Civil Procedure - Full Outline

  1. Personal Jurisdiction
    1. Essential elements in personal jurisdiction
      • Due process dictates both that the forum state must have power over the target of the action and that litigating the action there must be reasonable. (WW VW and Burger King)
      • While the P has the burden of persuasion as to power, it is up to the D to show unreasonableness
      1. Power
        • Physical power (Pennoyer), minimum contacts (Int'l Shoe), purposeful availment (Hanson v. Denckla)
        • Query involved in finding whether power is sufficient is narrowed to whether the relation of the target to the forum state constitutes minimum contacts and does not consider the P's or the public's interests.
      1. Unreasonableness
        • Fair play and substantial justice (Int'l Shoe)
        • Must balance D's, P's, and public's interests (McGee v. Int'l Life Ins. Co)
          • Convenience of litigating in the forum state, the availability of an alternative forum, the state's interest in adjudicating the dispute
          • Forum does not need to be the ideal forum just not unreasonable. Very flexible and liberal test.
    1. The Beginning of Personal Jurisdiction in Case Law
      • Rigid methods of applying jurisdiction were used in early case law. These cases resolved some issues but left gaps that needed to be filled. (under inclusivity issues)
      1. Pennoyer v. Neff
        1. Facts - OR attorney sued CA Neff. Published notice in OR newspaper. Neff didn't show, attorney got default judgment. After trial, court attached some of Neff's land in OR and gave it to Neff.
        2.  Rule - A court may enter a judgment against a non-resident only if the party…
          1. Is personally served with process while within the state, or
          2. Has property within the state, and that property is attached before litigation begins (as in quasi in rem jurisdiction)
        1. Notes - Attorney did not have jurisdiction over Neff. This method of personal jurisdiction was too rigid.
      1. Harris v. Balk
        1. Facts - Harris, from NC, owed Balk, from NC, $180. Balk owed Epstein, from MD, $300. Epstein sued Harris when they were both in MD for the amount Harris owed Balk, $180. Epstein won judgment in MD, and Harris paid Epstein $180. Later, Balk sued Harris for the $180 owed to him.
        2. Rule - The situs of a person's debt is not stationery but follows him wherever he goes. States must give "full faith and credit" to judgments made against its residents when those residents are in another state.
        3. Notes - One of the first cases dealing with intangible property. Through this case, someone can gain in personam jurisdiction over a debtor's debtor if they are in the same state. (troublesome for corporate debtors)
      • SCOTUS saw that with the nationalization of our economy and advances in transportation technology, jurisdiction needed to be expanded through other cases. Problems were also present in cases of jurisdiction with corporations. Where do they exist? The next few cases expanded the bounds of personal jurisdiction.
    1. How to Analyze Personal Jurisdiction Today
    • Test for "minimum contacts" jurisdiction:
      • Does the defendant come within the terms of the applicable long-arm statute?
      • Does the defendant have "minimum contacts" with the forum state such that the assertion of jurisdiction would not violate the Due Process Clause?
        • Has the defendant "purposely availed" itself of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of the state's laws?
        • Does the lawsuit arise out of or related to the defendant's purposeful contacts with the forum or, if it does not, are the defendant's forum contacts so extensive that no such relationship is necessary?
      • Would the exercise of jurisdiction be unfair and unreasonable, taking into account the interests of the defendant, the forum state, the plaintiff, and other states that may have an interest in the matter?

      1. Does the defendant come within the terms of the applicable long-arm statute?
        1. Some states have tailored/specific-act long-arm statutes.
        2. Others have due-process-type long-arm statutes. (A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the U.S.)
      1. Does the defendant have "minimum contacts" with the forum state such that the assertion of jurisdiction would not violate the Due Process Clause?
      • International Shoe v. State of WA
        • Facts - Int'l Shoe was a DE based corporation with a main office in St. Louis, MO. It had no offices, made no contracts for sale, and did not keep any warehouses of goods in WA.  They did have several salesmen employees who lived and sold merchandise for the company in WA. The state of WA sued Shoe in WA court for unpaid contributions to the state's unemployment fund. Notice was served to a salesman for the company in WA and via registered mail to the corporation's headquarters in MO.
        • Rule -  If a party has "minimum contacts" in a state, that corporation is subject to the jurisdiction of that state as long as it does not offend "traditional notions of fair play and substantial justice".
        • Notes - Int'l Shoe had minimum contacts with WA because of the continuous relationship with the state and the relatedness of the action to the activities there. Minimum contacts is a qualitative measure.  Continuous and related - jurisdiction; Not continuous but related - tough case; Continuous but unrelated - tough case; Not continuous and unrelated - no jurisdiction
        1. Has the defendant "purposely availed" itself of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of the state's laws?
          1. Contract Formation
            1. Active Contract Formation
            • Burger King Corp. v. Rudzewicz
              • Facts - MI Rudzewicz applied for a franchise from FL based BK. Franchise was in MI. Rudzewicz failed to make payments, so BK tried to negotiation with Rudzewicz through its FL office. After negotiations failed, BK terminated the franchise. BK sued in FL.
              • Rule - Alone, signing a contract with a party in the forum state is not sufficient to meet the minimum contacts requirement for that forum state. However, if the contract in that state is an intermediate step to tie up prior negotiations and contemplated future consequences, the party may be seen as having purposefully established minimum contacts in that forum state, especially when the consequences arise proximately from the activities allowed by the contract.
              • Notes - FL had no jurisdiction over the DE trust since trust had not purposely availed itself to the privilege of acting in that state. FL was probably the most judicially efficient place to litigate, but that does not matter. The contact with FL was unilateral.
            1. Passive Contract Formation
            • Chalek v. Klein
              • Facts - IL Chalek sold software to NY Klein. When Klein found the software unsatisfactory, he returned it and put a stop payment on the check. Chalek sued for payment in IL court.
              • Rule - Entering into a passive contract with an entity in a state does not subject someone to personal jurisdiction in that state.
              • Notes - This may have been a case worried about the public policy involved with mail order/internet purchasing.


