Preliminary Readings: Introduction to the Court System

Terms:

- Concurrent jurisdiction: can go to either courts to hear your case

- Exclusive jurisdiction: opposite of above, only can go to one court
- Original jurisdiction: first place the trial takes place/where you file
- Limited subject matter jurisdiction: deals with specific topics/subject matters.
- Madisonian Compromise: give Congress the power to create a federal court system should the
need arise. (Compromise for the people who didn’t want a federal court system because they
wanted to avoid centralized government)

Doctrine Personal Jurisdiction Federal Subject Matter

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

- Article III of the Constitution:

o Section I: establishes the Supreme Court, as well as gives Congress the power to
establish lower federal courts. The Judges of federal courts have tenure, and cannot
receive paycuts.
o Section II: describes jurisdiction of federal courts, including federal question/diversity
cases.
- 28 U.S.C.:
o 1331: The District Courts shall have original jurisdiction over all civil actions arising
under the Constitution, laws, or treaties of the United States.
o 1332: Establishes diversity of citizenship/amount in controversy.
 >75k amount in controversy
 Must be citizens of different states.
o 1251: The Supreme Court shall have original and exclusive jurisdiction over
controversies between two or more states.
o Others: 1, 41, 43, 132, 133
- Concentric Circles: 1331 on inside, Article III on the outside. Article III is much more broad.

Identifying the Right or Best Court:

Subject Matter Jurisdiction:

1. Federal Question Jurisdiction: Article III Section II, 28 U.S.C. 1331

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 Louisville & Nashville Railroad v. Mottley (Mottley, Moody, 1908)
Facts: Mottley received lifetime passes for free transportation for compensation for a railway
accident. Congress then passed a law forbidding free passes (suspicious of bribery). Railroad
refused to honor the free passes to Mottley, Mottley sues in federal court citing the rule as a
possible defense.
Rule: Well-Pleaded Complaint Rule: if there is no federal claim in the well-pleaded complaint
establishing a cause of action, there is no federal jurisdiction.
Holding: It is not sufficient plaintiff alleges some anticipated defense to cause of action. The
cause of action itself must arise under the Constitution. Judgment reversed and remanded
(favor of the railway company).
Notes: The Supreme Court had jurisdiction to hear and decide Mottley the second time around,
even though the district court had no jurisdiction. This is because Article III is broader than 1331.

Grable & Sons Metal Prod. Inc. v. Darue Eng. & Mfg. (Grable, 2005)
Facts: Plaintiff brought title action in state court to try and reclaim land; claim was that notice of
sale was inadequate, defendant tried to move it to state court, alleging that this case had to do
with how the IRS collects taxes.
Rule: Establishes the Grable test; you may federalize a state claim if you can pass a three part
test: (1) necessarily raises a federal issue; (2) actually disputed and substantial; and (3) a federal
forum may entertain without disturbing any congressionally approved balance of federal and
state judicial responsibilities.
Holding: Unanimous decision that this state claim was sufficiently federal to get into federal
court.
Notes: It is usually very difficult to satisfy the Grable Test.

Holmes Creation Test (American Well Works)

A suit arises under the law that creates the cause of action. When federal law is involved, but
nothing the parties are fighting about involve the interpretation of that federal law, the case
does not arise under federal law. Claim of relief; I need to be trying to claim relief under the
statute. For breach of contract, the relief comes from breach of contract, not violation of the
statute.

2. Diversity Jurisdiction: Article III Section II, 28 U.S.C. 1332

Redner v. Sanders (Redner, Griesa, 2000)

Facts: Plaintiff lives in France, despite being a U.S. Citizen. He is suing residents of New York that
have its principal place of business in New York. First tried to be part of France, but since
residence is not the same as citizenship, and you must be a citizen to claim domicile

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 somewhere, he moves his point to California, where he was raised and educated, maintained
contacts with California, has a drivers license, law license, office, and solicitation of San
Francisco law offices, considers California his domicile. Is he a California domicile?
Rule: 1332 would allow a citizen of California to invoke diversity jurisdiction against citizens of
New York. A person is a citizen of a state of the US if he is a citizen of the U.S. and is domiciled
within the state in question.
Holding: Plaintiff’s factual submission not sufficient to demonstrate a California domicile.
Dismissed for lack of subject matter jurisdiction.
Notes: Definition of domicile from this case. Domicile requires actual residence in the location,
as well as an intent to remain there. Strawbridge v. Curtiss: Absolute diversity between plaintiffs
and defendants are necessary for diversity jurisdiction. Hawkins v. Master’s Farm also a similar
case with a different set of facts.

Hertz Corp. v. Friend (Hertz, Breyer, 2010)

Facts: California Hertz employees sue Hertz, where its principal place of business was in
California. Hertz tried to remove to federal court.
Rule: 1332; also nerve center test: a corporation is a resident of the state where it has its nerve
center, factors include income, where officials fly in to meet, bulk of activities.
Holding: Hertz is a California resident because greater than half of its income comes from
California.
Notes: Courts believe that there is no single perfect test. Nerve center is not perfect. This is for
corporations, which are different from people.

Amount in Controversy: >75k (pg. 233)

i. 1p w/ >2 unrelated claims against 1d can aggregate 75k
ii. 2p v. 1d may not aggregate if claims are separate and distinct.
iii. 1p >75k, 1p <75k, v. same 1d for same claim, both can sue.
iv. Multiple p or multiple d w common undivided interest, can aggregate >75k.
v. If p >75k, a counterclaim may be heard regardless of amount.

3. Removal Jurisdiction: defendant does not agree with initial court, file within 30 days. (Practice
problems pg. 251)

Rules: 28 USC 1441, 1446, 1447. Defendant cannot remove if the court is in his home state.
Permanent resident aliens are citizens of the state. Diversity is measured from the date on
which the suit is filed.

Caterpillar, Inc. v. Lewis (Caterpillar, Ginsburg, 1996)

Facts: Lewis injured using bulldozer, sues Caterpillar + Whayne. Liberty mutual joins Lewis and
sues both; no diversity jurisdiction. Parties drop out of claims against other parties until at the
time of ruling, there is diversity jurisdiction.

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 Rule: If diversity requirement is sufficient at the time of judgment, the federal courts have the
right to hear the case, even if it didn’t exist at the time of the removal.
Holding: District court’s error in failing to remand a case improperly removed (FRCP 12h3) is not
fatal to the ensuing adjudication if federal jurisdiction requirements are met at the time
judgment is entered.
Notes: This holding prevents exorbitant costs if they were to remand a case that was already
decided, even though the jurisdictional requirements were already there at the end.

