Civil Procedure Rule Proofs.docx

~~Civil Procedure Rule Proofs~~ Personal Jurisdiction Long arm statute analysis Pursuant to Rule 4(k)(1), a federal court must look to a state’s long arm statute to see whether it permits the exercise of personal jurisdiction over a non-resident defendant. New York’s long arm statute permits personal jurisdiction via specific jurisdiction because it allows jurisdiction over claims that arise from acts within the state. Due process analysis Personal jurisdiction is the ability of a court to exercise power over parties. In personam proceedings are where the court issues a judgment against an individual or corporation. A court may either have general or specific jurisdiction. General jurisdiction is where the court can exercise power of a defendant and the claim does not arise out of any contacts between the defendant and forum state. Specific jurisdiction refers to a court’s exercise of PJ to hear a claim related to, and arising out of, the defendant’s contacts with the forum state. Even if long arm statute permits PJ, it is still necessary to decide whether their exercise of power is constitutional in that it does not deprive any person of life, liberty, or property without due process of law. Pennoyer connected due process to personal jurisdiction and established the traditional basis of jurisdiction via domicile, consent, or service in the state. Even if a defendant is only in the forum state for a brief amount of time, as long as he is served while he is present there, it is enough for the court to have JD over him. (Burnham). RULE PROOF FOR GENERAL JD CASES: If the claim does not arise out of a defendant’s contacts with the forum state, jurisdiction can only be had if the defendant is “at home” in the forum state. (Goodyear) Even if the business has a large amount of sales in the state, it is not enough to satisfy this standard. (Bristol Myers, Daimler) RULE PROOF FOR SPECIFIC JD CASES: Intl Shoe established that due process requires an out of state defendant to have certain “minimum contacts” with the forum such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Activities within the state that are systematic and continuous are enough to satisfy this standard, such as the presence of sales people in the state. All assertions of jurisdiction - in personam, in rem, quasi in rem - must be evaluated according to Shoe standards. (Shaffer) In addition, McGee held that a single contract can constitute “minimum contacts.” However, Hanson clarified that the focus should be on whether the defendant itself created sufficient contact with the forum, whether they had “purposefully availed” itself of the privilege of acting in the forum, thus invoking the benefits and protections of its laws. Unilateral activity, such as the plaintiff moving to a different state when the original obligation was created in a different one, does not satisfy this standard.

The Supreme Court’s plurality decision in Nicastro split on whether Hanson’s purposeful availment standard for contact requires targeting or reaching out to a state, or simply the awareness that products will get there via the stream of commerce. WWV said that the stream of commerce is not enough to establish jurisdiction. The type of “foreseeability” that is sufficient is not mere likelihood that a product would end up in a state, but rather the defendant’s conduct and connection with the forum be sufficient enough so that he should “reasonably anticipate being haled into court there.” For example, if the defendant had shipped their product directly to the state or advertised within the state, that would be sufficient. WWV also laid out five fairness factors for the court to consider when a defendant’s contact with a forum state is proven: (1) burden on the plaintiff, (2) burden on the defendant, (3) interest of the state in protecting its citizens/consumers in the state, (4) interstate interest to serve efficiency, (5) shared state policy interests. (altho in her answer she talks about no due process violation + NY law favor hearing the case bc NY law will apply) Specific jurisdiction on the idea that the claim against them is “related” to that against Armour probably won’t succeed (BMS) - although distinguish how relationship was used in that case with respect to class claims of plaintiffs, rather than selling a part to someone else. MINIMUM CONTACTS + INTERNET  Zippo Sliding Scale Test: Highly interactive + Contacts related to cause of action (Requires purposeful targeting/advertising to forum state) o Highly interactive = transmit files to forum state, entering into contracts with forum’s residents o Passive website = merely posts information  Calder Effects Test for PJ over Intentional Torts: o 1) Defendant’s act was intentional o 2) Uniquely or expressly aimed at the forum state o 3) Caused harm within the state + knowledge of harm    

Venue 1391(a)(1) - Venue could be proper in X or Y, as all defendants reside in the same state, although in different districts. 1391(a)(2) - Venue could be proper in SDNY because that is where the substantial events took place that give rise to the claim. Defendants can argue that X or Y is a proper venue b/c that is where the product was manufactured. 1404 (GOVERNS WHEN TRANSFER FROM PROPER VENUE TO PROPER VENUE)Anticipate motion to transfer by Armour which would prefer it to be in X or Y for “convenience and interests of justice” o interests of justice = holding parties to their agreement (for Forum selection clause) o Atlantic Marine said 1404 codified the FNC b/w federal courts

analysis for considering transfer

 Public Interest Factors   

If state court has to apply foreign law for one defendant and state law for another - too confusing for jury Strong interest to litigate in other forum No American (or state) interest to litigate - want to protect their own citizens

 Private Interest Factors   

All the evidence is in the other forum Third party defendants easier to implead/witnesses are there

1406 (GOVERNS WHEN TRANSFER FROM IMPROPER VENUE TO PROPER VENUE): Courts will generally not dismiss if there’s another proper venue