  1. Non-unilateral Activity
  1. Stream of Commerce


  1. Stream of Commerce "Plus"
  1. Foreseeability
  1. Effects (Test)


  1. Does the lawsuit arise out of or related to the defendant's purposeful contacts with the forum or, if it does not, are the defendant's forum contacts so extensive that no such relationship is necessary?
    1. Specific/Subject Matter Jurisdiction
    • Calder v. Jones
      • Facts - FL Calder's magazine wrote an article about CA Jones. Magazine's largest circulation was in CA. Jones claimed the article was libelous and sued in CA court.
      • Rule -  A can exercise jurisdiction over a D based on the "effects test" - a state has power to exercise personal jurisdiction over a party who causes effects in a state by an act done elsewhere with respect to any cause of action arising from these effects.
      • Notes - The Calder effects test will allow personal jurisdiction over a party whose conduct was expressly aimed at the forum state, knowing that the harmful effects would be felt primarily there, and that the defendants would "reasonably anticipate being haled into court there". The action was directed at CA, and the Ds knew it would cause an effect there.


  1. General Jurisdiction


  1. Would the exercise of jurisdiction be unfair and unreasonable, taking into account the interests of the defendant, the forum state, the plaintiff, and other states that may have an interest in the matter?
    1. Policy Concerns
    • Calder v. Jones
      • Facts - FL Calder's magazine wrote an article about CA Jones. Magazine's largest circulation was in CA. Jones claimed the article was libelous and sued in CA court.
      • Rule -  A can exercise jurisdiction over a D based on the "effects test" - a state has power to exercise personal jurisdiction over a party who causes effects in a state by an act done elsewhere with respect to any cause of action arising from these effects.
      • Notes - The Calder effects test will allow personal jurisdiction over a party whose conduct was expressly aimed at the forum state, knowing that the harmful effects would be felt primarily there, and that the defendants would "reasonably anticipate being haled into court there". The action was directed at CA, and the Ds knew it would cause an effect there.


  1. Unreasonableness



  1. Notice
    1. Intro to the Requirements of Notice- The D must be given adequate notice of the suit through proper service of process.
      1. A judgment rendered w/o proper notice is invalid, even if there is a valid basis for jurisdiction.
        • Ex: In Burnham v. Superior Court, there was jurisdiction because the D was in the state. However, he had to also be SERVED while in the state in order for the suit to be valid.
      1. Two factors: "For service to be proper, it must not only comply with the relevant rule, but must comport with due process."
        • Relevant rule: State rules vary, federal rules are under FRCP Rule 4.
        • Due Process: 5th and 14th Amendments
          • Statue must be Constitutional. Even if a P goes above and beyond the statute (even up to personal service), if the statute is unconstitutional, so is the service. (Wuchter v. Pizzutti)
          • The mere fact that the D received actual notice of the suit does not suffice to uphold the validity of service.
      1. Failure to serve or improper service can cause a lawsuit to be time-barred, since often the statute of limitations is tolled only when D is served properly.


  1. Waiving Service- Rule 4 tries to eliminate issues concerning service by inducing the D to waive formal service of the summons and complaint.
    1. FRCP 4(d) allows P to send a copy of the complaint to D by first-class mail accompanied by a "Notice of Lawsuit and Request for Waiver of Summons" and a "Waiver of Summons."
      • D is given 30 days to respond (or 60 if out of U.S.). If signed and returned, no service necessary.
      • This can only be used on certain types of Ds.
    1. Why would a D want to waive service?
      • Rule 4(d)(1)- unless D waives service in a timely manner, "the court may impose on the D…the expenses later incurred in making service.
      • If D waives service, D does not have to answer complaint until 60 days after request for waiver was sent.


  1. Service through Mullane
    1. Due process requires "notice reasonably calculated, under all the circumstances, to apprise interest parties of the pendency of the action and afford them an opportunity to present their objections".
    2. Notice by publication doesn't work, but it can be sufficient if there is no other way or if property was forfeited.
    3. Notice needs to be practical, not perfect.
      1. If a good many individuals are notified, odds are good that any problems will be uncovered.
      2. If some interests are conjectural, there is no need to do great searching.