Personal Jurisdiction:
Must not violate Amendment IV of the Constitution, Due Process Clause.
Evolution of Personal Jurisdiction: Pennoyer  Int’l Shoe  Shaffer

Pennoyer v. Neff (Pennoyer, Field, 1877)

Facts: Lawyer sued Neff for failing to pay legal fees, Neff was out of state and did not appear
after being summoned. After lawsuit, Neff obtained land in Oregon from the government; land
was seized by the sheriff for the lawyer, and lawyer sold the land to Pennoyer. Neff returned
and sued for his land.
Rule: No natural person is subject to the jurisdiction of a court of the state, unless he appear in
court, or be found within the state, or be a resident thereof, or have property therein.
Defendant must be present and notified of lawsuit. There must be personal service, not just
constructive service for non-residents
Holding: Land was attached after the case started, when it should have been attached at the
outset. Validity of judgment depends upon the jurisdiction of the court before it is rendered, not
upon what may occur subsequently.
Notes: Suits that are in personam require more than just constructive service. However, states
can exercise direct jurisdiction over a person’s property within its territory. The court thinks that
it does have jurisdiction over Neff IF the territory was attached at the outset; however, since at
the outset of the case, it was an in personam case, the court does not have jurisdiction over
Neff. This idea of in rem jurisdiction, however, is outdated. A forum must have (1) consent (2)
power or (3) notice. Since the trial court does not have power over Neff, they must have notice.

International Shoe Co. v. Washington (Int’l Shoe, Stone, 1945)

Facts: Corporation located in Delaware, but place of business in Missouri. No offices, facilities,
but 11-13 employees who were just salesmen present in Washington. No office, no
management, paid only on commission, no inventory there. Avoided paying unemployment
funds that were required of Washington businesses.
Rule: Sufficient minimum contacts; it is no longer required to be present or have domicile. As
long as there exists contacts between the state and the defendant, the state has jurisdiction.
Specific jurisdiction: claim arises out of contacts with the State.

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Holding: Int’l Shoe is subject to the jurisdiction of Washington because it purposefully avails
itself to the benefits of the state. It reaped the benefits of Washington.
Notes: Contacts are now an important factor. Introduced a sliding scale and fair play/substantial
justice.

Specific General
Requirements 1. Deliberate contacts 1. Sufficiently extensive
2. Claim arises out of contact
contacts 2. Domiciled/at home
3. Fair play/substantial
justice
Claims Claims that arise out of Any claim
contacts with the state

Specific Jurisdiction:

McGee v. International Life Insurance Co.:

Facts: California resident purchased life insurance from Texas. Texas then refused to pay when
the resident died. Insurer did not have any office or contact with California. Plaintiff sued in
Texas.
Rule: State court’s jurisdiction satisfies due process when the cause of action is based on a
contract with substantial connection with the forum state.
Holding: California court could enter judgment against the defendant. The suit was based on
contract that had substantial contact with California. State has a public interest in providing
redress for its residents.
Notes: This is where we first get a ‘reasonableness’ test of people being subject to a
corporation’s jurisdiction. Public Policy: California residents would be at a severe disadvantage if
they had to litigate their insurance claims in other states. Substantial justice.

Hanson v. Deckla (Hanson, Warren, 1958):

Facts: Plaintiff opened a trust in Delaware, moved to Florida, where she died. Family then
fought over whether Florida or Delaware Courts had jurisdiction over the trust. Defendant trust
company has no office in Floprida, no business, no transactions, no solicitation of business. Did
not perform any of the trust related acts in Florida.
Rule: Plaintiff who claims some relationship with non-resident defendant is not sufficient to
satisfy the contact requirement of the forum state.
Holding: Florida has no jurisdiction.

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Shaffer v. Heitner (Shaffer, Marshall, 1977):
Facts: Plaintiff was a stockholder for Greyhound Corp. who felt that the officer’s actions led the
company to be sued for damages for criminal contempt and antitrust suit, both in Oregon.
Because he felt that the officers were running it poorly, he brought a derivative suit in Delaware
(where the company is incorporated, principal place of business in Arizona), where the stocks
were also located in Delaware. They seized these stocks as a sequestration; defendants were
majority non-Delaware residents. The officers protested that simply having property in
Delaware did not subject them to Delaware’s jurisdiction.
Rule: When the defendant’s only contact with the forum state is some property in the forum
state, and the claim does not arise out of this contact, there is no personal jurisdiction over the
defendant. This is in contrast to Pennoyer.
Holding: Delaware does not have personal jurisdiction over the defendants. In rem is not against
property, but against the person’s interest in property. If it is unconstitutional to have
jurisdiction over someone directly, it is not constitutional to have it indirectly.
Notes: Overturns Pennoyer’s views on in rem jurisdiction. States can no longer exert jurisdiction
over a defendant just because they have property in that state. The same minimum contacts
that must exist in in personam jurisdiction must also exist in in rem jurisdiction, and therefore
are subject to International Shoe’s reasoning.

World-Wide Volkswagon Corp. v. Woodson (Volkswagon, White, 1980):

Facts: Robinsons bought a car in New York from Seaway. Plaintiffs moved from New York with
the intent to move to Arizona, and were in a car crash in Oklahoma, where the car exploded.
Plaintiffs sued Seaway (NY), Audi (Germany), Volkswagon/Volkswagon World Wide in an
Oklahoma state court. None of these parties had any contact or connections with Oklahoma.
Trial courts held that it had jurisdiction over the defendants, and it was appealed.
Rule: Non-residents must purposefully avail themselves of the forum state’s privilege,
protections of that state in order to be subject to jurisdiction in that state. Foreseeability that a
product may end up in the state is not enough for jurisdiction. Minimum contacts rule exists to
protect defendants from inconvenient forums.
Holding: There is no jurisdiction. Int’l Shoe was trying to avoid unfairness and inconveniences to
the defendant. McGee brought up purposeful availment. Four factors test: (1) Sufficient
contact, fair play, burden on the defendant (brought up by Int’l Shoe) (2) Plaintiff’s interest in
finding convenient/effective relief (3) efficient resolution of controversy (4) Interest in public
policy.
Notes: Justice Brennan dissents, saying that the court’s reading of Int’l Shoe is too narrow, and it
needs to be broader because it might be bad to set a bad precedent in this changing mobile
world. Analysis should be focused on reasonableness and fairness.