FORUM SELECTION CLAUSES Carnival - courts generally uphold them as long as they are fundamentally fair - (1) defendant is at home in that state, (2) no evidence of fraud, (3) plaintiffs had notice Subject Matter Jurisdiction 1331, 1332, article 3 section 2 Cases: wellworks, mottley, smith, grable, redner, hertz, hawkins Subject matter jurisdiction is the power of a court to hear a case and the claims asserted in it. Subject matter, unlike personal, jurisdiction cannot be waived and can be challenged at any time. Federal courts have limited subject matter jurisdiction, which means that they can hear only specific types of cases. There are also exclusive types of cases that only federal courts can hear, such as cases concerning admiralty, patent, and antitrust matters. Article 3, Section 2 of the Constitution give federal courts the power to hear “all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority” and provides nine types of disputes that federal courts can hear. Congress narrowed this down into §1331 (Federal Question Jurisdiction), which states that district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. The broadest interpretation of §1331 is through American Wellworks (“Holmes” Test), which states that a suit “arises under the law that creates the cause of action”. As such, a case arises under federal law if the claim is created by federal law. Alternatively, jurisdiction under 1331 can be invoked if federal law is part of the plaintiff’s “well-pleaded complaint.” A well-pleaded complaint has two components - first, the court looks only to the plaintiff’s complaint and not to any anticipated defenses or counterclaims. Second, the court can only consider the part of the complaint that supports the plaintiff’s claim. (Mottley) There are instances where a state based claim can be sufficiently “federalized” to fall under federal question jurisdiction. In Smith, federal courts upheld federal question jurisdiction for a state based claim because the plaintiffs could not prove their claim without establishing a proposition of federal law. Where it appears from the complaint that the right to relief

depends upon the construction or application of federal law, the federal court can hear the case. In Grable, the Court set forth three factors for determining whether a state law claim can be said to arise under federal law. First, the state law claim must raise a federal issue. Second, the federal issue must be actually disputed and substantial. Third, a federal forum must be able to entertain the case without disturbing “any congressionally approved balance of federal and state judicial responsibilities.” For instance, in Merrell Dow, the court did not uphold federal question jurisdiction because doing so would attract a horde of state tort cases into federal court. The Court also recognized that there might be a federal interest in allowing certain state law claims in federal court. The other grant of federal subject matter jurisdiction by Congress is diversity of citizenship under §1332(a)(1), which copies the language from Article 3, Section 2 of the constitution and adds a requirement that the amount in controversy exceeds $75,000. The purpose of allowing the federal court to hear diversity cases is to guard against local prejudice that might be manifested in state courts against out of state parties. Although minimal diversity is constitutional, the Supreme Court in Strawbridge mandates complete diversity for 1332 cases every plaintiff must be of a diverse citizenship from every defendant. Citizenship is determined at the commencement of an action. In order to be a citizen of a state for diversity purposes, a human must be a citizen of the US and domiciled in that state. A person is domiciled where they are physically present with the intent to reside indefinitely. (Redner) Intent can be established by certain facts, such as establishing a home in another state with a spouse (Hawkins). Corporations are deemed to be a citizen of every state where they are incorporated and in the state where they have their principal place of business. (Hertz) Supreme Court adopted the Nerve Center Approach for purposes of determining where a PPB is. A PPB is essentially the corporate headquarters, where the high level officers “direct, control, and coordinate the corporations activities.” Supplemental Jurisdiction Cases: gibbs, in re ameriquest, szendy ramos §1367 Under 28 U.S.C. §1367, federal courts can exercise supplemental jurisdiction over claims being joined to claims that have original federal jurisdiction. The supplemental claims must be “so related to the claims in the original action that they form part of the same case or controversy.” Congress granted this authority to the federal courts under the interpretation of Article 3 of the constitution, which states that judicial power shall extend to all cases arising under the laws of the United States. Gibbs interpreted “the same case or controversy” to mean that state and federal claims must derive from the same nucleus of operative fact. This standard is met if the claim arises from the same transaction or occurrence. In order to

determine whether they do, In Re Ameriquest suggests to do 2 things: 1) compare the facts necessary to prove the elements of the federal claim with those necessary to the state claim, and 2) assess whether the state claims can be resolved or dismissed without affecting the federal claims. Here, Pamela’s state based claim does not have original jurisdiction in the federal courts because there is no diversity (Pamela and Dilbert are citizens of the same state and the AIC is not greater than 75k), and the claim does not arise under federal law. Under Rule 18, Pamela is allowed to bring as many claims as she wants as long as there’s jurisdiction. Pamela’s claim for wrongful discharge against Dilbert involves the same common operative facts with the ones that will need to be addressed to prove her federal civil rights claim for discrimination because she was wrongfully discharged after she complained about the discrimination. Because Pamela’s original, anchor claim is based on a federal statute, 1367(b) does not have to be analyzed. However, district courts can still decline to exercise jurisdiction in four instances. 1) The claim raises a novel or complex issue of state law. Szendry Ramos. 2) The claim substantially predominates over federal claim. 3) The district court dismissed the federal claim. 4) Other compelling reasons. None of these are satisfied here because there is no novel or complex issue of state law, it is just a regular garden variety wrongful termination claim, it does not substantially predominate over the federal claim because it is just one claim, the court did not dismiss the federal claim, and adding this claim would serve judicial economy and trial convenience by preventing future re-litigation on the issue of wrongful termination and prevent her from being precluded from bringing the claim in the future. Rule 13 AND RULE 18 JOINDER OF CLAIMS - Case: Plant v. Blazer The joinder rules are just the procedural vehicle for joining claims and parties in a single lawsuit. Each claim and party must still be consistent with the court’s jurisdiction. Rule 18 allows, but does not require, any party asserting a claim, counterclaim, crossclaim, or thirdparty claim to join as many claims as it has against an opposing party. It is beneficial to allow such a liberal joinder of claims because it is efficient to resolve issues and factual findings in one lawsuit rather than many, it allows for uniform rulings of law and fact, and protects the rights of parties. The drawbacks of allowing liberal joinder of claims include potential confusion for the judge or jury [although a court has discretion to order separate trials under Rule 42(b)], it is more expensive than litigating a single claim, and it takes longer because of multiple briefs, more discovery, etc. Although Rule 18 permits but does not require plaintiffs to join as many claims as they want, claim preclusion and issue preclusion give an incentive/forces a plaintiff to bring multiple claims in one suit. Likewise, defendants are permitted to bring multiple counterclaims, crossclaims, and third-party claims but they must satisfy the legal standards under Rule 13. If they fail to assert a compulsory counterclaim, they are estopped from asserting it in another suit (with a few exceptions). The policy reasons behind claim preclusion and compulsory counterclaims are the same in that it forces the joinder of transactionally related rights to relief into a single case. Rule 13 ensures complete relief to a defendant who is brought involuntarily into federal court because it requires them to bring a counterclaim that “arises out of the same transaction or occurrence” that is the subject of the opposing party’s claim. The counterclaim must be

