Rule making process of procedural rules.

- Making Congress Supreme Court Judicial Conference Standing Committee Advisory Committee

Modern Pleading

28 USC 2071, 2072, 2073 and 2074 (S)

Rule 1, Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. Rule 2, There is one form of action the civil action. Rule 7, Types of pleadings allowed and form of motions Rule 7.1, Rules for corporations to identify parent corporations and any public held corporation owning 10% or more of its stock. Rule 8(a)(2), a short and plain statement of the claim showing that the pleader is entitled to relief Rule 8(e), Pleadings must be construed so as do to justice. Rule 12(b)(6) failure to state a claim upon which relief can be granted

0. Diougardi v. Durning, Interpreting rules (8a & 12 (b)(6)) the Circuit Court stated the requirement is a claim upon which relief can be granted. Therefore the Court must give the plaintiff the benefit of reasonable intendments in his allegations. This case governed the motion to dismiss for 50 years. (This opinion was authored by Judge Clark who wrote the Federal Rules of Civil Procedure.)
Diougardi notice pleading standard = the federal courts require that complaints include merely a statement of subject matter jurisdiction, a short and plain statement of the claim, and a demand for judgment. (exception for claims addressed in Rule 9. claims alleging fraud, mistake, or special damages),

In order to withstand summary judgment, the complaint need only put the court and defendant on notice of the cause of action. The complaint need only present a short and plain statement of the claim demonstrating that the pleader is entitled to relief.

1. Conley v. Gibson Conley notice pleading standard = A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The USSC considered the DC did have jurisdiction, the 3rd party was not indispensable and that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The Court considered that the discrimination claim was possible from the facts presented (blacks fired and whites hired) and that the rule allowed for an obligation after the contract so there was a plausible claim. The Court also claimed that all the Federal Rules require for a complaint is a short and plain statement of the claim that will allow the defendant fair notice of what the plaintiffs claim is. I t also included that according to 8(e) that the pleading must be construed as to justice and not a game of skill. The Conley, court also held that the complaint would be taken as truth in the motion to dismiss . Heightened pleading (more than notice pleading) should not be required except in the cases that specifically require it (9b). 2. Bell Atlantic Corporation v. Twombly. Twombly notice pleading standard = The claim must be plausible when facts are considered to be true. Legal conclusions, couched as factual allegations, are not accepted as true. (Before this decision, for the motion to dismiss the whole complaint was taken as truth, however after Twombly only the factual allegations will be taken as truthful and not the legal allegations. The factual allegations must be enough to raise a right to relief above the speculative level on the assumption
that all the allegations in the complaint are true. Conley's "no set of facts" doctrine was retired and replaced.

Dissent: The simplified notice pleading standard of the FRCP relies on liberal discovery rules and

summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.

2.a Ashcroft v. Iqbal

Iqbal (applying Twombly) notice pleading standard = Claim is plausible if the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The court must draw on its judicial experience and common sense. Claim must be plausible and have enough facts that discovery may lead to evidence to prove this. The claims must cross the line from conceivability to plausibility.
Rule 9 (B) In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally. Rule 9(b)-which requires particularity when pleading fraud or mistake but allows other conditions of a person's mind [to] be alleged generally-does not require courts to credit a complaint's conclusory statements without reference to its factual context.Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade Rule 8's less rigid, though still operative, strictures.

Professor Thomas: Igbal & Twombly are oddball cases because for the discovery costs and the pressure it could add to corporations or high public officials.

3. Tellabs, Inc. v. Markor Issues & Rights, LTD. In Tellabs INC. v. Makor Issues & Rights, LTD, the court interpreted the requirements of
15 U.S.C.S. which requires the claim to : (1) specify each statement alleged to have been misleading and the reason or reasons why the statement is misleading, 15 U.S.C.S. 78u4(b)(1); and (2) state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind, 78u-4(b)(2) This significantly raised the standard which only requires: a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The court determined that comparative assessment of plausible inferences must show that it is just as likely that it the allegation is possible as any other theory, while assuming plaintiffs factual allegations to be true. It also determined that The court must draw on its judicial and common sense. For purposes of Private Securities Litigation Reform Act of 1995 mandate in 15 U.S.C.S. 78u-4(b)(2)--that plaintiffs' allegations in securities fraud action give rise to strong inference of defendants' required state of mind--"strong" inference held required to be (1) cogent, and (2) at least as compelling as opposing inference. It does not suffice that a reasonable factfinder plausibly could infer from the allegations of a securities fraud complaint the requisite state of mind. Rather, to determine whether the complaint's scienter allegations can survive threshold inspection for sufficiency, a court governed by 15 U.S.C.S. 78u-4(b)(2) must engage in a comparative evaluation; it must consider not only inferences urged by a plaintiff, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for a defendant's conduct. To qualify as "strong" within the intendment of 78u-4(b)(2), an inference of scienter must be more than merely plausible or reasonable--it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. (Ginsburg, J., joined by Roberts, Ch. J., and Kennedy, Souter, Thomas, and Breyer, JJ.)

Seventh Amendment In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Rule 12 Defenses and objections: When and How they must be presented.
Rule 8 (1). In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) A denial must fairly respond to the substance of the allegation. (3) A party that intends in good faith to deny all the allegations of a pleading--including the jurisdictional grounds--may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) An allegation--other than one relating to the amount of damages--is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

Rule 8(C) (1) In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. (2). If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. Rule 8(d) (1) Each allegation must be simple, concise, and direct. No technical form is required. (2) A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) A party may state as many separate claims or defenses as it has, regardless of consistency. Rule 60(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave. (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an

opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief

4. PAE Government Services, INC. v. MPRI, INC. the court allowed the defendant to assert contradictory defenses. There is nothing in the Federal Rules of Civil Procedure to prevent a party
from filing successive pleadings that make inconsistent or even contradictory allegations. Unless there is a showing that the party acted in bad faitha showing that can only be made after the party is given an opportunity to respond under the procedures of Rule 11inconsistent allegations are simply not a basis for striking the pleading.

5. Garcia v. Hilton Hotels International, INC. District court explained how the allegations must be considered (most favorably to the plaintiff) when considering whether to dismiss the complaint. When considering a motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, all inferences drawn and allegations construed are in the light most favorable to the plaintiff. If there is some basis that the plaintiff can prove at trial that would entitle him/her to relief, then the motion to dismiss must be denied. Alternative relief for the defendant for a vague complaint is to require the plaintiff to make a more definite statement to strike certain allegations that cannot contribute to a cause of action.

6. Rubert-Torres v. Hospital San Pablo, INC. The court held that it was not an abuse of
discretion to convert defendant hospital's Fed. R. Civ. P. 12(c) motion for judgment on the pleadings into one for summary judgment. Fed. R. Civ. P. 12(c) provides, in part, that if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the federal district court, the motion shall be treated as one for summary judgment and disposed of as provided in Fed. R. Civ. P. 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Fed. R. Civ. P. 56. In this regard, Fed. R. Civ. P. 12(c) is identical to Fed. R. Civ. P. 12(b)(6) Conversion of a motion for judgment on the pleadings into one for summary judgment shall only occur after the parties have been offered a "reasonable opportunity" to present pertinent summary judgment materials. Fed. R. Civ. P. 12(c). Whether the parties had an opportunity to respond necessarily turns on the way in which the particular case under consideration has unfolded. Thus, the First Circuit disfavors conversion when: (1) the motion comes quickly after the complaint was filed; (2) discovery is in its infancy and the nonmovant is limited in obtaining and submitting evidence to counter the motion; or (3) the nonmovant does not have reasonable notice that a conversion might occur. A party receives constructive notice that the federal district court has been afforded the option of conversion when the nonmovant appends materials outside the pleadings to an opposition and urges the district court's consideration of them. When a plaintiff incorporates materials outside the pleadings into an opposition to a Fed. R. Civ. P. 12(c) motion, the plaintiff implicitly invites conversion -- and a party who invites conversion scarcely can be heard to complain when the district court accepts the invitation.

7. Zielinski v. Philadelphia Piers, INC. District Court held that a defendant may be estopped from
denying alleged facts in a complaint if he has made an ineffective denial of those facts and knowingly allows a plaintiff to continue to rely on them. A general denial is ineffective if some of the claims denied

are true and not at issue. The court held that Philadelphia Piers should have made a specific denial of the parts of the complaint it knew to be false and admitted the parts which were true. A general denial may be made only when the defendant intends in good faith to deny all of the plaintiffs allegations. A denial of only part of the allegations requires a specific denial of the parts that are denied, and an indication of which parts are true. Under FRCP 11 there is a requirement of good faith in pleading. Under FRCP 8(b), a denial must fairly meet the substance of the averments denied. A party can admit, deny, or plead insufficient information to answer different parts of a complaint.

8. Ingrham v. United States the District Court does not allow a motion to reconsider the judgment in accordance to a Texas statute with a limitation on damages. The court considered it an affirmative defense and did not allow it. The plaintiff claim that had the US raised the limitation they would have raised constitutionality issues against it. 9. Taylor v. United States the Supreme Court held that the limitation on damages is not an affirmative defense. It claimed that since the plaintiff is not required to claim how much money the request the plaintiff cannot be expected to have notice of whether it will be an issue or not.