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Burger King Corp. v. Rudzewicz (Burger King, 1985, Brennan)
Facts: Rudzewicz is a citizen of Michigan who opened a Burger King Franchise in Michigan. They
reached an agreement and signed a contract, but eventually failed to make a payment of
royalties. Burger King sued in Florida (where they are located) and defendant moved to dismiss
the case for lack of jurisdiction under 1332.
Rule: Defendant in a business relationship with a corporation located in the forum with a
contract should be subject to the forum state’s jurisdiction.
Holding: Florida has jurisdiction (7-2 ruling, Brennan dissenting); they lacked the typical
contacts, but this ruling is substantially fair. Entering into long-term agreement with a
corporation known to be based in Florida, contract that called for application of Florida law,
training in Florida, partners purposefully availed themselves of Florida law.
Notes: Brennan’s opinion here is similar to the argument that had lost in Shaffer. There is fair
play and substantial justice, where the court may evaluate the (1) burden on the defendant, (2)
forum state’s interest in adjudicating the dispute, (3) plaintiff’s interest in obtaining convenient
and effective relief, (4) shared interests of states’ public policy from Volkswagon. These factors
allow for a lesser shoing of minimum contacts than would otherwise be required. Justice
Brennan’s analysis has neither found an echo in later cases nor been explicitly repudiated.

J McIntyre Machinery, Ltd. V. Nicastro (Nicastro, Kennedy, 2011)

Facts: Nicastro worked with a machine that cut off his fingers. This happened in New Jersey, but
the company that manufactured (McIntyre) was based in England through a U.S. distributor in
Ohio. Independent company agreed to sell products in the US. McIntyre officials attended
annual conventions to advertise in various states, but never NJ. No more than 4 machines were
in NJ.
Rule: In products liability cases, a court cannot exert jurisdiction over the defendant unless the
defendant willingly chooses to purposefully avail himself to the state. This is not rendered void
by stream of commerce.
Holding: There is no jurisdiction over McIntyre in NJ. Stream-of-commerce rule in product
liability cases does not overrule the purposeful availment test and specific jurisdiction. McIntyre
did not purposefully insert their product into the stream of commerce in order to reap the
benefits of this state and therefore be under state sovereignty.
Notes: Neither this case NOR Asahi is binding, because no one has reached a majority. There are
two viewpoints. (1) Pure stream of commerce: Company can be sued wherever along the
stream. (2) A bit more reserved/directed.
Kennedy +3 judges: no jurisdiction, no purposeful availment/contacts.
Brennan: McIntyre should be able to be tried in any state they could foresee their product in
(following his opinion in Asahi)
Breyer + Alilto: Agree with Kennedy in that there’s no PJ, but the reasoning is too broad, and
they don’t want to set a precedent with something so general and sweeping. Breyer believes
with different facts/factors, there could be jurisdiction (volume?)

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Dissent: Ginsburg/Sotomayor: There’s something fishy here. Maybe they should have
jurisdiction, because the idea that a large business can conduct business in many other states
without being liable in those states is suspicious. They could have foreseen the products in NJ.
The typical case for stream of commerce/product liability is Asahi, where O’Connor says: placing
into stream of commerce is enough for jurisdiction. Brennan says fairness and foreseeability is
enough for jurisdiction. Stephens says focus on nature/volume of the products, scope is
important.

General Jurisdiction

Goodyear Dunlop Tires Operations, S.A. v. Brown (Goodyear, Ginsburg, 2011)

Facts: Two minors were killed in Paris because of faulty tires that were manufactured by
Goodyear and three of its subsidiaries. The subsidiaries were located in Turkey, Luxembourg,
and France. The subsidiaries object for lack of personal jurisdiction in North Carolina state court,
where the incident occurred. Goodyear did not contest its activities there.
Rule: Stream of commerce contacts are not sufficient for general personal jurisdiction. General
personal jurisdiction exists through continuous and systematic contacts that would make them
seem “at home”.
Holding: NC State Courts did not have jurisdiction over the foreign subsidiaries. Since the claim
has nothing to do with their contacts with the state, the requirements for personal jurisdiction
become much higher.

Daimler AG v. Bauman (Daimler, Ginsburg, 2014)

Facts: Argentinians sue Germans/Argentinians for acts like torture, kidnapping, murder
committed in Argentina in California State court. Daimler AG is a German public company.
Plaintiff claims that jurisdiction over Daimler could be founded on California contacts of MBUSA,
a distinct corporate entity, a subsidiary of Daimler, incorporated in Delaware. MBUSA has many
California-based facilities, but they are based in NJ and Delaware primarily.
Rule: General jurisdiction exists only through continuous and systematic contacts that render
the corporation “at home” with the forum state.
Holding: There is no jurisdiction over Daimler AG in California. Even if they allowed MBUSA to be
attached to Daimler for California contacts, even those contacts are not sufficient for general
personal jurisdiction. Probably can’t attach the case though. Daimler AG on its own has no
connections to California.
Notes: Sotomayor concurs, saying that Daimler may be too big to fail. To subject it to general
personal jurisdiction here would subject it to general personal jurisdiction everywhere. Upholds
Goodyear. Daimler sets a precedent that makes general personal jurisdiction limited to
exceptional cases. Court in Daimler gives no indication that the test for principal place of
business is the same as test for Hertz (nerve center).

Burnham v. Superior Court (Burnham, Scalia, 1990)

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 Facts: Dennis Burnham married Francie Burnham. They moved to West Virginia, where they had
children. They decide to divorce for irreconcilable differences, then wife moves to California
with children. Dennis sues for divorce in NJ for desertion, but does not serve properly. When he
goes to visit the bay area to visit kids, Wife served him with divorce papers for irreconcilable
differences in California.
Rule: If a person is present in the state boundaries, he is subject to that state’s jurisdiction.
Holding: California courts have jurisdiction over Dennis because he was physically in the state
when process was served. This is an ancient history tradition that has been followed for
centuries.
Notes: Upholds parts of pennoyer. Scalia: historical argument. Brennan: Purposeful availment in
California gives California the right to jurisdiction. Scalia argues that Brennan’s argument is too
broad, and that what if he was only coming to visit his children because they were sick? 4-4 split
that Stevens said both sides has points, so he doesn’t want to set a precedence by making a
majority, so he said this case was very easy and there wasn’t much point to it. This case is
therefore not binding.

Due Process/Notice

Mullane v. Central Hanover Bank & Trust. Co.

Facts: Bank published notice in newspaper for four weeks. However, this was not consistent
with due process, should be more reasonable.

Rule: If you know where they are, mailing to last known address is suffice. If you don’t know
where they are, it would be inefficient/expensive to find where they are, so a newspaper
publication will suffice.

