My Civ Pro Outline1

8/2/2019 My Civ Pro Outline1

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I. Values of Civil Procedurea. Effieciencyb. accuracyc. Rational- Non-arbitraryd. Dignity- Dont humiliate, chance to participate

e. Equality- Similar cases treated the same

General run through1. Subject matter jurisdiction2. Personal jurisdiction3. Notice of opposition to be heard4. Proper service5. Venue6. If in state court, can it be moved to federal? Diversity and over 75,000. Or Fed Q.-Part of well pleaded complaint.7. Have any of the 1-6 been waived?

In Personem Jurisdiction: against a person Person is present in forum Person has implied presence in forum (beginning w. Intl Shoe) Voluntary appearance in forum Consent to be served via agent in forum Domiciliary of forum (domiciliary = fact based analysis)

In Rem: against property establishes rights/interests in property only (i.e. condemnation,

probate, bankruptcy) No Notice required, since owner is expected to know whats going

on propertyQuasi-in-rem: action against a non-residentwho owns land in forum

Land must be attached at outset (per Pennoyer) Owner is expected to be aware of all activity on property at all times Types:

1. When seeks to enforce pre-existing interest in property

2. When seeks to enforce non-pre-existing interest in property.

i. Property is alter ego of individual outside jurisdiction ii. attachment Jurisdiction

Judgement is limited to value of property

Pennington v. Fourth Natl Bank

Rule: Attaching an intangible bank account is sufficient for quasi in rem jdx.Explanation: had a bank account in forum state, which attached at beginning ofproceedings. Court held that bank account was enough to exert personal jdx since it was notin conflict with three rules 1. Presence of res in forum; 2. Res must be attached at beginning ofproceedings; 3. Owner must be given chance to respond (notice must be given)

Shafer v. HeitnerRule: No jdx without minimum contacts. Intangible property might contribute to minimumcontacts but is not dispositive i.e. sufficient in and of itself.


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Explanation: Case raises more questions than it answers. Quasi in rem with respect to realproperty seems to still be ok. Non-real property can only be considered as a minimum contactsince jurisdiction requires

CASES FOR PERSONALPennoyer v. Neff

Rule: For quasi-in-rem jdx, land must be attached at the outset of litigation.Application: brought action against and asserted personal jdx by claiming owned landin forum state. However, that land was not attached at outset of litigation, so court found

that it did not have personal jdx over .

Attachment of land in state personal jurisdiction over non-resident.

Hess v. Powloski

Rule: When an individual enters state, he gives implied consent to abide by and submit to alllaws of the state, including consent to be served by state.Explanation: State of Mass. was found to have personal jurisdiction over non-resident

motorist who caused accident since he offered implied consent by using Mass. Roads

State long arm statute authorizes or have one of the traditional bases-

FRCP 4(k). Federal Long Arm Statute. Service of summons establishes PJ over:(1)(A) person subject to PJ of general state court where dist. court sits(1)(B) party joined under Rule 14 or 19, and served within 100 miles(1)(C) when authorized by another federal statute(2) Fallback: claim arises out of federal law, and D not subject to any state cour

Long Arm Jurisdiction Analysis1. Long Arm Statute (determined by state legislature)

a. Enumerated acts: specific requirements for long arm JurisdictionOR

b. Constitutional Maximum: all the powers allowed by the constitution.2. Due process (constitutional inquiry) (See D)

a. Minimum Contactsb. Reasonableness

Three interests in Long Arm Statutes

State has an interest in providing convenient forum for redress Unfair to allow wrongdoers to escape from wrongful acts outside of state Modern Transportation eliminates the convenience issue.

Do you have One of traditional bases?1. Consent

a. Actual-b. Constructive- Driving a car(serving the attorney general of that state)

2. Presence- Domicile or being served instate3. PropertyFor Corporations look at incorportation and primary place of business (nerve center), not where factories.


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- Burnam- Lawsuit does not relate to California. So they need general jurisdiction.He was served in California. Do the traditional basis sever international shoe?Scallia-4- Presence when you served, is okay by itself. Dont need to go throughinternational shoe. Talked about historical pedigree.brennan- Always apply int. shoe. There are no traditional basis. You have to go

through the analysis.

No law so have to argue both.

Due process (More of a standard, not strict test)

Minimum contacts consistent with fair play and substantial justice. International shoeAre they going for specific (COA arose out of event in jurisdiction where you bringclaim) or general jurisdiction(enough contacts to give them Jurisdiction even if COAunrelated to activity in the forum)FOR BOTH- Minimum contactsSpecific-

Purposeful availment of benefits of the forum? (Intl Shoe) Defendantor employee entered state conducted activity there (see Intl Shoe); entered into a contract with forum residents

Hanson v. Denckla

Rule: a state may assert personal jurisdiction iff. the purposely avails himself

of the laws of the state and presence in the state would not cause undue

hardship.

Explanation: Since s contacts in Florida were inadvertent and made no

efforts seek protection or privileges conferred by laws of state, state did not have

personal jurisdiction over (Bank responsible for trust in Delaware).

