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Table of Contents
I. NOTICE: RULE 4................................................................................................................7
A. Right to Notice...........................................................................................................................7
B. Serving by Publication & Knowledge of Failed Delivery.............................................................8
C. Notice: Constitutional Requirements of Rule 4..........................................................................9
- The three-step test: fails to support an exception to service of process requirements in rule 4
(Harris).............................................................................................................................................10
D. Improper Conduct to Effect Service..........................................................................................10
E. Rule 4(f)(1): Serving Process Abroad........................................................................................12
F. Opportunity To Be Heard.........................................................................................................12
G. Mathews v. Eldridge Balancing Test.........................................................................................13
H. Attorney Fees...........................................................................................................................13
II. The Allegations: Pleading the Complaint under the FRCP...............................................18
A. The complaint: Pleading too many facts  Pleading your Way out of a Hearing.....................19
B. Requirements of Rule 8: Allegations of Fact vs. Conclusions of Law.........................................19
C. Pleading in the Alternative: How consistent must Plaintiff be?................................................25
D. International Law.....................................................................................................................26
III. Responding to the Complaint: Defenses and Objections.............................................28
A. Rule 12(b)(6) & 12(c): Motion to dismiss..................................................................................32
I. OLD Method of Moves..............................................................................................................................33
II. NEW Method of Moves:............................................................................................................................33
B. Pleading: The Answer..............................................................................................................34
C. The Answer: Affirmative Defenses [Rule 8(c)]..........................................................................34
IV. Amending the Pleadings [RULE 15]............................................................................38
A. 15(c): Relation Back of Amendments.......................................................................................39
B. Amendments Before Trial........................................................................................................41
C. Amendments During or After Trial...........................................................................................41
V. Striking Pleadings: RULE 11............................................................................................43
A. Changes between 1983 and 1993 rule 11:................................................................................43
B. Reasonable Inquiry & Well Grounded in Fact...........................................................................45
C. Warranted by existing law.......................................................................................................47
D. “Improper Purpose” vs. non-frivolous argument for establishment of new law......................47

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VI. Disclosure & Discovery [Rules 26, & 36-37].................................................................49
General Purposes.............................................................................................................................54
A. General Provisions Governing Disclosure (Rule 26(a), (f), and (g))...........................................55
B. General Provisions Governing Discovery (Rules 26(b), (c), and (d))..........................................56
C. Sanctions for Failure to Make Disclosures or to Cooperate in Discovery (Rule 37)...................64
D. Mandatory Disclosures Rule 26(a)...........................................................................................65
E. Work Product Privilege............................................................................................................67
F. Ordinary Work Product vs. Opinion Work Product..................................................................69
G. Attorney client privilege:.........................................................................................................70
- communication from the client to the lawyer without the presence of others for the purpose
of seeking legal advice. May not request information on how to get away with a crime.................70
H. Test for attorney client privilege in corporation setting...........................................................72
CONTROL GROUP TEST: Officers and agents are protected. Lower level management is not
protected by the attorney client privilege. (NO LONGER A GOOD TEST)...........................................72
I. Waiver of Attorney Client Privilege:.........................................................................................72
VII. Pre-Trial Dismissal: Summary Judgment.....................................................................74
A. Piercing the pleadings: A historical perspective.......................................................................74
B. Trilogy of cases on SJ:..............................................................................................................76
C. Evidence:.................................................................................................................................81
D. The burden of Production for SJ...............................................................................................82
VIII. Right to A Jury Trial....................................................................................................88
A. Test for Jury Trial:....................................................................................................................89
B. Guiding Jury Deliberations: Instructions and the Form of the Verdict......................................91
C. Functional considerations:.......................................................................................................92
D. Should there be a complexity exception to jury trials?............................................................92
E. 3 types of Jury Verdicts:...........................................................................................................92
IX. Trial & Motions..........................................................................................................95
X. Personal JURISDICTION................................................................................................106
A. Personal JDX..........................................................................................................................108
Ways to get Personal jurisdiction:..................................................................................................108
B. Due Process in regards to: Individual rights and state sovereignty.........................................109
C. Voluntary Presence = Personal Jdx.........................................................................................109
D. PJ: Minimum Contacts & Traditional Notions of FP & SJ........................................................110

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 E. Two prong Test for Jurisdiction under long arm statute:........................................................114
F. Minimum Contacts and Foreseeability...................................................................................114
World-Wide Volkswagen Corp. v. Woodson.........................................................................115
G. Minimum Contacts in Stream of Commerce...........................................................................115
Asahi...................................................................................................................................115
- Loss allocating rule  personal  relationship between the parties............................116
- Conduct regulating rule  territorial  influence primary behavior..........................116
J McIntyre v. Nicastro..........................................................................................................117
General jurisdiction.............................................................................................................117
- Citizenship  for corp place of incorporation/ principal pace of business...................117
- Explicit consent...........................................................................................................117
- Physical presence (served in forum).............................................................................117
- Lex loci deliciti  law of the place of the delicit (injury)  place of the injury............119
H. Reasonableness Factors.........................................................................................................120
Burger King.........................................................................................................................120
Burnham v. Superior Court..................................................................................................123
J. At Home Test.........................................................................................................................125
K. Alter ego relationship: one company is so interconnected tot working of another company as
to render it one corp as of the same..............................................................................................127
L. Sliding Scale Test....................................................................................................................128
M. Forum Selection Clause......................................................................................................128
XI. Subject Matter Jurisdiction.......................................................................................131
A. Substance v. Procedure relationship:.....................................................................................131
B. Swift v. Erie............................................................................................................................135
C. Rules enabling Act: Fed courts apply their own procedural law and then apply the state
substantive law in a diversity jdx case (also passed in....................................................................135
D. Byrd Balancing Test................................................................................................................136
E. Hanna & Shady Grove............................................................................................................137
F. Outcome Determinative Test (York).......................................................................................139
G. Substance vs. Procedural Tests:.............................................................................................139
H. State v. FRCP..........................................................................................................................140
I. Erie question:.........................................................................................................................143
XII. Federal Question Jurisdiction...................................................................................144

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 A. Routes for getting into Fed Ct:...............................................................................................144
B. Federal Q Jdx Cases:...............................................................................................................145
C. Well Pleaded Complaint Requirement: federal Q appears on the face of the “well pleaded
complaint”.....................................................................................................................................146
D. Test for fed q jdx:...................................................................................................................147
E. Tribal Courts..........................................................................................................................147
F. Removal & Remand...............................................................................................................148

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 CIVIL PROCEDURE

2. RULE
3. JUDICIAL ELABORATION/INTERPRETATION
4. Policy of the rule: purpose of that law – what it’s trying to achieve
5. Counter arguments:
a. Purposivist
b. Textualists
c. Historical
d. Practicality

Notes of the Federal Rules of Civil Procedure

- First place to look when you get a procedural question
- District court rules on civil procedure
- Rules allocating power to 3 entities:
 Plaintiff
 Defendant
 The court
- When looking at rule, think about who the rule was designed to empower
- Power allocation among the rules shifts back and forth during the trial process

History of Federal Rules of Civil Procedure:

Evolution of the rules of procedure; began under “writ system”
- Writ system: need to choose the right action
- Code pleading: followed the writ system; requires the pleading of facts
 Problematic with requiring facts bc until you have discovery, you may not have the
facts available so you want the complaint to get past the pleading stage (survive motion
to dismiss) in order to get P into the court house and into discovery where they can get
such facts  this is what notice pleading was designed to do
- Notice pleading: Federal Rules of Civil Procedure (modern day rules)
 Developed to give a democratic opportunity to be heard by allowing the complaint to
survive dismissal and get the claims into court
 Supposed to be in plain English to be easy to understand by general population
 Textualist argument: This type of pleading is beneficial to the plaintiff; allows his
complaint to survive dismissal and get to trial so he can make a case and find the facts
necessary through discovery
 Purposivist argument: Designed to surpass the code pleading and writ system rules to
get P to trial

Notice pleading (FRCP)

- Judiciary act of 1789: Developed the rules of civil procedure  Now these rules apply the
same across the country
- Developed at the judiciary Conference appoints the advisory committee
 Committee then comes up with the rules & gives the rules to the SCOTUS
 Court sends rules to congress  Congress does nothing  after 90 days, the rules
become the law

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- Problem with how the rules were developed: not democratically valid
 Rule formulation is not for “town hall meeting folks”
 The rules were not formulated in a democratically valid way bc congress did not enact
or create them, the court did

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 I. NOTICE: RULE 4
Due process: Right to Notice & Opportunity to be Heard
- State depriving you of a right  14th amendment due process
- Federal gov depriving you  5th amendment due process

Why is adequate notice important?

- Gives the person being served an opportunity to defend themselves and prepare for the suit as
well as opportunity to respond & be heard
- Notice: gives D notice that there is an action pending against him (gives notice of the suit)
Notice = Complaint + Summons
i. Complaint: what are the facts and what are the law
ii. Summons: this is when you must appear in court

Why have a rule in addition to constitutional standard?

- Ex-post standard problem vs. ex-ante problem
 Ex-ante: need for fair notice
 Ex-post: concern for fair adjudication
- If you comply with federal rules of civ procedure, then complying with the constitution 
FRCP satisfy the constitutional standards for notice

Elusive Defendant: courts typically sympathetic to attempts to service

- Can lure if he is within your state and then serve  valid bc D is voluntarily in the forum
state
- However, cannot lure into forum state to serve  fraud bc not voluntarily in the forum
state
 If a person is fraudulently enticed to come to state just for the purpose of serving
process no jurisdiction over him bc service of process was fraudulently obtained
 Service of process fraudulent  Jdx inadequate  Judgment null & void28 USC 687:
Where a person is served adequately it is recognized in all states for jurisdiction to
enforce judgment.
 Male captus bene detentus: no matter how bad the capture the detention is fine.

A. Right to Notice

Greene v. Lindsey:
Rule: Service of process must comply with the minimum standards of the Due Process Clause
by using a method that is reasonably calculated to provide the parties with notice of the
proceedings.
Facts: Eviction notice posted on door of P  P never receives notice & is evicted before
having opportunity to be heard/challenge the complaint
Procedure: Writ of possession is entered, once this is entered gives owner the right to repossess
the apartment (worst case scenario for P)
- P challenges notice on grounds of Section 1983 (directly challenges DP in serving notice)
- District court finds for landlord  goes to circuit who finds for appellants (tenants)
- Circuit: finds for tenant; cites Mullane in support

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Holding: D cannot be deprived of property (eviction) without proper notice.
- If no person home, may leave with someone over 16 or serve by posting in noticeable place
but must be reasonable under all the circumstances.
- Not requiring ACTUAL notice, constructive notice is sufficient
 But, adequate notice requires information as well as the summons and must meet
standard and reasonableness given all circumstance
- Posting on door for eviction is a violation of due process where the service through mail is a
more reasonable alternative
 Not in best interest of person being served where history of removal or customary
alternatives.
Reasoning: Due process = notice & opportunity to be heard
- but adequacy of notice must meet standard
 standard: (reasonably calculated) + be reasonable (in reference to feasible &
customary alternatives)
- Mullane standard: “notice reasonably calculated, under all circumstances, to apprise
interested parties of the pendency of the action & afford them an opportunity to present their
objections” (p.29)
 Reasonably calculated under all circumstances  measured against feasible and
customary alternatives
- Court: posting on door does not fulfill the standard given the circumstances which show
that the postings are often removed by other tenants before being seen & that landlord was
aware of the such circumstances  door posting should be used as a method of service only
as a last resort
 Reasonableness of notice is tested in reference to the “feasible and customary”
alternatives to the form of notice being chosen
 given the circumstances (of which the landlord was aware), alternative forms of notice
such as mail service were clearly more reasonable than posting on the door
Dissent: O’Connor: mail is better but just as likely it will be lost. Fastest method should be
reasonable because of denying income of rent.  ridicules majority’s holding as “naïve”

B. Serving by Publication & Knowledge of Failed Delivery

Jones v. Flowers:
Rule: when a state is attempting to serve a citizen with process, it must take reasonable steps to
serve the notice if service by mail is ineffective.
Facts: P failed to pay property taxes, after 3 yrs Commissioner sent a letter via certified mail to
his address informing him of his delinquency & that he had 2 years to pay back taxes before the
property would be sold.
- The letter was returned as unclaimed
- 2 years after letter was returned, Commissioner published a notice of public sale in a
Gazzette
 Ad did not receive response so private sale of property was arranged with D
- Before sale was completed, Commissioner sent another letter to P which also returned
unclaimed
- D purchased property & once D was notified he sued in AK state court
 Argued form of service employed was constitutionally inadequate

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  Trial ct: SJ for D  Affirmed by AK SC
Issue: Is notice by mail of a tax sale, when ineffective, constitutionally sufficient to provide
notice to a litigant?
Holding (Roberts): While reliance on service by mail is not unreasonable on its face, there are
instances when the state is required to enlist other forms of service.
- Actual notice is not required, but where P knows of the failure to deliver notice (or D’s
failure to receive notice), P must take steps to correct.
- When the state is aware that service by mail has failed, it must take other reasonable
steps to ensure that service is achieved.
 Ex of reasonable steps: sending notice by regular mail, sending notice simply to
“Occupant,” or posting notice on the front door of the house. These steps would make it
more likely that service would be achieved.
 the fact that Commissioner placed an ad in the newspaper for the sale was not sufficient
to constitute notice reversed.
Dissent (Thomas): majority should review the sufficiency of the notice to P from the
perspective of the relevant government agency at the time the notice was sent. Since actual
notice is not required, this standard does not require any other action from the state once the
letter had been returned. Furthermore, many of the alternatives proposed by the majority are
overly burdensome on the state’s ability to transact business.

C. Notice: Constitutional Requirements of Rule 4

Mid-Continent Wood v. Harris:

Rule: In order to be proper and enforceable, service of process must comply with the
requirements set forth in FRCP 4
- A liberal construction of the rules of service of process cannot be used as a substitute for the
plain legal requirements as to the maner in which service of process may be had
- Attempts to serve:
 Personally through US Marshal
 Through certified mail at place of employment
o D denies receiving notice
 Private process server at what was thought to be his residence
o 2x attempted personal service
o Left notice on door
 Followed up by mailing another copy to same address
 Attorney sent letter to residence (@ request of district ct)
- District court: P’s attempted service did not comply with rule 4; but court then devised a 3-
part test as an exception to usual requirements of strict compliance of rule 4
HOLDING: Service is only proper when it complies with the strictures set forth in Rule 4, and
the district court improperly relaxed those standards in using the 3 part test.
- Rule 4: requires proper service: a copy of the summons and complaint must be delivered to:
D, an agent of D, or to the D’s home.
 P did not comply with these standards, so district court invoked a 3-step test to evaluate
whether service was proper, despite the fact that service did not comply with Rule 4.
Applying that test, the district court held that D had notice & he had been properly
served.

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- The 3 step test is invalid & the court should not have applied it to determine personal
jdx over D.
 Lower courts should not make common law process rules and cannot make up rules to
avoid strict compliance.
 Therefore, no reason to apply an exception to Rule 4  reversed.
- The three-step test: fails to support an exception to service of process requirements in rule
4 (Harris)
1. must have actual knowledge of the law suit;
 Simply bc D may have been aware of the suit bc P issued a complaint & summons
to D’s attorney, this awareness was not enough to impute actual knowledge &
cure improper service
 Actual knowledge does not equal proper service (necessary for personal
jurisdiction)
o Settlement negotiations are actual notice of suit
o But actual notice not enough bc even if knows of lawsuit, does not give
information regarding place and time of when he must be present
2. Process server must show that he duly tried to serve D properly; and
o Fact that P tried diligently to serve D should not be a factor in determining
whether court has jdx over him
o efforts were no good bc sent to wrong address  Coming close to service
doesn’t count.
3. Equity warrants an exception to the strict requirements of Rule 4.
 Facts do not suggest that conduct by D & his attorney was so heinous or evasive
that it would be inequitable to find court had no personal jdx over him given that
he did not receive the notice
o No evidence of evasion or inequitable conduct by D
Rule:
- If service of process doesn’t meet criteria of Rule 4  not legitimate
 Like cases must be treated alike
- Law is tool for shaping behavior
 Can adjust behavior to conform with the law
 If “secret”, retroactive, or unpredictable law  can’t conform  not legitimate
 Don’t want law to change based on subjective preferences of the judges the cases are
presented to

Problem with requiring strict notice of the law?

- CL (case law created by the judiciary branch) innovates the law
 Problematic bc every time the judge changes the law it is a retroactive change to the
existing law to the case at hand
o “Retroactive advisement”
 Which is why judges are so hesitant to change the law  make arguments based on the
facts (stronger than arguments to change the law)

D. Improper Conduct to Effect Service

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Wyman v. Newhouse
Rule: A judgment obtained through fraud in one jurisdiction is void and will not be enforceable
in another jurisdiction.
- Induced into FL jurisdiction via seduction  Luring under false pretenses
 Suing for $500,000; Serves process upon inducing him to travel to FL
- Upon being served D returns to NY where counsel advises him to ignore service
- P gets a default judgement against him bc he doesn’t show up to court upon serving him in
FL
 P goes to NY and asks the court to enforce the default judgement given in FL
 Relies on art. 4 sect. 1“full faith and credit clause”: Where a person is served
adequately it is recognized in all states for jurisdiction to enforce judgment
HOLDING: in order for full faith and credit clause to apply there must be valid jurisdiction
- Not valid jdx for judgement bc service of process was fraudulent (obtained fraudulently) and
 the court’s judgement was procured fraudulently & lacks jdx  judgment null & void
- The court in FL would have vacated the judgement had D shown up to defend himself or had
he appealed the case in FL
 Also could have appealed to a federal court since a federal issue
o If had been appealed in FL the court would evaluate whether the serving of
process was valid and we think they would have held it invalid bc of fraud and
thus  no full faith of credit clause applies

Fourchette Problem case (p. 25)

- Mailed a copy of summons to condo address
 Sufficient ? No  improper process  defense under 12(b)(4)
o Not sufficient without the complaint! Summons just informs that you have to
show up at court
o Sufficient process notice: summons + complaint
- Faxed a copy to same condo
- Faxed to 3 art galleries where she has business
- Email greeting card “you are being sued” law firm return #
 Email is sufficient as long as the attorney was suitable agent to serve process
o But, email must include both complaint & summons to be sufficient
- In hand service to house keeper
 “could be more than 16 y/o”
 Housekeeper is a suitable agent to whom deliver notice (suitable discretion)
o Rule 4: suitable age and discretion  service may be effected by anyone who
is not a party that is at least 18 y/o (suitable age)
 Sufficient?
o There is factually sufficient evidence of indica of permanence as to the dwelling
or usual place of abode, such as in Khashoggi, to which there was a sufficient
service of notice as afforded to the defendant under their right to due process
- Mailed Summons & Complaint to lawyer in crim case
 Sufficient?
o Not sufficient bc not clear that he was a suitable agent for serving process

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- Actor to deliver papers on courthouse steps singing “a summons and complaint” with cake
given to her with papers under the cake
 Sufficient?
o Yes Sufficient, unlike in Wyman, this is not fraudulent inducement into the
jurisdiction and the service process was not fraudulently served

E. Rule 4(f)(1): Serving Process Abroad

- In attempting to hale a foreign D into fed court by service abroad P must begin with a service
of process recognized by the Convention or another international agreement
 May send judicial docs by postal channels directly to persons abroad as long as the state
of destination does not object
- Hague Convention on Service of Process Abroad:
 P serves notice to the central authority of foreign country who then serves the notice to
the foreign defendant
 Why has the treaty (convention) adopted the use of the central authority?
o Acts as a check between state sovereignty within the foreign country
o Why? Allowing service of process without the check of the central authority may
be a violation of state sovereignty
- No full faith and credit clause among international borders
 However, there is “comity”

F. Opportunity To Be Heard

What kind of hearing is constitutionally suitable?

a. Adversarial v. Non-adversarial?
 Adversarial Hearing: a trial or legal procedure in which the parties in a dispute have
the responsibility for finding and presenting evidence; a lawyer for each side is
hallmark of adversary system (Formal Legal Contestation & Litigant Activism)
o the fact finding proceedings are conducted by the lawyers on both the sides. 
o The judge is not privy to the investigations conducted but will have access only to
the results of the examination which are put forth by both sides. 
o Complex, protracted, & costly also particularly variable & unpredictable
outcomes (uncertainty)
 Ex: compensation of medical or traffic accidents (tort law)
 Non- Adversarial: In non-adversarial system, D is the first person who the judge
speaks to. The complete power of the proceeding’s rests with the judge. (Informal) 
simple fact questions are capable of resolution in non-adversarial context
o dominated by an official decision maker applying authoritative norms or
standards (judge/agency officials) who’s in charge of the fact finding, summoning
the orders of the witness, the evidence to be presented to the jury and the
proceeding of the court.
o Any rivalry between the opposing lawyers is effectively reduced as they do not
hold as much influence over the proceedings.
o time saving & helps cut to the heart D’s argument. It is generally preferred that D
speak bc if he does not do so conveys a sense of in security from his behalf to the

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 judge. Once the defendant has spoken then it is up to the judge to choose which
witness to call and in what order
 ex: juvenile courts, family courts, small claims, workers’ compensations,
commercial arbitration, mediation, etc..
b. Can court limit the amount you can pay your attorney?
c. Is court required to provide counsel?
 Presumption: there is a right to appointed counsel only where the indigent, if he is
unsuccessful, may lose his personal freedom

G. Mathews v. Eldridge Balancing Test

- Test for procedural due process challenges: (5th & 14th amendment violations)
 Balances the private interest vs. government interest (function involved & burden on
gov to provide additional notice) vs. risk of error + cost benefit of additional/existing
procedures  this test is a standard, not a rule
- Whether an administrative procedure meets the constitutional guarantees of the Due Process
Clause requires a consideration of three factors:
(1) the private interests at stake in the administrative action
(2) the government’s interests, and
- including the function involved and the fiscal and administrative burdens that
additional or substitute procedural requirements would entail
(3) the risk of erroneous deprivation of this interest through the procedures used &
probably value, if any of additional or substitute procedural safeguards.

H. Attorney Fees
- The American Rule: each party to pay their own attorney fees or it will lead to satellite
litigation about attorney fees. Gatekeeping if you pay your own fees you are less likely to file
a frivolous claim.
- Policy behind American Rule:
 Encourages parties to bring cases; want the courts to get the merits of the cases
without having to bear the fees of attorney’s fees of both parties
 Lots of close cases; not allowing them to bring cases in fear of paying the fees would
not allow poor people to bring cases
 Inefficient  satellite litigation regarding attorney fees
- Policy behind losing party to pay  discourages frivolous lawsuits
 Attorney can only recover if winning party and attorney amount can be up to 40% of
the judgement
o Incentivize counsel to do their best
o Prescreening by lawyer’s leads to avoidance of frivolous cases
 Lawyer’s as the gatekeepers against frivolous claims
 Loser pays rule prevents P from filing insubstantial suits in hope that D will settle to
avoid expenses of litigation (In terrorem cases)
- Against losing party paying (American Rule):
 Law want to make P whole
o Not doing that when giving lawyer’s up to 40% of the judgement amount
 Encouraging the lawyer’s to take on contingency cases and settle right away

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 o Not justice for client bc lawyer just trying to get as much money as he can in the
short time span
o Screws over the clients in attempt to make himself more money
 Would deter many meritorious claims and impose regressive tax on right to litigation
- In Terrorem Case: legal threat, usually one given in hope of compelling someone to act
without resorting to a lawsuit or criminal prosecution.
- Corporation will do an economic analysis; thus deserving cases often result in settlements
 Analysis: What’s less expensive?
o Settling; or
o Go to court

i. Adversarial Hearings

Gideon v. Wayneright:
Rule: The Fourteenth Amendment incorporates the Sixth Amendment right to counsel to the
states.
- in a criminal setting, court held that state MUST provide lawyer when seeks to provide …
and take freedom from the defendant; The Fourteenth Amendment incorporates the Sixth
Amendment right to counsel to the states
- Holding/Rule: State required to provide a lawyer to D in a criminal proceeding… (only
where D, if unsuccessful, may lose his personal freedom)
 What about in civil proceedings?
o Issue tried in Lassiter

ii. Non adversarial hearings:

Lassiter v. SS:
Rule: The Due Process Clause of the Fourteenth Amendment does not mandate that indigent
parties be assigned counsel in parental rights proceedings. Case by Case analysis of whether
counsel is necessary depends on Matthews balancing test and whether the interests can outweigh
the presumption that lawyer should be appointed.
- D appeals from termination of parental rights (Petition to terminate parental rights but no
attorney appointed) Claims due process violation bc of no assistance of counsel  Trial
court erred bc not providing her counsel
- Ct of appeals: violation not so serious or unreasonable as to compel us to hold that
appointment of counsel for indigent parents is constitutionally mandated
 no demonstrated desire to see son and no plans for treatment are sufficient to terminate
parental rights
- US SC: granted certiorari to claim under due process clause of 14th amendment
 Right exists only where the litigant may lose his physical liberty if he loses the
litigation; Liberty interest in the right to raise her child gives Lassiter the right to bring
cause of action under 14th amendment bc state action by state gov
Holding: Due Process Clause protections are strongest at times when a party’s personal freedom
is at stake, & primarily in those situations the court will find a per se right to counsel.
- Lack of counsel in parental rights cases will not deny indigent litigants their right to due
process, and therefore they do not have a per se right to counsel.

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Private interest vs. government interest (balancing test from Matthews)
- In a termination hearing, the rights of a parent to raise her child are weighed against the
government’s interest in protecting the child.
- Additionally, the government’s interest in a quick and economically efficient method for
adjudicating these cases is balanced against both parties’ interest in a fair proceeding through
which the truth may be ascertained.
- In many parental rights cases, appointing counsel to indigent litigants would be unlikely
to advance these interests.
 In other termination cases, however, an indigent litigant may be greatly aided by
assigned counsel, and in those cases the judge should consider doing so  case by case
analysis
Matthews Balancing Test: balancing test for procedural due process challenges, on one hand
balancing the presumption that an indigent party will be appointed counsel only if personal
liberty is at stake against three equally important factors, which in turn must be weighed against
one another
- Private: strong interest in accuracy & fair proceeding; interest in parental rights over her
child
- Govt: strong interest in accuracy& fair proceeding; interest in protection of the child
 Also, state interest to keep hearings cheap/fast
- Risk of Error: higher risk of error if not allowing safeguards when case is adversarial
 Error in if they are not able to represent themselves accurately  Bad evidence allowed
in and hearsay allowed in.
 Here, there were no complex evidentiary or legal issues, & clear weight of the
evidence suggested that P & her mom were unable/unwilling to care for the child;
o appointed counsel would not have changed the outcome of her case.
- Presumption: There is a right to appointed counsel only where D, if unsuccessful, may lose
his personal freedom (from Gideon)
 If question is whether parental rights are terminated, guaranteed counsel?
o Not necessarily bc not risking personal freedom  not adversarial 
presumption not met
 Case by case question to be decided by trial court bc case by case review of
facts
 Std of review for reviewing factual findings is clear error or abuse of
discretion by court
 If question is whether going to jail, guaranteed counsel?
o YES, bc may lose personal freedom  adversarial  right to counsel
presumption is met
- Why does it go to US SC instead of stopping at state SC?
 State SC is the master of state law
 But, 14th amendment is a federal question issue (federal constitutional question) 
gives US SC subject matter jdx to hear the case
DISSENT: This is an adversarial proceeding. Client’s cannot understand, requires records,
procedure, examination of witnesses, hearsay. Attorney would know how and what evidence to
get.
 Plenty of stuff D could have done if was given access to counsel

15
  Could have challenged hearsay, which was allowed, but did not bc without counsel has
no way of knowing she could have or should have done so
- Risk in letting proceeding continue without an attorney?
 Dissent: yes, determining child’s protection without counsel is a high risk
 Majority: no risk bc claim there is nothing she could have done differently if she had
a lawyer anyway
- Difference between substantive outcome and procedural rights
 Substantive outcome: D’s termination of her parental rights
 Procedural right: Matthews vs. Eldridge + presumption
o What is at stake in this case is the procedural rights to have an attorney appointed

Walters v. Radiation Survivors:

Rule: A statute providing that attorneys’ fees in VA benefit awards proceedings must not exceed
$10 does not violate veterans’ right to due process.
- Due Process Clause of 5th Amendment does not require that veteran claimants be assigned
counsel for the administrative hearings which determine their disability benefits.
Procedure:
- D: 5th amendment due process rights violation & 1st amendment violation as well
Proceeding is not supposed to be adversarial supposed to be informal (non-adverserial)
- Proceedings are Ex parte  only one side has no lawyer (no gov official appears in
opposition)
- SOR: service agent with the board assists P in developing facts pertinent to this claim
 No judicial review in this case under the act  High degree of informality and
solicitude for P
 DOUBT in hearing is resolved in favor of the claimant (favorable to P)
- Issue: can you have a lawyer to the proceeding?
 Yes, question is only as to the amount of fees allowed for the lawyer
 Disincentive: criminal penalty for attorney’s taking cases on contingency fees
- DC: issues nationwide preliminary injunction barring gov. from enforcing the fee cap
 Statute unconstitutional on it’s face & violates 1st amendment (relied on Mattews
Balancing test)
o Facial challenge: challenge statute on its face
o Application challenge: challenge statute’s application to the facts
o Board assistance is not always effective
- Gov appeals directly to SC Allowed to do so under statute which grants them jurisdiction
when court finds statute unconstitutional
Holding: Applying the Balancing test,
- Personal interest: individual’s right to consult an attorney when faced in a controversy
against the government
- Government interest: keeping down the cost of VA proceedings and protecting veterans
from unnecessarily high attorneys’ fees
 If veterans begin hiring lawyers on contingency fee basis, then not getting the award
they are entitled to bc fee cuts out of award which is not what we want
 If lawyer takes on undeserving claim, also leads to high expenses bc board will also
want a lawyer but these claims are supposed to be ex parte hearings (informal)

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- Risk of error:
 If gov wanted to prevent attorney’s from being allowed, under expresio unius, would
have said so but did not do so  not prohibited by statute to have an attorney
 Procedural harm to P: not allowing him to pay more than $10 in attorney fees
 Substantive harm to P: exposure to ionizing radiation suggests not simple legal
procedure
 No lawyer: 0.6 % granted
- The $10 ceiling on attorneys’ fees in VA benefits proceedings is not, therefore, a
violation of claimant veterans’ right to due process.
- 5th Amendment guarantees due process under the law, as applied to the federal gov
federal gov may not deprive an individual of his right to a fair hearing.
 That right has not been violated, bc the benefit process is designed to be collaborative
and informal, not adversarial or sophisticated, giving veterans flexibility in how they
present their claims by reading the evidence in the light most favorable to the claimant.
- These and other procedural safeguards, coupled with the aid available from many veterans’
organizations that provide veterans guidance through representatives trained in the benefit
process, render costly representation by counsel unnecessary for a fair hearing.
 Congress intended the funds dispersed through the VA benefit program to be received
solely by veterans, not their attorneys. Raising the limit on attorneys’ fees would fly in
the face of that objective, as veterans with paid counsel would end up sharing their
award with their attorneys.
 Furthermore, involvement by attorneys in the administrative hearings would complicate
and draw out the process, translating to wasted government dollars.
- DISSENT: Some complicated cases require attorney. Not justified to limit those cases by
cost. Unconstitutional because it deprives representation when going against government.
 Lawyers are guardians of freedom
 Right to independent bar in a claim against the sovereign
o You must have a right to have someone between you and the sovereign (your
government)
o Right is protected by due process clause of 5th amendment and 1st amendment

17
 II. The Allegations: Pleading the Complaint under the
FRCP
Stating the Claim: Rules 8(a), (d), & (e) and 9(b), 11
Rule 8. General Rules of Pleading
 Rule 8(a) Claim for Relief.
o Claims for relief need to be SHORT and PLAIN
 Short and plain statement of jurisdiction (unless the court already has it)
 Short and plain statement that the pleader is entitled to relief
 Relief sought (demand for judgment)
 Rule 8(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency
o Each allegation must be simple, concise, and direct. No technical form is required.
o A party may set forth 2 or more statements of a claim or defense in the pleadings:
 Claims may be in 1 count or defense, or as separate ones
o Alternatively (“either-or”) or hypothetically (“if-then”)
 A relationship b/w claims is not necessary
 If one statement is improper, it does not negate the entire pleading, just the
improper allegation
 Allows P to plead alternative theories at the same time; can submit all the claims
he has; Res Judicata prevents P from suing multiple times based on the same
transaction
 Main function of this provision is to assist a P who is genuinely uncertain about
the facts that he will be able to prove or the substantive law that will apply
Rule 8(e) Construing Pleadings. Pleadings must be construed so as to do justice.
 Specificity in claim not required; 8(a)(2) statement of claim is to be “short and plain”; 8(e)
(1)-each claim shall be “simple, concise, and direct”
o Policy-It is good not to require specificity b/c P may not know specific details when
he files the claim and we don’t want cases decided b/c of mistakes in the pleadings
(technicalities)

How particularized must allegations be?

8a2: the rule for pleading a complain-- requires: short plain statement of the claim showing that
the pleader is entitled to relief to give defendant fair notice of the claim and the grounds upon
which it rests.
- This rule is created to help the plaintiff in submitting their complaint just requires bare
bones standard for their pleading  Gives everyone an opportunity to be heard
 Should not dismiss all claims if one claim is invalid
 Liberal amendments to pleadings
 Interpreted broadly to keep claims based on merit instead of throwing out for
procedural mistakes
 Takes into account the knowledge of the other party for thoroughness of claim

3 Ways to fail complaint under rule 8 (leads to dismissal under 12(b)(6) Motion to dismiss):
1. Legal deficiency: Must violate a current law that is existing and valid and provides relief
for the act of which you complain

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 2. Legal deficiency: Too many facts  plead out of court
a. Pleading facts that prove there is an affirmative defense Basically handing the
case to the other side (opponent)
3. Factual deficiency: Not enough facts no support for claims (assuming discovery will
validate)

Test of Legal Sufficiency-looks to see if any legal claim existed that would be consistent w/ the
words of the complaint
- Sufficiency Rule- A complaint should not be dismissed for failure to state a claim, on the
basis of pleadings, UNLESS it appears beyond doubt that P can prove no set of facts in
support of his claim which would entitle him to relief (Conley; 1957)

A. The complaint: Pleading too many facts  Pleading your Way out of a Hearing

American Nurses (1986): Class action. Comparable worth study showing the market is
discriminating does not show that the company is discriminating by following the market.
Rule: Under the Federal Rules of Civil Procedure, a complaint must not be dismissed for failure
to state a claim unless it appears beyond a doubt that the plaintiff cannot state a set of facts upon
which relief may be granted.
- Holding: P is not required to plead all of the facts supporting his claim in his complaint in
order to survive a motion to dismiss. Under Rule 8(a)(2), P must simply file a short and plain
statement of the claim showing that he is entitled to relief. This short and simple statement is
called a notice pleading, and nothing more is required by the rules.
 P may use pretrial discovery to gather specific facts that support his case, & it is often
preferable to do so. This is bc if P provides an extremely detailed complaint which
contains facts that would prove that his rights have not been violated, he will plead
himself out of court.
 In this case, the Nurses filed a long and detailed complaint, and some of the facts
alleged, if true, would prove that they hadn’t been subject to sex discrimination;
however, the complaint, taken as a whole, doesn’t suggest that Nurses are entitled to no
relief.
 A complaint should not be dismissed merely because it contains invalid claims
alongside valid ones, or because it sets forth some incomplete or unconvincing
evidence, as is the case here. Because it is not beyond doubt that P cannot state a set of
facts upon which relief may be granted, the case was improperly dismissed, and the
holding below is reversed and remanded.

I. Requirements of Rule 8: Allegations of Fact vs. Conclusions of Law

Conley v. Gibson (1957): taking P’s allegations as true and drawing all reasonable inferences in
P’s favor; Is there Any set of facts under which P is entitled to relief?
- If yes  claim should survive dismissal
- pleading must give fair notice of claim, but all facts do not need to be included especially
those that must have discovery to reveal.
 Do not need to prove the case in the pleading. Should not be dismissed unless there is
no set of facts that would entitle relief. Pleading not a game of skill.