Holding: Publication is not enough, it must reasonably inform if you know where they are. If you
don’t know where they are, you must know means that are not substantially less likely to notify
the defendant than other feasible substitutes. This paves the way to Rule 4.

Venue:

Statutes: 1391, 1404, 1406

Wrong Venue Right Venue

Motion to Transfer 1406 1404
Motion to Dismiss 1406 Forum Non Conveniens

Thompson v. Greyhound Lines, Inc.

Facts: Women fails to get off at the right stop, wakes up way late, tries to sue them in federal

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 court

Rule: Apply 1391.

Piper Aircraft v. Reyno

Facts: Aircraft crashes killing a bunch of decedents. The families sue the aircraft manufacturers
(made in Penn, propellers made in Ohio), in California, claiming negligence.

Rule: A plaintiff’s forum choice should rarely be disturbed, but when an alternative forum has
jurisdiction to hear the case, and when trial in the chosen forum establishes oppressiveness to a
defendant overproportioned to the convenience of the plaintiff, the court may dismiss the case.
(Appellate court says no Bueno)

Holding: Supreme Court rejects the rule of “unfavorable plaintiff” as sufficient grounds to refuse
to dismiss unless there’s a huge disparity in remedy to the point of no remedy at all. Endorses
rule above, less weight to foreign plaintiff’s choice of forum, else US Courts would be overrun.

Eerie:

Eerie Railroad v. Tompkins

Facts: Codified by 28 U.S.C. 1652. Man hit by railroad, sues in federal court under diversity,
which would come out differently than state court.

Rule: In cases not governed by Federal law, the federal courts must apply state law rather than
taking its own federal common law.

Holding: Desire for uniformity, prevent forum shopping, federal common law not given in the
constitutional, would be unconstitutional to apply it. Overturn Smith.

Klaxon v. Stentor Electric Manufacturing Co

Rule: Federal Court sitting in diversity must apply choice-of-law doctrine of the forum state law
to choose between the forum state’s law and the other state’s law.

Correllary: When a case is transferred, it takes the state rules which it was originally
filed with it. (Van Dusen)

Guaranty Trust v. York

Facts: Sued a bond trustee in federal diversity action alleging misrepresentation and breach of
trust, where New York substantive law governed. Defendant invoked New York SoL, which had
run.

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 Rule: Does it significantly alter the result of litigation? Starts the outcome determinative test.
Because the state practice neither determines the outcome nor is bound up with substantive
rights and obligation, federal court is free to accept/reject.

1. Is the state rule bound up with state created rights? If yes, then state rules.
2. Would it dictate the result? If yes, still need to balance interests between federal
and state courts.

Byrd v. Blue Ridge Rural Electric Cooperative:

Facts: Plaintiff injured while on construction job for defendant, sued in tort. Plaintiff was doing
same work as defendant’s regular employees, therefore was a statutory employee whose
remedy was under the SCWCA.

Rule: Apply Outcome Determinative Test

Holding: Court concludes that there would be a strong likelihood that a different result would
occur in the application of state law v. federal law, so state rule should not be applied over
federal rules.

Hanna v. Plumer
Facts: Civil suit for car accident filed in Massachusetts Federal Court. Mass. State law serving
notice requires service at executor of the estate, while FRCP says it needs to be left with
someone of suitable age and discretion. FRCP is broader than state statute.

Holding: Federal rule prevails, their reasoning being the

1. Constitutionality Test: Does the rule violate the constitution? If not, it will take
precedence over state law.
2. Rules Enabling Act Test: Is it a rule of practice/procedure of district courts? Does it
modify substantive rights? (This is very broad, almost any rule will satisfy this part).

For Eerie Type Problems:

Twin Aims of Eerie: Prevent Forum Shopping and outcome determinative test (inequitable
administration).

Hanna Part I: If there’s no FRCP, use twin aims of Eerie.

Hanna Part II: Constitutional Element: Does it violate Constitutional element/comply with rules enabling
act?

Flowchart on Page 281.

If there is a rule, it will probably apply, if not, then apply the twin aims of Eerie.

Semtek Intl. Inc. v. Lockheed Martin Corp.

Facts: Not as important as Hanna. Hanna is most important. Res Judicata = Dismissed on merits,
cannot file again. Court says a second court should give the case the same verdict as if it was in

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 federal court. Semtek fledgling company trying to contract with satellite ventures, Lockheed
edges them out. Semtek sues in California Stat (removed for diversity), dismissed on its merits.
Semtek refiles in Maryland. Lockheed Martin says this is governed by 41b, can’t file again.

Holding: Scalia rejects both, says that Maryland must do what California would have done.
There is no federal statute here. 41(b) merely says that you cannot file in the same court with
the same claim, so it does not apply.

Pleading

Includes: Complaints, Answers, Crossclaims, Counterclaims.

Prayer for Relief: Injunctive, declaratory.

Damages: Compensatory, punitive, attorney’s fees, keep these broad.

Rule 12 is big here.

Rule 8: Pleading

Twiqbal
Facts: Antitrust case/Terrorist case. The complaints were conclusory and did not have factual
basis to support the claim; facts were conclusory, you need to show

Rule: Complaints must be PLAUSIBLE instead of CONCEIVABLE.

Holding: Not enough facts made to support his point. Dismissed under 12b6. We now use

1. Conclusory nature of claims, must filter these out.

2. After filtering out conclusory terms, check for plausibility.

Haddle v. Garrison
Facts: At-will employee (signed a contract saying he could be fired for any reason) was fired for
fear of him testifying against him, the employee sues them for wrongful termination.

Rule: Supreme Court reversed trial court’s decision; the lower courts said that Plaintiff must
have suffered an injury to a constitutionally protected property interest in order to state a claim
for damages; however, reading the language, nothing in the statute says injury, merely relief for
witnesses in Federal court proceedings.

Stradford v. Zurich Insurance Co.

Facts: Plaintiff was trying to claim money from insurance company, got paid, then asked for
more, to which the insurance company counterclaimed, saying that plaintiff made fraudulent
claims, sought return of initial payment

Rule: Rule 9 of FRCP

Holding: Court granted the motion to dismiss, saying they did not abide by rule 9, wherein you
need to say time, place, nature of alleged misrepresentations. Not Precise enough.

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Ethics: Rule 11 and Sanctions

Walker v. Norwest Corp.

Facts: Attorney Massey failed to plead complete diversity of citizenship, and pleaded instead
facts that showed there were not complete diversity over a minor’s trust fund. This is not okay
because it should be obvious to the lawyer.

Rule: Rule 11 does not require complicated nor in depth inquiry, by any REASONABLE standard;
average lawyer should know this, or average lawyer should have done more research on
something that isn’t his specialty.