Kulko v. Superior Court

Rule: Purposeful Act in forum implies availment of the laws of forum.

Explanation: Purposeful acts are generally limited to wrongful acts andcommercial acts. Buying plane tickets to send children to their mother in another

state for the sake of family harmony is not a purposeful act with respect to jdx.

Privileges and benefits of the laws? (WWVW)Foreseeable that they will be hailed into court based on those

contacts?Substantial connection (Burger King)- Contract, businessPurposeful direction towards forum? (Asahi)

- Brennan-Purposeful availment-PlacementIt is a

contact if product is put into the stream andAwareness

can reasonably anticipate that it will get to state C,D,E.Makes some kind of sense, making money

Oconnor-Purposeful direction- Need more that

that. Need what brennan: Placement, Awareness plus

some intent to serve state Other forum related

activities Need to prove that, I somehow targeted C,D,E.

Advertising, customer service etc.


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General-

-Continuous and systematic contact and substantial- Perkins says three ways:corporations chartered in the state, corporations with offices in the state,people/corporations domiciled in the state

Perkins v. Benguet

Rule: If a corporations relations with a forum are systematic,continuous, and substantial, forum can hear claims where cause of action didnot arise from contacts with forum.

Explanation: corporation was sued in Ohio for events that arose

out of a foreign forum. s primary business location was abroad, but CEOlived and conducted business in Ohio (had employees, office files,correspondence, banking, offices).

Court held thats contacts with Ohio were substantial and therefore Ohio

had personal jurisdiction over .

Helicopteros Nacionales de Colombia v. HallRule: Mere purchases, third party training, and contract negotiations

do not satisfy substantiality requirements.Explanation: Cause of action arose in Columbia, where an American

citizen was killed in a helicopter crash. Family of victim brought actionagainst the helicopter transportation company (Helico.) in Texas. Court heldthat the purchase of Helicopters and the brief training of its pilots in Texaswere not substantial contacts.

After Looking at Either specifc or General Reasonablness for both. If did not pass

minimum contacts then dont look at reasonableness (world wide V)Reasonableness (Do for both)

-Def. has burden of presenting a compelling case that jx is unreasonable.

Asahi, BK, Volkswagen factors to consider:1. Burden on defendant of litigating in forum. (Asahi, traveling from Japan)2. Plaintiffs interest (are they hurt, travelling difficult?)3. Interest of the forum state, e.g. California has a manifest interest inproviding redress for its citizens (McGee, Insurance policy case. Yet California courthas little interest in Asahi case none of the litigants from Calif. becauseindemnification suit is all thats left between Taiwan co. and Japanese company.)4. Interstate judicial systems interest in efficiency.(tough policy questions)5. Shared interest of the several states in furthering fundamental substantivepolicies(forum shopping)

McGee v. International Life Insurance Co.


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Rule: A state may assert personal jurisdiction when it has a regulatoryinterest in issue and presence in state would not cause defendant unduehardship.

Application: refused to pay insurance that alleged owed. Court heldthat state had a regulatory interest in making sure insurance companies paid

out and despite the

Challenging PJ-Direct attack-

State: special appearance (im here to say im not here)Federal: bring up in first pleading- otherwise failed-If argue on merits of the case then they have you.

Collateral-Object after default judgment when they try to enforce in your state

Subject Matter jurisdictiona. Two kinds of cases can go before federal court: diversity and federal question.b. Every state has two courts: State and Federal

i. State courts can hear almost any claim. Exceptions: admiralty, antitrust,maritime, bankruptcy law and patent law.ii. Federal courts can only hear subjects that congress approves

1. Article III 2 give outer limitto federal courts subject matterjurisdiction.2. Because federal govt. is ceded power, the people gave fed. gov.power. Also need a federal statute to hear a case.

c. Often overlapping jurisdiction: most any claim that can be filed in fed. court can be

filed in state court. Opportunity to forum shop.d. Parties CANNOT CONSENT to subject matter jurisdictione. Subject matter Jdx is NEVER WAIVEDDiversity jurisdiction

a. 1332 a (1)1. Must be between citizens of different states and2. Amount in controversy more than $75,000.

ii. Citizens of different states1. Strawbridge v. Curtiss: All s must be of different state than all s.2. Citizens on the same side of v. can be from same state.3. Goes to citizenship at time ACTION IS COMMENCED, not when incident

occurs.iii. What is citizenship?

1. Citizenship: state of domicile (not residence) for human beings, naturalpersons.

a. Domicile: theplace of his true, fixed and permanent home andprincipal establishment, place where he plans to return. (Mas v.Perry). Person has only one state of domiciliary.


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b. Changing domiciliary requires taking up residence with the intentto stay there.c. Intent can be determined by examining voter registration, purchaseof a home and payment of taxes, in-state tuition.

iv. Corporations?

1. 1332 (c)(1): Where business is incorporated (all states) and whereprincipal place of business (can be only one state). Corporation is easy test.