  1. Discovery
    1. Discovery - the process of compelled exchange of information between parties to a law suit.
      1. Under the federal discovery rules (FRCP 26-37), parties may use six devices to obtain information about the case from other parties and nonparty witnesses .
        1. Automatic disclosure
        2. Requests for production of documents
        3. Interrogatories
        4. Depositions
        5. Requests for admissions
        6. Physical or mental examinations
      1. The FRCP requires require the parties to respond to requests made through the Rules.
    1. Rule 26(b)(1) - the scope of discovery
      1. "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the [claim or defense of any party] (used to say subject matter involved in the pending action), including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
        1. This rule is pretty broad and can even be widened to the previous parameter if a party is able to demonstrate a need.
        2. Information is discoverable even if it isn't admissible at trial.
        3. Since the standard for discovery relevance is tied to the claims and defenses in the case, the parties' pleadings play a crucial role in setting the scope of discovery.
          • By raising issues in the pleadings, the parties open themselves up to discovery on issues which otherwise might not be discoverable.
    1. Limits on Discovery
      1. Limiting Discovery through the Court
        1. Courts can restrict access
          1. Under the Rule, discovery extends to relevant information "unless otherwise limited by order of the court."
          2. Rule 26(b)(2) allows the court to limit discovery if it is…
            1. Cumulative
            2. Of marginal relevance
            3. Obtainable in another way
            4. Unduly intrusive on the privacy of a party
            5. Sought for an improper purpose
            6. Or if the burden of production outweighs the likely value of the information, in light of various practical realities about the case, etc.
          1. The relevance limit is vague, so much is left to negotiation between counsel for the parties.
        1. Motions to Compel Discovery
          1. If parties cannot agree on the information to be produced, the party making the discovery request may move to compel production of the information on the ground that they are entitled to it under the Rule.
          2. Also, the party resisting production can move for a protective order under Rule 26(c), barring production of the disputed information.


  1.  Limiting Discovery Based on Privilege
    1. "Privilege" refers to information that is protected from disclosure under the rules of evidence.
      1. The decision to recognize a privilege represents a policy judgment that maintaining the confidentiality of certain communications is so important that society is willing to sacrifice the evidentiary value of those communications to preserve that confidentiality.
      2. Some examples are the attorney-client privilege, privilege against self-incrimination, psychotherapist privilege, and doctor-patient privilege.
    1. The existence of privilege does not protect factual information simply because it was communicated in a privileged conversation.
      1. From Upjohn, "The privilege only protects from disclosure of communications; it does not protect disclosure of the underlying facts by those who communicate with the attorney/therapist."
      2. In other words, just because I confess a murder to my therapist doesn't mean I can refuse to answer questions about it because of privilege.
      3. Rule 26(b)(5) requires parties who object to production of information based on privilege to provide enough detail about the protected material to allow the requesting party to evaluate the privilege objection.
      4. If the applicability of the privilege is challenged, the court can decide whether it is privileged based on the information required under 26(b)(5). In doubtful cases, the court can review documents in camera to determine if privilege applies.


  1. Limiting Discovery through Work Product
    1. In Hickman v. Taylor, SCOTUS held that "attorney work product" should be protected from disclosure, at least absent a showing of a particular need for the information, and inability to obtain it through other means.
      1. The Court was concerned that discovery of trial preparation materials would interfere with lawyers' ability to develop their case strategy in private, and lead lawyers to build their cases through opposing counsel's efforts rather than their own.
    1. Rule 26(b)(3) protects trial preparation materials from discovery through the following analysis...
      • STEP #1:
        • Is the material a "document or tangible thing"?
        • Was it "prepared in anticipation of litigation or for trial"?
        • Was it prepared "by or for another party or by or for that other party's representative"?
    • If the answer to all three is yes, the material enjoys presumptive protection under Rule 26(b)(3). Go on to STEP #2.
      • STEP #2:
        • Does the requesting party have a substantial need for the material in preparing its case?
        • Is it unable to obtain equivalent information by other means?
    • If the answer to both is yes, it will have to be produced despite presumptive work product protection unless the answer in STEP #3 is yes.
      • STEP #3:
        • Would the material reveal the mental impressions, conclusions, opinions, or legal theories of counsel?
    • If the answer is yes, it will be protected from discovery in almost all cases.
    • Although outside of the jurisdiction of Rule 26(b)(3), most intangible work product enjoys protection under the standards established in Hickman.
    • "Opinion work product" (the mental impressions of counsel) are usually protected  from disclosure in almost all cases.
  1. Methods of Discovery
    1. Automatic Disclosure (Rule 26(a))
      1. FRCP 26(a) requires parties to exchange basic information about the case without a request from another party. It requires…
        1. Initial disclosures (Rule 26(a)(1)) (work product applies here too)
          1. The identity of individuals "likely to have discoverable information that the disclosing party may use to support its claims or defenses" (a witness not included may be barred from testifying by Rule 37(c)(1))
          2. Copies or descriptions of documents and things in the possession, custody, or control of the disclosing party that the party may use to support its claims or defenses (must disclose supporting evidence, not adverse evidence)
          3. A computation of damages claimed, making available for inspection and copying the documents and other materials on which the computation is based.
          4. Any insurance agreement under which an insurer may be liable to satisfy all or part of a judgment in the action.
        1. Disclosure of expert testimony (Rule 26(a)(2))
        2. Pre-trial disclosures
      1. The parties are required to meet and confer about these disclosures and other discovery issues and file a written report with the court outlining their plans for discovery (Rule 26(f)). Until this meeting, the parties are barred from taking discovery by other means.
      2. Supplementation of initial disclosures
        1. Rule 26(e)(1) says, "A party is under a duty to supplement at appropriate intervals its disclosures under 26(a)(1) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing."
        2. Penalties for non-disclosure include possible exclusion of the evidence or other sanctions.
    1. Interrogatories to Parties (Rule 33)
      1. Interrogatories are questions sent by one party to the case to be answered by another (they cannot be used to obtain info from nonparties).
      2. Since they are answered by counsel for the other side, they should be written precisely in order to get a precise answer. They are useful for obtaining factual information like names of witnesses, itemizations of damages, dates of events, and locations of known documents.
      3. Contention interrogatories asked for opinion and application of law to fact.
        1. Rule 33(d) allows for these, but the court can allow a party to delay in answering them until discovery is complete.
        2. "Specify each act upon which the P relies in support of her contention that the D breached the contract."
      1. An interrogatory to a corporate party can be more effective than a deposition since it requires them to "furnish such information as is available to the party."
      2. Parties are allowed to object to interrogatories if they feel the answer is not in the scope of discovery or protected from disclosure.