Holding: Sanctions awarded, it is not the court’s job to do the lawyer’s research for him.

Christian v. Mattel, Inc.

Facts: Barbie doll case, where a reasonable investigation by the lawyer (who also had
outrageous and unlawyerly conduct) would have revealed that there was no factual foundation
for Christian’s copyright claim, as it was merely on the back of the barbie’s head.

Rule: Behavioral claims DO NOT APPLY to sanctions or rule 11. Only failure to do common legal
research. Attaching all the behavioral claims onto 11(b)(3) is not okay.

Zielinski v. Philadephia Piers, Inc.

Facts: Plaintiff sustained injuries caused by Defendant’s forklift, went into a rabbit hole of
employee stuff where they admitted that the forklift was theirs.

Rule: Consequences of denying generally. You should deny paragraph by paragraph; under Rule
8, anything not explicitly denied is admitted.

Discovery

Evidence Timeline
Pre-Answer Summary Trial
Issue Complaint Motion Answer Discovery Judgment Begins
Rules 4,7,8 12 7,8 26-37 56
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Favale v. Roman Catholic Diocese of Bridgeport

Facts: Sexual assault in a nunnery case, where plaintiff requested defendant’s anger
management/psychological condition are relevant to claims of negligent hiring and negligent
supervision.

Rule: You may not discover into information that is profoundly personal and irrelevant to the
case. (26(b)(1)).

Holding: too profoundly personal, not relevant to the case, although we can disagree.

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 Price v. Leflore County Detention Center Public Trust
Facts: Asked for failure to provide medical treatment to inmates for ten years.

Rule: Under Rule 26(b)(2)(c), you may not discover anything that is too unreasonably
burdensome, or 26(c), protect parties from annoyance, harm, or oppression.

Rengifo v. Erevos Enterprises, Inc.

Same as above, with employment action.

Hickman v. Taylor
Facts: There was an accident with a barge that resulted into the deaths of many; the lawyer of
the owner of the railroad began conducting interviews and testimony that was made available
to all interested parties in anticipation of litigation. In discovery, the plaintiffs tried to get all this
stuff.

Rule: Work products are not allowed to be discovered, because people should not be entitled to
the work only to have it used against them, this would be bad for public policy

Additionally, Privilege only applies to the communication of facts, not the underlying facts
themselves. This is codified under 26(b)(3)
o If the party has a substantial need or is unable to obtain this information, then it must
be produced unless it would reveal mental impressions/conclusions of the counsel.

Joinder

Plant v. Blazer Financial Services

Facts: Plant has claim under truthful lender act. Blazer counterclaims she hasn’t been paying off
the loan. Is this counterclaim compulsory or permissive?

Rule: 13. If a counterclaim is not compulsory, it would need a separate jurisdictional basis, which
would create jurisdiction issues. 4 Tests:

1. Are issues of fact and law raised by the claim and counterclaim largely the same?
2. Would res judicata bar a subsequent suit on defendant’s claim absent the
compulsory counter claim rule?
3. Will substantially the same evidence support or refute plaintiff’s claim as well as
defendant’s counterclaim
4. Is there any logical relation between the claim and counterclaim?

Holding: The counterclaim is compulsory

Mosley v. General Motors Corp.

Facts: Mosley and nine other people are trying to bring action against GM under EOC.

Rule: 20, you may add parties if it’s the same event AND same common legal factual issue.

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Holding: not really a good case to study because Mosley goes to the extreme and analyzes the
merits, says that they are joined properly as a class action.

Price v. CTB, Inc.

Facts: Chicken farmer tries to build a new house, structure is defective, plaintiff sues. CTB joins
another party saying that there were faulty nails involved.

Rule: Rule 14, Impleader, the defendant suing a third party. Was he properly impleaded? Rule
14 says that the court must allow any impleading of anyone who “might be liable”

Holding: Latco properly impleaded under rule 14. Even without impleader, Latco is permitted to
sue ITW on its own claims, only fear different results.

Temple v. Synthes
Facts: Temple suing Synthes for faulty back plate/screws. Synthes tried to join doctor/hospital
into the suit, but the court said joint tort feasors do not need to be in the suit if they are already
suing the other parties, because it would destroy plaintiff’s diversity.

Rule: 19; Required joinder of parties, for full relief,

1. Is the absent party required? 19(a)(1)

2. Is joinder feasible? (diversity, jurisdiction, venue, immunity)
3. If not feasible, decide whether to dismiss or continue.

Holding: Rule 19 is not satisfied. These tortfeasors of hospital and doctor are permissive,
because they were already being sued.

Helzberg Diamond Shops v. Valley West Des Moines Shopping Center

Facts: This case was probably ruled incorrectly, don’t spend too much time here

Natural Resources Defense Council v. United States Nuclear Regulatory

Commission
Facts: Complicated facts, intervention case, where a bunch of energy companies are trying to
come in on the lawsuit of granting licenses.

Rule: 24: Right designed to give those with strong interests in the litigation the power to insist
on joinder.

1. Sufficient Interest
2. Risk of Impairment of the interest
3. Not adequately protected/represented in the original case.

Holding: Granted some appellants, Kerr-McGee, and American Mining Congress, motions to
intervene.

Martin v. Wilks

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 Facts: NAACP and seven black individuals filed separate class-action complaints against
Birmingham, alleging racial discriminatory behavior. A new group of white firefighters, Wilks,
brought suit against city. The aforemention parties settled.

Rule: You don’t waive your right to sue just by not intervening or other people settling.

Southern Bureau Life Ins. Co. v. Davis

Facts: Interpleader case where one stakeholder the money, and that person may sue all the
people who have interests in the money, stateholder v. claimants. Can be statutes 1335, 1397,
2361, or FRCP Rule 22.

Rule: See rule table below.

Issue Statutory Interpleader Rule Interpleader

Federal SMJ – Diversity
Amount
Personal Jurisdiction
Venue
Injunctions (freeze assets)
Minimal diversity,
determined as between
claimants
500
Nationwide service of
process
Residence of one or more
claimants
Specifically provided for
interpleader cases in 28
U.S.C. 2361.
Complete diversity,
determined as between
stakeholder and claimants
75000
Must meet ordinary
jurisdiction rules; contacts
with claimants required;
service under Rule 4
Ordinary venue rules
under 28 U.S.C. 1391
No specific basis; courts
have used 2361.