2. Principal place of business test (PPB): Fact-intensive.a. Nerve-center test: Where shots are called.b. Muscle center test: Place of activity, factories, warehouses, etc. (J.A.Olson Co. v. City of Winona)c. Questions for PPB test

i. Where are board meetings?ii. Where is management?iii. Where is the president?iv. Where do they pay taxes?

v. Where is accounts receivable?vi. Where are their offices? How many?vii. Are they a subsidiary? (ESPN, CNN/SI)

d. For unincorporated businesses and partnership we look atcitizenship of all the members. In limited Partnership look ateveryones citizenship.

Amount in Controversy Requirement- 1332(a)1. Requires a good faith allegation that exceeds $75,000 exclusive ofinterests and costs. Amount awarded is irrelevant.2. Punitive damages in K case wont get you there

-Calculated at time of complaint

i. St. Paul Mercury test- Amount in controversy as pled in good faith can onlybe assailed if clear to a legal certainty that amount cannot be awarded.

Matter of law (statutory caps) No reasonable jury (ex. Pleading 1M for a broken finger)

ii. Aggregation Rules where must add together two or more claims tomeet the requirement.

1. Two different plaintiffs cannot aggregate claims against same defendant unless thoseclaims are invisablen( flow from the same indivisable harm)

2. Claims against two separate defendant cannot be aggregated unless unclear whichdefendant is at fault

3. AS long as one claim meets required amount, all related claims can be brought evenif others do not meet minimum amount in controversy.

Reasons for Expansive Fed diversity-1. Helps deal with certain types of tort law, national issues (consumerprotection, corporate accountability)2. Stop prejudice against non-citizens3. Protects defendant by assuring constitutional rights4. Eases congestion in state courts5. Fed court higher quality, more impartial


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6. Competition allows for better lawsReasons to limit federal diversity

1. Without limitations, federal court become too congested2. Use of state law by fed court is wasteful, unnecessary3. Fed court interfere with state autonomy

4. Use of law in fed court delays formation of common law doctrines5. Limit forum shopping

Arising under Federal jurisdiction- 1331

1. Two part testi. Placement- Well pleaded

a. Well-pleaded complaint-Plaintiffcomplaint identify federal question. Notanticipated defense (Motley)

b. If challenged, burden on Plaintiff to show federal question.ii. Substantiality- Centrality of federal question

a. Cause of action arises out of federal statutei. Express- Congress expressly confers right to COA in statute

ii. Implied-1. Is there legislative intent?

a. Consistent with legislative scheme2. Is the COA action important to state law so that

inappropriate for state law to be applied? State courts use

this to develop common law?

b. Embedded federal issue- COA is state law claim, but turns on federal lawi. Raises a federal issue

ii. Which is disputediii. Substantial to claimiv. Could be heard in federal court w/o disrupting balance between

state and federal ct. (Grabble- Would it cause lots of cases to

switch to federal court?)United Mine Workers of America v. Gibbs (Supplemental: common nucleus of operative fact)

Rule:If there is a substantial federal issue that arises out of the same cause of action as a state issue,i.e. a common nucleus of operative fact the federal court can hear both federal and state claims.

This power, however, is discretionaryExplanation: Gibbs made a contract with UMW, which was subsequently breached when unionmembers prevented him from carrying out his portion of the agreement. Gibbs lost his job as a resultand brought actions arising out of 303 of the Labor Management Relations Act (Fed Statute) andtortuous interference (State issue). Court held that since both the issue arose out of a Federal Statuteand a Tort claim, federal courts had jdx over the state claim. The court argued that because cause ofaction for the state claim was indivisible from the Fed claim, the Fed courts had discretion as towhether to take the claim; that is, while the Fed court had jdx, they could decide whether the Federalissue was sufficiently substantial to be tried in Fed court instead ofState court.

Supplemental/ancillary jurisdiction- 1367 (Dont forget C, that gives

exceptions)

1. Pendant JurWhat plaintiff can do to add a claim or part2. Ancillary JurWhat every one else can do (counter claims, impleader)3. Is the claim already jurisdictionally sufficient?

a. Meets requirements of 1331 or 1332 no need for supplemental

b. United mine workers v. Gibbs- ruled court can hear state law claim supplemental to

diversity case if it includes a common nucleus of operative fact. In other words,

transaction or occurrence. Purely discretionary


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c. Fed courts may refrain when 1. State issues particularly important 2. Fed issues

dismissed before trial, state claims should be heard by the state court

D. Differences between arising under and Diversity

i. Arising under- (a) applies, exceptions in (b) do not apply.

As long as common nucleus of operative fact, most joinder is

allowed.

ii. Diversity- No supplemental jurisdiction over: 3rd

party

claims, Joinder under several rules (look at the statute),

Interventions

The trio

1. Aldinger (no diversity, no supplemental jdx)a. Aldinger v. Howard (1976)- Court held that federal court lacked

jurisdiction over a state law claim against a county, even if that claim

was alleged to be pendent to one against county officials under 42

U.S.C. 1983.