Rule 11 (a) Attorney must sign every pleading, written motion, and other paper (party must sign if not represented) (b) By presenting a pleading, written motion, or other paper, attorney or unrepresented party certifies that (1) not presented for improper purpose (1) claims, defenses, and other legal contentions warranted by existing law or by nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law (2) Factual contentions have evidentiary support or if specifically identified, will likely have such support (3) Denials of factual contentions are warranted or if specifically identified, reasonably based on belief or lack of information (c)(1) Court may impose sanctions after attorney, law firm or party given opportunity to respond *Law firm held jointly responsible unless exceptional circumstances (c)(2) Motion for sanction must be made in separate motion *Should not be filed or presented to court if challenged item is withdrawn or corrected within 21 days after motion served or court ordered time (c)(3) Court may order party to show cause why conduct does not violate Rule 11(b) (c)(4) Sanction limited to what will deter the repetition of the conduct or comparable conduct by others *nonmonetary directives *penalty paid to court *reasonable attorneys fees and expenses if imposed on motion and necessary for effective deterrence (c)(5) when a court can order monetary sanctions

(d) Rule 11 does not apply to discovery

Rule 56 Summary Judgment (a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. Rule 15 Rule 15(a)(1)Amendments to pleadings once as a matter of course within 21 days after serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier Rule 15(a)(2)Other amendments with opposing partys consent or courts permission. Court should freely give this permission Rule 15(a)(3) Unless the court otherwise orders, must respond within time remaining to respond to original pleading or 14 days after service of amended pleading, whichever is later Rule 15(c)(1)(B) Amendment relates back to date of original pleading when:

(A)the law that provides the applicable statute of limitations allows relation back; (B)it asserts a claim or defense that arose out of the conduct, transaction, or occurrence set outor attempted to be set outin the original pleading; or (C) it changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and notice has been given, within stated time, to party to be brought in, such that the party not prejudiced, and party knew or should have known that action would have been brought against it, but for a mistake concerning the proper partys identity.

10. DeRienzo v. Harvard Industries, Inc. Plaintiff sued Harvard Industries and 25 John Does in accordance to New Jerseys Rule 4:26-4. In accordance to Fed. R. Civ. P. 15(c) he then attempted to amend his complaint to change one John Doe for defendant Lasko Metal Products. The court claimed that even if the statute of limitations precluded a claim, this did not bar his claim against LMP because he did start the claim and was duly diligent in trying to find who the real defendant should be. Even if there was more efficient ways to find out this information, the defendant did all he thought of and did pursue the fact.
Rule 15 (a) (1) allow parties to amend within 21 days Rule 15 (a) (2) allow the parties to petition to amend after that period.

Rule 15 (a) (3) states that the party that must respond to the amended pleading has at least 14 days or the time remaining from the original period, whichever is later.

If at trail issues outside the pleadings are brought up during trial the court may allow for discovery. Rule 15 (C) (1) allows the claim to relate back to the original pleading for statute of limitations. (like in Krupski)

Krupski v. Costa Corciere Plaintiff filed suit against the wrong company an affiliate of the appropriate one. The complaint was filed three weeks before the statute of limitation ran out. However, when she amended her complaint the statute of limitations had expired. The defendant moved for summary judgment which was denied. Then the parties allowed the other company to be removed. Once the parties have been changed, Costa Cruise moved to be dismiss itself from the suit, leaving the complainant defendantless. The defendant claimed it could switched parties and have the claim relate back under 15 (c) (1) c because it satisfies 15 (c) (1) (b) since it is the same claim. However the court held that the plaintiff did not made a mistake to sue the wrong party but a conscious decision to sue someone else. The 11th Circuit decided that even if there was a mistake the time to make the change was too much and the court could use its discretion no to allow the change of defendant. The Supreme Court grants certiorari and decides that the relevant knowledge is that of the defendant and not that of the plaintiff. Since Costa Corciere and Costa Cruise were related, had the same counsel, have such similar names and even appeared on the cruise ticket, therefore they should have been on notice of a potential claim against them. Also that the mistake is not necessary related to the existence of the company but also to their role in the Cruise business
Rule 11 (was amended because of confusion and on 93 it was made discretionary and then discovery was removed from sanctions. It also made safe harbor proceedings) Rule 11 (c) (2) through which the parties must be informed about the rule 11 sanction petition before filing to the court. Rule 11 (c) (4) limits the sanctions to that which will deter the repetition of the conduct or comparable conduct by other.

As a result to Rule 11 violations the attorney may have both economic and nonepecuniary sanctions. (Rule has a deterring purpose and does not apply to Discovery processes.) Rule 28 U.S.C. 1927 only applies to attorneys and there is no safe harbor provision.

11. Roth v. Green attorney improperly files a motion to stay to oppose a petition for summary judgment. During the criminal appeal the attorney also file a Section 1983 to

as many authorities as he could think off. The district court gave summary judgment and dismissed all the claims and stated a variety of reason. The district court using its jurisdiction also imposed sanctions under Rule 11. Although Colorado Local Rule 7.1 requirements were substantially met by sending letter to him requesting him to voluntarily dismiss the case, the appeal court decided that the Rule 11 safe harbor provisions were not followed by the other parties. The defendant (the attorney) claimed he was not served before the conclusion of the civil case. He also claimed he did not get them 21 days prior to filing the Rule 11 petition for sanctions. The court agreed with the defendants argument that he was not served on time (21 days before the filing of the motion and that he did not receive the benefit of the safe harbor provisions in Rule 11)

Discovery
Rule 26(a) a party must, without awaiting discovery request, provide the other party: (i) Names, addresses and phone numbers of people likely to have discoverable information and subjects of that information (ii) Documents that may be used to support claim or defense (iii) Computation of each category of damages (iv) Any insurance agreement under which an insurance company may be liable here Impeachment exception for (i) and (ii)

Rule 26(b)(1), Parties may obtain discovery regarding any non-privileged matter that is relevant to any partys claim or defense . . . Relevant information need not be admissible at the trial if the discovery appears to lead to the discovery of admissible evidence. Rule 26(b)(2)(B), A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden and cost. Exception if requesting party shows good cause. Rule 26(b)(3), Documents and tangible things ordinarily cannot be discovered if they are ones prepared in anticipation of litigation or for trial by or for another party or its representative (including as examples other partys lawyer, consultant or insurer). Discoverable when otherwise discoverable under 26(b)(1) and requesting party shows substantial need for the materials to prepare its case and cannot without undue hardship obtain their substantial equivalent by other means. Court must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of partys attorney or other representatives concerning litigation. Rule 26(b)(4) If report required, deposition after report provided. Drafts generally not discoverable. Generally, communications between attorney and expert not discoverable (compensation, information provided, assumptions provided, as exceptions). Generally, do not permit deposition of expert not testifying.

Rule 26(b)(5) If party claims privilege/work product against production of document, must expressly state this. if information produced that was privileged/work product, producing party notifies party who received it and party must destroy, etc. until court order otherwise

Rule 26 (b)(d) Rule 26 (b)(e) Rule 26 (b)(f) Rule 26 (b)(g)

Rule 35 Physical and Mental Examination of Persons. (a) Order for examination. In an action
in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

Rule 16 Pretrial Conferences; Scheduling; Managment 12. Schalgenhauf v. Holder Answering a counter-claim Contract Carriers claimed that Greyhounds driver (Schlangenhauf) was mentally and physically unfit for the driving of a bus. They requested a battery of tests including psychiatry, neurology, internal medicine and ophthalmology. (The bases for these claims are that the driver had been in a similar accident in the past, that he reported seeing some lights earlier and that another driver was able to see the truck, brake and avoided collision.) The D.C. ordered 9 tests and Shalgenhauf requested a writ of mandamus to correct this inappropriate court ruling.

The S.C. held that the good-cause and in-controversy requirements of Fed. R. Civ. P.
35

make it apparent that sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely because the person has been involved in an accident and a general charge of negligence is lodged. Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitations prescribed by the Rule.

Rule 26(c) Party or person from whom discovery is sought may move for protective order. Certification of conferring in good faith Court may order for good cause, among other things: forbidding disclosure, specifying terms of disclosure (time and place for example), prescribing another discovery method, limiting disclosure, designating who can be present, requiring

deposition sealed, requiring confidential information not be revealed, requiring simultaneous delivery of information Rule 37 Motion to compel disclosure or discovery. Notice to all parties and affected persons. Certification that conferred in good faith. If granted or denied, a court may order payment of reasonable expenses including atts fees. If order not complied with, various sanctions possible including that action can be dismissed

13. Seattle Times Company v. Rinehart defendant tried to get a protective order on information to be disclosed in Discovery. Rhinehart asserted right of free association and that freedom of religion would be trampled upon if they have to disclose the cults member list and their donations, requesting an order stopping the plaintiff form publishing this information or use it outside the trail. Plaintiff alleges that such an order would be contrary to the freedom of press and the first amendment. The Supreme Court decided that since the information of Discovery is not open to the public, information obtained during these procedures should not be used for other purposes unless it is also obtained elsewhere. Rule 26(b)(3) Documents and tangible things ordinarily cannot be discovered if they are ones prepared in anticipation of litigation or for trial by or for another party or its representative (including as examples other partys lawyer, consultant or insurer). Discoverable when otherwise discoverable under 26(b)(1) and requesting party shows substantial need for the materials to prepare its case and cannot without undue hardship obtain their substantial equivalent by other means. Court must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of partys attorney or other representatives concerning litigation
Rule 30 Generally can depose any person, including a party, without leave of court. Leave of court required if: parties have not stipulated AND deposition would result in more than 10 depositions being taken; deponent already deposed; or party wants to take deposition before parties have conferred, unless party certifies deponent expected to leave US or the deponent is in prison. Rule 33 Generally no more than 25 written interrogatories, including discrete subparts. Generally must answer within 30 days after being served. Objections to answering must be stated with specificity. Answer can be used to extent allowed by Federal Rules of Evidence. Can produce documents instead if burden of deriving answer substantially the same for either party Rule 34 Requests to produce and permit inspection, copying, etc. of documents, electronically stored material, any designated tangible thing, To permit entry onto designated land, etc. for inspection, etc. Generally answer within 30 days after being served. Kept or labeled as in usual course of business