asserted in the pleading aka the defendant’s answer. If there is any “logical relation” between the claim and the counterclaim, then the counterclaim is said to be compulsory rather than permissive. The “logical relation test” created in Plant v. Blazer says that a logical relationship when the counterclaim arises from the same “aggregate of operative facts”, which is similar to the Gibbs standard for supplemental jurisdiction. As such, if a counterclaim is compulsory and doesn’t have original federal jurisdiction, it can still fall under supplemental jurisdiction. A permissive counterclaim is one that does not arise from the same transaction or occurrence. However, there are jurisdictional issues because if that claim doesn’t have original federal jurisdiction, then it will generally not invoke supplemental jurisdiction because if it doesn’t arise from the same case or controversy, then it fails the “common nucleus” test and the “transaction or occurrence” test. Rule 13(g) also permits but does not require co-parties to assert crossclaims against each other, but it must arise from the same transaction or occurrence as the original action or the claim relates to any property that is the subject matter of the original action. Jurisdiction is not usually an issue because crossclaims usually satisfy supplemental jurisdiction. Rule 20 PERMISSIVE JOINDER OF PARTIES - Case: Mosley Rule 20(a)(1) defines who may be joined as co-plaintiffs. Two or more people may join as co-plaintiffs if: 1) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences and, 2) any question of law or fact common to all plaintiffs will arise in the action. In Mosley, the Court found joinder under Rule 20 appropriate for the plaintiffs because each had been injured by the same general policy of discrimination, and their right to relief depended upon the question of fact whether there was a racially discriminatory policy in place. Rule 14 IMPLEADER - Case: Price v. CTB chicken house Rule 14 exists to reduce the possibility of duplicative litigation by allowing (but NOT REQUIRING) a defending party (can be original defendant or plaintiff who becomes defendant after a counterclaim or crossclaim) to bring in another party who may share or be legally responsible for defendant’s liability to the plaintiff, thereby settling all legal questions in one lawsuit. A defending party has a right to implead within 14 days after they serve an answer. After 14 days, the defending party must obtain the court’s leave, and the court must then balance the judicial efficiency of adding the party with any prejudice or delay/complication that may result. Only a person who is or may be liable to the defendant for all or part of the claim against it may be impleaded. However, the defendant can only implead another party if the applicable substantive law permits such a claim. Usually defending parties will seek to bring in joint tortfeasors under the theory of contribution that they own their share of liability, or under the theory of indemnification to implead a party, such as an insurance company, to pick up the tab for the defending party’s liability. In Price v. CTB, Alabama state law recognized “implied contractual indemnity” between a manufacturer of a product and the retailer of the product, such that a product manufactuer impliedly agrees to indemnify the seller when the seller is not at fault for the product being defective.

Similar to the goal of Rule 19 which compels joinder of an absentee to avoid the defendant being saddled with multiple or inconsistent obligations, Rule 14 allows defending parties to implead joint tortfeasors to be responsible for their own share of their liability. As such, impleader fosters efficiency, consistency, and fairness to the defendant. Note: Jurisdiction and venue must still be proper. Personal jurisdiction can be had under the state’s long arm statute, or Rule 4(k)(1) allows parties joined under Rule 14 to be served within 100 miles from where the summons was issued. Subject matter jurisdiction is usually not a problem because 1367(b) does not exclude claims brought by defendants against parties joined under Rule 14. However, original plaintiffs would not be allowed to bring claims against the third-party defendant. Rule 19 JOINDER OF REQUIRED PARTIES - Case: Temple, Helzberg Although our justice system gives great deference to a plaintiff’s choices on what parties to sue, Rule 19 allows for overriding of the plaintiff’s choice by requiring certain parties to be in the litigation. This serves the policy interest of promoting efficiency in the courts, avoiding harm and protecting the interests of any absent defendants, and preventing inconsistent outcomes and multiple litigation. In essence, it is supposed to “protect the quality of adjudication.” Rule 19 prescribes a three-step process. First, the court must assess whether the party to be joined is a “required party”. In order to determine, the court looks at 1) in that person’s absence, they will not be able to accord complete relief among existing parties, 2) it would impair or impede the absent person’s ability to protect their interest. The interest must be legally protected. and 3) their absence leaves an existing party subject to substantial risk of incurring double, multiple, or inconsistent obligations. “Required parties” are typically those who have some connection of property ownership, rights, or obligations with the existing party. As such, joint tortfeasors are never considered required parties, they are merely permissive. (Temple) Second, if the court decides that the party is “required”, they must then determine if joining them would be feasible. It wouldn’t be feasible under 3 circumstances: 1) if the court lacks personal jurisdiction over them such that they wouldn’t’ be subject to service of process (however, rule 4(k)(1)(B) allows for service outside the forum state within 100 miles of where the summons was issued for parties joined under Rule 19). 2) whether joining them would deprive the court of subject matter jurisdiction, and 3) the absent party would object to improper venue. Third, if joinder of the party turns out not to be feasible, the court can decide whether “in equity and good conscience” to allow the case to proceed without them or to dismiss the case. This assessment is based upon the factors set out in 19(b): 1) extent of prejudice to the absent party or existing parties, 2) extent prejudice can be avoided or lessened by shaping the relief, utilizing protective provisions in the judgment, and other measures, 3) adequacy of judgment despite absent party, 4) adequacy of remedy for plaintiff if the case were dismissed. IF PARTY FOUND TO BE INDISPENSABLE - MUST DISMISS THE CASE. The Court in Helzberg found that Lords was a required party because he had an interest in the case since he might have been prevented from opening his jewelry store. However, joinder was not feasible because there was no jurisdiction over him. The Court decided, after