2. Owen vKroger(No complete diversity, no supplemental jdx)a. Complete diversity is necessary for federal subject matter jdx. Even if

action was brought with complete diversity, if (1) an additional is

joined and (2) destroys complete diversity, then federal court loses

subject mater jdx.

3. Finley- In federal question jdx cases, can add state-claims, but not stateclaims against parties for which there is not also a federal claim.

b. Parties that otherwise could not be sued in federal courts can not bebrought into federal court solely on the basis of having their claims

share the same facts as the claim mandated to the federal courts.

Overturned by 1367 . Here the court called into question the entire

concept of pendant party and claim jurisdiction.

NoticeActual notice- Defendant is actually and personally served

Constructive notice- Notice under law, but not personal servicea. Notice Rule 4i. Form of notice that is reasonably calculated, under all the circumstances, to apprise interested parties of

the pendency of the action and afford them the opportunity to present their objections. Mullane v. Central

Hanover BankRule:Notice must be reasonably calculated to actually reach sExplanation: Bank needed to notify shareholders of a lawsuit brought on their behalf. Notice was printed in smal ltype on the back page of a local newspaper. The court held that since there was a small chance shareholders wouldhave seen notice and that since the paper was not circulated to areas where shareholders were present, the noticewas not reasonably calculated to reach intended parties.

ii. Where s name and address are known, publication is not sufficient.(Mullane)

iii. If names, addresses are not known, publication is sufficient. (Mullane)

iv. Notice by publication is RARELY reasonably calculated under the circumstancesunless is

avoiding services

-Actual notice not required, only best possibleb. Rule 4 Statutory Requirements

i. State rule should be consulted

ii. Two partssummons and complaint

1. Summons: Formal court document gives notice to the , gives 20 days in which to

respond. Comes from the courtsymbol of court reaching out.

2. Copy of Complaint: Informs the defendant of the charges

Who can serve?- Rule 4c2: Process can be served by any person who is not a party and who is at least 18

When served?- Rule 4m: has 120 days after filing complaint to serve process.


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How served?- Rule 4e1: Methods allowed by state court where fed court sits, OR where resides.

a. Rule 4e2: Hand service b. Usual place of abode c. With some person of suitable age and discretion

RESIDING THEREIN. (National Devo Co. v. Triad Holding.) d. Agent process: Delivering to an agent

authorized.

Serving corporations- Rule 4h: can serve agent of corp. a. One appointed by corp. b. Any officer c. Any

managing or general agent capacity

Right to be Heard

i. Due process clauses of the 5th and 14th Amendments require an opportunity to be heardbefore property can be taken, unless a proper inquiry was made.

ii. Connecticut v. Doehr- Three fold testa. Private interest of defendantb. Risk of erroneous deprivationc. Government interest

iii. Explanation: In Doehr, a piece of real property was attached in a suit without providing the withnotice or an opportunity to be heard. argued that this was in conflict with due process. The court

applied 3 fold test: 1. Temporary or partial deprivation ofs property still deserves due processprotection. 2. Risk of erroneous deprivation great since probable cause not stated, only s good faith

belief i.e. conclusory and not factual. Probable cause requires facts. 3. Only reason for to attach

property was to satisfy judgment if he prevailed. But no actual risk that

would transfer propertybefore hearing.iii. Relevant Considerations (from the cases)

Underlying dispute

-Actually related to the property?

-Matter lends itself documentary proof?

What is the remedy?

Judge issues writ, or just a clerk?

Allegations must be verified?

Creditor req. to post bond?

Creditor has pre-existing interest in the property.

Debtor can put up bond instead of property?

Pre-attachment hearing?

Extraordinary circumstances?

Post service hearing?

Removal

1. Is the party moving for Removal the defendant? It must be. All must agree to remove.(Exception is 1441c)

2. Could the court been removed to have had original jurisdiction over the claim3. Is the case a diversity case?

a. If so, only removable if none of the defendants is a citizen of the state the action ispending in 28 USC 1441

4. Are there state claims that are a part of the case?a. may include state claims pursuant to 1367b. Federal court can keep a whole case, or remand certain issue to state (this prevents s

from introducing state claims ors to defeat removal.)

Procedure for removala. Submit notice of removal per FRCP 11b. Submitted by within 30 days of receiving initial complaintc. Promptly after submission of notice, must give written notice to all parties.


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Venue 1391 Diversity of Citizenship? (a) applies

(1) a judicial district where any resides, IF all s live in the same state. (2) judicial district in which a substantial part of the events or omissions giving rise

to the claim occurred OR a substantial part of the property that is the subject of theaction is situated (Bates v. C&S Adjusters: forwarded mail case.)

(3) IF NO DISTRICT AVAILABLE FR. (1)/(2) A judicial district in which any is subject to PJ

Arising Under? (b) applies (1) A judicial district where any resides, if all s reside in the same state. (2) a judicial district in which a substantial part of the events or omissions giving

rise to the claim occurred, OR a substantial part of property that is the subject of theaction is situated. (Bates v. C&S)

(3) IF NO OTHER DISTRICT A judicial district where any may be found.

