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Subject Matter Jurisdiction? Fed Question 28 U.S.C §1331

United States Constitution, Article III: Federal Courts Are Courts of Limited

Federal Question Basics: 28 U.S.C. §1331

Does the claim arise under the constitution, treaties, or laws of the U.S.? (must be a federal question)

Justice Holmes: Is the complaint well plead? E.g., does NOT plead possible defenses as basis for FQ but pleads the federal question?

o The Federal question must be on the face of the complaint. (Louisville v. Motley (railroad lifetime passes)defense using a federal claim, this anticipatory claim is not enough to be arising under)

Remember, NO $ Amount limit: Can have SMJ over a $1 dispute. Federal Jurisdiction may be exclusive (§1338) to federal court (e.g., patent or copyright claims); or Federal Jurisdiction may be concurrent with state court jurisdiction (e.g., civil rights or federal

Federal Question Flow Chart

There is FQJThere is NO FQJ.

Does the π’s well pleaded complaint allege a state law cause of action in which federal law is an essential element?

Does the federal law that is an element authorize a private right of action? If congress has determined that there is no PROA it is not

arising under (Merrell Dow)

Yes NoDoes the π’s well pleaded complaint allege an express(§1338) or implied federal cause of action?

Yes

No

Yes

Don’t rely too much on this. I derived this rule from Smith v. Kansas City Title and Merrell Dow v. Thompson. The

COA are still split and the SC has not ruled. So, in some circuits this would work but don’t treat it as a hard and fast

rule.

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DIVERSITY OF CITIZENSHIP BASICS

1) COMPLETENESS: Diversity must be complete. All parties π’s must be different from all parties ’s. (Strawbridge v. Curtiss)

2) DATE: Diversity is calculated as of the date the action was instituted.

3) CITIZENSHIP (Domicile)

a) PERSONS: Where you were born and continues through your life Mass v Perry, unless: i) You physically change your state; andii) You have the intention of remaining in the new state for the indefinite future.iii) If person has multiple homes in different states, look of that person’s center of gravity to determine citizenship by

looking at key facts such as:(1) Where does the person live?(2) Where is the family?(3) Where does the person pay taxes?(4) Where does that person work?(5) Where are the cars licensed?(6) Where does the person vote?

b) CORPORATIONS:: Every corporation has two domiciles If multiparty legislation [§1332(c)(1)]: i) state of incorporation; and ii) its principle place of business (usually where the corporate headquarters is located). Two tests for principle place of

business:(1) Nerve Center Test – place where corporate decisions are made; or(2) Muscle (Plurality) Test - Place where the corporation does most of its manufacturing or service providing.

c) UNINCORPORATED Associations (e.g., labor unions, partnerships): Cumulate domiciliary state of each member. So, a national labor union like the could potentially never pass the federal diversity test if sued by a US citizen in Federal Court because it has members in all 50 states.

d) PARTIES IN REPRESENTATIVE ACTIONS (e.g., representative of a child, probate, or derivative actions or class action suits: i) Classical Rule for Derivative Actions & Class Actions: diversity is based on the citizenship of the representative.ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party.

4) AMOUNT IN CONTROVERSY: must be over $75,000, exclusive of interest and costs but inclusive of punitive damages.

Subject Matter Jurisdiction? Diversity 28 U.S.C. §1332

Merrell Dow-A complaint alleging a violation of a federal statute in a state cause of action, when congress has determined that there should be no private, federal, cause of action for the violation does not state a claim “arising under” the Constitution or Laws of the United States.

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SUPPLEMENTAL JURISDICTION BASICS- U.S.C. § 1367(pg 576)

1) Pendant & Ancillary Jurisdiction: United Mine Workers v. Gibbs – state tort claim added to federal employment question. Supreme Court ruled that federal court could assume jurisdiction over state claim because they all emanated from the same set of facts. This ruling, called the pendant doctrine, expanded the definition of case and controversy under Article III.a) Ancillary claims doctrine allowed π’s to bring a case and allowed ’s to assert otherwise jurisdictionally

insufficient compulsory counter-claims, cross-claims, and 3rd party claims in the Federal Court.

2) §1367: After some restriction to this Owen Equipment v. Kroger (ancillary jurisdiction does not circumvent diversity requirements between parties), Congress codified Gibbs in §1367.a) §1367(a): Court may hear all matters originating from a common nucleus of operative facts are now

considered part of the same case or controversy for Article III purposes.b) §1367(b): Codifies Kroger limits reach of jurisdiction only in diversity only cases — exercise of

jurisdiction must be consistent w/§1332 (diversity statute)i) No supplemental jurisdiction; must have independent jurisdiction for claims by against persons

made parties by: (1)Rule 14 (Impleader) Owen Equipment v. Kroger(2)Rule 19 (Compulsory Joinder of Parties)(3)Rule 20 (Permissive Joinder of Parties)(4)Rule 24 (Intervention)

c) §1367(c) — gives Ct discretion to hear cases (like Gibbs — but not clear whether list is illustrative or exhaustive)i) Says that the Ct may decline to exercise j if:

(1)Claim raises a novel or complex issue of state law(2)The claim substantially predominates over the claim(s) over which the dc has original jurisdiction(3)The Court has dismissed all claims over which it has original jurisdiction(4)In exceptional circumstances – other reasons

d) §1367(d) — Statute of Limitations will be tolled so long as federal court is hearing the claim, then + 30 days to file state claim (unless State allows longer)

Remember, §1367(b) applies ONLY if diversity is the sole basis for being

in federal court.

Subject Matter Jurisdiction? Supplemental Jurisdiction 28 U.S.C §1367

SUPPLEMENTAL JURISDICTION JUDICIAL INTERPRETATION AND CODIFIED IN 28 U.S.C. §1367

Proper diversity claimB

State claim (does not meet diversity) 3P

Extending jurisdiction over the state claim AB would be inconsistent with diversity because A

could not have sued B and the 3P together originally in federal court. A 3P involved in a

inconsistent with 1332 is ok because the original defendant is in court against his will.(Owen

A FRCP

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20(π), 23

Supplemental Jurisdiction Flowchart FOCUS ON THE CLAIM18 U.S.C. §1367

In any action in which the Federal Court has original jurisdiction it also has supplemental jurisdiction over any other claims in the action that may form part of the same case or controversy. This includes claims involving the joinder or intervention of additional parties. Supplemental Jurisdiction is limited by §1367(b) in Diversity.