14. Hickman v. Taylor District Court (sitting en banc) decided memoranda should be turned to the plaintiff, Circuit Court decided this information was the work of an attorney and thus protected under the rules of civil procedure. The Circuit Court held Discovery is liberal and broad but with limitations to it. Although this memoranda was not covered by the attorney-client privilege as there were not the attorneys clients who appeared before him it was the work product of the opposing party and thus protected from discovery if the sources where available to the other party. Memoranda made by an attorney while acting for his client in anticipation of litigation, and writings which reflect his mental impressions, conclusions, opinions or legal theories, are outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis. However A party is not entitled to discovery under the Federal Rules of Civil Procedure of written statements in the files of the attorney for the adverse party and of memoranda made by him in anticipation of litigation, without any showing of the necessity for the production of such material or any demonstration that denial of production would cause hardship or injustice, where for aught that appears the essence of what he seeks either has been revealed to him through interrogatories or is readily available to him direct from the witnesses for the asking. One seeking disclosure of written materials obtained or prepared by an adversary's counsel in anticipation of litigation must show adequate reasons justifying production through a subpoena or court order. Without a showing of necessity, the attorney for an adverse party should not be required to disclose to his opponent his mental impressions or memoranda as to oral statements made to him by witnesses equally available to the other party, and it is not enough that such party's counsel wants the statements to help prepare himself to examine witnesses and to make sure that he has overlooked nothing. Justice Jackson concurring stressed the adversarial nature of the system.

15. Upjohn Company v. United States company carried out an internal investigation and conducted questionnaire responses of employees (recording responses to interview questions to employees) -Attorney-Client privilege. They also have lawyer notes and memorandum of interviews beyond recording responses of the employees-Work product privilege. After the company concluded its investigation they informed the SEC about this. The IRS then sought to obtain this information.
The Supreme Court decided that petitioner's low- and mid-level employees' information was protected by the attorney-client privilege where it was necessary to defend against potential litigation, and the work-product doctrine applied to tax summonses. The court got rid of the control-group test (Emphasis on those high level officers and agents who make decisions in response to legal advice) to allow for a broader use of the attorneyclient privilege on the corporate setting. Justice Burgers concurring opinion agrees with

changing the test but claims the court did not give sufficient guidelines for what the standard is for the attorney-client privilege in this scenario.

UpJohn = 1. Written questionnaire responses of employees and lawyer notes recording responses to interview questions to employees (A/C privilege) 2. Lawyer notes and memorandum of interviews beyond recording responses of employees (Work product) 3. Upjohn rejects Controlgroup-test( Emphasis on those high level officers and agents who make decisions in response to legal advice) and expand attorney client privilege to protects communications which help lawyer give advice and protects communications of lower ranked employees who need to implement advice.

Judgment as a Matter of Law Rule 56 (a) The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Movant must identify each claim or defense on which the party seeks summary judgment or the part of each claim or defense on which the party seeks summary judgment. Rule 56 (b) Generally can be filed at any time until 30 days after close of all discovery. Rule 56 (c) When party asserts fact is not or is genuinely disputed, party must support: With cite to particular parts of materials in record or Show that materials cited do not establish presence or absence of genuine dispute or show adverse party does not have admissible evidence to support fact. (The modifications to Rule 56(c) now require the parties to support their motions by citing to the relevant material.) Rule 56 (d) Party can object that cited material cannot be presented in an admissible form. Court can consider more than cited materials. Affidavit or declaration used to support motion must be made on personal knowledge, set out facts admissible in evidence and show affiant or declarant is competent to testify on the matters Rule 56 (e) If party fails to support or address as required under Rule 56(c), court may: give party opportunity to do so; consider the fact undisputed; grant summary judgment; or issue any other appropriate order. Rule 56 (f) After notice and reasonable time to respond, court may: grant summary judgment for nonmovant; grant motion on grounds not raised by party; or consider motion on its own after finding facts that may not be genuinely in dispute. Rule 56 (g) Court may enter order that a fact is not genuinely disputed and treat the fact as established (where it does not grant all relief requested in motion) Rule 56 (h) If court determines affidavit or declaration submitted in bad faith or only for delay, reasonable expenses, including attorneys fees may be ordered. Contempt and other sanctions also are possible.

The prevailing wisdom for many decades was that summary judgment was the exception, not the rule, and courts were expected to be tougher on the movants than on the parties resisting it. A movant was required to point to actual evidence in the record showing an absence of a disputed issue of material fact. Summary Judgment at Sixty, 76 Tex. L. Rev. 1897 (1998).

The Summary Judgment Trilogy Matsushita Elec. Indus. Co. v. Zenith Radio Corp. = Claim is not plausible Anderson v. Liberty Lobby, Inc = a reasonable jury could [not] return a verdict for the nonmoving party Celotex Corp. v. Catrett = factually insufficient

16. Lundeen v. Cordner plaintiff moved for summary judgment. The defendant never interviewed the only persons in a position to be aware of a factual situation. This person appeared unbiased and his testimony was consistent with all the other evidence. The court also determined that if this issue went on to trail the plaintiff would be entitled to a directed verdict (now called judgment as a matter of law) thus Summary judgment should be granted. If the information presented entitles one to a directed verdict, a summary judgment is in order. The movant having made a sufficient showing, it then rests upon the plaintiff to specify at least some evidence which could be produced at trial. 17. Cross v. United States The .. held the United States was entitled to a trial where it could
cross-examine appellees regarding the nature of the expenses, particularly whether they were for vacation or educational purposes. Summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent, and subjective feelings and reactions. A judge may not, on a motion for summary judgment, draw fact inferences. Such inferences may be drawn only on a trial. Ordinarily the bare allegations of the pleadings, unsupported by specific evidentiary data, will not alone defeat a motion for summary judgment. The right to use depositions for discovery does not mean that they are to supplant the right to call and examine the adverse party before the jury. The importance of having the witness examined and cross-examined in presence of the court and jury cannot be overestimated.

18. CELOTEX Corporation v. Catrett, the company moved for summary judgment arguing the plaintiff never produced evidence evidencing the exposure of the decedent to asbestos. Evidence objected as hearsay (cant be brought up for summary judgment consideration). The Supreme Court (analyzing the previous language of the rule) stated the moving party does not have to bring evidence to support its motion when it does not have the burden of proof at trail. Celotex = moving party that does not have the burden of proof at trail does not need to provide any evidence (or even a memorandum) in support of their motion for summary

judgment. It is enough that they file the motion claiming the other party has not produced sufficient evidence to be able to win at trail. Celotex is the most important case on the trilogy. (Ignore the dissent) The party without the burden of proof at trail only has to move for summary judgment pointing that there is not sufficient evidence for the plaintiff to win at trail.

In Reeves v. Sanderson (2000) the court laid the way summary judgment (judgment as a matter of law) should be reviewed: It therefore follows that, in entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. In. doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.

19. Scott v. Harris the Supreme Court sets a standard for summary judgment in which he court allows summary judgment even in an issue in which the justices disagree on whether there is enough evidence to go to trial. Directed verdict (old term,) is the same as judgment as a matter of law during the trial. Judgment notwithstanding the verdict nov verdict- =judgment as a matter of law after trial. Rule 50 Judgment as a matter of law Rule 50 (a)(1) Judgment as a matter of law can be made after weighing the evidence and determining that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue. Rule 50 (a)(2) Judgment as a matter of law can be made any time before case submitted to the jury. (If you dont move before the trial you cant move for it after trial.) Rule 50 (C) When court grants a renewed motion for judgment as a matter of law, it must also rule on any motion for a new trial in case the judgment is vacated or reversed.

Rule 50 (E) If trial court denies the JMOL motion, as appellee the prevailing party can assert grounds for a new trial in the event the appellate court concludes the trial court erred in denying the motion. If trial court denies the JMOL motion, the appellate court reverses the judgment, it may order a new trial, directed the trial court to determine whether a new trial, direct the trial court to determine whether a new trial should be granted, or directed the entry of judgment.

Galloway v. United States husband has been insane since his return from the war in Europe. Court states thatMere speculation is not allowed to be evidence of insanity Neely v. Martin K. example of an appellate court ordering judgment. The rule was modified after Nelley to embody the ruling. Rule 50(e).
Luiss reading of the case: Apparently even though Neelley won the trail, won with the jury won in her opposition to having a judgment not-withstanding the verdict she should have moved for a new trial in the case Judgment nov was granted. Just in case the appellate court reversed her, cause then she wont have a chance to get a new trial if she didnt raise it during the trial.

Various other procedures and Interlocutory Appeal Rule 73Magistrate Judges; Trial by consent. Rule 53 Masters. Rule 68 Offer of Judgment. Rule 54 Judgment. Rule 59 New trial Rule 59(a)(1)(A) After a jury trial, a court can grant a new trial motion for any reason for which a new trial has heretofore been granted in an action at law in federal court. Rule 41 Dismissal of Actions Rule 55 Default judgment ..