I. Proper Venue

i. 1391a for diversity -- 1391b for fed Q. rules.1. Can lay venue in any district where all defendants reside2. If all reside in different districts ofsame state, then state can lay venue inany district where on resides.3. Can lay venue in any district where substantial part of claim arose.

ii. If you meet neither (RARE) 1391 b3, a31. In diversity (a) can lay venue in any district where all are subjecttopersonal jurisdiction when case is FILED.2. In fed Q (b) can lay venue in any district where is found

Reasor Hill v. Harrison (Venue in State Courts)Rule: can bring suit over damage to land in another state, as long as court

has personal jdx over .

Explanation: used plane to spread fertilizer on s land. was based in

Arkansas and and his land is in Missouri. brought action for collection of

services. counter-claimed with allegation of negligence for destruction ofcrops. The issue was whether court could hear counter-claim, which dealtwith land in another state. Court held that as long as state has personal jdx

over , it can hear land in other state. Dont want to create havens orprocedural protection for wrongdoers.

Dissent: Since land issues are primarily dealt with in lower courts, otherstates dont have much to go off of when deciding fate of land in other states.


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Bates v. C&S Adjusters (venue in Fed. Courts)

Rule: Under 1391(b)(2) The appropriate venue is where the primaryevent took place.Explanation: incurred debt in Pa. subsequently moved to Ny. sent

letter for collection to address in Pa. and it was forwarded to Ny. broughtsuit in Ny. under Fair Debt Practices Act. argued venue was not propersince it did not have business practices in Ny. Court held that the primaryevent in question was not the sending of the letter, but the reading of theletter, which happened in Ny. Therefore, venue in Ny. was proper.

II. Transfer of venue 1404, 1406

ii. Can only transfer to fed. dist. court that has per. Jur. And has proper venue. Mustbe true independent of Wiaver.7iii. Two transfer statutes which apply at different times

1. 1404a only available if original court, one transferring from was propervenue. Can transfer for three reasons

a. Convenience of partiesb. Interest of justice.c. Where might have been brought.

2. 1406 a applies when original court was improper venue.iv. Goldlawr transfers court concluded that transfer of case where no pers. Jx.v. Forum selection clause not dispositive

Hoffman v. BlaskiRule:Action can only be transferred to venue where had a right to bring

action in the first place.Explanation: brought action Tx. (home state of). transferred to Ill.(home state of ). Court held that transfer was improper since cause of

action could not have been brought originally in Ill. had no contacts in Ill.Court reasoned that could not assume thatwould waive venue and

Personal Jdx. and could not have brought action in Ill.

III. Forum Non Conviens (Fed. Common Law)

Discretionary doctrine: even though you can doesnt mean you should. If the court

concludes that the action could be more appropriately tried in some other jurisdiction,

then it can choose to deny jdx over a case it might otherwise have jdx over. Forum nonconviens is not a transfer, but a dismissal which allows to bring action in

appropriate venue.

i. Doctrine by which a court dismisses a case because more convenient forum inanother court.ii. Used when court cannot transfer better court is in another system.


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power to make FRCP). Court held that coutcome determinative test should

be used so as to promote the twin aims of Erie: discourage forum shopping

and avoid in equitable administration of justice. If Fed. rule in questiondirectly conflicts with state rule, but really regulates procedure Fed. Courtsshould use Fed. Rule.

Gasperini v. Center for HumanitiesRule: Where it is possible, courts should find an accommodation thatsatisfies both Fed. and State rules.Explanation: brought action again and received a large award. motioned for a new trial, claiming award was excessive. District courtdismissed motion; applied Federal standard of shocked the conscience ofthe court. Circuit court applied state standard, which was deviate

materially from what would be reasonable compensation, and offeredremittitur for a quarter of the original award. appealed and was granted

cert. Supreme Court held that district courts should use state law when

reviewing jury awards, but such that it is consistent with the 7th amendment:trial judge reviews awards; appellate court uses federal standard.


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Is the rulesubstantive?

FRCP onpoint? Twin Aims of

Erie frustratedby Federal?

Yes

NO NO

State Law

Directcollision withState Law?

Countervailing

ReallyRegulateProcedure?Sibbach test

Yes

Yes

Yes

Federal Law

Yes

Federal Law

Yes

NO

NO

Federal Law

NO

State Law

NO

* Try to find an

accommodation perGasperini

+ Weigh federalinterests vs. stateinterests.

Erie Flow Chart

REA RDA


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V. Determining which State Law Applies

Klaxon Co. v. Stentor Electric Mfg. Co.

Rule: Fed. Court should apply conflict of laws rules of the State in which itsits.

Rules of Preclusion RuleSemteck v. Lockheed

Plaintiff filed suit in California state court against Defendant torts. Defendant moved the case toFederal District Court in California via diversity jurisdiction and successfully moved to dismissPlaintiffs claim as barred by Californias 2-year statute of limitations. The District Court dismissedthe suit on the merits and with prejudice. Plaintiff then re-filed suit against Defendant, this time inMaryland state court. Lockheed again had the case removed to Federal district court, this time inMaryland, and ask the court to apply claim-preclusive effect to the California Federal District Courtsadjudication on the merits, and dismiss the suit.