Yes

Does the case rise from the same transaction or

NoNo SMJ

This is a basic requirement of

§1367(a).

Is the claim Fed Quest (1331)

orDiversity (1332)

Fed. Ques. §1367(b) limitation does NOT APPLY TO FED

QUESTION CLAIMS, only to SM

J

Party added under what Rule?

14 19 20 () No SMJ

This is the §1367(b) limitation

Claim by π or ? §1367(b) limitation does not

apply to claims brought by .SM

J

Diversity

TROUBLE!

The literal language of §1367 will allow the claim in (§1367(a) lets it in and §1367(b) makes no reference to claims by

plaintiffs joined under 20(a). (Exxon Mobil v. Allapattah) says no, the federal court does not have diversity jurisdiction

over any claim unless there is complete diversity. Because: if there is one claim in the action satisfies the

$75,000 any other plaintiff that is brought as a diverse party is able to ride the coattails of the plaintiff that settles the amt. in controversy limitation. This could create a burden on the court

to litigate claims that otherwise should be litigated in state courts.

A counter claim by a Plaintiff is possibly

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PPERSONALERSONAL J JURISDICTIONURISDICTION

Constitutional Bases:

14TH AMENDMENT DUE PROCESS REQUIREMENT

ARTICLE IV, §1: FULL FAITH & CREDIT CLAUSE

Notice And Opportunity to Be Heard

Full Faith and Credit Will Be Given in Each State to judgments rendered in other states

Statutory Basis

State FederalLong Arm Statute(Bensusan v King)

Rule 4(k)(2)

Can Restrict Constitutionally allowed Personal

FAIR PLAY AND SUBSTANTIAL JUSTICE

SUFFICIENT MINIMUM CONTACTS

IS IT REASONABLE TO Exercise JURISDICTION

Burger King v. Rudzewicz (yes) and Asahi Metal v Superior Court (no)

1. B urden on the Parties: Economic, time, relative burdens.

2. L aw: What forum’s law?3. I nterest of the State: in providing a forum

for & protecting its citizens. Asahi (no interest in foreign)

4. M ultiplicity of Suits: Will they all be resolved in this single action?

5. F orum: Alternative forum available? As or more Fair & convenient for the parties?

6. E vidence: Where is the bulk of the evidence?

1. C ause of Action: Where did the cause of action arise? (contact with the forum state)

2. A ctivities: Scrutinize these activities in the forum state:a. Systematic & Continuous = General J. (Perkins v Benguet

(Helicopteros not enough)b. Sporadic = Specific J (Jurisdiction because COA arises out of contacts

McGee v Int. Life ) c. Direct vs. Indirectd. Dangerous activity?

3. (1)P urposeful Availement: Has purposefully availed itself the benefits & protections of forum’s laws? Hanson v. Denkla (contact was not increased and was the result of unilateral act, so it is not enough to show purposeful activity)

4. (2)F oreseeability/S. of Com.: Could foresee or expect being haled into court? W.W. Volkswagen. (Asahi consistent marketing or direct shipping = liability for product in forum not subject to unilateral acts of third party. Foreseeability alone b/c of SOC is not enough)

MODERN SERVICE RULE 4 (A-E, H, N)

Mullane v. Central Hanover Bank Means best Calculated Under the

Circumstances to Give Notice. Publication is a supplementary means to give notice when other means are

unavailable or impractical

Does the quality and the nature of the acts show intent such that it is foreseeable that the defendant can be hailed in to the forum state?

(1)Purposeful availment (2) Purposeful direction (3) Stream of

MODERN BASIS OF PERSONAL JURISDICTION AS MINIMM CONTACTS (QUALITATIVE TEST) Must have sufficient minimum contacts within the forum state such that maintenance of the suit does

not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington

Because the courts power to exercise jurisdiction is based on the defendant’s voluntary relation to the state, the power should be limited to cases arising out of that relation. The contacts that spawn the lawsuit are crucial to the

minimum contacts analysis.

TRADITIONAL BASES OF FINDING PERSONAL JURISDICTION

CONSENT

EXPRESS: Carnival Cruise Lines (forum selection)

IMPLIED: Hess v. Pawloski

WAIVER: Insurance Corp of Ireland (no compliance)

DOMICILE/CITIZENSHIPMass v. Perry: Away At College

(need to move and have an intention to stay for it to be a new residence)

Milliken v. Meyer (even if absent a citizen can be served with process)

PHYSICAL PRESENCE IN STATE

Tag Jurisdiction Lives!

Burnham v. Superior CourtEx-Husband Served While Visiting Kids

Tag Juris. Dies if fraudulently induced in to the forum state. (Wyman v

Newhouse)

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Transfer of V: 28 U.S.C. §1404 (581)Policy: should be motivated by CONVENIENCE and

JUDICIAL ECOMOMY

Forum Non Conveniens

CHANGING VENUE: Where a case may have been brought

Underlying Policies: Judicial Efficiency; Limit Forum Shopping; Convenience of Parties

Federal Courts NEVER transfer to State Courts. Use FNC in such case.

State Courts NEVER transfer to federal Courts or to different States. Use FNC in such case.

§1404 Balancing Test

Convenience of parties & witnesses + Interests of justice and convenience of parties must substantially outweigh π’s interest in choice of forum.

Choice of Law: Diversity Cases Only or supplemental claims attached

Laws of the transferring state apply (including SOL)Ferens v, John Deere (P transfer)->kind of cheap b/c allows forum shopping a bit (rationale: judicial economy and Defendants would have that law anywayVan Dusen v Barrack (D transfer)

IF ORIGINAL VENUE WAS IMPROPER: Receiving Court applies its own laws. (28 USC §1406(a))

Venue Exam Tricks

Transferring Court can only send a case to a court where the “action could have been commenced or initiated.” Therefore, the receiving Court must have all 3 (§1404(a)), even if the transferring Court doesn’t:.

1. Subject Matter Jurisdiction2. Personal Jurisdiction3. Venue *(FOCUS HERE; JIMENEZ SAID THAT YOU CAN

ASSUME SMJ and PJ.