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  NOW OVERRULED BY Twombley/Iqbal (TWIQBAL)
Facts: P’s, African American members brought suit under the Railway Labor Act to compel the
union (D’s) to represent them in collective bargaining w/o discrimination bc of race. P’s allege
that the union had not done so, maintaining passivity after employer replaced 45 P-jobholders w/
white hires.
- D moves to dismiss; complaint was defective for failure to state a claim upon which relief
may be granted (12(b)(6) motion)
Rule: A complaint is sufficient as long as the P sets forth an assertion upon which relief may be
granted, and specific, detailed recitations of fact are not necessary to survive a motion to dismiss.
- P’s pass test of legal sufficiency b/c complaint must encompass a legal claim w/o including
allegations that would defeat it
- FRCP only require a short and plain statement of the claim that will give the D fair
notice of what the P’s claim is and the grounds upon which it rests
 Does not require the claimant to set out in detail the facts upon which he bases his
claim
 “Notice pleading” is made possible by opportunity for discovery and other pretrial
procedures established by the Rules to disclose more precisely the basis of both claim
and defense and to define more narrowly the disputed facts and issues
 Purpose of pleading is to facilitate a proper decision on the merits
 THIS IS USING SUFFICIENCY RULE
o (No-set-of-facts: according to the court – once you meet the pleading threshold,
(you have stated a claim) the judge cannot throw your claim out b/c he thinks you
cannot prove your case.
Arguments for dismissal:
1. Factual deficiency: Failed to set forth specific facts to support its general allegation
a. Court responds: FRCP don’t require a claimant to set out in detail the facts upon
which he bases his claim (notice pleading requirements are not code pleading)
2. Legal deficiency: failed to state a claim upon which relief could be given
a. Unless the law provides you some sort of relief for the acts which you are
complaining of, then the complaint should be dismissed
i. Even if you have a complaint, if there is no law which provides you relief
for the acts of which you complain of then your complaint should be
dismissed (ex: I call you silly head)

Bell Atlantic Corp. v. Twombly (2007): To state a claim under § 1 of the Sherman Act, the
complaint must contain enough factual material to suggest that an agreement existed b/w the
defendants.
Facts: P issued a complaint alleging that D violated § 1 of the Sherman Act, which prohibits
conspiracy for the purposes of restraining trade. Complaint alleged that D conspired w/ other
telephone companies by means of “parallel conduct” to inhibit the growth of upstart telecom
companies and eliminate competition w/ each other.
Rule: Must include enough facts to make it plausible on its face not just conceivable from
allegation.
 Limits Conley Must raise above speculative level, more than suspicion.
 Must be at least plausible to move forward because it shows merit.
o If plausible  shows merit  more likely to survive SJ

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 o If likely to survive SJ then not a waste to spend the expenses on discovery
 Must require specificity in pleading before discovery is embarked upon. No legal
conclusions. Gate keeping in complaint to weed out unmeritorious claims.
Holding: upheld dismissal on a 12(b)(6) motion
- What a plaintiff must plead in order to state a claim under Sect. 1 of the Sherman act?
o Fair notice of claim: legal sufficiency
o Grounds upon which it rests: factual sufficiency
- complaint failed to show agreement to be plausible
 P’s needed to give factual detail to make their complaint plausible, yet they mentioned no
specific time, place, or person involved in the alleged conspiracies
- Court said this could be the natural unilateral activity of each company promoting their own
interests – not conspiracy. (this is the innocent inference)
- Court added plausibility test for claimants to pass at the pleading stage ONLY for antitrust
cases (moves away from notice pleading in Conley).
 under anti-trust law parallel conduct alone is not enough for plausibility
o Says that stating such a claim requires a complaint w/ enough factual matter to
suggest that an agreement was made; says this reflects the threshold of Rule 8(a)(2)

 Need to state facts that remove or at least cast doubt on innocent inferences. (Hard to
discover these facts, plaintiffs abandon their cases as a result- court doesn’t care if they
have the facts available or not)
o If you leave innocent inference open that is an implausible claim.
DISSENT: Ginsburg: purpose of simplified pleadings was to keep cases in court. No
recognizable difference between allegation of fact and conclusion of law. Likelihood of recovery
should not be considered and should not be dismissed but amended. Motion to dismiss is not
where to combat discovery abuse.
- Court supposed to view facts in light most favorable to the non-moving party (P)
- P must prove that there is an agreement; if there is 2 competing sets of rationales and court is
obligated to view facts in light most favorable to non-moving party  dismissal should only
be permitted where the court determines with reasonable certainty that P could prevail on NO
set of facts that may be inferred from the well-pleaded allegations in the complaint
1. Once a claim has been stated adequately, it may be supported by showing any set of
facts consistent with allegation in the complaint  Pleading does not require or even
invite the pleading of facts
2. Conley court established the sufficiency of the complaint; what it MUST contain, not
what it may contain  described the minimum standard of adequate pleading to
govern a complaint’s survival

Ashcroft v. Iqbal (p. 41): Under Twombly, a complaint will only survive a motion to dismiss if it
alleges non-conclusory facts that, taken as true, state a claim to relief that is plausible on its face.
- the claim must be plausible on its face to survive dismissal; clarifies rule from Twombly; not
limited to discriminatory actions or Anti-Trust
- TIP: (conclusory statement = just states a conclusion; no facts to show how they reached the
conclusion. Need more than formulaic recitation.)

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Facts: P was arrested and detained during the investigation of 9/11 terrorist attacks. P claimed
that the conditions of the custody violated the First and Fifth Amendments to the United States
Constitution and sued former Attorney General John Ashcroft, FBI Director Mueller, and other
officials (D’s) in district court. The complaint accused Ashcroft of being the “principle architect”
and Mueller of being “instrumental” in the implementation of a discriminatory policy of
confining individuals in harsh conditions based solely on their religion, race, and/or national
origin. Aschroft and Mueller claimed qualified immunity and moved to dismiss P’s complaint for
failure to state a claim. District Court refused to dismiss case; Court of Appeals affirmed the
ruling on appeal. Now at SCOTUS.
- While appeal was pending SCOTUS decided Twombly which retired the Conley no set of
facts test in evaluating the standard for whether a complaint is sufficient to survive a motion
to dismiss
 Twombly: flexible plausibility standard; obliges pleader to amplify a claim with some
factual allegations in contexts where they are needed to render the claim plausible
Reasoning:
- Court ruled that Twombly applied to all federal complaints
- A determination of plausibility is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
- In Iqbal they find most of the complaints to be conclusory and what remains does not state a
plausible case of discrimination.
 Fails to state a claims b/c taking the remaining allegations as true you could infer (1)that
Ashcroft and Mueller were rounding up Muslims out of hatred or (2) doing it innocently
and targeting ppl with immigration violations that posed a threat
o Bc (1) was not more likely than (2)  not plausible
DISSENT (Suitors): Being unable to prove out of qualified immunity does not preclude
supervisory liability and purposeful instruction or negligent supervision. Misinterpretation of
Twombly in that all allegations should be counted as true not just the ones decided to be
allegations of fact.
Notes:
- To survive a motion to dismiss for a Bivens cause of action:
 Must plead that each government official D, through his own individual actions, has
violated the constitution
 No vicarious liability; no liability under respondeat superior for a municipal person under
42 USC SS 1983
- For Bivens claims for invidious discrimination in contravention of 1st and 5th
amendments:
 Must plead and prove that D acted with discriminatory purpose;
 Must plead sufficient facts to show that petitioners adopted and implemented the
detention policies at issue not for neutral investigative reasons, but for the purpose of
discriminating on account of race, religion, or national origin
 Bivens cause of action: implied cause of action; federal analog to suits brought against
state officials under 42 USC SS 1983
o Federal analogue like SS 1983  recognizes implied actions against high ranking
federal officials who have violated constitutional rights of citizens
o Respondeat superior does not apply in a Bivens action
- More concern in Iqbal against discovery than in Twombly

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  Government D is entitled to qualified immunity under sovereign immunity
 Argument: ALLOWING case to get to discovery is worse than in Twombly bc whole
point of qualified immunity is to not put members of gov through expenses of discovery
- Why do we want Suitors to write the dissent?
 He wrote the majority opinion in Twombly; disagrees with majority in Iqbal over what P
needs to show to survive dismissal
 Even though no respondeat superior liability, there IS vicarious liability
 Argues that knowledge is the accurate mens rea, not discriminatory purpose as argued by
the majority
o Distinguishes the factual allegations saying not conclusory (not legal
conclusions)
 Entirely plausible given the facts that D’s had knowledge of the discriminatory acts being
performed
 Context he finds crucial: process set forth after 9/11 and how the detainees were selected
and categorized as high interest there was in fact discrimination;
 the question is what was the reason for the discrimination; P just needs to prove that
D’s acted with knowledge that discrimination was occurring and going after these people
bc want to discriminate against them based on nationality, and not going after these
people bc think they’re linked to the terrorist attacks and want to protect the nation 
was reason for that behavior (discrimination) impermissible discrimination?
o In Twombly; was the reason for that behavior to limit competition?
o Inconsistent with the opinion by Suitor in Twombly…

Post Twiqbal Pleadings:

- Rule 56: grants dismissal at the summary judgement phase of the trial (after discovery);
plausibility standard
o Pleading  facts (discovery) summary judgement
o “at the SJ stage a section 1 P’s offer of conspiracy evidence must tend to rule out the
possibility that D were acting independently”
 Matsushito counter argument: Not appropriate to use this heightened standard prior to
discovery phase of trial because there is no opportunity for P to get the facts (through
discovery) unlike at SJ phase which is after discovery)
o Problem with enacting the standards of SJ during pleading phase is that it requires
the facts for the pleading to survive before parties have the opportunity to gather facts
in discovery
- Rule 9(b): Additional facts require P to plead with “particular clarity” for particular types of
cases  Requires a standard higher than plausibility
o SCOTUS: If were to expand rule 9 to include anti-trust cases (requiring higher
standard in pleading) then court would be impermissibly amending rule 9 which is
not the job of the court, but instead job of Congress
o Not court’s job to include new types of cases under rule 9  therefore the plausibility
standard is under rule 8(a)(2), not rule 9
- Rule 8(a)(2): requires only a short and plain statement of the claim; now (under
Twombly) also requires P to show factual grounds that show he is entitled to relief
o Mere labels and conclusions are not enough;

23
 o must have facts that raise the right to relief above the speculative level  plausible
grounds standard
- Plausible grounds: reasonable expectation that discovery will reveal evidence of alleged
agreement
o “No set of facts” language is “loose language” or dicta  court eliminates the no set
of facts language in rule 8…
o Not limited to anti-trust cases; applies to all cases under rule 8 (After Iqbal)
- Rule 12(b)(6): grant motion to dismiss prior to the discovery phase of trial
o Possible  Plausible  Probable
o Possible: equipoise; either result is equally likely to occur (50/50)
o Plausible grounds: reasonable expectation that discovery will reveal evidence of
alleged agreement
o Probability: 2 competing rationales towards an activity (equipoise)
- Overturning Conley with Twombly: Factual allegations must be enough to raise a right to
relief above the speculative level  Calls for enough factual matter (Taken as true) to
suggest that an agreement was made
- Prior to Twiqbal, did not even have to file complaint; now district court judges spend time
going through the complaints and deciding whether the complaint should survive dismissal
based on the standards required to survive dismiss established by Twombly and Iqbal;
whether a complaint should be dismissed is a legal issue

Standards of review:
- Legal issues: review de novo (anew)
- Fact issues: abuse of discretion  More opportunity to get overturned

Twombly-Iqbal court-Supreme Court now wants more detail than just notice pleading-
added a requirement, just for claimants, above and beyond their having to give notice, now they
want plausible pleading – must cross the line from conceivable to plausible—but why now?
- Pleading now has to have a screening function to weed out some cases, since discovery is
expensive concerned about striking suits. So there was a risk that defendants will settle the
case, pay to make the case go away, and never get to the merits of the case.
 Must establish by non-conclusory allegations the complaint’s plausibility –
- FRCP 8(a)(2): a pleading must contain a short and plain statement of the claim showing that
the pleader is entitled to relief
 Conley: notice of claim and grounds upon which it rests; assume P’s allegations as true
and draw all reasonable inferences in favor of non-moving party
 Twombly: after Twombly, court is striking out part of rule 8 standard
 Iqbal: distinguish between legal conclusions and factual allegations

This is now how pleadings/complaints work

- 3 Part test for 12(b)(6) motion to dismiss: The court must review and draw on judicial
experience and common sense in deciding whether the claim is plausible
i. Identify legal conclusions
ii. Strip complaint of legal conclusions
iii. Evaluate remaining factual allegations for plausibility using judges own
experience & common sense (subjective)

24
  First, judge decides legal sufficiency: complaint must encompass a legal claim w/o
including allegations that would defeat it
o Legal conclusion vs. factual allegation: presumption of truth only applies to factual
allegations not legal conclusion
o Principle that court must accept as true all allegations set forth in complaint is
applicable only to factual allegations, not to legal conclusions allegations
 Second, to satisfy the factual-sufficiency test, the P must plead facts and perhaps some
evidence
o Should give a particularized mention of the factual circumstances of each element
of the causes of action
 The degree of particularization should be sufficient to make liability
reasonably possible
o Judge ignores any conclusory allegation and weighs the plausibility of ultimate
liability in light of his or her judicial experience and common sense as applied in
the case’s particular context Only a complaint that states a plausible claim can
survive dismissal under 12(b)(6)
a. Plausible is more than possible and less than probable… more than 50% likely
b. Possible: equipoise; equally likely/consistent reasons for activity

Consequences of plausibility
- Only obvious meritorious cases make it
- Only those who can afford pre-investigation to uncover the facts will make it
- Under Conley  Rule 8(a)(2) favors P
- Now under Iqbal/Twombly  Rule 8(a)(2) favors D & judiciary

Should SCOTUS have made this new rule? (aka being an activist court, making law)---
maybe the legislature should have changed it.
- Unconstitutionality argument: The whole point of FRCP is to get the cases to the jury but,
the rules, after Iqbal/Twombly, are putting in hands of judges the role of the jury and so
unconstitutional bc violate the 7th amendment rights (right to trial)
 Judiciary gets discretion/deference
o Under a plausibility standard, judge gets deference on deciding what qualifies as
sufficiently “plausible”
o Plausibility is a very subjective standard
o Judge gets to decide what the line is between factual allegations and legal
conclusions  judicial construct but as Stevens says they are very intertwined

J. Pleading in the Alternative: How consistent must Plaintiff be?

Pleading in the alternative: allows party who is uncertain as to which state of facts is true to
plead in the alternative, and that it is for the jury to determine the facts
- Pleading in alternative is especially appropriate in cases where P is not alive bc if alive then
P would know what the facts are…
- Courts like pleading in alternative bc it is more efficient to pleading alternative in one trial
than having separate trials for separate issues (which is more expensive and time consuming)

25
 a. Policy in favor of alternative pleading so justice can be found in a single action.
Party may seek severance.

Rule 8(d)(2): where P is representative of a decedent in personal injury cases is uncertain as to

who is liable, he may assert his claims against the several D’s alternatively  inconsistent facts
or theories could be pleaded alternatively, whether in the same or different counts

Civil Practice Act: allows alternative pleading where facts and truth are unknown. May also
plead alternative facts and legal theories.
- Election of remedies: choosing one theory does not apply where truth cannot be stated until
known and cannot be known until the jury decides on the issues of fact.

McCormick v. Kopmann
Rule: inconsistent evidence will not bar submission of the case to the jury & it does not warrant
ipso facto a DV or JNOV. P may plead two causes of action together in the same complaint, even
if the allegations are mutually exclusive.
- the civil practice act expressly permits P to plead inconsistent counts in the alternative when
he is genuinely in doubt as to what facts are and what evidence will say  not ground for
dismissal that allegations in one count contradict those in an alternative count
- Under 8(d)(2): where P in personal injury cases is uncertain as to who is liable, he may
assert his claims against the several D’s alternatively
Facts: P’s husband was killed in a car accident with D; P had been drinking prior at Hull’s bars;
had stopped at 2 different taverns they owned
Holding: Verdict and judgement affirmed: In the absence of a severance, P had the right to go
to trial on both counts 1 & 4 and to adduce all the proof she had under both counts. P pleaded
alternative counts bc she was uncertain as to what the true facts were and thus was entitled to
plead in the alternative and entitled to submit all evidence, even if inconsistent, and have the jury
decide where the truth lay  Only obvious meritorious cases make it
- Civil practice act which authorizes alternative pleading necessarily contemplates that pleader
adduce proof in support of both sets of allegations or legal theories leaving to the jury the
determination of the facts

K. International Law
- Sovereign immunity: cannot sue the government  No respondeat superior liability under
the government
- Alien Tort Statute: (1) be an alien (2) suing for a tort (3) committed in violation of the law
of nations.
 Applies to Crimes against humanity and extrajudicial killings.
o Extrajudicial killings: deliberate not authorized by judgment of court providing
due process.
o Crime against humanity: widespread or systemic attack against civilians.
- “One Voice Doctrine”: maintains that in its external relations the United States must be able
to speak with one voice in order to achieve its interests and avoid negative responses from
other nations.

Balancing Test from R.3d Foreign Relations

26
- look at state interests  Due Process & fairness
- US interests
 Substantial law underlying suit
 Interest in liberal discovery
 Executive  defers to foreign affairs (enforcement of international law)
 Foreign interests: Interests of the foreign law
 International law applies everywhere,  you are always on notice of the
international law  Notice is automatically satisfied

Mamani: Bolivia case  Iqbal in action

- Failure to state a claim bc allegations don’t fit into established law after pleadings are
stripped of conclusions of law.
- For international must be violation based on present day very widely accepted interpretations
of international law and those without specificity must fail.
- Cannot consider rules limiting the power of foreign government over their own citizens.
- Allegations that are only labels are not well pleaded facts. Facts that are simply aligned with
liability are not enough.
- Jurisdictional challenges may be either "facial" or "factual." 
o A "facial" challenge: based solely on the allegations in the complaint.
o A "factual" challenge: permits courts to "consider extrinsic evidence." 
 In doing so, courts are "free to weigh the facts and [are] not constrained to view
them in light most favorable to [the plaintiff]."
Notes: Great caution?
- Courts are impermissibly posing US sovereignty onto another nation
o Sovereign nations ought to be able to impose their own sovereignty upon their own
citizens
o This is a function for the legislative/political branches (aka exec and leg.)
 Makes no sense for courts to be making foreign policy
 Not elected to do so and no experience in this sector
 Judges are not accountable to the people
o Foreign relations  could result in a mess of US foreign policy if the judiciary is
imposing policy that could be contrary to what the executive wants
- As an attorney, you are stuck bc can’t show evidence for crimes against humanity
o Have facts, nonetheless, to show that 8 yr old daughter was shot in head and crumpled up
next to your wife..
- If we gave power to the courts to let crimes against humanity claims survive?
o Defend by: Congress gave this/delegated this power to the courts through the creation of
ATS  thus the political branches did act to create this result
 By stripping courts of this power, you are going against a constitutionally
granted/delegated power of the courts…
- If these extreme claims for crimes against humanity etc… do not survive, what kind of
claim WOULD survive?
o Courts would prefer to avoid these highly important and tense issues especially
considering they are in an international scope
- What might you allege if not crimes against humanity?

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  Wrongful death, intentional/negligent infliction of emotional distress
 This is what lawyers end up doing after this case-- Translating extreme claims
(crimes against humanity) into lesser extreme claims such as wrongful death
III. Responding to the Complaint: Defenses and Objections
[Rules 8(b), 12; Forms 19, 20]
- A D who has been served w/ a summons & complaint under Rule 4 must make known his
defenses-the grounds which he resists the relief demanded against him in the complaint-&
must do so within 21 days after being served with process (unless D waived process under
4(d) then has 60 days from day P mails the waiver form to respond)
o If D does not waive or respond w/in 21 days  risks default judgment

D’s options in Responding:

- Deny factual allegations in complaint  D raises denials in the answer [Rule 8(b)]
o Failure to deny any allegation constitutes an admission on any and all allegations
except damages
- Affirmative defense (“confession & avoidance”)  D raises in answer, if any is filed [Rule
8(c)]
o D asserts other facts or law that provide him with a legal “out” from liability
o Presenting Defenses: 7 defenses in Rule 12(b) can be raised before the answer (through
motion) or can be raised in answer (if not submitting pre-answer motion). Otherwise, D
can raise other defenses by answer.
o Must plead an affirmative defense (8(c)) in answer, otherwise defense is waived &
lost.
- Motion to Dismiss for Failure to State a Claim  D may raise in pre-answer motion or in
answer [Rule 12(b)(6)]
o Motion is a request that the court do something containing notice (when heard), requests,
certificate of service that you served other parties, memo supporting motion (why),
affidavit if the facts alleged are not in the pleading.
o Pre answer motion may defeat the case and prevent discovery [Rule 12(b)(6)]
 If D responds by motion & motion is denied  D has 14 days from date of
denial to respond with an answer
 Can be raised any time through trial (any time before end of trial)
 Presenting Defenses: 7 defenses in Rule 12(b) can be raised before the answer
(through motion) or can be raised in answer (if not submitting pre-answer
motion). Otherwise, D can raise other defenses by answer
- Wrong Jurisdiction or Venue  D may raise by either motion or in answer (whichever
comes first) [Rule 12(b)(1)-(3), Form 40]
o Waivable defenses: if not raised in first response by D they are waived and lost (except
12(b)(1): subject matter jdx which is never waived & can be raised whenever)
- Counter claim (D has independent claim for relief against P)  D raises this in the answer
[Rule 8(c)(2) & 13, Form 30]

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- Bad Notice, Service of Process, or failure to join indispensable party in complaint, other
defect in complaint  D raises in either answer or motion [Rule 12(b)(4-5&7), & Rule
12(e&f)]
o Must be raised in 1st document filed or else are waived [Rule 12(g)&(h)]
o D should raise objections under Rule 12(e) and 12(f) dealing w/ vagueness or redundancy
in initial pre-answer motion
 D may not interpose an objection under Rule 12(e) or (f) if he has omitted it from
such motion or if he has answered
- Policy Reasons for these rules: deciding cases on their merits, rather than on procedural
points; elimination of traps for the unwary or the protection of clients from the effects of their
lawyers’ mistakes
- Defenses to Civil Rights charges: deny, confession with avoidance (legal out), no support,
jurisdiction, counterclaim, bad notice, service of process, complaint defects

Rule 8. General Rules of Pleading

 Rule 8(b) Defenses; Admissions and Denials.
o A party shall state in short and plain terms defenses to each claim asserted, and admit or
deny the allegations
o A denial must fairly respond to the substance of the allegation.
o A party that intends in good faith to deny all the allegations of a pleading-including the
jurisdictional grounds-may do so by a general denial. A party that does not intend to
deny all the allegations must either specifically deny designated allegations or generally
deny all except those specifically admitted.
o A party that intends in good faith to deny only part of an allegation must admit the part
that is true and deny the rest.
o A party that lacks knowledge or information sufficient to form a belief about the truth
of an allegation must so state, and the statement has the effect of a denial.
o An allegation-other than one relating to the amount of damages-is admitted if a
responsive pleading is required and the allegation is not denied.
 If a responsive pleading is not required, an allegation is considered denied or
avoided.
o Types of denials a party may make:
 Specific denial- applying to only parts of the complain
 Complete denial- applying to entire complaint
 General denial- applying to the entire complaint except paragraphs specified
 Rule 8(c) Affirmative Defenses
In responding to a pleading, a party must affirmatively state any avoidance or affirmative
defense, including:
o Accordance and satisfaction; arbitration and award; assumption of risk; contributory
negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow
servant; laches; license; payment; release; res judicata; statute of frauds; statute of
limitations; waiver; and any other matter constituting an avoidance or affirmative defense
o Mistaken Designation. If a party designates a defense as a counterclaim, or a
counterclaim as a defense, the court must, if justice requires, treat the pleading as though
it were correctly designated, and may impose terms for doing so

29
Rule 12 Defenses and Objections: When and How Presented; Motion for Judgment on the
Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
 Rule 12 (a) Time to Serve a Responsive Pleading
o 12(a)(1) Answer and Complaint: Unless a US statute supersedes, the answer by D must
be served:
 W/n 21 days after being served w/ the summons and complaint; or
 If timely service has been waived, w/n 60 days after the request for a waiver was
sent, or w/n 90 days if outside the US
o 12(a)(1) Cross Claims and Counter Claims
 Answer to cross-claim; if the answer is in response to a cross-claim, party has 21
days from the date the cross-claim was served
 A party must serve a reply to an answer w/n 21 days after being served w/ and
order to reply, unless the order specifies a different time
o United States and its Agencies, Officers, or Employees Sued in an Official Capacity. The
US, a US agency, or a US officer or employee sued only in an official capacity must
serve an answer to a complaint, counterclaim, or crossclaim w/n 60 days after service on
the US attorney.
o US Officers or Employees Sued in an Individual Capacity. A US officer or employee
sued in an individual capacity for an act or omission occurring in connection w/ duties
performed on the US’ behalf must serve an answer to a complaint, counterclaim, or
crossclaim w/n 60 days after service on the officer or employee or service on the US
attorney, whichever is later.
o Effect of a Motion. Unless the court sets a different time, serving a motion under this rule
alters these periods as follows:
 If the court denies the motion or postpones its disposition until trial, the
responsive pleading must be served w/n 14 days after notice of the court’s action;
or
 If the court grants a motion for a more definite statement, the responsive pleading
must be served w/n 14 days after the more definite statement is served.
 Rule 12(b) How to Present Defenses. Every defense to a claim for relief in any pleading
must be asserted in the responsive pleading if one is required. But a party may assert the
following defenses by motion:
-(1) Lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue;
(4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon
which relief can be granted; (7) and failure to join a party under Rule 19
-Consolidating Defenses: A motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does
not require a responsive pleading, an opposing party may assert at trial any defense to that
claim. No defense or objection is waived by joining it with one or more defenses or
objections in a responsive pleading or in a motion. THESE ARE PRE-ANSWER MOTIONS
o Implied MSJ: A 12(b)(6) motion shall be treated as a motion for summary judgment (as
per Rule 56) if the 12(b)(6) motion is made and matters outside the pleadings are
presented to the court; in such case, all parties shall be given reasonable opportunity to
present all material pertinent to such a motion (as per rule 56)

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 o 12(b)(1) can never be waived, 12(b)(2)-(5) are waivable defenses under 12(h) and 12(g);
AND 12(6) and (7) can be raised any time through trial (not after)
 Rule 12(c) Motion for Judgment on the Pleadings. After the pleadings are closed-but early
enough not to delay trial- a party may move for judgment on the pleadings  failure to state
a claim after pleadings
o judgment on the pleadings and may extend time to answer: 21 days after motion filed
o motion entered after complaint and answer, & reply, if any (same as 12b6 but later in
process bc after D has filed an answer)
 Rule 12(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under
Rule 12(b)(6) or 12 (c), matters outside the pleadings are presented to an not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56. All parties
must be given a reasonable opportunity to present all the material that is pertinent to the
motion.
 Implied MSJ: A 12(b)(6) motion shall be treated as a motion for summary judgment (as
per Rule 56) if the 12(b)(6) motion is made and matters outside the pleadings are
presented to the court; in such case, all parties shall be given reasonable opportunity to
present all material pertinent to such a motion (as per rule 56)
 Rule 12(e) Motion for a More Definitive Statement.
o Motion may be made if party’s pleadings are too vague and ambiguous so that other
party cannot reasonably frame a response.
o Motion must be made before filing a responsive pleading and must point out the
defects complained of and the details desired.
o If granted the party must re-plead w/n 14 days after notice of motion (otherwise court
may strike pleadings or make any other order)
 Rule 12(f) Motion to Strike. The court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter. The court may act:
o On its own; or
o On motion made by a party either before responding to the pleading or, if a response is
not allowed, w/n 21 days after being served w/ the pleading
 Rule 12(g) Joining Motions.
o A motion under this rule may be joined w/ any other motion allowed by this rule.
o Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that
makes a motion under this rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted from its earlier motion.
 Rule 12(h) Waiving and Preserving Certain Defenses
o When Some are Waived. A party waives any defense listed in Rule (12)(b)(2)-(5) by:
 Omitting it from a motion in the circumstances described in Rule 12(g)(2); or
 Failing to either:
 Make it by motion under this rule; or
 Include it in a responsive pleading or in an amendment allowed by Rule 15(a)
(1) as a matter of course.
o When to Raise Others. Failure to state a claim upon which relief can be granted, to join a
person required under Rule 19(b), or to state a legal defense to a claim may be raised:
 In any pleading allowed or ordered under Rule 7(a);
 By a motion under Rule 12(c); or

31
  At trial.
o Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.
 Rule 12(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-
(7)-whether made in a pleading or by a motion-and a motion under Rule 12(c) must be heard
and decided before trial unless the court orders a deferral until trial.
A. Rule 12(b)(6) & 12(c): Motion to dismiss

12(b)(6): Motion to Dismiss for Failure to State a Claim

- if D presents motion that the complaint fails to state a claim, and the court grants that
motion, and P does not thereafter amend the claim, then the case is ripe for a judgment for D
 otherwise, ct generally allows leave to amend or grants motion without prejudice so
that P may amend complaint and try again; once ct issues motion to dismiss with
prejudice, P may not try to bring complaint again
- court does not look at evidence; looks only at the face of the complaint
 TWIQBAL sets the standard for courts today on a 12(b)(6) motion
Standard for 12(b)(6):
 Ct ignores any conclusions of law and looks only to the allegations of fact within the
complaint
o Ct strips complaint of any conclusory allegations
 The facts alleged must support a plausible claim
o A possible claim is not sufficient to state a claim and survive a 12(b)(6) motion
 To determine plausibility a judge uses own experience and common sense
o Objective standard and may vary from judge to judge
12(c) Motion for Judgment on the Pleadings
1) The motion may be made after the pleadings if it does not delay the trial
2) If matters outside the pleadings are presented and accepted by court, this becomes a rule
56 motion for summary judgment (and all parties shall be given a reasonable opportunity
to present all material pertinent to such a motion as to Rule 56)
i) Can only be used for questions of law
ii) Asserts moving party is entitled to judgment in his favor on a particular claim
(1) i.e. if complaint adequately alleges a claim, and the answer admits the allegations
of the complaint but sets up two purported affirmative defenses. If one but not
both of the defenses is insufficient as a matter of law a timely motion lies under
12(f) to strike that defense; when motion granted the insufficient defense is
eliminated but the case will stand for trial on the other defense
(2) but if both defenses are insufficient P may move for judgment on the pleadings
iii) Moving Party admits his adversary’s allegations for purposes of 12c motion. But
his own allegations are taken as true only if they have been admitted by his
opponent’s pleading
Motion for Judgment on the Pleadings [12(c)]
 Rule 12(c) provides for a motion for judgment on the pleadings; a party can make this
motion after the pleadings are closed, and it asserts that upon the pleadings the moving
party is entitled to judgment in his favor
o In deciding it, court can only resolve questions of law, never disputes as to facts
o Available where a pleading is legally insufficient

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 o A party can make this motion after the pleadings are closed, and it asserts that
upon the pleadings the moving party is entitled to judgment in his favor
o If P is able to strike D’s affirmative defenses w/ Rule 12(f) b/c they are
insufficient as matters of law, P may move for judgment on the pleadings
o For purposes of 12(c), moving party admits his adversary’s allegations, but his
own allegations stand true only if his adversary’s pleading has admitted them
o A motion for judgment on the pleadings for D rather than by P ordinarily
challenges the sufficiency of the complaint only, just as does a motion under Rule
12(b)(6)

Why might you want to file a motion to dismiss?

- Want to avoid cost of discovery
- Know discovery will disfavor your claim/case
- Can avoid the risks of “answering” the complaint bc filing an answer have to answer the
allegations of the complaint  easier to file a motion to dismiss instead of an answer to
complaint
- Slows down the process  do not have to file an answer until the court rules on motion to
dismiss
- Run down the costs of the opposing party without having to answer

Why might you NOT want to file a motion to dismiss?

- Discovery may be favorable to you
- In motion to dismiss you risk educating the opposing party as to the weaknesses of their
complaint (kind of doing work for them which they can then go on to rebut and amend if
cases proceed)  educating opponent of defects in her case

I. OLD Method of Moves

- Directed verdict: evidence is so one sided and favors D so much that, as a matter of law, this
case should not go to the jury
a. No reasonable jury could find in P’s favor based on evidence presented
i. D moves for DV at the close of P’s case
b. At the close of ALL evidence/proof  D moves for directed verdict AGAIN
i. At least 2 opportunities for D to move for DV
- Judgement Notwithstanding the Verdict (JNOV): after trial & jury verdict, D moves
for JNOV

II. NEW Method of Moves: these motions are controversial bc they take the case away from
the jury and allow the judge to decide the case himself (problem bc jury is the trier of fact…
not the judge)
a. Problem bc constitutional right to a trial by a jury, unless choose not to have trial by
jury and choose a bench trial…
- Judgement as a Matter of Law:
a. Directed verdict: evidence is so one sided and favors D so much that, as a matter
of law, this case should not go to the jury
- Judgement as a matter of law (before going to jury trial)

33
 a. Directed Verdict: At the close of ALL evidence/proof  D moves for directed
verdict AGAIN
i. At least 2 opportunities for D to move for DV
- Renewed Judgement as a Matter of Law (aka JNOV):
a. after trial & jury verdict, D moves for JNOV

L. Pleading: The Answer

- Under Rule 8(d) when the answer fails to deny the allegations of a complaint, those
allegations are deemed to be admitted. Any affirmative defenses that are omitted are also
waived under Rule 8 and Rule 12.

Fuentes v. Tucker:
Rule: Proof must be confined to the issues in the case & time of court should not be wasted nor
jury be confused by the introduction of evidence which is not relevant or material to matters
being adjudicated
- One function of the pleadings is to limit the issues & narrow the proofs. If facts alleged in
complaint are not negated by the answer, they are not in issue bc when answer fails to deny
an allegation in the complaint, such allegation is admitted under 8(d).. Thus, evidence need to
be offered to prove their existence.
Holding: A party may not present evidence relating to an issue that has been resolved through
the pleadings. To avoid unnecessary confusion and waste of time, the evidence presented at
trial should only relate to the issues in controversy.
- If an issue has been removed from the trial bc D has admitted to the allegation in his answer,
P may not present evidence relating to that allegation.
- It may be proper to allow evidence of admitted facts if the admission is ambiguous or limited
in scope, or if D is attempting to bar P from submitting key evidence by filing an admission.
However, these exceptions are not present here.
 Here, because D’s amended answer admitted to liability for the accident, the trial was
solely on the issue of damages owed by D to P’s family as a result of the loss of their
two children. Information relating to D’s intoxication or the speed at which his car
was travelling when he struck the children is not relevant to the question of amount of
damages and was improperly admitted.
 Although the trial court admitted evidence of the accident in error, the award was not
so high as to suggest that the jury was unduly influenced by the evidence, so the error
does not appear to have prejudiced D. The holding affirmed.

M. The Answer: Affirmative Defenses [Rule 8(c)]

- Rule 8(c) allows the defendant to raise in his answer, affirmative defenses that will wholly or
partially defeat the plaintiff’s claim. Any affirmative defenses that are not included are
deemed to be waived, unless later entered as an amendment under Rule 15.

Gomez v. Toledo:
Rule: Good faith belief in lawfulness of action is an affirmative defense, and as such the burden
is on D to plead it.

34
Procedure: P filed suit against D alleging violation of procedural due process and emotional
distress. D moved to dismiss the complaint for failure to state a claim [Rule 12(b)(6)]
- District Court granted motion: bc D was entitled to qualified immunity under § 1983, P was
required to plead that D acted in bad faith, which P failed to do  P failed to state a claim bc
no pleading of bad faith
Holding: bad faith assertion is not required bc qualified immunity is not an affirmative
defense just a defense which D has burden to plead in his answer
- P is not required to foresee D’s affirmative defense & plead he acted in bad faith.
- To bring action against a public official under §1983, a P must state only two allegations:
 (1) that D has deprived P of a federal right; and
 (2) that D who deprived him of that right operated under color of state or territorial
law.
- P is not also required to anticipate D’s potential affirmative defense of qualified immunity by
alleging D acted in bad faith. It is for D to plead that he believed his actions were lawful 
good faith as AD.
 public policy: acknowledging that P has no ability to know why D behaved in the
way he did, nor can P know if D relied on advice of counsel or other factors in
deciding to act.
- For these reasons, the fact that P did not include in his complaint the allegation that D acted
in bad faith does not make the pleading defective. The holding below is reversed and
remanded.

