CIVIL PROCEDURE OUTLINE

Sachs Fall 2011

Introduction

Justiciability: Does it belong in court?

Comity: Does it belong in a nonjudicial forum? Respect for other fora.

Competence: which court is best able to handle it? Power which is granted by Legislature.

Jurisdiction: Power conferred by the Constitution, Article III.

Jurisdiction

SUBJECT-MATTER A. Diversity JurisdictionArt II, Sec 2 “between Citizens of different States”

provides a requirement for ‘minimal diversity’ designed to prvent in-state bias1. 28 USC § 1332

Original jurisdiction when amount in controversy exceeds $75,000 and is between: 1) citizens of different states; 2)citizens of a State and citizens of a foreign state; 3) citizens of different states and in which citizens of a foreign state are addt'l parties; and 4) a foreign state as plaintiff and citizens of a State or of different states.Must be a US citizen or permanent resident to invoke diversity jurisdiction.

2. Absolute Diversity NeededAbsolute diversity between plaintiffs and defendants necessary for diversity jurisdiction. Strawbridge v. Curtiss.

3. Domestic relations exceptionAlimony, divorce and custody are not within federal purvue, even with diversity. Ankenbrandt v. Richards.

5. Citizenship for Purposes of Diversitya. Individuals: Domicile

Resides (presence) with intent to remain indefinitely (evidence can provide proof of intent but state of mind is dispositive)

Only one domicile at a time. Look at domicile when suit filed.b. Corporations

are citizens of 1) place of incorporation and 2) the principle place of business. (nerve center/headquarters) Hertz Corp v Friend

d. Unincorporated associations

take on citizenship of each of their members.e. "Alien" permanent residents

are citizens of the state where they are domiciled

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7. Amount in Controversya. >$75,000

Claim must be greater than $75,000; set by plaintiff. Test: 1) can't be thrown out unless it is legal certainty that amount < 75,000; 2) good faith, no fabrication by π.

Valuation: from plaintiff perspective.b. Aggregation

1) Plaintiff may aggregate any claims against defendant to meet total but not separate Ds

2) Multiple plaintiffs cannot aggregate; each must meet minimum.

3) Plaintiff can aggregate claims against mulitple defendants if the claim is "joint." Eg: a BIG diamond

4) Counterclaims not considered in equation

Tag-along rule: 28 USC 1367 – Supplemental Juris6. Policy Interests with Diversity J

Constitution sets outer bounds Congress has limited it with amount in controversy and complete diversitya. Interests served by limiting or expanding diversity jurisdiction

Limiting: economy, federalism, state courts may be more economical and closer to issue.

Expanding closer to limits of Article III: convenience of parties, centralizes and combines multiple state cases, eliminates home-state advantage, greater prestige, commercial interests.

b. Protect out-of-state parties from in-state bias

Since out-of-state parties cannot participate in the democratic process of the state, and b/c an instate plaintiff may seem more sympathetic, give a "neutral" federal forum.

Why do people care about which court system will try their case?

Local prejudice; Different procedures – Single / multiple judges; Convenience/ Familiarity; State judges are elected/ appointed

B. Federal Question Jurisdiction1. Constitution: to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treatie

As long as it has a federal ingredient but limited by 1331 and by Motley 28 USC § 1331

Federal Court has original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.No amount in controversy requirement.

2. Well-Pleaded Complaint RuleA federal question must appear on the face of plaintiff's complaint. Louisville & Nashville RR. v. Mottley.

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P must rely on Fed law for relief (cause of action); anticipated defenses/rebuttals do not qualify, no jurisdiction. Mottley is highly restrictive and replaces "Osborne rule," which said that if a federal question was an ingredient, then jurisdiction. Rationale: can't let in every case with a federal ingredient; plaintiff can't define defense; Fed could intrude on state cts

3. Holmes Test: a suit ‘arises under the law that creates the cause of action’If well-pleaded complaint shows federal cause of action, ie, seeks relief under federal Counterclaims: P’s claim no FedQ, but D’s counterclaim has FedQ, still no jurisdiction bc FedQ must be in P’s orignial claimDeclaratory Judgements: Inverting position of P and D doesn’t change question: Does P’s claim rely on Federal law? EG: In Motley, RR would still have to sue in st. ct. (No race to the court house)

Exception: Federal stat. creates a cause of action If explict in stat., then jurisIf not explicit, then is P part of the class, congressional intent, infringes upon state juris, division of labor

4. Grable Test: state claim turns on federal lawA state claim which turns on resolution or interpretation of a substantial federal issue, not for relief but for resolving a part of the dispute.Only from perspective of the PFed issue must be raised in pleading; is substantial; and sound division of laborEX: IRS seizes P’s property and sells to D. P sues D over quiet title (st. claim) bc IRS took property improperly (fed claim)

C. Supplemental (Pendent & Protective) JurisdictionProvides broad authority for a federal court that has original jurisdiction over a case to hear related state claimsOverrules Finley and affirms Gibbs/Kroger 1. 28 USC § 1367

a. Original Jurisdiction over related claims

(a) In cases of original jurisdiction, supplemental jurisdiction over all other non-federal claims that are so related to the original claims that they form part of the same case or controversy, includes joinder or intervention of addt'l parties.

b. For cases based on diversity some exceptions apply

No supp. jur. over claims by plaintiffs against defendants made parties under Rules 14, 19, 10 or 24, or over claims by persons proposed to be joined as plaintiffs under Rule 19, or seeking to intervene as plaintiffs under Rule 24, when granting supp. jur. would defeat full diversity.

EX: P sues D1 who impleads D2 under 14a. P cannot assert direct claims against D2 if not diverse from P. Like Kroger

c. Discretion to Decline

Court may decline supp. jur. if: claim raises novel or complex issues of State law; state claim predominates over the federal claim; fed claim drops out early; jury confusion, ie, need to tried separately anyway; Look at convenience, judicial economy, fairness

d. State Statute of Limitations Tolled

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statute of limitations for any claim asserted under (a), shall be tolled (stopped) while claim is pending plus 30 days after dismissal, unless State tolling period is longer.

Goal of deterring "protective filings," filing in State court so you keep your options open; clogs courts. If the federal court dismisses your supplemental claims, you won't have lost your chance to file in State court.

2. Pendent Claims"Gibbs test": Two claims (one State, one Federal) = jurisdiction, if the two claims arise from a "common nucleus of operative fact" and “would normally expect to be tried together.”Old “Kroger test”: Ct must have statutory authority to hear the claim. Ex: P sues D1 who impleads D2. P and D2 are not diverse so P can’t file 3rd party claim

3. Protective JurisdictionCongress has power to grant the courts jurisdiction over areas over which Congress has legislative jurisdiction, such as interstate commerce. Textile Wks. v. Lincoln Mills.This means that Congress can authorize federal courts in non-diversity cases to hear cases involving areas over which they have legislative power - ex., labor law - and have federal courts enforce state rules.

D. Removal Jurisdiction (from State to Federal)Policy: balances the forum selection powers of P and D28 USC 1441

(a) Defendant has the right to remove a case to federal court if the federal court would have had jurisdiction. All Ds have to agree

D’s FedQ defense or counterclaim doesn’t make it removable(b) if claim has Fed Q, diversity doesn’t matter. If not Fed Q, then you need diversity BUT can only remove if no defendant was citizen of forum state. (ie, if D sued in-state, D can’t remove)

**And P can destroy diversity by adding non-diverse D; but ct can choose whether to accept or not (c) If there is one Fed Q claim and other nonremovable claims, a court may join the claims and remove the entire case. BUT ct may remand substantial state clams

**Rationale: reverse of §1367; π should not be able to defeat ∆'s right of removal by adding separate, non-federal claims. Efficiency says we may need to hear them together, but ∆ should still be able to get into federal court on the federal claim.

28 USC 1446D must ask for removal within 30 days of start or any other time when it becomes known that it can be removed

PERSONAL Guiding PrinciplesPJ turns on the relationship between the defendant and the state and if it would be fair for the state to exercise their power over them.

Focus on Claims, not Cases. Still have to have PJ over each claim, so add’l claims may not survive for specific J

Statutory Limits (Must satisfy both)1) Authorized by long-arm statutes?

A st. court cannot exercise jurisdiction unless a long arm statute or some other statute authorizes it.

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Statute may enumerate types of cases, or go to “constitutional max”2) Not a violation of DPC?

Not const’l if no min. contacts or not fair and reasonableStates

14th DPC limits

Long Arm StatutesFed

5th DPC limits

FRCP 4K

There is no nationwide IPJ; all federal court IPJ must be related somehow to State IPJ

Fed ct is authorized to exercise personal J over a D only to the extent it could be exercised by the courts of the state in which the Fed ct sits

Therefore, personal J can vary from one Fed ct to another depending on long arm statutes

EX: D from CA batters P from NY for $750001 in NY.

SMJ

Fed Q - No

Diversity – Yes

PJ

CA state – Yes, domicile

CA Fed – Yes, under 4k1a

NY state – Yes, min contacts

NY Fed – Yes, under 4k1a

A. Historical Bases of In PersonamStates ONLY have power over their citizens and any property within their boundaries

1. Presence (Territorial)Presence (even transient) in the territory sufficient for J Pennoyer. Reaffirmed BurnhamExceptions: immunity for witness to trial; officers of a company (except if partner), induced by fraud or force, limited appearances.