Holding: Federal common law governs the claim-preclusive effect of adismissal by a Federal court sitting in diversity, which in turn will apply the claim-

preclusion laws of the state in which the Federal court is located

VI. Ascertaining the State Law

Generally:- If there is case history on point, use rules from those cases- If no case on point, use dicta and make best inferences possible.- Send to State court for certification.

Mason v. American EmeryRule: When a Federal Court uses State law, it should make an inference on

what State would do.Explanation: (Miss. Citizen) brought action against (RI citizen) in Fed.Court. Cause of action arose in Miss. Miss. Courts had not dealt with issue indecades, and the historic common law was counter to what was currently thetrend. Fed. court inferred, based on dicta that State would, if given theopportunity, adopt the modern trend.

Rule 2 Merging of courts of equity and law

1. Things taken from equity courtsa.

Ease of Pleadingb. Broad joined

c. Expansive discoveryd. Large amount of judicial power/ discretione. Latitude for lawyersf. Flexible remidiesg. Reliance on experts


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Rule 9(b) Heightened Pleading: Fraud/Mistake cases- Fraud requires additional information since fraud claims are taken so seriously by society;

damaging to reputation.

- Must show mind of: that intended the fraud, which is not materially manifested, likeother causes of action.

Dioguardi v. Durning (Liberal reading)Leniency in pleading is ok because other off-ramps during discovery andtrial allow for non-meritorious cases to be dismissed. Lets allow to makeher case, otherwise system closes out underprivileged s.

Conley v. Gibson (Key case)

Rule:If s pleading satisfies (1) notice of a cause of action and (2) issufficient (such that it is not impossible), then the case can move forward.Explanation: Court held that an action should not be dismissed for failure tostate a claim unless it appears beyond a doubt that cannot prove factssufficient for a claim that is entitled to relief.

Swierkiewicz v. SoremaRule: Use Conley Test: no need to show prima facie case (burden of proofrequired to win case) at the outset. Only enough facts that would beentitled to relief.Explanation: alleged that (employer) violated Title VII (Anti-discrimination in workplace). Court held that that allegation was sufficient,since if he was able to produce evidence of a Title VII violation, he would beentitled to relief. However, evidence of that violation was not necessary atpleading; should be produced at discovery.

Bell Atlantic v. TwomblyRule:Federal civil cases require s to include enough facts in pleading tomake complaint plausible, not just possible or conceivable. Legal Conclusionswill not sustain a complaint.Explanation: brought action againstviolation of the Sherman Act

(telecommunications act). plead that parallel behavior indicated wasinvolved in anti-competitive conspiracy. The court held that this allegationalone was not sufficient, and that only plausible allegations were sufficient

to satisfy pleading requirements under FRCP 8(2)(a).

Note: Twombly created a stricter pleading standard. no facts would allow to win to"enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of

[cause of action that is entitled to relief.]"

Ashcrof v. Iqbal

Rule: Twombly standard applies to all civil actions; plausibility will be fact-specific. Is this a move back toward code pleading?


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Issues Raised: Under Iqbal judicial experience and common sense are used tojudge the sufficiency of the pleading. Does this over step the 7th amendment?

Responses to a pleading1. Admit2. Deny3. Without information to form a belief4. General denial

a. Disfavored because defendant might be lying and this can piss of the judge who will thentake the response as a general admission

II. Defenses and Objections to Pleadings Rule 12

After a has pleaded her complaint, the may motion for dismissal under Rule 12.

Rule 12a. A must serve an answer within 21 days of receiving complaintb. Defenses

1. Lack of Subject Matter Jdx. (Anytime)2. Lack of Personal Jdx (at outsetwaived upon answer)3. Improper Venue (see Venue Iwaived upon answer)4. Insufficient Process (Pursuant to District Rules)5. Insufficient Service of Process (Pursuant to District Rules)6. Failure to State a claim upon which relief can be granted (See Twombly; Rule 8)7. Failure to join a party underRule 19

c. Before Discovery, may motion for judgment on pleadingsd. A party may motion for to provide them with a more general Statement e.

12(b)(1,6, and 7) motions can be embedded in answer.

Rule 12 Takeaways1. Consolidate motions is possible2. 12(b)2-6 must be made pre answer3. 12(b)2-5 waived after answer4. 12(b)6 may be pre answer, in answer in 12(c) or at trial

III. Amendments to Pleadings, Sanctions, and Case Management

Rule 15: Amendments- When and how a party may amend its pleadings- Once, within 21 days after serving- With opposing partys written consent or courts consent (which should be given freely when

justice requires)

- 15(a)1 amendment as a matter of course- 15(a)2 in all other cases other party or judge must give consent/ permision


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Beck v. Aquaslide

Rule:15(c) Relation Back amendments are allowed when (1) allowedby State Statute of Limitations and (2) amendment deals with somethingin original complaint.Explanation: injured on a water slide that was purportedly

manufactured by . brought products liability claim. s insuranceagents acknowledged that product was manufactured by . After SOL had

run, inspected slide and determined it was a fake. sought to amendcomplaint to include actual manufacturer of the slide. Court held that iswas ok to amend pleading to include actual manufacturer of slide.