Mohawk Industries, Inc. v. Carpenter (appeals) Sc interpreted statute 28 U.S.C. 1291 to deem collateral orders final. Thus, an order to
disclose privileged information intrudes on the confidentiality of attorney-client communications is not reviewable before judgment.

The court examines whether an order is appealable if it (1) conclusively determines the
disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment.

The court determined the decision satisfied only the first and second prongs. However the court determines this decision was effectively reviewable on appeal from a final judgment and thus should wait before the privileges issue can be appealed. The SC also decided that the standard for the collateral order is whether delaying
review until the entry of final judgment would imperil a substantial public interest or some particular value of a high order.

Rule 59 (a)(1)(A) After a jury trial, a court can grant a new trial motion for any reason which is appropriate.

Res Judicata and Preclusion Doctrine Claim preclusion=res judicata Issue preclusion=collateral estoppel

Mutuality of Estoppel

Claim preclusion: (1) Claim fairly considered part of same claim involved in first lawsuit Transactional test: a claim encompasses all rights to relief with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. (2) Party who invokes preclusion and party against whom preclusion is invoked must have been parties to the former action or in privity with (closely relatedfor example, successor in interest to property) a party to the former action. Parties also must have been adversaries. (In other words, case 1 and case 2 were asserted by the same claimant against the same defendant) (3) To have preclusive effect, it must have been a valid final judgment on the merits Claim preclusion scenarios: 1. State to State (Art IV & 28 U.S.C. 1738) 2. State court to Federal court (Art IV & 28 U.S.C.1738) 3. Federal court to State court (FRCP?) 4. Federal court to Federal court (FRCP?)

US Const. Art. IV 1 Full faith and credit shall be given in each state to the public acts, records, and
judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

28 U.S.C. 1738 (S)

The records and judicial proceedings of any court of any such State, Territory or Possession, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

Rule 8(c)(1) Affirmative defenses or avoidances (which must be affirmatively stated by the party) include estoppel and res judicata. Rule 41 (d) A dismissal under section (b) and any not under this rule operates as an adjudication on the merits. 20. Cromwell v. County of SAC, the issue of whether the judge gave value for the bond was not litigated therefore there was no claim preclusion. It failed the Transactional test: a claim encompasses all rights to relief with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. 21. Russell v. Place A previous ruling in a claim against the same patent was too uncertain to
be the basis of estoppel. If there be any uncertainty on this head in the record, the whole subject-matter of the action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.

22. Commissioner of Internal Revenue v. Sunnen In Sunnen, the court held that if the law has changed since the decision it no longer bars a claim. Since Tax law changes constantly, claims under the new law for the previous events are not precluded. Issue preclusion: (1) Generally same parties or in privity (EXCEPT in non-mutual collateral estoppel) (2) same issue in prior action as in present action (3) issue must have been litigated and determined in prior action (4) resolution of the issue must have been necessary to the judgment reached in the earlier case No Review of Underlying Judgment The doctrine of collateral estoppel is designed to save judicial time and resources and relieve the burden on litigants of having to litigate claims more than once. Thus, courts generally do not examine the reasoning of the court that decided the issue initially. Offensive and Defensive Non-mutual Collateral Estoppel Although previously an element, mutuality no longer is required for the application of issue preclusion. Thus, litigants not originally parties to litigation can seek to use issue preclusion or collateral estoppel both offensively (in the case of a plaintiff) or defensively (in the case of a

defendant). Offensive Non-mutual Collateral Estoppel exception: Offensive nonmutual collateral estoppel applies when a plaintiff seeks to preclude a defendant from relitigating an issue that the defendant previously litigated unsuccessfully in another action against another party. Also, when the doctrine of collateral estoppel was: expanded to include offensive collateral estoppel, its application was made discretionary with the trial court because it does not promote judicial economy in the same way as defensive nonmutual collateral estoppel and because it often will be unfair to defendants. Thus, the court asked to apply the principles of offensive collateral estoppel must exercise its informed discretion and make a fairness determination based on the facts of the particular case. Defensive Non-mutual Collateral Estoppel exception : Defensive nonmutual collateral estoppel occurs when a defendant seeks to bind a plaintiff to a prior judgment, where the defendant was not a party to the prior proceedings. A courts discretion to refuse to apply defensive nonmutual collateral estoppel is highly circumscribed. except in its offensive nonmutual incarnation, collateral estoppel is not a discretionary doctrine in the sense that the tribunal asked to apply it has a free-swinging, uncanalized discretion to defensive nonmutual collateral estoppel is mandatory. 23. Parklane Hosiery Company, Inc v. Shore . held that (1) the scope of collateral estoppel is
no longer limited by the doctrine of mutuality of parties (2) the general rule in the federal courts with regard to the offensive use of collateral estoppel--whereby a plaintiff seeks to estop a defendant from relitigating issues which the defendant has previously litigated and lost in an action with another party--should be that a trial judge should not allow the use of offensive collateral estoppel where the plaintiff could easily have joined in the earlier action, or where the application of offensive estoppel would be unfair to the defendant; (3) in the case at bar, the defendants were precluded, under the plaintiff's offensive use of the collateral estoppel doctrine, from relitigating the issue of the material falsity and misleading nature of the proxy statement, since the plaintiff probably could not have joined in the Commission's action even if he had so desired, and since there was no unfairness to the defendants in applying offensive collateral estoppel, because (a) in light of the serious allegations made in the Commission's complaint against the defendants, as well as the foreseeability of subsequent private suits that typically follow a successful government judgment, the defendants had every incentive to litigate the Commission's lawsuit fully and vigorously, (b) the judgment in the Commission's action was not inconsistent with any previous decision, and (c) there would not be available to the defendants in the stockholder's action any procedural opportunities that were unavailable to them in the Commission's action and that would be of a kind that might be likely to cause a different result, the presence or absence of a jury as factfinder being basically neutral; and (4) the defendants' Seventh Amendment right to a jury trial was not violated by the plaintiff's offensive use of the collateral estoppel doctrine, since even though under the common law as it existed in 1791 collateral estoppel was permitted only where there was mutuality of parties, nevertheless the subsequent developments in the law of collateral estoppel, like the law in other procedural areas defining the scope of the jury's function, were not repugnant to the Seventh Amendment simply because they did not exist in 1791.

24. Durfee v. Duke the Court held that when the location of the land as in Nebraska or in
Missouri, was fully and fairly litigated and judicially determined by the Nebraska state courts, it could not be retried in another state in litigation between the same parties even if land was found to be on the other state. While a court in one state, when asked to give effect to the judgment of a court in another state, may constitutionally inquire into the foreign court's jurisdiction to render that judgment, the judgment is entitled to full faith and credit, even as to questions of jurisdiction over the person and jurisdiction over the subject matter, when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment. The federal court must recognize the Nebraska judgment as res judicata and binding on the federal court.

25. Semtek Intl Corp. v. Lockheed Martin Corp. The SC rules that the federal rules cannot set forth a rule on preclusion for the states and they only work for internal working of the Federal Courts. Since the issue is a state issue if the Federal rules decide preclusion this would violate the enabling act and would be going beyond the power of what the Federal Rules can do as it would be modifying a substantive right. Federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity Federal common law in Dupasseur indicate that it must be given effect as in state court. Dupasseur v. Rochereau The res judicata effect of a federal diversity judgment is such as would belong to judgments of state courts under similar circumstances.

Personal Jurisdiction Personal jurisdiction only comes up with respect to the defendant since plaintiff volunteers into the jurisdiction of the forum by filing his complaint in that court.

Personal jurisdiction: Over person = In personam (Now the In personam is determined through the serving process but the 14th amendment still maintains some of the pervious .) Over property+ In rem (the court determining about ownership of property over all the population) & Quasi-in-rem I (ownership of the property over the parties to the suit) and Qusi-in rem II (The court establishes jurisdiction based on the property even if the dispute has nothing to do with the land, but the claim must be limited to the value of the land-. Quasi-in-rem I (e.i. adverse possession claim for a piece of land in the jurisdiction even if defendant is not in the jurisdiction). Quasi-in-rem II (e.i. A brings suit against B for another reason other action- but attaches it to the land, and if he gets a judgment he can recover up to the full value of the land.) Personal Jurisdiction: General jurisdiction= When a state exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendants contacts with the forum. Specific jurisdiction= When a state exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendants contacts with the forum. Rule 3, Civil action commences by filing a complaint in court. Rule 4, Summons Rule 12(a) Time to serve a responding pleading International Shoe v. State of Washington the SC found that they had enough presence in the state as to be under the state courts jurisdiction and to be subject to the state tax. The court claimed that because there were minimum contacts such that traditional notions of fair play and substantial justice not offended Because of the volume, and the fact that the commercial activity is systematic and continuous. Justice Black (dissent) claims that the court had no need of setting all this loose standards which will spur litigation when trying to enforce it. The 7th amendment would have been enough. He was also afraid that it violates the 10th amendment by allowing some companies of getting out of some state taxes thus depriving some states out of their power to tax which is given to them by the 1o amendment basically creating an extra burden on the 10th amendment-. Shoe = minimum contacts such that traditional notions of fair play and substantial justice is not offended.

