
4) on the merits.
❖ Rule 8(c): claim preclusion is an affirmative defense, which can be waived if a party fails
to plead it.
❖ DOES NOT apply to:
o unlitigated claims,
o claims brought in courts which didn't have jurisdiction, or
o claims arising from same episode but belonging to different parties.
❖ Two goals:
1) Fostering efficiency, preservation of judicial resources.
2) Preventing inconsistency of judgments.
II. First Requirement: “Same Claim”
❖ Frier v. City of Vandalia (1985): Claim preclusion bars a second suit where the first suit
arose out of the same transaction and/or set of operative facts.
o Same claim is barred, even if under new legal theory, so long as same transaction
and set of operative facts.
❖ Modern, majority approach, followed by Restatement (Second) of Judgments
o Sets forth broad definition of "claims"
1) When a valid and final judgment rendered in an action extinguishes a P’s
claim, the claim extinguished includes all rights of the P to remedies
against the D with respect to all or any part of the transaction, or series of
connected transactions, out of which the claim arose.
2) What factual grouping constitutes a "transaction," and what groupings
constitute a "series," are to be determined pragmatically, giving weight to
such considerations as whether the facts are related in time, space, origin,
or motivation; whether they form a convenient trial unit; and whether their
treatment as a unit conforms to the parties' expectations or business
understanding or usage.
III. Second Requirement: “Same Parties”
❖ Taylor v. Sturgell (2008): Claim cannot be precluded if the previous litigant is a different
party and there is no legal relationship between the current and past litigants.
o Nonparty preclusion—person who was not party to a suit has not had a "full and
fair opportunity to litigate" the claims and issues settled in that suit, so "one is not
bound by a judgment in personam in a litigation in which he is not designated as a
party or to which he has not been made a party by service of process."
o Party’s rep. of nonparty is “adequate” only if (a) their interests are aligned, (b)
party understood themselves to be acting on behalf of nonparty, or (c) nonparty
received notice of original suit.

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IV. Third Requirement: “Final Judgment”
V. Fourth Requirement: “Judgment on the merits”
❖ Adjudication of a claim on the merits?
o Full jury trial?
➔ Yes! Full resolution of the case, because all of the merits of the factual
and legal positions of either party were explored.
o Judgment as a matter of law (i.e., a directed verdict or JNOV)?
➔ Yes! No factual disputes (otherwise jury would need to hear the case),
but judge decides there is simply no reason to do fact-finding because
the nonmoving party cannot carry their burden of production for at least
one crucial showing.
o Summary judgment?
➔ Yes! Effectively the same standard as JMOL, parties cannot meet their
burden of producing evidence to show a genuine dispute of material
fact. Quite literally a judgment on the legal merits.
o Dismissal after a Rule 12(b)(6) motion for failure to state a claim?
➔ Yes! …in the federal system, but not universally accepted position in
every state.
o Dismissal after Rule 37 sanctions?
➔ Yes!
❖ Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (1990)
o Typically, dismissals with prejudice for sanctioned conduct will be treated as
preclusive.
o Dismissals for want of SMJ will not be treated as preclusive.
Issue Preclusion
I. AKA Collateral Estoppel
❖ Claim is not barred from litigation, but some issue involved in that claim was actually
previously litigated.
❖ Claim preclusion and issue preclusion can overlap to some extent; if claim preclusion does
not apply, second step is to look at issue preclusion.
❖ Must be:
1) Same issue of fact or law,
2) Actually litigated and determined,
3) By a valid and final judgment,
4) Essential to the judgment.
II. First Requirement: “Same Issue”
❖ NOTE: in civil and criminal suits, burdens of proof are different; so if one brings a civil
suit and prevails on a determinative issue, not preclusive in criminal proceedings.
❖ “Issue” has substantive and procedural contours.
III. Second Requirement: “Actually Litigated and Determined”
❖ Illinois Central Gulf Railroad v. Parks (1979): Issue preclusion allows the judgment in the
prior action to operate as an estoppel only as to those facts or questions actually litigated
and determined in the prior action.
IV. Third Requirement: “Valid and Final Judgment”
❖ Position in first Restatement of Judgments = when alternative grounds for a decision
existed, either of which could have been sufficient to support the result, then both should
be precluded in subsequent litigation.
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 o Majority of courts adopt this approach.
❖ Position in second Restatement of Judgments = neither determination should be binding in
subsequent litigation.
o Rationale:
1. Determinations may not have been carefully or rigorously considered as it
would've if it had been necessary to the result → therefore, might have
characteristics of dicta.
2. The losing party, although entitled to appeal from both determinations,
might be dissuaded from doing so because of the likelihood that at least one
of them would be upheld and the other not even reached (most Courts of
Appeals have adopted the first Restatement's position).
V. Fourth Requirement: “Essential to the Judgment”
❖ While claim preclusion requires mutuality, issue preclusion does not (“mutuality
wrinkle”).
❖ Parklane Hosiery Co. v. Shore (1979): Issue preclusion can be used offensively by P’s not
present in earlier judgments, to prevent D’s from relitigating that issue, so long as (1) the
P could not easily have joined in the earlier action and (2) use of the judgment will not
result in unfairness to the D.
o Trial judge has broad discretion to permit offensive use of issue preclusion to
establish an element of a P’s case where it is not unfair to D.
o Defensive use is permitted—less dangerous, typically promotes efficiency and
fairness.
o Offensive use can be unfair:
1. Unfairness to D in cases where they did not have reason to vigorously
defend against claims (i.e. when claims are seeking only nominal
damages).
2. Extra expense for D where P’s could have easily joined in other actions.
❖ “Wait-and-see” plaintiffs = offensive use of issue preclusion may not promote judicial
economy if P’s can wait for a ruling in another case with the same issue without
intervening, and then be relieved of making proofs if the issue is resolved to their
satisfaction, while not be foreclosed from raising it again if it isn't.