2. Domicile

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Even if ∆ not present, domicile will give rise to IPJ. Milliken v. Meyer. Presume no inconvenience to ∆; strong State interest; ∆ has influence over political process; purposeful availment of forum gives rise to reciprocal duties.

3. ConsentAppearance before Court: Whenever a party to suit - π or ∆ - appears before the court without challenging J, is accepting IPJ. Means that a π will be open to countersuit by ∆, even if otherwise no IPJ over π.Statutes can presume consent: Hess, if you drive into MA and have an accident you consent to IPJ in MA. Choice-of-forum clauses: Carnival Cruise, after Shaffer, deemed OK because of bargaining power and purposeful availment. Still look for minimum contacts here.Status relationships – husband/wife

B. Change to Due Process AnalysisInternational Shoe: Overturns Pennoyer bc it didn’t work well for corporations. The question centers around DPC if a company has submitted themselves to state’s authority. Modern doctrine: Same as old, but also personal J if D has minimum contacts and doesn’t offend ‘traditional notions of fair play’.Rationale: D must take the bitter and the sweet of operating in another state and can be hailed into ct for claims arising out his activities there

C. Minimum Contacts TestMust prove 3 elements

Contact

Satellite - No; Transmission – Maybe soArising out of Contact

Satellite – Still no; Transmission - Yes

Reasonableness & Fairness considerations (After deliberate contact est.)

a. Burden on Defendant

fact-driven test. Assume that foreigners esp. burdened by appearance in US forum. Any evidence of contact with State argues against inconvenience.

Financial resources available?

c. Interest of Forum State

Look for manifest interest; assume state interest if π is a State resident.

d. Plaintiff Interest in Relief

e. Serve interstate efficiency/policy interests

f. Convenience and location of evidence/witnesses

DISSENT: The bar for J shouldn’t be so high.

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Insulates firms from being sued

Foreign firms don’t think in terms of the CA mrkt but generally of US mrkt Specific J- arising out of D’s voluntary relation to state; based on single act or continuous but limited contact

a. Purposeful Availment - (Hanson)

“purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws”

Ex: uses state public benefits, doing business or advertising in state, owns property/residence, NOT moving and dieing to another state

Ex: Entering contracts even w/o entering the other state, bolstered by choice of law in contract (Burger King)

c. Arises out of:

But for test (claim does not arise but for contact) v evidence test (contact proves elements of underlying claim)

Contract Cases: not necessarily subject to PJ if in contract w/ a P in different state. (Burger King)

Factors: where negotiated occurred/were directed toward, provisions for (choice of law, forum), obligations created in fourm

Effects test: don’t have to have physical connection, just availing themselves or targeting the forum state

Ex: libel suit in CA for magazine circulated in CA against writer/editor in FL (the more directed and intentional action, the stronger the claim for jurisdiction) (Calder)

Having children in the forum state is not, in itself, enough.

Zippo Test (Internet)

Passive websites – no interactivity with users – no jurisdiction

Active websites – high interactivity (ie. sales) – yes jurisdiction

In between – judgment call (have to see how interactive the site is)b. Products - Stream of Commerce (Asahi)

If one could foresee a product ending up in a state. You could be sued there. (Gray)

P's UNILATERAL DECISION to take a product to a distant state, without more, is insufficient to confer personal jurisdiction

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Ex: No juris. over NY car dealer for accident of their car in OK. (World-wide Volkswagen)

Two Methods of Analysis: Conduct v Regular Flow

Conduct (O’Connor - Asahi)

D’s conduct/connection must be such that he would expect to be sued there. Not merely foreseeable that one of his products would end up there.

Ex: Component mfg not necessarily liable wherever components end up. (Asahi)

Specifically target a mrkt (Plus Factors)

Adaptation for specific market

State-specific advertising

Direct activity in state

Foreign mfg? # of Intermediary?

Ex: Machine from Britain but sold thru indep. firm (McIntyre)

Regular Flow (Brennan – Asahi)

Volume of Sales? Hazardous nature?

Part of the regular anticipated flow not eddy, isolated occuranceGeneral J – P’s claim doesn’t arise out of D's contact with the forum, but D has continual presence in forum

Systematic and continuous contacts with the forum. Such a level of purposeful availment that ∆ should reasonably expect to be sued there for anything, ie, resembles home stateEx: A store/office, can sue Walmart anywhere bc it has a store in every state. Or in-state agent required by stateEx: Not continual business transactions, CA firm conducting regualr business in MA. No Gen J

No Contacts (No J) < Casual, Sporadic (No J) < Single Purposeful Act (Spec J) < Continuous, Limited (Spec J) < Substantial, Pervasive (Gen J)D. In Rem & Quasi-in-Rem (1) and (2)1. Before Shaffer v. Heitner

Before Shaffer, in rem, and quasi-in-rem types 1 and 2, were both permissable, as long as the ∆ had property in the forum state.a. In rem:

The interests of the whole world in property; quieting title to property, settle an estate. b. Quasi-in-Rem

Relative between two litigants

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i. QIR Type 1

Dispute over who has superior interest in a specific property. Ex: my bike or yours?

ii. QIR type 2

Dispute not over ownership of property, but to settle a separate claim. P holds property ‘hostage’. Ex: you owe me 5 bucks. that sandwich is mine.

2. Shaffer v. HeitnerFacts of Shaffer; shareholder derivative action, sought DE J over non-resident corporate directors on the sole basis of their stock in DE corporation.Held: in quasi-in-rem actions, the Int. Shoe minimum contacts test must be applied, as all actions against property are really about people. Arguments that DE law should control are not enough for J; only enough for choice of law.

3. After Shaffera. In Rem: No real change

When the claim relates directly to the whole world's interest in in-state property, it is likely that state will have IPJ. Property will be looked at as one contact, and as an indication that there may be other contacts. Will probably point to both a state interest and purposeful availment.

b. Quasi-in-Rem: Change

Both forms of QIR must comply with the International Shoe due process analysis. In practice, it will now be extremely hard to assert QIR type 2; but, since property in type 1 is related to the suit, then it will considered a contact and will point toward finding J.

Tested in Rush v. Savchuk. Car accident connected to IL, suit barred in IL; π moves to MN, sues in MN and asserts QIR by attaching ∆'s insurance policy, owned by a co. with business in MN. Held: the insurance policy was not actually the substance of the claim; asserting QIR violated due process analysis mandated by Int. Shoe and Shaffer.

Limited opening for QIR through FRCP Rule 4(n), in that federal government can seize property without IPJ if need to for compelling public interest, safety.

c. Effects of Shaffer on other justifications for IPJ

Consent, Appearance still OK.

Transient J still OK; Burnham. However, only a plurality decision. Future unclear. Is transient OK because of tradition or because it signals purposeful availment?

DE passed statutes requiring in-state agent2. Limited Appearance

Appear for purposes of defending self on the merits in an in rem or quasi in rem suit, you are immune from any other suit, and your exposure is limited to the value of the property. You are not challenging J, just limiting your appearance to the specific claim involving your property.

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This was not available in DE at time of Shaffer; part of the injustice that led to the holding?Do we still need limited appearances now that QIR is subjected to a due process analysis?

F. Methods of Challenging JurisdictionDirect Attack

Special Apearance: Some states allow D to contest personal J onlyFed Rules (Some states): allow D to MtD (12b2) in reply along with other motions. But must motion at the start or else waives right

AppealsIn feds and most states, cannot appeal personal jurisdiction until final judgment; some states allow interlocutory

Collateral AttackWait for default judgment then raise personal J on enforcement. Waives defense in original suit and can only raise jurisdiction issue

FEDERAL V STATE A. Concurrent JurisdictionA state ct can hear federal claims unless Congress has mandated exclusive juris. **Fed ct can hear state claims if they have subject matter juris from diversity and supplemental

VenueOnce the federal courts have jurisdiction, in which courthouse will the case be heard?Not constitutionally based; purely a creature of statute. Protects ∆ from inconvenience, promotes efficiency.State venue statutes not our concern; very permissive, generally a state claim can be heard in almost any state district, unless it involves real estate, if so will be heard where the property is located.

A. 28 USC §1391: Venue Generally(a) A civil action wherein jurisdiction is founded only on diversity of citizenship (1 )where any D resides if all Ds in the same state(2) where a “substantial part of the events" giving rise to claim occurred, or where the property in question is situated.

as long as what happened in the forum was an important part of the sequence of events giving rise to the case, venue was proper.

(3) If there is no such district, venue OK in district where ANY ∆ is subject to personal jurisdictionEx: CO sues VA and MA for accident in IL. Venue only proper in ILIf accident in Canada, then no venue. Use fallback provision anywhere VA or MA is subject to PJ.

(b) Federal Question Actions(1) Same(2) Same(3) If there is no district, venue is proper where ANY ∆ "may be found."

What does this mean? Unclear. Probably meant to be a more permissive standard than residence. Rules for corporations are the same.