Public vs. Private Factors - Balancing

Test

Private Interest Factors 1.Access to sources of proof 2.Ability to compel attendance of witnesses 3.Convenience to voluntary witnesses 4.Difference in substantive law that will be

applied in new forum is NOT DECISIVE in dismissing on grounds of FNC, but could be relevant if the law in the alternative forum were completely inadequate. Piper v Aircraft

Public Interest Factors 1.Local interest in having disputes resolved

locally

General RuleFNC is tough on π’s, especially in light of

statutes of limitation and Pers. Juris. Courts know this and will not grant FNC unless:

1. There is an alternative forum;2. waives statute of limitations defense;3. Consents to conditions and jurisdiction

in alternative forum.

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****No Removal for In-State Defendants

in Diversity-Only Cases*****

Removal: 28 U.S.C. §1441 (pg585)Defendants as well as Plaintiffs should have the option to choose the

federal system for cases within Federal Jurisdiction.

Federal Question Flow Chart

No

STATE CourtState to Federal ONLY in

district embracing the court where the action is pending;

§1441(a)1. ALL ’s must consent; 2. ORIGINAL ’s only; no

counterclaim ’s must consent

FEDERAL Court

1. §1441(a)Must have been qualified to grant original jurisdiction. (amenability of ’s to suit)

2. §1441(b) cannot remove if any defendant is a citizen of the forum state if 1332 sole basis. No prejudice.

3. May grant supplemental jurisdiction as long as at least one separate and independent federal claim eligible for removal.

4. If ’s move for transfer after removal, the

Federal Question ClaimsPass Through Federal Question

Filter28 U.S.C. §1331 (564)

Non- Federal Question ClaimsPass Through Supplemental

Jurisdiction Filter28 U.S.C. §1367

There is FQJ

There is NO FQJ.

Does the π’s well pleaded complaint allege a state law cause of action in

which federal law is an essential element?

Does the federal law that is an element authorize a private right of

action?

Yes Does the π’s well pleaded complaint allege an express (§1338) or implied

federal cause of action?

Yes

Yes

No

Same Case or

Common Nucleus of

Meets Supplemental Jurisdiction

Requirements under §1367?

§1441(a)Court May

Exercise or Decline Per Authority Granted under

Not Part of Same Constitutional

Case

Separate & Independent

Claim?

Yes No

§1441(c)FED Court May Keep and resolve all

issues--OR--

Court May Remand all matters where State law predominates

REMOVAL PROCEDURE § 1446;

1. Files a notice of removal with the district court (a)

2. Within 30 days of receiving the π pleading (b)

3. At this point the state looses control of the case auto. (d)

4. Π has 30 days to contest the removal procedure and petition for a remand to state ct. §1447 (c)

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§1441(a)Federal Court Must Hear this

Case

Venue Rules: 28 U.S.C. §1391 (pg 577) EXCEPT AS OTHERWISE PROVIDED BY LAW

Venue in DIVERSITY cases. § 1391(a).Any dist. where any resides, if all ’s reside in the same state. (DISTRICT NOT STATE)Resides is not the same as domicile;Any dist. Where a substantial part of the controverted events occurred (or were omitted) or where the disputed property is located. Can have venue in multiple locations.Where any is subject to PJ only if no venue available under (1) or (2) above.You still might have trouble finding PJ over another

***At least one must be satisfied***Venue in ALL OTHER cases. § 1391(b).

Same as in diversity cases, above.Same as in diversity cases, above.Where any can be found only if no venue available under (1) or (2) above. Different language, but probably means same thing.

***At least one must be satisfied***

Venue of CORPORATE ’s § 1391(c) CORPORATE π it is 1391 (A) or 1391 (B)

This clause defines residence for application of (a) or (b)Any Judicial District that corp. is subject to PJ (min contacts) at the time the action is commenced. (treat districts as independent states)Analyze as if fed gov’t is separate state.

Venue for ALIENS 28 U.S.C. § 1391(d).Any alien, incl. alien corps., can be sued in any district.

Venue is a privilege to the defendant, but defendant waives his right to object to venue if he fails to bring an objection to it when he responds to the complaint (FRCP 12(b), (g), (h)).

Also venue can agreed to in advance through a “Forum Selection clause” (Carnival Cruise lines v. Shute). Usually enforced as long as it is fairly communicated and not unreasonable.

If the venue is inappropriate the court can transfer under 1404 but not dismiss without an objection from the defendant, new forums laws will apply.

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Challenging Jurisdiction and

Objections to Courts

THE MOTION TO DISMISS

PROCEDURE VARIES FROM STATE TO STATE

Allows appearing before the court to contest its power to assert PJ.If raises an case issue besides Jurisdiction the courts in some states may conclude that she Waived her jurisdictional Objection and began to defend on the merits

Special AppearanceMUST BE MADE

IMMEDIATLY

WHAT IS WAIVED IF YOU DO NOT FILE WITH ORIGINAL RULE 12 DEFENSES?

12 (b) allows to file a motion before the court to dismiss the case based on a 12(b) defense (avoids immediate answer as 12(a) allows)(can be in answer rather than motion at π discretion)

Defendant may raise other objections as well w/o submitting to JurisdictionUnlike some States

STATEFEDERAL

WAIVER of DEFENSES under Rule 12 (12G and 12H govern)

Rule 12(g) [must include all 12(b) in primary motion or answer IF AVAILIBLE] and 12 (h) [if one 12(b) then you must use all 12(b) govern the consequences of not raising 12 (b) defenses.

If not raised in the first response (motion to dismiss or answer) defenses 12(b)2-5 are waivedPersonal Jurisdiction Venue Insufficient process Insufficient Service of Process

*These are all preliminary defects and should be known by at the outset of trial. If a claim under 12(b) is available to them at the time of motion to dismiss or answer. If you don’t use it when it is available, you lose it.

12(b)(6) (failure to state a valid claim for relief) and 12(b)(7) (failure to join an indispensable party) motions may be filed at any time until trial ends because the litigation process can change situations allowing these defenses to be brought.

However, if these defects are available when the first 12 defense is used and are not included, 12(g) requires the inclusion of defenses then available. Although 12(h) states that they shall not be completely waived, they can probably only be successfully brought by another motion after pleading or during the trial.

What May NEVER Be Waived?