Qualified immunity:
Rule 8(c): Is qualified immunity listed under affirmative defenses under 8c?
- No, not AD under 8c  assumed and part of P’s prima facie case to show acted in bad faith
to rebut the qualified immunity defense
 Expressio unius est exclussio altterius: expression of one thing is the exclusion of
the other.
- Yes, an AD under 8c  must be pleaded by D
 Textual Argument: Yes, qualified immunity is an AD bc Keyword “Included” 
Expressio unius does not apply here bc “receptacle” (aka not an explicit/expressive
list)
 Purposivist Argument: § 1983 remedial statute ought to be construed broadly 
broadly interpreted
 Historical: qualified immunity was an AD at CL if raised by defendant but statute
does not require that P disprove AD in pleading the complaint
o Canon of interpretation: Statutes incorporate the CL ex ante at the time the
statute is enacted unless the statute overrides the CL
 Practical argument: P will not be able to know if D was acting in bad faith; info
particularly in the realm of D not P  D HAS KNOWLEDGE of “good faith”
o D is required to raise good faith as an AD against removing the immunity but
immunity itself is not an AD

Affirmative defenses: Burden of pleading an AD is usually with the burden of proof.

- Burden of pleading AD is on D
 Even if D is guilty, can get off the hook with AD
35
- Different from pleading prima facie case in complaint, where burden on P
- If D has superior knowledge, require D to plead affirmative defense
 Comes into play particularly with intent and states of mind
- Burden shifting throughout trial phases
 Burden pleading of AD  D
 Burden of persuasion @ trial to disprove AD  P

Ingraham v. US
Rule: Under Rule 8(c), affirmative defenses must be pleaded in a timely fashion, or else the
defenses are waived.
Holding: If an affirmative defense is not pleaded in a timely fashion, that defense is waived, and
D may not contest liability based on that defense.
- 8(c) requires that any matter constituting avoidance, or an affirmative defense must be timely
and affirmatively pleaded, or else that defense is waived.
- Rule 8(c) lists 19 affirmative defenses and includes a residual clause that encompasses
defenses not included in the list.
- Requiring parties to plead affirmative defenses avoids unnecessary and unfair surprise 
Want to avoid unfair surprises
 In this case, the Government is attempting to avoid liability by invoking the
Malpractice Act subsequent to trial. The limitation on damages imposed by the
Malpractice Act is an affirmative defense that should be pleaded in a timely
fashion as required by Rule 8(c), bc it constitutes an “avoidance” and is therefore
included in the residual clause of the rule  The holding below is affirmed.

Factors: To determine whether a defense falls under the residual clause, the defendant must
determine:
a. Necessary or extrinsic
i. Necessary: if part of my claim, I know I have to plead it…  not affirmative
defense
ii. Extrinsic: not part of the claim  affirmative defense
b. Access to information:
i. P has better access  no affirmative defense
ii. D has better access  affirmative defense
c. Prejudice? policy considerations should the matter be indulged or disfavored
i. Indulged  not prejudice
ii. Disfavored  unfair prejudice.
Notes:
- 12(h) lists affirmative defenses that are waived, if not raised; what’s the argument that
8c affirmative defense ought not to be waived if not raised?
 Rule 8 does not specifically say that affirmative defenses not pleaded are waived…
 Expressio unius; drafters included the list of defenses that ought to be waived if not
raised and the 8c defenses are not on this list
o unlike the defenses which 12(h) explicitly states defenses under 12(b)(2-5) will
be waived if not raised under 1st rule 12 response (motion or answer) no such
statement is made regarding 8(c) defenses…

36
  Policy: where an AD is raised in trial court in a manner that does not result in unfair
surprise, technical failure to comply with 8© is not fatal
o Lucas v. US: although defense not pleaded, it was raised at trial and court within
discretion to permit D to effectively amend pleadings & advance defense
(defense not waived by failure to include it in initial answer so long as failure to
plead the AD does not result in unfair surprise)
o Overarching Consideration: NO UNFAIR SURPRISES
- Counter argument that should be waived?
 Rule 8 does not specifically say that affirmative defenses not pleaded are waived but
does preclude untimely defenses (Ingraham). If affirmative defense apparent on the
face of the complaint it may be raised on pre answer motion for dismissal or by
answer.
o under 8c affirmative defenses not raised or pleaded timely  waived

- Gomez + Ingram:
(1) Necessary: not part of actual claim affirmative defense, the plaintiff could not know,
defense must be raised. Extrinsic Part of the cause of action in the statute plaintiff should
know.
(2) Access to Info: which party has better access to evidence and knowledge
(3) Prejudice? unfair prejudice or surprise. 8c list says “including” and says must raise
but Judge discretion if not raised in answer.

37
 IV. Amending the Pleadings [RULE 15]
Rule 15: Amended pleadings are allowed to have different legal theories but they must have the
same substance (same factual allegations), from the same transaction (from original complaint),
to where the defense would know in general of the claim (receive adequate notice)  Where
claim is only greater detail.
- Does not apply where claim is different enough for no notice. Cannot be different cause of
action.
 If it doesn’t relate back, it may be barred by the statute of limitations.
- Law vs. equity
 Law: hard and fast rules
 Equity: fuzzy fairness;
 Problem: under Twiqbal, court wants you to plead v specifically to not have claim
thrown out, but want to plead generally so amended complaint can relate back to
original complaint and be protected under rule 15…
Policy: Idea that a party ought not to be irretrievably bound to stand by his first formulation of a
pleading of either claim or defense
- by allowing the parties to “fix” their pleadings as they go along, the case will more readily be
resolved on the merits.

Rule 15. Amended and Supplemental Pleadings.

 Rule 15(a) Amendments Before Trial.
  Amending as a Matter of Course: parties have right to amend pleadings once within time
period
o 1) P has a right to amend its pleadings once within
a. 21 days after D is served
b. or 21 days after service of D’s answer or D’s pre-answer motion(whichever is
earlier)
i. D’s answer can be under 8(b) or under 12(b)
ii. D’s pre-answer motion can be under 12(b), 12(e), or 12(f)
o 2) D has a right to amend its pleading (answer) once within 21 days of serving it
 If D forgot an affirmative defense in response, has 21 days to amend response
& include it to save her right to raise the defense
 Defense can be an 8(C) defense or 12(b)(2-5) defense
 12(e&f) are waived if not raised in a pre-answer motion
 Any affirmative defenses omitted from the answer are lost after any
amendment
o Other Amendments. In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave (leave to amend). The court should
freely give leave when justice so requires.
 Leave to amend: ask court for permission to amend pleading if no longer have the
right to amend  court generally allows if didn’t take too long and not going to
prejudice opp. Party
o Time to Respond. Unless the court orders otherwise, any required 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.
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 Rule 15(b) Amendments During and After Trial
o Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the
issues raised in the pleadings, the court may permit the pleadings to be amended.
 The court should freely permit an amendment when doing so will aid in
presenting the merits and the objecting party fails to satisfy the court that the
evidence would prejudice that party’s action or defense on the merits.
 The court may grant a continuance to enable the objecting party to meet the
evidence.
o For Issues Tried by Consent. When an issue is not raised by the pleadings is tried by the
parties’ express or implied consent, it must be treated in all respects as if raised in the
pleadings. A party may move —at any time, even after judgment—to amend the
pleadings to conform them to the evidence and to raise an unleaded issue. But failure to
amend does not affect the result of the trial at issue.
 Rule 15(c) Relation Back of Amendments (Relates to Conduct which occurred before case
was filed)
o When an Amendment Relates Back. An amendment to a pleading relates back to the date
of the original pleading when:
 The law that provides the applicable statute of limitations allows relation back;
 [15(c)(1)(B)]: The amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the
original pleading (essentially a new claim); or
 [15(c)(1)(C)]: The amendment changes the party or the naming of the party
against whom a claim is asserted (P changes D), if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
 Received such notice of the action that it will not be prejudiced in
defending on the merits; and
 Knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.
o Notice to the United States. When the US or a US officer or agency is added as a
defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are
satisfied if, during the state period, process was delivered or mailed to the US attorney
or the US attorney’s designee, to the Attorney General of the US, or to the officer or
agency.
 Rule 15(d) Supplemental Pleadings. (Relates to Conduct which occurs after Case was
filed)
o On motion and reasonable notice, the court may, on just terms, permit a party to serve a
supplemental pleading setting out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented. The court may permit supplementation
even though the original pleading is defective in stating a claim or defense. The court
may order that the opposing party plead to the supplemental pleading within a specified
time.

A. 15(c): Relation Back of Amendments

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- Rule 15(c): whenever the amended pleading arose out of the conduct, transaction, or
occurrence set forth in the original pleadings, the amendment relates back to the date of the
original pleading
- Rule: A new cause of action is not stated in an amended complaint so long as the result of
the facts of the amendment and the original complaint is the violation of one right by a
single legal wrong.
 As long as P’s amendment does not state a new cause of action, it will relate back to
the date of the original complaint and won’t be barred by the statute of limitations

Test: to determine if an amendment and a claim arose out of the same transaction (for 15(c)) is if
they both amendment and original claim allege breaches of the same legal duty & same injury.
 Any combination of alleged facts does not establish more than one cause of action so
long as the result of the alleged facts is the violation of one right by a single legal wrong
 Amendment does not establish a new cause of action so long as a P adheres to the
originally alleged breach of duty or cause of injury
 P relies on D’s unlawful violation of the same duty owed to her as the cause of her
injury
- Attempting to amend a pleading after the SOL has run will typically revert back if the
charges come from the same transaction as the original pleading  [Rule 15(c)(1)]
- Attempting to change parties is impermissible unless mistaken identity or the party is
involved and should know they were the right party  [Rule 15(c)(2)]

Bercume v. City of Flint

Rule: Under Rule 15(c), the amendment of a pleading relates back to the date of the original
pleading when the amended claim arises out of the same conduct, transaction, or occurrence set
forth in the original pleading, and therefore the amended pleading is not time barred by statute of
limitations defenses.
FRCP Rule 15©: an amendment of a pleading relates back to the date of the original pleading
when the claim asserted in the amended pleading arose out of the conduct, transaction or
occurrence set forth or attempted to be set forth in the original pleading
- Once litigation involving particular conduct or a given transaction or occurrence has been
instituted the parties are not entitled to protection of SOL against the later assertion by
amendment of defenses or claims that arise out of the same conduct, transaction, or
occurrence as a set forth in original pleading
Holding: Rule 15(c) allows a party to amend a pleading when the additional claims asserted
arise out of the same conduct, transaction, or occurrence as asserted in the original pleading, and
the parties may not use a statute of limitations defense to bar those additional claims.
- These amendments are permitted because D has already been put on notice of the transaction
out of which the new claim arises, and as such would not cause unfair surprise. Therefore,
alterations that change the legal theory but not the facts alleged in the dispute will relate
back,
 but additional claims that depart substantially from the original claims will not
relate back and may be time barred.
- Here, P’s amended complaint made two substantial alterations to the original complaint:
 One: in Count II, that D violated §1983 by denying her right to equal protection; and
 Two: in Count VI, that D violated her rights under the Elliot-Larsen Civil Rights Act.

40
- To the extent that the amended counts refer to discrimination in hiring and promotion
practices, the amended claims relate back, bc the original complaint included substantial facts
which put D on notice of these claims.
 The additional counts alleging sexual harassment, however, do not relate back bc
unfairly surprise D since P did not allege any facts in original complaint that D could
have interpreted as an attempt to support a sexual harassment claim. holding granted
in part and denied in part.
 These claims are new  D did not have notice that Ps pursuing this type of
discrimination claim in this action
 Original complaint DOES NOT contain claims of sexual harassment and is devoid of
any reference to conduct that could be interpreted as sexual harassment
 Also fails to allege a single incident of harassment or any other discrimination
attributable to any individual person
Notes:
- Can amend your complaint to include new legal theories, but CANNOT include a new set of
facts in amended complaint that are not originally under initial complaint
 In order for amended complaint to relate back must be under same or clarified factual
allegations

N. Amendments Before Trial

- Rule 15(a)(1) allows a party to amend his pleading once as a matter of course during a
certain limited time; length of this time turns on whether his pleading requires a responsive
pleading
- Afterwards, unless the party obtains his opponent’s written consent, the allowance of an
amendment rests in the discretion of the court—“when justice so requires” Rule 15(a)(2)
 This means that the judge should balance the equities, although it is up to the
amendment’s opponent to convince the judge to disallow the amendment
 Amendment’s opponent must show:
o That the fault of the other side in delaying his motion to amend, minus the
prejudice to that movant’s presentation interests that would be unavoidably
caused by denying the amendment, OUTWEIGHS any fault of the amendment’s
opponent in inducing the delay in moving, minus the prejudice to that opponent’s
reliance interests that would be unavoidably caused by allowing the amendment
o Court must also consider public interest (which usually favor amendment)
- Party seeks to leave to amend by a motion made in accordance w/ 7(b)—party should present
the proposed amendment w/ the motion
 As general rule, the court on such a motion will not pass on the sufficiency of the
proposed amended pleading
o If it is obvious that the proposed amended pleading is insufficient, the court is
likely in the exercise of its discretion to disallow the amendment
o An amended pleading supersedes the original pleading, which drops out of the
case

O. Amendments During or After Trial

 Rule 15(a) gives no absolute time limit on seeking amendment

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 Rule 15(b) shows that a motion to amend made during the course of the trial is not
necessarily too late, and that there might be circumstances in which a party may seek and a
court may allow an amendment even after the conclusion of trial and the entry of judgment
 Rule 15(b) handles 2 late situation w/n the general scope of Rule 15(a)
o 15(b)(1) allows amendment where a party seeks to amend after the opposing side has
successfully objected to trial evidence as going beyond the pleadings
o 15(b)(2) allows amendment where the opposing side, having failed to object fully to trial
evidence unambiguously going beyond the pleadings, thereby consented to the trial of
those new issue

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 V. Striking Pleadings: RULE 11
Rule 11: framed in terms of lawyer’s duty to the court;
- Provided from striking pleadings filed for “delay” or without good ground to support them
- One of the shortest and least used rules
1983: Rule 11 amended  now required attorneys to certify they had made a “reasonable
inquiry” before filing a complaint
 Made a monetary sanction (attny fees) available for amount incurred bc of filing of
bad pleading
- Now mandatory sanctions, not optional. Must correct pleadings with new contrary facts.
- Made rule more broad to cover all types of endorsement. About deterrence more than
punishment. Only attorneys can be sanctioned not clients
 Allows for striking pleadings filed for the purpose of delay or without good ground to
support claims. Must make a reasonable inquiry before filing a complaint and
monetary sanctions imposed for filing a bad pleading. Revised to give a 21 day safe
harbor and judge discretion if it was a bad pleading. If judge decides it was a bad
pleading MUST impose sanctions under the old version of the rule.
 Before 1983 never used and then amended that attorneys must certify they made a
reasonable inquiry and made monetary sanctions from bad claims. Prior they just
brought claims.
1993: Rule 11 amended again; Then restyled in 2007

A. Changes between 1983 and 1993 rule 11:

- 1993: After the 1993 amendment, district court judges have more discretion to decide
whether or not to impose the sanctions, not mandatory like it used to be before the 1993
amendment (“Must”  “may”)
 Law firm is not liable, only the individual attorney can be liable sanctions
 Difference between good faith and not frivolous
 Cannot attach
 11c3: court can impose sanctions only after giving notice and opportunity to be heard
through issuing a show-cause order
o Court used to be able to sanction on it’s own without opportunity to be heard
 Can no longer sanction the individuals (only lawyers can be sanctioned for making
arguments based on the law since only lawyers are qualified to do so…)
 21 day safe harbor provision
 Used to be for extending, modifying, or reversing existing law now says also
establishing new law
o Gives parties the opportunity to be more creative (more latitude for lawyers to be
creative)
 11b3: well-grounded in fact  facts will likely have evidentiary support after a
reasonable investigation or discovery (again gives lawyers more latitude)
 Monetary sanctions are now disfavored; rule now is more focused on deterrence (11c4)
 1983: Objective inquiry (formed after reasonable inquiry)  1993: Subjective inquiry
(formed after reasonable inquiry under the “subjective” circumstances)

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 o Now case by case analysis
- Rule 11 now: Requires every pleading, motion or other paper to be signed by attorney (If
no attorney then signed by party)
 Signature means: person signing has read the pleading and to best of person’s
knowledge and belief formed after reasonable inquire it is well grounded in fact and
warranted by existing law or a good faith argument
o If not signed, documents/pleading/ etc shall be stricken unless promptly signed
after being brought to the attention of movant
o If signed in violation of the rule, the court shall impose on person who signed it
an appropriate sanction which may include order to pay the other party the
amount of the reasonable expenses incurred bc of filing the pleading (including
reasonable attorney’s fee)
 Abolishes the requirement of 2 witness testimony or of 1 witness with corroborating
circumstances

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
 Rule 11(a) Signature.
o The lawyer must sign; if no lawyer then the pleader must sign
o The signer must include his address and telephone number
o There is no need to accompany pleadings w/ an affidavit (unless specifically provided
for by another rule or statute)
o If the signature is missing, the court may strike the pleadings unless it is signed
promptly after such omission is brought to attorney or pleaders attention
 Rule 11(b) Representations to the Court. By presenting to the court a pleading, written
motion, or other paper-whether by signing, filing, submitting, or later advocating it-an
attorney or unrepresented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:
(1) Made with a proper purpose- not to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;
(2) Warranted by existing law or a non-frivolous argument for the establishment of new law
(3) Well grounded in fact- the factual contentions have evidentiary support or, if specifically
so identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) Based on Evidence- the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information
 Rule 11(c) Sanctions.
(1) If, after notice and a reasonable opportunity to respond, the court determines that Rule
11(b) has been violated, the court may impose an appropriate sanction on any attorney,
law firm, or party that violated the rule or is responsible for the violation. Absent
exceptional circumstances, a law firm must be held jointly responsible for a violation
committed by its partner, associate, or employee.
(2) Motion for Sanctions.
o A motion for sanctions must be made separately from any other motion
o Must describe the specific conduct that allegedly violates Rule 11(b) [reasonable
inquiry]

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 o Motion may only be filed if the pleading is not corrected or withdrawn w/n 21 days of
service
o The court may award the winner reasonable expenses and fees incurred in making or
opposing the motion
o Law firms will be held jointly liable-absent exceptional circumstances
(3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party
to show cause why conduct specifically described in the order has not violated Rule
11(b). [Burden of proof on pleader to show they didn’t violate Rule 11(b)
(4) Nature of a Sanction.
o A sanction imposed under this rule must be limited to what suffices to deter repetition
of the conduct or comparable conduct by others similarly situated.
o The sanction may include nonmonetary directives; an order to pay a penalty into
court; or, payment of another party’s expenses/lawyer’s fees
(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
o Violations of 11(b)(2) (pleading not warranted by law) against represented party
o When initiated by the court (on its own) unless the court issues an order to show
cause before either
 Voluntary dismissal (made by or against a party or attorney)
 Settlement of claims (made by or against a party or attorney to be sanctioned)
(6) Requirements for an Order. Court shall describe conduct determined to violate the rule
and explain the basis for sanction
 Rule 11(d) Inapplicability to Discovery.
o Rule doesn’t apply to:
 Disclosures
 Discovery Requests
 Responses
 Objections
 Motions subject to provisions in rules 26-37
- IF the attorney knew there was no there was no case then they violated rule 11 but if they
were in the dark, they didn’t…
- Rule 11 makes tension between pleading and discovery
 Rule 11 has an OBJECTIVE STANDARD- attorney must have reasonable belief
under the circumstances
 Goal of Rule 11-to deter dilatory and abusive tactics in litigation
 Safe Harbor Provision-Have 21 days to retract claim [11(c)(2)]

P. Reasonable Inquiry & Well Grounded in Fact

Kraemer v. Grant County  FACTUAL FAILURE

Rule: An attorney’s investigation into the facts need only be reasonable, and his investigation is
not required to carry him to the point of absolute certainty.
Holding: It was error to conclude that attorney’s conduct in filing the complaint was
sanctionable under rule 11
- An attorney need not be absolutely certain of the facts before filing suit.
 To avoid sanctions, he is only required to make a reasonable investigation into the
facts of the case.
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- Rule 11 must not bar the courthouse door to people who have some support for a complaint
but need discovery to prove their case
 Focus on rule 11 is on what should have been done before filing rather than on the
results
 If discovery is necessary to establish a claim, then it is not unreasonable to file a
complaint
- The court considers several factors in determining whether an attorney has made a
reasonable investigation, which include:
 the time the attorney had to investigate; the extent to which the attorney had to rely on
his client in order to learn the facts; the complexity of the case; and the extent to
which access to discovery material would aid the attorney in learning the relevant
facts.
- If discovery is required to obtain the information necessary to establish a claim, it is not
sanctionable to file a complaint in order to obtain that information.
 The use of Rule 11 in cases such as this would undermine attorneys’ ability to
zealously advocate on behalf of powerless clients who may not have the ability to
learn all the facts before suit is filed. The holding below is reversed.
- In this case, attny did everything he could have been reasonably expected to do to learn the
facts of P’s case.
 Because he alleged conspiracy, and conspiracy by definition happens in secret, it is
natural that he had trouble procuring direct evidence of his claims. Attny cannot be
held responsible for the fact that D did not confess nor cooperate with the
investigator. Bc did not cooperate, attny’s only choices were to advise P to drop suit,
or file suit in hope that more facts would come to light through discovery
Notes:
- Imposed Rule 11 sanction where attorney hired a private investigator to check out story but
was never able to come up with enough proof of the claim before-hand.
 Conducted all reasonable prefiling discovery  Conspiracy would require
discovery.
- Why did P go for federal court instead of a state cause of action?
 Strategic decision  bc dealing with a local government official (sheriff) federal
court will likely be less bias than a local district court would be
 Problem with fed court: needs to prove sheriff acting in conjunction with parents…
o Bc couldn’t prove  court granted SJ for D
o AKA it survived a motion to dismiss…. BUT attorney is still sanctioned
(bizarre)…
- Where you need discovery to prove a case that does not mean the case is without merit.
 Surviving a 12b6 is evidence of the merit of the claim.
- Under what standard does court review?
 Deference – abuse of discretion review because it’s a question of fact not a question
of law
- Goes back to Twombly/Iqbal
 D has all the evidence necessary for a conspiracy charge
 Cannot expect P to have all evidence necessary to prove his claim prior to discovery
 P’s attorney even hired a private investigator on his own dime

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 o Attorney did all he reasonably could have done before complaint was filed

Q. Warranted by existing law

Frantz v. US Powerlifting Federation FACTUAL FAILURE
Rule: To avoid Rule 11 sanction, a party must perform legal research before filing a complaint
to be sure that the claim is not frivolous, and each claim in the complaint must be colorable.
- decided under the previous version of rile 11 which made sanctions mandatory when a rule
11 violation was found
Holding: Counsel must be aware of current Supreme Court rulings and new legislation which
may affect the validity of his client’s claim. Failure to do so may result in the filing of a frivolous
claim, which in turn opens counsel up to the threat of Rule 11 sanctions
- The fact that defense counsel spent so much time preparing the request for fees is immaterial,
bc the relevant inquiry is not how much time counsel spent on defending the case, but rather
whether the case was frivolous. 
- If have both good faith and bad claims  Can be sanctioned for the bad claims
 While it appears that P’s counsel had basis in fact to allege some of the claims he set
forth, other claims had no evidence suggesting that they are true. In a complaint that
pleads multiple claims, each claim must have a foundation in fact, just as though the
claim had been pleaded on its own. Although P’s counsel was not required to plead
the facts he had to support each claim, he was required to know those facts. It does
not appear that he did in this case these baseless claims deserve Rule 11
sanctions. 
- Judge must explain the line drawn under which sanctions are justified and otherwise are
not…
 Restraint on discretion of courts to impose sanctions
 By requiring them to articulate the reasons for imposing the sanction, we are
restricting discretion so as to give it some analytical clarity

R. “Improper Purpose” vs. non-frivolous argument for establishment of new law

- Should not prevent advocacy because 11(b)(2) is for the creation of new laws.
 Difference between hopeless in fact (sanctions should be imposed) and hopeless in
law.
- Pleader who wants to change or extend the law must make a nonfrivulous argument for doibf
so.
Saltany v. Bush: U.S. Air Raid on Libya Case  LEGAL FAILURE
Rule: When the district court finds that a party has violated Rule 11, it must impose a sanction.
- The suit was brought even though the attorney was aware there were no grounds and no
hope of recovery. The court room is not the place for protests. Bringing a case with no
grounds requires sanctions under Rule 11. Courts have power to sanction for whatever they
want.
- Reason for sanctions:
1. Attempt to use fed courts to serve as a forum for public statements of protests
a. the seriousness of the injury is not the determining factor in deciding whether or
not to impose sanctions. Nor is it a compelling argument that the courts should

47
 stay open to plaintiffs who wish to file suits as a form of public dissent. Acting
as a forum for protest is not a proper function of the federal courts.
2. The case offered no hope whatsoever of success and P’s attorneys surely knew that
a. P did violate Rule 11 by filing a case they knew was impossible to win. 
DISSENT: the court should not have imposed sanctions because the district court said it was
hopeless but did not say it was a bad claim.

Colangelo Notes on Saltany:

- US applies foreign law and international law in certain cases
 International law: Nuremberg & Hague Convention
o Nuremberg: official position of D as heads of state or officials in gov shall not be
considered as freeing them from responsibility or mitigating punishment
 Libyan law: foreign law
- Dist. Ct: Originally not sanctioned just dismissed for sovereign immunity
 P appeal & D counter appeals the denial of imposing sanctions
- App. Ct: upheld dismissal and imposes sanctions on attorney under Rule 11 for a “frivolous
suit”
 Facts = district court; they see all the facts, witnesses, testimony, etc…
o That’s why we defer to the district court’s judgement
 Appellate court DID NOT DEFER to the district court’s decision not to sanction…
o They did not comply with the deference standard of review they were under
o Supposed to review decisions for “abuse of discretion” and thus defer to district
court
 Appellate court transformed the lower courts commentary
o District court explicitly DID NOT say that case was sanctionable..
o Simply said that attorney surely knew case was hopeless
 Appellate court transformed this language into a finding of rule 11
violations  imposed sanctions which lower court had not done…

Court as forum of protest  Should this be sanctioned?

- Well should this have even been dismissed under sovereign immunity to begin with? Is there
sovereign immunity for war crimes?
 Under Hague regulations bombardment which did occur is a violation of international
law
 Based on Yamashita precedent, Reagan could be liable and not immune under
sovereign immunity…
- In Yamashita, Court rejected that argument that war crimes are political matters completely
outside the scope of judicial review  Ruled that violations of the Hague convention
amounting to war crimes
 P’s counsel alleged a prima facie meritorious claim for relief under the FTCA
o A complaint structured on Nuremberg principles is not a sham case
o If under judicial system of US no remedy is found, counsel for victims should not be
punished for asking…
o By imposing sanctions on attorneys, ct appeals gave a retrogressive example for courts
elsewhere

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  Acted “zealously and excessively to shield political interests and political
sensibilities”

49
 VI. Disclosure & Discovery [Rules 26, & 36-37]
RULE 26: judges have a lot of discretion in discovery

 Equity doctrines: a lot of judicial discretion in these doctrines

 Deposition: Taking testimony of a witness under oath
 Interrogatory: Writing questions to opposition and they have to answer under oath;
Seek admission of facts and subpoena of documents

- Rule 26(b)(2)(c): gives district courts tons of discretion to engage in a cost benefit analysis
(CBA)
 Also extends to the issue of electric discovery (Rule 12(b)(2)(b))
 Costs far outweigh the benefits  don’t allow
 Benefits far outweight the costs  allow

Once you get to part of discovery have full defense of the law behind you
- People who do not comply with rules of discovery can be held in contempt

- Before 1970’s: rules of discovery were very liberal

 Wanted to get to the merits of the case
 Prior to 1983 was all information related to the subject matter with power to the
courts to control discovery and sanction abuse.
 Fishing expedition: broad discovery requests
o Either other party put through extremely burdensome discovery process or
o Other party would prefer to settle for lower amount than to pay extremely high
costs of discovery
 Strike Suits: “In terrorem suits”
- 1993: After 1993 mandatory disclosure must turn over relevant information and may only
request information relevant to the claim or defense of any party. You can get information
relevant to subject matter by filing motion and showing importance.
o Mandatory disclosure: requires both parties to disclose everything without even asking
for it
o Change in the scope of discovery
 Old: relevant to subject matter (Broad)
 New: relevant to claim or defense (Narrow)
o Can get relevant to subject matter standard by
1. Showing good cause
2. Order to show cause by the court
Positives:
o Increases efficiency for both court and parties
 Instead of having to look and search for info both parties must submit
o Information that is going to be given away anyway, but this promotes settlement on
merits and not on in terrorem suits
 Parties get information and if one sided then other party will settle
o Gives the courts lots of power and discretion to control discovery

50
  1983 rules create sanctions for failure to comply with discovery rules
Negatives:
o However, completely undermines the adversarial process
 Parties must carry their own weight and produce their own work product in
preparation of their case
o Strategy to deluge opponent with information
 By flooding opponent with information, opponent cannot get through and find the
relevant information
- Rule 37(c)(1) provides the court with discretion in determining an appropriate sanction for
failure to provide information required under 26(a)
 @ courts discretion  violation of rule 26(a) warrants sanctions under 37(c)(1)

Discovery rules are incompatible with the adversary system

- Adversary Breakdown
 “borrowed wits” instead of client party served
 Tradition  this stuff has always been protected at CL
o Adversary system is the traditional mode of uncovering the truth

- If in favor of disclosure of mental impressions, what argument can you make in support
of allowing in limited circumstances?
 Precedent: It’s not impossible to acquire these disclosures but must meet the
threshold of sufficient showing of necessity
o This threshold is a higher standard than that for ordinary work product; not sure
what the standard requires actually is… but do know that far stronger showing is
required
o Hickman As to oral statements, no showing of necessity can be made under
the circumstances as to justify production…
 SC: “if there should be a rare situation justifying production” of such
disclosure this case is not of that type
o Upjohn Work product based on oral statements cannot be disclosed simply on
showing of substantial need and inability to obtain the equivalent without undue
hardship (bc the standard for the disclosure of these types of work product is
much higher than for original work product)

RULE 26 Duty to Disclose,

1) Rule 26 General Provisions Governing Discovery
a) Rule 26(a) Required Disclosures-Methods to Discover Additional Matter
i) 26(a)(1) Initial Disclosures
(1) A party must provide (without waiting for a discovery request)
(a) People—names, addresses, phone numbers (if available) likely to have
discoverable information that the disclosing party may use to support its
claims/defenses (this does not include people with information solely for
impeachment)
(b) Documents—relevant documents, data and other “tangible things” that are in
possession, custody, or control of the party and that the disclosing party may
use to support its claims or defenses unless solely for impeachment

51
 (c) Materials—from which computation of damages arose, unless privileged or
protected, including materials bearing on the nature and extent of injuries
suffered
(d) Insurance Agreements—which may indemnify or pay part of judgment
(e) Exemptions
ii) 26(a)(2)
(1) Requires a party to disclose, at a specified time, the identity of any expert who
may be called at trial. Most of these experts must also deliver a detailed report,
which must include all opinions to be expressed an the underlying reasons, as well
as details about qualifications, compensation, and previous experience as a
witness
iii) 26(a)(3)
(1) Requires disclosure shortly before trial, of trial witness lists and the like regarding
non-impeachment evidence. In particular, the parties must disclose trial exhibits,
which allows airing evidentiary disputes in advance of trial
iv) 26(a)(4)
(1) all disclosures are to be in writing, signed and served. Signature is a certification
that to the best of the signer’s knowledge, information, and belief formed after
reasonable inquiry the disclosure is complete and correct as of the time it is made.
(a) Violations of this certification rule will be punished by sanction 26(g)
NOTES
 Implemented in 1993 – parties must disclose certain information without waiting for a
discovery request.
 26(a)(1) lists what is to be disclosed:
o Identity of people likely to have discoverable information relevant to disputed
facts alleged with particularity in the pleadings (26(a)(1)(A));
o All relevant documents (26(a)(1)(B));
o Computation of damages claimed (26(a)(1)(C)); and
o Insurance agreements (26(a)(1)(D)).
 Timeframe of disclosure is established at 26(f) meeting of the parties
 Disclosure can be suspended by local rules.
 Disclosure is very controversial – many critics say that it is harmful to adversarial system
because attorneys have a duty to represent their clients, not aid the other side. With
disclosure, attorneys must use their skills to serve the adversary (to determine what is
relevant). Martinez seemed to suggest that the adversary system wasn’t that important to
protect, that leveling the playing field between attorneys might be a good thing

2) Rule 26(b) Discovery Scope and Limits

i) 26(b)(1) A party may obtain discovery regarding any matter that is
(1) not privileged and
(2) Relevant to the claim or defense of any party
(a) Including the identity and location of documents or other things and the
identity and whereabouts of persons having knowledge of any discoverable
matter
ii) 26(b)(2) Limitations

52
 (1) local rules or courts may change the rule by setting limits on the number of
depositions and interrogatories
(2) discovery shall be limited if the court determines that
(a) discovery sought is
(i) unreasonably cumulative or duplicative
(ii) or, obtainable from a more convenient or less expensive source
(b) or, the party seeking discovery had an ample opportunity to obtain the
information sought
(c) or, such discovery would be unduly burdensome or expensive in comparison
iii) 26(b)(3) Trial Preparation: Materials
(1) Disclosure
(a) A party may obtain discovery of documents and tangible things otherwise
discoverable under b1 and prepared in anticipation of litigation or for trial by
or for another party or by the other party’s representative (attorney,
consultant, surety, indemnitor, insurer, or agent)
(i) Only upon the showing of SUBSTANTIAL NEED for the materials to
prepare his case
(ii) And, cannot obtain the SUBSTANTIAL EQUIVALENT of the materials
without UNDUE HARDSHIP
(b) Disclosure is limited to materials themselves, Courts wil protect another
party’s work product (ex. Conclusions, theories of recovery, strategies)
iv) 26(b)(4) Expert Opinions
(1) Depositions
(a) Depositions of any person identified as an expert may be taken and may be
used at trial
(b) If an expert disclosure report is required, the deposition shall be conducted
after the report is received
(2) Other party’s expert
(a) A party may discover known facts, or opinions of another party’s experts (via
depositions and interrogatories) who are NOT expected to be used at trial, but
only if the party shows exceptional circumstances that make it impractical to
obtain the expert information himself
NOTES
 Any matter not privileged that is relevant to the subject matter can be inquired into.
 Information sought in discovery need not be admissible, so long as it is reasonably
calculated to lead to the discovery of admissible evidence, the information can be
discovered.
 26(b)(3): A party may discover documents and tangible things prepared in anticipation
of litigation by or for the other party or its representative (attorney, consultant, surety,
indemnitor, insurer, or agent) only upon a showing of substantial need of the materials
and that the party is unable to obtain the information by other means without undue
hardship. Disclosure of mental impressions, legal theories of an attorney or other party
representative never allowed.
 NOTE: A party may obtain his own previously made statement (i.e. to insurance
investigators) without normal showing of need (but, the opposing party may be able to
depose party before releasing the statement). The reason a party’s statement is treated