(c) CorporationsResides in every federal district of the state where it would be subject to personal juris

B. Specialized Venue28 USC § 1402 – Tort claims against govt can be brought where the plaintiff resides or where incident occurred28 USC 1400(a) – Copyright and Patent Infringement

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C. Transfer of venue (not for remanding to state ct)28 USC §1404: Change of Venue (Original Venue Proper) (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other districtor division where it might have been brought.“might have been brought” = if originally filed in the transfer court, it would have been proper and exercised personal and subject matter juris. No post hoc “I would have granted/waived personal juris”P’s choice should rarely be disturbed UNLESS forum would establish oppressiveness and vexation to D out of all proportion to P’s convenience (Gulf Oil)Balancing Test

P’s choice (Greatest weight)? Burden on D? Where claim arose?Convenience of witnesses/ access to evidence? (Strong)Public Interests: congestion of cts, local interest in deciding, familiarity with transferor ct’s law?

Choice of lawIf transfer granted, the law of the transferror court travels with the suit. Van Dusen.Rationale: since venue was proper, π should not suffer a loss of advantageous law if transfer granted for ∆ convenience.

28 USC §1406: Cure or waiver (Original Venue Improper)If case was not brought in the proper venue, court may dismiss the claim or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.Court considers: whether statute of limitations has run, convenience of transferThe case will then be judged by the law governing the transferee court.

D. Dismissals28 USC 1406 + 12(b)(3)Forum non conveniens (Common Law)

While we allow π to choose forum, this can be overcome if a balance of interests points to an alternative convenient forum. Piper v. Reyno.Used primarily in cases with foreign D.

1) An available alternative forum available? Necessary prerequisite. Defendant has burden to show that it can be refiled there.2) Balancing Test: Same as 1404 but more reluctant and consider choice of law factors more closely

P’s forum choice accorded less deference if not from forumChoice of law: will have to apply foreign law?Does foreign law r forum offer adequate remedy? Can only consider this question in a limited fashion; can't have a mini-trial on how case would be decided under foreign law.

Notice

Guiding Principle: Ensuring the Opportunity to be Heard

A. Service of Process – FRCP Rule 4 (a) - Contents of the summons(c)(1) - What documents must be served (complaint and summons)(c)(2) - Any person over 18 and not a party can make service(d) - How to solicit waiver of service

Creates a duty to waive, ct can impose costs if not waived, offers 60 days rather than 20 to reply(e)-(j) - How the papers must be served (e): five methods for serving process on individuals

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Rule 4(e)(1) - follow state provisions in forum state OR state where D is Ex: Follow CO rules if filed there or MA rules if D is there

4(e)(2): serving individualsPersonal delivery to DLeaving copy of summons/complaint at his dwelling/usual place of abode with a person of a suitable age and discretion residing thereinDelivering papers to an agent appointed by D for that purpose

(h)(1): serving corporations inside the USService to an officer, managing or general agent of D, or an agent authorized to receive itOne of methods prescribed in 4(e)(1)

(k) – How to establish Fed J4(k)(1)(A): Long Arm Statute4(k)(1)(B): "100-mile bulge"

if party necessary for suit under rules 14 and 19, can be served if IPJ could be obtained within a 100-mile radius of courthouse; do a standard IPJ minimum contacts test between party and bulge;

4(k)(1)(C): Interpleader (nationwide service allowed)4(k)(1)(D) Specific federal statute (congress can specify IPJ whenever it passes a new law.)4(l) – How to prove service (affidavit)(m) – How long given to serve (w/in 120 days of filing)

B. Notice: A Constitutional Req (DPC)Requires P to attempt notice "reasonably calculated to reach parties"If parties are known, serious efforts necessary and the means employed “must be such as one desirous of actually informing the absentee”

Ex: If sent a letter, but see car hit mailman. Then you must still try again although first was a valid attemptAll reasonable steps under the circumstances.

Actual notice will not cure a flawed notice mechanism;if π publishes when should have sent a letter, and ∆ accidentally sees notice, it is still insufficient.

But actual notice not always necessaryHeroic efforts are not required.Sometimes all the parties who are or may be affected by a suit cannot be known or located, you can still bring the suit without actual notice. Mullane.However, you still must make reasonable efforts to find out who the parties are and if they can easily be reached.As last resort, notice by publication would be OK.

3. Pre-Judgment Remediesa. Prejudgment remedies which allow state-sponsored seizure of ∆ property are subject to due process requirements.

Absent an emergency, such seizure cannot be made on the naked claim by π that she is entitled to the property.

b. Notice is illusory without an opportunity to be heard.There must be real, immediate and fair opportunities for the ∆ to challenge the seizure of property.

c. Factors to be weighed:i. Hearing

Provision for a pre-deprivation or post-deprivation hearing. Unfair to put burden of reclaiming property on ∆; a post-deprivation hearing may be OK if it kicks in automatically after the seizure.

ii. security or bondDoes π have to post a bond to effect seizure?

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Does ∆ have to post a bond to regain property?iii. Double bond

If the taking is erroneous, will π have to pay double damages?iv. Documentary Proof

What does π have to show to effect seizure? Unpaid bills, forfeitures, etc.? Able to show a systematic nonpayment, or only one missed payment? Who will judge this proof - a clerk or a judge?

d. Interests at stakei. For ∆

Temporary enjoyment of propertyinterest in avoiding permanent deprivationDignity interest

ii. For πfear of vanishing assets if not seizedπ may also have a property interest, esp. if an installment planin rem J: without the seizure, π will have no remedy

iii. For societyProper use of court resources: don't want frivolous or harassing seizures enforced by the StateWant to discourage self-help and make sure proper seizures are done by State and not by vigilantesInterest in encouraging installment plans, credit, etc. by giving creditors and merchants a remedyinterest in citizens not being erroneously deprived of their property

Pleading

A. Guiding PrinciplesDeveloped from technical/formalistic English sytem

Writ System – process down to a single issue Law and Equity – distinction b/w types of remedyCode Pleading – fact pleadingFRCP – notice pleading

FRCP merged law and equity into one ‘civil action’Purpose of pleadings changed from categorizing complaint by type of case to:

providing notice to the other parties, not game of skillidentifying factual allegations and legal theoriesnarrowing issuessifting through non-meritorious suits

Responsive Pleadings (Rule 7(a)): D must answer complaintP must answer counterclaimCo-D must answer cross-claim3rd pary D must answer 3rd party complaintAllegations must simple, concise, direct. No technical form requiredForms in FRCP are simpleConley: Complaint should not be dismissed unless P can prove "no set of facts" in support of the claim that would entitle him to reliefTwombly Iqbal Test:Retired Conley

S.Ct viewed this standard as overly permissive, as it permitted a P to proceed to discovery on a frivolous claim

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D has a rt to logically coherent theory of liabilityCritique: Moves toward more fact pleading

New Step 1: Subtract out conclusory allegations Statements so generic they could be cut and pasted into any fact patternNo recital fo the elements of the cause of actionCritique: P doesn’t have enough info often to make more than conclusory allegations

Step 2: Treat remaining well-pleaded facts as true Step 3: Draw all only ‘plausible’ inferences

Conley used to draw all reasonable inferences in favor of the pleader. Now it must have "enough facts to state a claim to relief that nudges it across the line from "conceivable to plausible”

50/50 allegations that could support innocence or guilt go to the D This is context-specific and judges decideCritique: Judges asked to rely/use their judgment more (ie, background/exp). Conceivable/plausible line is very blurry and shifting

For Ps: Must now err on the side of fact pleading, avoiding bare bones recitations of the elements and must address each element of a claim

For Ds: Use 12b6 MtD for failure to state a claim more often, targeting conclusory allegations

B. The Complaint – Rule 8(a)(1) Statement of the grounds of jurisdiction(2) Short and plain statement of the claim on which relief can be granted

Assert alternative legal theories and basesRule 9(b) For allegations of fraud/mistake: requires more particularity of circumstances

Other than fraud/mistake no heightened std (3) Demand for relief

C. The ResponseD can make pre-answer 12b motion or include motions in answer, else they are waivedAnswers and motions are held under similar std as complaint; must contain more than recitations, conclusory stmts, bare bones stmtsCannot reserve the rt to make defenses and motions later

Default Judgment (Do nothing) - Rule 551) Default entered into the clerk.

D essentially admits the facts of pleadingsDamages must be fixed before a default judgment

2) Judge reviews whether P has a cause of action in complaintDefault is not mandatory. Ct has discretion to decine to enter judgment 55(c) default can be set aside for good cause

Answer - Rule 8(b)-(c)Fairly responds to the substance of allegations by admit or deny

Can deny in part or generally everythingA denial may also be based on the D's lack of knowledge or information sufficient to form a belief about the truth of an allegationA failure to deny an allegation is treated as an admission.

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Cannot ‘wait behind a log” with new defenses Ingraham. Although D can ask to amend answerAssert affirmative defenses

(c)’s list is examplary not exhaustiveMotions – Rule 1212(a)12(b)

D can always raise SMJ at any time. D can raise B6 and B7 for first time at any point of the trial(1) SMJ(2) PJ(3) Improper Venue(4) Insufficent Process(5) Insufficient Service of Process(6) Failure to state a claim

Ct looks at the four corners of the complaint, ie, only the well-pleaded allegatoins and doesn’t look at materials outside or add’l evidence brought inIf D introduces more material, then converts into a 56 SumJ

(7) Failure to join an indispensable party12(e) – Motion for a more definitive statement12(f) – Motion to Strike insufficient defensedisfavored by Ct for Ds.