In Pennoyer v. Neff, the suit was brought under personal jurisdiction against Neff, who was not served in Oregon. His land was taken and sold to Pennoyer. Neff got his land back even though Oregon had in rem jurisdiction over his land the land was not attached during the trail. McGee v. International Life Insurance Company the court decided that parties outside the
service area could be summoned at their state of residence as TX jurisdiction was extended through a Californian Long Arm Statute. The SC allowed it under International Shoe. The SC decided not to look only at. But to consider if there are minimum contacts that do not offend the fair play standards.

Shaffer v. Heinter a shareholder suing, on behalf of the corporation, officers of the corporation accused of mismanaging. He brings the suit in Delaware were the company Greyhound- is incorporated although its principal place of business is elsewhere, as the events where the acts occurred and the residence of the persons. However under Delaware long-arm-statute Plaintiff gets the court to sequester property -stock- that although not in Delaware it is assumed to be in Delaware for matters of law. The suit was brought cuasi in rem, and the defendants notified through the news-paper.
In Shaffer the SC submitted in rem and cuasi in rem 1 to the minimum contact standard of International Shoe. (in rem and cuasi in rem 1 should be permitted because the state has an interest in providing a forum and to resolve the issue) but that cuasi in rem 2 is not as the property is not attached or related to the dispute.

Unlike Pennoyer where the court had in rem jurisdiction over the land (land in Oregon auctioned by the court), this is not the case here. Nonresident defendants' positions as
directors and officers of a corporation chartered in a particular state do not provide, in compliance with the due process clause, sufficient contacts, ties, or relations with that state to give its courts jurisdiction over those nonresident defendants in a stockholder's derivative action. (The stock (who it belonged to) was not at all related to the matter that

was being litigated.) The court indicated that minimum contacts will exist when there is land or property actually in the state. Cuasi in Rem 1 claims will usually suffice the minimum contacts vecause of the states interest and the owners ties to the state. However in this case Shaffer- the property is only being used to bring the defendant to the state. In Harris v. Balk, Harris owes Balk who owes Epstein. Epstein sues and recovers Balks debt- from Harris. When Balk sues Harris, the court determined that full faith most be given to the other jurisdiction ruling and that Md had jurisdiction (in rem) over Balks property the money that was owed by Harris to Balk- since Balks property was attached when Harris was served. OVERRULED

Pennoyer and Harris were overruled to the extent they are inconsistent with Intentional Shoe.

To comply with the due process clause, all assertions of state court jurisdiction, including in
rem and quasi in rem actions, must be evaluated according to the minimum contacts standards set forth in decisions regarding in personam actions; the presence in the state of property alone will not support the state's jurisdiction where the property is unrelated to the cause of action. Under the minimum contacts standard for determining state court jurisdiction in compliance with the due process clause, certain property--which consisted of stock and options which by state statute were considered to be located in the state--held by nonresident defendants in a shareholder's derivative action does not provide sufficient contacts to support jurisdiction of the state's courts where such property is not the subject matter of the litigation, nor is the underlying cause of action related to such property.

If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated "in personam", and a personal obligation can be imposed on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called "in rem" or "quasi in rem." in rem and quasi in rem -- effect : The effect of a judgment in rem or quasi in rem is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner. in rem and quasi in rem distinction: A judgment in rem affects the interests of all persons in designated property, whereas a judgment quasi in rem affects the interests of particular persons in designated property and refers to actions in which the plaintiff is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the non-existence of similar interests of particular persons and to actions in which the plaintiff seeks to apply what he concedes to be the property of the defendant to the satisfaction of a claim against him.

World Wide Volkswagen Corporation v. Woodson In World-Wide Volkswagen Corp. v. Woodson, the court brings up that 1. To protect the defendant from being hailed to distant forums and 2. To ensure that Stated dont over extend their jurisdictions into other states. The due process clause of the Fourteenth
Amendment does not contemplate that a state may make binding a judgment in personam

against an individual or corporate defendant with which the state has no contacts, ties, or relations, and the due process clause, acting as an instrument of interstate federalism, may sometimes act to divest a state of its power to render a valid judgment, even if a defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another state, even if the forum state has a strong interest in applying its law to the controversy, and even if the forum state is the most convenient location for litigation.

Volkswagen: Fairness The burden on the defendant is the primary concern Also look in the light of (A)The forume states interest in adjudicationg the dispute (McGee) B Plaintiffs interest in obtaining convenient and effective relief (Kulko) C The interestat judicial system;s interes in obtraining the most efficient resolution of controversies D rarely discussed- the shared interes of the severa States in furhterins fundamental substatntive social policies (Kulko) -Though proposed by a dissent in Shaffer the applicable law (Delaware law in Shaffer) should be part of the consideration by the court. (In Hansen, lady sets a trust in Delaware, moves to Florida and dies. The beneficiaries attempt to bring the trustee to Florida and the SC does not allow it because the trustee did not gain anything from Florida avail themselves of the privileges of doing business in Florida- and thus cannot be hailed to court there.) (InKulko the SC decided that a father who allowed kids to go to California did not avail himself of the benefits of California so wife cannot sue him there for child custody payments.)
Although foreseeability alone is not a sufficient benchmark for personal jurisdiction under the due process clause of the Fourteenth Amendment, foreseeability is not wholly irrelevant; the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum state, but rather, it is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there; the due process clause, by ensuring the orderly administration of the law, gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. For purposes of the due process clause of the Fourteenth Amendment, financial benefits accruing to a nonresident defendant from a collateral relation to the forum state will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that state.

Helicopteros Nacionales de Colombia, S.A. v. Hall

In Helicpoteros Nacionales de Colombia v. Hall, the court claimed that General jurisdiction can satisfy due process -when like in Perkins, there is a continuous and systematic, although temporal contact with the state. The court held that Mere
purchases, even if occurring at regular intervals, are not enough to warrant a state's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. The dissent claimed that since Rosenberg there has been a transformation of the economy which renders this case obsolete. A trip to a state by a nonresident corporation's chief executive officer for the purpose of negotiating a contract cannot be regarded as a contact of continuous and systematic nature and thus cannot support an assertion of in personam jurisdiction over the corporation by a court of that state. And Mere purchases, even if occurring at regular intervals, are not enough to warrant a state's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. (In Rosenberg, the court)

Burger King Corporation v. Rudzewicz In Burger King Corporation v. Rudzewicz, the court ..

In the dissent Stevens) claims that jurisdiction under the circumstances would offend the
fundamental fairness which is the touchstone of due process.

Asahi Metal Industry Co, LTD v. Superior Court of California In Asahi, the court decides that the steam of commerce analysis is not enough OConnor-purposeful ailment requires more than putting product in stream of commerce. Need additional conduct showing intent or purpose to serve market. Brennan-as long as placed in stream of commerce and aware final product in forum state, thats enough Instead the nine justices decided on fairness grounds. They agreed that for fairness reasons jurisdictions could not be exercised.
The substantial connection between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully

directed toward the forum state. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum state.

Two analysis need to be made 1. Fairness (copy the fairness analysis from the Volkswagen fairness slide) 2. Stream of commerce which itself has two standards or tests- due the 4-4-1 vote in Asahi. Currently in the stream analysis both the OConnor test (stream of commerce +) and the Brennan (stream of commerce) test must be applied as none has been effectively established.

In McGee the court decided that parties outside the service area could be summoned at their state of residence (TX) was jurisdiction was extended through a Californian Long Arm Statute. The SC allowed it under International Shoe. The SC decided not to look only at. But to consider if there are minimum contacts that do not offend the fair play standards. In Shaffer the SC submitted in rem and cuasi in rem 1 to the minimum contact standard of International Shoe. (in rem and cuasi in rem 1 should be permitted because the state has an interest in providing a forum and to resolve the issue) but that cuasi in rem 2 is not as the property is not attached or related to the dispute.

If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated "in personam", and a personal obligation can be imposed on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called "in rem" or "quasi in rem." in rem and quasi in rem -- effect : The effect of a judgment in rem or quasi in rem is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner. in rem and quasi in rem distinction: A judgment in rem affects the interests of all persons in designated property, whereas a judgment quasi in rem affects the interests of particular persons in designated property and refers to actions in which the plaintiff is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the non-existence of similar interests of particular persons and to actions in which the plaintiff seeks to apply what he concedes to be the property of the defendant to the satisfaction of a claim against him.

Nicastro Goodyear (C) In Goodyear, NJ long-arm-statute gave NJ jurisdiction over several Goodyear corporations including Goodyear turkey and other subsidiaries because an

accident in France. The NJ Court of Appeals determined that in general jurisdiction cases a heightened level of contacts with the state are required. The product entered the stream of commerce but it was another company that brought it to the state. Thomas does not believe the court will find General Jurisdiction in this case.

Carnival Cruise Lines, Inc. v. Schute This boilerplate clauses limiting jurisdiction are enforceable as long as they are reasonable. Pavlovich Neither defendant nor his company solicited in California. The Web site Defendant's knowledge that his conduct might harm certain industries centered in California, by itself, could not establish purposeful availment under the effects test.. Mere foreseeability is not sufficient for jurisdiction. Clader -a case mentioned in Pavlovich- the court found that intentionally causing an effect in the state

Mullane v. Central Hanover Bank & Trust Co., NY law which permitted trusts to pool into a larger account. The trust-manager petitioned for a settlement of its first account as a
common trustee. Upon the filing of the petition, appellant was appointed the special guardian. The only notice given to the beneficiaries was by a publication in a local newspaper that was in strict compliance with 100-c. Appellant objected, contending that the notice and statutory provisions for notice to beneficiaries were inadequate to afford due process. The notice statute was found unconstitutional. The Court held that the statute was required to afford reasonable time for those interested to make an appearance and that the notice requirement under the statute was inadequate because it did not provide for the means to contact those who could easily be informed by other means. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. When notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity

of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.