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Beyond P vs. D: Procedure & Complex Litigation
Joinder of Claims
I. Joinder of Claims by Plaintiff
❖ Rule 18: Joinder of Claims
▪ Extremely broad and permissive—“as many claims as [a party] has against an
opposing party.”
▪ But Rule 42(b) permits judge to sever claims if convenient for trial, court system,
and litigants. Sometimes renders the joinder of claims as if plaintiff had brought
entirely separate suits.
❖ Rule 18 permits but does not compel joinder – BUT claim preclusion often forces a
plaintiff to join related claims, because if P fails to join a claim, and a later court finds it is
related to one adjudicated, it is barred.
❖ 28 USC § 1367(a): “in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy. Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional parties.”
II. Joinder of Claims by Defendants
❖ Rule 13: Counterclaim and Crossclaim
o Counterclaims
▪ Compulsory: pleading must state any counterclaims if they…
1) arise out of same transaction, and
2) do not require adding another party over whom court cannot acquire
jurisdiction
➔ UNLESS:
a. when action was commenced, claim was subject of another
pending action, or
b. opposing party sued on its claim by attachment/other
process that did not establish personal jurisdiction over the
pleader on that claim (and pleader does not assert any
counterclaim under this rule)
▪ Permissive: if not compulsory lol.
o Crossclaims
▪ Crossclaim against co-party: permissive if arising out of same transaction
as claim or counterclaim, or if relates to same property that is subject of
claim or counterclaim.
▪ Trial judge can issue separate judgments.
❖ Plant v. Blazer Financial Services (1979): A counterclaim is compulsory if it arises out of
the transaction or occurrence that is the subject matter of the P’s claim and there is a
logical connection between the claim and counterclaim.
▪ Four inquiries are designed to provide an answer (if one is true, counterclaim is
compulsory):
1) Are the issues of fact and law the same?
2) Would res judicata bar a subsequent suit on the counterclaim?
3) Is the same evidence involved?
4) Is counterclaim logically related to main claim? (“logical relation test”)