12(g)(2) - Omnibus Rule (prevents serial presentation)Must include 12(b)(2)-(5), (e), (f) that are available in first response or else they are waivedAvialability depends on the content of the initial pleading; more can become available after amendments, discoveryCannot reserve the rt to bring up later

12(h) – Waiver (trap)Omitting like in 12g2Failing to make it by motion or include in responsive pleading

Counterclaims

D. Representations to the Court; SanctionsRule 11(a) – every pleading/etc must be signedRule 11(b) – attorney certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable (1) not suing for improper purpose(2) claims are warranted by existing law/nonfrivolous(3) factual contentions have evidentiary support(4) denials are warranted on the evidence

Rule 11(c) – Sanctions for violations of 11(b)

Amending Pleadings – Rule 15(a) Before Trial(1) As a matter of right(A) Can amend complaint/answer w/in 21 days of serving(B) if the pleading is one to which a responsie pleading is required or is a 12(b,e,f) motion, 21 days after service of a it(2) Can amend only with consent of other party or leave of ct. (if justice requires)Foman v Davis: court should freely give leave when justice so requires

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Liberal at start and less liberal as time goes onConsider why P/D needs amendment: it will not be granted in cases of:

Bad faith? Delay tactic, manipulation?

Lack of diligence, eg, Aquaslide multiple people checked waterslide

Undue prejudice for lateness, ie, inability to prepare to defend

Futile amend? analyzed like 12b6, ie, Twombly

Prior amends, ie, could have done earlierJudge must ‘abuse discretion’ to appeal amend.(b) During and After Trial

(1) Based on an Objectin at Trialused when new evidence at trial not w/in scope of original pleading

(2) For issues tried by Consent(c) Relation back (mainly for SOL problems)

(1) An amend. relates back to the date of original pleading when:(A) the law that created claim allows relation back(B) amend. asserts a new claim/defense that arose out of the transaction described in original pleading

Must be careful bc transaction may feel the same but if it requires new defense/evidence it doesn’t qualify.Ex: Failure to gain consent PRE operation; not same transaction as negligence POST operation Moore v Baker

(C) the amend changes the party (names a new D)

must be of same transaction

received notice w/in Rule 4(m) 120 days of service of the original party

knew or should have known that the action would have been brought against it but for a mistake

Joinder

Guiding PrinciplesEfficiency: get everything settled at once, no wasted litgation over what is related to the same transactionIf claims are completely unrelated and would confuse matters, Rule 42(b) allows ct to order separate trials or Rule 21 allows ct to sever claims

Rule 20(b)

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

Rule 42(b)

For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.

Joinder follows very liberal principles

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P: more Ps make stronger story, strong Ps carry weak, evidence of pattern, inflame jury’s sense of justiceD: divide and conquer, attack weak cases, increase costs for PsD must show interests of justice would be disserved by joinderAppeals must show abuse of discretionJoinder doesn’t confer SMJ or IPJ, they be must analyzed separately for each party and claim.Claim Preclusion/Res judicata - P can’t bring later suit for something that could have been joined to the first one; creates potential mandatory assertion of related claimsTransaction or Occurrence Test:Issues of fact and law largely the same?Res judicata bar subsequent suit?Will same evidence substantially support/refute?Logical relationship?The test focuses on the underlying events not the legal theory or type of relief sought

Who can be parties? – Rule 1717(a)(3) – joinder for real party in interest17(b) – capacity to be sued is determined by law of the state…17(c) – minors

Joinder of parties – Rule 19 & 20. Permissive Joinder - Rule 20(a)(1) Multiple Ps can join together

2 prong test (relief/recover sought is irrelevant)

arise out of same transaction?

common question of LAW or FACT?

Ex: Hohlbein v. Heritage

13(h) D1 can add D2 in a counterclaim(2) Multiple Ds can be joined together

sued jointly, severally, or in the alternative2 prong test

Required Joinder - Rule 19 (ct can order person who refuses to be made a party to join as D or involuntary P)

1) Is joinder required?Yes

if ct can’t accord complete relief w/o them

if absent party’s ability to protect their interests will be impaired

if D could be subject to inconsistent obligations2) Is joinder feasible?

Yes

If subject to service of process

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If SMJ (diversity) will not be destroyedNo

Then Ct must determine if the action should proceed or be dismissed, considering:

Prejudice agst absent party?

Can absent party be protected by shaping relief, provisions, etc?

Will judgment be consistent/adequate?

Will P have adequate remedy if dismissed?

Other forum available?

Joinder of Claims – Rule 13 & 18Parties can assert as many claims as they want against each other. If they are adversaries, they must assert all claims related to the same transaction, but crossclaims are not compulsory. A new claim unrelated to original transaction then requires Rule 13 compulsory claims.

Rule 18(a) a party asserting a claim/counter/cross/3rd party may join as many independent/alternative claims as it has against P/D

Ex: (b) May join two claims even if they are contingent on the disposition of the otherRule 13 (Counter/Claim Claims)(a) Complusory – must assert if at the time of service the claim arises out of the transaction and doesn’t require adding another party(2) Check for exceptions(b) Permissive – may assert any counterclaim that is not complusory(g) Crossclaims – optional but must arise out of the transaction or occurrence or indemnification(h) – D can join other D’s under the same rules as 19/20

Confluence of 18/13 and 20/19Once one claim is properly asserted, Rule 18 allows assertion of more claims. So Ps can add different unrelated claims after they share a properly asserted claim together

Impleader – Rule 14Prevents P from choosing who the blame falls on. But Impleader doesn’t destroy diversity of original claim and isnt consider for venue

Allows D to add a ‘3rd party’ where D is seeking to pass on all/part of liability (not substitute/alternative D) - 14(a)(1)Ex: Indemnification, contribution3rd party must assert 12b defenses for P’s claim and/or D’s liability claim and assert all other claims required by Rule 13 – 14(a)(2)3rd party may likewise add add’l 3rd parties – 14(a)(5)P can bring in 3rd parties that a D could have – 14(b)Factor to Consider for Impleading (Erkins v Case Power)Timeliness of the motion

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Potential for complicating trialProbability of delayWhether P is prejudiced by addition of 3rd parties

Intervention – Rule 24Ex: RR was forced to close down certain tracks. Ford needed tracks for operation of its plants. (often to block a settlement)Used in large ‘public law litigation’, eg, challenging logging practices where Sierra Club sues US and logging firms have stake

Intervention of Right – 24(a)1) Granted unconditionally by Federal Statute2) Applicant has interest in transaction/property

disposition will impair his ability to protect interestno party can adequately represent his interest

Permissive Intervention – 24(b)1) Granted conditionally by Federal Statute2) shares a claim or defense with a common question of law (doesn’t require same transaction)Factors to ConsiderTimeliness in proceedings, purpose of intervention, prejudice to existing parties

Interpleader – 28 USC 1335 or Rule 22designed to protect persons in possession of property (stakeholders) the ownership of which is or may be claimed by more than one partyresolve at one time the claims of many persons to one piece of property and avoid inconsistent obligationspie-slicing interpleader = protection from multiple claimants who must split the money held by holder 28 USC § 1335 (a) DCourts have original J of interpleader cases if amount at stake is more than $500

(1) must be two or more claimants who satisfy diversity in 1332. Need only minimal diversity not complete

(2) must put property into the registry of the court or put bond in the court28 USC § 2361 provides nationwide personal jurisdiction and nationwide service of process28 USC § 1397 special venue statute

Rule 22 Normal 1332 rules (complete diversity b/w holder and claimants/ $75000)Normal personal jurisdiction rules apply

Class Actions

Guiding PrinciplesDPC protects P (ex: Burke v Kleiman)adequate representation

no backdoor dealingsimilar interests

properly considered a class wanting same thingprocedures that insure full and fair trial

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must follow appropriate class action proceduresImplcit requirements: must define class and the class claims, issues, or defensesMembership ‘capable of ascertainment under some objective std’ – In Re Teflon ProductsCannot be speculative or need add’l evidenceCannot proceed if impossible to tell who is in the classClass must be certified first in order to proceed in their suitCan bind out of state class members Phillips Petroleum Co.

A. How to qualify as a class?Prerequisites – Rule 23(a)Numerosity: Parties so numerous joinder is impracticableCommonality: Questions of law or fact common to the classTypicality: Claims or defenses of the representative Ps are typical of the class

Generally established if the same event or same legal theoryNo if individualized inquiry is necessary, no economy is achievedCan differ based on remedy sought

Adequacy: Representative Ps will fairly and adequately protect the interests of the classIf conflicting interests then automatically no representation Hanberry v LeePs cannot be in cahoots with D

Types of Class Actions – Rule 23(b)Prejudice

inconsistent adjudicaitons for the Dif piecemeal adjudication would impair Ps to protect their interest, eg, limited fund (must be really limited)

Injunctive ReliefInjunctive relief is appropriate with regard to the class as a whole, ie, D’s general conduct impacts all the class, eg, discrimination.