53
 differently is that it is an admission by party, admissible into evidence at trial (and
discovery should provide access to everything that could be used as evidence at trial)

b) Rule 26(c) Protective Order

i) Requirements for requesting a protective order
(1) Motion for protection must be made
(2) Showing of good cause
(3) Certification of good-faith effort or attempt to settle matter without the court
ii) A court may make an order which justice requires to protect any party from
(1) Annoyance
(2) Embarrassment
(3) Oppression
(4) Undue burden or expense
iii) Controls which courts may use to protect parties include one or more of the
following:
(1) That disclosure or discovery is not to be had
(2) Disclosure or discovery may be had only on specified terms and conditions
(3) Discovery be had by a certain method
(4) Discovery scope be limited to certain matters, prohibiting inquiry into other
matters
(5) Discovery be conducted in the privacy of a court designee
(6) Sealed depositions only to opened by court order
(7) Trade secrets or condifentiality not to be revealed or to be revealed in a specified
manner
(8) Parties file simulatenious specified documents and information in sealed
documents and information in sealed envelopes to be opens with a court order
NOTES
 Usually imposes restriction on who has access to materials
 Purpose of protective order: protects party from future injury, embarassment,
etc.; encourages parties to be more willing to turn over information for trial (since it
will be more confidential

c) Rule 26(d) Sequence and Timing of Discovery

i) Unless the court allows, or the parties agree a party may not seek discovery from any
source until after a conference of the parties
ii) The methods of discovery may be used in any order unless the courts grants a motion
based on
(1) Injustice
(2) Inconvenience of parties or witnesses
(3) Delays to the other party’s discovery
NOTES
 Party can’t seek discovery until 26(f) meeting. Discovery can then proceed in any
sequence

d) Rule 26(e) Supplementation of Disclosures and Discovery Responses

54
 i) A party who responded to discovery request is required to supplement it with new
information if
(1) The party learns that the disclose information/interrogatories are incomplete or
incorrect, and new information has not been made known to the other parties
during discovery or in subsequent writings
(2) There were incorrect or incomplete depositions/interrogatories of an expert, for
which reports are required
NOTES
 Party must supplement disclosures under 26(a) and responses to rules 33, 34, and
36, when it learns that information disclosed is incomplete or incorrect and additional
or corrective information has not been made known to the other party in another
manner.
 If a party calls an undisclosed witness, a judge can exclude the evidence from
trial, sanction the party, or grant a continuance to the other party to investigate.
 Even if witness appears that is unfavorable, you have a duty to supplement your
responses (even though this duty conflicts with an attorney’s ethical duty to zealously
represent his client)

e) Rule 26 (f) Meeting of Parties; Planning for Discovery

NOTES
 Parties must meet to discuss basis of claims and defenses, possibilities of settlement,
to arrange for disclosures and to develop proposed discovery plan.

f) Rule 26(g) Signing of Disclosure, Discovery Requests, Responses and Objections

i) Certification of disclosures
(1) Every disclosure must be signed by at least one attorney to be valid.
(2) Signature is a certification that to the best of his knowledge, information, and
belief (formed after reasonable inquiry) the disclosure is complete and correct ( as
of the time it was made)
(3) Attorney must sign everything—constitutes a certification that to the best of the
signer’s knowledge the disclosure, discovery request, response or objection is
complete and correct, consistent with the rules, not interposed for an improper
purpose, not unreasonable or unduly burdensome. Court can impose mandatory
sanctions for violations of this rule. (NOTE: This is similar to Rule 11—
necessary because Rule 11 doesn’t apply to discovery)

General Purposes
 Pleadings contain limited detail on facts or contentions; do not go disclose the witnesses,
documents, or other evidence by which the parties propose to make their proof
 When the time for trial comes, a party may compel by subpoena any person, including an
adverse party, to attend court and testify; and the person may also be commanded by
subpoena duces tecum to bring with him and produce designated documents and the like
(Rule 45)
o In the event of unexpected or unfavorable testimony, the surprised party may suffer
seriously from lack of opportunity for further investigation to rebut it

55
  FRCP on disclosures and discovery add another machinery for sifting of facts and
exploration of positions and evidence before trial; will get facts and what his adversary
will seek to prove in support of a claim or defense and how his adversary expects to
prove it
 Major motive is to prevent the trial from being a drama of surprises and to facilitate
the efficient presentation and resolution of controversies

A. General Provisions Governing Disclosure (Rule 26(a), (f), and (g))

 Elaborating on the pleaded facts, parties now must disclose certain core information,
without awaiting a discovery request
 Disclosure aims at achieving some savings in time and expense and also at moderating
litigants’ adversary behavior in the pretrial process; makes obvious discovery
interrogatories automatic, so that parties just hand over the information w/o awaiting
request
 Rule 26(a)(1) requires disclosure, at the outset, of routine evidentiary and insurance
matters, except in certain special categories of cases; comprises:
o Witnesses likely to have discoverable information that the disclosing party may
use to support its claims or defenses, unless solely for impeachment
o Documents, electronically stored information, and tangible things that the
disclosing party has in its possession, custody, or control and may use to support
its claims or defenses, unless solely for impeachment
o Computation of claimed damages
o Insurance agreements that might cover part or all of an eventual judgment
 Rule 26(a)(2) requires a party to disclose, at a specified time, information regarding any
expert whom it may call at trial; most must also deliver a detailed report, which must
include all opinions the witness will express and the underlying reasons, as well as details
about qualifications, compensation, and previous experience as a witness
 Rule 26(a)(3) requires disclosure, shortly before trial, of trial witness lists and the like
regarding non-impeachment evidence; party must disclose trial exhibits, which allows
airing evidentiary disputes in advance of trial
 All disclosures are to be in writing, signed, and served (26(a)(4))
 An attorney, or if there is no attorney then the party, must sign each disclosure under (a)
(1) or (a)(3); the signature is a certification, to the best of the signer’s knowledge,
information, and belief formed after reasonable inquiry, that the disclosure is complete
and correct as of the time it is made; the court must punish violations
 Rule 26(g) also requires for each discovery request or response a certification
 Disclosing party must promptly file pretrial disclosures under (a)(3) with the court; (Rule
5(d), which provides that other disclosures, like most discovery items too, must not be
filed until used in the proceeding
 Rule 26(f): Attorneys and unrepresented parties normally must confer to consider the
case and the disclosures, as well as attempt in good faith to develop a proposed discovery
plan and promptly submit a written report to the court along the lines of Form 52
o Under Rule 26(d), discovery normally cannot proceed until this conference takes
place

56
 o Rule 26(a)(1)(C): initial disclosures are normally due w/n 14 days after the
conference

S. General Provisions Governing Discovery (Rules 26(b), (c), and (d))

 Disclosure conveys only basic or core information about the case
 Scope of discovery is wide; Rule 26(b)(1); party may obtain any nonprivileged matter
that is relevant to the claim or defense of any part
o Relevance embraces the existence and location of documents or other things and
the identity and whereabouts of persons having knowledge of any discoverable
matter
o Relevant information need not be evidence admissible at trial
 Rule 26 follows these general formulae w/ specific provisions not only authorizing case-
by-case judicial supervision of duplicative or disproportionate discovery (Rule 26(b)(2)),
but also limiting the discovery of work product (26(b)(3) on discovery of the critically
useful materials prepared by or for a party or his representative in anticipation of
litigation or for trial) and the discovery of expert information (26(b)(4))
 Theory expects discovery to work almost wholly by action of the parties w/o intervention
of the court
o Physical or mental examination under Rule 35 is the only discovery device that
the discovering party must initiate by motion addressed to the court
o 5 other devices—depositions by oral examination, depositions by written
questions, interrogatories to parties, production of documents and things, and
requests for admission—generally start and move along by party initiative alone
o Party makes application to the court only in special situations or when something
goes awry, as when a request for discovery is resisted or a misuse of discovery is
threatened
 6 devices may proceed in any sequence according to Rule 26(d), unless a party gets the
court to order otherwise or unless the parties agree otherwise

3) Rule 30 Depositions upon Oral Examinations

a) 30(a) When Depositions May be taken; When leave required
i) 30(a)(1) A party may take the testimony of any person, including a party, by
deposition upon oral examination WITHOUT leave
ii) 30(a)(2) Leave of court is only required if:
(1) 30(a)(2)(A) the proposed deposition will result in more than 10 depositions by a
party
(2) 30(a)(2)(B) or, the person to be examined already has been deposed in the case
(3) 30(a)(2)(C) or, a party request to take a deposition before a rule 26(f) discovery
meeting, unless a witness is leaving the country and will not be available later
(4) or, the person is in prison
b) 30(b) Notice of Examinations
i) 30(b)(1) General Requirements
(1) notice to take deposition: the Deposing party must give reasonable notice in
writing to every other party in the action, stating:
(a) the time and place the deposition is to be held
(b) the name and address of each person to be examined (if known)

57
 (c) if name not known a general description sufficient to identify the person or a
particular class the deponent belongs to (if unknown)
(d) if a subpoena duces tecum is to be served, notice must include the materials
sought to be produced.
c) 30(c) Examination and Cross-Examination
i) officier should put witness under oath and record the testimony.
ii) All objections regarding the following shall be noted on the record:
(1) To the officer’s qualifications
(2) The manner of the recording
(3) The evidenc presented
(4) Any other aspect of the examination proceeding
iii) If a written deposition is used, the answers shall be given to the officier
d) 30(d) Schedule and Duration –Motion to terminate or limit examination
i) 30(d)(1)Objections
(1) Objections during the deposition must be stated concisely and in a non-
argumentative and non-suggestive manner
(2) A person may only instruct a deponent not to answer a question if it is necessary
to:
(a) Preserve a privilege or
(b) Enforce a court limitation or
(c) Present a motion to terminate
ii) 30(d)(4) Motion to Terminate Examination
(1) at any time during a deposition, a party or deponent may move to terminate the
examination or change its scope
(2) Grounds for Motion
(a) The deposition is being conducted in bad faith
(b) The deposition is unreasonably embarrassing, annoying or oppressive
(3) The court has discretion to make changes or terminate the deposition
(4) The deposition is then suspended until the court has time to review the motion
e) 30(e) Review by Witness, changes, signing
(1) if a party or deponent ask to review depositions before their completion
(a) the deponent will have 30 days after receiving the transcript to make changes
(b) and the deponent must give reasons for changes
(c) and the deponent must sign
f) 30(f) Certification and Delivery by Officier
i) the certification process:
(1) the officer must certify that the deposition was made under oath and was
accurately transcribed.
(2) Certification must be in writing, sealed, and sent to an attorney
(3) Any copies of produced information shall be annexed to the dpeostion
(4) Copies of the deposition shall be sent to ay requesting parties upon reasonable
payment
ii) The officier shall retain stenographic notes or copeies of the deposition recording
iii) The party taking the deposition shall give prompt notice of filing to all other parties
NOTES

58
  30(a): Can take deposition of anyone without leave of the court except if person to be
deposed is in prison, when the proposed deposition would result in more than 10
depositions being taken by one party, when the deponent has already been deposed in
the case, or when the proposed deposition is to take place earlier than the time
specified in Rule 26(d).
 Depositions can be taken of party or nonparty. Party just has to be provided notice of
deposition, nonparty must be subpoenaed under Rule 45.
 Resembles trial, parties must object to question or else they waive objection at trial (if
the objection could have been obviated at the deposition) (Rule 32(d)(3)(B)).
 Depositions will often start with admonitions (if you don’t understand the question,
ask and I will clarify it, are you ill? are you using medications? etc.) to take away any
excuse the deponent may later assert for damaging testimony elicited from deposition.
 Questions asked at deposition can not be couched in legal terms/ask for legal theories
if they are directed to a lay witness. Witness will not be forced to answer them. (See
Umphres and Brandenberg).
30(d): Allows parties to terminate or request limitation of examination if abuse occurs. Court
may impose sanctions on abusive party (including attorneys fees)

Depositions by Oral Examination (Rule 30)

 Comprises oral examination of anyone, party or nonparty, thought to have information
w/n the scope of discovery as set out in Rule 26
 Why a party might want to take a deposition / Purposes of Discovery:
o Discovering party may know or suspect that some person has information that
would aid him in his own investigation and preparation for trial
o Discovering party may be left genuinely in the dark by his adversary’s pleadings
and disclosures, and so may want to take the adversary’s deposition to uncover
the nature of the claim or defense that he must prepare to meet in settlement
negotiations or at trial
o Discovering party may have a witness w/ whose story he is fully familiar, so there
is no occasion to “discover” it BUT witness may be old and likely to die before
trial, or she may be young and about to join the armed forces, or she simply may
live faraway from the place of trial, or there may be some other danger that she
will be unavailable to testify at trial;
 A deposition serves to record testimony and may be used at trial upon a
proper showing that the witness is unavailable
o Discovering party may know the story some other witness will tell well enough
for purposes of his own preparation BUT will still want a deposition to pin the
witness down by sworn testimony in advance of trial
 If the witness tells a different story at trial, he may use the deposition to
discredit the witness
o He may hope that he can by a deposition expose a fatal weakness in his
adversary’s claim or defense, and thus be able to avoid a trial altogether by a
motion for summary judgment (Rule 56)
 Main features of the oral-deposition process: Rule 30(a) and (b); 45(a) (b) (c) and (g);
28(a); and 30(c), (e), and (f). [In order].
 In the usual case, leave of court is not necessary to initiate the deposition procedure
59
 o Discovering party gives reasonable notice in writing to the other parties to the
action, specifying the time and place of the deposition and naming the person to
be examined (“deponent”)
o Service of a subpoena upon a nonparty deponent officially summons her to appear
at the deposition
 Under Rule 45(a)(1), a subpoena duces tecum may command the nonparty
deponent to bring w/ her and produce documents and other things
o If deponent is a party, a subpoena is not necessary, b/c the notice of examination
itself suffices as a command
o Under Rule 30(b)(2), a request under Rule 34 to produce documents and
other things at the taking of the deposition may accompany the notice to
the party deponent
 Actual taking of the deposition resembles the taking of testimony at trial; deponent is
sworn, interrogated by counsel for the discovering party, cross-examined by counsel for
the other party or parties, and so on, the questions and answers being taken down
stenographically or otherwise recorded
o Difference is there is no judge here like there is at trial; person presiding at the
deposition does not have judicial powers; this is important on objection to a
question
o Deponent should answer, under any appropriate objection, all questions, except
for particular questions thought to fall outside the scope of discovery and to call
for an answer that would infringe on privilege in a damaging or offensive fashion
o If examining party is unhappy regarding a deponent that refused to answer or who
has accepted advice by an opposing party not to answer, examining party can
complete or adjourn the deposition and then seek an enforceable court order to
answer (Rule 37(a))
 Examining party may request payment of expenses for proceedings
occasioned by unreasonable failure to answer a proper discovery question,
and the deponent or opposing party may make a corresponding request in
case of unreasonable insistence on an answer to an improper discovery
question
 Court may oblige counsel advising unreasonable action to pay these
expenses personally
4) Rule 32 Use of Depositions in Court Proceedings
a) 32(b) Objections to Admissibility
i) may be made at any time during the trial or hearing
b) 32(d)(3)(A) As to Taking Depositions
i) Competency of witness, relevancy, materiality of testimony—not waived unless the
objection would have definitely caused the deposition to be removed.
c) 32(d)(3)(B)
i) Irregularities, manner of posing questions, oath affirmations and conduct—waived if
not made promptly at the deposition
NOTES
o Contains all rules governing use of deposition testimony at trial. Deposition can be used
to impeach witnesses at trial; or for any purpose if the witness is dead, is 100+ miles from
trial or hearing, is unable to attend because of illness, age, or imprisonment, can’t be

60
 forced to attend by subpoena or under other exceptional circumstances. Also explains
when objections to depositions of any kind are waived (32(d)).
o Reasons why live testimony is preferred: allows for clarification and redirect; allows
jurors to see facial expressions/body language
o 32(a)(2) – Adverse party can use deposition of a party for any reason (not hearsay
because it is an admission by a party opponent which is always admissible)

5) Rule 36 Requests for Admissions

a) 36(a) request for admission
i) a party may serve upon any other party a written request for an admission for the
pending action only regarding statements of opinion or fact, the applicability of law to
fact, and the truth of opinions, authenticity of documents etc. within the scope of 26b
ii) if no answer or objection is received within 30 days (can be changed by agreement of
the parties or by the court) of the request for admission, a party is considered to
admit the allegation
iii) if an objection is made, the reasons shall be stated in detail
iv) admissions and denials must be specific sto the related questions
v) a party may not give lack of knowledge and information as a reason for not answering
a request unless:
(1) the party has made a reasonable inquiry
(2) there is not enough information to enable the party to admit or deny
(3) if court doesn not like an objection, it can order that an answer be made
(4) leave of court is needed for early requests
b) 36(b) Effect of Admission
i) any admissions are conclusively established unless the court grants a motion to
withdraw or amend the admission
ii) admissions are made only in regard to the pending action (i.e. cannot be used in other
actions)
iii) amendments or withdrawals may be permitted on a showing that the presentation of
the merits of the action will be subserved and if the opposing party cannot show that
he will be prejudiced
NOTES
 Parties can send RFAs to other parties. Can include questions that apply to anything
within the scope of 26(b)(1) (including application of law to fact).
 RFA deemed admitted unless responding party objects to or denies the RFA.
 RFA conclusive for this litigation only (can’t be used for future actions).
 RFAs differ from interrogatories in that they are final and binding, whereas the answers
to interrogatories are not

Requests for Admission (Rule 36)

 A party may serve upon any other party a written request to admit the truth of matters
separately set forth in the request or to admit the genuineness of described documents
(See Form 51)
 Admissions are final, whereas depositions and interrogatories are not binding
 Admissions can only be changed through amending process
 A denial defeats the attempt to obtain an admission

61
  Rule 37(c)(2) has sanctions which aim to discourage capricious denials

6) Rule 34 Production of Documents and things for inspection and other purposes
a) 34(a) Scope
i) a party may request another party to
(1) produce any document or information in its custody (within 26b)
(2) permit entry for inspection and surveying (upon notice) (within 26b)
b) 34(b) Procedure
i) requirements for the request
(1) must state each item or category of items (must be stated separately)
(2) Must specify items to be inspected with reasonable particularity
(3) Must describe the manner in which the inspection will be done
(4) Must request a reasonable time and place for inspection
ii) Leave of court is needed to serve requests early
iii) Within 30 days of the request the party shall state which items are permitted and
which are objected to
c) 34(c) non parties- may be compelled to produce documents under 45
NOTES
 Applies to documents and tangible things.
 This is usually the first kind of discovery conducted so that parties have the documents
for use at depositions.
 RFP must describe requested document with reasonable particularity. If a party does not
know what specific documents are needed, it should describe them generally (i.e. all
documents related to X contract) or should ask for all of the documents that his opponent
contends supports the allegations in the pleadings (34(b)).
 RFP must also specify a reasonable time, place and manner of making the inspection
(34(b)).
 Documents can be produced in a number of ways. The most common way is to produce
documents as they are kept in the normal course of business. One party can also just
specify a time for the other side to copy documents. Or, the party can respond by
producing documents labelled according to the RFP they correlate to (34(b)).
 RFPs can only be sent to parties. To compel production from a non-party, you have to
get a Rule 45 subpoeana (34(c))

Production of Documents and Things (Rule 34)

 Witnesses, including parties, may be compelled to produce documents and other things
during trial
 Can be addressed only to parties; can only get it from non-party through subpoena
 Rule 34(a)(1) enables a party to anticipate trial and compel any other party to produce
any designated documents, electronically stored information, or tangible tings w/n his
possession, custody, or control, so that the discovering party may inspect, copy, test, or
sample them.
 Rule 34(a)(2) provides for securing entry on any other party’s land or property for the
purposes of inspection, measuring, or the like
 All must be w/n scope of Rule 26
 This discovery device is heavily used especially now b/c of e-discovery
62
  Rule 34 process begins by service of a request in writing (Form 50)
 Requested party serves a written response either acquiescing in the request or objecting
w/ reasons
o Discovering party has a remedy under Rule 37(a) for an insufficient response
 Material may be protected from discovery (and from use at trial) by an evidentiary
privilege; attorney-client privilege; work-product Rule 26(b)(3)
o Both types of protection can be waived through disclosure of the protected
information

7) Rule 35 Physical and Mental Examination

a) 35(A) Order of Examination
i) Procedure
(1) Obtain a court order by motion
(2) Show GOOD CAUSE for the physical or mental examination
(3) Show that it is a material matter in CONTROVERSY
ii) Must give notice to all parties, specifying the
(1) Examiner
(2) Time and place of exam
(3) Scope of examination
b) 35(b) Report of Examiner
i) an adverse party may request a report of the examination
ii) by requesting a report or taking an examiner’s testimony the examined party waives
the privilege to get another examiner to testify for her
iii) agreements by parties may be made to alter these rules
NOTES
 This is the only discovery device that requires a court order to complete (35(a)).
 Only a party or persons under the control of a party can be ordered to submit to a
physical examination (35(a)). To determine physical or mental condition of a non-
party, you must ask them to submit to an exam or make a successful argument that
that person is in the legal control of a party. It is very difficult to get such an
examination of a non-party if they won’t submit voluntarily.
 To get the court to order a mental or physical examination of a party, requesting party
must show that physical/mental condition of the person is really in controversy in the
suit (requires more than a showing of mere relevance) (35(a)). If the other party
alleges physical injuries in the pleadings, the pleadings would suffice to show good
cause because the party has put their physical/mental condition at issue in the case.
 Under 35(b)(1), the examined party can request a detailed report of the exam from the
discovering party. If they do so, the discovering party is also entitled, upon request,
to receive a report of any previous examination of the person.
 Under 35(b)(2), if the examined party requests the examiner’s report, he waives
doctor/patient privilege
Physical and Mental Examinations (Rule 35)
 Only discovery rule that advance court approval is necessary
 Only a party or a person in custody or legal control under the party can be reached by this
rule

63
  For a non-party: you can make them a party and sue them, or argue that they are in the
custody or control of a party, or party could pursue private investigation, or pursue
discovery and use deposition of non-party witness and subpoena them
 Frequently used in lawsuits, and almost invariably in actions for personal injuries
 D a lot of the time wants his physician to conduct an exam on P; P will often agree b/c
she is aware that the trier might draw unfavorable inferences from revelation at trial that
she has refused an exam
 When for any reason a person declines to allow an exam, Rule 35 is useful
 Discovering party initiates the Rule 35 procedure by a motion
 Physical or mental condition must be “in controversy” in the action and the movant must
show “good cause”
o SCOTUS in Schlagenhauf (p.89) said that requirements of “in controversy” and
“good cause” “are not met by mere conclusory allegations of the pleadings—nor
by relevance to the case—but require an affirmative showing by the movant that
each condition as to which the examination is sought is really and genuinely in
controversy and that good cause exists for ordering each particular examination.”
 Mental and physical exams after bus driver/tractor trailer accident
 The person to be examined has not put their own position at issue
o Issue with black mail because of sweeping exams

SOMETHINGS ARE HARD TO GET THROUGH DISCOVERY – RULE 35 IS

VALUABLE WITH RESPECT TO PARTIES

8) Rule 37 Sanctions for Failure to Cooperate in Discovery

a) 37(a) Motion for order compelling disclosure or discovery upon reasonable notice
may apply for an order compelling disclosure or discovery when:
i) Appropriate Court
(1) if deponent is a party motion made Where action pending
(2) if deponent is not a party motion required Where deposition is pending
ii) Motion
(1) If a party fails to disclose the court may grant a motion to compel disclosure, upon
showing a good faith effort to obtain the discovery without the court’s help
(2) If a deponent refuses to answer, a party may make a motion for an order
compelling an answer. It the court denies the motion the deponent may be granted
a protective order.
(3) Evasive or incomplete answer- considered a failure to answer
(4) Expenses and sanction
(a) If the motion is granted, or disclosure is made after the motion is filed, the
party/deponent must pay reasonable fees spent to make the motion
(b) If motion is denied, and the motion is not substantially justified the party
making the motion must pay reasonable fees spent ot oppose the motion
(c) If the motion is denied in part and granted in poart expenses may be
reasonably apportioned
(d) All sanction will be determined by a court hearing
b) 37(b) Failure to Comply with Order
i) sanctions by court in district where deposition is taken

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 (1) failure to be sworn or provide an answer is considered contempt in that court
(2) Sanctons by court in district where action is pending- court may
(a) Conclude that matters sought to be discovered by a party are to be found in
that party’s favor
(b) Refuse to allow the disobedient prty to support or oppose designated claims of
defenses
(c) Render a default judgement or strike a pleading
(d) Hold the disobedient person in contempt of court
(e) Require the opposing party to pay reasonable attorneys fee resulting from his
disobedience, unless the court finds the disobedience substantially justified.

T. Sanctions for Failure to Make Disclosures or to Cooperate in Discovery (Rule 37)

 Rule 37(b) states sanctions for refusals to obey directive orders
 Rule 37(c)(1) provides that a party who w/o substantial justification fails to make a
mandatory disclosure, unless such failure was harmless, is subject to a appropriate
sanctions, which will usually prohibit use of the undisclosed evidence
 For discovery:
o Rule 37(d) provides that in certain cases of gross failure of a party to comply w/
the process for giving discovery, the discovering party need not apply for a
directive order but instead may move for a sanction forthwith; and the party from
whom discovery is sought cannot excuse his failure on the ground that the
discovery sought was objectionable unless he has already pending motion for a
protective order
 Gross failures are failure to appear to be deposed, to serve any answers or
objections to interrogatories, or to serve any written response to a request
for inspection
o Rule 45(g)-contempt sanction provided against nonparties
o Discovering party may proceed immediately to seek sanctions for disobedience
under Rule 37(b)
o Orders and sanctions for failure to make discovery under Rule 36 receive special
treatment in Rules 36(a) and 37(c)(2)

Supplementing Disclosures and Discovery Responses (Rule 26(e))

 If a party’s disclosure or discovery responses that were actually or presumably correct
and complete when given come to appear incomplete or incorrect by reason of later
events or newly acquired knowledge, they may seriously mislead other parties who rely
upon them
 Full obligation to supplement would be extremely onerous b/c it would force disclosing
or responding party’s lawyer to keep checking for new bits of info and matching them
against prior documents
 Rule 26(e) limits the burden on the disclosing party and at the same time protects the
other parties
o Provides that a party has a duty to supplement disclosures under Rule 26(a) and
responses under Rule 33, 34, and 36 if the party learns that they are in some
material respect incomplete or incorrect, unless the other parties are aware of the
additional information

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Using Disclosures and Discovery Products in Court Proceedings (Rule 32)
 Usually the court will ignore a deposition unless a party elects to offer it in evidence
o Otherwise, if court uses this amounts to reversible error
 Rule 32 deals w/ the use by parties of depositions
 Big barrier to introducing depositions at a hearing or trial is the hearsay rule; rule of
evidence that renders most out-of-court statements inadmissible and thus would tend to
exclude all depositions
 Rule 32(a) lists a series of circumstances in which the hearsay rule should not apply to
exclude a deposition simply b/c it embodies out-of-court statements
o In those circumstances, a party may use a deposition so far as admissible under
the rules of evidence applied as thought the deponent were then present and
testifying
 A party may use these items (disclosures and other discovery methods) so far as
admissible under all the usual rules of evidence
RULE 36 Requests for Admissions,
& RULE 37 Cooperation in Discovery

U. Mandatory Disclosures Rule 26(a)

- Under modern 26(a): the disclosing party must turn over materials that support her own
claims or defense

Chalik v. Cooper Hospital

Rule: Under Rule 26(a), a party must disclose the name, address, & telephone number of each
person likely to have discoverable information, along w/ the subject of that information, or else
the party may be subject to sanction.
Holding: Under FRCP 26(a), a party must, before discovery begins, disclose the name, address,
and telephone number of each person likely to have discoverable information, along with the
subject of that information, aka initial disclosures.
- Purpose of disclosures: to streamline the discovery process & avoid unnecessary cost and
delay.
- The disclosures play a particularly important role in medical malpractice cases, where D’s
have the bulk of the information, especially in regards to information relating to who was
responsible for P’s care. This information provides P with the knowledge necessary to
decide, among other things, who to depose and who to name as a D.
- Failure to comply with Rule 26(a) will result in sanctions under Rule 37; these sanctions are
automatic & don’t require a motion from the parties.
- In this case, D doctors did not comply with their obligations under Rule 26(a). They provided
only Dr. Burns’s name, neglecting to include his contact information and the basis of his
knowledge. Had the doctor D’s complied with the rule, Chalick would have known that Dr.
Burns was one of his doctors far before the statute of limitations had run on his case. Because
the doctor D’s clearly violated Rule 26(a), & that violation was not harmless, they must be
sanctioned under Rule 37. One of those sanctions must be that Dr. Burns is joined as a
named defendant.
- Sanction of discovery in form of allowing complaint to relate back

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  Courts uses doctrine of equitable estoppel  hospital estopped from claiming the
SOL has run bc their failure to identify Dr. Burns constitutes a violation of rule 26(a)
(1)(A)
o Did not identify Dr. Burns, no address, no relevant knowledge
o Dr. Huang responds that Dr. Burns was notified of patient’s relevant condition
o P does not realize he has a claim against Dr. Burns until hearing Dr. Salem’s
testimony
 P then files a motion to amend the complaint to add Dr. Burns
acknowledging that SOL claim against Dr. Burns had already passed
 Equitable estoppel: fairness doctrine; estopped from something… (stopped from
doing something  like an injunction)
o Here estopped Dr Burns from claiming he did not receive notice
 Instead charging him with constructive notice
- Rule 26(a): disclosure requirements should eliminate the ritualistic jousting over who
should be D; strict enforcement of the rule leads to early identity of proper parties so that we
can get to the merits of the case
 Want disclosures to create efficiency (for both the courts and the parties)
 Med malpractice suit
o D’s have the relevant info
o Unfair for D to keep that info from P
 It is the obligation of D to provide P with identities and roles of decedent’s treating
physicians
o D must tell P who did what, and when, with regard to P’s care and treatment
o D’s had obligation to provide this info early in action pursuant to Rule 26(A)
 Constructive Notice: Legal fiction; taken certain steps to notify you and you
OUGHT to have known
o Regardless of whether you did in fact know or not, you are charged with
constructive notice bc you OUGHT to have known given the circumstances
o Burns is not prejudiced bc has an identity of interest with the other defendants
 No claim of loss of witness testimony or other evidence as a result of the
delay in name Dr Burns bc he is in common interest with the hospital D’s
who have already been engaged in prep of the defense which won’t differ
significantly from that which Dr Burns will present
 Also court allows more time bc in courts discretion to do so…

Blank v. Sullivan & Cromwell

Rule: Rule 26  a party is entitled to discovery, not only of material, which is relevant and
admissible a trial, but also of information which “appears reasonably calculated to lead to the
discovery of admissible evidence”
- Decided under old version of the rule  “relevant to the subject matter”
- Now replaced with “relevant to any party’s claim or defense and proportional to the needs of
the case”
Holding:
- FRCP 26 not only entitles parties to discovery of material that is relevant and admissible at
trial but also, discovery of information that appears reasonably calculated to lead to the

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 discovery of admissible evidence. Furthermore, the Supreme Court has held that in Title VII
cases, information relating to labor hierarchy is relevant evidence that may tend to prove
discrimination in hiring, and therefore may be discoverable.
- Here, P’s allege that they were discriminated against in D’s hiring process bc they are
women. Whether men were hired & made partner instead of similarly situated women is
relevant information in determining if Sullivan & Cromwell was engaging in sex
discrimination. Accordingly, D is directed to answer the interrogatories.
- Promotion practices vs. hiring practices
 pre-1993 that would have been a fishing expedition; under the new rules this would
not have been relevant to the claim
 Seeking information about partnership within the firm but they are suing for
discrimination in hiring and promotional practice with in the firm
o Hiring is a prediction
o Partnership decisions have a lot of intangibles that go into that decision as well
as a lengthy record upon which to base decision (not a “guess”)
o Evidence of partnership criteria and practices would not admissible at trial
 Thus should not be entitled to the requested discovery
- P may not sue for injuries that he or she has not suffered & he or she may not sue on behalf
of a class of which he or she is not a member
 P could not have represented in this action those who may have been aggrieved by
D’s partner selection criteria
 However, D is incorrect in suggesting that P is not entitled to the requested discovery
- Spoliation: destruction of evidence that may result in sanctions under Rule 37.
 Litigation hold: must preserve information to protect evidence.
 Worst result is an adverse inference where the court decides the lack of evidence may
be used against the party who destroyed it  Assumed that it had information
detrimental to the case.
- Spoliation: “litigation hold”; litigation on the horizon  HIGHLY sanctionable
 Failure to produce documents or the destroying of documents
 Sanctionable:
o Shifting Attorney’s fees to guilty party
o ***Presumption vs. spoliation
 Court telling the jury that there is a presumption against you in regards to
the spoliation of vis-à-vis evidence
o Weight of the evidence weighs against the spoilating party (V
SERIOUS)

V. Work Product Privilege

Hickman v. Taylor: Creation of work product privilege for evidence secured by counsel in
preparation of litigation. Rule 26 gives trial judge discretion for production. Requiring attorneys
to write out witness statements leaves room for inaccuracy. Should not give mental impressions.
When counsel has the ability to obtain the information himself it is just laziness. Mutual
knowledge of relevant facts is essential. Burden is on the one who would invade the privacy to
show there would be prejudice and undue hardship not to have the material.
Facts:
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- Tug boat Taylor sank while helping tow a car float across the Delaware river
 Accident unusual and cause unknown
- 5 of the 9 crew members were drowned
- Counsel privately interviewed the survivors and they signed the statements on 3/29
 Also interviewed other persons of interest and made memorandum in some cases
about what they told him
Procedure:
- Claims were filed by all 5 of the deceased representatives
 4 claims settled out of court and 1 made it to court (petitioner in this case)
- Brought suit in a federal court under the Jones Act naming 2 tug owners individually and as
partners, and the railroad as D’s
- 1 year later P filed 39 interrogatories the 38th asked for statements taken in connection to the
towing of the car float and sinking of the tug boat and asked for them to attach exact copies
if in writing and if oral to detail the exact provisions of the oral statements
 Tug owners answered all interrogatories except 38 and the supplemental ones asking
whether statements were made
 They admitted to taking the statements but declined to summarize or set forth the
contents
- P: not attorney client privilege bc not between attny client and thus materials are not
confidential and proper subjects for discovery under rule 26
 Admits he Wants the oral statements only to help prepare to examine the witnesses
and make sure he had overlooked nothing
- D: requests called for privileged matter obtained in prep for litigation
 Attny gave an informal oral depo explaining the circumstances under which
statements were taken but was not asked expressly in depo to produce the statements
- DC: requested matters were not privileged and issued an order to produce the statements
OR give them to the court to determine which portions should be revealed to P
 D refused  court adjudged them in contempt and ordered them imprisoned
until they complied
- Ct App: reversed; info requested was part of the work product of the lawyer and privileged
from discover under FRCP
Issue: whether the written and oral statements attny obtained from witnesses are privileged
under attny client privilege, and if not whether attny is required to produce them to P’s counsel
as discovery under rule 26
Holding:
- Insufficient to justify discovery under these circumstances and the court should have
sustained the refusal of the tug owners and the attorney to produce any written statements
- As to oral statements, no showing of necessity can be made under the circumstances as to
justify production
Reasoning:
- Memorandum, statements, and mental impressions in issue in this case are outside the scope
of attorney client privilege and hence not protected from discovery ON THAT BASIS
 Privilege does not extend to info which attny secures from a witness while acting on
behalf of client in anticipation of litigation

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- BUT, bc P seeks discovery as a right of oral and written statements of witnesses whose
identity is well known and whose availability to P is unimpaired, this is more than an
ordinary request
 This request is made Without any showing of necessity or any indication/claim that
denial of such production would unduly prejudice prep of P’s case or cause any
hardship/injustice
- Neither rule 26 nor any other rule dealing with discovery contemplates production under
such circumstances
 Falls outside arena of discovery and contravenes public policy underlying prosecution
and defense of legal claims
 Essential that lawyer work with a certain degree of privacy and be free from
unnecessary intrusion by opposing parties and counsel
 Because the policy against the invasion of privacy of an attorney’s prep Is so
essential, a burden rests on the one who seeks to invade that privacy to establish
adequate reasons to justify production through a subpoena or court order
- Rule 26c gives judge discretion to make a judgement as to whether discovery should be
allowed as to written statements secured from witnesses

Work product privilege in the amended rule comes from Hickman

- Subdivision (b)(3)—Trial Preparation: Materials. Some of the most controversial and
vexing problems to emerge from the discovery rules have arisen out of requests for the
production of documents or things prepared in anticipation of litigation or for trial. The
existing rules make no explicit provision for such materials. Yet, two verbally distinct
doctrines have developed, each conferring a qualified immunity on these materials
 Both demand a showing of justification before production can be had, the one of
“good cause” and the other variously described in the Hickman case: “necessity or
justification,” “denial * * * would unduly prejudice the preparation of petitioner's
case,” or “cause hardship or injustice” 329 U.S. at 509–510.
o the “good cause” requirement: in Rule 34 (now generally held applicable to
discovery of documents via deposition under Rule 45 and interrogatories under
Rule 33)
o the work-product doctrine: Hickman v. Taylor, 329 U.S. 495 (1947)