30
 ❖ 2 consequences of holding a counterclaim compulsory:
1) Use it or lose it – some courts say that an un-brought counterclaim later held to be
compulsory is precluded by doctrines of former adjudication, while others (who
consider developing a rule specifying claim preclusion principles would violate the
REA's ban on altering substantive rights) reach the same conclusion by arguing
that defendant waived counterclaim.
2) If it is brought, supplemental jurisdiction extends → therefore, penalty if
compulsory counterclaim not brought, but at the same time no penalties for
counterclaims that aren't compulsory. D’s will usually err on the side of caution
and bring all counterclaims.
Joinder of Parties
I. Joinder of Parties by Plaintiffs
❖ Rule 20: Permissive Joinder of Parties
o Persons who may be joined:
▪ Plaintiffs: anyone who seeks relief jointly, severally, or arising out of the
same transaction; or if, in the action, a question of law or fact common to
all plaintiffs will arise.
▪ Defendants anyone against whom any right to relief is asserted jointly,
severally, or with respect to/arising out of same transaction; or, if in the
action, a question of law or fact common to all defendants will arise.
o Extent of Relief – need not be interested in recovering or defending against all
relief sought → judge will issue judgments with respect to plaintiffs' substantive
rights or defendants' liability.
❖ Rule 21: Misjoinder and Nonjoinder of Parties
o Court can dismiss a party or sever claims, but misjoinder cannot be basis for
dismissal of a claim.
❖ Mosley v. General Motors Corp. (1974): Permissive joinder of parties is to be broadly
granted under Rule 20 where each party seeks relief arising out of the same transaction or
occurrence, or series of transactions or occurrences, and a common question of fact or law
will arise in the action.
o Permissive joinder is broad but still has two req.:
(1) right to relief must be asserted by/against plaintiff or defendant relating to
or arising out of same transaction or occurrence, or series of transactions
and occurrences; and
(2) some question of law and fact common to all parties must arise in the
action.
II. Joinder of Parties by Defendants: Impleaders
❖ Rule 14: Third Party Practice
o When a defendant can bring in a third party:
▪ Original defendant can become "third party plaintiff" and serve new party
("third party defendant") within 14 days of filing answer to complaint.
▪ That TPD must then comply with Rule 12 req. for pleading.
▪ TPD must assert any counterclaims to TPP and may assert any crossclaims
against another TPD.
▪ Original P may assert any claims arising out of same transaction against
TPD, TPD must then answer under Rule 12.
❖ Price v. CTB, Inc. (2001): D may assert a claim against third party only when the D is
trying to pass part of the liability onto that party (derivative liability).
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 o In impleader situations, defendant is basically saying "okay well even if I'm found
liable, there's someone else who has to pay all or party of the damages.”
❖ Supplemental jurisdiction → 1367(a): If no SMJ (in federal court solely because of
diversity), court can have supplemental jurisdiction against non-diverse joined parties
ONLY if TPD’s are joined by TPP’s (impleaded by original D’s)
o In cases where P is bringing in non-diverse party, would not have supplemental
jurisdiction because it would destroy the only basis for jurisdiction (diversity).
o and in cases where TPD would be from the same state as P, and P brings additional
claim against that TPD, would also destroy diversity and supplemental jurisdiction.
o basically, we really only care about P’s who bring in TPD’s from the same state as
them. it's usually tooootally fine if D’s do this on the basis of derivative liability.
Compulsory Joinder
I. Required Joinder of Parties: Balancing Judicial Interests
❖ Rule 19: Required Joinder of Parties
o Required so long as they are subject to service of process and whose joinder will
not deprive court of subject-matter jurisdiction, if:
1. without joinder, court cannot provide complete relief to existing parties, or
2. "that person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person's absence may: (a) as a
practical matter impair or impede the person's ability to protect the interest;
or (b) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of the
interest."
o If not joined as required, courts must order joinder.
o If joinder is not feasible, court must determine "whether, in equity and good
conscience," action should proceed with the existing parties or be dismissed.
→ Factors for courts to consider:
a. extent to which judgment rendered in person's absence might
prejudice that person or existing parties;
b. extent to which any prejudice could be lessened/avoided by (1)
protective provisions in the judgment, (2) shaping the relief, or (3)
other measures;
c. whether judgment rendered in person's absence would be adequate;
d. whether P would have adequate remedy if action were dismissed for
nonjoinder.
❖ Rationale: (1) litigation sometimes affects people who aren't formal parties, and (2) if the
effects were serious enough and the affected persons can be joined, they should be.
❖ Required where suit involves jointly held rights or liabilities, where more than one party
claims the same property, or where granting relief necessarily would affect the rights of
parties not in the suit.
❖ Despite strong interest in "complete, consistent, and efficient settlement of controversies,"
compulsory joinder is limited.
o Strong tradition to allow parties themselves to determine who shall be a party,
what claims shall be litigated, and what litigation strategies shall be followed.
❖ Temple v. Synthes Corp. (1990): Shows that Rule 19 doesn’t always require most efficient
possible packaging of lawsuits, and that courts will liberally construe Rule 19 in some
cases (in this case, against joint tortfeasors).
❖ Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center (1977): A party
does not become indispensable to an action under Rule 19(b) to determine rights under a
32
 contract simply because that party’s rights or obligations under an entirely separate
contract will be affected by the result of the action.
o Stance taken by D in this case is common in many Rule 19 cases: “to do perfect
justice, someone else should be joined to the lawsuit…but for jurisdictional or
other reasons, the party cannot be joined so, the suit should be dismissed!”
Joinder: Class Actions!
I. Constitutional and Structural Limitations
❖ Rule 23(a), (b), and (c)(1)
❖ Class Action Fairness Act: 28 U.SC. §1332(d), §1453 (Removal)
❖ 2 constitutional questions that enable and limit class actions, both flowing from Due
Process Clause:
1) "Representative Adequacy" – Whether party can be bound by litigation to which
they are not a party.
2) "Personal Jurisdiction" – Whether due process req. certain procedures within class
action for it to be a valid adjudication of the rights of the "absentee parties."
❖ Representative Adequacy:
o Suit conducted by a rep. on behalf of a number of persons who aren't formal
parties may nevertheless bind the entire represented class, goes against principle
that everyone should have opportunity to litigate their own claims.
o But has limitations!
o Hansberry v. Lee (1940): Under the Due Process Clause of the Fourteenth
Amendment, res judicata may only be applied to bind absent parties by prior
litigation if they were present or adequately represented in the prior action.
❖ Personal Jurisdiction:
o Phillips Petroleum v. Shutts (1985): A state may exercise jurisdiction over the
claim of an absent class-action P, even if P lacks minimum contacts with the state,
so long as P is provided with minimal procedural-due-process protection.
▪ States place fewer burdens upon absent class action P’s than D’s.
▪ Certainly, however, due process does provide some protections for absent
class action plaintiffs:
1) if absent class action P’s are subjected to claim for money damages
or similar relief at law, forum state must provide reasonably-
calculated notice plus opportunity to be heard and participate in
litigation;
2) an absent class action P must also be provided with opportunity to
remove themselves from the class by executing and returning an
"opt out" or "request for exclusion" form to the court;
3) Due Process Clause also requires named P’s to adequately represent
interests of the absent class members.
II. Class Action and Federalism
❖ CAFA essentially "federalizes" many class actions previously within exclusive
jurisdiction of state courts.
o But both allows and commands federal courts to remand actions in which state
interests seem to predominate.
o §1332(d)(3) defines relevant factors to discretionary power in declining federal
jurisdiction (don't bear on certification, just bear on federal diversity jurisdiction):
a) relative size of in-state and out-of-state class membership;