Notice reasonably calculated to under all circumstances Notice must be COPY LANGUAGE IN PAGE 714 ON WHAT NOTICE & OPPORTUNITY TO BE HEARD MEANS. In some circumstance publication is an acceptable method (when there is no knowledge of the name, addresses or the person is missing) when it is not possible or practicable manner to give a more effective notice. However, publication this method does not comply with the XIV amendment, when the names and addresses of these persons are known and when there is an expectation of being personally notified (they had been mailed all other news). AAn exception was found for Fuentes v. Shevin Petitioners challenged the constitutionality of laws authorizing the
summary seizure of goods or chattels in a person's possession under a writ of replevin. Petitioners alleged that the statutory procedures deprived them of their property without due process in violation of the XIV amendment. The statutes' prejudgment replevin provisions deprived petitioners of their property without due process insofar as they denied the right to prior notice and hearing before property was taken. The Court noted that states had the power to seize goods prior to a final judgment in order to protect creditor's security interests, but only after the creditor tested their claim to the goods through the process of a fair prior hearing. The petitioners basic procedural rights due to general terms of default printed in small type on the back of the conditional sales contracts and unaccompanied by explanation or clarification. The central meaning of procedural due process is clear, as parties whose rights are to be affected are entitled to be heard, and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.

The right to a prior hearing has long been recognized by the court under the Fifth and Fourteenth Amendments.

Fuentes = Notice and opportunity to be heard at a meaningful time and in a meaningful manner

US Constitution article III

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

State courts are courts of general jurisdiction. Federal Courts are courts of limited subject matter jurisdiction. Unlike personal jurisdiction, subject matter jurisdiction is not.
The United States Constitution provides that the judicial power of the federal courts shall extend to controversies between citizens of different states. U.S. Const. art. III, 2. This language, however, does not automatically confer diversity jurisdiction upon the federal courts. Rather, it authorizes Congress to do so and, in doing so, to determine the scope of the federal courts' jurisdiction within constitutional limits. In 28 U.S.C.A. 1332, congress regulated diversity jurisdiction.

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.

(c) For the purposes of this section and section 1441 of this title-(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a partydefendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

For the 75,000 the parties can aggregate as many claims as they have EXAMPLES IN THE SLIEDES

NOTES ON DOMICILE

You look at the domicile at the time the case is filed not at the time the claim arose

Strawbridge v. Curtiss Complete diversity is required (each defendant must be different from each plaintiff) (e.i. Cal. OK & Tex v. Cal. Neb diversity jurisdiction)- class actions are treated differently. Citizen of a state?

The Hertz Corporation v. Friend, The SC held that the "Principal place of business" (PPB)
under 1332(c)(1) referred to where a corporation's officers directed, controlled, and coordinated the corporation's activities, a "nerve center." It would normally be a corporation's headquarters--provided it was not simply an office for board meetings. The "nerve center" was a single place (not a state).

Aggregation Rules for Amount in Controversy Requirement Once plaintiff, one defendant = they can aggregate as many claims to meet amount in controversy. Multiple parties on either side, then generally cannot aggregate, except if claims are joint or undivided.

28 U.S.C. 1332(c)(1) A corporation where it has its principal place of business

a corporation shall be deemed to be a citizen of any State by which it has been

incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a partydefendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business

28 U.S.C. 1331 The jurisdiction courts shall have original jurisdiction of all actions arising under the Constitution, laws, or treaties of the United States.

Louisville & Nashville Railroad Co. v. Mottley A married couple, obtained an injunction in the
Circuit Court of the United States for the Western District of Kentucky to compel appellant railroad company to issue travel passes to appellees according to a contract. In Appeal defendant raised as a defense that the federal court had no jurisdiction.. The plaintiff argued that because defendant might use a federal law as a defense this case was under 1331. The court did not agree and declared the court to be lacking jurisdiction. A suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States.

The well pleaded complaint rule: Courts look only to plaintiffs complaint and not to defendants counterclaims or defenses to determine whether there is federal question jurisdiction under 1331. (Holmes, jurisdiction-creation rule (which law creates the cause of action) has been abandoned)

Grable & Sons Metal Products, Inc. v. Darue Engineering, Petitioner, former owner, sued
respondent quitclaim deed holder, alleging that the record title was invalid because the Internal Revenue Service failed to notify it of a seizure as required by 26 U.S.C.S. 6335(a). The Supreme Court analyzed whether a federal cause of action was always required to exercise federal-question jurisdiction.

To determine whether federal-question jurisdiction existed over federal issues embedded in state-law claims between non-diverse parties, the question was 1. whether the state-law claim necessarily raised a stated federal issue, 2, actually disputed and substantial, 3, which a federal forum could entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. This case warranted federal jurisdiction because the owner's claim was premised on the Internal Revenue Service's failure to give adequate notice as defined by federal law. Thus, whether notice was given within the meaning of 26 U.S.C.S. 6335(a) was an essential element of the quiet title claim and the meaning of the federal statute was actually in dispute. The statute's meaning belonged in federal court given the government's strong interest in tax collection. Moreover, existing judicial precedent, when read in its entirety, treated the absence of a federal private right of action as evidence relevant to, but not dispositive of, the sensitive judgments about congressional intent that28 U.S.C.S. 1331 required.

In Merrell Dow Pharmaceuticals Inc. v. Thompson, the SC stated that the fact that the state claim was based on the violation to a federal regulation (labeling regulation) is not sufficient to bring the state cause of action into the federal court. However, in Grable, the court explained that this does not mean that without a federal cause of action there is no access to federal court, but that the federal interest must be weighted, together with the federal balance.

In Smith OVERRULED, the court established the jurisdiction of the district court depends upon whether the cause of action set forth arises under the Constitution or laws of the United States.

28 U.S.C. 1367 (STUDY THE STATUTEEEEEEE)

Notes on supplemental jurisdiction When the Federal court has jurisdiction on an action rising out of federal law other claims between the same parties can be brought even if they arise out of state law.

United Mine Workers v. Gibbs = State claim derived form a common nucleus of operative fact. Gives Federal courts jurisdiction to all claims. (Federal Court has discretion)

In Finley, in a 5-4 decision, the Supreme Court shockingly did not allow supplemental jurisdiction to be extended on a case where Gibbs seemed applicable. To have the law reflect the holding in Gibbs (Federal courts discretion) while keeping the complete-diversity rule Congress passed 28 U.S.C.S. 1367, in 1990. However, the language of the statute is not
clear and it had to be interpreted by the Supreme Court in Allapattah.

Exxon Mobil Corp. v. Allapattah Servs., The circuits were split as to whether a federal court in a

diversity action could exercise supplemental jurisdiction over additional plaintiffs whose claims (Individually) did not satisfy the minimum amount in controversy. Yes, the importance of the $75,000 is the importance of the issue and this remains when several claims are brought together. Allapattah also requires complete diversity jurisdiction for parties joined under supplemental jurisdiction. (Apparently the claims are contaminated after bringing it without complete diversity and cannot just drop the non-diverse party.)

Under 28 U.S.C.S. 1367, which was enacted in 1990, (1) the first of two sentences in 28 U.S.C.S. 1367(a) provided that with certain exceptions (including the exceptions in 28 U.S.C.S. 1367(b)), in any civil action of which the Federal District Courts had original jurisdiction, the District Courts would have supplemental jurisdiction over all other claims that were so related to claims in the action within such original jurisdiction that they formed part of the same case or controversy under Article III of the Federal Constitution; (2) the last sentence of 1367(a) provided that such supplemental jurisdiction would include claims that involved the joinder or intervention of additional parties; and (3) 1367(b) provided that in any civil action of which the District Courts had original jurisdiction founded solely on 28 U.S.C.S. 1332 (concerning diversity of citizenship), the District Courts would not have supplemental jurisdiction over claims by parties or persons under some specific rules of the Federal Rules of Civil Procedure. Two cases involved the effect of 1367 on 1332's requirement of a minimum amount in controversy, which was sometimes called the jurisdictional amount. Prior to 1367's enactment, the United States Supreme Court had generally held that the jurisdictional amount had to be satisfied for each plaintiff in a federal-court civil action. On certiorari, the Supreme Court--having consolidated the two cases--(1) affirmed the judgment of the Court of Appeals for the Eleventh Circuit; (2) reversed the judgment of the Court of Appeals for the First Circuit; and (3) remanded the latter case for further proceedings. In an opinion by Kennedy, J., joined by Rehnquist, Ch. J., and Scalia, Souter, and Thomas, JJ., it was held that: (1) In a diversity action where the other elements of jurisdiction were present--and where at least one named plaintiff satisfied 1332's amount-incontroversy requirement-- 1367 authorized a District Court to exercise supplemental jurisdiction over the claims of other plaintiffs in the same Article III case or controversy (subject to certain enumerated exceptions not at issue in the two consolidated cases at hand), even if those other plaintiffs' claims were for less than the jurisdictional amount specified in 1332. (2) In such a situation, (a) 1367 was not ambiguous, and (b) the contrary view of supplemental jurisdiction would be inconsistent with 1367's text, when read in light of other statutory provisions and the Supreme Court's established jurisprudence.