going through all the factors, that the case could proceed without him because his interest arose from a separate lease agreement, there was no prejudice because the leasor Valley West was the one who executed the two inconsistent lease agreements, Lords was given the opportunity to intervene but did not do it, and the plaintiff can have an adequate remedy without Lords. RULE 22 and §1335, §1397, §2361: INTERPLEADER - case: southern farm life vs. murderous miss davis The concept of interpleader is that, where 2+ persons are engaged in a dispute over some property, and the subject of that dispute is in the hands of a 3rd party who is willing to give up the property, the 3rd person is not obliged to incur the expense and risk of defending the action. Rather, the 3rd party can give up their property and be relieved from further actions concerning the matter, leaving the court to resolve the dispute between the persons claiming an interest in the disputed property. For example, the life insurance company in Southern Farm filed an interpleader action and named as defendant Ms. Davis and the unknown heirs of her deceased husband. Because Ms. Davis had been arrested and charged with killing her husband, she would not be able to recover the proceeds from his policy if she is found guilty. Similar to impleader, interpleader protects a party like the life insurance company from multiple and inconsistent lawsuits by depositing the disputed funds into the court and letting the competing claimants duke it out. The court can have jurisdiction over interpleader actions in two ways. First, Rule 22 provides a procedural device for interpleader actions and does not require that the multiple claims have a common origin and can be adverse or independent of each other. Second, 28 USC §1335 gives federal courts subject matter jurisdiction over interpleader actions if jurisdiction, venue, or service of process is a problem. It gives federal courts original jurisdiction of any civil action of interpleader so long as the AIC is >$500 and the claimants are minimally diverse. §1397 permits venue to be proper in a judicial district where one or more claimants reside, and §2361 permits service anywhere in the United States. RULE 24: INTERVENTION Rule 24 functions to promote judicial economy, thus warranting it only when savings of party and judicial resources from extra lawsuits outweighs the costs from adding the intervening party. Court may decline to permit intervention if it would unduly delay or prejudice the rights of the original parties. The other joinder rules address situations where existing parties can bring in other parties, but Rule 24 permits an outside party to enter into the suit on their own. They can do so in 2 instances: 1) intervention of right, and 2) permissive intervention. Rule 24(a) permits intervention of right when someone is either given an unconditional right to do so by federal statute, OR claims an interest relating to the property or transaction that is the subject of the action AND is so situated that disposing of the action may impair or impede their ability to protect their interest, UNLESS existing parties adequately represent that

interest. The adequate party exception can be challenged by showing either that the existing party’s interest is not as great as theirs, or if there is evidence of “collusion” between the existing parties (I GUESS to exclude them?). REQUEST TO INTERVENE MUST BE TIMELY MADE. If it’s too late, there is less of an opportunity to influence the decision and may be more difficult to justify to the court. Rule 24(b) permits permissive intervention when they are given that right by statute, OR the person has a claim or defense that shares a common question of law/fact to the main action. Appeal + scope of review 1291, 1292, 2111 FRCP 46 cases: aetna, liberty mutual, lauro lines, Anderson, jayco A party who is dissatisfied with the outcome of litigation in a trial court might seek review by an appellate court. Appellate courts review judgments-not reasoning-and they review judgments only if: - a losing party (1) -can demonstrate an adverse outcome (2) -about which there was a final judgment (3) -from which the party objected. (4) A losing party can only appeal if their rejected claim or defense would have entitled them to more or different relief. A judgment may have different qualities and legal consequences dependent on the claim, other than monetary relief. (Aetna) However, the appealing party must have made a record of challenging the appealable issue at the trial court level. FRCP 46 requires that the party state the action it wants the court to take (or make an objection to the ruling) and the grounds for doing so. The exceptions to the required objections include: 1) the appellee does not waive any arguments not made in the lower court, 2) if the law changed after the appeal was filed, 3) when the error is so obvious, 4) if subject matter jurisdiction is being challenged. 28 USC §1291 provides that the federal courts of appeals shall have jurisdiction of appeals from all finals decisions of the district courts. The final judgment rule states a final decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. A partial judgment on liability alone, without a judgment on the relief, is not final, so the appellate courts lacked jurisdiction to hear the appeal. (Liberty Mutual) However, there are a number of exceptions to the final judgment rule. The “Collateral Order Doctrine” allows appealibility in a small class of prejudgment orders that are collateral to rights asserted in the action, and that are too important to be denied review and too independent of the cause itself to require waiting until final judgment is entered. Three elements must be met: (1) it conclusively determines the disputed question, (2) it resolves an important issue completely separate from the merits of the action, and (3) it is effectively unreviewable on appeal from a final judgment. Examples of such orders include a denial of a motion to dismiss based upon a claim of absolute or qualified immunity, because they involve immunity from the suit itself and that right would be destroyed if it were not vindicated before trial. Orders that do not qualify as “effectively unreviewable” include claims of improper