12B(1) SMJ Is A Constitutional Issue and Cannot Be Waived.Parties to an Action May NEVER Consent to Waiver of SMJ (FRCP 12(h)(3))

ERIE 4 TYPES OF ISSUES1. Do the laws actually conflict?-->If there is only one law on point then apply that law (can construe a federal rule

narrowly to avoid conflict)2. Look to the source of the federal law to determine what holds:

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Federal Statute v. State Law(ex: Fed ct. must enforce arbitration

agreements v. State courts do not enforce arbitration agreements)

Federal Constitutional Provision v State Law(ex: unanimous jury verdict v. majority)

Constitution is supreme Law of the Land (Article IV). If the constitution mandates a practice that is different from state law

then that constitutional practice prevails

Federal Statutes are the supreme Law of the Land if they are valid. When Federal rules fall between substance and procedure,

they will apply unless if they are unable to be rationally classified as procedural (Hanna). This is because congress has the right to enact the statute for procedure in fed courts under Article IV.

FRCP (Rules Enabling Act) v State Law(Service of process requirements (Hanna v. Plumer)

The Federal rule will apply if it is valid. i.e. if it does not violate the constitution (Hanna v Plumber) or “abridge , enlarge, or modify” a

substantive right as classified in the REA. (28 U.S.C. 2072(b)). Note a SOL is probably a substantive right because the period for

allowing recovery seems pretty bound up with the substantive claim itselfJudge made rulesFederal Judicial Practice v.

State Law(Procedures as a matter of practice v different procedures)

Under Erie, federal judicial practices are invalid if they purport to establish rules of primary behavior (like the duty to trespassers in Erie) with no constitutional authority. If the practice relates to the

conduct of litigation then the court should apply the state rule if it is

Erie v. Tompkins The laws of the states (except Federal Laws) shall be regarded as rules of decision in trials at common law in the federal courts where they apply.

Guaranty Trust Co. v York The source of substantial rights enforced by a Federal Court under Diversity jurisdiction is the law of the state. (a statute that would completely bar recovery in a suit if brought in state court bears virtually and not merely formally or negligibly)

Byrd v. Blue Ridge Must respect the definitions and rights and obligations created by state courts, but state laws cannot alter the essential characteristics and functions of the federal courts (Here: such as the function of a jury deciding factual matters)(using a judge instead of a jury. as the state law provides, is a determination of the form and mode of enforcing immunity, not and essential right)(Federal interest in the constitutional rights is more important than using a judge)

Hanna v. PlumerWhere matters fall between substantive and procedural and are capable of classification as either, the Constitution grants the federal court system the power to regulate it’s procedure. An outcome, by use of federal procedure, must “abridge, enlarge, or modify” ((28 U.S.C. 2072(b) for Erie to apply. (service of summons and the dismissal of the case for improper service would not alter the right of Hanna to serve Plumer properly and re-file, nor would it change the basis of the negligence claim) Just because it is outcome determinative as it is here, iot does not mean that it must be followed if it is clearly procedural. (ASK is it related to the ability to file in the first place?)

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YES

NFed Rule on Point?(look at twin aims of Erie before deciding)Can you construe the federal law narrowly

to avoid conflict?

NO Regards a Federal

practice that is common and uncodified

Hanna HoldingBetween Formal Fed Rule and

state practiceApply Fed Rule if it’s valid.

Valid if: Reasonable person would

consider it procedural. “judicial process for enforcing rights and

duties of substantive law” 28 USC §2072(a)

+Does not “abridge , enlarge, or modify” a substantive right as

classified in the REA. (28 U.S.C. 2072(b))

Do BOTH

Byrd v. Blueridge Test if it is Judicial Practice (it involves the interaction between the judge, jury and appellate court.)Is state rule bound up with (implementing of) state created rights& obligations? (this supports state law usage)

Does it regulate primary behavior? (in Byrd trial by jury with respect to fact)Y

Y

No/speculative

N

Use State Law

Use State law

Use Fed law

Rule of form & mode.BALANCE

Usually still STATE LAW

Fed. Countervailing

Interests (for fed law)

(always have uniformity, but

weak on its own. Byrd was judge/jury relationship which

outweighed outcome

determinacy)

Outcome determinative test (for state law)

If outcome would be different depending on which law applies probably use state law.(statute of limitations is very determinative if its run in state and not fed)

YES

Hanna DictaWhether a federal procedure is outcome determinative must be viewed in light of the underlying policies of Erie. If the difference

between state and federal rules are small, then using federal laws would

not be wrong.

1. Would FRCP promote Forum

EERIEIn diversity cases federal courts must apply the law that would be applied by the courts

of the state in which they sit.

1. THE DISCOURAGEMENT OF FORUM SHOPPING

State law applies (f/ Erie & RDA)

Primary right the Fed Ct. Must follow or

predict what States court would do

-–or—certify the question

Is state law purely

substantive / black letter law?

Problems from Swift v. Tyson (Justice Story’s interpretation of the Rules Enabling Act)

Before Erie, a person or business could move or reincorporate in order to invoke diversity jurisdiction and thus choose the substantive law that was more favorable to them. Created Prejudice to the out of Stater.

Swift also created a false sense that there is a transcendental body of law that is not a reality. Law is more simply a set of rules enacted by those that have the power to do so to govern behavior in a certain place at a

Under Erie, courts sitting in diversity apply state substantive law and Fed

procedural law. Under Hanah v Plumer, the outcome determinative test

reposed by Guaranty bank and trust should not be followed mechanistically, but should be guided by the twin aims

POLICY: Allowing Joinder of parties allows a number of claims that involve a single T&O and the same issues will be litigated in each claim it is in the interest of economy to litigate all the issues once rather than separately and will also avoid the

possibility of inconsistent judgment.

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JOINDER

JOINDER OF CLAIMS by π (FRCP 18a)

1. In federal practice a π can join any claims he or she has against the .regardless of T&O. a. This rule extends to any claim/ counterclaim/ cross claim. Language is “pleader”

2. In a state following the FRCP, a π can join any claims he or she has against the because those are the Federal Rules.

3. If state X follows the more traditional rule of demanding a transactional relationship, use fact analysis to show that all the claims come from the same incident.

Permissive Joinder of PARTIES : 2 Prong Test

Plaintiffs joining together=FRCP 20(a)(1) Plaintiffs Joining Defendants together= FRCP 20(a)(2)

Trans. & Occurrence + Common Question of law or fact = Permissive Party Joinder

1. Claims or defenses stem from the same transaction; AND 2. There is a common question of law or fact binding the parties.