Cohesiveness? (bound together by a common trait, legal relationship)

Money only incidentalDamages (Catch-all)

Common questions of law or fact of group predominate and class action is superior method (Predominance + Superiority)

Predominating common questionRequires same proof or same legal theory (In Re Teflon) Yes. Does Teflon cause harmNo.

Not precluded even if individual proof of damages required?As long as allocation of individualized damages isn’t unmanageable?Mutual InterestResolution of one issue would advance litigation for allCommon q is part/central to all member’s claims

Superior to other methods (3)

A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

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(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Walmart discrimination

B. How to certify?Must certify early – 23(c)(1)(A)Must define the class – 23(c)(1)(B)Notice 23(c)(2)

For type B1 and B2 classes, ct may direct appropriate noticeFor B3, best notice that is practicable, including individual notice to those who can be identified. Notice must clearly state:

Nature of action, definition of the class, claims, issues, defenses, etc, how to opt out

C. Will Ct have Jurisdiction?Fed Q – normal rules applyDiversity 1332: if one P’s claim exceed $75,000 and diverse include rest under Supp J if same transaction. Exxon Mobil1332(d) (CAFA of 2005)

1) At least 100 members (d)(5)(B) – Mass action2) Aggregated amount must exceed $5,000,000 (d)(6)3) Any P is citizen of different state than D

Also, P is foreign and D is citizen or vice versaCt must decline if:

Home State: More than 2/3 of Ps from forum state

Local Controversy:

One D’s conduct forms a significant basis for relief

Principal injuries occurred in forum stateCt may decline if:

1) 1/3 to 2/3 of Ps are from the forum state

2) Primary Ds are from the forum state

Considerations

National/interstate interest?

Choice of Law?

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Pleaded in a manner to avoid Fed J?

Distinct nexus b/w Ps, Ds, or harm and the forum state? (Ex: oil spill)

One group of Ps dominate or balanced across multiple states?

D. How does Ct appoint class counsel? – 23(g)Ct that certifies must appoint counselConsider: current counsel’s legwork, previous exp/knowledge, resources

Ct may award reasonable atty’s fees - 23(h)

E. Class Action Judgments - 23(c)(3)

F. Settlement, Voluntary Dismissal - 23(e)Direct notice of settlement to all membersCt can only approve after a hearing on fairness, reasonableness, adequacy? Considerations: Synfuel v DHL

Strength of P’s casesAmount offeredExpense of litigationAny P’s opposedStage of proceedingsType of offer. Do not like inkind/coupon offersDisgorge ill-gotten gains? Benefits actual Ps rather than future customers?

Parties must identify any agreement made in connection with settlement. No foul play? Sweetheart settlement?Need a second chance at opt outAny P can object to settlement

Discovery

Scope of DiscoveryWhat? – 26(b)May obtain discovery that is relevant to any party’s claim or defenseIs nonpriviligedDoesn’t have to be admissable at trial, only appears reasonably calculated to lead to discovery of admissable evidence

Controls on discoveryTrial ct in best position to judge; subject to review of abuse of discretion; Chudasama v MazdaParties have lots of power to consent and negotiate terms fo discovery

26(b)(1) for good cause, court may order discovery of any matter relevantOn motion or sua sponte, Ct must limit frequency and extent of discovery if: 26(b)(2)(C)Unreasonably cumulativeMore convenient/less burdensome sourceHad ample opportunityBurden of discovery outweighs benefitE-Discovery: no undue or burdensome for unless good cause- 26(b)(2)(B)Ct can undertake a cost/benefit analysis; McPeek v. Ashcroft where DOJ had backup files P wanted and court let search limited number to see how useful they were first

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Info Protected from DiscoveryPrivileged Materials

P/D must expresslymake the claim of privilege – 26(b)(5)Lawyer Client PrivilegeLawyer Work Privivege 26(b)(3)(A)

Conditional privilege: if party has substantial showing of necessity or justification. Ex: Hickman and early deposition of witnesses

Absolute privilege: writings reflecting atty’s impressions, conclusions, opinions, legal research, legal theories

Protective Orders – 26(c)Partyies must confer in good faith to resolve prior to seekingCt may grant for annoyance, embarrassment, oppression, undue burden/expense

Must compare the hardship to the each opposing party. Consider the possibility of a crafted orderTypes (A-H)

Complete protection

Specify terms/conditions for discovery

Limit scope of discoveryUnduly burdensome26(b)(2)(b)26(g) Effect of Signature on Disclosures and RequestsMust make reasonable inquiry and answer to the best one’s knowledgeMade in good faith, not for improper purpose26g sanctions for violations can be imposed by court of its own will26(e) Supplement answers = P/D must include enough info to make answers complete and correctRule 37a - Compel DiscoveryCt must rule on MtD bc might not need discoveryP/D must demonstrate need and inability to obtain w/o undue hardshipP/D must certify made a good faith attempt to congerIf still noncompliant; may order sanctions – Rule 37b

Sanctions must be just

Include orders deeming specified facts to be established

Striking or dismissing claims or defenses

Entering default judgment

Court has broad discretionBad strategy: don’t want to wake up the judge

ExpertsGeneral

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Can give testimony including opinions not related to their observations (coming in after the fact and reviewing something)Paid by whichever side they are testifying forMust be qualified by voir dire process (exam of qualifications)ProblemsExpense (reports of $500/hr) Access (“conspiracies of silence”? Plenty seem to be available) Overuse (too many involved – raised cost of litigation) Reliability (hired by parties, so is their testimony defensible? – not objective) Quality (do good experts participate?)TypesWitness; Non-testifying; Testifying

THE PROCESSFiling – Service – Pleading – 26f conference – 26a disclosures & 26f plan – 16b scheduling conferencePleading - Informal Investigation Required by Rule 11bTiming/ Sequence of Discovery – 26(d)A party may not seek discovery until 26(f) meet and conferParties can delay discovery w/ three buttons

Consent to delayCourt order

12b motions to dismiss can delay required disclosures Flores v PeruObjection in discovery plan

Discovery Conference – 26(f) (As soon as practicable or 21 days before scheduling conference)Changes to 26a disclosuresSequencing/ Time limitsE-discoveryConsent to override FRCP (eg more than 25 interrogatories)Claims/DefensesSettleRequired Disclosures – 26(a) (14 days after Discovery Conf.)Identify relevant individuals, witnesses/experts, materials/docs that P/D will support THEIR OWN claimComputation of DamagesInsurance agreements which may satisfy judgmentMust make disclosures based on info reasonably available

A party is not excused from making disclosures because it has not fully investigated the case or because it challenges the sufficiency of the another party’s disclosures - 26a1e

Rule 37(c)(1) self-executing sanction of disclosure not made then cannot use witness/evidence at trialScheduling Conference -16(b) (21 days after 26f and 7 days after 26a)Judge is presentMust have authorized representative present to make stipulations and admissionsThe purpose – 16(a)

Expediting disposition, establishing control, improving quality of preparation, facilitate settlement

Discretionary DiscoveryDepositions – Rule 28, 30-32 (On anybody)Must be before an officer – 28

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Usually ‘noticing’ other parties, by serving time, place, and method of deposition is sufficientDeponent can be compelled to attend under - Rule 45

This puts deponent w/in ct’s jurisdictionCan be compelled to bring documents – subpoena duces tecum

Oral – Rule 30Do not need leave of ct. to deposeExcept need leave of the court

If parties have not stipulated to the deposition and:

If more than 10 depos

Already been deposed

Seeks deposition too early (26d

If depo in prisonHow to give notice of Deposition - 30(b)Must note objectionsCan only last 1 day for 7 hoursDeponent can review and make changes

Written – Rule 31Use in Ct Proceedings – Rule 32

All or part of a deposition may be used against a party if:

Party was represented

Admissiabl under Rules of Evidence

To contradict or impeach testimony

The witness is not available

Dead

More than 100 miles away

Ill, infirm, in prison

Could not procure subpoenaInterrogatories - Rule 33 (On parties)Can serve any party w/ up to 25 written questionsMust be answered w/in 30 daysCan ask for opinionsMade under oath

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Option to produce business records - 33(d)If the answer may be determined by examining, auditing, a business record

Document Production – Rule 34 (On anybody)Must describe in request with reasonable particularityComply w/in 30 days Physical/Mental Examinations – Rule 35 (On parties)Must be directly relevant to cause of action; see Sacramona where D wanted HIV test for P to factor into life expectancy and future damages but court said noRequest for Admissions – Rule 36 (On parties)

Suggest SequenceRequired DisclosuresDepose Secondary WitnessesIssue Follow-up document requests and interrogatoriesDepose Key witnessesDepose the adverse partyIssue follow up requests to admitDepose expert witnesses Issue contention interrogatoriesIssue final, clean up discovery requests

Jury Trial and Alternatives

Voluntary Dismissal – Rule 41Reasons: fix problems with case, do more investigation, refile, avoid discoveryPlaintiff may dismiss an action without a court order by

Filing a notice of dismissal before opposing party serves either an answer or a motion for summary judgment.