jurisdiction, service of process, and a denial of a motion to dismiss on the grounds of a forum selection clause (Lauro Lines). The second exception lies within §1292(a), which allows appeals from interlocutory orders regarding injunctive relief. The third exception lies within §1292(b), which involves situations where the trial court judge’s order involves a “controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” However, application of It must be done within ten days after the entry of the order. A fourth exception is a writ of mandamus where a party asks the appellate judge to require the trial judge to do his duty but it must be an extraordinary situation. If the issue on appeal is an issue of law, it gets a “de novo review” by the court of appeals and they only consider legal questions without deference to the trial court’s analysis. However, if it is an issue of fact, the court of appeals can only reverse if the trial court’s decision was “clearly erroneous” as stated in Rule 52. Clearly erroneous means the reviewing court has reviewed the evidence is left with a definite and firm conviction that a mistake has been committed. When there are two permissible views of evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the finding of facts are made by a judge as to credibility determinations for witness testimony. (Anderson). §2111 states that an appellate court can’t reverse for errors unless that error affected the substantial rights of the parties. Usually, that means the outcome would have been different without the error. The court in Jayco held that an error in the admissibility of evidence did not meet this standard because the plaintiff had advance warning of what was in the testimony. Claim Preclusion - Case: frier, taylor, gargallo Claim preclusion aka “res judicata” forbids a party from litigating a claim was, or could and should have been, raised in former litigation. The basic rule for claim preclusion is: (1) final, valid judgment on the merits, (2) precludes the same parties (and those closely related to them), (3) from litigating the same (or a sufficiently similar claim) in a subsequent lawsuit. Claim preclusion promotes efficiency, finality of decision, and protects defendants from harassment. It also gives effect to judicial authority by preventing parties from seeking to undermine a judge’s determination of a claim. (Taylor) In accordance with the full faith and credit clause, if a prior action is in state court and a subsequent action is in federal court, you have to look to the law of the state to see if they would give preclusive effect to that determination (except if there’s a compelling federal interest). In Frier, the Court noted that Illinois law had a narrow view of claim preclusion because they only barred suits if the cause of action was the same. However, the 2nd Restatement adopts a broader view and precludes subsequent claims arising from the same transaction or series of transactions - which include matters related in time, space, origin, or motivation. It also gives weight to whether the claims form a convenient trial unit, and whether their treatment as a unit conforms to the parties expectations or business understandings or usage. “Transactionally related” and “common core of operative facts.” Claim preclusion also bars defenses and compulsory counterclaims that should have been brought in the first suit.

The general rule for claim preclusion is that only the same parties are bound by the claims litigated in the prior action. However, Taylor recognized six exceptions: (1) agreement by parties to be bound by the prior action, (2) preexisting substantive legal relationships, (3) adequate representation by someone with the same interests who was a party, (4) a party assuming control over prior litigation, (5) a party who loses an individual suit who then sues again as representative of class, (6) special statutory schemes such as bankruptcy and probate. A party’s representation of a nonparty is “adequate” for preclusion purposes only if 1) their interests are aligned, 2) either the party understood herself to be acting in a rep capacity or the original court took care to protect the interests of the nonparty, and 3) nonparty had notice of the original suit. The Court declined to adopt a “virtual representation” exception because it violates due process and the recognized exceptions are sufficient. Issue Preclusion - Case: Illinois, parklane Issue preclusion aka collateral estoppel comes into play when a claim is not barred from subsequent litigation but some issue involved in that claim was actually previously litigated. To preclude re-litigation of an issue on the same or a different claim: (1) the issue of fact or law must have been, (2) actually litigated and determined by, (3) a valid and final judgment, and (4) that determination is essential to the judgment. In addition, the party burdened with issue preclusion must have had an “adequate opportunity and incentive” to litigate the issue in the earlier suit. Whether it is the “same issue” may depend on: (1) how closely related are claims, (2) whether the parties had the same burdens in both actions [civil v. criminal], (3) overlapping or different evidence, (4) same or different legal rules, (5) whether pre-trial prep/discovery would have been the same. To determine if an issue was “actually litigated and determined” courts generally look to pleadings, final judgments, verdicts, summary judgments, etc. However, default judgments, consent judgments, and judgments based on stipulations of fact or admissions will generally not be viewed as actual litigation unless issued as penalty. If a verdict is too general and cannot be said to have been solely based upon one finding, then it is not considered “essential to the judgment” and thus has no preclusive effect. (Illinois) Unlike claim preclusion, issue preclusion allows for non-mutuality in the sense that a non-party can benefit from issue preclusion where the same claimaint lost in a prior suit but the non-party wouldn’t be bound by issue preclusion from a prior suit . Issue preclusion can be used offensively where a non-party plaintiff is suing a defendant that lost in a prior suit and claims that the defendant is estopped from relitigating the same issue in dispute, as long as the defendant had a full and fair opportunity to litigate. To determine if they did, the court must weigh: (1) if the defendant had the same incentives to defend vigorously and could foresee future suits, (2) if the judgment relied upon is inconsistent with other judgments, (3) if the plaintiff could have joined in the first action, and (4) where the second action affords the defendant procedural opportunities unavailable in the first action that could cause a different result. (Parklane)