Compulsory Joinder of Parties

Rule 19(a)1. Who is necessary and should be joined if possible?

a. Will parties be injured by failure to join outsider?b. Will outsiders be prejudiced by result? (lose ability to protect interest, leave a party open to multiple

obligations)

Exam Tip: Probably only situation in which outsider is not compulsory is tort action. Joint tortfeasors are NOT compulsory; π may only want or need to sue the rich . (Temple v. Synthes Corp . )

2. Can you join the outsider? If not, why not?Exam Tip: look out! Reason could be SMJ and/or PJ. If so, be ready to perform the entire analysis.

3. I can’t join this guy; what do I do now?a. Rule 12(b)(7) dismissal for failure to join and indispensable party; ORb. Rule 19(b) Court can grant discretionary relief and probably will to avoid dismissal or dismiss the case

based on:1. If persons absence would prejudice that person or existing parties2. Could any prejudice be avoided or lessened (shape the relief, or other measures)3. Would the judgment be adequate in their absence4. Would te plaintiff have an adequate remedy if the action were dismissed for non-joinder

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§1332- Diversity and $ Amount Or

Joinder- Big PictureMust satisfy both FRCP and SMJ and

PJFRCP Subject Matter Jx

ANDJoinder by Joinder by

Claims 13 (a, b, g) Parties 14, 19

O

20(a) Permissive Joinder. All persons

may join in one action as plaintiffs if they assert any right to

relief … arising out of the same transaction, occurrence, or series

of transactions or occurrences and if any

common question of law or fact common to all these persons will arise in the action.

All persons may be joined in one action as defendants if there is asserted against them any right to relief …

arising out of the same transaction,

occurrence, or series of transactions or

occurrences and if any common question of

law or fact common to all these persons will

(a) Compulsory Counterclaims - A

pleading shall state as a

counterclaim any claim it has against any opposing party,

if it arises out of the transaction or occurrence that is the subject matter

of the opposing party's claim and

does not require for its adjudication the presence of third

(b) Permissive Counterclaims. A

pleading may state as a counterclaim

any claim against an opposing party not arising out of the

transaction or occurrence that is

the subject matter of

(g) Cross-claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the

transaction or occurrence that is the subject matter

either of the original action or of a

counterclaim therein or relating to any

14(a) When Defendant May Bring in Third Party. At any time after commencement of the action a

defending party, as a third-party plaintiff, may cause a summons and

complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for

§1331- Federal Questions

§1367- Supplemental Jx

$75,000.01 minimum&

COMPLETE Diversity

Amount claimed in good faith is relevant, not

amount the court awards, UNLESS to a legal certainty

cannot recover $75k. Claim must exceed 75,000 not

actual award.

Diversity must exist at the time

the complaint is filed with the clerk. It need not exist at the time of trial or when the cause of

action arose

A plaintiff can often cure the lack of diversity problem by dismissing non-diverse parties.

Where DC has original Jx, they shall have supp. Jx over all other claims that are related to the original claim when they are

part of the same claim or

EXCEPT- when they original claim arises

SOLELY under §1332 the DC

WILL NOT have Jx over claims made by ’s

against persons under RULE 14,

19, 20, or 24.The DC may also decline supp. Jx if:1) A novel or complex state law issue2) Claim dominates the claim which original Jx was based.3) Dc has dismissed claims under DC’s

14(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted

against a plaintiff, the plaintiff may cause a third party to be brought in

under circumstances which under this rule would entitle a defendant to do so.

19(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not

deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if

(1) in the person's absence complete relief cannot be accorded among those already parties, or

(2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the

action in the person's absence may : (i) as a practical matter impair or impede the person's

ability to protect that interest or (ii) leave any of the persons already parties subject to a

20(b) Separate Trials. The court may make such orders as will

prevent a party from being embarrassed, delayed, or put to

expense by the inclusion of a party against whom the

party asserts no claim and who asserts no claim against the

Original ClaimCounter ClaimCross Claim3rd party ClaimClaim by 3rd P

3rd Part

y

19(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1) - (2) hereof cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as “a person required to be joined if feasible”. 19(b) non exhaustive list of factors to be considered in to allowing a suit to continue based on a failure to join an indispensable party under 19(a): First, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; Second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;

Parties 20 (a) Claims 18 (a)

Can join any other claim with a valid

claim

A party asserting a claim to relief as an original claim,

counterclaim, cross-claim, or

third-party claim, may join, as many claims as the party

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Counterclaims, Crossclaims, and 3 rd Party Claims (Impleader)

Counterclaims

1. Compulsory: FRCP 13(a); use it or lose it.. A counter claim is compulsory if it “arises out of the same transaction or occurrence” that is the subject matter of the ’s claim (counterclaim must be pleaded) POLICY: efficiency and economy

2. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same transaction: (from Plant v. Blazer Financial Services) State Courts will usually respect Rule 13(a); but it is not guaranteed. I.e., if you fail to pursue your compulsory counterclaim in federal Court, state Court will probably not allow a new suit on the same facts.

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

3. Permissive: Rule 13(b); everything else. (NOTE: Court will probably order a separate trial for an unrelated claim FRCP 42(b))

4. Exam Tip : Rule 13 pretty much allows a to counterclaim against a π for anything he wants. Remember the title “plaintiff” doesn’t mean squat in Tort law; it just means you filed first.

5. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no diversity), invoke §1367 Supplemental Jurisdiction and be sure to use the buzzwords:

Cross-Claims

Rule 13(g) ( vs. )1. Always Permissive, but must rise out of the same T&O if is to be used.2. Can invoke §1367 if claim won’t stand alone, but Ct. must have SMJ (probably a safe bet with §1367 b.c 1367(b) wont

apply)3. Exam Tip : When in doubt, examine Transaction & Occurrence; it’s pretty much the basis of everything in CivPro, so if

you’re blanking out, start writing about T&O. If a cross claim is made then the TP must file a counter claim (13a) if it is

3 rd Party Claims (Impleader)

Rule 14(a) (Defending party may implead anyone that may be liable to them for all or part of the claim) 1. Adding New Parties: Theoretically, an infinite number of parties may be added to the action.

a. Added parties can can defend both the derivative 3rd party claim and the original claim. 14(a)(1)(c)+(d).2. Exam Tip : Remember that every party added means you must establish personal jurisdiction (and SMJ if it is not §1367)

over all these parties. Big exam points here.3. Can invoke §1367 if claim won’t stand alone and is from same T&O.

a. Impleading a third party defendant does not affect the court’s jurisdiction over the original claimb. Third party defendant is disregarded in determining whether venue is proper

4. 3rd party ’s counterclaiming back will probably be compulsory because [permissive counterclaims are usually transactionally related and therefore NOT subject to supplemental jurisdiction.]