Allapattah also requires complete diversity jurisdiction for parties joined under supplemental jurisdiction. (Apparently the claims are contaminated after bringing it without complete diversity and cannot just drop the non-diverse party.) Dissent 1: Stevens, J., joined by Breyer, J., dissenting, expressed the view that 1367's legislative history provided powerful confirmation of the persuasive account, in the opinion of Ginsburg, J. (below), of 1367's text and jurisprudential backdrop, so as to show that the Supreme Court's interpretation of 1367 was mistaken.

Dissent 2: Ginsburg, J., joined by Stevens, O'Connor, and Breyer, JJ., dissenting, expressed
the view that (1) while the Supreme Court adopted a plausibly broad reading of 1367, there was a narrower construction that (a) was suggested by 1367's text, (b) would be the better reading of 1367, and (c) would be less disruptive of the Supreme Court's

jurisprudence regarding supplemental jurisdiction; and (2) under this narrower and better reading, (a) a District Court would first be required to have "original jurisdiction" over a "civil action" before supplemental jurisdiction could attach, and (b) supplemental jurisdiction would not open the way for the joinder of plaintiffs--or the inclusion of class members--who did not independently meet the amount-in-controversy requirement of 1332.

Get the Freer book for exercises in supplemental jurisdiction, and other sections of the course.

In Example 4 there is Diversity for both claims and even though P2 does not meet the 75,000 requirement because it is not made a party under the rule because the wording of the statute does not include defendants but bars plaintiffs. In Exampel 5 they can be brought to court because the Defendants are not barred by the statute.

28 1441. Actions removable generally

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. (d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown. (e)(1) Notwithstanding the provisions of subsection (b) of this section, a defendant in a civil action in a State court may remove the action to the district court of the United States for the district and division embracing the place where the action is pending if-(A) the action could have been brought in a United States district court under section 1369 of this title; or (B) the defendant is a party to an action which is or could have been brought, in whole or in part, under section 1369 in a United States district court and arises from the same accident as the action in State court, even if the action to be removed could not have been brought in a district court as an original matter. The removal of an action under this subsection shall be made in accordance with section 1446 of this title, except that a notice of removal may also be filed before trial of the action in State court within 30 days after the date on which the defendant first becomes a party to an action under section 1369 in a United States district court that arises from the same accident as the action in State court, or at a later time with leave of the district court. (2) Whenever an action is removed under this subsection and the district court to which it is removed or transferred under section 1407(j) has made a liability determination requiring further proceedings as to damages, the district court shall remand the action to the State court from which it had been removed for the determination of damages, unless the court finds that, for the convenience of parties and witnesses and in the interest of justice, the action should be retained for the determination of damages. (3) Any remand under paragraph (2) shall not be effective until 60 days after the district court has issued an order determining liability and has certified its intention to remand the removed action for the determination of damages. An appeal with respect to the liability determination of the district court may be taken during that 60-day period to the court of appeals with appellate

jurisdiction over the district court. In the event a party files such an appeal, the remand shall not be effective until the appeal has been finally disposed of. Once the remand has become effective, the liability determination shall not be subject to further review by appeal or otherwise. (4) Any decision under this subsection concerning remand for the determination of damages shall not be reviewable by appeal or otherwise. (5) An action removed under this subsection shall be deemed to be an action under section 1369 and an action in which jurisdiction is based on section 1369 of this title for purposes of this section and sections 1407, 1697, and 1785 of this title. (6) Nothing in this subsection shall restrict the authority of the district court to transfer or dismiss an action on the ground of inconvenient forum. (f) The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim. 28 U.S.C.A. 1441 (West)

Removal (not transfer) Illustration When cases could have been brought in federal court, the case can be removed into federal court. Removing a case is not a waiver of personal jurisdiction.

Difference Removed: State to federal Remanded: Federal to State

Subject matte jurisdiction cannot be waived but defects can be cured (x v. x)

12b6 (Failure to state a claim) Twombly standard

Carlsbad Technology, Inc. v. Hif Bi, Inc.= under 28 U.S.C. 1447 (c-d) gives the federal courts discretion in asserting federal jurisdiction and whier subject matter jurisdiction is not reviewable

under (c) supplemental jurisdiction does not come under the rule and thus the use of discretion in determining supplemental jurisdiction is reviewable in appeal.

Scalia (concurrence) the only reviewable cases in the statute are cases remanded to state court removed pursuant to 1443. HAVE GENERAL UNDERSTANDING OF REMOVAL

UNDERSTAND TRASFER OF VENUE (Must have all 3: Subject matter jurisdiction, personal jurisdiction and venue)

Where is venue proper? Parties can agree to litigate in a specific forum. When there is real property being disputed, it will determine the venue 1391 options: Where defendants resides, where claim arose or where defendant can be found.

Where can it be transferred to? What is forum-non-convenience

28 U.S.C. 1391 (a) A civil action wherein jurisdiction is founded only on diversity of
citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants 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 the subject of the action is situated, or (3) a judicial district in which any defendant 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.

28 U.S.C. 1391 (b) determines the appropriate district for plaintiff to bring the case.

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants 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 the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

When talking of venue refer to residence except with human beings when you must refer to their domicile.

Notes on guest speaker. 28 U.S.C. 1391 (c) CORPORATIONS

(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.

Citizenship is based on jurisdiction Residence is based on venue

Transfer of venue 1404(a) is used when plaintiff brought it on the right place.
28 U.S.C. 1404 (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

Transfer of venue 1406 when it was brought in the wrong place.

28 U.S.C. 1406 (a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.

Judicial doctrine of forum non convenience. When a clearly more appropriate forum is available the court can dismiss the claim even if there is personal jurisdiction and an appropriate venue. (The court may request that defendants allow the claim to come forward in the other forum)

Hoffman v. Blaski " in 1404(a) could not be interpreted to mean "where the case could be
brought after the suit was initiated and with defendants' consent." The district courts' power to transfer a case under 1404(a) did not depend on whether the third parties consented to the transferee district or waived venue and personal jurisdiction defenses, but rather it depended on respondents' ability to initiate the suits in the transferee districts. If when a suit is commenced, plaintiff has a right to sue in that district, independently of the wishes of defendant, it is a district "where the action might have been brought" under 28 U.S.C.S. 1404(a). If he does not have that right, independently of the wishes of defendant, it is not a district "where the action might have been brought," and it is immaterial that the defendant subsequently makes himself subject, by consent, waiver of venue and personal jurisdiction defenses, or otherwise, to the jurisdiction of some other forum.

Forum non convenience (judicial) doctrine: When trial in the chosen forum would
establish oppressiveness and vexation to a defendant out of all proportion to plaintiff's convenience, or when the chosen forum is inappropriate because of considerations affecting the court's own administrative and legal problems, the court may, in the exercise of its sound discretion, dismiss the case.

FNC was used in the context of transfer, not in this class. Remember long arm statutes are about personal jurisdiction not subject matter jurisdiction.

Piper Aircraft Company v. Reyno The SC decided the possibility of an unfavorable change
in the law in Scotland should not, by itself, bar dismissal. There usually is a strong presumption, the court explained, in favor of a plaintiff's choice of forum. However, that presumption applied with less force when a plaintiff or real party in interest was foreign. It was more convenient for a plaintiff to choose its home forum.

Under 28 U.S.C.1441(a) this is transferred from the state court to the Central District of California that encompass that state court.

Forum non convenience = Gilbert analysis that weight private and public interests Gulf Oil v. Gilbert and Piper factors:

Strong presumption of P choice (but not so much if foreign plaintiff) Alternative forum available Private Factors: Relative ease of access to sources of proof: availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing, witnesses: possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of case easy, expeditious and inexpensive.

Public Factors: Administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law, the avoidance of unnecessary problems in conflicts of laws, or in the application of foreign law, and the unfairness of burdening citizens in an unrelated forum with jury duty.

NOTES ON JOINDER OF CLAIMS Rule 13 (a) Compulsory Counterclaim Compulsory claim arises out of the transactions or occurrence that is the subject matter of the opposing partys claim; and does not require adding another party over whom the court cannot acquire jurisdiction Permissive any claim that is not compulsory When a counter claim is pervasive is need to be brought under supplemental jurisdiction (28 U.S.C. 1367)

Crossclaim against a Coparty [Rule 13 (g)] claim arises out of the transaction or occurrence that is subject matter of the original action or of a counterclaim, or if the claim relates to property that is the subject matter of the original action

Rule 14(a) Defendant as a third-party plaintiff serves summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. Rule 14(b) When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

Jones v. Ford Motor Credit Co. In this case, a class-action was brought against Ford for giving worst financing conditions to African Americans. Ford counterclaim with collections for every unpaid credit. The District court did not allow it. The appellate court found the financing company's counterclaims were permissive. It also
found that the trial court's discretion about whether to exercise supplemental jurisdiction over the permissive counterclaims should not be determined until the trial court ruled on the car buyers' motion for class certification. The court analyzed this under 28 U.S.C. 1367 (c) and found that under (2 and 4) that the courts discretion

Rule 13 Rule 14 In LASA v. Alexander, purpose of rule 13 was to avoid multiple suits, here the court held that
the pleadings showed a logical relationship between the cross-claims and the transaction or occurrence (who screwed up the city building) that was the subject matter of the complaint and the two pending counterclaims. The contracts all related to the same project and to problems that arose from the marble used in the building. The question presented by the various pleadings was who was responsible for the marble problems. The court held that the same or closely related factual and legal issues were involved and some of the same evidence was required for the resolution of all the claims. The court held the lower court had the option to order separate trials on one or more of the counterclaims, cross-claims or issues pursuant to Fed. R. Civ. P. 42(b), if the issues got confusing-which it certainly was.