Worthington v. Wilson

Rule: 15(c)(ii) amendments are only for when knew identity of but

used wrong name; cannot be used to add s after SOL has run.Explanation: filed complaint against city and three unknown namedpolice officer the day before SOL had run. subsequently moved to

amend to add names of officers after they had been determined. Courtheld that mistaken identity had to do with using the wrong names, notfailing to know identity.

Rule 11: Requires signatures for pleadings, motions, etc.

1. Reqquires that attorneys sign all documentssignature certifies that:

a. Paper is not for improper use

b. Legal contentions warranted by law

c. Factual contentions have evidentiary support

d. Denial of factual contentions have evidentiary support or likely will have

evidentiary support.

2. Remember:a. Continuing certification

b. Motions for sanction under Rule 11 served on other party. Other party has 21

day safe harbor to withdraw, if they dont, then go to court.

c. Sanctions are discretionary

i. Point of sanctions is deterrent, not punishment.

ii. Rule says to look at non-monetary sanctions

iii. Rule 11 violations may be raised sua sponte

iv. Rule 11 doesnt apply to discovery documents.

d. Model rules for professional conduct.

Rule 16: Pretrial Conferences, Schedualing, Management- To Facilitate Judicial economy- Has been amended to give judges even more power, including additional ability to push for

settlement

- Velez v. Awningi. A partys repeated disregard for court-imposed deadlines will merit an adverse

holding, despite the partys eventual filing to oppose the holding.

Discovery


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General1. Informational v. Inquisitional considerations2. Can inflict sever costs due to inquisitional discovery

Rule 26:a. Required Disclosures: what the parties must present without requestb. Scope of Discovery: parties may request any relevant information that is not privileged.

i. can only discover evidence related to claim or defense.ii. Judicial discretion even if related to claim or defense.c. Parties may move for a protective order so as to prevent annoying, embarrassing, or

burdensome disclosure of facts.

Parties must create a plan for discovery

Under 261. Used to be: Subject matter relevance2. Now it is: relevant to claim or defense1. Boundaries

a. Mandatory 26a; Insurance possessed, Info that relates to disputed facts alleged withparticularity.

b. Discretionary 26b2. Referee 16, 373. Moves

a. Depositions 30i. Oral Questioning

b. Interrogatories 33i. Written Questioning

c. Document Production 34i. request to produce specific documents and other tangible evidence.

d. Physical Mental Examinations 35i.

e. Request for Admission 36i. formally admit to a certain fact; remove from dispute.

f. Sanctions 37i. If abuse of Discovery occurs, judge may impose sanctions.

1. Questions for work producta. If yes to below questions the document enjoys protection under 26(b)(3), go on

to step b

i. Is the material a document or tangible thing?ii. Was it prepared by of for another party?

iii. Was it prepared in anticipation of litigationb. If yes go to step c

i. Substantial need for the material?ii. Unable to obtain through other means?

c. If yes, then the documents are protectedi. Would the documents reveal the mental impressions conclusionopinions or legal theories of counsel?

26A Expert disclosures

1. Opinions

2. Data

3. Compensation

4. Credibility

iii. Pretrial disclosures

1. Detailed trial evidence other than used for impeachment

2. identity of witnesses


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3. designation of witness whose testimony depos will be used

4. Documents intended to be used at trial

b. Depositions

1. Can be directed at non-parties as well as parties. Must subpoena nonparties.

2. 30b6 states an organization must specify the appropriate person to be deposed.

3. Presumptive limit of 10 depos, limited to one day of seven hours

4. 31 permits deposition given by court officer. Advantage is attorney doesnt have to attend.

Disadvantage is attorney cant ask followups.

c. Interrogatories

1. Can only be directed against parties

2. answers typically drafted by partys lawyer.

3. Useful way to get names, dates and lists of of documents

4. presumptive limit of 25 interrogatories.

d. Production of documents and things

1. Permits a party to require another party to produce for inspection, copying, or testing all

relevant documents or tangible things.

2. Could be used to access property or obtain device central to claim

e. Medical examination

1. health, physical or mental condition of a party must be in controversy.

2. Requires a court order

3. Must show good cause and that mental or physical condition in controversy.f. Requests for admission3612

g. Signing of disclosures, disc. Requests, responses and objections 26g

1. Every disclosure must be signed.

2. Every discovery request must be signed

3. An improper certification may result in payment of expense and attorney fees.

h. Scope of the discovery

i. Relation to the rules of evidence

1. Rule 26b1 provides that relevant information need not be admissible if the discovery

appears reasonable calculated to lead to the discovery ofadmissible evidence.

ii. Privileged material

1. attorney and client

2. doctor and patient3. priest and parishioner

4. husband and wife

5. Remember only communication protected.

6. For attorney client privilege communication must have been in connection with the rendering of legal

services.