In Parklane, plaintiffs were allowed to use a judgment against Parklane in a prior suit brought by the SEC because the plaintiffs couldn’t have joined in the first suit and it was foreseeable that private actions would follow a successful SEC judgment. On the other hand, defensive use of issue preclusion can be used by non-party defendants to prevent a same plaintiff in a prior action from asserting a claim that the plaintiff previously litigated and lost against another defendant. It creates a strong incentive for plaintiffs to join all potential defendants in one action. Removal Jurisdiction Case: Caterpillar 1441: removal, 1446: procedure, 1447: procedure after Removal jurisdiction gives the defendant, sued in state court, the right to remove to the federal court and override the plaintiff’s choice of forum. Under §1441, any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants to the district court of the united states for the district and division embracing the place where such action is pending. [Go through 1331, 1332, or any of the exclusive fed jd statutes - ex: patent, trademark, us official] Go through 1441(b)(2) for removal based on diversity of citizenship - is defendant a citizen of the state in which the action was brought? Requirements for diversity must be met both at the time the case is filed in state court and at the time the defendant removes the case. Was defendant properly joined and served? Under §1446, a defendant or defendants who seek to remove a state action to federal court must file a notice with the court within 30 days after being served. As long as it is within 1 year since commencement of the action (and the plaintiff did not try to delay by deliberately failing to disclose). The notice must contain a short and plain statement of the grounds for removal, signed pursuant to Rule 11, and be attached to a copy of all process, pleadings, and orders served upon them. After filing the notice in federal court, the defendant must promptly give written notice of the removal to all adverse parties and file a copy of the notice in state court. However, if there is more than one defendant, all defendants who have been properly joined and served must join in or consent to the removal of the action. If a later defendant joins in and decides to remove, the first defendant’s failure to remove does not estop her from joining the second defendant’s removal. (“Last Served Approach”) §1447 In order to remand a case back to state court, a motion to remand on the basis of any defect other than lack of SMJ must be made within 30 days after the filing of the notice of removal. An order remanding case to state court is not reviewable on appeal except if it was removed to federal court pursuant to 1442 (federal officers) and 1443 (civil rights). If there is no federal subject matter jurisdiction, there is no time limit for the plaintiff’s moving to remand the case. The court can also remand sua sponte. If the jurisdictional defect is cured before entry of judgment in federal court, removal might be upheld. (Caterpillar)

Erie Rea cases: hanna, semtek, shady grove Rda cases: erie, York, byrd The state based claim of defamation and wrongful termination is being heard in federal court, which means the federal court is sitting in diversity. There is now a vertical choice of law issue as to what extent the federal court has to abide by the directives in §1652 Rules of Decision Act (“RDA”) to apply state law. The RDA states: “The laws of the several states...shall be regarded as rules of decision in all civil actions in the courts of the United States, in cases where the apply.” For many years prior to the earth-shattering case Erie Railroad v. Tompkins, the country relied on the interpretation of “state law” in Swift v. Tyson to exclude judge made law, and instead relied upon a general federal common law. Erie overruled Swift, holding that state law includes both statutory and judge made law. A general federal common law infringes on the 10th Amendment because it is an unconstitutional assumption of powers by federal courts and renders impossible equal protection of the laws. As such, courts sitting in diversity are expected to act as a state court would without bias and apply state substantive law (rules of decision) and federal procedural law. In the Rules Enabling Act, Congress delegated to the Supreme Court the authority to promulgate the federal rules of civil procedure for the federal courts so as long as they don’t abridge, enlarge, or modify any substantive right. The Rules Enabling Act repealed the Conformity Act, which required federal courts to apply state procedural law. However, the difference between substantive and procedural law is not so clear, since rules of procedure may affect substantive rights. Post-Erie, there have been different tests for determining when a federal court in diversity must apply state law. The first question is whether or not there is a federal directive on point. The next question is whether the federal directive is in direct conflict with the state statute. If a direct conflict is found, the next step is a REA/Hanna analysis. This path is taken by parties who want the federal directive to apply instead of the state statute. The Hanna analysis was developed after the enactment of the FRCP because federal courts were concerned with providing a uniform procedure for all federal courts. In order to find for a direct collision, there are four factors to take consider. First, there is a conflict if the scope of the federal rule is sufficiently broad to control the issue before the court. Second, the Court must assess whether the purpose of the FRCP is co-extensive with the state rule. (Burlington) Third, there is a conflict if the FRCP is discretionary while the state rule is mandatory. Fourth, there is a conflict if one rule keeps the courthouse door open and the other one keeps it closed. Once a direct collision is established, the Court must assess whether application of the federal rule would transgress either constitutional or statutory bounds. The Court has never found that applying a federal rule of civil procedure is unconstitutional. Under the REA 2072(a), the federal rule must be one that is a practice or procedure. Under 2072(b), it cannot abridge, enlarge, or modify any state substantive right. (Sibbach) Courts almost never find that a federal

rule shouldn’t be applied. There are some exceptions, a viewpoint led by Ginsburg, (see dissent in Shady Grove), that Courts should not immediately jump to the conclusion that there is a direct conflict without considering whether the federal rule is actually affecting state substantive rights. To do so, it is helpful to look at the legislative history of the state statute, whether it was enacted because of state substantive concerns, and whether it only applies to certain cases vs. all types of cases. In Semtek, the Court found that a substantive right would be modified if an involuntary dismissal in federal court were to bar refiling of the claim in state court. If a direct conflict is not found, or there is no federal directive on point, then the next step is a RDA/Erie analysis. Parties who want the Court to apply the state rule will argue that there is no direct conflict. The next question to ask is whether the state rule is bound up with state created rights and obligations. If so, the state rule should apply. After the enactment of the REA, Courts were still hesitant to apply the federal rules of civil procedure. As seen in York, the Court came up with a rigid outcome-determinative test. If the outcome of the litigation would be substantially different if the state law were not applied, then the Court should apply the state law. This led to situations where federal courts were ignoring the federal rules of civil procedure and applying state procedures just to comply with this rigid test. However, Hanna modified the York test because it required the Court to also consider the Twin Aims of Erie. The first aim is to discourage forum shopping, which the court in Erie was concerned with because in pre-Erie days litigants would “forum shop” to federal court to take advantage of federal common law. So, the question now is whether the difference between applying state law and ignoring state law would lead the plaintiff to prefer the federal forum. If so, the federal court should apply state law. The second aim arose out of a 10th Amendment concern to avoid the inequitable administration of the law. If there is no supreme federal rule or statute that the federal court should be applying, the 10 th amendment says that state law should apply. Federal courts sitting in diversity should not be operating differently than state courts when there really is no guiding federal rule or practice. However, there are circumstances where federal courts have found a countervailing interest in that a federal practice should trump a state rule, such as in Byrd where applying a state procedure that required the judge as factfinder was in conflict with the 7 th Amendment right to a jury trial. Pleadings Cases: Haddle, Bell, Conley, Twombly, Iqbal, Zurich, Jones Federal Rule 3 says a case is commenced when the plaintiff files the complaint. A complaint is a plaintiff’s first opportunity to tell their story. A plaintiff must then arrange to have a summons and a copy of the complaint (“process”) served on the defendant. Rule 8(a) sets forth 3 requirements of any complaint: (1) a statement of the grounds of subject matter jurisdiction, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief sought. The purpose behind having these standards is to filter out claims that don’t belong because of lack of jurisdiction or meritless claims - keeping in mind the delicate balance of interests. The pleading burden shouldn’t be too high because it