Supplemental Jurisdiction

Steps for analysis

1. Does it arise out of the same case or controversy? If yes, move to step 2.
2. 1367(b) has 5 hoops:
a. Was the original case on the basis of diversity? If no, then stop, it’s okay to be added
just with section A.
b. Is supplemental claim asserted by the original plaintiff? If no, then stop. Okay to be
added. If yes,
c. Is it a claim against a person made party under rule 14, 19, 20, or 24? If yes, then there
is no supplemental jurisdiction
d. If case involves 19 or 24, would the party be joined as a plaintiff? If yes, no supplemental
jurisdiction
e. If there’s an independent federal basis for the claim, it’s okay because you don’t even
need supplemental jurisdiction.

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Resolution Without Trial

Default, voluntary/involuntary dismissal, settlement, summary judgment.

Peralta v. Heights Medical Center

Facts: Court enters default judgment on Peralta because she does not show up, however there
is no timely service, and they already sold his property. Texas court said to set aside default
judgment, you need to show that you had a meritorious defense. Supreme court rules this
unconstitutional because of due process.

Rule: 55. Court may set aside a default judgment under rule 60B.

Involuntary Dismissal:

When the court dismisses.

Voluntary Dismissal:

When the plaintiff dismisses; forum shopping, judge shopping, redraft pleadings, facilitate consolidation
with other actions, avoid unfavorable state laws, longer statute of limitations, delay or avoid discovery.
Rule 41a1Ai allows plaintiff to dismiss any time before the defendant answers, and ii allows for them to
dismiss any time they both agree to dismiss.

Summary Judgment:

Rule: A moving party may prevail if she shows that the evidence would entitle them to the win on that
element. This is countered by the nonmoving party showing Insufficient time to gather evidence,
produces evidence contradicting that of the movant, otherwise shows that a rational jury could find for
him at trial.

In summary judgment, all evidence of the non-movant is to be believed, and all justifiable inferences are
to be shown in its favor (reasonable jury could have found for either party.

VII. WAIVER OF DEFENSES

1. Subject Matter jd is never waived

2. Personal jd, Notice, Service of Process, and Venue are all waivable
a. They are threshold defenses  must be raised by a pre-answer motion or asserted in
the answer, or else they are treated as waived
b. Rule 12(g), 12(h)  any threshold defense you don’t put in 1st motion can’t be raised in
2nd (consolidation)
i. If you omit a threshold defense, can’t even put it in your answer
c. If you make a threshold defense motion and lose, go one with the case and can
subsequently appeal it
THE ERIE QUARTET:

1. Erie v. Tompkins: Except in matters governed by the Constitution or Acts of Congress, federal
courts sitting in diversity cases must apply the substantive (including common) law of the
forum state

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 a. Overruled Swift v. Tyson, created:
i. Because it creates inequity  having two bodies of common law would
inevitably create forum-shopping
ii. Because it is unconstitutional  nothing in Art III gives federal courts the power
to generate fed common law
 Twin aims of Erie: prevent forum shopping, inequitable administration of the law

2. Guaranty v. York: When the state statute affects the very possibility of recovery (as a statute
of limitations does in this case) the statute bears vitally, and not merely formally or negligibly,
on the State-created right, and the federal court should follow state law
a. York Outcome-determinative test  whether or not disregarding state law would
significantly affect result
b. Difference between substantive and procedural law 
i. Substantive law = any law that provides a cause of action, network of right/duty
relations
ii. Procedural law = methodology of effectuating substantive rights
c. Want to avoid forum shopping between state and federal courts
 Fed court is an extension of the state court, at least in diversity cases

3. Ragan: affirmed York—federal court in diversity had to follow state rule for statute of
limitations, because there was no conflict between the state statute and the fed rules
4. Byrd v. Blue Ridge: when issue is procedural and no fed rule or statute is on point, balance
York’s outcome-determinative test with federal and state interests
a. Byrd Balancing test 
i. Evaluation of significance of state policy
ii. Countervailing federal consideration—influence, if not command of the 7th
Amendment
iii. Probability of an outcome differential—is the issue really outcome-
determinative?
b. Also consider outcome-determinativeness, forum-shopping, etc
5. Hanna v. Plumer: federal rules trump state policy when they are both applicable and they don’t
violate the Rules Enabling Act
a. May not abridge, enlarge, or modify the substantive rights of any litigant
b. Court holds that Rule 4d (service of process) neither exceeds the mandate of the Rules
Enabling Act nor the Constitution and is therefore the standard against which district
court should measure adequacy of service
Motions Against the Complaint

 Defenses against the validity of complaint—included either in answer or separate motion

o Rule 12b1  lack of subject matter jurisdiction
o Rule 12b2  lack of personal jurisdiction
o Rule 12b3  improper venue
o Rule 12b4  insufficiency of process
o Rule 12b5  insufficiency of service of process
o Rule 12b6  failure to state a claim upon which relief may be granted
 Must establish that no recovery is possible under any legal theory
 Usually made before def files answer—after can make a 12c motion for
“judgment on pleadings”
o Rule 12b7  failure to join a necessary party (under Rule 19)

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 oMotion for a more definite statement  def may make motion under 12e if complaint is
“so vague or ambiguous that def cannot reasonably be required to frame a response
pleading”
o Motion to strike  if plaintiff has included “redundant, immaterial, impertinent or
scandalous” material in complaint, def may move under 12f to have material stricken
from pleading
 Amendment
o If complaint dismissed, plaintiff will almost always have the opportunity to amend the
complaint
 Plaintiff may automatically amend if motion made before def files answer Rule
15a
o If 12b motion successful after filing answer, plaintiff may amend with court’s permission
(likely)

Trilogy One:

JOINDER OF CLAIMS (Rule 18)

One sentence for exam  Since Rule 18 permits any claims to be joined, joinder is proper.

Party asserting claim for relief may join, either as independent or alternate claims, as many claims as he
has against the opposing party—no T&O requirement

o If claims are so divergent that things don’t work efficiently or prejudice is created, we
can segment out the pieces with Rule 42b  court can order separate trials to avoid the
bias/confusion of trying matters together
 18 is a giant intake valve; 42 permits the judge to separate out the pieces and
package them appropriately
 This is permissive, not compulsory  making it mandatory might encourage litigation where
there isn’t any
 Not all states follow Fed Rules—may have a T&O requirement for joinder of claims

PERMISSIVE JOINDER OF PARTIES (Rule 20)

Two sentences for exam  The standard for permissive joinder of parties is common question and
transaction or occurrence. Since the complaint alleges that all of the defendants were involved in the
conspiracy, there is a common question of conspiracy and a single transaction—the formation of the
conspiracy.