W. Ordinary Work Product vs. Opinion Work Product

- different tests to see whether the product is protected or not…
- Duty to disclose binding but distinction between mental process and notes on the case
Different levels of protection.
 Ordinary work product: regular work product; not opinionated or through mental
impressions; the written statements and facts the lawyer uncovers
o Ordinary not absolutely protected and may be disclosed where necessary to
avoid undue hardship or prejudice
o Can get this from opposing party under rule 26 with showing that failure to get it
would result in hardship and cannot get without (substantial need and undue
hardship)
 Opinion Work Product: lawyer’s mental impressions and opinions work product
(memorandum and notes incorporating personal thoughts/opinions)

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 o courts split on whether it is protected or just required a heightened showing; very
careful about handing it over bc destroys the adversary system to allow opposing
party’s to use each other’s “borrowed wits”
o Redaction where mental impression on regular product.
 Redacting: Put tape over the parts of the work product which are
“privileged”
- Mental impressions are different:
 Difference between a fact and an attorney’s mental impression of that fact
 If disclosing work product and contains mental impressions must redact [26(b)(3)(b)]

X. Attorney client privilege:

- communication from the client to the lawyer without the presence of others for the purpose
of seeking legal advice. May not request information on how to get away with a crime.
 Privilege may impede discovery through deprivation of relevant evidence.
 Social value outweighs the need of civil litigation.
 Privilege construed narrowly and may be waived.
o Does not protect disclosure of the facts and only applies in anticipation of
litigation

Upjohn Co. v. U.S.:

Rule: In the corporate context, the attorney-client privilege applies to not only those high-level
employees who have the authority to act on the legal advice of the attorney, but also to any of
those employees who provide information to the attorney so that he may give such legal advice
- privilege attny client priv. for corporations applies to communications between attorney and
employees where the purpose is legal advice or making legal opinion.
Facts: In response to an independent audit reflecting illegal payments to foreign government
officials by employees of Upjohn (D), Upjohn’s general counsel, Thomas, sent a questionnaire to
Upjohn employees requesting any information they had concerning the payments.
Procedure:
- P: IRS issued a summons requesting D’s production of the questionnaires,
- D: refused to produce the questionnaires on the basis of attorney-client privilege.
- DC: enforced the summons
- Court of Appeals: affirmed, attorney-client privilege did not apply in the corporate context
to those employees that were not directly responsible for directing Upjohn’s actions in
response to legal advice.
- SCOTUS: granted certiorari.
Issue:
- Are questionnaires sent to a company’s employees, including lower level employees, by its
general counsel protected by the attorney-client privilege?
Holding & Reasoning:
- Yes. In corporations, attorney-client privilege applies to all employees who provide factual
information to the attorney so that he may give the company sound legal advice.
 Although lower court held that attorney communications with lower-level employees
are outside the scope of the attorney-client privilege (bc employees don’t have the
authority to act on the attorney’s legal advice), info from these employees is often

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 required for the attorney to give sound and informed legal advice to those that do
act on it.
 The lower courts’ restriction of the privilege to the employees that act on legal advice
discourages communication of necessary information from lower-level employees to
the company’s attorney.
o Lower-level employees can and do, within the scope of their employment,
involve the companies in legal troubles so they will oftentimes have information
relevant & necessary to an attorney providing legal advice.
 Thus, in this case, questionnaires filled out by Upjohn employees are protected by the
attorney-client privilege bc were responded to so that attorney could give sound and
informed legal advice to company & employees knew they were providing their
responses to company’s general counsel and that information was to be used in a legal
investigation.
- Facts contained within the questionnaires are not protected and that the prosecution may
elicit such facts by questioning the employees directly. It just may not acquire the facts by
looking at attny’s privileged questioning of company’s employees.
Notes:
- Why going for attorney privilege on work product?
 Corporation considered a person under the law
 Strategically, attorney is going to argue privilege instead of work product bc…
o Attorney client is absolute.
o Opinion/mental impression is almost absolute.
o Ordinary may be waived for hardship or prejudice.
o Does not protect disclosure of the facts and only applies in anticipation of
litigation.
 Attorney client: ABSOLUTE; no exceptions
 Work product: subject to exceptions
- You can’t hide the underlying facts by incorporating it into an attorney client
communication…
 Law compliance in a regulatory state requires good legal advice to comply with the
law
 Good advice requires good communication between lawyer and client
 Client will only speak candidly if she knows communication is going to be protected
o Engine behind attorney client privilege is the idea that we want compliance
with the law,
o No privilege then not going to have the degree of compliance we WOULD have
with the privilege

Attorney client privilege: communication relating to a fact relative to the client’s case
1. Attorney is informed of by client (communication between attny & client)
2. Without presence of strangers
3. For purposes of obtaining legal advice
o NOT for purposes of committing a crime or fraud
RULE: The purpose of attorney-client privilege is to encourage full and frank communication
between attorneys & their clients and promote broader public interests in the observance of law

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and administration of justice. Sound legal advice or advocacy serves public ends and advice or
advocacy depends upon a lawyer being fully informed by the client  The attorney-client
privilege rests on the need for the advocate and counselor to know all that relates to the
client's reasons for seeking representation. (attorney client privilege encourages compliance
with the law)
- In a complex regulatory state for client to comply with the law, there must be full and frank
communication between attorneys and their clients and there will not be full and frank
communication without a guarantee that that information or communication is kept
confidential
 Purpose of privilege is to protect the communication as confidential to encourage the
full and frank communication so as to help clients comply with complex law
 Attorney client privilege also applies to general counsel’s communications

Y. Test for attorney client privilege in corporation setting

CONTROL GROUP TEST: Officers and agents are protected. Lower level management is
not protected by the attorney client privilege. (NO LONGER A GOOD TEST)
- Supreme Court: We have to extend beyond the control-group test. Officers, agents, and
lower level management/employees are protected. 
 Work product for corporations applies to communications between attorney and
employees where the purpose is legal advice or making legal opinion.
 Previously only the brain of the corporation was protected but now expanded to all
employees when attorney performing duties to create legal opinion. If an employee
knows they are giving communications for the purpose of the company getting legal
advice  protected under attny client privilege
 EXAM: Take the facts before you and plug into this TEST:
Information, not available from upper-echelon management, was needed to supply a
basis for legal advice concerning compliance with securities and tax laws, foreign
laws, currency regulations, duties to shareholders, and potential litigation in each of
these areas. The communications concerned matters within the scope of the
employees’ corporate duties, and the employees themselves were sufficiently aware
that they were being questioned in order that the corporation could obtain legal advice
- If it matches up  extend privilege if not then no
- First argue attorney client privilege
 Then if this fails  Argue mental impressions are part of my notes or anything I have
 opinion work product
o If this fails  ordinary work product

Z. Waiver of Attorney Client Privilege:

1. Crime—Fraud: Fraud exception if you are seeking information for the purpose of
committing a crime to get away with it, then privilege is waived.
2. Disclosure to Third Party: even if not opposing counsel even if accidental
3. Partial disclosure: if you give part of a document you must give it all
a. Can’t use document as both a sword and a shield
4. Privilege log: keep a log for the court detailing each document withheld and why

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 a. Will need: a description, date, and type of material, who parties are to
communication and WHY it is privileged
b. Necessary bc this log is the disclosed to opposing side and allows them to argue
or challenge the privilege
i. Failure to create an accurate privilege log  waiver of privilege
5. Client Puts Communication at Issue: or in dispute by saying he did this on his
attorney’s advice, must then tell the advice
a. “my attorney told me to do this”  what attorney told you is now no longer
privileged…
6. Blanket Disclosure.
7.

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 VII. Pre-Trial Dismissal: Summary Judgment
Pleading  Discovery (Facts) Summary Judgement

Rule 56: Motion for Summary Judgement

- Constitutional right to trial by jury and summary judgment takes that away.
 SJ Pierces the pleadings.
 SJ now integral to dispose of weak cases. Hard to get, often reversed, always asked
for. Used to delay, highlight holes. Gets rid of sham pleadings. Not enough evidence
to justify the time and expense of a trial.
- Must ask for summary judgment to later get judgment notwithstanding the verdict, directed
verdict.
- SJ Takes questions of fact and makes them questions of law.
 As a matter of law you do not have sufficient facts to support your claim.

A. Piercing the pleadings: A historical perspective

- Rule 56: enables the courts to “pierce the pleadings” to render prompt decisions
 Allows judges to dismiss cases where there is not enough evidence to justify the time
and expense of trial
- Proponents of SJ urge that pleading stage be more meaningful
 Summary judgement is more drastic than dismissal of a pleading bc raises threat
of denying the right to a jury trial

Can move for summary judgement and attach things from discovery process
- If attach a legal brief explaining arguments and proof (affidavit, interrogatories, and
supplemental material from discovery) 
- File motion for SJ even if don’t think it will be granted
 Strategic: forces party to respond  allows you to get more information
o Expensive, takes time, causes delay
o Plant the seed in court’s head that case is weak
o Partial SJ; court can grant it to part of the case
- No genuine issue of material fact  does the party win as a matter of law?
 7th amendment: Can a reasonable jury find in favor of this party?
o If no reasonable jury could find for the non-moving party  grant SJ to moving
party; movant wins as a matter of law bc no genuine issue of material fact 
Court is taking the case away from the jury
 Problem: gives the judge the discretion to decide what a “reasonable jury”
would say… which is the job of the jury under the 7th amendment
o “as a matter of fact, this party wins as a matter of law” 
transforming a question of fact (for the jury) into a question of law
(answered by the court)…
o Are there enough facts for a side to win?
 If court thinks not enough facts for a reasonable jury to find for non-
moving party moving party wins as a matter of law

Burden of proof: burden of persuading the fact finder (jury or judge) of a material issue

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- If evidence on issue is in equipoise at the end of the case, then party with the burden of
proof on the issue loses
- SJ is an early argument by one party that bc her opponent lacks sufficient evidence on an
essential element she couldn’t prevail at trial
 Movant must establish that no reasonable fact finder (if a trial were to occur) could
rule for her opponent, such that judge would be obliged to enter a judgement in favor
of movant as a matter of law
o In considering the motion for SJ court must consider the burden of proof that will
govern material at trial and all available evidence that has been or might be
uncovered
 Burden of proof on motion thus hinges in part on burden of proof at trial
which may or may not rest with party moving for SJ

Burden of pleading: usually party with this burden has the burden of proving that issue
- Not necessarily the same as burden of proof

Burden of production: the threshold burden of presenting at least some evidence to fulfill the
obligation of getting the issue to the jury or judge so that they can decide if the burden of proof is
satisfied
- If issue is debatable  BOP is met and fact finder can determine whether party with the
BOP should win or lose

Summary Judgement:
1. Showing absence of genuine issue (Adickes): Moving party can meet Burden of
production by Showing the absence of a genuine issue of material fact
a. Affirmative Showing  through affidavits
 Affidavits, depositions, interrogatories, etc…
b. Pointing out (Celotex) Showing by pointing out lack of evidence on point non
moving party has BOP at trial
 Can only do this is the non moving party bears the burden of proof on this
issue at trial
2. Non moving party in response 56(d):
a. Rehabilitate evidence
b. Produce additional evidence
c. Ask for more time in discovery
Takeaway:
 Burden Is still on moving party to show that there is no genuine issue of material fact
 SJ forces parties to collect and review documentary evidence (Everything they have gathered
before trial
i. Not the case previously before these cases
ii. Before trilogy of cases SJ was rarely tried/granted
1. Trilogy: Celotex, Matsushita, & Liberty
iii. SJ has created a lot of cost for parties involved
iv. Some see this as more efficient bc gets rid of complaints before getting to trial

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AA. Trilogy of cases on SJ:
- Adickes requires proof that the other party has not met their burden.
- Celotex only applies if the NON MOVING party bears the burden of proof at trial.
 Viewed in light most favorable to the non moving party will all inferences drawn in
their favor they have not met an element and the moving party may point it out and
explain why.
- Matsushita says that what is considered a reasonable inference is based on the underlying
principal of law at issue.
- Evidence that is not challenged is admitted.

Devices for Terminating Litigation Without Trial [Rules 12(b)(6), 12(c), 56]
Rule 56 Motion for Summary Judgment
1) 55(a) For Claimant
i) a party may move for summary judgment (with or without supporting affidavits) after
either:
(1) 20 days from commencement of the action
(2) or, service of a motion for summary judgment by the adverse party
2) 56(b) For Defendant
i) may move for summary judgment at any time (with or without supporting affidavits)
3) 56(c) Motions and Proceedings
i) A motion for SJ must be served to the adverse party at least 10 days before the
scheduled hearings
ii) The adverse party may serve opposing affidavits at any time before the hearing
iii) Summary Judgment may be based on
(1) Pleadings
(2) Depositions
(3) Interrogatories
(4) Admissions
(5) Affidavits
iv) Summary judgment shall be rendered if, based on the above:
(1) There is no genuine issue of any material fact shown and,
(2) The moving party is entitled to judgment as a matter of law
4) 56(d) Case not Fully Adjudicated on Motion
i) if only part of the case is adjudicated, the court shall determine which facts remain at
issue for trial
ii) the judge shall file an order establishing the adjudicated facts and how they affect the
amount in controversy
5) 56(e) Defending Motion for Summary Judgment
i) Requirements for Affidavits
(1) Must include personal knowledge of acts (admissible under the federal rules of
evidence
(2) Shall show that the affiant is competent to testify
(3) The court may permit the affidavit to be supplemented by depositions,
interrogatories, or other affidavits
ii) Responding to motion for SJ

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 (1) The adverse party must set forth specific facts showing that there is a genuine
issue for trial (cannot rely on pleadings)
(2) If the adverse party cannot show that there is a genuine issue, SJ shall be entered
against her if appropriate (given an opportunity for discovery)
6) 56(f) When affidavits are unavailable
i) if a party opposing a motion for SJ can show in its affidavit that it cannot obtain
affidavits containing facts essential to justify its opposition to SJ, then the court may
(1) refuse the application of SJ
(2) or, order a continuance to permit affidavits to be obtained (or other depositions or
discovery to be had)
(3) or make such order as it deems fit
7) 56(g) Affidavits made in bad faith (to delay the proceedings)
i) a part making an improper affidavit shall pay the other party’s reasonable expenses
(including attorney’s fees) associated with the motion for SJ
(1) the offending party or attorney may be guilt of contempt.
NOTES
Purpose of SJ- to promote judicial economy
(i) Upon such a motion, movant maintains that there is no genuine issue of
material fact and that upon resolution of any disputed questions of law he
is entitled to judgment.
(ii) Affidavits must be on the person knowledge of the affiants, and the
contents of the affidavits must be such as would be admissible in evidence
(iii) If genuine fact dispute is found to exizt motion for summary
judgment must be denied
(iv)may be granted on entire case or part of case
(v) MSJ can only be granted if the judge decides that no reasonable trier of
fact could find for the party’s opponent on the matter. MSJ only used to
determine if there is a GENUINE factual dispute. If there is, MSJ cannot
be granted (even if the judge thinks one of the parties is not being truthful
in its affidavits
(vi)MSJ deals with burden of production. If party with burden of production
at trial cannot present evidence to meet that burden, then MSJ will be
granted. MSJ deals with sufficiency of evidence, not the weight it will be
given by a jury
(vii) If a party presents so much evidence at trial that a reasonable
finder of fact must find for them, then the burden shifts to the other side to
refute the evidence. They must present evidence sufficient to prove their
case for the case to go to trial.
(viii) If a party meets the burden of production but does not shift it, it
means that reasonable juror could find for either party and the case must
go to trial.
Motion for Summary Judgment
 Rule 56 on “summary judgment” provides a means of going behind the pleadings to see
whether there really is a genuine dispute as to any material fact; if there is not, there is no
occasion for a trial, and so the case is ripe for a successful motion for summary judgment

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  May be filed by either P or D in any type of case; motion may be made even before the
pleadings are closed, but ordinarily only until 30 days after the close of all discovery
 Court may grant a summary judgment on the entire case or on only a part of it
 Court may specify that certain facts are not genuinely at dispute, thus narrowing the
issues for trial
 Movant maintains that there is no genuine dispute of material fact and that, upon
resolution of any disputed questions of law, he is entitled to judgment
o Movant must show the absence of factual dispute by citing specifically to the
record for support of the movant’s view of the facts; Rule 56(c)(1) and (e)
o Could show that an opponent who would have the burden of proof on a fact at
trial will be unable to produce admissible evidence to support the fact; would
have to respond w/ sufficient support of the fact or a justification for
postponement
o Ordinarily movant will accompany motion w/ affidavits in support of the
contention that there is no genuine dispute over fact
o Opposing party may file counter-affidavits
 On the motion the court will also consider the pleadings- and normally will consider
depositions, answers to interrogatories, documents, admissions, and similar material on
file, to the extent they represent admissible evidence
 If movant’s affidavits convincingly maintain that there is no genuine issue of fact but the
opponent then contests that point, judge can agree w/ the movant that no genuine dispute
exists as to a particular factual matter ONLY if a reasonable trier of fact could not find
for the opponent on that matter
 If on the motion the judge encounters a genuine factual dispute, he must deny the motion
even though he has strong ground for the belief that one set of affidavits is true and the
other false
 Why we have MSJ:
o Judicial economy-if the case couldn’t survive at trial, it would be more convenient
and economical to find that out now and in advance rather than going through the
whole trial if there is no legitimate dispute of fact and no sufficient evidence to go
to the jury

Adickes v. S.H. Kress & Co.

Rule: In a motion for summary judgment, the moving party has the burden of showing the
absence of a genuine issue as to any material fact.
- The moving party has the initial burden, viewed in a light most favorable to the non moving
party, to show affirmative evidence disproving an element of the other party’s case.
Procedure:
- Count 1: refused service bc white woman in company of African americans is dismissed on
a “directed verdict”
 Directed verdict (OLD): judgement as a matter of law (NEW);
o Once at trial present evidence and if you don’t have enough evidence cannot get
to the jury
- Count 2: conspiracy between Kress and the police department
 Needs to prove there is a conspiracy

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 o When does she need to prove this? At trial… not at SJ
- P: bears the burden of proof on conspiracy at trial, not necessarily at SJ
 No direct evidence of conspiracy  all evidence she has is not admissable in trial
o Has
o Unsworn statement of employee
o Her testimony that no riot in store
 Even if she doesn’t have “direct evidence” the evidence she has raises an inference of
an issue of material fact  no SJ!!!
- D: has a burden of showing there is no issue of material fact and entitled to judgement as a
matter of law  if bear the burden MUST be granted SJ
 Material fact: goes to the legal elements of the claim
 Court says D did not meet his burden of production  cannot be granted SJ
 The affidavits from the police are not sufficient bc they DO NOT DENY their
presence in the store.. they simply deny the presence of a conspiracy
o “no request” “no consultation”
o Does not foreclose the possibility that an agreement could have occurred within
these circumstances  there is still a possibility/inference of a conspiracy which
the jury should be able to decide as the issue of material fact of the conspiracy
Holding: error to grant SJ
- On SJ inferences must be viewed din light most favorable to non-movant party (P)
- D did not meet their burden of production when they failed to negate the possibility of a
conspiracy
 Failed to meet their burden
 P only needs circumstantial evidence bc no direct evidence of conspiracy  police
being IN THE STORE prior to arrest  creates an inference of conspiracy
o This inference MUST go to the jury bc it creates a genuine issue of material fact
o Bc D failed to prove the ABSENCE of a genuine issue of material fact by failing
to negate the inference of conspiracy by failing to show that the officers were
NOT in the store 
Notes:
- On summary judgement, the inferences to be drawn from the underlying facts contained in
the moving party’s materials must be viewed in the light most favorable to the party
opposing the motion
- Burden of production: Moving party (on SJ) has Burden of production to show there is no
issue of material fact and it is entitled to SJ as a matter of law
 Moving party must come forward with evidence to prove there is no genuine issue of
material fact at SJ  Does shift
o Material fact: goes to the legal elements of the claim or defense.
o Genuine dispute: material fact is not agreed on.
 Genuine issue: real dispute as to the legal elements (open question;
debatable)
 Evidence must be viewed in light most favorable to the non-moving party
 If moving party does not meet initial burden of production  end of story
o Do not even get to the non-moving party’s burden of proof

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- Burden of proof: at trial  does not shift; initial burden of production when moving for
summary judgment is the same. If moving party meets burden, it shifts to the non-moving
party who must rebut with affirmative evidence.
 Issues of fact MUST go to the jury.
 The evidence of the non-moving party doesn’t matter until the burden of proof shifts
to them

Celotex Corp. v. Catrett

Rule: A party making a motion for summary judgment does not need to provide affirmative
evidence in the form of affidavits to support its motion.
- rule 56 mandates summary judgment after adequate time for discovery against a party who
fails to show sufficient evidence to establish existence of an essential element of the case.
No requirement to support motion with affidavits. Pleadings and evidence including
depositions and interrogatories show no genuine issue of material fact. Moving party
entitled to judgment as a matter of law. Must review evidence and explain why there is no
issue.
Procedure:
- P: Burden of proof at trial on that issue
 Must show exposure at trial
- D: Burden of production at SJ
 On SJ must show no genuine issue of material fact
o Here D can do so by pointing out that nonmoving party (P) has no evidence to
show exposure bc P has the BOP on that issue at trial
 Can only do this when nonmoving party has the BOP on that issue at trial
- DC: granted SJ to Celotex
- App.Ct: reversed; Celotex did not meet its burden of production in Step 1
Holding:
- Celotex did meet it’s burden in POINTING to the lack of evidence by P and P’s failure
to meet her burden of proof on the issue at trial reverses app ct judgement and
remands
- party opposing the motion bears the burden of responding ONLY AFTER the moving party
has met its burden of coming forward with proof of absence of any genuine issues of
material fact
 Not REQUIRED to come forward with affidavits to show absence of material issue of
fact but MAY do so…
o “if any” and “with or without supporting affidavits”
 D is not required to show that there is no genuine issue of material fact through
affidavits
 Another way to show is to point out P does not have sufficient evidence to meet her
burden of proof on the issue at trial
o This applies ONLY when P has the Bop on that issue at trial
o “where the non-moving party will bear the burden of proof at trial on a
dispositive issue a SJ motion may be properly made in reliance solely on
“pleadings, depositions, answers to interrogatories, and admissions on file.” Such
a motion, whether or not accompanied, by affidavits will be made and supported
as provided in this rule”

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 o Burden on the moving party may be discharged by “showing” that there is an
absence of evidence to support the non-moving party’s case
Concurrence: Whites concurrence  part of the rule
- MUST take the court through the filings and point exactly where in the filings there is an
absence of proof
- To “point out” the lack of evidence must take the court through and show the holes in the
other party’s case to meet their burden
DISSENT: should depend on who has the burden of persuasion at trial. Must support with
evidence. If they don’t have the burden they must show evidence or simply point out the other
side does not have evidence. May not ignore evidence that shows an issue. DISSENT IS
FOLLOWED IN SUBSEQUENT
- Counter to DISSENT: state court should be allowed to consider inadmissible evidence for
support.
 Jury should be able to hear evidence from testimony and decide who is believable and
who isn’t.
Notes:
- Initially lower hurdles to get cases to court
- In 80’s bump up the standards for both pleadings and SJ
 At pleading stage  heightened with Twombly/Iqbal
o More than possibility  must have “plausibility”
 At SJ stage  Celotex
o Can make a “showing”
 Affirmative Showing  through affidavits Adickes
o But in Celotex, point out that language says “affidavits, IF ANY,…”
textual evidence that affidavits are optional and not REQUIRED…
 Pointing out  Showing by pointing out lack of evidence on point non
moving party has BOP at trial Celotex
B. Evidence:
Material Admissible
Hoff Letter Yes  no objection
Celotex Purchase orders Yes  int. answer
Celotex interrogatory answers Yes
Catretti’s deposition No
Letter from insurance company No
Mrs. Catretti’s interrogatory answers Yes

- Combination of evidence demonstrates that there is a genuine issue of material fact

Catrett v. Johns-Manville Sales Corp.

Rule: A showing in opposition to a motion for summary judgment is sufficient to avoid
summary judgment if it would be adequate to carry the non-movant’s burden of proof at trial.
Holding: A showing in opposition to a motion for summary judgment is sufficient to avoid SJ if
it would be adequate to carry the non-movant’s burden of proof at trial.
- Pursuant to Rule 56, in passing a SJ motion, the court may take into account any material that
would be admissible at trial, including depositions, documents, electronically stored

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 information, affidavits or declarations, stipulations, admissions, interrogatory answers, or
other materials.
- In this case, P submitted enough evidence to avoid SJ.
 She submitted a letter from an executive, Mr. Hoff, showing Mr. Catrett worked for
the company for one year; that he worked with the product Firebar, which contained
asbestos; and that Celotex owned Firebar.
- Even if the letter was not admissible at trial, testimony from Mr. Hoss, who was listed as one
of P’s witnesses, would be admissible. This evidence is enough for P to avoid SJ, and
therefore the judgment is reversed and remanded.
Dissent (Bork, J.)
- P has not made an adequate showing of causation here.
 There is no evidence on the record that any person has personal knowledge regarding
Mr. Catrett’s exposure to asbestos.
- Merely setting forth potential witnesses does not make an adequate showing of facts.
- The court’s holding creates a vague and uncertain SJ standard, & proposes that judges should
consider inadmissible evidence when ruling on SJ motions.

C. The burden of Production for SJ

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 The Burden of Production for Summary Judgment

- Movingparty always has theultimateburden of persuasion on motion.

(Step 1) Movant’s initial Burden (Step 2) Non-Movant’s Burden of

of Production. Production.
To shift theburden, movant In response, thenon-movant must
must … …

If moving The movant must produce The nonmoving party must come
party has evidence demonstrating that there back, produce evidence showing
burden of is no genuineissueas to any that there is a genuine issue of
proof at trial material fact (any reasonable jury material fact (a reasonable jury
would have to find for me.) could find for me).
- supported with credible Could do a few things here (n.3):
evidence, · Direct court to new
- Rule 56(c) materials evidenceor evidence
ignored by the movant
· Rehabilitateevidence
attacked by the movant or
attack evidencerelied on
by the movant
· Request time for additional
discovery (56(f) now(d)).

If thenon- Adickes Route: The movant

moving produces affirmative evidence Same as above
party has negating a claim or defense of the
theburden non-movant
of proof at
trial Celotex Route: The movant
“point outs” that the non-
movant’s evidence is lacking on
an issueon which thenon-
movant has theburden of proof
at trial
- But a conclusory assertion
probably not enough,
- Must affirmatively show
absence of evidence in the
record.
(both are saying: no reasonable
jury could find for thenon-
movant)

Matsushita v. Zenith
Rule: Where a moving party meets its burden under 56 must do more than show doubt of the
claim. If it makes no sense must be more persuasive than otherwise necessary. When looking at
inferences, must decide if they are reasonable based on the substantive law in the case.
- all inferences in favor of non-moving party BUT not entitled to impermissible
(“unreasonable”) inferences informed by substantive law which is in turn informed by
economic theory”
Procedure:
- P: supposed conspiracies are circumstantial evidence of a horizontal conspiracy to engage in
predatory pricing
 Conspiracy to monopolize the american mkt by means of pricing below the market
level

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- D illegally conspired to drive American firms from the CEP market (CEP: consumer
electronic products):
 Scheme to raise fix and maintain artificially high prices for tv receivers sold by D in
Japan and then same time fix and maintain low prices for tv receivers exported to and
sold in US
 Low prices were at levels that produced substantial losses for D
 Allegedly conspiracy began around 1953 and in full operation by late 60s
 Scheme violated §§1&2 of the Sherman Act, § of Robinson-Patman Act, and § 73
of Wilson Tariff Act and the Antidumping Act of 1916
- DC: granted SJ for D
- Ct App: Reversed; fact finder could reasonably find a conspiracy to depress prices in
American market to drive out American competitors  conspiracy was funded by excess
profits obtained in Japanese markets
 Did not consider whether it was plausible that D’s price cutting behavior was
independent and not conspiratorial, instead considers factors below to show the
plausibility of a conspiracy
Evidence of Conspiracy:
- Japanese mkt characterized by oligopolistic behavior
 small # producers meeting regularly and exchanging info on price and other matters
 created opp to raise both prices and profits in Japan
o American firms couldn’t attack bc Japanese gov imposed significant barriers to
entry
- D had relatively higher fixed costs than American counterparts
o Needed to operate near full capacity to make a profit
- D plant capacity exceeded the needs of Jap mkt
- D fixed minimum prices for CEPs exported to American mkt in cooperation with MITI
o Refer to these prices as “Check prices” & their agreements as “check price
agreements”
- D agreed to distribute products in US under 5 company rule
o Each producer only allowed to sell to 5 American distributors
- D undercut their own check prices by a variety of rebate schemes
o Then sought to conceal these schemes from US customs and MITI to avoid
customs regulations and action under antidumping laws and cover up their
violations of the check price agreements
- Items 1-5 make item 6 look like a conspiracy
o But the irrationality of 6 eliminates the …
o Expert reports create a genuine issue of material fact… ?
- D: alleged conspiracy is economically irrational and practically infeasible
 No motive to engage in alleged conspiracy of predatory pricing  strong motive
NOT to conspire
Issue:
- What standard must the district courts apply in deciding whether to grant SJ in an anti-trust
conspiracy case?
- Did P adduce sufficient evidence in support of their theory to survive SJ?
- Does the non-moving party have enough evidence to survive motion for SJ?

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  Must have evidence to show conspiracy in order to survive
Holding & Reasoning: Court of appeals judgment is reversed
- D has no rational economic motive
 “if the factual context renders claim IMPLAUSIBLE—claim is one that simply makes no
economic sense”  P must come forward with more persuasive evidence to support their
claim than otherwise necessary (p. 714)
o Not economically rational bc INCREDIBLE losses before they see profits  v
speculative theory of conspiracy
o Would have to maintain the monopoly long enough to regain all lost profits
o Not only difficult as a single firm but even more difficult with a group of
firms
o Also, once they have established the monopoly and ousted the American
firms, more firms will try to enter the market so difficult to maintain
 Anti-trust law limits the range of permissible inferences from ambiguous evidence in a §1
case
 All inferences in favor of non-moving party BUT not entitled to impermissible
inferences
o How do we tell if inference is permissible? Must be INFORMED BY
SUBSTANTIVE LAW (of anti-trust) Informing the substantive law is
economic theory
- Conduct is consistent with other equally plausible explanations
 Does not give rise to an inference of conspiracy
- Price cutting is a favorable activity and don’t want to chill that
 Unless we find evidence of a conspiracy, not going to punish bc don’t want to chill
the price cutting activity…
DISSENT: court makes assumptions that invade the jury.
- Majority is making a major assumption about profit maximization vs. growth which is not
fit for judicial decision making at the SJ phase  this question is meant to be FOR THE
JURY
 Very existence of the report creates a genuine issue of material fact
- Japanese company is focusing on a long term strategy that is all about investment
 Focusing on growth and not revenue and profits…
 Investment in Japanese will grow bc of the growth and expansion in the market
growth
Notes:
- There was a conspiracy to raise prices in japan that creates an oligopoly in Japan
 BUT, US law did not reach into Japan and regulate the Japanese market
 Unless there is some substantial effect on American market, American anti trust
laws cannot protect Japanese consumers…
- Why can’ t US firms compete in Japan?
 High tariffs  a high barrier of entry to American companies
- Japanese manufacturers cooperate with MITI  Create a price FLOOR
 Court: cannot be a conspiracy bc better for the american firms (Still a conspiracy to
fix prices BUT bc the results artificially elevate prices and is good for American firms
 no injury to American firms for which they could then recover… )

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 o Conspiracy in Japan does harm Japanese consumers but American law does not
protect them
o Conspiracy in American market helps American firms and so since they cannot
show injury  no damages for which they can recover
To survive D’s motion for SJ
- P Must establish there is a genuine issue of material fact as to whether D entered into an
illegal conspiracy that caused P to suffer a cognizable injury
1. Must show an injury to them resulting from the illegal conduct
2. Issue of fact must be genuine

- Burden of proof: The party having the affirmative of the issue to whose case the fact in
question is essential with peculiar means of knowing the fact and with the burden of
pleading usually also have the burden of proof.
 At close of the plaintiff’s case, if there is insufficient evidence of an essential element
of a prima facie case or has not met burden of production the defendant can move for
a directed verdict. If denied, after the defendant’s case the plaintiff can do the same if
they do not rebut the plaintiff’s case. After all is said and done, both may move and
again after the jury returns.
- Genuine issue of material fact
 Judgement as a matter of law  retain all reasonable inferences in favor of
nonmoving party BUT not unreasonable inferences
o Reasonableness is determined by the underlying substantive law
o In Matsushita underlying substantive law = anti trust law
 This substantive law, anti trust, is then determined by economic theory

Trilogy of cases on SJ:

- Adickes requires proof that the other party has not met their burden.
- Celotex only applies if the NON MOVING party bears the burden of proof at trial.
 Viewed in light most favorable to the non moving party will all inferences drawn in
their favor they have not met an element and the moving party may point it out and
explain why.
- Matsushita says that what is considered a reasonable inference is based on the underlying
principal of law at issue.
- Evidence that is not challenged is admitted.

Anderson v. Liberty
Rule: Where it is possible that a reasonable jury could find in their favor must show a scintilla of
evidence. Increases burden on plaintiff if there is a heightened burden at trial.
- Same standard for summary judgment that there would be at trial for evidence of genuine
issue. Burden of proof at trial applies to summary judgment.
 In ruling on SJ court must take the evidence on Standard it would take in the ordinary
trial court proceeding
- SJ standard similar to the DV standard
 Inquiry is the same under both: whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one sided that one
party must prevail as a matter of law

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 o Whether it requires submission to the jury must be guided by the substantive
evidentiary standards that apply to the case
o SJ: made before trial and decided on documentary evidence
o DV: made at trial and decided on the evidence admitted at trial
 Dissent: this would encourage trying case on the merits which is not what SJ
envisioned
o All SJ wants is a genuine issue of matieral fact and applying this standard instead
asks for us to bring forth the entire case
- DISSENT: judges should not be allowed to weigh evidence and burden of proof should be
measured by the jury. Makes it into a paper trial.
Notes:
- Underlying substantive law says public figure (P) needs to show actual malice (D published
statement with either knowledge it was false OR reckless disregard for the truth) AND must
show this by clear and convincing evidence
- P is a Lobbying group suing the investigator magazine and the publisher (Anderson) for
depicting them as Neo-Nazi
- LEGAL INCOHERENCE between SC of states…
- In granting SJ who is not playing a role?
 The jury taking away the role of jury to determine whether the heightened standard
of proof is met  unconstitutional bc violation of the 7th amendment which requires
the right to a jury trial
 Dissent: P only needs to meet every substantive element of the case to make a prima
facie case
o Majority response: if not going to win at trial might as well get rid of claim now
before wasting time and $$ to get the case to trial
 If P cant show actual malice under the clear and convincing standard
 get rid of the case now under SJ
- Question post Anderson is: is it TOO EASY to grant SJ now?
 Post Anderson 83% SJ motions are granted…
- 56(F)  56(D)
 D may make such order as is just  court may order more evidence under this rule
 For our purposes  law has not changed and is the same in 56(F) and in 56(D)
o DE
 D has moved to E (court can grant relief)
o CA
 Standard for SJ: used to be in 56(c) now is in 56(A)  no genuine issue of
material fact  judgement as a matter of law
- Some circuits allow appeals of SJ after trial
 BUT, if so only allow appeals for Questions of law

p. 745 SJ practice problems

a. yes only if she has circumstantial evidence that could create a genuine issue of material fact as
to the intent form which a reasonable jury could then find that there was intent

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- bc intent is a mental element, the P should be able to prove this element through the use of
circumstantial evidence and if it raises an inference of intent then it should survive SJ bc it
creates a genuine issue of material fact as to the issue which is to be decided by the jury 
- credibility is a question of fact to be determined by the jury
- he said she said who do I believe  fact issue for the jury
b. yes it should be granted
- there is circumstantial evidence as well as direct evidence as to the absence of a genuine issue
of material fact which would show that there is a missing element in her claim since it is likely
that the causation element of the negligence claim will not be satisfied given the evidence
- pointing to the lack of evidence, on an issue P has to prove at trial, to show that
evidence is insufficient to satisfy the required elements of the claim
- court not taking into consideration allegations in a complaint
c. neither should be granted as there is still a genuine issue of material fact as to which cab
company it could have been and a reasonable jury could find for either party  sj is not valid
- whether 90% probability automatically presumes a pre-ponderance of the
evidence?
- 90% probability DOES NOT constitute a preponderance of the evidence
d. the depositions present the absence of a genuine issue of material fact
- if the 3 people to whom he supposedly “Defamed” P are denying the occurrence, then D has
satisfied his burden of production in pointing to P’s lack of evidence and the failure to satisfy all
elements of her claim  SJ should be properly granted

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 VIII. Right to A Jury Trial
7th amendment: guarantees a jury trial for civil cases in the federal courts.
- Does not apply to state courts (only applies to civil cases in fed cou
 If want right to jury trial  file in federal court bc guaranteed
- Jury is preserved at CL

Why favoring no jury trial?