  1. Requests for Production of Documents (Rule 34)
    1. Rule 34 allows parties to request production of documents from other parties that are relevant to claims and defenses in the case. The request must describe the documents sought with "reasonable particularity."
    2. To deal with the burdensome nature of these requests, Rule 34(b) authorizes a party to comply with a Rule 34 request by producing the relevant documents as kept in the usual course of business. However, opening up one's file room carries risks…
      1. It provides the other party with wide access to both relevant and irrelevant files.
      2. Allowing access to the files waives the producing party's right to object to production of documents that are protected from discovery.


  1. Depositions
    1. A deposition is the examination of a witness under oath and is the most effect means of previewing the detailed testimony of witnesses.
    2. Purposes of depositions
      1. Get the witness on the record, can impeach during trial with deposition testimony
      2. Allow deposing counsel to learn what the witness knows and to ask follow-up questions to get the details of what the witness knows
      3. Gives opposing counsel the opportunity to look the witness in the eye, to form a judgment about their credibility at trial
    1. Parties do not usually depose their own witnesses or cross-examine witnesses as to not reveal their line of reasoning.
    2. Parties may depose their own witnesses and use that testimony at trial if they will be unavailable for trial (Rule 32(a)(3)(B)).


    1. Domicile test
      1. Citizen of one state can sue a citizen of another state in federal court, even if the claim arises under state law, if the claim is for more than 75K.
      2. Residence is established as the most recent state where he/she has:
        1. Resided, with the
        2. Intent to remain indefinitely- stay must be open-ended with no plans to leave after a certain date or event
      1. Until the two criteria above are met in a new state, residence remains in the old domicile, even with no plans to return
      2. **Intent is the test- evidence of practical affairs can help support/demonstrate intent, but do not automatically prove it**
        1. There can be good reasons why a person has a bank account, job, or health insurance in a different state than they are domiciled.
    1. Strawbridge rule of complete diversity
      1. Federal courts have jurisdiction over “diverse” cases under Article III §2 of the Constitution.
      2. Marshall court ruled in Strawbridge v. Curtiss, 7 U.S. 267 (1806) that the federal diversity jurisdiction only applied when all plaintiffs are citizens of different states than all defendants.
        1. Intent is to prevent state courts from being biased in favor their own citizens.
      1. Corporations are considered state “citizens” but cannot have “intent” like a person. Therefore, under 28 U.S.C. §1332(c)(1), a corporation is considered a residents of:
        1. The state in which it is incorporated, AND
        2. The state in which it has its principal place of business
          1. From Tubbs v. Southwestern Bell, the primary test a court should use to determine the state of citizenship for a business or corporation is the "total activity" test, an amalgam of the…
            • The "nerve center" test - the state in which the corporation has its nerve center or "brain," is its principal place of business.
              • Applied when the corporation is engaged in far-flung and varied activities which are carried on in different states.
            • The "place of activity" test - the state in which the corporation carries out its operations is its principal place of business.
              • Applied when the corporation has a collection of "nerve cells serving the common function of making the corporate enterprise go.
    1. Foreign citizens
      1. Article III, §2 says that federal courts have jurisdiction over cases between U.S. citizens and foreign nationals/aliens.
        1. Federal jurisdiction remains if suit is between two U.S. citizens with an alien added as an additional plaintiff or defendant. [28 U.S.C. §1332(a)(3)]
      1. This is true even if the foreigner is domiciled in a U.S. state- you first must be a citizen of the U.S. before you can be considered a citizen of a particular state.
        1. Permanent residents are exceptions- they are considered state citizens.
      1. It is possible to be a U.S. citizen but not a resident of any state if domicile is established abroad 20th Century Fox Film-Corp v. Taylor, 239 F. Supp. 913 (D.C.N.Y. 1965)- no fed court jurisdiction b/c defendant not domiciled in or a citizen of any state.


  1. Statutory diversity jurisdiction and constitutional grant
    1. Strawbridge was ruled in State Farm Fire & Casualty Co. v. Tashire 386 U.S. 523 (1967) to have been interpreting the diversity statute in U.S.C. 28 §1332, not Article III §2 of the Constitution.
      1. State Farm v. Tashire ruled that to be diverse under Article III, one defendant had to be diverse from one plaintiff (“minimal diversity”), not all of them, as Strawbridge’s interpretation held.
      2. Therefore, Congress could amend U.S.C. 28 §1332 to mean “minimal diversity” if it wanted to, but it never has.
      3. Since jurisdiction under the Constitution must be executed by Congress, Congress can limit or expand (up until Constitutional bounds) the jurisdictions of lower courts because, according to Article III §1, Congress has the power to create federal courts if it wants.