 Common standard for joining parties:

o (1) you can join anyone whose claims arise out of the same transaction or occurrence
o (2) you can join them only if there is a common question tying all parties together
 Rule 20 = transaction or occurrence + common question
o Virtually guaranteed that if there is T&O, there will also be CQ
o Deals with transactions, not causes of action—so standard isn’t CNOF
 Works for joinder of plaintiffs as well as joinder of defendants
o Judgment that it’s better to open the door wide than keep it partially closed—better to
try like things together for judicial efficiency

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 o Ability to join means that when the case is over you can get more preclusion effect

COMPULSORY JOINDER OF PARTIES (Rule 19)

Three questions to think about for exam 

1. Is there someone out there who should be joined?

a. Rule 19a  person shall be joined as a party if:
i. (19a1) outsider’s absence prevents granting complete relief to those already
involved
ii. (19a2) outsider will be prejudiced, his rights will be impaired or impeded, if he
isn’t joined
2. Can the court join him?
a. Party may be joined under 19a only if court can serve him/get personal jd over him, and
bringing him in won’t destroy diversity (subject matter jd)
b. 19a is both a party question and a jurisdiction question (subject matter and personal jd)
3. If court should join him but can’t, what can they do?
a. Rule 19b  determination by court when joinder isn’t feasible
b. Court has to decide  is this person absolutely essential to the action? Can you
proceed without him?
i. 12b7 recognizes a motion to dismiss for failure to join an indispensable party
ii. 19b is an attempt to avoid dismissals under 12b7  judge must determine if
there’s anything he can do to move forward, and at least give relief to the
people already involved
1. Invokes the tradition of the equity judge—do what you can, take a guess
at missing party’s claim
a. i.e. if there are 3 people involved and one is MIA, maybe
assume that person’s claim is for 25%, and give each person
25%—if the person materializes and is actually owed more or
less, judge can adjust

Trilogy Two:

COUNTERCLAIMS (Rule 13)

Claim that def makes against plaintiff; counterclaim can basically be anything

 13a Compulsory Counterclaim  any claim arising out of the transaction or occurrence that is
the subject matter of the opposing party’s claim
o If def brings counterclaim, plaintiff is required to bring compulsory counterclaims of his
own, if they are transactionally related
o If either party fails to assert a compulsory counterclaim, he waives his right to assert it
later
 13b Permissive Counterclaim  everything else!
o A pleading may state as a counterclaim any claim against an opposing party not arising
out of the transaction or occurrence that is the subject matter of the opposing party’s
claim

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  New parties may be brought into suit as part of a counterclaim provided there is
jurisdiction
 HYPO: Two cars collide on a road; one party gets out and punches the other. Is battery
compulsory?
o T&O test requires a pretty good logical relationship between claim and counterclaim 
in this case, it’s a different cause of action but a related series of transactions or
occurrences
 Most courts would say that this is a compulsory counterclaim
 This seems broad—may embrace things that are separated by time and space
o Rule doesn’t specify consequences of non-assertion  claim preclusion? Res judicata?
o If driver is cautious, will bring all claims forward now—if they aren’t 13as, they’re 13bs

CROSS-CLAIMS (Rule 13g)

Co-parties can cross-claim, as long as they are in the same tier

 Cross-claims must arise out of the transaction or occurrence that is the subject matter of the
original action or a counterclaim therein
o Tolerate broad counterclaims because they are about the same fight—but cross-claims
are limited because don’t want the cross-claims to disrupt the original lawsuit
 Cross-claims are thus completely permissive and carry a T&O requirement
o However, once get cross-claim under 13g, then obliged by 12a compulsory counterclaim
to file any compulsory counterclaims against cross-claiming party

THIRD PARTY CLAIMS (Rule 14a)

Called impleader in many jurisdi ctions  action for contribution, indemnity, etc

 Rule doesn’t specifically say T&O, but all 3rd party claims must emanate from the underlying
claim  logical relationship, series of T&Os, etc
 Unlike counterclaim and cross-claim, in effect brings a new action
o Bringing in a new party raises all traditional in personam jd issues
o If plaintiff can’t get supplemental jd, then has to take claim against 3rd party to state
court due to §1367(b)
 Owen v. Kroger: If you wouldn’t allow plaintiff to sue Owen directly, shouldn’t
allow her to do that indirectly by virtue of the 3rd party defense practice
procedure

Trilogy Three (briefly):

INTERPLEADER (Rule 22)

Used by a stakeholder of property who has multiple parties claiming it

 Used because res judicata doesn’t prohibit subsequent claimants to sue for same property
 Proscribed in both a federal statute and a federal rule 
o §1357: $500 requirement, nationwide jurisdiction (maybe global), creates form of
federal jd that only requires minimal diversity of citizenship

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 o Rule 22: $75K requirement, no federal national jurisdiction (must use long-arms),
requires complete diversity of citizenship

INTERVENTION (Rule 24)

Outsider says he belongs in the case because his interest is not being protected

 Always a concern that the outsider will muck it up for those already involved
 Division between permissive intervention and invention as a right 
o Rule 24a: applicant has a right to intervene when either
 US statute confers an unconditional right to intervene, or
 Disposition of action may impair or impede applicant’s ability to protect his own
interest
 Must demonstrate that interest is not adequately represented by
existing parties
 This rule is the other side of Rule 19a—persons may be joined when
feasible
o Rule 24b: applicant may intervene when
 US statute confers a conditional right to intervene, or
 Applicant’s claim or defense and main action have a question of law or fact in
common
 This rule sounds like other side of Rule 20a—permissive joiner—though
only common question required here, whereas 20a requires T&O and
CQ
 Much less likely to permit if doing so destroys diversity
I. SCOPE OF DISCOVERY

Federal system determines scope of discovery, discovery mechanisms

 Rule 26b1  Federal standard broadens discovery scope and limits

o Discovery on any matter not privileged that is relevant to the claim or defense of any
party
 “Relevant to a claim or defense” scope  plaintiffs always fight to maintain this
open scope, defendants always fight to narrow it
o Materials don’t have to be admissible at trial to be discovered at this stage
o Rule 26f  parties mandated to get together and negotiate discovery before judicial
conference
 Rule 26c  Protective Orders
o Protective orders have been a battlefield for over a decade
o Raises issue whether a civil litigation is a public or a private process
 Discovery drafters thought it was a private process—scope of discovery much
broader than the scope of admissibility
 Many go to alternative dispute resolution to gain the privacy they can’t get in
court