- Inefficient
 Judge trial is more efficient than jury trial which takes up lots of time and resources
- Not as “smart” in handling “Complex” issues

Distinction between jury in civil vs. criminal proceedings:

- Criminal trials involve community judgment and to an extent morality  jury is more
appropriate
- Because criminal cases take away the freedoms of liberty, etc…  jury is more appropriate
 Not the case in civil…
- Criminal trials are against the state/prosecution
- Complexity in the criminal trials

Test: whether claim being asserted is one that was tried on the law, versus equity, side of the
English courts of law
- Difficulty in applying the test? Lots of claims today that did not exist in the English courts
- Instead, courts generally focus on the remedy sought (legal or equitable remedy?)

Law vs equity
- “all suits in which legal rights were to be ascertained and determined…”
 Law  jury trial
- “embrace all suits which are not of equity and admiralty jurisdiction”
 Equity  no jury trial (equitable chancellor)

Curtis v. Loether
Rule: The Seventh Amendment entitles either party to demand a jury trial in an action for
damages under Title VIII of the Civil Rights Act of 1968.
Facts &Procedure:
- Julia Curtis (P), an African American woman, brought suit against the Loethers (D),
alleging that they had refused to rent her an apartment because of her race in violation of §
812 of Title VIII of the Civil Rights Act of 1968.
- P: filed suit against D alleging they refused to rent her an apartment on the bases of her race
and thus in violation In addition to requesting damages, P filed for a preliminary injunction
to prevent D from renting the apartment pending disposition of the trial
 the court granted the motion.
o When Curtis found housing five months later, she allowed the court to release the
injunction.
- D: in answer, demanded a jury trial,

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  the court denied that demand jury trials were neither authorized by Title VIII nor
required under the Seventh Amendment.
- Court: D had violated Title VIII and awarded Curtis $250 in punitive damages, but no actual
damages or attorney’s fees.
- Ct APP: reversed on the jury-trial issue
 United States Supreme Court granted certiorari.
Issue:
- Does the Seventh Amendment entitle either party to demand a jury trial in an action for
damages under Title VIII of the Civil Rights Act of 1968?
Holding & Reasoning: The Seventh Amendment entitles either party to demand a jury trial in
an action for damages under Title VIII.
- "[i]n suits at common law, where the value in controversy shall exceed $20, the right of trial
by jury shall be preserved. . . ."
- Previous Supreme Court precedent has established that the Seventh Amendment is
applicable to causes of action based in statutes, if the statute creates legal rights and
remedies that are enforceable in the courts.
 That is the case here.
- Section 812 of Title VIII provides the statutory framework to enforce legal rights and to
bring a damages action, and therefore the Seventh Amendment applies, giving the parties
the right to demand a jury trial.
 Although a jury trial in a civil-rights case has several dangers, including the
possibility of the jury’s racial prejudice or the fact that a jury trial may slow the
disposition of the case, there are procedural rules already in place with which the
court may properly deal with these issues. The appellate court's decision is affirmed.
Notes:
- Congressional indicia of whether requiring a jury trial  Silence
- Court: “7th amendment applies to actions enforcing statutory rights and requires a jury trial
upon demand if statute creates legal rights and remedies, enforceable in an action for
damages in ordinary court of law”
- Statutory rights  legal rights
- But not all statutory rights are legal rights…
o Not applicable to bankruptcy and administrative proceedings
 Why? bc these are equitable rights, not legal rights/remedies
o Distinguish between administrative and equitable remedies
 Administrative proceedings  not entitled as of right to jury trial
 Bankruptcy  not entitled as of right to jury trial
o “bankruptcy court traditionally viewed as a court of equity”

A. Test for Jury Trial:

1. Historical analogy
- At English CL was this a legal or equitable issue?
2. Type of remedy
i) Legal  jury
 Legal remedy: any type of remedy that takes form of “money damages”
(compensatory damages)
o Legal injuries against property

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 o Money as an award of damages
ii) Equitable  no jury
 Equitable remedy: a court order forcing someone to to or not do something
o Equitable injuries are against the person
o “return to the status quo ante”
- Punitive damages look like a legal remedy  this is what entitles them to a jury trial…
o Without punitive damages, probably would have held that no jury trial bc the
damages sought were lost wages and health benefits which sound more in equitable
remedy…
 If win at law  get your property (money in damages)
 Legal remedies : compensatory/punitive damages
o If Win at equity  other party gets punished and forced to do something
 Less harsh system
 Equitable remedies: Injunctions, specific performance, restitution,
remedies for fiduciary misconduct, & mortgages

Beacon Theatres v. Westover:

- Fox: files complaint for declaratory relief
 Asking for declaration the clearance did not violate antitrust laws and injunction
preventing Beacon from suing Fox (preventing him from bringing any antitrust claim)
 equitable remedy
o Beacon threatening them with antitrust suit which will interfere with their
business bc going to cast out the first run movie right
- Beacon: filed a counterclaim: seeks treble damages alleging anti-trust under Sherman Act
 Had to file this now  Compulsory counterclaim
o Rule 13 Compulsory counterclaim:
 In response to 1st claim against you must raise your counter claim if
based on same set of fact
 Beacon wants this to get to the jury `
o Beacon, through writ of mandamus, appeals denial of jury trial by
district court through a writ of mandamus  asking court to command
district court to give a jury trial
App Ct: Affirms district court
 Reading complaint as a whole  primarily for equitable relief  no right to jury
trial
o If it were just motion for injunction  equitable
o If it were just antitrust claim seeking damages  jury trial
 Anti-trust are generally for treble damages or punitive damages  legal
damages  jury trial
- Rule 42: guarantees jury trial; Order not directly appealable
 THIS Case gets to SCOTUS through a writ to mandamus
o Writ to mandamus: extraordinary writ asks higher court to mandate that the
lower court do something (forcing ct to do something)
 Only applies if a constitutional right is at issue

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  Beacon, through writ of mandamus, asking court to command
district court to give a jury trial
- Fox is trying to show that they are in exception to the DJA bc allowing Beacon a jury trial
would cause Fox irreparable harm & inadequacy of remedy
 Declaratory Judgment Act  preserves the right to a jury trial for the moving party
o EXCEPT if granting the jury trial would cause the non-moving party
 Irreparable harm
AND
 Inadequacy of remedy
- Takeaway: When you have both legal and equitable claims brought in the same action,
the court must grant the jury trial first

BB. Guiding Jury Deliberations: Instructions and the Form of the Verdict

Patent suits: Generally guaranteed jury trial

- Art.1 § 8: empowers congress to grant exclusive rights to protect work of writers, scientists,
etc… for certain amount of time
 What is fair is generally Q for community judgment  Jury trial

Motion for Judgement as a MOL timeline:

- BEFORE goes to the jury
 MOTION FOR Judgment as a MOL
o Close of other sides evidence
Or
o Close of all evidence
Or both
o Only need to make one of these motions to make a renewed motion as a MOL
after goes to jury
- AFTER it goes to the jury
 Renewed motion for judgment as a MOL

Markman v. Westview
RULE: The court, because of its training in complex issues and knowledge of written
documents, is more competent to correctly, fairly, and uniformly make decisions relating to the
interpretation of a term of art.
Ct: no genuine issue of material fact  renewed judgement as a matter of law (JNOV)
Issue:
- Whether the interpretation of a patent claim (portion defining scope of the patentee’s rights)
is a MOL reserved entirely for the court
OR
- Subject to 7th amendment guarantee that a jury trial will determine the meaning of any
disputed term of art about which expert testimony is offered
- Who should be construing and defining the term “ inventory“; judge or jury?
Holding:
- Interpretation of “inventory” is an issue for the judge, not the jury  affirmed Ct App

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CC. Functional considerations:
- Uniformity  certainty
 Protects the patentees (inventors) bc encourages science and useful art
 Would strengthen the US patent system  foster tech growth and industrial
innovation
o One of the reasons congress created the federal circuit
 Created it as an exclusive appellate court for patent cases
- Expert training in exegesis
 Judges have trained ability to evaluate the testimony in relation to the overall
structure of the patents  judges better suited than juries to find the acquired
meaning of patent terms
o Patent construction is a special occupation  judge more likely to give a
proper interpretation than a jury (more likely to be right in doing so)
 Construction of written instruments is one of the things judges often do
and are likely to do better than jurors who have no training
Notes:
- Bringing in Experts at law  argument against allowing an expert at law: Judge should be
at discretion as the “Expert at law”

DD. Should there be a complexity exception to jury trials?

Policies for/against Jury Trials:
- Democratic function of juries
- Constitutional stature of jury trials as a right
 SJ
 Right to jury trial in law v. equity distinction
- Fear of jury nullification of the law
 Jury deciding how it wants case to come out regardless of the law
o Passion and bias overcoming the law
- Efficiency
 Jury as wildly inefficient compared to judge trial

Jury instructions reviewed under a de novo standard

- Why? because they are questions of law (pure law issues)
 Always (almost always) irreversible error

EE.3 types of Jury Verdicts:

1. General verdict: is D liable or not liable (how much $?)
2. Special verdict [Rule 49(A)]: series of questions where jury is asked to apply the law to the
fact
a. D Can ask for special verdict when they ask for a jury trial  if ask for it generally get it
3. General Verdict w/ interrogatories [Rule 49(b)]: is D liable? Why? (answering list of
interrogatories/questions)
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 a. Sub-Rules:
i. When general verdict and specific answers are consistent  court may enter
judgment
ii. When specific answers are consistent with each other but inconsistent with
general verdict  court can:
1. Enter judgment on specific answers,
2. Direct jury to continue deliberating, OR
3. Order a new trial
iii. If specific answers inconsistent with each other and general verdict  court
cannot enter a judgment
But:
a. Can direct jury to further consider its answers or the verdict,
or
b. Order a new trial
Defendants generally want special verdict OR general verdict with interrogatories
- Bc Each answer to a question is an opportunity for the jury to mess up
 Good for D bc if they mess up can get new trial or a judgment as MOL
o Ex: Gallick interrogatories

Gallick v. Baltimore & Ohio R.R. Co. (insect bite case)

Rule: The court must attempt to reconcile the jury’s findings before it may disregard the jury’s
special verdict and remand the case for a new trial.
Procedure:
- Special verdict: entered judgement awarding damages to P
- Ct App: reversed
- Ohio SC: refused further review  app ct is final judgment
- SCOTUS grants certiori
Holding: Decision below is erroneous  must be reversed
- #20: Bite was foreseeable even if the injury and consequences not foreseeable
- #22: Even if there is no reason to foresee the consequences of the bite, the bite itself was
foreseeable
 “egg shell skule rule”: to be liable for consequential damages he need not foresee the
particular consequences of his negligent acts  whatever damages flow from the tort
committed are recoverable
- The court must try to make a fair reading of the verdict, and if there is a logical way to read
the verdict as being consistent with itself, the court must attempt to do so.
 Here, the record indicates that there was enough evidence for the jury to find that B &
O was negligent, and simply misapplied the term “reasonably foreseeable” to mean
that Gallick’s severe injury would be foreseeable. The most sensible way to interpret
the jury’s findings is to hold that the jury believed that B & O was negligent in
forcing Gallick to work at a dangerous site, so the holding below is reversed
Dissent:
- Jury’s finding that the jury was not reasonably foreseeable is inconsistent with their finding
of negligence
 Jurys answers to #20 was “irreconcilably inconsistent with its finding of negligence”
A new trial should have been ordered

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- Court is entering the role of the jury by resolving the conflicting answers to #20&22 to find
that they are not inconsistent

Notes:
Jury can decide the case on more than 1 theory
- Theory A: valid
Or
- Theory B: invalid
 If goes on appeal and app ct can’t tell which theory they picked, court can reverse
- Jerome Frank: Jury can screw the law, the facts, or the app of law to the facts

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 IX. Trial & Motions
Judgement by law:
1. Summary Judgment (SJ): granted before trial
2. Judgment as a Matter of Law: at the close of non-movants case OR at close of evidence
a. Must make this motion at trial in order to renew it in the future under JNOV
b. Also known as “directed verdict” (old term)
3. Renewed Judgement as a Matter of Law: after the jury has rendered a verdict
c. If this gets reversed on appeal, court reinstates the jury verdict

Order and Method of Proof [Rule 50(a)]

- The law largely confides the conduct of a trial to the trial judge’s discretion, rather than
governing it by specific Rules
Burden of Proof
 P will lose if the jury is not persuaded of the truth of the allegations of the complaint that
D has denied in the answer
 D’s affirmative defenses will fail if the jury is not persuaded of their proof; burden of
persuasion is that they must convince the trier of fact at trial of their factual assertions
 P has initial burden of production, obliged to bring forward evidence in support of the
disputed issues in his case or suffer defeat; have to produce enough evidence that a
reasonable finder of fact would find for them
 Court doesn’t entirely leave it up to the jury-judge tries to formulate guidelines for the
jury
o Must be a preponderance of evidence in favor of the party having the burden of
persuasion before they are entitled to a verdict
o Must show that the existence of a fact is more likely than not
 Should find against the party w/ the burden of proof unless they are
persuaded that what the party claims is more true than not true
 Substantive policy issues may influence the burden of proof
Opening Statements
 P’s attorney customarily makes an opening statement in which he tells the jury what the
issues in the action are and what he proposes to prove
 Purpose is to explain the case so that jury will be better able to follow testimony
 D’s attorney usually follows w/ an opening statement but D’s attorney can sometimes
choose to postpone this until the beginning of D’s case
 Not evidence themselves, they are previews of the evidence
 Studies say many jurors make up their minds about a case based on the opening
statements and will stick to that judgment throughout the rest of the case
Plaintiff’s Case
 P’s first witness is called to the stand, sworn in, and questioned first by P’s attorney and
then cross-examined by D’s attorney; does this until they are satisfied
 After this w/ all P’s witnesses, P’s attorney rests his case
Motion at the close of Plaintiff’s case
 When P rests, he may have failed to present any evidence on it an issue upon which he
has the burden of production, or his evidence may be insufficient that it could not
persuade any reasonable trier of fact

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  In this situation D may move for judgment as a matter of law pursuant to Rule 50(a)-
motion for a directed verdict
 If judge grants motion, the judge will withdraw the case from the jury and judgment
entered for D
Rule 50(a) Judgment as a Matter of Law
(1) In general. If a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the part on that issue, the court may:
(A) Resolve the issue against the party; and
(B) Grant a motion for judgment as a matter of law against the party on a claim or
defense that, under the controlling law, can be maintained or defeated only with a
favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time before the
case is submitted to the jury. The motion must specify the judgment sought and the law
and facts that entitle the movant to the judgment.
 D does not risk all by making motion, if judge doesn’t grant it D may proceed w/ his case
Defendant’s Case
 D could rest w/o providing evidence after P rests (would do so where D has little
evidence to offer or a lot of confidence, or maybe where D’s only evidence would entail
great expense or risk backfiring)
 Ordinarily, D will present evidence
 Again, same procedure with testimony and then D’s attorney will rest
Motion at the Close of Defendant’s Case
 When D rests, P may move for judgment as a matter of law under Rule 50(a), w/o
waiving his right to put in rebuttal evidence if the judge does not grant the motion
Rebuttal and Rejoinder
 After D rests and if motion is denied, P can offer rebuttal evidence
o Can go beyond evidence designed to meet an affirmative defense
o Mere reiteration of P’s own evidence for the purpose of giving it added emphasis
so as to overcome the effect of contradictory testimony is improper rebuttal
o Also improper to reserve for rebuttal material that was properly a part of the case
in chief
 However, judge has discretion here and can allow testimony in rebuttal
that P inadvertently omitted earlier
o Examinations of rebuttal witnesses is the same as before
o P rests
 D can move for judgment as a matter of law, if doesn’t get it, can present evidence in
rejoinder and same principles apply
 Does this until both parties finally rest

Burden of Production is allotted b/w the parties in roughly the same way that the rules of
pleading assign the burden of allegation. The party who suffers the burden of non-persuasion on
an issue is said to bear the burden of proof. The determine who has the burden of proof, consider:
 Party to whose case the fact is essential
 Party who has the peculiar means of knowing facts

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  Party who has the burden of pleading fact
 What is good/fair policy

Burden of persuasion is assigned to the party who must convince the factfinder of the accuracy
of its assertions (thus the burden of persuasion for the original claim is on the P; for affirmative
defenses or counterclaims, is on the D)
 The party who has risk of non-persuasion on the issue will lose if factfinder is in doubt
about a factual issue
 In most civil cases, the burden of persuasion is determined using a preponderance of the
evidence test (find that the fact exists more likely than not). (In criminal trial, burden of
persuasion is beyond a reasonable doubt).
 In fraud cases, a higher standard of persuasion is required-clear and convincing evidence
test
 Sometimes the burden of proof will shift to the D. In Summers v. Tice (p.1307), the
court shifted the burden of proof to the D’s b/c it did not want to leave the P w/o a
remedy. In this case, 2 hunters shot into forest and hit P. One of the D’s caused P’s
injury, but P couldn’t prove which one. Since both were negligent, the court shifted the
burden of proof to the D’s (to show which one didn’t cause the P’s injuries). M says the
danger of such burden shifting is that an innocent party will be punished-strict liability
for negligence eon the party not at fault.
 Jury should decide against the party w/ burden of proof unless it is persuaded that it is
more likely than not true

Motions at the Close of All the Evidence

-When all the evidence is in, either party may move for judgment as a matter of law (Rule 50(a));
motion must state specific grounds; the granting of this motion results in the withdrawal of the
case from the jury
-Standard for granting judgment as a matter of law is the same as that for MSJ (if no reasonable
juror could find for nonmovant, then motion should be granted)
-What evidence should the judge consider in determining whether to grant the motion?
 “Favorable evidence only” test- court only considers the evidence favorable to opponent
of motion to determine whether to grant the motion (completely ignoring any unfavorable
evidence)
 “All evidence” test- Court should consider all evidence, favorable and unfavorable, to
determine whether to grant the motion. If judge, looking at all the evidence would feel
compelled to set aside a verdict for the opponent, judge should grant the motion
 “Qualified favorable evidence” test- Court looks at all but the incredible evidence
favorable to the nonmovant and the unimpeached, uncontradicted evidence favorable to
the movant
 FEDERAL COURTS USE QUALIFIED FAVORABLE EVIDENCE TEST

Submission to Jury and Return of Verdict

-If a motion for judgment as a matter of law at the close of all the evidence is not made, or is
made but not granted, the disputed issues of fact will be submitted to the jury for decision in the
form of a verdict
Closing Arguments and Jury Instructions

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  Counsel for the P and D will make closing arguments to the jury that the proof is with
their respective side.
 Then, the judge will instruct, or charge, the jury as to the law
o Judge will customarily state the issues that are in dispute and the contentions of
the parties w/ respect to them; state who has the burden of persuasion on which
issues and what degree of persuasion the jury must reach before it decides that a
party has successfully carried the burden; to analyze or summarize the evidence;
and can give his views on facts but tells jury that they are not binding
o Rule 51(a) gives the parties the right to file written requests for specific
instructions
Verdict
- Judge determines what kind of verdict will be given to the jury.
- Rule 49 Special Verdict; General Verdict and Questions
 General Verdict: Judge instructs the jury on the law and the jury applies the law to the
facts
 Special Verdict: Jury makes specific findings of fact and judge applies the law to the
facts. Gives the court more control over the jury and the jury doesn’t have to apply the
law. It may also improve the efficiency and reliability of the judicial process. However,
since it does weaken the power of the jury, it may indicate a mistrust of the jury. Jury
nullification may be a good thing if the jury believes the law is too harsh, but if not given
that opportunity to apply it and show it, will never really know.
o Downsides: takes away power from the jury, another means to weaken
constitutional power of juries, and to give judges more power to decide cases
according to their own judgment. Purpose of jury is to temper strict rules of law
so that they can do justice in a particular case.

Motions After Verdict

- Judgment is normally entered in accordance w/ the verdict
- Party against whom the judgment went still has two motions available to him that may change
the result
Renewed motion for judgment as a matter of law
 Rule 50(b) permits a party, whose motion for judgment as a matter of law under Rule
50(a) has been denied or not granted, to move to have the verdict and any judgment
entered on the verdict set aside and to have judgment entered in his favor despite the
adverse verdict
 Motion for notwithstanding the verdict=judgment n.o.v.
 Verdict-loser must file it not later than the 28th day after entry of judgment on the verdict
Motion for a new trial
 Motion for a new trial under Rule 59(a)(1)
o Party may not file later than 28th day after entry of judgment on the verdict
o Asks that the verdict and any judgment entered on the verdict be set aside and that
the case be retried
o Grounds for this:
 Verdict is “against the weight of the evidence”

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  Judge, looking at all the evidence, is clearly convinced that the jury
grossly misjudged the credibility of the testimony or misconceived
where the weight of the evidence lay
 Misbehavior by a participant of the jury; clear that jury has failed to
follow instructions
 Judge thinks he himself committed error in instructing the jury or ruling
on the admissibility of evidence
 Newly discovered evidence is brought in
Submission to Jury and Return of Verdict
a) Rule 49 Special Verdicts and Interrogatories
i) Rule 49(a) Special Verdicts
(1) Speical Verdicts- the court may require a jury to return only a special verdict
(a) The special verdict must be in the form of a special written finding upon each
issue of fact
(b) The court may submit to the jury
(i) Written questions susceptible of absolute or other brief answers
(ii) Or, written forms of the several special findings which could properly be
made from the evidence or pleadings
(iii) Or, other methods of submitting issues (as it deems appropriate)
(c) The court shall give the jury instructions as necessary to faciliate a jury
decision
(d) If the court omits any issue of fact for the jury to decide, the parties must
demand submission before the jury retires
(e) Those issues omitted may be decided by the court
ii) Rule 49(b) General Verdict Accompanie by Answer to interrogatories
(1) The court may submit forms for a general verdict accompanied by written
interrogatories on issues of fact necessary to decide a general verdict
(2) The court shall give appropriate instructions to help jurors make their decision
(3) When the general verdict and written answers are harmonious appropriate
judgment shall be made
(4) Inconsistencies
(a) When answers are consistent with each other, yet 1 or more answers is
inconsistent with the general verdict the judge may
(i) Affirm jury’s verdict
(ii) Enter judgment in accordance with their answers (and not the general
verdict)
(iii) Send the jury back for further considerations
(iv)Order a new trial
(b) When answers are inconsistent with each other and inconsistent with the
general verdict the judge shall:
(i) Send the jury back for further considerations
(ii) Order a new trial
 The judge determines what kind of verdict will be given to the jury. If
a general verdict is given, the judge will determine and then instruct
the jury on the law that governs the case. These instructions can be
general or specific, and the parties are given an opportunity to request

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 how they would like the jury to be instructed under Rule 51. If the
jury is given a special verdict, the scope of the judges instructions on
the law will be minimal because the judge will apply the law to the
jury’s findings of fact.
 Martinez thinks that general verdicts are preferable because they allow
for jury nullification (allows jury to find for a party by misapplying the
law – nullifying laws they think are too harsh). He says that one of the
purposes of the jury system is to “temper” the harshness of the law via
jury nullification.
iii) Rule 51 Instructions to the Jury
(1) At the close of evidence (or at such earlier time as the court allows) any party may
file a written request for the court to instruct the jury on a certain law
(2) Prior to their arguments to the jury, the court shall inform counsel of its proposed
action based on their requests
(3) The court may instruct the jury before or after the arguments or both
(4) Objections to giving or failure to give jury instructions must be made before the
jury retires to consider its verdict
(5) Objections must specifically state the grounds for objection
 Parties file written requests that the court instruct the jury on the law as set
forth in the requests. Court will tell parties what instruction will be given
prior to their arguments before the jury. If party intends to argue that the
jury instruction was erroneous on appeal, they must make the objection
before the jury retires to consider the verdict (can make it outside the
presence of the jury if they elect to).
iv) Rule 52 Findings by the Court; Judgment on Partial Findings
(1) Rule 52(a) Effect
(a) This rule applies to actions tried without a jury or with an advisory jury
(b) Court shall find the facts specially and state separately its conclusions of law
(c) Judgment entered pursuant to rule 58
(d) In granting or refusing interlocutory injunctions, the court must also
specifically state findings of facts and law as grounds for its conclusion
(e) Requests for findings are not necessary for purposes of review
(f) Review of Facts (on appeal); Standard of Review
(i) The findings of fact shall only be set aside if they are clearly erroneous
(ii) Due regard must be given to the trial judge’s opportunity to determine a
whiteness’s credibility
(g) Findings of a master shall be considered findings of the court
(h) findings of fact may be stated orally (and recorded) or written in an opinion or
memorandum
(i) Findings of fact and conclusion of law are not needed for motions under 12 or
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(2) Rule 52(b) Amendment
(a) Motion to Amend
(i) A motion for amendment may be made within 10 days after entry of
judgment
(ii) The motion may be made along with a motion for a new trial under 59

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 (b) The court may amend its findings or make additional findings, and change the
judgment accordingly
(c) When findings of fact are made by the court, a party may raise a question of
sufficiency of the evidence without:
(i) Making a motion to amend
(ii) Making a motion for judgment
(iii) Raising objections to such findings in the district court
(3) Rule 52(c) Judgment on Partial Findings
(a) Applies to trials heard without a jury
(b) A judge may enter judgment a matter of law before all the evidence is heard if
(i) A party has been fully heard on ceratin issues, and
(ii) The claim or defense is controlled by the issues, and
(iii) The only way the case could be on is if one particular issue was
found in favor of the party, and
(iv)The court did not find the issue in favor of that party
1. The court may also wait until the close of all the evidence to make its
decision
2. The court shall support its decision as required by rule 52a
 If the action is tried without a jury, court must find the facts specially and state
its conclusions of law separately (52(a)).
 These findings of fact shall not be set aside unless they are clearly erroneous
(52(a)).
 Court may amend its findings, make additional findings, and amend the
judgments upon motion made by a party within 10 days of entry of the
judgment (52(b)).
 The reason that a judge is required to specially find the facts is to aid in
appellate review – forces the judge to be more careful in his factual
conclusions.

Rule 50 Judgments and Jury Trials

a) Rule 50(b) Renewal for Judgment after Trial; Alternative Motion for New Trial
i) Renewal of Motion for Judgment after trial
(1) If the original motion is denied, the court is deemed to have submitted the case to
the jury
(2) A jury verdict will be subject to a later determination of the legal questions raised
by the motion
(3) The motion may be renewed after the verdict by filing and serving it within 10
days after entry of judgment
ii) Alternative Motion for New Trial
(1) May be requested in the alternative or joined with renewal of the motion
iii) Judgment on the Renewed Motion
(1) If a verdict is returned, the court may
(a) Allow the original judgment to stand
(b) Direct entry of judgment as a matter of law (reverse)
(c) Order a new trial
(2) If no verdict returned, the court may

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 (a) Direct entry of judgment as a matter of law
(b) Or, order a new trial
o If the court does not grant this motion and submits the case to the jury, the movant
may renew its request for judgment by filing a motion within 10 days after entry of
judgment – may alternatively request a new trial or join a motion for a new trial under
Rule 59.
o This motion used to be called JNOV- Judgement non obstante verdicto
o In order to make a 59(b) motion after judgment, the party must have moved for
judgment as a matter of law before the case was submitted to the jury

Galloway v. US (illustrates post pretrial motion)

Rule: A directed verdict does not violate the Seventh Amendment.
Facts: P Comes back from war and has evidence from time on the front that he went crazy
Procedure:
- P: Evidence shows in years 1922 and in 1930 that he was insane (No evidence of anything
in between those times)
 failure to get this to a jury is a violation of 7th amendment right to jury trial
- Court: no this doesn’t deprive you of right to jury trial bc then there was different ways a
court could take a case away from the jury
- Jury finds in his favor
Issue: is there enough of an inference from which jury can determine he was crazy through this
entire time continually?
Holding: entitled to all inferences, but ONLY those that are reasonable
 Inference that he was also insane in between 1922 and 1930 is unreasonable  Jury
cant reasonably fill this gap with inference of insanity at the time in between
o Bc unreasonable  not entitled to this inference
Majority: Court could take case away from the jury by granting a directed verdict or J as MOL
without violating 7th amendment:
- New trial  get a new trial
- Non suit  P withdraws
 Voluntary non suit: P voluntarily withdraws his case
 Involuntary non suit: D forces P to withdraw
 P can always bring the case again
- Demurrer to evidence  D admits
 Even if I admit everything your claiming against me, you still have no case
Dissent: directed verdict is very different from these devices in which you don’t violate 7th
- D loses nothing in moving for DV the way he does in other devices
- Yes jury can reasonably infer insanity in years in between  permissible inference

Walker v. City of Birmingham (civil rights protest case)

Rule: An injunction issuing out of a court of general jurisdiction with equity powers must be
obeyed, however erroneous the action of the court may be, and the proper venue to challenge the
injunction is through the courts.
Facts:Petitioners marched despite the injunction and without a permit
- Hold press conference after served with the injunction stating intent to disobey injunction
- And then march the next day (Marching for civil rights)

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Procedure:
- Birmingham officials filed a complaint asking for an injunction against 139 individuals and
2 organizations
 Circuit judge granted a temporary injunction to enjoin P from participating in the
parading without a permit (Ex parte injunction bc P was not present)
o 2 days after injunction is issued P served with TRO P then marches on Good
Friday in violation of order
- D: P Should be held in contempt bc disobeyed the order
 applies for order to show cause why they should not be held in contempt for violating
injunction
- P: filed a motion to dissolve the injunction after violating the injunction
 challenges the constitutionality of the order and ordinance; Also challenging
jurisdiction
o injunction is In violation of 1st amendment (substantive argument)
 Underlying Ordinance is unconstitutional
o In violation of 1st & 14th amendment (substantive argument)
 Incredibly subjective; blatantly in violation of 1st amendment
 “facially” unconstitutional: unconstitutional on its face; gives complete
discretion to the city to grant permit
 Applied unconstitutionally: Also unconstitutional as applied to P here bc
denied to them for their purpose in marching for civil rights
o Misuse of the legal process
- Circuit court: when P filed to dissolve injunction, P is found in contempt; waived all 1st
amendment rights by disobeying the court order
- SC Alabama: affirms and declines to consider P’s constitutional attacks on injunction and
ordinance
Issue:
- Whether court has the jurisdiction to issue the temporary injunction and whether petitioners
knowingly violated it
Holding & Reasoning: Court cannot hold that petitioners were constitutionally free to ignore all
procedures of the law and carry their battle to the streets;
- Bc court does have jurisdiction  injunction is valid  MUST be followed  bc was
violated then must be held in contempt
 petitioners were put on notice and could not by pass judicial review of injunction
before disobeying it
- Did P disobey injunction and was it validly entered by a court with jurisdiction?
 Thus question becomes did they have jurisdiction bc if so then P cannot violate a valid
order on substantive grounds (even if unconstitutional, if injunction is valid must be
followed)
o State Court does have jurisdiction as a court of equity over both the petitioners
and the subject matter
- Collateral bar rule: Even if the injunction is wrong, cannot just violate it; must challenge
injunction before it is violated
 Must be obeyed until you successfully challenge it
o Cannot attack the order directly, must challenge it

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  Should have applied for permit  moved to dissolve/modified the injunction
appealed if not granted
o But failed to follow the procedure and instead fully understood the prohibition
and still choose to violate it  must be held in contempt for violating a valid
injunction regardless of its constitutionality
- Exceptions where may have allowed for violation:
 If had tried to challenge it and were met with delay & frustration then maybe would
have allowed for the violation
 If transparently invalid
 New procedure that caught you by surprise
 Since none of these exceptions apply  violation was not allowed  must be held
for contempt
Dissent: petitioners are in same position as those who violate a statute to challenge its
constitutionality
- Just like a statute you have to violate to challenge constitutionality
- Exception to collateral bar rule: in Greene Collateral bar rule goes to the court’s
jurisdiction
 Allowed petitioner in Greene to challenge district court’s jurisdiction to issue the
injunction
 Initial inquiry as to whether you have jurisdiction is a challenge you can make to the
underlying injunction
o Collateral bar rule doesn’t prevent you from challenging the power of the court to
issue the injunction in the first place
o In Greene: can a state issue an injunction over subject matter that was regulated
by federal statutory scheme; can state court interfere with federal statutory
scheme?
 In Greene, they said no they did not have jurisdiction  injunction not valid
- Argument from Greene in Walker:
 A state court cannot interfere with a constitutional right (1st amendment) bc it is a
federal statutory scheme  state court had no power to enter by reason of federal pre-
emption
- Just like a state legislature cannot violate the constitution, neither can a state court violate
the constitution
 All 3 branches can violate the constitution
o Here, direct collision between the constitution and the state action taken by the
court in form of the ordinance is illegitimate bc outside the scope of the authority
of the state
 14th amendment provides this in due process clause: no deprivation without
due process and courts action is violating that through the injunction
- Majority Counter: No, not like a statute bc injunctions are different in that they are tailored
to an individual
 If don’t want to obey injunction, MUST challenge injunction (successfully) before
violating it  cannot just violate it and then challenge it for being unconstitutional
after violating it

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  Even if the injunction is unconstitutional (bc underlying substantive law it incorporates
is unconstitutional) it doesn’t matter, it MUST still be followed if it is not successfully
challenged regardless of its constitutionality
Notes:
- TRO: temporary restraining order
 Granted ex parte; only in presence of the city
 TRO contains the injunction which is essentially the ordinance applied as a court order
- Can’t be held in contempt without having notice
 Footnote 4 on 769: “quashed conviction of 1 D bc not sufficient proof he knew of
injunction before violating it”
- Jurisdiction: power to speak law
 No jurisdiction  no power to enter injunction

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 X. Personal JURISDICTION
Types of Jurisdiction:
Correlate with different branches of government
- Prescriptive: power to make and apply the law
 Legislative Branch
 Choice of law: Which law applies
o How does this influence whether a court has personal jurisdiction over D in a
case?
- Adjudicative: power to subject parties to judicial process
 Judicial Branch; Whether a court has jurisdiction depends sometimes on what law
applies in proceeding
 Personal jurisdiction
o Individual rights  most important
 Objections can be waived
o State sovereignty
 State cannot waive individual’s rights
 Subject matter jdx
o Objections can never be waived
o Can raise subject matter jdx question by the court sua sponte
- Enforcement: power to enforce the law
 Executive Branch

Adjudicative Court Jurisdiction:

- Personal jurisdiction: power of the court over the parties in the case
 How we define power of the court to hail before it the people/parties in a case
 Depends on where a person is geographically located within a state’s territory & where
court sits
o Ex: Court hailing a person in it’s territory  within court’s personal jurisdiction
 State sovereignty within the state  Mutually exclusive and absolute
o No exercise of power from one state to another would be legitimate
o No state can exercise authority on persons outside it’s territory
 Comity: mutual respect sovereigns owe each other (not legally binding)
o Ex: State A can reach into state B IF and only IF state B allows A to do so
(through comity)
o BUT a state cannot waive an individual’s rights! (applies more from a state to
state not state to individual)
 Territorial jurisdiction: exercise authority within the territory of the state
 Extra-territorial jurisdiction: no such thing as this; would be illegal for a court to
have authority outside its territory
o HOW AND WHEN do we allow courts to exercise authority beyond their
geographical borders?
 Influence of choice of law on whether a court has personal jurisdiction over D in
a case.