would cause merit-based cases to be dismissed early on, and it shouldn’t be too low to allow meritless claims to go forward. In addition, parties should be given notice in order to defend/respond appropriately. Failure to state a claim upon which relief can be granted can result in a dismissal under Rule 12(b)(6). For decades, the Supreme Court interpreted Rule 8 to be very brief under the assumption that details could be learned during discovery. For example, the Court allowed conclusory claim of negligence to be sufficient. (Bell) Thereafter, the Supreme Court established a “notice pleading standard” which required a “short and plain statement” that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. (Conley) The complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. (Conley) Basically, any statement supporting a theory for a claim would suffice unless it seemed factually impossible and plaintiff is not required to set out in detail the facts upon which the claim is based. The Court reasoned that having such a loose filter satisfies policy concerns, such as: providing defendant with fair notice, cull meritless claims after liberal opportunity for discovery, preventing pleading from being a game of skill in which one misstep by counsel would be decisive to the outcome, and to facilitate a proper decision on the merits. The Court overruled Conley’s notice pleading standard in Twombly, instead favoring a plausibility standard. A complaint must state enough facts to state a claim to relief that is plausible on its face. Claims need to be nudged across the line from conceivable to plausible. As such, a complaint that only gives conclusory allegations is not plausible on its face. The court reasoned that requiring this new, stricter standard will prevent wasting judicial resources and reduce the number of meritless claims clogging up the courts. There was much confusion after Twombly because many assumed that it would only apply to antitrust claims. The Court cleared up that confusion in Iqbal, holding that Twombly’s plausibility standard applies to all civil actions. Twombly set out factors for the plausibility standard. First, conclusory allegations in the complaint that amount to nothing more than a “formulaic recitation of the elements” should be ignored. Second, the factual allegations supporting the legal conclusion must plausibly suggest an entitlement to relief. The factual content should allow the court, after using their judicial experience and common sense, to draw the reasonable inference that a defendant may be liable - such that an obvious alternative explanation is disproved. The primary purpose of the special pleading standard for fraud claims in Rule 9(b) is to afford a litigant accused of fraud fair notice of the claim and the factual ground upon which it is based. As per 9b, a party must state with particularity the circumstances constituting fraud or mistake. The time, place, and nature of the alleged misrepresentations must be disclosed to the accused party. (Zurich) Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally. Facts must give rise to a strong inference of fraudulent intent in light of other explanations. (Zurich) Courts should generally not depart from the usual practice under the Federal Rules on the basis of “perceived policy concerns” (in favor of putting burden on the prisoner to reduce the amount of litigation) (Jones).

Rule 15: amended pleadings - case: zielinski v. Philadelphia piers, aquaslide, moore, bonerb Under Rule 7, pleadings include complaints, third party complaints, and answers to complaints, counterclaims, crossclaims, and third party complaints. The pleading rules are liberal in allowing parties to amend their pleadings, because as the case goes on parties will learn things that make it necessary or desirable to change what they asserted earlier. Rule 15 gives parties the right to amend their pleading ONCE without court approval. Plaintiffs can amend their complaint within 21 days after the defendant served their responsive pleading or 12(b), (e), or (f) motion upon them (whichever is earlier). Defendants can amend their answer within 21 days after serving it. A RESPONSE to an amended pleading must be made within the time remaining to respond to the original pleading OR within 14 days after service of the amended pleading (whichever is later). If the time in which a party’s right to amend has expired, that party must motion for leave to amend and Rule 15 says the court “should freely give leave when justice so requires.” Evidence of bad faith, prejudice, or undue delay might be sufficient to deny leave to amend. In Aquaslide, the Court allowed defendant Aquaslide to amend its answer to deny manufacturing of the slide after the CEO found out that the alleged defective slide was a counterfeit. The court granted leave to amend because there was no bad faith on Aquaslide’s part since they relied on the conclusions of three different insurance companies, and there was no prejudice to the plaintiff because they could always sue the counterfeit manufacturer. Rule 15© deals with amendments of pleadings after the statute of limitations has run. Rule 15 balances the need for amendments in certain situations and preventing unfairness/prejudice to a defendant who was not fairly put on notice. Amendment after the SOL has run to add a new claim will only be allowed if the claim arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading. Allegations in the original and amended pleading must derive from the same nucleus of operative facts. (Bonerb) For example, in Moore, the amendment complaint alleged an act of negligence that occurred during and after the surgery but the original complaint only involved allegations of negligence before the surgery. Because the time period differed, the court denied the amendment because the defendant was not put fairly on notice of the new allegation before the statute of limitations had expired. If the amendment changes the name of a party, it will only be allowed if the party received such notice of the action (within 120 days after filing of the original complaint) that it will not be prejudiced in defending, and that they knew/should have known the action would have been brought against it, but for a mistake concerning the proper party’s identity. For example, the plaintiff in Zielinski had sued Philadelphia Piers for injuries sustained in a forklift collision but they learned that Philadelphia Piers was actually sold to Carload Contractors. Zielinski would have been allowed to amend his complaint to change the name because Carload obviously had notice of the suit but somehow failed to inform Zielinski of the name change. Rule 11 Cases: Bridges, Norwest, Mattel