Bright line test: If no answer or motion for SumJ, then dismissal is automatic; it is a notice

This is the point of no return tho

Ct can’t even rule on MtD, but may order the P to pay all or part of the costs of that previous action

Be careful: A 12b6 can be converted into a SumJ by 12d if add’l materials added.Stipulation of dismissal signed by all parties (For settlement)2 Dismissal Rule:The dismissal is without prejudice unless previously dismissed any federal or state-court action or if plaintiff stipulates its with prejudice

with a court orderOn terms that the court considers proper. If D has pleaded a counterclaim before being served with the plaintiff’s MtD, the action may be dismissed over the D’s objection only if the counterclaim can remain pending for independent adjudication

Involuntary dismissal - if the P fails to prosecute or to comply with these rules or a court order, a D may move to dismiss the action or any claim. (this will be with prejudice unless dismissal is for venue, juris., joinder)

Summary Judgment – Rule 56

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Purpose: Device to dispose of factually insufficient claims/defenses on the merits w/o trialProcess: Ct must decide whether the state of the evidence is such that, if the case were tried tomorrow, the non-moving party would have a fair chance of obtaining a verdict. PaluckiEffect: Previews/flushes out the evidence, a party may not rest upon the mere allegations or denials of his pleading but his response by affidavits or must set forth specific facts. Slaven v City of SalemConstitutional? Violates the core principles or "substance" of the English common lawTest: A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party”Fact-finder could only reach one conclusionAlthough all doubts and reasonable inferences are made in favor of non-movant, scintilla of evidence is insufficient.Be careful: evidence must admissable at trial; hearsay not admissableSumJ is a question of fact not of law. Judge must decide the law even it’s a close call. SumJ may still be appropriate but judge may need a trial for a better pictureCan be filed any time until 30 days after close of discovery – 56bMovant Burden: Must identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought – 56a

Ct shall grant if:

No genuine dispute as to any material fact and entitled to judgment as a matter of law

1) Must cite to particular parts of the record (depositions, affidavits, etc)

2) Show that materials establish the absence of a genuine dispute or show that other side cannot produce admissiable evidence to support fact 56c1b

Nonmovent burden: (contesting SumJ)1) Cite to the record and show materials establish a genuine dispute

An adverse party may not rest upon the mere allegations or denials of his pleadingShow separate inferences can be drawn

2) Object that the material cited to support a fact cannot be presented in an admissable form as evidence

3) Show the ct by affidavit or declartion that for specific reasons it can’t present facts essential to its oppositions – 56(d)The ct may defer/denyAllow time to obtain affidavit or take discoveryIssue any appropriate orderIf any party fails to properly support an assertion of fact, the ct mayGive opportunity to properly supportConsider the fact undisputedGrant summary judgmentCt’s decision

Steps of Analysis (Slaven)What is the substantive law?

Negligence? Duty to protect prisoner?What are the material facts?

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Duty? Should have know of suicidal tendency?

Not whether he wore beltWhat is in the evidence of record?

Affidavit of officerMoving party met burden?

Cite to recordNonmoving party met burden?Proper disposition

Ct can grant on grounds not raised by party or consider SumJ if material facts not genuinely in dispute 56(f)Ct may grant only partial SumJ 56(g)

Judgment as a Matter of Law – Rule 50A preliminary question for the judge whether there is an evidence upon which a jury can properly proceed to find a verdictWhen the evidence is overwhelmingly on one side then the court should give peremptory instructionHas the moving party carried their burden of proof?Proof of the Elements Motion

whoever will have burden of proof at trial of claim, typically the plaintiff, or affirmative defensePartial Summary Judgment Rule 56a authorizes sumj on part of a claim/defense

Disproof of the Elementsmust provide undisputed facts negating an essential of the non-moving party

Absence of Evidencedemonstrate there is no evidence of an essential element

50(a) Directed Verdict2 functions

notify non-moving party they haven’t carried their burden of proofdisposes of the case w/o having to proceed further for no reason

Motion must specify the judgment sought and the law and facts that entitle the movant to the judgment - 50(a)(2)When? After a party is fully heard

After P’s case or After D’s caseShall resolve the issue/grant the motion if:

a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issuegrant the motion if fails to carry burden on essential element

50(b) Renewed Motion for JMOL, a JNOV When?Must make 50(a) motion first before verdict

Have 28 days after verdict/entry of judgment to make motionWhat can judge decide? 50(b)

Allow judgment to standOrder a new trial Direct the verdict, contrary to verdict

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If ct grants JNOV, it must also cond’ly rule on any motion for new trial. (If directed verdict is successfully appealled) - 50(c)

If ct denies JNOV, appelle may ask for a new trial - 50(e)

Jury TrialsBackground7th Amend – In suits at common law, rt of jury trial preserve

Only applies to federal courts – not incorporated via 14th amendSixth Amend guarantees trial in criminal casesNo requirement to try a case before jury

Historical Test - SupC 1830 – preserves it as it existed in the courts of EnglandFRCP Regime: Merged courts of law and equityLaw

Subject: Torts, property, etc

Remedies: Money, return property

Procedures: Oral testimonyEquity

Subject: Trusts, corporate law, divorces, wills, etc

Remedies: Injunctive relief, declaratory accting

Procedures: Written evidence, judgesCutbacks on jury trial: adminstrative agencies, size of jury, directed verdics, summary judgmentThe right to jury trialTraditional legal claims - YESTraditional equitable claims - NOCombination of law/equity – Yes, mostly

Only under the most imperative circumstances, can the right to a jury trial of legal issues be lost through prior determination of equitable claims. Bacon Theatres

Which claims go first? =>Jury should goes firstParty must demand trial by jury - Rule 38Either side MAY demand w/in pleadings or until 14 days after

Must do so by filing and servingCan specify issues Waiver

Party waives unless its demand is properly servedCt may order a jury trial on any issue for which a jury may have been demanded – Rule 39(b)Ct can consolidate or separate trials –Rule 42Consolidate if common questions of law or factSeparate for convenience, avoid prejudice, economze

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Ct may grant a new trial – Rule 59for any reason for which a new trial has heretofore been granted

clearly erroneous, manifest injustice, definite and firm conviction of error3 Reasons

Weight of the evidence ErrorsProcess Errors - Error in jury conduct or deliberations

improper argument to jury

witness misconduct

jury misconduct

evidentiary errors

instructional errorNew Evidence

Remittitur – Ct offer to party where it has to choose between reduction of excessive verdict and a new trial

Harmless Error – Rule 61

Remedies and Post-Judgment

Relief from Judgment – Rule 60Granted seldomly for fraud, mistake, default judgmentsCt may correct a clerical mistake – 60(a)Party may seek relief from final judgment for: – 60(b)mistake, surprise, excusable neglectnewly discovered evidence that could not have been discovered in time for a 59bfraud (deliberately presenting perjury, paying off jurors, forging documents)judgment is void (default judgments with no notice or personal jurisdiction)satisfied, released, dischargedanything else

Stay of Proceedings – Rule 62Must wait 14 days after entry of judgment to executeExcept interlocutory/final judgmetns of injunctive reliefIf appeal is taken, may obtain stay with supersedeas bond (d)

Seizing Property/Person – Rule 64Every remedy is available that exists UNDER THE LAW OF THE STATE where court is located, provides for seizing person/property. But fed statute governs to the extent it appliesTypes

arrestattachment (seizing of a person's property to secure(ensure) a judgment or to be sold in satisfaction of a judgment)garnishment (order 3rd party, bailee to turn over debtor’s property)

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replevin (repossession of wrongfully taken by D, P gives security for and holds the property until the court decides who owns it- returning own property)sequestration (specific property removed from the possessor pending the outcome of a dispute over it)other equivalent remediesFuentes v Shevin: 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.”Post(Later) hearings, damage awards, bond requirements do not adequately protect D

Injunctions and Restraining Orders – Rule 65Purpose of injunction is preserve the relative positions of the parties until a trial on the merits can be heldA plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interestPreliminary Injunctionmay issue a prem. inj. only on notice to partymust have a hearing on a motionmay issue only if the movant gives security to pay the possible wrongful damagesTemporary Restraining Ordermay issue without notice to party only if

specific facts in an affidavit or complaint clearly show immediate and irreparable injury movant certifies in writing any efforts to give notice and the reasons why it should not be required

InjunctionsMust state reasons for being issuedState the termsDescribe in detail the act to be restrainedWho is bound?Those who receive ACTUAL noticePartiesParties’ officers, agents, etcOthers in active concert with parties

a nonparty with notice cannot be held in contempt until shown to be in concert or participation. It was error to enter the injunction against Hazeltine, without having made this determination in a proceeding to which Hazeltine was a party.