  1. Amount-in-controversy requirement
    1. A diversity case cannot be heard in federal court unless the amount in controversy is $75,000.01, exclusive of interest and costs.
    2. The amount-in-controversy requirement is another area where the statutory grant is narrower than the constitutional authority available since Article III §2 contains no monetary restriction on diversity cases.
    3. Under the St. Paul Mercury rule, the court will find the amount requirement met as long as it is possible that the P's claim would support a recovery of more than $75k.
      1. This approach gives the P the benefit of the doubt; claims can only be thrown out if verdicts over $75k would be irrational or legally impossible.


  1. Aggregation of damages in diversity cases
    1. A P may add up the amounts for all her claims against the D, whether they are related or not. However, P cannot aggregate claims against different Ds.
    2. In the case of multiple Ps…
      1. Before 28 USC 1367, courts held that all Ps must be able to assert a claim of $75k+.
      2. Now, some courts read 28 USC 1367 to say that as long as one P can assert a $75k+ claim, other Ps with smaller claims can join (still divided).


  1. Federal Question Jurisdiction
    1. Federal-Question Jurisdiction: Under Article III, Section 2 of the Constitution, federal courts are limited in what kinds of cases they can hear. Most federal cases involve diversity cases and cases "arising under" the Constitution of the US. (28 USC 1331)
      1. Louisville & Nashville RR v. Mottley
        1. P sued RR for breach of contract because a federal statute prohibited the RR from renewing their passes for free travel.
        2. In their answer, D did rely on the federal statute for their defense.
          1. SCOTUS dismissed the case for lack of subject matter jurisdiction.
          2. A case only "arises under" federal law if the P relies on federal law as the source of their right to relief.
          3. The Mottley rule says that courts assess the federal court's subject matter jurisdiction based solely on the P's complaint. (not possible defenses, not counterclaims, etc)
      1. "Well Pleaded Complaints"
        1. From Mottley, the court is required to consider not what the P has pleaded but what P needed to plead to state their cause of action.
        2. This is to prevent manipulation by Ps; if Ps could make a federal case out of a state law claim by including unnecessary references to federal law in their complaints, arising-under jurisdiction could be created by simply including peripheral or even irrelevant references to federal issues in the complaint.
        3. By asking not what is in the complaint, but what has to be, the court can limit the opportunity to manipulate the federal courts' jurisdiction.
        • In Mottley, their claim was a breach of contract claim and did not "arise under" federal law, as interpreted by 28 USC 1331.
          • A federal law must include a private right of action (either implicit or explicit) in order for a party to bring suit in federal court.
          • Implicit test parameters…
            • Is P part of class for whose special benefit the Act was created?
            • Look at whatever Congressional intent that might exist
            • Ask "would a private cause of action further the legislative scheme?"
              • Is this something that courts would be good at?
              • How specific are the guidelines?
            • Was it traditionally part of state law?
            • Take a look at possible case load
            • It is very rare to find an implicit private right of action.
      1. Relationship Between Constitutional and Statutory Limits on "Arising Under" Jurisdiction
        1. Two Rules…
          1. Article III, Section 2 of the Constitution provides that federal courts may hear cases "arising under" federal law.
          2. 28 USC 1331 uses the same language conveying arising under jurisdiction to the federal district courts.
        1. In spite of this, SCOTUS has interpreted the phrase "arising under federal law" in 28 USC 1331 to focus solely on the P's complaint while the language of Article III is interpreted more broadly.
          1. In Osborn v. Bank of the US, SCOTUS held that Article III granted jurisdiction over all cases where a question of federal statutory or constitutional law "forms an ingredient" of a case (applies to defenses and counterclaims that arise under federal law).
          2. Congress could do away with the Mottley rule by amending 28 USC 1331 if they wanted to.
        1. With arising under cases, it is always necessary to analyze the constitutional scope of jurisdiction and Congress' grant of that jurisdiction separately. Congress can add as many limits (or broaden up to the limits of the Constitution) onto 28 USC 1331 as they want.
      1. Federal Law in State Courts
        1. Just because a claim can be filed in federal court (Mottley test passed, etc) does not mean that it has to be. State courts can adjudicate these claims.
        2. The jurisdiction of the federal and state courts over most types of federal law cases is said to be "concurrent" (the courts of both systems can entertain these cases).
          • There is an exception for claims that Congress provides by statute that are exclusively within the jurisdiction of the federal courts. (patent)
        1. State courts can hear the following types of federal law cases…
          1. Cases arising under federal law in state court if the D doesn't remove them to federal court.
          2. Cases where P sues in state court for state claims and D relies on federal law as defense.
          3. Cases where P sues in state court and D asserts a counterclaim arising under federal law.
  1. Supplemental Jurisdiction
    1. Supplemental Jurisdiction allows claims that could not have entered federal court on their own to be heard by a federal court if they are part of a case over which the court has subject matter jurisdiction.
      • Ex: B sues S in federal court (b/c of diversity) for $250k in injuries after a car accident, S's counterclaim against B for $500 in damages to her car falls within the court's supplemental jurisdiction b/c it is factually related to B's claim, even though S would not be able to file the $500 suit in federal court on its own (because of amt in controversy requirement).
      • Supplemental Jurisdiction is governed by 28 U.S.C. §1367, a 1990 statute. Before 1990, Supp. Jurisdiction was governed by common law doctrines of pendent and ancillary jurisdiction.