5. Rule 14(a) Amendment: original π may amend complaint to directly assert claim against newly impleaded 3rd party .6. Kroger Rule: Original π cannot assert supplemental §1367 claim (but can if there is complete diversity and amt. is

met)against parties brought under Rule 14 (third party practice); Rule 19 & 20 (Basic Joinder Rules); and Rule 24 (Intervention). It does NOT say anything about Rule 13 (counterclaim and cross-claim).

7. Draw a picture; it’s the only way to figure this crap out. Plaintiff can add un unrelated claim under (18a) as long as they

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Negligence or Tort

Compulsory Counterclaim

for

Rule 13(a) Compulsory Counterclaim

Negligence or

Tort Permissive

Counterclaim for

Negligence or Tort

Rule 13(b) Permissive Counterclaim

Negligence or Tort

Negligence or Tort

Rule 13(g) Crossclaims

Crossclaim for Product

Liability

Existing Co-(Party to Original

Action)

A counter claim is compulsory if it “arises out of the same transaction or occurrence” and does not require adding a party the court cannot obtain jurisdiction over that is the subject matter of the ’s claim (counterclaim must be pleaded)

4 Part Test to define when a claim or counterclaim arises from the same transaction:

1) Are the issues of fact and law raised by the claim and counterclaim largely the same?

2) Would res judicata bar a subsequent suit on ’s claim absent the compulsory counterclaim rule?

3) Will substantially the same evidence support or refute ’s claim as well as ’s

JOINDER DIAGRAMS

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Negligence or Tort

Negligence or Tort

Rule 13(h) Joinder of Additional Parties to Crossclaims or Counterclaims

Crossclaim

Existing Co-(Party to Original

Action)

Joinder of Additional Parties (Not In Original

Action)

In this example, an original crossclaims

against another original AND joins a

3rd party as well.3rd Party(Newly Joined)

Rule 14(a) S1 – Adding Third Party Defendant

Negligence or Tort

(3rd Party

)

3rd Party

Contribution or Indemnity

Claim

JOINDER DIAGRAMS

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Rule 14(a) S6 – TPD Can Assert Claim Against

Negligence or Tort

(3rd Party )

3rd Party /

Contribution or Indemnity Claim

Requires same Transaction or Occurrence as ’s claim

against 3rd Party

Rule 14(a) S7 – Can Assert Claim Against TPD

Negligence or Tort

(3rd Party )

3rd Party

Crossclaim

Requires same Transaction or Occurrence as ’s claim

against 3rd Party

Counterclaim

TP MUST assert all defenses available under Rule 12 and counterclaims and crossclaims under Rule 13.

JOINDER DIAGRAMS

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Rule 14(a) S9 – TPD Joining Another Third Party Defendant

Negligence or Tort

(3rd Party

)

3rd Party

Contribution or Indemnity

Claim

3rd Party

Contribution or Indemnity

Claim

JOINDER DIAGRAMS

Negligence or

Tort

Breach of Contract

Rule 18(a) Joinder of Claims

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JOINDER OF PARTIES DIAGRAMS

Negligence or

Tort

Rule 20(a) S1 Joinder of Parties - ’s

Co - Negligence or Tort

Permissive Joinder of Parties: 2 Prong Test

1 ¶ at most on exam.

TO + CQ = Permissive Party JoinderClaims or defenses stem from the same transaction; ANDThere is a common question of law or fact binding the parties.

Negligence or Tort

Rule 20(a) S2 Joinder of Parties – ’s

Negligence or Tort

Permissive Joinder of Parties: 2 Prong Test

1 ¶ at most on exam.

TO + CQ = Permissive Party JoinderClaims or defenses stem from the same transaction; ANDThere is a common question of law or fact binding the parties.

Co-

Issue 28 U.S.C. §1335 Rule 22 Subject Matter Jurisdiction - Diversity Minimal diversity (28 USC 1335(a));

determined between claimants. (At least 2 claimants must be citizens of a

different state)

Complete diversity; stakeholder on one side and claimants on the other

- Amount $500 in controversy $75,000+ Personal Jurisdiction and Service of process

Nationwide service of process (28 USC §2361)

Need personal Jurisdiction; service under Rule 4 personal jurisdiction is available to approximately the same extent as it would be in the state courts of the state where the Fed court is

sitting.* Remember, you need PJ over all the claimants in order for Rule 22 interpleader to work!

Venue Venue is available in any judicial district in which one or more claimants

resides (28 USC 1397)

District where of any claimants resides (if all from one state) 28 USC §1391(a)(1); District where dispute arose; district where property is 28 USC §1391(a)(2); District where any claimant found if no other basis for venue 28 USC §1391(a)(3)

Injunctions A federal court may enjoin claimants from instituting or prosecuting any suit

in federal or state court that would affect the interpleader proceeding (28

USC §2361)

Federal court can issue an injunction essentially comparable to the one is statutory interpleader. That authority’s only basis is a

provision in 28 USC §2283 for stay “where necessary in aid of . . . jurisdiction”. Basically excludes interpleader suits from the acts

prohibition against injunctions.How to Invoke: stakeholder invokes and is called

Post a bond with the Court to cover value of controverted property.

Deposit controverted property with the Court.

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Interpleader Rule 22 -or- 28 U.S.C. §1335“You all figure out who I need to pay if I am liable (which I may not be)”

Defined: Interpleader is an equity device designed to protect persons in possession of property (stakeholders) the ownership of which is or may be claimed by more than one party. It is a device to resolve at one time the claims of many persons to one piece of property or sum of money, such as a bank account claimed by more than one person.

Policy Objective: So that the stakeholder will not have to pay the same claim twice.

Practical Application: Interpleader is a ’s tool to join all claimants at once; but may be employed by a through use of cross-claim

State Farm Fire and Casualty Co. v. Tashire Example of what interpleader is not.