Execution – Rule 69Money judgment enforced by a writ of execution. Must accord with procedure of state and fed statute

Enforcing Judgment for a Specific Act – Rule 70 If a judgment requires a party to convey land, deliver deed, perform specific act and failure to comply, the court may order act to be done by another person appointed by the court

Declaratory Judgment – Rule 57Typically requested when a party is threatened with a lawsuit but the lawsuit has not yet been filedDeclares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a partyPower created in: 28 USC 2201 Creation of Remedy

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any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such

Judgment – Rule 54Judgment = a decree and any order from which an appeal lies. Not = recitals of pleadings, master’s report, a record of proceedingsCourt may direct entry of FINAL judgment for one or more claims/parties – if there is no just reason for delay. (These are appealable but claims must be separable) Any order or decision that decides fewer than all claims does not end the action, ie, other claims not appealable (Also, cannot break single claim into piecemeal final judgments, ie, into liability and remedy)Ct may grant relief to which parties are entitled even though they never asked for it 54(c)

Appeals – FRAP 3/4Guiding PrinciplesBurden is on aggrieved party to object to an error in the trial court and then to present and argue the error to the appellate courtReviewability: Three Ps

Prejudicial

A party cannot appeal from a judgment unless ‘aggrieved by it’

Harmless errors are disregarded that do not affect substantial rts -Rule 61 Preserved Below

Must make objection during trial, ie, making a record of it, must be sufficiently clear and timely

CtApp may consider things not objected to as abandoned

Ex: party cannot appeal trial court’s jury instruction unless the party previously objected - Rule 51d

Exceptions:

Party raises a pure questions of law and refusing to consider would result miscarriage of justice

Party didn’t have an opportunity to object

Interest of substantial justice is at stakePresented Above

Must include them in the brief

FRAP 28a9A – must contain contentions and the reasonsWhat/when can be appealed? (Finality Principle)

Final decision OF THE CASE.

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Ends the litigaton on the merits (ALL CLAIMS) and leaves nothiing for the trial court to do but execute judgment

Principle: raise all claims of error in a single appeal

usually requires that appeal be postponed till there has been a final decision

Policy:

No piecemeal, dilatory appeals: a party must ordinarily raise all claims of error in a single appeal folloing final judgment

Congestion, Duplication, Delay, Expense

Dcourt needs to be able to exercise its own discretion

Appellant is capable of vindication on appealGenerally not appealable

Discovery order, case managementCollateral Order Exceptions (Dcourt is done with the issue)

Order must involve issue essentially unrelated to the merits of the main dispute, capable of review without disrupting the main trial

A complete resolution of the issue possible

A right incapable of vindication on appeal from final judgment

An important and unsettled question of controlling lawSubject Matter Jurisdiction of Appellate Cts1) All FINAL decisions of the district courts (28 USC 1291)2) INTERLOCUTORY orders of the district courts granting/refusing injunctions (28 USC 1292)3) Discretionary review: if non-appealable order should be appealable (if it involves a controlling question of law where there is substantial debate and will help end the case). (d)Writs of MandamusIf the trial court makes outrageously bad decision, CtApp can order respondent to do his duty

No other means of reliefClear/indisputable rt to relief

The Appeal ProcessNotice

File within 30 days after final judgment Rule 4(a)

Or 30 days w/in the disposition of other motions

Ex: P files 59b motion for a new trial, P doesn’t have to file appeal until after its dispositionFile with the district court clerk

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Contents of the Notice

Must designate judgment or order apealling, the parties, name of the ctInitial Filings

Record, Statement of Issues, etcBriefs

Opening, Response, ReplyJoint Appendix

Oral ArgumentOpinionJudgment

Reversing, Vacating, DismissingStandard of ReviewStd depends on the comparative advantages of each trier:

Jury/trial judge have fresher/more candid view of the evidenceTrial judge has litigation and trial experienceCtApp has more collegial decision making

No Deference < De Novo < Clearly Erroneous < Abuse of Discretion < Reasonable Jury < Complete DeferenceDe Novo (Plenary) : For questions of law and mixed questions of law/fact

Ex: Whether a D’s acts constitute intentional discriminationPrinciple: CtApp advantage in deciding the law and promulgating uniformityMixed questions

Difficult judgment callsClearly Erroneous: For facts found by jduge

Ex: Findings prior to trial to rule on motions to dismiss Allow more deference to determinations of credibilityIf Dcourt’s account of the evidence is plausible, then the CtApp cannot reversePrinciple: CtApp is looking at a ‘cold record’ and doesn’t want to redecide everything

Abuse of Discretion: Discretionary OrdersEx: Case management, default judgment, new trial

Less deferential for default and new trialReasonable Jury: Jury Verdicts

Ex: appeals to JMOLsSame concept as genuine issue of material fact; evidence has to be so one-sided

Claim Preclusion

Guiding PrinciplesPurpose: Prevent parties from relitigating claims/issues in another caseFairness – One bite at the apple

Contradictory judgmentsRepetitive lawsutisPublic Confidence in the court systemEfficiency and Economy

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Repose (peace of mind)Full Faith and Credit Act requires federal cts to give the same preclusive effect to state court judgments as they would have in their home stateBut everyone derserves their day in court

Res judicata (Claim preclusion) – prevents parties from re-litigating claimsDetermine if valid, final judgmentValid: must have full opportunity to decide or been decided on the merits

On merits: Verdicts, SumJ, JMOL, DefaultJ, 12b6.Not on the merits if dismissed voluntarily, for IPJ, SMJ, venue, joinder

InvalidIf no IPJ, SMJ, or improper notice

But valid if issue was fully and fairly litigated, except if abuse of authorityFinality

Trial court entered judgmentIdentify if the same claim/cause of actionSame evidence test

if the evidence needed to sustain the second suit would have sustained the firstTransactional test

the assertion of different kinds of theories of relief still constitutes a single cause of action if a single group of operative facts give rise the the assertion

Policy: Encourages combining causes of action; supplemental juris (§ 1367) and joinder make it possible

Reduces likelihood of conflicting results

Promotes fairness

Fewer lawsuits

Critique: Overinclusive pleading, puts P at risk of omittingPrimary Rights Test

A separate claim for each right that the defendant has violatedIdentify if the same parties or in privitySame claimant, same respondent. Designation of P/D doesn’t matterNon-party Preclusion

P/d is not bound by a judgment in personam in a litigation in which they are not designated as a party or to which he has not made a party by service of process

Exceptions (involve either an express or implied legal relationship):

Consent to be bound by determination in action b/w others

Substantive Legal relationships, eg,

Guaranteed Adequate Representation

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fiduciary, guardian

New P had control of the old case

Proxy – old P has control of the new case

Special Statutory SchemesVirtual Representation (rejected bc it would lead to more headaches in applying balancing test)

This only applies to class actions

Procedural safeguards, ability to opt outExceptionsConsent to be sued againReserved rt to sue again bc claims were splitCouldn’t make claim in prior action due to joinder, jurisExplicitly permitted by statuteContinuing or recurrent harm for injuries that don’t manifest themselves till much later cancer, asbestosSome other extraordinary reason

Collateral estoppel (issue preclusion) – prevents parties from re-litigating issue that they previously litigated in another case

Issue in two lawsuits is the same, actually litigated in first, litigated full and fairly (confidence in the outcome, issue was decided, essential to the judgment of first and not gratuitousMuch broader exposure to preclusion bc the same issue might arise in the same or different claims in a whole new ‘transaction’Trial not necessary to be actually litigated; evidentiary hearing that results in MtD, SumJ, JMOL but no for DefaultJIssue was actually litigated with full and fair opportunityRstmt 2nd

1) Identical issues?- (Panniel) issue of causation was same 2) Actually litigated and decided with full and fair opportunity?3) Valid, final, on merits?

*Remember: partial SumJ under 54bare not final judgments bc they may be revised at any timeSpecific v general verdicts? – In gen. verdicts, must infer what issues were decided as a matter of logic

Ex: jury/arbitration usually don’t explain ruling4) Determination of the issue was essential to prior judgment?*Beware of gratuitous findings:(Cambria) P sued D; judge ruled both P/D were neg.; then D sued P and was not found neg; he was not precluded bc the finding in 1st trial was not essential. Since P’s contributory neg was dispositive, D’s neg may not have fully considered.

5) Same party/ privity?Exceptions – Was it really fully and fairly litigated?

No opportunity to appeal in case #1Question of law? – must be really different or been a change in the law. Change in procedures between #1 v #2 (don’t trust #1’s quality)

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(Panniel) evidentiary hearing over the foot amputation as proximate cause. Arbitration was skillfully managed and adequate

Change in burden of proof (if burden lower, may be able to proceed)Clear, convincing need for new determination

Public interest considerations? (Panniel) shouldn’t foist on 3rd party D’s the findings in separate arbitration that could undermine arbitration purpose and be unfair to 3rd partiesHurts 3rd partiesFurther suits not foreseeable (would not fight hard enough on first time)Enough incentive/opportunity in 1st? (Nichols) Not worth hiring a lawyer to claim malpractice; nor could he make the counterclaim in small claims court.

Non- Mutual Issue Preclusion (between different parties)Policy: Aura of the gaming table – consistency

Old adversarial approach: each person a chance to litigate and each case has different characterNew inquisitorial approach: we think we have the right answer already because we focus on deciding the important facts Defensive - a D seeks to prevent a P from relitigating an issue the P has previously litigated unsuccessfully

(Blonder-Tongue) - A sues B over patent validity, loses. A sues C but precluded from deciding validity.

Offensive - a P seeks to prevent a D from relitigating an issue (used with more caution, more criticized, less popular)

(Parklane Hosiery) – 1st, SEC sued D over misrepresentation to shareholders. Then, P sued. P estopped D from raising the issue of false statements. Didn’t violate rt to jury since fact was decided in other trialEncourages Plaintiff Shopping

pick the most sympathetic and best plaintiff and ride the successful judgment through issue preclusionJudge must use dsicretion to see if: unfair to D, same procedural opportunities available,inconsistent with other judgments.