Joinder of claims

First circle: Indispensible Parties. Second circle: Necessary Parties (required) )(19(a)). Third Parties: (may be joined) (20(a))

Rule 19 (a) POST THE SLIDE HERE. Rule 20 () Rule 12 (b)(7)

In The Bank of California v. The Superior Court of SF, The estate executor and residuary legatee, defendants in a contract action over estate property, filed a motion requesting that respondent trial court order other specified defendants brought in as necessary and indispensable parties. The court determined the action was against petitioners personally, not the estate, and a judgment would not affect other defendants' rights. Each distributee, including petitioners, was individually a constructive trustee solely of the property that came to it, and no distributee had an interest in the outcome of the contract action against another distributee. That the prosecution of the action against less than all of the distributees might cause inconvenience and multiplicity of actions to the detriment of petitioner executor was a matter within respondent's discretion and did not go to its jurisdiction. While necessary parties are so interested in the controversy that they are normally made parties in order to enable the court to do complete justice, yet if their interests are separable from the rest and particularly where their presence in the suit cannot be obtained, they are not indispensable parties. The latter are those without whom the court cannot proceed. What about issue preclusion? Issue preclusion is not operative What parties are indispensable? There may be some persons whose interests, rights, or duties will inevitably be affected by any decree which can be rendered in the action. Typical are the situations where a number of persons have undetermined interests in the same property, or in a particular trust fund, and one of them seeks, in an action, to recover the whole, to fix his share, or to recover a portion claimed by him. The other persons with similar interests are indispensable parties. The reason is that a judgment in favor of one claimant for part of the property or fund would necessarily determine the amount or extent which remains available to the others. Hence, any judgment in the action would inevitably affect their rights. Thus, in an action by one creditor against assignees for the benefit of creditors, seeking an accounting and payment of his share of the assets, the other creditors are indispensable.

Where the plaintiff seeks some type of affirmative relief which, if granted, would injure or
affect the interests of a third person not joined, that third person is an indispensable party.

28 U.S.C. 1367 (a) 28 U.S.C 1367 (c)

Just cause defendant wont get full relief that does not make the party indispensable. That a party might benefit from attending is not the same as having the

Factors in Providence Bank Regarding whether party is indispensable

The Supreme Court vacated the judgment party because he would have prevented diversity jurisdiction, and remanded the case for consideration of the issues raised on appeal. Although the insured was an indispensable party, the estates' interest in an adequate remedy would have been harmed by allowing only a state court action after fully litigating the judgment. The insured was not harmed by the judgment for the estates because he was not bound by it, and it was unlikely that the judgment against the insurer would have prevented him from relitigating his interests. Relief could be shaped to meet the criteria of Fed. R. Civ. P. 19, so that the action could proceed. The lower court had to next consider issues raised on appeal that had not been raised at trial.

judgment is not res judicata as to, or legally enforceable against, a nonparty. This does not
mean (a) that a court may never issue a judgment that, in practice, affects a nonparty or (b) that (to the contrary) a court may always proceed without considering the potential effect on nonparties simply because they are not "bound" in the technical sense. Instead, as Fed. R. Civ. P. 19 (a) expresses it, the court must consider the extent to which the judgment may as a practical matter impair or impede his ability to protect his interest in the subject matter. When necessary, however, a court of appeals should, on its own initiative, take steps to protect the absent party, who had no opportunity to plead and prove his interest below.

Whether a person is "indispensable," that is, whether a particular lawsuit must be

dismissed in the absence of that person, can only be determined in the context of particular litigation. A decision to proceed is a decision that the absent person is merely "necessary" while a decision to dismiss is a decision that he is "indispensable." The decision whether to dismiss must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests.

Grutter v. Bollinger (6th Circuit) If a party is necessary they have the right to intervention.
Fed. R. Civ. P. 24 provides in pertinent part that upon timely application anyone shall be permitted to intervene in an action when the applicant claims an interest relating to the property or transaction which is the subject of the action, and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Proposed intervenors must establish four elements in order to be entitled to intervene as a matter of right: (1) that the motion to intervene was timely; (2) that they have a substantial legal interest in the subject matter of the case; (3) that their ability to protect that interest may be impaired in the absence of intervention, and (4) that the parties already before the court may not adequately represent their interest. A district court's denial of intervention as of right is reviewed de novo, except for the timeliness element, which is reviewed for an abuse of discretion. Timeliness is reviewed for abuse of discretion while the rest is revised the novo. Proposed intervenors must show that they have a substantial interest in the subject matter of the litigation. However, the court subscribes to a rather expansive notion of the interest sufficient to invoke intervention of right. For example, an intervenor need not have the same standing necessary to initiate a lawsuit. The court also cites with approval decisions of other courts rejecting the notion that Fed. R. Civ. P. 24(a)(2) requires a specific legal or equitable interest. The inquiry into the substantiality of the claimed interest is necessarily fact-specific

The proposed intervenors' burden in showing inadequacy is "minimal." The proposed intervenors need show only that there is a potential for inadequate representation.

The proposed intervenors' burden in showing inadequacy is "minimal." The proposed intervenors need show only that there is a potential for inadequate representation.

Vertical Choice of Law (Erie) or when u have a case brought to Federal Court on Diversity what law applies. State or Federal common law?
28 U.S.C.1652 The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

Swift in diversity the state law as interpreted by the state court does not apply. When there is no state statute and no state common law of local concern (land?) then the Federal laws can decide what the federal law is. In Black and White Taxi Cab, Swift there were two different possible results in state and federal court. One party was gamming the system by incorporating in another state. Through Swift an injunction was entered against Black and White.

Erie CO. v. Tompkins, the company claimed it owned no obligation to trespasser who got injured because Penn common law bars it. However, Tompkins claims there is no statute so the Federal common law applies and not the state common law. See Swift The federal court decided whether to look at the federal court in this diversity case. the court
disapproved the contrary doctrine of Swift v. Tyson, 16 Pet. 1 (1842), finding it an unconstitutional assumption of powers by feral courts that invaded state autonomy and prevented uniformity in administering state law. The court also held that 34 of the Federal Judiciary Act of 1789, 28 U.S.C.S. 725, was not declarative of the Swift doctrine. Except in matters governed by the U.S. Constitution or by acts of Congress, the law to be applied in any case is the law of the state. Whether the law of the state shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state, whether they be local in their nature or general, be they commercial law or a part of the law of torts.

Rule 23 know section a requirements and that one of the section b requirements needs to be satisfied.

23 (a) Numerosity 21 40 (geographic dispersion helps, as well as small claims that would not be individually brought) Commonality Typicality Adequacy

Plus one of the requirements of 23 (b)

23 (f) there can be immediate appellate review of certification or denial of the class action. Under 23 There is Discovery before certification.

Not in the FINAL from here on.

Byrd v. Blue Ridge Co. diversity suit in which recovery for negligently caused personal injury
is sought and in which the defendant claims that, under an applicable state workmen's compensation statute, he is accorded immunity from liability for negligence and is liable only for workmen's compensation, The Byrd balancing Test: The federal court is not bound, under the Erie Railroad doctrine, by state court decisions to the effect that factual issues raised by such a defense are for determination by the court and not the jury where (1) the state court decisions indicate that the rule announced therein is merely a requirement regarding the form and mode of enforcing the immunity from negligence liability, and is not an integral part of the special relationship created by the statute; (2) the application of the state rule, although insuring uniformity of results in state and federal cases, would disrupt the federal system of

allocating functions between judge and jury; and (3) the facts involved in the litigation do not give rise to the certainty that its outcome will be substantially affected by whether the issue of immunity is decided by a judge or a jury. Byrd might be dead, the court hasnt used it at least as it was expected. Under the Erie Railroad doctrine, federal courts should conform as near as may be--in the absence of other considerations--to state rules of form and mode where the state rules may bear substantially on the question whether the litigation would come out one way in the federal court and another way in the state court if the federal court failed to apply a particular local rule. In a diversity suit, when a question, though denominated "procedural" is nevertheless so "substantive" as materially to affect the result of a trial, federal courts, in enforcing statecreated rights, are not free to disregard it on the ground that it is "procedural," and thereby allow, upon mere nomenclature, a different result in a state court from that allowable in a federal court though both are, in effect, courts of the state and sitting side by side. [From separate opinion by Whittaker, J. Hanna v. Plumber= if you have some federal directive that is on point and it is valid under 2072 it applies, otherwise look at the twin aims of Eire are (1) to avoid forum shopping and (2) to avoid inequitable administration of the law. Also look at whether if it is outcome determinative to find id Federal or State law applies. In Hanna v. Plumber a Mass. Case was brought to Fed court under Diversity and there is a difference between the rules of service. The difference was outcome determinative as service was related to the statute of limitation. Nonetheless, Fed Rules apply. (what about the Byrd Balancing Standard)

Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., Medical provider brought putative class action against automobile insurer, alleging breach of contract, bad faith breach of contract, and violation of New York law in failing to pay statutory interest penalties on overdue payments of insurance benefits owed under no-fault automobile insurance policies. The Supreme Court, (Scalia) held that: (1) New York law prohibiting class actions in suits seeking penalties or statutory minimum damages conflicted with Federal Rule of Civil Procedure governing class actions, and (2) Rule 23 is valid under the Rules Enabling Act.