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- Subject Matter Jurisdiction: court’s power to hear a case bc of the nature of the dispute
(different from power to enter judgment against a particular D)
 State: determined by state constitution, state statutes (long arm statutes), and judicial
decision
o Often has concurrent SJM jdx with federal courts
 Federal: governed by art. 3, fed statutes, treaties, and judicial decisions
o If not a federal question, needs to satisfy complete diversity & amount in
controversy (>75k)
o Exclusive jdx: bankruptcy, copyright & patent, maritime & admirality
 Parties cannot waive SJM jdx

Just because the court can apply the law to D (legislative jurisdiction), does not mean that
state can hail the D into the state’s courts (adjudicative jurisdiction)
- First part: legislative jurisdiction
 Ability of the state to enforce it’s law
 Ability of state to apply it’s law on D based on occasion of single or occasional act and
impose liability
o Just bc it can apply the state’s laws to the D doesn’t mean it can hail the D to it’s
state’s courts
 Just because state can apply Washington law to Shoe doesn’t mean it can hail
Shoe to Washington court
- Second part: adjudicative jurisdiction
 Ability to hail D into court
o Just bc it can hail the D doesn’t mean it can apply the state’s law to D
 Just bc private P can hail Intl. Shoe to Washington state court doesn’t mean
that the Washington state court can apply the state law to Shoe
Choice of law: set of rules used to select which jurisdiction’s laws to apply in a lawsuit. Choice
of law questions most frequently arise in lawsuits in the federal courts that are based on diversity
jurisdiction, where the plaintiff and defendant are from different states. In these lawsuits, the
courts are often confronted with the question of which jurisdiction’s laws should apply. The
choice of law rules establish a method by which the courts can select the appropriate law.
 Tax law exception: one state wont enforce another state’s tax law
o Washington cannot go to company HQ in Missouri and ask them to apply
Washington Tax law
 Missouri not required to apply another sovereign’s state tax law
 Can’t happen bc the law is a public tax law in Washington and state not going to apply
another state’s public tax law (or criminal law for that matter)
o In order to get company to pay into the fund, Washington would have to get
jurisdiction over the company bc cannot ask Missouri to apply their choice of
law since the applicable law is a public tax law
 Penal law exception: one state will not/ not required to apply or enforce another
state’s penal law
o State can only prosecute you if you commit the crime within the state or some
conduct connected to crime is performed within the state, otherwise the state has
no jurisdiction to prosecute you for a crime committed in another state
 Instead D can get extradited back to the state where crime is being prosecuted ?
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 o No double jeopardy protection
 If you violate Texas law and Oklahoma law can be prosecuted by both states even if
same crime or claim

A. Personal JDX
- Specific Jdx: Jdx over D for case arising out of contacts by D with forum
 Minimum contacts
o Foreseeability
o Purposeful availment
 *** Zippo Sliding Scale Test***
 Unilateral conduct of 3rd party is not sufficient
 Submission by D
 Arising out of contacts
o But for
o Proximate cause
 Reasonableness
o Burden on D
o Forum’s interest
o P’s interest
o Judicial efficiency
o Shared substantial policies underlying field of law

General JDX: jdx over the D

2 ways to get gen jdx
- Transient Presence (Tag jdx)
 Served with process while in the forum state (tag jdx)
- So Substantial & of such a nature as to render D essentially “at home”
 Paradigm forum
o Individual: place of domicile
o Corporation: place of incorporation, primary place of business
 Others forums where @ home:
o Where contact is “so substantial” & of such a nature as so render them at home

Ways to get Personal jurisdiction:

- Consent/waiver: if D says I waive my rights or consents to a state agreement which
subjects him to the state’s jurisdiction (express or implied consent; non-resident
motorvehicle acts)
- Property
 In rem: subject matter of lawsuit is the property, which is in the state  court has
jurisdiction over the property bc within it’s state (claim over property within the state)
o Court has jurisdiction based on the property  in rem
 Quasi in rem: allows seizure of D’s property to force D to come in and defend their
interests or suffer a default judgment extinguishing claims, even when property is not
related to the claim before the court – assert jurisdiction based on amount the

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 property is worth; judgment amount cannot go beyond the amount the property
is worth bc court only has power over the property
o Attachment is traditional basis for quasi in rem
 Had Mitchell attached the property in the suit for legal fees, then would have
given the court quasi in rem jurisdiction and could have recovered up to the
amount the property is worth
o If D loses the court can order the judicial sale of the property to satisfy the
judgment amount
 If seized property was worth less than P’s damages on claim, court has no
power to enter in personam judgment against D for the difference bc only has
power over the property and not over the D
- In personam: Literally serve process on D in the territory of the state

FF. Due Process in regards to: Individual rights and state sovereignty
- Individual rights: How does requiring a state to have jurisdiction protect D’s rights under
due process clause?
 Requiring jurisdiction gives D notice and opportunity to be heard (respond) before
having a judgment entered against you
- State sovereignty: how does the jurisdiction requirement protect state sovereignty rights?
 under full faith and credit clause (FFC: Art. 4) if you have judgment in NY and bring
it to TX, the TX court must enforce that judgment as a matter of the constitution and
the Full faith and credit clause
o UNLESS, the judgement is invalid in that it was entered into without jurisdiction
by the court entering the judgment (aka unless court has no jurisdiction to enter
the judgment  invalid judgment)
 Now every state must ask itself do we have personal jurisdiction ? MUST come
up in EVERY case
o As a matter of law, as a matter of constitution (as a matter of FFC)
 Substantial deference to federal appellate courts to determine whether the court had
jurisdiction to enter the judgment (massive allocation of power to federal appellate
courts and away from states)
o Used to be state judging the other states jurisdiction to enter judgment, now every
state court must question whether they themselves have the jurisdiction to enter
judgment in any case
o Personal jurisdiction becomes a huge “federal” issue, even though it used to be a
state issue generally…
Individual rights vs. state sovereignty view of DP
- Each view will weigh the factors differently depending on the preference
 State sovereignty: focus on submission and purposeful availament
o At home
o Forum’s interest
o Transient jdx: everything to do with sovereignty  v. Pennoyer
 Individual rights: focus on foreseeability and notice
o Interest of P/D

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GG. Voluntary Presence = Personal Jdx
Pennoyer v. Neff:
Rule: Under the Due Process Clause, no person is subject to the jurisdiction of a court unless she
voluntarily appears in the court, is found within the state, resides in the state, or has property in
the state that the court has attached.
SCOTUS: Mitchell failed to attach the property before filing suit
- Property sold under judgment was not attached not brought under jurisdiction of the court
- Was not disposed of pursuant to any adjudication and rendered against a non-resident
without service of process upon him in the action
Notes:
- If Mitchell had sued Neff in CA, CA would have in personam jurisdiction over Neff and
thus could then and enter judgment against Neff and require the sale of the property in
Oregon (under the FFC) and then require Oregon to hand over the amount from the sale to
Mitchell to enforce the CA judgment
 Oregon is then required (under FFC) to hand over the property to Pennoyer to satisfy
the judgment entered in CA
 Also, Mitchell could have requested that CA courts apply Oregon law  choice of
law

HH. PJ: Minimum Contacts & Traditional Notions of FP & SJ

International Shoe Co. v. Washington
Rule: For D not present within the territory of a forum to be subjected to a judgment in
personam, due process requires that he 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.
Procedure: D Served process through employee working in Washington
 Special appearance: appearing only to contest the jurisdiction of the court; not
submitting to the jurisdiction but instead contesting it
o Appeared to set aside on grounds of improper service, weren’t a corp in
Washington,
- State court: corporation could be subject to jurisdiction under the doing business fiction
 enough flow of your product coming into the state  doing business  presence 
valid jurisdiction in the court over the company
 presence is a fiction; forget about the label and doing business this is all just fiction
 what is really going on when courts decide they have personal jurisdiction is this new
rule that we are going to deduce from the data and empirical evaluation of the case law
o very factual and contextual analysis under this new rule of law
 rule is going to remain constant, elaborated but doesn’t change much
 what changes is the facts of each case which give rise to certain applications
of the rule
o New rule for in personam jurisdiction requires (p.114):
 minimum contacts
 suit must arise from such minimal contacts
 assertion of jurisdiction must comply with traditional notions of fair play &
substantial justice (reasonableness)
Holding: corporation had minimum contacts

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- systematic and continuous conduction of activities by company within the state of
Washington
Dissent: States have an unqualified right to tax and permit its citizens to sue corporations whose
agents do business in those states. The Court’s decision diminishes the power of states to afford
judicial protection to their citizens.
- says that nothing in constitution requires substantial contacts so as to impose jurisdiction
 Due process clause does not regulate the state’s exercise of jurisdiction
o concerned with P’s power bc due process clause interferes with P’s state’s power
 deprives state of power to protect it’s citizens
 state has to be able to reach out and hail into court D
o we are so concerned with protecting D but what about protecting P who
has been harmed…?
 10 amendment should have settled this issue
th

o Under the 10th amendment the state must have the power to protect it’s own
citizens
 Powers not reserved for federal government are delegated to states
under the constitution
o This is a federal power grab by the judiciary
 Idea that judges can determine jurisdiction is fabricated by the judiciary and
arrogates power to the federal gov in a way that the constitution just does not
describe or require
- SHIFT FROM FORMALISM TO REALISM DURING THE REALISM
REVOLUTION OF 1940’S
 Formalism: law applies neutrally and objectively and spits out right answers; have
law have facts and apply law to facts and spits out correct answers irrespective of
which court the case is presented before
 Realism: no, law is a social construct, not a mechanical and quantitative scientific
method
o As a social construct depends much on the biases of judges and is highly
subjective (especially in the hard cases with which we are concerned)
o Formalism is full of fictions and in personal jurisdiction those fictions are abound
 How can a state be “present” in a state when it’s not actually..?
o Realists want the courts to pull out the fictions
 Pull out the principles of jurisprudence and take out the fictions to see what
courts are actually doing
o Getting rid of this mechanical test that is “formal” (p.116)
o Major change and radical shift in how we think about the law and forms
the basis of the jurisdiction doctrine on which courts subsequently act
 Affects by looking at what courts are doing in fact and pulls out text of
minimum contacts, and notions of fair play  this is the test (empirical
survey of the law)
o Shown in p.115
 Cast the fictions of “presence“ aside and decide when to uphold jurisdiction

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 o Fiction in this case is “doing business”  doing business in that state
establishing the corporation is present in that state and is then subject to the
compensation fund bc employees selling shoes in Washington
 Intl Shoe says not an employer within the statutory scheme
- Elements of this new “realist” test (highly factual analysis)
 Minimum contacts: Assess minimum contacts
o Facts assert minimum contacts
 Suit Arise from Contacts: Does suit arise out of such contacts?
 Reasonable Jurisdiction: Is the assertion of jurisdiction fair (or “reasonable”)
o Is it fair to assert such jurisdiction?
o Unduly burdensome so that you do not get a fair hearing?
o Address Concerns of Adequate Notice: is it fair/reasonable in terms of
adequate notice that one could be subject to suit in forum state through minimum
contacts and suit arising from those contacts?
- Post international shoe there is an explosion over the long arm statutes which are enacted
and implemented in court decisions without SCOTUS intervention weighing in on their
constitutionality
 The few where SCOTUS does, it is in support of expansion
o Ex: Mcgee  know this important precedent
o Ex: Grey v.  know this important precedent
 Ohio manufacturer of valves sells to manufacturer of radiators
Illinois P sues Ohio D  Q does Illiniois court have jurisdiction over Ohio D? YES

Type of Contact Suit arises from Suit does not arise

contacts from contacts
SUBSTANTIAL (suit does not need to General JDX
- Goodyear: corp. arise out of contacts (“dispute blind”)
operations w/in state are for general jdx IF
so substantial & of such a contacts are so
nature as to render corp. @ substantial as to render
home in state D at home  At home
- If trying to hail a corporate D in a forum jdx what contacts constitute substantial contacts?
- OLD TEST: Continuous & test)
systematic 
-

- Int. Shoe: Continuous and SPECIFIC JDX No Gen. JDX

systematic
114 Isolated & Irregular SPECIFIC JDX No Gen. JDX
(Depends on nature & quality
of contact)
Ex: Intentional torts or driving
in forum state
  Analogize to Int.Show to show not substantial contacts
 Suit does not need to arise from minimum contacts
 If contacts are not substantial, if the case arises out of those contacts, can
still have specific jurisdiction
 If contacts are substantial then suit does not need arise from such contacts,
can still have general jurisdiction
 If have substantial and continuous/systematic contacts  suit does
not need to arise out of such contacts  still get general jurisdiction
o General jurisdiction:
 Natural person: citizenship/domicile
 Corporation: place of incorporation/ OR principal place of
business (“nerve center”)
- Can have isolated and irregular contact and still have suit that arises from that contact 
specific jurisdiction
 Argument for sufficient contact in International Shoe: What contacts are sufficient
to qualify as minimum contacts?
o Fair to assume that Shoe would be on notice that it had to defend shoe in this
context (one of the important criteria)
 Not a heavy burden for a corporation
 Salesmen reside there  can be on the Washington unemployment role
 Made $31k in commissions which is not insubstantial during that time (40’s)
o If want to do business in our state, have to comply with the laws of our state
 Getting a benefit from doing business in our state (reciprocal burden)
 have access to our market
 have protection of Washington law for all the activity you conduct in
Washington
o This benefit thus gives rise to a reciprocal burden (with the benefit comes the
burden of having to defend suit)
 Only fair that you now have to defend in this jurisdiction due to the benefit
conferred from doing business in this jurisdiction

II. Two prong Test for Jurisdiction under long arm statute:
1. Long arm statute analysis
o The statutes state when and how a state gets jurisdiction
o EX: CA LONG ARM  goes to limits of constitution
 “state courts have jurisdiction to extent not consistent with due process of
federal constitution”
o Ex: Illinois  enumerated situations of valid jurisdiction (p.118)
 Lists situations in which it has jurisdictions
2. Constitutional analysis
 First address the long arm statute then the constitutional questions
o Want to avoid constitutional questions whenever possible
 Constitutional avoidance doctrine

JJ. Minimum Contacts and Foreseeability

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Hanson v. Denckla
Rule: A defendant cannot be called upon to defend an action in a different State unless they have
“minimal contacts,” with that State.The defendant must purposefully avails itself of the privilege
of conducting activities within the forum state, thus invoking the benefits and protections of its
laws. 
Holding: FL courts lacked jurisdiction in rem over the action involving the trust, since the trust
situs was in another state, and that those courts also lacked jurisdiction in personam over the
trustee  because there were no minimum contacts with FL prerequisite to the exercise of power
over him.
- since it was found that under FL law a trustee is an indispensable party over whom the FL
court must acquire jurisdiction before it has power to enter judgment in a proceeding
affecting the validity of the trust, the FL decree was held of no effect, and not entitled to full
faith and credit in Delaware. 
- Court is bothered by the possible retroactivity that could result
 D did not have notice she was going to move to FL when the trust was entered into

 Looking at when the relationship was formed

o “retroactivity” and “foreseeability” issue
o Looking at 2 moments:
 When trust formed in PA
 Assertion of JDX in FL
- Adequate notice: D must be able to plan conduct with an idea over whether that will
subject them to suit  adequate notice requires minimum contacts:
Notice: must have minimum contact + fair play and substantial justice (so as to avoid an
undue burden on D)
 Minimum contacts:
o Can’t be unilateral activity of P
 Unilateral activity of P not enough: The unilateral activity of those who claim
some relationship with a nonresident defendant cannot satisfy the
requirement of contact with the forum state. The application of that rule will
vary with the quality and nature of the defendant's activity, but it is essential
in each case that there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum state,
thus invoking the benefits and protections of its laws. 
 The unilateral activity here is that she moved to FL from PA
 D has no control over whether she moved to FL or not but she did..?
o Purposeful availment
 It is essential that D avails himself of the benefits and the laws of the state in
order that D may be assumed to have been given adequate notice
o Here bc no purposeful availment  D is not availing itself of the
benefits of FL in any way
o Foreseeability: foreseeability D would be subject to suit in forum
o FAIR PLAY and substantial justice (to avoid undue burden on D)

World-Wide Volkswagen Corp. v. Woodson

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Rule: Foreseeability that product could end up in forum alone is not sufficient to authorize a
state court’s assertion of personal jurisdiction over a non-resident defendant that has no contacts,
ties, or relations with the forum state.
- P is seeking the writ to prohibit D (Woodson aka trial judge) from exercising jurisdiction
 D (Woodson) is the trial judge…
- Why not just go to trial on merits and then appeal the jurisdiction ?
 Writ of prohibition gives you the advantage of
o Lower costs bc no can hold trial in your own local jurisdiction ?
o Chances of winning on personal jurisdiction go down substantially if there is a
jury verdict involved
 Court is much more reluctant to overturn a jury verdict bc FACT questions
are FOR THE JURY

On what facts do courts determine whether there is personal jurisdiction?

- Ex: Mcgee  CA had jdx over TX company even though only sold 1 insurance kx there bc
TX D “reached out” and solicited business in CA  met the minimum contacts of Int Shoe
- Ex: Grey  Ohio manufacturer of valves sells to manufacturer of radiators
 Illinois P sues Ohio D  Q does Illinois court have jurisdiction over Ohio D? YES
 D “commits tortious act in Illinois”
o Tortious act looks like it was committed in Ohio… BUT, Illinois has a choice of
law rule called lex lori dedici (law of the placec of the harm)
 This rule then Localizes the entire tort (harm) into the state of Illinois
 When tort is involved in multistate conduct then it is factiously converted
into having all occurred in Illinois bc no extraterritorial jurisdiction
KK. Minimum Contacts in Stream of Commerce

Asahi
Rule: Under DP, a foreign business’s awareness that its products will reach a state within the
United States in the stream of commerce does not satisfy the minimum contacts needed for the
forum state to exercise personal jurisdiction over that business.
- Loss allocating rule  personal  relationship between the parties
 Indemnification: If something happens, you pay for it….
 These rules don’t kick in in until after the accident occurs and they try to distribute the
losses (cost of the accident )
- Conduct regulating rule  territorial  influence primary behavior
 Tort law regulates ones conduct
 Trying to regulate behavior outside the court room
- Kx in A but suit in B
 State A (loss allocating) looks at relationship between two parties
 Territorial rule looks at where kx was entered into
- If accident happens in state b but parties are from state A
 State A applies law from state B (territorial bc tort law is conduct regulating)

Procedural (always forum law) vs. (Substantive: choice of law)

- Forum interest
 Governing law

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 o Does suit involve conduct regulating or loss allocating rules?
 Conduct allocating  law of territory where conduct + injury occurred
 Loss allocating  relationship between parties
o Indemnification claim = loss allocating
 Relationship between parties
 Taiwan Taiwanese (not California) law
- Why don’t want courts to interfere with foreign nations?
 Avoid friction with foreign nations
o Vertically: international relations in domain of federal not state government (we
don’t want 50 voice making foreign policy)
o Horizontally: executive (one voice) makes foreign policy (we don’t want myriad
courts making foreign policy)
 CA asserting jurisdiction violates both horizontal and vertical
- O’Connor Plurality (4): substantial contacts depend on purposeful availment (stream of
commerce + factors)
 Requires an affirmative act by D to connect him to the forum state
o Placing something into stream of commerce or mere awareness is not sufficient
to establish minimum contacts
 Plus factors: Additional conduct may indicate intent to serve market and thus
help satisfy the purposeful availment (Stream of Commerce + Additional Factors
 sufficient to satisfy availment)
o Designing product for the market
o Advertising in forum state
o Establishing channels for offering advice in the forum state
o Marketing product through distributor (agreed to serve as a sales agent in forum
state)
- Brennan Plurality (4): stream of commerce sufficient
 Foreseeability + benefits (direct and indirect) = sufficient connection for jurisdiction

Post Asahi
- Minimum contacts
 Purposeful availment + foreseeability
o Brennan: Stream of Commerce (suit arises out of contacts; specific jdx)
o O’Connor: Stream of commerce + additional conduct (PLUS FACTORS) (suit
arises out of contacts)
 Also reasonableness factors

J McIntyre v. Nicastro
Rule: For a D to be subject to a state’s personal jurisdiction, it must purposefully avail itself of
the privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws.
- SCOTUS has stated that D’s placing goods into the stream of commerce with the
expectation that they will be purchased by consumers within the forum State may indicate

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 purposeful availment. But that statement does not amend the general rule of personal
jurisdiction. It merely observes that D may in an appropriate case be subject to jurisdiction
without entering the forum -- itself an unexceptional proposition -- as where manufacturers
or distributors "seek to serve" a given State's market. The principal inquiry in cases of this
sort is whether the defendant's activities manifest an intention to submit to the power of a
sovereign
General jurisdiction
- Citizenship  for corp place of incorporation/ principal pace of business
- Explicit consent
- Physical presence (served in forum)
Holding: A court may subject a defendant to judgment only when D has sufficient contacts
with the sovereign such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice.
- Free-form notions of fundamental fairness divorced from traditional practice cannot
transform a judgment rendered in the absence of authority into law.
- As a general rule, the sovereign's exercise of power requires some act by which the
defendant purposefully avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws,
 though in some cases, as with an intentional tort, D might well fall within the State's
authority by reason of his attempt to obstruct its laws.

Attempt to clarify Asahi

- Stream of commerce theory was what confused NJ courts as being sufficient for jurisdiction
 The stream-of-commerce metaphor cannot supersede either the mandate of the Due
Process Clause or the limits on judicial authority that Clause ensures. A state's interest
in protecting its citizens from defective products is doubtless strong, but the United
States Constitution commands restraint before discarding liberty in the name of
expediency
 Stream of commerce is the metaphor for jurisdiction, but it is not the test
o As a general rule  not enough for D to predict that goods will reach forum state
o Don’t like the stream of commerce theory  not enough
- Submission? it’s D’s actions that empower a state’s courts to subject him to judgment,
not his expectations
 Forum by forum sovereign by sovereign analysis
o Personal jurisdiction requires a forum-by-forum, or sovereign-by-sovereign,
analysis.
o The question is whether D has followed a course of conduct directed at the
society or economy existing within the jurisdiction of a given sovereign, so that
the sovereign has the power to subject the defendant to judgment concerning that
conduct.
o Personal jurisdiction restricts judicial power not as a matter of sovereignty,
but as a matter of individual liberty, for DP protects the individual's right to be
subject only to lawful power. But whether a judicial judgment is lawful depends
on whether the sovereign has authority to render it
 Relationship by sovereigns

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 o A court may subject D to judgment only when the defendant has sufficient
contacts with the sovereign such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.
o Free-form notions of fundamental fairness divorced from traditional practice
cannot transform a judgment rendered in the absence of authority into law.
o As a general rule, the sovereign's exercise of power requires some act by
which the defendant purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections
of its laws, though in some cases, as with an intentional tort, the defendant might
well fall within the State's authority by reason of his attempt to obstruct its laws.
- Sovereignty
o Sovereignty (depends upon individual liberty)
o Individual liberty (depends upon sovereignty)
 US as a sovereign is different from states as separate sovereigns in the US
o Bc the US is a distinct sovereign, D may in principle be subject to the
jurisdiction of the courts of the US but not of any particular State.
o This is consistent with the premises and unique genius of the US Constitution.
o For jdx, a litigant may have the requisite relationship w US gov but not with the
gov of any individual State. That would be an exceptional case, however.
 If D is a domestic domiciliary, the courts of its home State are available and
can exercise general jurisdiction. And if another State were to assert
jurisdiction in an inappropriate case, it would upset the federal balance,
which posits that each State has a sovereignty that is not subject to
unlawful intrusion by other States.
o Furthermore, foreign corporations will often target or concentrate on
particular States, subjecting them to specific jurisdiction in those forums. 
 Slippery slope
o Stop the slippery slope Marshall the facts that as a matter of broad principle it
might lead to these results, but distinguish from those circumstances based on
the facts
o Here it is a large international company  huge difference from small local
company
 Worried about predictability
o Easier to predict based on Asahi jurisprudence in jurisdiction than on SCOTUS
opinion that is analytically empty OR based
 Can make a solid prediction based on the lower court’s jurisprudence on
Asahi than on the SCOTUS opinion in J McIntyre
Breyer & Alito (concurrence)
- Put simply, Nicastro P to meet his burden to demonstrate that jurisdiction over D was
proper.
o Submission:Plurality opinion is not helpful; shouldn’t have taken case to begin with
doesn’t present any changed circumstances
 NJ SC opinion is too broad though bc stream of commerce theory is overly
broad
 Not adopting stream of commerce theory

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 o Important question: Reasonableness
1. Burden on D
a. Legal burden:
i. familiarize themselves with NJ law (black letter law)
ii. familiarize themselves with judicial application of that law (how
judge apply that law)
b. Geographical Burden: burden to defend in foreign forum
Ginsburg Dissent: would hold D answerable in NJ for the harm P suffered at his workplace in
that State using D’s shearing machine. 
- Ginsburg cares about reasonableness and fairness
- D manufactured machines with the intent of selling them within the borders of the US. The
company employed a distributor to accomplish this task. That should not mean that the
manufacturer can escape liability in an American court when one of its products causes
harm.
 Contacts:
o US patents
o Serviceability of machines
o Conventions in Vegas
o NJ is hotbed of scrap metal industry
- contacts as sufficient with the US sovereign so as to assert jurisdiction
 The relevant sovereign here is not NJ state, but the USA
o National market McIntyre markets to
 Aggregating D’s contacts in the US
o Intent was CLEARLY to serve this market
o Didn’t care WHERE in the US machines went, but marketed to the US market
specifically
- Resurrecting legal realism
 Have used legal fictions before to mask what we’re really doing
 International shoe defined certain legal fictions as such
o Came up with test for minimum contacts and justice
 By constructing this notion of submission, you have not advances the analysis because
creating another legal fiction
- Lex loci deliciti  law of the place of the delicit (injury)  place of the injury
 Choice of law for torts is the law where the harm occurs
o D has notice: D knows this law, so it would not be surprising at all to be subject
to the law of the state in which its product caused injury
- UK distributes machine to US and ends up in NJ and injures somebody
 Kennedy: relevant sovereign is NJ
 Ginsburg: relevant sovereign is any court in US bc relevant sovereign is US?  Any
court in US has jurisdiction over foreign D
o US Law identifies NJ as a sovereign; sovereign vis a vis other states in the US
o No other states in US that interfere with the sovereign of NJ
 Have a foreign nation interfering with NJ Sovereign
 In International scope, International law determines the relevant sovereign
o Customary international law  Ever present all covering law
 In international law US and UK are the relevant sovereigns
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 NJ has sovereignty within the US
o But when taking about nation states, international law determines
the sovereign state which identifies the US and UK as relevant
sovereigns
 NJ is irrelevant to international law (int/ law doesn’t care at all
about NJ or difference between nation/state)
 Relevant sovereign under international law is US
o Any court in US has jurisdiction over foreign D
o Governing law is US law
 What relevant law is depends on federalism
o Because international law doesn’t care about the distinction between state and
nation difference
 No distinction between NJ and US law so NJ can apply
 Bc no distinction between state and federal  Any US court can assert
jurisdiction
o Includes both federal and state courts
o Ex: if accident occurred in Nevada, could assert jurisdiction in
Nevada courts…
 Only relevant question is whether there is sufficient contacts between
company and US
LL.Reasonableness Factors

Burger King
Rule: When determining if a defendant satisfies the minimum contacts requirement for personal
jurisdiction, the court must look to the purposefully directed activities of the defendant toward
the forum state and whether the harms arising or relating to those activities are the cause of the
litigation.
Facts: MacShara and Rudzewicz (D) jointly applied for a Burger King franchise in Detroit. D’s
negotiated the deal with Burger King Corp.’s (P) Michigan’s district office and the Miami
headquarters.
- D’s were granted a franchise, and MacShara attended a management course on how to run a
Burger King in Miami.
- Rudzewicz purchased $165,000 in restaurant equipment from Burger King corporate
division in Miami.
- Under the franchise agreement, D’s were to remit franchise fees and royalties to Burger
King Corp. in Miami.
 D’s were unable to make these payments due to low finances.
Procedure:
- P sued D for breach of contract & trademark infringement in federal district court in
Florida.
 federal ct was appropriate under diversity and trademark jdx
- D: claimed that the court did not have PJ
 Unfair to subject D to jdx in FL when P could easily afford (& is in better financial
place) to afford court in a foreign jdx

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 o SCOTUS: A D that has purposefully derived commercial benefit from his
affiliations in a forum may not defeat jdx there simply bc his adversary has a
greater net wealth and could bring suit in D’s jdx…
 Unfair bc kx was adhesive and had a disparity of bargaining power
o SCOTUS: District Ct found no representations by P
 under rule 52(A) not clearly erroneous  higher court cannot overturn
- Ct of Appeals: district court did not have personal jurisdiction.
Holding: When determining if D satisfies minimum contacts requirement for personal jdx, the
court must look to the purposefully directed activities of D toward the forum state and whether
the harms arising out of or relating to those activities are the cause of the litigation.
 Once a court has concluded that minimum contacts exist between the forum state and
D, the court must consider whether fair play and substantial justice would be offended
if D must defend himself in the forum state.
 Factors that help resolve this question:
o D’s burden if jurisdiction is imposed,
o the forum state’s interest in imposing jurisdiction,
o P’s interest in obtaining relief,
o the interstate judicial system's interest in obtaining efficient resolution of
controversies,
o and the furtherance of fundamental substantive social policies.
 If D purposefully directed his activities toward the forum state, D must present a
compelling case that these factors indicate jurisdiction would be unreasonable.
o Although D had no ties to Florida and did not maintain any Florida offices, he
deliberately negotiated w/ reps outside Michigan & finalized a deal w/ a
corp he knew was located in FL.
 The course MacShara attended to get a franchise was held in Florida.
 Any franchise fees D did pay were sent to Florida.
o D reasonably should have known that he was affiliating himself with an
organization based in Florida and he might be hailed to court in that state for
harm arising out of or relating to his conduct.
o Furthermore, the contract D signed acknowledged that the Burger King
Headquarters in Miami regulated the franchise.
 It is not unreasonable to grant Florida personal jurisdiction over D. The
required minimum contacts are not established by contracts obtained by
fraud, undue influence, or unequal bargaining power. Such contracts may in
essence deprive defendants of their day in court.
 The contract in this case, however, did not fall into any of these
categories. The decision of the court of appeals is reversed.
Dissent: D never entered FL & could not have reasonably assumed he would be brought to court
there.
- During the business relationship with P, D’s principle point of contact was the office in
Michigan.
- The majority’s decision to grant personal jdx to FL is based solely on the kx between D and
P.
 This kind of reliance on to satisfy minimum contacts is fundamentally unfair,
especially to parties with unequal bargaining power.

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  The kx terms could not have reasonably given D notice that he could be hailed into
court in Florida.
o Majority counter: Not a boiler plate kx or kx of adhesion
Notes:
- Diversity jdx  state substantive law (fed jdx is concurrent with state jdx in diversity
cases)
- Federal question jdx  federal substantive law (fed jdx is exclusive on federal
questions)
- Rule 4: due process limits on state jdx also apply to federal courts
 State trial courts & Federal district courts are both subject to minimum contacts and
fair play & substantial justice test
 Minimum contacts
o Foreseeability
 In a sense is a product of purposeful availment  Bc D is purposefully availing
himself of FL laws and benefits, it should be foreseeable to him that he could be
haled into court in FL
o Purposeful availment
 What gives D the purposeful availment?
 Kx with BK (P)  Creating continuing relationships and obligations with
citizens of another state
 Contacts External to kx  actual course of negotiations and dealing with P
(phone calls, mail, concessions, etc… )
 Contacts Internal to KX  Kx made in FL (FL law applies to kx), operations
conducted and supervised in Miami HQ, all relevant notices and payments
must be sent to HQ
o Lex loci contractum: choice of law of the kx is the law of the place
where kx is made  bc kx made in FL then FL applies to kx 
CHOICE OF FORUM
 When you reach out and avail yourself to the law of another state then you are
purposefully availing yourself to the law of the state and therefore are holding
yourself out to suit in that state  satisfying both foreseeability and purposeful
availment of minimum contacts
 Reaching out to market of state
 Reaching out and getting the protection of the laws in that state

MM. Tag Jdx over Individual (Service of Process = Gen Jdx)

- If served with process in the forum state, can be sued for anything bc gives courts power to
assert GENERAL JURISDICTION
 No matter how short the visit, jdx is valid if you are validly served within the forum

Burnham v. Superior Court

(GENERAL JDX; if served with process in state can be sued for ANYTHING as long as not
fraudulently induced in state or in state for another legal proceeding)

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Rule: A non-resident is properly served if he is physically present in the forum state, and the
forum state may exercise personal jdx over him w/o violating DP.
- A court can take jdx based on physical presence alone. A state court's assertion of personal
jurisdiction satisfies the Due Process Clause if it does not violate traditional notions of fair
play and substantial justice.
 Deviations are permissible, but only with respect to suits arising out of an absent
defendant's contacts with a state (Specific JDX)
- Claim: fruit of Shaffer
 Shaffer: a nonresident who is served within forum cannot be amenable to process
there unless she has minimum contacts within the state
o invalidates the use of quasi in rem jdx for automatic personal jdx
o before could assert jdx over person’s property in the forum state and through that
could assert jdx over the person
 post Shaffer trying to shut down in tag jdx
o in tag: asserting jdx in forum state by serving party while party is traveling in
forum state
Issue: Whether DP (14th amendment) denies CA jdx over non-resident personally served while
temporarily in the state in a suit unrelated to his activities in that state?  general jdx over D?
Holding & Reasoning (SCALIA): The forum state had personal jdx over P in pending divorce
action bc the requisite minimum contacts were satisfied by the D’s physical presence in the
forum, even if on unrelated matters. DP was satisfied because service of process occurred while
D was in the forum. 
- A state court's assertion of PJ satisfies DP if it does not violate traditional notions of fair
play and substantial justice.
- The courts of a state have jdx over nonresidents who are physically present in a state. Each
state has the power to hale before its courts any individual who can be found within its
borders, and that once having acquired jdx over such a person by properly serving him with
process, a state can retain jdx to enter judgment against him, no matter how fleeting his
visit.
 Where a party is within a territory, he may justly be subjected to its process, and
bound personally by the judgment pronounced, on such process, against him
Concurrence (White):The rule that a non-resident party may be served if he physically enters
the forum state is not so well accepted that it would be impossible to strike down.
- It is, however, a useful rule to prevent flooding the courts with fact-specific inquiries
relating to personal jurisdiction
- Court has authority to examine even traditionally accepted procedures & declare them
invalid
 Not valid just because of historical pedigree but here there is no showing that as a
general proposition this traditional rule is so arbitrary and lacking in common sense in
so many instances that it should be held to violate DP in EVERY case
o Until such a showing is made claims in individual that the rule would operate
unfairly as applied to a particular nonresident involved need not be entertained
 Basically arguing that it must reach a certain threshold where the rule is unreasonable
in a bunch of cases before the court should question the validity of the rule

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 o Here there is not enough to overcome the validity of the law thus the
constitutional validity of the traditional rule (which allows for personal jdx after
service in the forum state) should not be questioned
Concurrence (Brennan): A long history of enforcement of personal jurisdiction when a non-
resident party is present in a state, while informative and persuasive, is not necessarily
dispositive.
- HOWEVER, means D’s have notice that they might be served if they enter a different forum
state.
 By entering state, D avails himself of the benefits made available by the state, such as
police protection and use of the roads.
 Furthermore, the burden on the non-resident defendant is small; modern travel is not a
great inconvenience for an individual who wishes to defend himself in a foreign state.
- Reliance solely on historical pedigree is foreclosed by Int. Shoe case (history is not the only
factor in deciding whether this type of jurisdiction is valid)
 Critical point of Shaffer was that rules of jurisdiction even ancient ones must satisfy
contemporary notions of due process
- Advocates for the rule that exercise over a D based on his voluntary presence in the forum
will satisfy requirements of DP
 Difference from Scalia’s is that it requires presence to be voluntary and Scalia does
not
o Scalia says even if present is involuntary then jdx is still valid
- Scalia counter: Jdx based on physical presence alone constitutes due process bc one of the
continuing traditions of the US legal system that define the due process standard of
traditional notions of fair play and substantial justice.
 not the court’s job to question historical precedent that nobody has question or
abandoned
o Perhaps if other states began to abandon it then we could question it, but if we
adopt Brennan’s test, we would be invalidating state legislature’s laws and not
the job of the courts and the federal government to tread of state and legislative
authority
 Concern with judicial expansion of power
 Not worried about majorities., but about minorities who don’t have a voice in the
legislative process (minority: out of state citizens)
o Courts want to protect out of staters from laws which they have no control over
that control them…
 Focus on tradition: Tradition says that P was on notice, or constructive notice, of this
traditional rule that when you are physically present in a forum you are subject to
personal jdx if you are served with process there
o P knew this was the rule  P was on notice
Notes:
- After Asahi more individual liberty is a more robust constraint on jurisdiction than state
sovereignty
- In Burnham Need to determine whether foreign sovereigns have violated due process
 Sovereignty as a product of individual rights
o Sovereignty first  Individual rights flowing from sovereignty
- Voluntarily vs involuntarily in forum state:

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  Voluntarily in forum state: jdx is valid
o Brennan & White would require voluntary presence  like Int. Shoe (minimum
contacts analysis)
 Involuntarily in forum state: some states claim this jdx is invalid, others do not….
o State issue whether jdx is valid if involuntarily in state
 Not “constitutionally” invalid bc it’s the decision of the state to regulate
whether valid or not… ?
 Scalia would not require presence to be voluntary for jdx to valid  likes Pennoyer
- DIFFERENCE FROM SHAFFER
 Court there rejected jdx bc asserted jdx over a person based on person’s property being
present in the forum, not the person himself
o Here the person himself was present in the forum which is sufficient under in tag
jdx
- due process requires only that in order to subject a defendant to a judgment in personam, if
he be not present within the territory of a forum must have certain minimum contacts
with forum so that suit does not offend traditional notions of fair play and substantial
justiceNo matter how short the visit, jdx is valid if you are validly served within the forum

NN. At Home Test

Goodyear v. Brown
Rule: A state court may not exercise general jdx over a foreign subsidiary of a US-based corp
unless it engages in such continuous and systematic activities as to render it essentially at home
in the forum state.
Issue: May a state court exercise general jurisdiction over a foreign subsidiary of a United
States-based corporation if it does not engage in continuous and systematic activities in the
forum state?
Holding & Reasoning: base analysis on Specific JDX;
- Nothing in tires has anything to do with NJ  merely placing a product into the stream of
commerce in a state is not enough to subject the entity to suits unrelated to that activity. 
 Incidental flow of goods into a particular state is no longer sufficient for general jdx
- The specific-jurisdiction classifications:
1. D’s in-state activity is “continuous and systematic” and that activity gives rise to the
episode underlying the suit.
2. Occurrence of certain “single or occasional acts” in a state that may be sufficient to
jurisdictionally bind D with respect to those acts.
- In contrast, circumstances in which a D’s continuous corporate activity within a state is
substantial enough to justify a suit even if claim has nothing to do w/ its in-state
corporate activities.
 a court may exercise general jurisdiction over D if D is “essentially at home”:
o Individual: this place of general jurisdiction is the individual's domicile.
o Corporation: the place in which the corporation is regarded at home
 place of incorporation, or
 principal place of business. 