  1. Venue
    1. Federal Venue Analysis
      1. Federal Diversity Cases
        1. 28 USC 1391(a) governs venue in diversity cases. Except as otherwise provided by law, venue is only proper in…
          1. A judicial district where any D resides (if all Ds reside in the same state),
          2. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is subject of the action is situated, or
          3. (FALLBACK PROVISION) A judicial district in which any D is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
        1. If Ds reside in different districts but all within the same state, venue is proper in any district in which one D resides in that state.
        2. Subsection (3) is a fallback provision that is only available in unusual circumstances when there is no district anywhere in the US where venue would be proper under (1) or (2).
        3. "Except as otherwise provided by law" means that 1391 will apply unless there is a special venue statute for the type of claim the P brings. For example, tort claims against the US must be brought in the district where the P resides or where the act or omission complained of occurred.
        4. Venue is proper under (2) for any district where a substantial part of the events giving rise to the claim took place, even if substantial events also took place in other districts. We don't have to choose which events are most substantial.
      1. Federal Question/"Arising Under" Cases
        1. 28 USC 1391(b) governs venue in federal suits not based on diversity jurisdiction.  1391(a) and 1391(b) are the same except for subsection (3), which states that venue is proper where any D "may be found." Again, subsection (3) only applies if (1) and (2) cannot.


  1. Residence Analysis for Corporations
    1. 1391(c) provides residence guidance for corporations
      1. 1391(a) and 1391(b) apply equally with individuals and corporations. Thus, the only outstanding issue is residence.
      2. 1391(c) provides…
        1. D corporations shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.
        2. In a state with more than one judicial district and in which a corporation is subject to personal jurisdiction the time an action is commenced,  the corporation is deemed to reside in any district in that state where its contacts with that district would be sufficient to subject it to personal jurisdiction if it were a separate state. If there is no such district, the corporation is deemed to reside in the district where is has the most significant contacts.
      1. Most courts hold that a corporation is subject to general in personam jurisdiction in both the state of its principal place of business and the state of its incorporation. Corporations can be residents of multiple states. Thus, venue is proper in these locations.
      2. However, be careful in multi-district states; personal jurisdiction over a D is state-wide while venue is only district-wide.


  1. Forum Non Conveniens and Transfer
    1. Forum non conveniens through Gilbert v. Gulf Oil
      1. SCOTUS held that a federal district court could dismiss for forum non conveniens on the grounds that even though it had jurisdiction to adjudicate the case, practical factors suggest that it should be litigated somewhere else.
      2. Forum Non Conveniens factors…
        1. Private interest factors
          1. Location of the events giving rise to the case
          2. Ability to implead other parties in the court
          3. Ability to take a view of premises involved in the dispute
          4. Location of relevant witnesses and documentary evidence
        1. Public interest factors
          1. Whether the dispute involves local people or events
          2. Whether it is likely to be decided under local law
    1. The federal transfer-of-venue statute, 28 USC 1404(a), was enacted as a response to Gilbert.
      1. A judge may transfer a case filed in their court to the more appropriate federal district instead of dismissing for forum non conveniens.
      2. The standard for transfer is broad ("for the convenience of parties and witnesses, in the interest of justice"), but the factors of Gulf Oil govern transfer decisions as well.
      3. From Hoffman, a case can only be transferred under 1404(a) to a district where it could have been filed originally (personal jurisdiction, subject matter jurisdiction, and venue).
      4. If the proper forum under 1404(a) is another country, then the transfer statute does not apply, and the suit should be dismissed for forum non conveniens. (This is also true of state claims that are filed in the wrong state court. State courts cannot transfer claims to other states' courts.)


  1. Erie
    1. Pre-Erie
      1. The Rules of Decision Act
        1. If a federal statute, constitutional provision, or treaty applies, it will provide the governing law.
        2. Otherwise, federal courts should apply relevant state law.
      1. Swift v. Tyson
        1. The RDA refers only to state statutes, not to the common law decisions of state courts.
        2. In cases where no federal statute or state statute applies, courts do not have to rely on state common law decisions; they can look to the common law of any state or even treatises for authority.
        3. Problems
          1. Federal courts in diversity cases could reach their own decisions about the proper rule in common law cases, even if those conclusions contradicted the governing case law of the state in which they sat.
          2. An out-of-state party to a state action has a distinct advantage.
            1. If out-of-state law favored the out-of-state party, they could sue in that state court. The in-state defendant can't remove in diversity cases (1441(b)), so they are stuck in that state court.
            2. If federal courts applied a more favorable rule, the out-of-state party could sue in federal court. There is no right to remove from federal to state court.
              • Thus, the out-of-state party has a choice of different rules since it has a choice of two different court systems.


  1. Erie
    1. Holding
      1. SCOTUS held that Swift's interpretation of the RDA let to an unconstitutional assumption of power by the federal courts since they were making state law through these diversity cases.
      2. The RDA must be interpreted to require federal courts to apply not only the state statutes, but also the common law of the state in a diversity case.
      3. In federal question cases, if a state claim is brought in through supplemental jurisdiction, the federal court must still apply state law to that claim even though federal law will apply to the federal claim.
    1. Early issues
      1. How should a federal court apply state law if there are conflicting state court decisions about the issue at hand?
        • SCOTUS ruled that district courts should use the "supreme court predictive" approach; federal judges should try to predict what the high state court would say.
        • A federal judge should very rarely make the prediction that a state supreme court case would  be overruled.
      1. How should a federal court proceed if there is no precedent at all on the issue?
        • In the same vein, the court should try to predict what state appellate courts would say.
        • As an aside, if the issue were to come up after the diversity ruling, the state court is not bound to follow the federal judge's decision; the state court may take it into account in his decision, but he is not bound to follow it.
      1. Which state's law should a federal court use in diversity cases?
        • Every state has choice-of-law rules to deal with this problem. From Klaxon, federal diversity courts should use the choice-of-law rules of the state in which it sits.
        • Thus, a NY federal court should apply whatever state substantive law the New York state court would apply to the case.
          • This reasoning was based on the fact that Erie mandated that the case should come out the same way in federal court as it would in the state court of the state where the federal court sat.
          • This could create forum-shopping since a party could choose the federal court in a state with a choice-of-law provision that would benefit them. The Klaxon court recognized this risk but shrugged it off as inevitable.