Rule: Where a stakeholder commences a federal interpleader action to consolidate in one court and in one action, all claims against the fund interpleaded by non-residents, the courts jurisdiction over those non-resident claims is limited to the interpleaded fund.

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Intervention Rule 24

“I wasn’t invited, but I am coming anyway”

Remember, you need PJ over all the claimants in order for Rule 22 interpleader to work!

Rule 24(a): Intervention of RightAutomatic, uncontestable right if:

1. Unconditional Right Granted by Federal Statute; OR2. Applicant has interest in transaction or property + disposition will impair his interest - no existing party can

adequately represent his interest

Rule 24(b): Permissive InterventionAt discretion of Court if:

1. Conditional Right Granted by Statute; OR2. Common Question of Law or Fact; OR3. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting

scope of protective orders and confidentiality agreements. Example: Environmental Lawyers intervene to contest Oil Co. settlement agreement ordering destruction of discovery documents which may show broader

Rule 24(b¹): Limited Purpose InterventionJudicial Expansion of Rule 24(b):

1. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scope of protective orders and confidentiality agreements.

2. Example: Environmental lawyers intervene to contest Oil Co. settlement agreement ordering destruction of discovery documents which may show broader pattern of abuse, suppression of which arguably would be contrary to public policy.

Remember, you need PJ over all the claimants in order for Rule 22 interpleader to work!

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Intervention Flowchart

Does a Federal Statute grant unconditional right of

intervention?

YesMUST Grant

This is Rule 24(a).

Does a Federal Statute grant conditional right of

intervention?

Yes

MAY GrantThis is Rule 24(b)

Court will consider delay or prejudice to original

parties.

Step 1:

STATUTORY ANALYSIS

Is there a party to the case who will adequately

represent the applicant’s legitimate interest in the

controverted matter?(Can an existing party cover

your ass? )

Yes

Step 2:

CAN’T SOMEONE ELSE DO IT?

Step 3:

CONSIDERATIONS OF JUDICIAL EFFICIENCY AND PUBLIC POLICY.

MUST GrantThis is Rule 24(a).

Is there:A common question of law or fact?

- or -A limited purpose that would serve public policy?

Yes

MAY GrantThis is Rule 24(b)

Court will consider delay or prejudice to original

parties.

23(B) TYPES OF CLASSES

Class Defined Policy Objective Practical Application23(b)(1)

Mass version of Rule 19 joinder. Class members may NOT opt out

and are BOUND by the holding.

Avoid inconsistent decisions or impairment of interests of class members. Avoid harm to ’s and absentees.

In a limited fund case; if suits brought individually, first π takes it all. Class Action protects other π’s.

23(b)(2)

Limited to Injunctive or Declaratory Relief

No $ damages Class members may NOT opt out

Protect rights where large numbers of persons are affected.

Civil rights cases.

23(b)(3)

$ Monetary Damages Must be superior to other

available methods

Judicial efficiency Allows relief where individual π’s

could not economically pursue

Class action for everyone who was overcharged 10 cents on every can of tuna they bought at Ralph’s. No one

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Class Actions Rule 23: “We Were All Screwed Over!”

23(A) CLASS PREREQUISITES (CEN C TAB)

1. C LASS: is roughly definable and is a member; 2. E CONOMY: Judicial Economy is Served; 3. N UMEROUS: Potential ’s too numerous for

joinder;

4. C OMMON LEGAL THEORY: Claims have a Common legal theory or arise out of the same transaction or occurrence;

5. T YPICAL: Claim of named must be Typical of the class;

6. A DEQUACY OF REPRESENTATION: Named parties must Adequately represent the class;

7. B RULE 23(B): Action must fall within one of three categories of Fed Rule 23(b)

Identifiable Class Named s (or s) are members of the class

JURISDICTIONFederal Question: Normal Rule Applies

Diversity: Class action is a representative action. Diversity is based on the representative. Just make

sure you pick a from another state. Amount in Controversy cannot be aggregated. If it’s classified as a 23(b)(2) injunctive claim, you

would value the injunction and that could get you over the $75k

Or you could file it in state court. But in a 23(b)(3) case you’d have a big problem if

your individual claims were not each over the $75k requirement.

Personal Jurisdiction: Not the Shoe, Denkla, VW test. Focuses mostly on notice. For 23(b)(3) damages case, requires: Adequate representative Notice Right to opt out. Not required for 23(b)(1) or (2) cases.

Must present common questions of law or fact. (Predominance of common question)

bears cost of notice to all class members.

Notice must inform members may opt-out.

action Could be only effective method of

deterring behavior of some ’s (many small violations).

would sue individually. But as a class it would make sense and Ralph’s would have to react.

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IV: RES JUDICATA

Affirmative defense that may be plead for Res Judicata Affirmative defense Rule

Res Judicata Basics 1. Definition: RJ means you cannot re-litigate a matter that you previously litigated or could have litigated.2. Merger & Bar: The controverted matter (cause of action) is like a poker chip, you only get two choices: bet it or

don’t bet it. You can’t break it in half and play part now and part later. Additional theories that could have been plead but weren’t (compulsory counterclaim) are merged into the first judgment and further litigation is barred by RJ. The cause of action is merged with the judgment, your right to sue is no longer from the occurrence, but rather is now a right to sue on the judgment.

3. Claim for Relief is The Key: So, what’s the claim for relief (cause of action)? Is it litigation to preserve a right or to remedy a wrong? Courts have held both ways and a minority of jurisdictions still use the right-wrong test. But the majority position is to focus on the transaction. On the exam, focus on transaction & occurrence. If the claim arises from the same transaction or occurrence, it’s probably covered by RJ.

a. Example: bought a toaster that exploded and killed her pet iguana, she’s probably got half a dozen theories of recovery under tort and contract law (strict liability, warranty, breach, etc.). But all those actions arise from the same occurrence – the toaster explosion. Most Courts would rule this a single cause-of-action for RJ purposes.

4. Exam Tip: Be sure to let the professor know you defined the cause-of-action so that he knows you understand its central importance to the concept of res judicata. If you do not include claims that could not be included in the original suit (like an exclusive FED claim in state claim), the new claim will probably not be barred. Also if a impleaded defendant (FRCP 14) has a claim against an original plaintiff they need not use it unless they become opposing parties.