Rule 11 regulates how lawyers and clients conduct themselves in federal pleading and motions and other papers, not related to discovery. The purpose of Rule 11 is to dissuade frivolous and dishonest lawsuits. Rule 11 is consistent with the REA’s purpose to streamline the administration and procedure of the federal courts. Rule 11 is violated only if, at the time of signing, the document was objectively unreasonable under the circumstances. Counsel’s signature certifies the pleading is supported by a “reasonable factual investigation” and a “normally competent level of legal research.” For example, the attorney in Mattel was sanctioned under Rule 11 because he deliberately refused to conduct a very simple investigation that would have revealed his client had no claim (Mattel) An incompetent level of legal research, for example, is failing to exhaust administrative remedies before bringing a claim that requires that procedure. (Bridges) A motion for sanctions under Rule 11 must be made separately from any other motion. “Safe Harbor Rule”: The motion must be served on the party but cannot be filed with the court until 21 days after service. SCOPE OF DISCOVERY CASES: FAVALE, LEFLORE, RENGIFO, HICKMAN, ABBOTT, GOODYEAR The federal rules standards for pleadings are complemented by the broad discovery provisions. The federal rules adopt the philosophy that discovery should be open and broad because more information is better than less, and that each side should know every relevant thing the other side knows. That approach is beneficial because it promotes the search for truth and may even lead to settlement because parties may realize the weaknesses of their positions. On the other hand, discovery is very expensive and time-consuming especially if expert witnesses are involved, and there is extensive electronic discovery to be preserved and managed. Under Rule 26(b), discovery can only be obtained if it is non-privileged matter, relevant to any party’s claim or defense, and proportional to the needs of the case. In addition, evidence does not have to be “admissible” in order to be discoverable because it could lead to admissible evidence. Discovery that is “relevant” includes anything that pertains to prove/disprove the party’s claim/defense. Discovery regarding a defendant’s net worth is also now deemed to be relevant if plaintiff is seeking punitive damages. In Favale, the court denied plaintiff’s motion to compel information regarding the accused’s psych history because it was not relevant to her claim of sexual harassment. A request for discovery must also be “proportional” to the needs of the case, considering the importance of the issues at stake, amount in controversy, the parties relative access to the relevant info, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discover outweighs the likely benefit. The court has the power to place limits on the frequency and extent of discovery if it not proportional. In Leflore, the court limited plaintiff’s discovery request for all inmates complaint files for the past 10 years to only include the time from when the defendant was hired was to present because that was the only relevant information needed. In addition, the defendant argued the request was overly burdensome but the court decided that the request

was relevant and the burden was the defendant’s fault for not organizing their files. In addition, the court can limit discovery if it is unreasonably cumulative or duplicative, can be obtained from a more convenient/less expensive source, the party seeking it had ample opportunity to obtain the information, and e-discovery would be unduly burdensome or expensive. After a meet and confer, a party can seek a protective order under Rule 26© to not comply with a discovery request because it is annoying, embarrassing, oppressive, or unduly burdensome or oppressive. In Rengifo, the court approved plaintiff’s protective order to not disclose his immigration status because it was not only irrelevant to his claim for unpaid wages but would have collateral consequences including a threat of deportation. Discovery also excludes “privileged” information. Privilege includes the right to not selfincriminate, privileges arising from a special relationship such as doctor/patient, and other things as stipulated under substantive law. Discovery also excludes “work product” which is prepared by an attorney in anticipation of litigation or for trial (qualified immunity), and includes mental impressions, conclusions, opinions of legal theories concerning the litigation (absolute immunity). However, there is an exception for written statements only if the other party cannot obtain their one, like if a witness is no longer available to talk to. (Hickman denying plaintiff’s request for attorney work product because they were free to examine the public witness testimony). The policy reason behind this is to protect the integrity of an attorney’s strategy. Under Rule 26(b)(5)(A), a party can object to a discovery request by expressly stating that it calls for privileged information or work product and describing the nature of the documents, communications, or tangible things, without revealing the privileged information itself, in a manner that will enable the other party to assess the claim. Parties who anticipate litigation have a duty to preserve evidence. The court in Zubulake outlined the affirmative steps a counsel must take to ensure compliance with that duty. First, counsel must suspend its routine document retention/destruction policy and put in a place a “litigation” hold. Communication with tech team may be necessary to do so. Second, counsel must communicate directly with the key players in the litigation and periodically remind them of their duty to preserve plus ensuring they understand how to. Third, counsel should instruct all employees to produce electronic copies of their relevant documents. Failure to preserve electronically stored information may lead to repercussions, such as an adverse inference instruction, dismissal, or default judgment. For example, in Zubulake, the defendants continued to deliberately destroy and hide electronic evidence - aka “spoliation”. This may warrant an adverse instruction if the following elements are satisfied: 1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed, 2) that the records were destroyed with a “culpable state of mind”, 3) the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. The Court decided to give the jury an adverse inference instruction such that the evidence was unfavorable to defendant because they had acted willfully, the lost information was presumed to be relevant. Parties who fail to comply with discovery orders may be sanctioned, but the sanctions have to be compensatory rather than punitive in nature. The complaining party can only recover the portion of his fees that he would not have paid but for the misconduct. (Goodyear)