II. DISCOVERY DEVICES

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 1. Mandatory disclosure (Rule 26a)  automatic obligation to turn over certain information—
regardless of whether anyone asks for it or not
a. Documents, witnesses, damage computations, insurance policies qualify for mandatory
disclosure
i. These are things that the rulemakers believe are so obvious, central, and
important to getting going that no motion should be needed
b. Don’t get to discovery until you’ve gotten through disclosure
i. Most lawyers would say that nothing much turns on this rule
2. Deposition  can question any person (party or not) under oath regarding subject matter of the
case
a. Notice is only required if deponent is a party—can force a non-party with a subpoena
b. Strength of deposition is that it’s spontaneous, respondent must answer on the spot
c. Respondent must answer all questions  depositions can include things that are
inadmissible
i. i.e. not an objection that they’re talking about hearsay
d. Rules 31, 33  limit each party to 10 depositions (up to 7 hours each) without a court
order
3. Deposition on written questions  rarely used; can also be directed at anyone
a. Saves money (oral depositions are very costly), and works well when the witness isn’t
antagonistic
b. Downside is that you aren’t there—you’re stuck with whatever questions you sent in
advance, can’t react to what the person says
i. However, if something shows up, can opt to orally depose the witness
4. Interrogatories  questions sent to other party who answers them with lawyer and sends back
a. Work shifters  less cost for questioner, more for answerer; easier to write questions
than answer them
i. Gives interrogating party the benefit of the entire information base (not just
what other party knows personally)
ii. Many lawyers use as a sweep  find out who knows what, and then depose
them
b. Interrogating party writes out all their questions, limit of 25
i. Rule 33  used to get baseline data, used for things with a specific answer
5. Document discovery / land inspection (Rule 34)  access to land, machinery, laboratories,
computer systems, and electronic data
a. Following conference in accordance with Rule 26d, just give notice about what you want
to see
b. This discovery device now becoming as important as depositions in products liability, etc
c. Pervasiveness has led Advisory Committee to consider new Fed Rules on electronic
discovery
i. Is there a duty to maintain information? How long? What kind of storage?
6. Physical/Mental examinations (Rule 35)  court order to submit to examination
a. Only discovery device that requires a motion and subsequent court order for imposition
b. Rule requires def to establish two required elements before court issues order 
i. Good cause—needs info from the exam that it can’t get elsewhere
ii. In controversy—matter being examined is specifically in dispute in the case
c. Closest of all fed rules to violating the Rules Enabling Act
III. WORK-PRODUCT DOCTRINE

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  Hickman v. Taylor: greatest discovery case ever decided in this country
o Lawyer performed extensive work (interviewing, etc) before case was brought
o Plaintiff brought suit and filed an interrogatory requesting basically everything from
lawyer (copies of all statements taken in connection with accident, and if oral,
summaries of the statements)
o SC said this is essentially an attempt to get inside the head of the opposing counsel,
without justification since plaintiff can interview witnesses himself
 Not a privilege case, because not about attorney-client communication
 But the information is attorney work-product—need a good reason for
obtaining it
 If this case didn’t exist, lawyers would wait for opposing counsel to do
work and then just ask them to turn it over
 In the alternative, would lead to lawyers not writing anything down,
which is also bad
o Miller  SC doesn’t create a lawyer’s privilege, but a qualified immunity
 If can’t get a substitute, immunity is trumped in the name of access to all
relevant data; but if there is a substitute, immunity holds
 Rule 26b  Codification of the Hickman rule
o A party may obtain discovery of documents and tangible things prepared in anticipation
of litigation or for trial by or for another party (or representative) only upon showing
substantial need and unable without undue hardship to obtain substantial equivalent by
other means
o Court shall protect against disclosure of mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party concerning the litigation
 If mixed, judge will receive documents and cross off all the stuff that’s work
product

IV. PRE-TRIAL MANAGEMENT

VI. SUMMARY JUDGMENT

 Serves as a filtering device  designed to shorten trials, motion made in the middle of a case
 Stages of trial that serve as filtration devices—should the trial go on?
o Rule 12b6 Motion to dismiss  has anything been stated that amounts to a claim for
relief?
 Def says there is no claim upon which relief can be granted
 Def who makes motion makes concession that all of the facts of the complaint
are true
 If granted, there is usually leave to re-plead
o Rule 12c Motion for judgment on the pleadings
 If granted, there is usually leave to re-plead
o Rule 56 Motion for summary judgment  asking is anything jury-worthy?
 Universal standard = is there a genuine issue of material fact?
 Granted if plaintiff’s case has no legal basis (i.e. no legally recognized
wrong)
 Granted if all material in the motion sings the same song (i.e. no
reasonable jury could disagree with it all)

24
  Granted if there is a iron-clad defense that can’t be overcome (i.e.
statute of limitations has expired, res judicata applies)
 If there is, go forward—if there isn’t, in effect you’re saying there is nothing
trial-worthy
 If granted, produces final judgment with res judicata effect—not appealable!
o Rule 50 Directed verdict motion  judgment as a matter of law; asking is anything jury-
worthy?
 Essentially the same as a Rule 56 Motion—but timing is different
 Case is getting more mature, motion-making getting less forgiving
 Def claims plaintiff’s evidence is insufficient, doesn’t satisfy the burden of proof
 If granted, produces final judgment with res judicata effect—not appealable!

Exam Taking Tips:

Seven Questions to Determine Proper Jurisdiction

1. Does the court have subject matter jurisdiction? (power to hear dispute)
2. Does the court have personal jurisdiction? (power over person or property)
3. Has the defendant been given proper notice and an opportunity to be heard?
4. Has the defendant been served with process properly?
5. Does the court have venue?
6. If the action is in a state court, can it be removed to a federal court?
7. Have any of the preceding six issues been waived?
a. Subject matter jd can’t be waived; the others can, and if they aren’t asserted, they’re
gone
Then:
Move on to Application of Law
8. Eerie/Hanna?
9. Klaxon?
Pleadings
Discovery
Pretrial Settlements, etc.

U.S.C.:

Federal Question: - 1441

- 1446
- 1251
- 1447
- 1331
Venue:
Diversity:
- 1391
- 1332
- 1404
Removal: - 1406

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Eerie: - 1397
- 2361
- 1652
Supplemental Jurisdiction
Intervention and Interpleader
- 1367
- 1335
FRCP Rules:

4: Summons/Service/Due 18: Joinder of Claims 24: Intervention

Process
8: General rules of pleading,
what to include
12: Defenses and Objections
13: Counterclaim, Crossclaim
19: Required Joinder of 26: Duty to Disclose
Parties
27: Depositions
20: Permissive Joinder of
33: Interrogatories
Parties
34: Producing Documents
22: Interpleader

15: Amended and 23: Class Actions/Derivative

Supplemental Pleadings Actions

26