7. Rule 26 b 5: requires a party to claim the privilege expressly and to describe the applicability of the

privilege.

iii. Work product

a. Work product is material generated in anticipation (fear) of litigation. Doesnt have to be

generated by lawyer.

b. 26b3 states to acquire, must show:

i. substantial need of the materials in preparation of case.ii. That the party is unable without undue hardship to obtain the substantial equivalent by

other means

c. The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal

theories of an attorney or other representative of a party concerning litigation

Attorney Privilege

Hickman v. Taylor


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Rule: Work product and materials prepared by attorneys with an eye

toward litigation are privileged and not available for discovery.Explanation: One party requested Attorney work-product in Discovery.District court required that that work-product be produced. Supreme Courtheld that Dist. Court erred, and that Attorney work-product is privileged and

undiscoverable.

However: If there is substantial need and undue hardship in producing thematerial then it is discoverable. Mental impressions are never discoverable.

Adjudication and Finality

I. Summary JudgmentRule 56

(This is essentially a 12(b)6 motion that occurs after discovery)

After discovery parties can move for summary judgment if there is no genuine issue of

material fact and movement is entitled as a matter of law. Parties may use affidavits,

depositions, and interrogatories, all of which must be admissible evidence in trial.

-Summary judgment is only granted when a judge concludes that there is no way a jury could findin favor of one party.

-Summary judgment motion challenges opposing partys evidentiary sufficiency (unlike 12(b)(6)) -Hinges on whether parties can carry their burden of proof

i. Moving party: has initial burden; if met burden transfers to non-moving party.ii. If non-movant meets burden, continues to trial, if not, movant wins

-Generally, easier formeet burden of proof, rather than , since need only prove one elementis not satisfied whereas must show that no fact is in dispute.

-The


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Adickes v. S.H. KressRule: Inferences should be made in favor of non-moving parties.

Explanation: brought action against for violation of civil rights, which

included an allegation of conspiracy. submitted evidence that there was no

conspiracy and moved for summary judgment. Court held that it was error togrant summary judgment since a legitimate inference could have been madethat there was conspiracy.

Celotex v. CatrettRule: Moving party must show that non-moving party will not be able to

carry its burden at trial; moving part need not negate opposing claim.Explanation: brought action against asbestos manufacturers for wrongful

death of husband. After discovery moved for summary judgment. Courtgranted summary judgment, holding that did not have sufficient evidence

to make prima facie case.

The holding in Celotex did not directly overturn Adickes, but it lowered the threshold

for summary judgment.

Scott v. Harris

Rule: Summary judgment is appropriate when evidence is sooverwhelmingly in favor of certain set of facts, that no testimony couldreasonably contradict it.Explanation: (driver) brought action against (police) for violation of 4th

amendment. alleged used unreasonable force. However, video evidence

indicated thats conduct was entirely reasonable. Court held that videoevidence was so persuasive that no jury could find in s favor.

II. Judge and Jury

7th Amendment preserves the right to a jury trial for all legal claims. At the time the

constitution was signed, there was no right to a jury trial for equitable claims, and that

remains true today. Policy: Rule 2 created the right to a jury issue.

Summary judgment is appropriate when the moving party can show that thenon-moving party will not be able to make prima facie case at trial, either

(1) by showing non-moving party has insufficient evidence, or(2) because contradicting evidence is so persuasive that no jury could

reasonable agree with non-moving party. (Celotex; Scott)


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Beacon Theatres v. Westover

Rule: Where legal and equitable claims are joined together in the sameaction, legal claims must be tried by a jury before the equitable claims can beresolved by a judge.Explanation: brought action against. counter-claimed, and pursed both

legal and equitable claims. Court held that the jury must decide the legalclaims first, and based on the facts established by the jury, the judge woulddecide the remaining equitable claims.

Dairy Queen v. Wood

Rule: Even if complaint seems to be equitable, if it can be satisfied with alegal remedy (i.e. damages), then let it go to the jury to receive legal relief.Explanation: brought action for injuction and damages (equitable and

legal). argued that legal claim was actually equitable since it soughtequitable relief. Court held that the most natural construction the claimindicated a legal character. The type of claim and the type of remedy, not the

wording of the complaint, determine the nature of the claim.

Curtis v. Loether 1974

Rule: The 7th amendment affords the right to a jury trial for all actionsseeking damages in the federal courts.Explanation: brought Title VIII claim (fair housing provisions) seeking

injunction and punitive damages (equitable and legal remedies). made jury

demand. The district judge denied demand. Court held that if action is of thetype that would have been heard by jury when constitution was signed, thenthat right is preserved by 7th amendment. Actions for damages are of that

type.

MarkmanRule: A jury is not needed for a patent law claim, because interpretation of

patent law is the exclusive providence of the court.

My Civ Pro Outline1

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Transcript of My Civ Pro Outline1