  1. Post Erie Changes
    1. Guaranty Trust Co. v. York
      1. Outcome-determinative test
        • The choice of state or federal court in a diversity case should not affect the outcome of the case.
        • Thus, if federal practice differs from state practice, the court should determine whether the case would come out differently if it applied its own rule. If it would, a federal diversity court should use the state rule instead.
      1. Problems with York
        • York mandated deference to state law even in areas where there was constitutional authority to make a separate federal rule.
        • Article III, Section 2 of the Constitution, together with the Necessary and Proper Clause, provide constitutional authority for federal courts to apply their own rules on matters of procedure, like the method of service of process. York, however, required deference to state law even in matters of litigation procedure under the outcome-determinative test.
        • Where the federal court could, constitutionally, apply its own rule, and is making a discretionary policy decision whether to apply state law to ensure uniform outcomes, the court may balance that uniformity policy against other policies.
    1. Byrd v. Blue Ridge
      1. Other policies might outweigh the uniformity policy posited by Erie and York.
        • In cases leading up to Byrd, diversity courts had applied state rules even in matters having to do with procedure in conducting the litigation under the outcome-determinative test, but they have constitutional authority to follow a separate federal practice.
        • The York policy of uniform outcomes must be considered along with other policies, which might sometimes outweigh the uniformity policy.
        • For example, the division of functions between judge and jury in federal cases, under the influence of the 7th Amendment, was an important consideration supporting the use of federal procedure in federal court in diversity cases.
        • Since the state law was not "bound up with rights and obligations of the parties" (in which case the federal could would have to defer to it), the Court could consider "affirmative countervailing considerations."
      1. Byrd did not overrule York, it merely said that balancing was necessary in matters relating to procedure.
        • Only if important federal policies would be compromised by following state rules might the federal court choose to follow a federal procedural rule in the face of a contrary state rule.
    1. Hanna v. Plumer
      1. Court recognized two different tracks.
        1. Conflicts between state law and federal judicial practices (not a federal statute or a Federal Rule)
          • York dealt with judicial practice of applying laches; Byrd dealt with the judicial practice of having the jury decide all factual issues. There was no Federal Rule involved.
          • Of course, in pure substantive matters or those bound up in substantive rights, state law must apply.
          • For grey areas, Hanna prescribed a more focused version of the York outcome-determinative test to decide between state law and federal judicial practices which are not a part of the FRCP.
            • The court should consider whether applying the federal approach rather than the state rule would lead to (1) forum shopping and (2) "inequitable administration of the laws" (significantly different litigation opportunities for diversity litigants than for those who must proceed in state court).
            • The Court said that the question of equitable administration should be viewed prospectively. In other words, would the litigant before filing suit have greater litigation opportunities in federal court if that court followed its own practice instead of state law?
            • In the instant case, the Court said that if the service rule in question were a judicial practice and not a part of the FRCP, state law would not have to be used since the federal approach would only require the P to serve process in a slightly different manner, a difference too slight to affect her choice of forum or provide unfair advantages to diverse Ps over non-diverse Ps.
            • This analysis was dicta, however, because the issue in Hanna dealt directly with a FRCP Rule.
        1. Conflicts between state law and the Federal Rules of Civil Procedure
          • The Federal Rules were adopted by SCOTUS, under authority delegated to it by Congress in the Rules Enabling Act (28 USC 2072).
          • The REA requires that the Rules created by the Court be "arguably procedural" and not "abridge, enlarge, or modify any substantive right."
          • For conflicts involving a Federal Rule, the question is whether the Court had the power to adopt the Rule. It must be broadly procedural (under Sibbach) and must not alter substantive rights.
          • If it meets this two-part test, the Rule is valid and will apply, even if it leads to a different outcome from what the P would obtain in state court.
      1. So, if the conflict involves a federal judicial practice, the "modified outcome determinative test" of Hanna I applies, If it involves a conflict between state law and a FRCP Rule, the question under Hanna II is whether the Court had the power to write the rule (i.e. procedural and not alter substantive rights).
    1. Clarifications on Hanna (requirement of "direct conflicts" with FRCP Rules)
      1. Walker v. Armco Steel Corp.
        • State practice provided that the P must file suit within the limitations period and serve process in the action on the D within 60 days to avoid being barred. Under FRCP Rule 3, an action is "commenced by filing a complaint with the court."
        • If Rule 3 provides that filing the complaint satisfies the limitations period, an action might be barred under state law but timely under the Federal Rule.
        • The Court avoided this problem by holding that FRCP Rule 3 did not directly address the issue of meeting the limitations period and does not affect state statutes of limitations.
        • Thus, since there was no "direct collision" between the state rule and FRCP Rule 3, Hanna I analysis through the "modified outcome-determinative test" applies.
        • It seems likely that if there is a logical limiting construction that avoids a direct conflict, the court will lean towards that construction (and Hanna I analysis).