33
 b) "whether the claims asserted involve matters of national or interstate
interest”;
c) which state's law will apply to claims; and
d) connection of forum to class members, the harm, and the defendant.
o §1332(d)(4) delineates circumstances in which federal court must decline
jurisdiction: if 2/3 or more of members of proposed P class are citizens of the state
in which action was brought and either (1) the primary D are also citizens of that
state or (2) at least one D is a citizen of that state and the principal injuries also
occurred there.
❖ Standard Fire Ins. Co. v. Knowles (2012): Under CAFA, a P’s stipulation as to damages
being sought prior to the certification of a class cannot bind the members of the class, and
the stipulation cannot overcome a finding that the AIC exceeds the jurisdictional amount.
o P probably wanted to avoid removal to federal court (federal courts believed to be
less hospitable to class actions), but cannot stipulate that AIC will not exceed
$5mil (req. for federal court) on behalf of class before certification.
❖ Rule 23 requirements: At certification, burden is on P’s to show requirements of Rule 23
are met—satisfying four req. of 23(a) and showing action falls under one of 3 categories
in (b).
o 23(a):
1) Numerosity (Rule 23(a)(1)) – class reps. must be able to show that enough
people are in the class to make joining them as individuals impractical.
2) Commonality (Rule 23(a)(2)) – should consist of a class of persons who
share characteristics that matter in terms of substantive law involved.
3) Typicality (Rule 23(a)(3)) – class reps. must stand in the same shoes as the
average class member, having same incentives and motivations as avg.
class members.
4) Adequacy (Rule 23(a)(4)) – (1) class reps. must be able to adequately
represent the average class members' and absent class members' interests in
litigation--cannot, for instance be an employee or relative or any other
relationship with the lawyer that would conflict with representatives'
decisions about litigation; (2) lawyer cannot have conflict that would cloud
the representation, must be skillful and equipped with sufficient support
and resources to handle case (look to other factors in Rule 23(g)).
o 23(b) categories:
▪ 23(b)(1) and 23(b)(2) are both referred to as "mandatory" classes—they
have to move forward as group litigation as opposed to individual litigation
▪ 23(b)(1): massive version of Rule 19.
→ 23(b)(1)A) – all parties bringing exact same claim, so allowing to
proceed individually would produce inconsistent judgments and
perhaps subject D to competing and/or contradictory judgments.
→ 23(b)(1)(B) – all parties bringing exact same claim, so allowing to
proceed individually would produce a depleting pool of damages
(AKA "limited fund" provision – series of individual claimants
would receive damage award after damage award, could eventually
be depleted before all claimants are able to litigate their claims; also
possible with resources, like water rights).
▪ 23(b)(2): AKA "injunction provision," when what is being sought is
injunctive relief.
→ Often civil rights actions.