Multi- P Anamoly

RR with 50 injured P’s. P’s sue RR for negligence. All other elements decided

RR not negligent in p1- p25. But loses p26. P’s can use issue preclusion to win rest of cases

This would be an instance of inconsistent judments and probably not able to invoke issue preclusion

Arbitration

Governed by FAA, 9 USC 1-11§ 1 Contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” are excluded from the Act's coverageThe exemptions in the FAA for employees involved in interstate commerce applies only to workers in transportation.§ 2 – A written provision in a contract to settle by arb, or agree to settle an existing controversy by arb. is valid, irrevocable, and enforceable; save upon such grounds as exist at law or in equity for the revocation of any contract.

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Emeronye v. Caci InternationalD 12b6’d P’s claims bc provision that accorded mandatory arbitration for employment disputesignorance … of its terms will not ordinarily affect the liability of such person under the contract

§ 4 – party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement may ask for court order(can be held in contempt and sanctions)§ 5. Appointment Of Arbitrators Or Umpire§ 9 Vacating an Arbitration judgmentcorruption, fraud, partiality, misconductwhere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. (no overturning just because it is wrong and got the law wrong)

Choice of Law: The Erie Doctrine

A. Historical Development: State claims in federal courtsSwift RegimeTheory: Legis makes law; cts interpret/apply law. state statutes few, common law plentiful; few court reporters, so out-of-staters would have a hard time knowing what the common law of a state was, and courts may have a similarly difficult timeState have statutes, local usages and adopted THE common law

Idea of natural law: since law was considered a stable and uniform set of knowledge, why should federal courts bow to the interpretations of state courts?

FedCt is bound only to apply the statutory law of the state in which the court is located but can form its own interpretation of THE common law

Promotes HORIZONTAL UNIFORMITY: from federal court to federal court, law will be substantially the same

Disagreements over THE common law Ok: if State ct says, common laws X and Fed ct says, common law says y. OK bc both look at the same sources, ie, the ‘outside’ law, eg, generally accepted but no official poker rules

Erie Regime: Respect state-created rts and obligationsSwift Critique:

Deprecated the authority of the states and inconsistent rulings in the states; undermines FederalismIllusion of uniformity

Fed interpretation didn’t tend to converge. There is no "natural law" or "federal common law"

Law is a policy statement by a sovreign state and the federal courts cannot infringe on that sovreign.Forum shopping

∆'s who "enjoyed the good fortune of diversity" could get a different decision in federal court than π may have anticipated in state court Gave them

Gave them tactical choices denied to in-state litigantsUnconst’l interpretation of RDA (believing it only applied to statutes and local usages was unconst’l)

New Foundation

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New statutory interpreation of RDA:

Federal courts sitting in diversity must apply the substantive law of the state in which the court is located, and the federal procedural law.

Policy Goals

Eliminate incentive for forum shopping

Inequitable administration of lawConstitution

No federal general common law bc Congress has not power to declare substantive rules

"The grant of diversity J does not confer power on the federal courts to develop substantial law; its power is procedural only." J. Brandeis.

Erie Guesses (FedCt applying unclear state law)Look to APPELLATE COURTS, dicta, trends, extrapolate principles, other states – similar, restatements, majority ruleCertify a question: some states have statutes authorizing fed courts to do soIf state law changes, the case will be reversed for retrialState SupC predictive approachIf FedCt is convinced that the state’s highest court would rule otherwise, ie, trend is clearly toward applying a new rule, fed court can rule differently

State’s choice of law rules (Klaxon)State choice-of-law statutes are substantial law, and therefore must be applied by federal courts in diversity.FedCt follows the conflicts law of the states in which they were sittingEx: Fed court in CO must ask “ what body of tort law would a CO state court apply if the P had sued there?”

Place of accident v law of the forum?BUT it encourages the forum shopping for choice of law between states

Ex: Jones from NY injured in FL at walmart storeChoice of Law StatutesFl lex loci FlNY most sig interest NYArk = Ark

If no Klaxon, then one choice of law rule for fedFL lex loci FlNY lex loci FlArk lex loci Fl

Determining lex loci? – Rstmt : look to the state where the last event neessary to make the actor liable for the alleged tort takes place**Remember: Tranferee Ct must apply transferor Ct law

Federal ‘Specific’ Common Law (US v Standard Oil)There is not a federal general common law but there is a federal specific common lawFed cts cannot rely on state laws because they will be self-serving

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EX: water disputes. Interstate pollution.Three Options for Novel QuestionsDefer to Congressional action (uniform)Creating Fed Common Law (uniform)

Consider policy implicationsBorrow state law

Adopt state law (non-uniform)

Substance v ProcedureKey statutes/constitutional laws

a. §34 of Federal Judiciary ActThe laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.”

b. REA §2702(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts… and courts of appeals.(b) Such rules shall not abridge, enlarge or modify any substantive right.

c. Rules of Decision ActThe ProgessionGuaranty Trust v. York: Outcome Determinative Test

Develops the "outcome determinative test"; if the state rule would change the outcome of the case, state rule will be applied.Policy concern: forum shopping/ inequitable administration of lawCritique: any rule could change the outcome of a case viewed retrospectively, no const’l prohibtion on using federal procedural rules

Byrd v. Blue Ridge: Countervailing Federal InterestOutcome determinative test must yield to countervailing federal interest which leads us to apply federal rule.Byrd balancing

1) Ascertain the policy of st approach and the policy of the fed approach

Ex: SC law requires determination of employee status to judge. Fed law requires jury to do decide

2) Weigh the strength of the competing purposes

Ex: SC may be accident of law. Fed is a const’l rt. (7th amend)Hanna v. Plumer: Direct conflict

Outcome determantive test in light of the twin aims of Erie: no forum shopping; no inequitable administration

Take more prospective look at divergence of law.

Erie rule has never been invoked to void a Federal Rule. Erie held that no Federal Rule covered the point of law

REA mandates FRCP and ∆ is supreme law of the land

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Must test the validity of the FRCP rules

Did Congress have the authority to enact or delegate the power, ie, could Cong have written 4d1?Harlan's concurrence: “Arguably procedural” test is too unclear;

State law should govern primary private activity

Determine whether the choice of rule would substantially affect those “primary decisions” respecting human conduct which our constitutional system leaves to state regulation

Walker v Armco: Avoiding Direct ConflictP sued D under OK law (summons must be served on D within 60 days to commence action) but P filed in Fed court within SOL and claimed timely under Fed Rule 3 (action is commenced at filing)No conflict of law:

No reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship.

Shady Grove: Modifying, enlarging, abridging a state rt?Medical provider brought putative class action against automobile insurer for, inter alia, a violation of New York law in failing to pay statutory interest penalties on overdue payments of insurance benefits

NY law- class action can’t recover for interest; Fed law- class action can.Substantive/procedural distinction over state law doesn’t matter. “In sum, it is not the substantive or procedural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the Federal Rule. We have held since Sibbach, and reaffirmed repeatedly, that the validity of a Federal Rule depends entirely upon whether it regulates procedure. If it does, it is authorizreed by § 2072 and is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights.”Rules Enabling Act, 28 U.S.C. § 2072, not Erie, controls the validity of a Federal Rule of Procedure.

A rule may incidentally affect a party's rights, it is valid so long as it regulates only the process for enforcing those rights, and not the rights themselves, the available remedies, or the rules of decision for adjudicating either

Dissent: State statute had a substantive purpose to avoid excessive imposition of penalties. Rule 23 can be interpreted more narrowly

Does Rule 23 ‘abridge, enlarge, or modify an substantive rt?

The test …is not whether the rule affects a litigant's substantive rights, since most procedural rules do; what matters is what the rule itself regulates, and if it governs only the manner and the means by which the litigants' rights are enforced, it is valid, but if it alters the rules of decision by which the court will adjudicate those rights, it is not.

Dissent: No has the potential to transform a 500 case into a 500000 case. This creates forum shopping

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This may create forum shopping but not by affecting substantive rts but by making better procedures. This is ok.Ask: Is the Fed rule procedural? – Sibbach “really regulate procedure”

28 USC § 2072 (a) and (b) are flip sides the same coin

A lot of historical precedents have made seemingly procedural (statute of limitations, burdens, standard of review) as substantive rts

Concurrence Stevens

The plurality is only ask whether procedural? They think that 2072a and 2072b are saying the same thing. (Is the rule procedural?)

We should also ask whether the state rule is substantive?

If not, is it intertwined with substance, so as to define the scope of the rt?

Ex: Statute of limitations, burden of proof

Hanna ApplicationIs the state rule clearly substantive, not ‘arguably procedural’?Yes, then follow state lawNo, did Congress pass any statute? Federal law to this question?

Yes, then follow the statuteNo, did rule come congress’ly delegated pwr? REA (FRCP)?

No, Hanna I (fed practice v state law)

Twin Aims test

Lead to Forum Shopping?

Lead to Inequitable Administration?

Byrd

Essential Characteristic?

Pass= use fed practice; No pass = use st law

Yes

Hanna II (FRCP v state law)

Direct Conflict? Fed rule on point?

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No, Hanna 1 like Walker v Armco

Yes, valid rule, check its §2072 precedural-ness?Did Congress have pwr to delegate?(a)practice/ procedure?(b)abridges, modifies substantive rt?

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