  1. Summary Judgment/Failure to State a Claim
    1. Failure to State a Claim (Rule 12(c))
      1. The purpose of a motion to dismiss for failure to state a claim is to test the legal validity of the P's allegations, not their factual truth.
        1. The court must assume that the facts alleged in the complaint are true.
        2. Given this assumption of truthfulness, do the facts in the complaint set forth a claim for which the court could grant the P some kind of remedy?
          1. If not, dismiss.
          2. Otherwise, play on.
        1. In most cases, the P's complain will meet this minimum test.
    1. Summary Judgment (Rule 56)
      1. The purpose of a summary judgment motion is to dispose of a case where the opposing side feels that the party will not be able to prove all of the elements of the complaint.
      2. Procedure
        1. The movant must challenge the non-movant's case  and supports the motion with admissible evidence to show that there is "no genuine issue of material fact."
        2. The non-movant must respond by demonstrating that there is a "genuine issue of material fact," or the motion will be granted.
        3. When a motion for summary judgment is made and supported as provided in the rule, the adverse party may not rest upon the mere allegations or denials of their pleading; they must respond with specific facts showing that there is a genuine issue for trial.


  1. Judgment as a Matter of Law
    1. Directed Verdict Motion (JMOL before verdict) (Rule 50(a))
      1. The purpose of a directed verdict motion is to ask the trial judge to take the case away from the jury, on the ground that the evidence is insufficient to support a verdict for the P.
        1. Motion should be granted where there is "no legally sufficient evidentiary basis" for the jury to find for the party opposing the motion.
          1. Judge should not decide whether D's evidence is stronger than P's, only whether a jury could rationally find for the P on the evidence before it.
          2. Judge must assume that the jury will construe the evidence in favor of the nonmoving party and not weight the credibility of witnesses.
          3. If certain testimony would support two inferences, one that supports recovery and one that does not, the judge should assume the jury will make the inferences in favor of the nonmoving party.
          4. However, judge should consider the "uncontradicted, unimpeached evidence" for the movant. 
        1. This does not disrupt the Seventh Amendment since it only guarantees a jury decision where there is a legitimate dispute in the evidence, where a meaningful dispute exists about whether the facts the P must establish are true.
          1. If there is a such a conflict in the evidence, so that reasonable jurors could find for either party, the jury should resolve the conflict by "finding the facts."
          2. If the P has no evidence, or clearly insufficient evidence, to establish a required element of the claim, courts have held that the jury has no legitimate role to play, because its constitutional role as the finder of facts is not required.


  1. Burdens on the Plaintiff
    1. "Burden of Production" - P bears the burden to convince the judge that their evidence is strong enough on each element of their claim to support a rational verdict in their favor.
      1. Judge must ask whether a jury, looking at the evidence, could rationally be convinced of it. (Is the decision in the debatable range?)
      2. If the judge concludes that the P has met the burden of production on each element of their claim, JMOL will be denied, case go to the jury.
    1. "Burden of Proof" - P bears the burden of proving their case by a preponderance of the evidence (stricter burden)


  1. Reviewing JMOL before verdict on appeal - If a JMOL before verdict is overturned, the case must be remanded for a new trial. Thus, trial courts are more wary of granting them because of the possibility for waste.


  1. Judgment Notwithstanding the Verdict (JMOL after verdict) (Rule 50(b))
    1. The standard for granting the motion after verdict is the same as the motion made before the case goes to the jury--that the evidence is too weak to support a rational verdict for the P.
    2. Reviewing JMOL after verdict on appeal--if the appellate court finds that the evidence was sufficient to support a finding for the P, can just overrule the trial judge's JMOL decision and enter the judgment based upon the jury's decision.
    3. Pre-requisites for Rule 50(b) motion
      1. Motion must be made within 10 days of the jury's verdict for the P.
      2. Motion must be made under Rule 50(a) before the case goes to the jury. Reasons...
        1. Wake up call to P's lawyer, can reopen case to get in the insufficient evidence
          1. Thus, a lawyer cannot use new reasoning for a Rule 50(b) motion not used in his 50(a) motion.
        1. Reconsidering the jury's verdict violates the Seventh Amendment unless the judge reserved the right to do so on a motion made before the case went to the jury.
    1. Rules 50(a) and 50(b) do not apply in judge-tried cases.


  1. New Trial Motions
    1. New Trial Motions Based on Legal Errors at Trial (Rule 59)
      1. A procedural rule was ignored or broken at trial (evidence admitted when it shouldn't have been).
        1. This is better than having the case appealed and sent back for a new trial.
        2. The court will not ordinarily grant a new trial for trial mistakes unless an objection was made at the time and the judge made the mistaken ruling.
      1. An improper jury instruction was given.


  1. New Trial Motions Based on the Ground that the Verdict is Against the Weight of the Evidence
    1. The judge has the authority to protect against improper jury behavior based on sympathy for the P or other improper grounds.
    2. Can only be given if the jury's verdict is "against the great weight of the evidence," "represents a miscarriage of justice," or the jury has reached a result which is "seriously erroneous."
      1. The judge may consider the credibility of the evidence; unlike JMOL motions where judge is asking whether the jury could find for the P if they believe the evidence, judges in new trial motions must ask whether the jury was seriously wrong in choosing to believe that evidence.
      2. Much more intrusive on the role of jury as fact finder.


  1. Class Actions

Rule 23