5. Remember the Policy Rationale: Courts will interpret claims broadly in order to encourage joinder and discourage multiple litigation (judicial efficiency) and also allow amendments and appeals. But Courts will interpret claims narrowly if they are concerned about the potential harshness of preclusion and the burden on a meritorious .

1. Same claim (T&O) A party asserting a right to relief arising out of a particular transaction must join all claims she has arising from it.

2. Same Parties A plaintiffs rights to recover from separate defendants are considered distinct “claims” under a RJC analysis.

3. Final Judgment (look at your flow chart)4. Judgment on the merits (look at your flow chart)

Claims that are based on

Another Parties AppealYou can appeal issues at trial but cannot benefit from another parties appeal or re-litigate. Issues are not open to collateral attack ( Federated Department stores v. Moitie )

REQUIREMENTS

1. Final Judgment 2. Judgment on the merits3. Same claim (T&O)4. Same Parties

Res Judicata(Claim Preclusion)

Mutuality of Estoppel(Who or which parties are subject to claim or

issue preclusion?

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RES JUDICATA (CLAIM PRECLUSION) FLOWCHART

Yes

Yes

Yes

Yes

No

No

No

Yes

Was there a final judgment in the previous case? (Final means all steps in the adjudication except

execution & appeal.(Some cts allow res judicata to take effect after trial

Do the issues in the current case stem from the same transaction or occurrence as a previously litigated

case?

Was it considered “on the merits”?

12(b)(6) failure to state a valid claim for relief (Moitie)o You could amend so if you still can’t get it right

you lose (SPLIT)o Maybe allow because little litigation effort

expended Litigated and judgment rendered

No: Decided on Jurisdiction Venue Joinder of an Indispensable

Party SOL (barrs refilling in same

Was it valid? Proper court with subject matter and personal

jurisdiction? §1738 “Full Faith & Credit” valid state court

Does 2nd Action Involve Same Parties or Those In Privity?

(Privity requires a legal relationship between the

Collateral Estoppel Basics1. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. If RJ is a meat

cleaver, lopping off the entire claim, CE is a scalpel, severing only the issues previously adjudicated. There are 3 requirements for CE:

a. Same Issue a that was Actually Litigatedb. The party against which the estoppel claim is being pursued was a member to the previous suit or was in privity

(proprietary interest or in control of prior litigation) with that party.c. Necessarily Decided on the merits (This is important. The issue may previously have been decided but was not

necessary to resolution of that case.2. Example : Driver A hits Driver B, sues B for negligence, and wins. Assume that there was no compulsory counterclaim

rule, so B never counterclaimed against A. Now Driver B wants to sue Driver A for his injuries.a. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence,

claims are specific to the , so that single accident gave rise to valid claims for both A and B. b. But B will be estopped from asserting a claim of negligence against A. This is because A actually litigated and

necessarily determined that B was the negligent driver in the accident. For purposes of the exam, don’t worry about comparative negligence claims.

c. But, what if the verdict in the first trial came in as comparative negligence, both drivers negligent, no damages are awarded because they were equally negligent? So the jury sends B home a free man. Now he decides to sue A. The fact that the jury found B negligent in the first case was NOT necessary to their finding that A was negligent, so B is NOT estopped from suing A.

i. Appeal: One way to check your answer is to look at whether the in action #2 could have appealed the verdict in case #1. Here, B won the first case (he did not have to pay A), so there was nothing for him to appeal. So his issue was not necessarily decided.

3. Context is the Key: With RJ the claims were the same so context did not matter. But with CE, the context of the litigation could re-define the claim.

- 26 -

Yes

NILIssue Necessary to the first action?Identical Issues?

Collateral Estoppel

(Issue Preclusion)

NO CLAIM PRECLUSIONRJ won’t apply if the matter hasn’t

been finally and validly decided by a proper Court!

CLAIM PRECLUSIONRes Judicata appliesEntire claim is precluded, including matters that

were or should have been litigated.

POLICY: Collateral estoppel is needed because issues already litigated may come up again in subsequent litigation based on separate events.

1. Issue must be the same in the first case as in the second2. The issue was actually litigated3. The issue was decided4. The decision of the issue in the prior judgment was necessary to the courts judgment

- 27 -

DISCOVERY RULES: FRCP 26-37 govern discovery in all civil actions

RuleFRCP 26 26(b)(1): Specifies that parties may obtain discovery regarding any matter, not privileged that is

relevant to the claim or defense26 (b)(2): Imposes general limitations on the scope of discovery in a proportionality test

i. The discovery sought is unreasonably distrutptive or could be obtained froma better source (less expensive, burdensome or more convenient

ii. The party seeking discovery has had ample opportunity to obtain the information soughtiii. The burden or expense of the proposed discovery outweighs its benefits. (taking in to account

the needs of the case, the amt. in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues

26 (c): allows the party that is responding to a discovery request to invoke the district courts protecting by asking for orders to protect them from ‘undue burden or expense’ this usually results in the court issuing orders that condition discovery on the requesting parties payment of the costs of that discovery.

FRCP 34 34: Motion to Compel: A Party may request discovery of any document. Very inclusive list that includes changing technologies (and therefore electronic documents)

FRCP 37 37: Allows Sanctions:

Defined: Discovery is the legal process for compelling the disclosure of information relevant to disputed factual issues in litigation. Generally without judicial supervision, however, sometimes there can be motions to compel, sanctions, or protective orders. Policy Objectives: Cost-Shifting cost shifting may effectively end discovery, especially where large corporations are concerned and may end meritorious claims (especially in discrimination or retaliatory suits. The sample size approach in Zubulake v. UBS Warburg LLC may alleviate some of these concerns.

Legitimate Practical Application: (1)Allows more accurate determination of cases litigated on the merits (2) Promotes settlements by increasing the parties respective appraisals of their cases (3) make available information allowing some or part of the case to be disposed of (summary judgment)

Zubulake v. UBS Warburg LLC

ROL: To determine cost-shifting for discovery of electronically stored information, a court must balance the likelihood of discovering critical information and the total cost of production against the amount in controversy, the importance of the issue at stake, and the resources available to each party.

This case got rid of the ROWE factors (Course book page 894)]. Claiming that they should not be equally weighted and that relativitly is important. New seven factor test should be used to determine cost shifiting with the factors not being equal.

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