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 → Would be nonsensical to have large class of people seeking the
same structural relief via injunctions or declaratory judgments.
▪ 23(b)(3): pretty much any class that doesn't fit into the 2 mandatory classes
of 23(b).
→ Usually two types fall into this category:
(1) "small claims" cases, where classes are made up of
individuals who are seeking awards too small to make litigation
worthwhile on an individual basis;
(2) "mass tort" cases.
→ Unlike 23(b)(1) and (b)(2), notice is not just optional—it's required.
Will often kick up litigation costs.
❖ Wal-Mart Stores, Inc. v. Dukes (2011): Class certification under Rule 23(a) is improper if
there is no common injury that may be resolved across the entire class.

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 Rule Statements

Personal PJ is the power of a court to exercise control over a particular person or item of property. This
Jurisdiction exercise has to comport with the DP Clause of the 14th Amendment.

Specific SJ exists when non-resident has minimum contacts with a forum state and exerting jurisdiction
Jurisdiction over the defendant does not offend traditional notions of fair play and substantial justice.

Minimum MC assesses how a defendant has purposefully availed themselves to the forum state and the
Contacts relatedness of the contacts to the claims asserted.
Purposeful PA refers to the deliberate and intentional activities of the defendant in a forum state where the
Availment defendant can forsee being hauled into the courts of the forum.
Long Arm A state statute extending jurisdiction over nonresidents who have had contacts with such state.
Statute
Stream of The placement of a product into the stream of commerce is not sufficient enough to have
Commerce Plus purposeful direction towards a forum state. There must be:
Test a. An intent to serve the market.
(O’Connor) b. Product designed for the market.
c. Advertising in forum state.
d. Establishing channels for providing regular advice to customers.
e. Marketing product through a distributor that the defendant controls.
f. Direct sales.

General GJ exists when jurisdiction is only warranted because the defendant is “at home” in the forum
Jurisdiction state. The cause of action does not have to arise out of or relate to the defendant’s contact with
the forum state.
Venue The place where a case is appropriately brought to a trial, usually determined by some
connection between the place on the one hand and the parties or the underlying dispute or
transaction on the other.
Notice Due Process is met if the notice is reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objects. Mullane.
Subject Matter SMJ is the authority of a court to hear cases of a particular type or cases relating to a specific
Jurisdiction subject matter. The 4 most common congressional grants of SMJ are: (1) Diversity Jurisdiction
(2) Federal Question Jurisdiction (3) Removal Jurisdiction (4) Supplemental Jurisdiction,
Diversity Diversity Jurisdiction refers to the federal courts authority to hear controversies between
Jurisdiction citizens of different states where the amount-in-controversy exceeds $75,000.
Federal FQ Jurisdiction refers to U.S. federal courts authority to hear a civil case because P has alleged
Question a violation of the U.S. Constitution, federal law, or a treaty to which the U.S. is a party.
Jurisdiction
Removal Removal Jurisdiction refers to the right of a defendant to move a lawsuit filed in state court to
Jurisdiction the federal district court for the federal judicial district in which the state court sits.
Supplemental Supplemental Jurisdiction is the authority of United States federal courts to hear additional
Jurisdiction claims substantially related to the original claim even though the court would lack the subject-
matter jurisdiction to hear the additional claims independently.

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Erie Doctrine ED mandates that a federal court sitting in diversity jurisdiction (or in general, when hearing
state law claims in contexts like supplemental jurisdiction or adversarial proceedings in
bankruptcy) must apply state substantive law to resolve claims under state law. And when
federal procedural rules flowing from the Rules Enabling Act (i.e. FRCP, procedural statutes)
conflict with state procedural rules, the court must apply federal rules.
Pleadings The plaintiff’s complaint and the defendant’s answer.
Plausibility Where the well pleaded non conclusory facts nudge the complaint from the conceivable to the
plausible.
Answer A defendant’s written response to a plaintiff’s complaint which states which allegations by the
plaintiff the defendant will contest.
Discovery Pretrial disclosure of information, documents, or tangible evidence to the opposing party in a
lawsuit.
Summary A final ruling that there is no genuine issue of material fact in dispute and the moving party is
Judgement entitled to judgment as a matter of law.

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