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- Test for general jdx: sufficiently continuous and systematic to justifiy gen. jdx. Over
claims unrelated to those contacts  Corporation/Individual must “essentially be at home”
in the forum state
 Paradigmatic Forums for Corporation
o place of incorporation
o place of principal place of business (HQ or nerve center of the business)
 Paradigmatic Forums for Individuals
o place of domicile
o place of citizenship
 The paradigmatic forums are not mutually exclusive?
Notes:
- General jdx now turns on activity beyond mere sales volume
 Intl Shoe: contacts must be “so substantial and of such a nature so as to justify suit”
on anything
 Good year: these substantial contacts mean that D is essentially “at home” in the
forum state
o Very hard to obtain personal jdx over a D; even harder than it was after Intl.
Shoe
o Question post Goodyear: what does at home mean?
 Is Perkins exception limited to its facts? (do we need a mirror image of the
case to get around forums for personal jdx)
 In Perkins, an Ohio court could exercise general jurisdiction over a
Philippine mining corporation where the corporation had its company
files in Ohio, and the company's president maintained an Ohio office and
supervised others from that location.
 Also turns on relationship between a parent corporation and its subsidiary
o Number of jurisdictions in which a D may be “at home” is relatively small

Daimler AG v. Bauman
Rule: A court can assert general jdx over a corp if the corporation’s affiliations with the forum
state are so continuous and systematic as to render the corporation at home in the state.
Holding (Ginsburg): problem with agency theory  too broad sweeping
- If corp doesn’t have these agents, presumably something that the corp would do by other other
means… appears to subject foreign corp to gen jdx whenever they have in state subsidiary which
would sweep beyond that view of gen jdx rejected in Goodyear
 9th circuit’s agency theory for gen jdx is even broader than the theory in Goodyear
- Agency relationships are recognized as relevant to the existence of specific jdx
 A corp can purposefully avail itself of a forum by directs its agents or distributors to take
action there
 However, It does not inevitably follow that similar reasoning applies to general jdx
- Even if we assumed MBUSA is at home in CA, and that their contacts are imputable to Daimler, still
no basis to subject Daimler to gen jdx in CA bc Daimler’s slim contacts with the state hardly render
it at home there
 Even if MBUSA “@ home” in CA still no personal/general jdx for Daimler in CA
o It’s a relativity/proportionality test: Can’t look at Daimlers contacts in CA in
isolation it’s a comparison of its contacts with other places in the world (Comparison
analysis)

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  “calls for an appraisal of a corps activities in their entirety, nationwide and
worldwide…A corp that operates in many places can scarcely be deemed at home in
all of them” (p.197 ftn. 20)
- Even if not paradigm forum, corp can still be subject to personal jdx
 Perkins: when operations in a forum other than its formal place of incorporation or principal
place of business may be so substantial and of such a nature as to render the corp at home
in that state
- For purposes of gen jdx only that is important is that contacts
 If contacts are so substantial, given the nature and quality of those contacts, to render
jdx permissible, then reasonableness is automatically satisfied
o Doesn’t get rid of reasonableness, reasonableness folds into the substantial
contacts
o Bc contacts are so substantial as to render the corp at home in that state, then of
course it is reasonable! (Ft. note 20 p. 197)
 ATS claims are infirm: presumption against extraterritorial application controls
claims under ATS
 TVPA claims are infirm: only natural persons are subject to liability under TVPA
Concurrence (Sotomayor): Proportionality test is not needed; Only worried about substantial
contacts and reasonableness
- If satisfy both, the contacts need not be relatively more substantial in this forum compared
to the contacts it has with other places
- Int. Shoe never engaged in proportionality test
 In every case we have applied the test for gen jdx we have focused solely on
magnitude of D’s instate contacts not the relative magnitude of those contacts in
comparison
Notes:
- Strategic choice by P to bring suit in CA (specifically USA)
 Very broad discovery laws and strong laws for damages
 Also have the alien tort statute with no other country had at this time to allow aliens to
bring suit for human rights violations
 And not certain that would be able to find justice in Argentina
o P: residents of Argentina
o D: Daimler & MBUSA

OO. Alter ego relationship: one company is so interconnected tot working of another
company as to render it one corp as of the same
- Corps operations are so connected that they’re essentially the same corporation
 You would impute that subsidiary’s contacts to the principal corp
 Just because subsidiary is deemed the agent of the principal, doesn’t mean parent is
subject to gen jdx if subsidiary is subject to gen jdx

Virtue of “at home” (Easily ascertainable)

1. Notice: D can structure primary conduct knowing where subject to suit
a. If don’t know, can chill them and discourage the productivity of business which we
want to encourage and not chill…
2. Unique: How to defend suit is convenient for D

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FNC (forum non-conveniens): dismiss suit to another forum
- CL doctrine: Applies in state court
 Moving suit to a different judicial system
 Ex: international cases
o Trying to get case removed internationally  FNC bc moving judicial systems
Venue: federal court
- Move suit to transfer it within the same system
 Within the same federal judicial system

PP. Sliding Scale Test

Sliding scale rule for Websites:

Active ----------------------------- middle ground -----------------------------passive

Forming contracts 1) degree of commercial activity posting material
2) Interactivity of the site

Zippo Mfg
Rule: In order to assert personal jurisdiction over a nonresident defendant, the court must apply a
three-prong test to be sure that the defendant has minimum contacts with the forum state, the
claim asserted arises out of those contacts, and the exercise of jurisdiction is reasonable.
Holding: Businesses may provide services over the internet, which may establish the requisite
minimum contacts within the forum state.
- A passive website, which merely provides information to visitors and does not provide a
service, will not provide grounds for PJ.
- But a website that actively reaches out to visitors and maintains relationships with them
will likely satisfy the minimum-contacts requirement.
- Here, D actively exchanged information with Pennsylvania residents with the intent of
deriving commercial gain.
 Its contacts with these residents are more than merely fortuitous; D consciously chose
to process the applications of Pennsylvania residents and issue passwords to them. If D
did not want to subject itself to PJ in Pennsylvania, it was free to reject the
applications of Pennsylvania residents.
 The number of Pennsylvania subscribers is significant enough to satisfy the minimum-
contacts requirement, bc the nature and quality of the contacts is the important point of
inquiry, not the number of contacts itself.
- Because Dot Com’s contacts with Pennsylvania satisfy the three-prong minimum-contacts
test, this court may exercise PJ over D.

QQ. Forum Selection Clause

Carnival Cruise Lines v. Schute
Rule: A forum selection clause is not fundamentally unfair solely because the clause was not
negotiated.
Facts: Eulala and Russel Shute (P) purchased tickets through a travel agent in Washington state
for a cruise operated by Carnival Cruise Lines, Inc. (Carnival) (D).

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- Only after purchasing their tickets did D receive paper tickets containing a form contract
with a forum selection clause requiring all disputes to be brought in Florida.
 The form contract was comparable to form ticket contracts used by other cruise lines.
 The face of the ticket warned passage was subject to acceptance of the terms of the
ticket contract and P admitted having been made aware of the forum selection
clause.
o contract also contained a provision that no refunds were available for the
tickets once purchased.
- While on the cruise in international waters, Mrs. Shute fell during a tour of the ship
Holding: No; forum selection clause is prima facie valid & enforceable, even if parties did not
negotiate terms of the clause, as long as it is fundamentally fair.
- The precedent in Bremen v. Zapata  applies but must be refined to address facts of this case.
 In Bremen, the international transaction involved 2 companies from different countries
who negotiated the terms of the forum selection clause in their shipping contract &
clause was enforced as prima facie valid bc “freely negotiated, unaffected by fraud,
undue influence or overweening bargaining power.”
- However, this doesn’t mean a forum selection clause in a non-negotiated form ticket
contract is necessarily unenforceable for lack of fundamental fairness bc not negotiated.
 Here, forum selection clause is fair & enforceable even though appeared in a form
contract in P’s cruise tickets & no opportunity to negotiate terms of kx.
o The clause is fair & reasonable bc limits the fora in which P could be sued &
D passes along the resulting savings as less expensive cruise fares  P’s admit
they were on notice of the clause
 Also, FL is not an alien forum… No indication P chose Florida in bad faith to
discourage litigation bc D’s principal place of business is in FL & most
cruises depart from FL.
Dissent (Stevens, J): Regardless of whether P was on notice of forum selection clause, clause
acts as a limitation on the D’s liability for negligence by limiting the fora in which it can be sued,
& thus violates the Limitation of Vessel Owner's Liability Act
- the purpose of Act is to prevent shipowners from limiting their liability for negligence. The
traditional legal principles that prevailed before Bremen would bar enforcement of the
forum selection clause.
 First, form contracts have traditionally been reviewed with heightened scrutiny for
fairness.
 Second, contract clauses which seek to limit a passenger's ability to bring an action for
negligence have traditionally been invalidated as against public policy.
Notes:
- Colangelo: P’s waive right to sue in own forum for reduced ticket prices but who is to say
that they would waive this right if they knew,
 May have been willing to pay more for the right to sue in home court… thus,
passengers who are injured and suing are paying the cost of the reduced ticket prices
by having to waive right to sue in home court
- Court revising Bremen to give businesses more assurances to promote more businesses
 But doesn’t this turn jdx on it’s head?
- Most cases we are worried of DP rights of D
 Here reversed dynamic, worried of DP rights of P

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 o P’s right to get relief in home state jdx
- Test:
 Minimum contacts: Carnival can meet minimum contacts with Washington
o Foreseeability  marketed to state of WA so foreseeable that would be sued
there
o Purposeful availment  catering to citizens of other states so benefitted from
other forum’s market through
 Benefitted from the laws of the forum state (WA laws) by hosting gatherings
in the state (Police protections in the state)
o BUT, is stream of commerce a good metaphor?
 Yes: stream of commerce + case bc of seminars and marketing  O’Connor
theory
 You place product in stream of commerce and it injured someone
and should be liable for suit there
 No:
o Unilateral Activity: consumer taking the product out of the forum
 Consumer bought ticket and is leaving the forum (leaving WA to get on
the cruise)
 BUT, carnival knew who and where all of the conusmers on board were
going to go unlike in int. shoe
o Submission: goes to purposeful availament (same context)
 Great sovereignty example
 Talk about it from both D’s perspective and from WA state interest
 Arising out of: does the cause of action arise out of the contacts with the state?
o Yes: but for advertising/purchasing the ticket and sending the ticket to WA, the
accident would not have occurred
o No: Pro Quo  slip and fall is outside the pro-quo and once
 Prox case: they sent the ticket, everything that happened after that was
outside WA and no injury arose out of contacts with WA
 Reasonableness:
o Burden on D: if didn’t enforce the clause, would be liable everywhere the ships
went
 Burden is heavy
o Forum’s interest: P is a citizen of the forum and forum should be able to protect
citizens
o P’s interest: only place where they will be able to get relief is if they are in
 Benefits P to have jdx in WA bc can’t travel for suit in FL
o Interstate efficiency: more efficient to uphold the clause
o Shared Substantive Policies: increases predictability and efficiency
 Want P to recover but also want efficiency and to promote business

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 XI. Subject Matter Jurisdiction
EX: Burger King
- Look to FL law bc even though in federal court, looking at state law to apply
 Both federal and state courts interpret state law
o May result in inconsistency in the law bc interpreted by two bodies interpreting it
- “Fragmentation of the law”: 2 bodies interpreting the law
 Pro: One body of law may be wise than another  acts as a check on a “biased” body
of law
o Having a check is “salutary”
 Con: May result in inconsistency in the law bc interpreted by two bodies interpreting
it
- But, Presumption of Uniformity: If precedent in one system that is on point and none if
your jdx you will presume other jdx is correct
 Even state courts follow this  Not looking to only state precedent on your issue, also
looking to federal ct precedent
o If federal court decided this matter, and your state has not, you presume federal
court is correct, even though fed ct precedent is not binding on state court
- Presumption of coherence: methodologically consistent
 if other court is analogizing, take as point of analytical departure that analogy
 Don’t want multiple bodies of law treating same law differently  like cases should
be treated alike
o “equality”
Under Swift (prevailing pre-Erie)
- Diversity jdx: fd ct applies this jdx when prties are from different state
- Rule that federal courts apply in diversity jdx is state statute
 If there is state stautute, courts must apply state statute
 If not state statute, courts could apply their own general federal CL
- What law, before Erie, could the courts look to if FL law has a statute on kx?
 Federal court dealing with state kx issue applies the state statute on the issue
 Thus, in this case, pre erie, Federal court would look to FL statute on kx
- What law, before Erie, could the courts look to if FL law does not have a statute on kx?
 General Federal common law

A. Substance v. Procedure relationship:

- Should we force fed ct to apply the substantive law of the states in which they sit or should
we allow them to apply and create their own fed. CL ?
- Vertical vs. horizontal uniformity
 Vertical uniformity: as a state – want the same law to apply in the same geographical
area
 Horizontal uniformity: lots of different geo units, and want same law to apply
equally & uniformly across those geo units
 Depends on which one we prefer?

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- Can fed. Courts sitting in diversity follow own procedural rules, or must they follow state
procedural rules?
 No, fed cts apply federal procedural rules in diversity jdx
- How do we tell the difference between which rules are procedural & which are
substantive?
 Different tests to decide; depending which test you choose  different results
- Erie eliminates horizontal uniformity and overturns Swift
 Swift: want horizontal uniformity across the states in form of general federal CL
o Apply federal general CL as the substantive law for diversity jdx cases
 Erie: federal courts must apply all state’s substantive law (not just positive state
substantive law)
o In diversity cases, apply state substantive law and federal procedural law
o Apply state statutory law that applies, if it exists…
o Apply state common law, if no statutory law exists on the subject…

Erie R.R. Co. v. Tompkins (1938)

Rule: A federal court sitting in diversity must apply state substantive law, whether statutory or
common law.
Facts: While walking along the railroad tracks, Tompkins (P), a citizen of Penn, was injured by
a train owned by Erie (D).
Procedure: Tompkins sued Erie, NY company, for negligence in NY federal court.
- D: P was a trespasser & under Penn state law, D was not liable unless its conduct was
wantonly negligent
 D wants Penn law to apply  under Penn law P is a trespasser and D is not liable
- P: federal general law should apply and determine D’s duty and liability
 P is a licensee under federal law  wants federal law to apply
- Trial judge: applied the rule from Swift, holding fed courts only bound to apply state
statutory and customary law, not state common law  court applied the general Fed
common law
 Majority rule: railroad company owed a duty of ordinary care to travelers like P, the
court granted recovery for P.
- Circuit court: affirmed judgment for P; fed cts could use their discretion on matters of
general law (could apply general fed. CL)
 SCOTUS granted certiorari
Issue: Must a federal court sitting in diversity apply state common law?
- Whether Swift should be disapproved?
Holding & Reasoning (Brandeis):
- Yes. Under Swift federal trial courts exercising diversity jurisdiction were free to disregard
state law and exercise independent judgment on matters of general jurisprudence.
 The Swift had been controversial and had many judicial defects; prevented
uniformity in state administration, created uncertainty for plaintiffs and defendants,
and resulted in discrimination & unequal treatment under the law.
- To avoid injustice and further discrimination, law of the state should apply in diversity of
citizenship cases on general matters, regardless of whether it is made by its courts or its
legislature.  overrules Swift & says Penn state law should apply

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  A federal trial court exercising diversity jurisdiction must respect and enforce
state law.
o Refusing to use state law represents an unconstitutional invasion of state
autonomy and a denial of its independence.
o The Constitution does not give the federal courts the power to create a "general
federal common law." To do so would undermine the sovereignty of the state
governments. Therefore, Swift is overturned.
 Brandeis essentially saying federal general CL does not exist
Concurrence (Reid): The majority’s reasoning purports to entirely re-interpret the Constitution.
- Swift was merely erroneous, not unconstitutional.
 unlikely that without federal statutory direction, federal courts would be required to
follow state decisions.
- also doubtful that Congress does not possess the authority to declare what rules of
substantive law govern federal courts.
Dissent (Butler):The constitutional questions decided by the majority were not raised or argued,
nor were they necessary to dispose of the case.
- only questions raised by D were:
 whether its duty should have been defined by Pennsylvania common law
 whether P was contributorily negligent
 Swift doctrine has been in place “since the foundation of the government,” almost
without question
o no suggestion that Congress did not have the authority to make the rule as it was
interpreted under Swift.
 Further, by statute, the federal government has a right to intervene in any case
where the constitutionality of an act of Congress is challenged.
- The majority should have assigned the case for reargument of the constitutional issues and
permitted AG to intervene.
 Regardless, none of that should have even been considered, because under the law of
Pennsylvania and pretty much everywhere else, P was contributorily negligent.
Majority:
- 1. Drafters of section 34 did not mean what Story said; so the interpretation given to it by
the Court was erroneous (History)
 Instead, SS 34’s purpose was to make certain that in all matters except those in which
some fed law is controlling, the fed ct exercising jdx in diversity would apply as their
rules the law of the state both the positive (written) law and the unwritten law (CL)
- General fed cl was more corporate friendly than state CL  encourages forum
shopping
- Ex: corporate parties could avoid applying state CL in a suit by reincorporating under the
laws of a new state in order to establish diversity, e.g., Black & White Taxicab v. Brown &
Yellow Taxicab, 276 U.S. 518 (1928).
 Had states moving states to reincorporate to move case to fed ct so get advantage of
gen fed cl and win
 Furnishes discrimination against parties in suit with these corporations
o Creates inequality  like cases not being treated alike
 Equality is core of justice principles – without equality, law seems
illegitimate

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  Violates fundamental principal that law governs the way people adjust their
conduct
 If I don’t know how law is going to apply to behavior, no incentive to adjust
conduct to comply with the law
 creates serious inequality bc violates principle that like cases should be
treated alike (no incentive to behave and conform behavior to the law if can’t
predict how law will be treated)
2. Swift revealed defects and did not accrue the benefits expected to flow from the rule of Swift
(Draw from Experience applying Swift) have not gotten the uniform law across the states as
was expected to be the benefit from Swift, and instead are experiencing a dire need for vertical
uniformity  leads to inequality both vertically and horizontally
 Prevented uniformity and impossibility of discovering a satisfactory line of
demarcation between gen law and local led to new uncertainties
 Diversity jdx purpose: prevent apprehended discrimination in state courts against those
who were not citizens of the state
o Swift introduced grave discrimination by non-citizens against citizens
 Rights under the general law varied according to whether enforcement sought
in state or fed ct  privilege of selecting court was conferred upon non-
citizens
o In attempting to promote uniformity of law throughout US actually prevented
uniformity in administration of law of the state
3. Unless matter is governed by the federal constitution or an act of congress, law to apply in any
case is the law of the state
- General fed. CL violates Constitution
 Nothing in the constitution authorizes general federal CL  if not enumerated in
the constitution then it is reserved for the states (federalism principle)
o Creation of CL is reserved for the states & not the fed courts
 There is no federal general CL
o Congress has no power to declare substantive rules of CL applicable in a state
o Federal Courts also are not conferred such a power under the constitution
 CL as is enforced in a state is not the CL generally but the law of that state existing by
authority of that state
o In allowing fed ct to decide the cl of a state through application of general fed cl,
federal courts are invading the rights which the constitution reserves for the
states  unconstitutional assumption of power by the fed cts
 Overturning Swift and the doctrine from Swift which allows cts to apply “gen fed CL”
in diversity jdx cases in which there is no positive state law on the issue
- Enclaves: exceptions to Erie
 Admiralty
 International
- If Accident happens in state B, and lex loci delicti in State B but D at home in state A
 Erie seems to say Apply law of state B
 Not always applying the law of the state in which it is sitting, sometimes apply the law
of the state in which accident occurs (lex loci delicti)
- Conflict of law rules are state substantive for Erie purposes
 Ex: Accident occurs in state B & Fed court sits in state A

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 o Court applies law of state B bc state of lex loci delicti (state where accident
occurred)  Decided by Court in Klaxon v. Stentor
- Positivism: focuses on sovereignty
 Law is the command of a sovereign backed up by a source (must be some identifiable
source giving the law authority)
o Law as an expression of sovereign will
 Sovereign: group with absolute power
o Corollary of absolute positivism: all you need for legitimate law is the command
of a. sovereign backed up by a source (source = sanction)
RR. Swift v. Erie
- Swift  formalism + natural law
 Idea that law is a science (a product of pre-existing ordinate set of principles judges
can pull form the sky & they will do this in a uniform fashion bc law is uniform)
 “pre-exisiting body of law” that judges apply that is uniformly applied everywhere
(“all judges need to do is pull it from the sky”)
o Source: god, the universe, etc…
- Erie  positivism + realism (more positivism than realism though)
 law is not a uniform set of rules that judges will uniformly decide based on the same
law
 Law is a social construct product of human crafting tied to the judges preferences and
biases  no uniformity
o Must look at the real consequences of Swift  pretty bad did not achieve
uniformity but instead in staters are being discriminated by out of states who can
choose between federal and state law (forum shopping)

SS. Rules enabling Act: Fed courts apply their own procedural law and then apply the state
substantive law in a diversity jdx case (also passed in
 Procedure: rules of practice & procedure and rules of evidence
- Together, Erie and FRCP establish the rules for diversity jdx we have today
 FED COURT must look to state conflict of law rules
o Not always the case that fed ct applies state substantive law of the state (jdx) in
which it sits
o May apply different state’s law depending on if it’s a multi jdx dispute
 After 1938 (Erie) courts in diversity jdx required to follow own procedural rules and
substantive law of the state in which they sat
o Raised questions about what is or is not a procedural rule

Fed court applies state substantive law & federal procedural law
- If more favorable state law  argue it is substantive
- If more favorable federal law  argue it is procedural

Ex: is SOL procedural or substantive?

- Procedural: Has nothing to do with the merits of the case 
- Substantive: Affects the outcome of the case  outcome determinative (Guaranty Trust)

Guaranty Trust Co. v. York (1945)

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Rule: if the rule is outcome determinative  substantive & State law governs
- Problem: even procedural rules can be outcome determinative if a court refuses to accept a
complaint that does not comply with the rules
- Erie as a policy of proper distribution of judicial power between state and fed courts
- Intent to insure that when a fed ct exercises jdx solely bc of diversity of citizenship,
outcome of litigation in fed ct is substantially the same as if it had been tried in state court
 Suit by nonresident litigant in fed ct instead of state ct should not lead to a
substantially different result
Cohen v. Beneficial Indus. Loan Corp.
Rule: in NJ, a fed ct is bound by statute that imposes on P liability for the cost of the defense if
he is unsuccessful & requires security for payment of the cost to be given by P as condition of
maintaining suit (in a derivative shareholder’s suit)
- Statute should not be disregarded as a procedural rule
Dissent: in many cases substance and procedure are so interwoven that separation becomes near
impossible, but distinction is necessary
- Congress: power to govern procedure of fed cts in diversity
- State: power to govern over matters clearly substantive in nature

Ragan v. Merch. Transfer & Warehousse Co.

Rule: Kansas SOL not tolled by filing of complaint in fed ct bc fed ct bound to apply Kansas law
under which the SOL was not tolled until complaint was served on D
- Not the SOL itself, but how process was served that affected the outcome
 Rule 3: action is commenced by filing action with the ct  SOL begins to run when
complaint and summons are filed in court
 KS rule: to commence action must serve D  SOL begins to run when complaint and
summons are delivered to D
- Local law created the right which fed ct was asked to enforce (the life or the cause of action)
 court says KS law applies
 Court cannot give cause of action a longer life in fed ct than it would have had in state
ct without adding to cause of action
 KS law says action commenced only when D has been served with process and not
when the action is filed with the court  SOL not tolled until process is served
Woods v. Interstate Realty Co.
Rule: fed ct in Mississippi must dismiss cause of action brought by Tennessee corp that violated
the Mississippi law by doing business without properly qualifying & it was therefore barred from
maintaining suit in Mississippi courts
- A right which state law creates but does not supply with a remedy is no right at all for
purposes of enforcement in diversity case
 Where one is barred from recovery in a state court, he should likewise be barred
in fed ct

TT.Byrd Balancing Test

Byrd v. Blue Ridge
Balancing test: balance state and federal interests in determining whether to apply state
procedural law in fed ct (however: note that not sure if extends beyond right to jury trial)
- Question of whether P gets worker’s comp

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  State court does not provide right to jury trial for workers comp claims
 Fed CT, under 7th amendment, recognizes a right to jury trial
- In light of the difficulties encountered by courts with York test, SCOTUS took up Erie in
this case
 Concluded that SC’s weak interest in judicial determination of P’s employment status
was outweighed by the strong federal preference for jury trials as embodied in 7th
amendment
Rule: Rejected a rigid application of York’s outcome determinative test
- Byrd Test: Called on cts to balance competing state and federal policies, particularly where
any difference in outcome was particularly speculative have to balance interests of state
(state policy & concern) and fed…
 where there is an essential characteristic of federal system, this outweighs the interest
of the state
- in Byrd: essential characteristic is the 7th amendment right to a jury trial
 jury trial is an example of a characteristic, but not necessarily limited to the right to
jury trial
o federal procedure: entitled to jury trial
o state procedure: judge determinative if you get a jury trial
- Whether the Byrd Test extends beyond Byrd?
 We don’t know if it extends beyond right to the jury trial (court does not specify)
o If state has a competing interest, not sure if this applies… only if the state interest
is outweighed by the fed interest (bc essential characteristic)

UU. Hanna & Shady Grove

Hanna v. Plumer
- Direct conflict between state law and substantive law: if FRCP law on point &
reasonably categorized as procedure  FRCP applies & trumps state law for
procedure (only if in direct conflict with state procedure law)
Rule: where you have a direct conflict between a FRCP & a state rule such that they cannot co-
exist, the FRCP wins (FRCP trumps the state law)
Procedure:
- P: brings suit
- D: moves for SJ inadequate service of process under SS9 (MA law)
- District court: grants SJ for D bc under Ragan & Guaranty adequacy of service measured
under MA law & P had not complied
 P appeals: rule 4(d)(1) of FRCP defines the method by which service of process is to
be effected in diversity cases
- Ct App: affirmed  conflict of state and fed rule was over a substantive and not procedural
matter
Issue: whether in a civil action in fed court (sitting in diversity jdx) service of process shall be
made in manner prescribed by state law or that in Rule 4(d)(1) of FRCP  rule is now 4(e)(2)
(B)
- if MA applies  respondent prevails bc inadequate service of process
- if FRCP 4(d)(1)  litigation will continue
Holding & Reasoning: Test: whether a rule really regulates procedure

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- Procedure: judicial process for enforcing rights and duties recognized by substantive law
AND justly administering remedy and redress for disregard or infraction of them
- FRCP are presumed within SCOTUS statutory power under the Rules Enabling Act to
prescribe rules that do not abridge, enlarge, or modify any substantive right
 Rule 4(d)(1) designed to control service of process in diversity actions
o Prescribing the manner in which D is to be notified that suit is instituted against
him relates to procedure of district courts  procedural law
o Delivering notice to someone who lives at residence of D, is 18+, and of suitable
discretion
 Rule also does not abridge, enlarge, or modify any substantive right
o does not exceed congressional mandate in embodied in Rules Enabling Act &
o does not transgress constitutional bounds
- The outcome determination test from York cannot be read without reference to twins
aims of Erie:
 Discouragement of forum shopping, &
 Avoidance of inequitable administration of the law
- Difference between substantive and procedural law although both may at some point
have an effect on outcome of litigation, is that the procedural rules would be of scant, if
any, relevance to the choice of a forum
 State rule would not entirely bar recovery, instead only altered the way in which
process was served
- Erie has never been invoked to void a federal rule
 Holding is not that the Erie doctrine command the displacement of a FRCP by an
inconsistent state rule
o Instead, that the scope of the fed rule was not as broad as losing party contended
and therefore because there was no FRCP that covered the point in dispute, then
Erie commanded enforcement of state law
- Is Hanna different from Ragan?
 Ragan: rules did not conflict, could keep both the rules there bc could file in court and
this counted for purposes of filing action (so keep rule 3 for purpose of filing action)
but just needed to apply State law for purposes of when SOL beings to run
o FR is not gutted by the State law
o Do you need to serve process to D (KS law) or file notice in court (Rule 3) to toll
SOL?  Ragan
 Hanna: Here the federal rule would cease to function altogether if the state law
prevails
o State law is outcome determinative  substantive law  state law applies
 Outcome determinative bc if applies  no service of process  case
dismissed
o However, bc in direct conflict with FRCP  FRCP trumps state law and applies
- Rules Enabling Act: act allowed the courts to enable general rules of practice and
procedure with the limitations that such rules cannot abridge, enlarge, or modify any state
substantive right
 SS 7027(a)
 SS 7027(b)

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VV. Outcome Determinative Test (York)
Outcome determinative: not a litmus test, outcome determinative test must be measured in light
of the twin goals of Erie
Twin goals:
a) avoiding inequitable administration of the law, &
o Erie sought to prevent a change in …
b) preventing forum shopping
o Hanna: Service of process will not result in forum shopping bc difference
between state and fed rules would result only in altering the way in which
process was served and not the enforcement of a state created right
o Counter: does affect the enforcement of state right bc determines where a party
can proceed in litigation based on the service of process

WW. Substance vs. Procedural Tests:

1. Stevens Shady Grove Concurrence:
- Constitution gives congress the power to enact rules which are susceptible of clasifcation as
either substantive or procedural  if so, those rules are constitutional
 So long as the rule can reasonably be classified as procedural, then that rule is rational,
in that a reasonable man could characterize such rule as “procedural”  then rule is
constitutional
o judges are drafting the FRCP  OF COURSE THEYRE REASONABLE 
RULES are always going to be constitutional
 Problem: then this would result in abridging a substantive right and would always
displace state law
o The majority test would always lead to constitutionality and applicability of the
FRCP
o Stevens would be willing to strike down a FRCP if it abridges or enlarged a
substantive right bc then the rule would be unconstitutional under the Enabling
Act’s 2nd limitation
- Ct is right that just outcome determinative without more is over simplistic, but the approach
of the court is just as over simplistic
 Majority ignores that their approach will undoubtedly result in forum shopping
o Further, majority’s rule ignores the separation of powers presumption
2. Hannah Harlan Primary conduct: How we behave outside the courtroom (in regard to
litigation: service of process, conducting discovery, etc…)  substantive
o if FRCP affects substantive behavior  unconstitutional
o If a FRCP creates governance of that primary conduct, it is unconstitutional
o If FRCP on point governs primary conduct  State law applies
3. Hannah Rule: direct conflict between state and FRCP and FRCP can reasonable be
classified as reasonable  FRCP wins
4. Outcome determinative test (York): if no FRCP rule applies  state law applies
 If FRCP does apply on the point, FRCP applies if it is not outcome determinative
o IF FRCP is outcome determinative  apply state law
5. Scalia in Shady Grove: Erie’s forum shopping rationale doesn’t apply unless no FR on point
a. Hannah’s concern with forum shopping applies only to CL rules and not to
statutory rules

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 i. When FRCP applies, it trumps state CL & state positive law (written law
 statutory law)

- Erie Purposes: What law applies FRCP or state when you have a diversity case in fed
ct and arguably substantive or procedural law?
1. First look to precedent  is there a situation like this that has come up before in my
particular jdx?
2. FRCP on point conflicts with State law Hannah v. Plumer
3. Conflict between judicial interp. Of FRCP Vs. state law (substantive or procedural) 

XX. State v. FRCP

 Standard of care: State
 Conflict of Law: State
 SOL: State
 Burden of proof: State
 Burden of Pleading: FRCP
 Discovery Phys. Ex.: FRCP
 Venue Transfers & effect of Forum Selection: Federal
 Agreement to Arbitrate: State

Shady Grove v. Allstate

Facts: Shady grove provided medical services to Galvez for injuries in car accident. As partial
payment she assigned her rights to insurance benefits to Shady Grove. Policy was under Allstate
and Shady grove tendered a claim for the assigned benefits. All state had 30days (under NY law)
to pay claim or deny it  they paid but late and then refused to pay the statutory interest which
accrued on overdue benefits (2% per month)
Procedure: Shady grove: filed diversity duit in E.D. NY to recover the unpaid interest
- Allstate routinely refuses to pay interest  sought relief on behalf of itself and class of
others to whom Allstate owed interest
D.Ct: dismissed for lack of jdx
- NY law prohibits class actions in suits seeking penalties or statutory minimum damages
o Statutory interest = penalty
o NY law applies despite Rule 23
 P’s own claim is below the AOC requirement for Fed jdx in diversity
Issue: Does NY law prohibit a district court in diversity jdx from hearing a class action under
Rule 23?
Holding:
1. First: determine whether rule 23 answers question in dispute
o If it does, it governs, unless exceeds statutory authorization or congress’s rule making
power
o Do not apply Erie unless the rule is inapplicable or invalid
o The rule does answer the question in dispute and the state law directly conflicts with
it
2. Second: is rule 23 valid in that it only regulates procedure and thus does not abridge, enlarge,
or modify any substantive right?

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 o If it does  authorized by Enabling Act (Sct. 2072) and is valid in all jdx, with
respect to all claims, regardless of its incidental effect upon state created rights
Notes:
Majority Scalia: if there is a FRCP on point and this rule can reasonably be interpreted as
procedural  this rule wins (relatively equivalent to the rule in Hanna)
- Why? A FRCP is not valid in some jdx and invalid in others depending upon whether its
effect is to frustrate a state substantive law (or a state procedural law enacted for substantive
purposes)
 Compliance of a FRCP with the Enabling Act is to be assessed by consulting the rule
itself and not by its effects in individual applications
- It is not the substantive or procedural nature or purpose of the affected state law that
matters, but the substantive or procedural nature of the Federal Rule
 The validity of a FR depends entirely upon whether it regulates procedure
o If it does  authorized by SS 2072 & is valid in all jdx with respect to all claims,
regardless of its incidental effect upon state created rights
- Forum shopping is irrelevant as to determining whether or not a FRCP alters the
outcome of the case in a way that induces forum shopping
 Only worried about forum shopping when the substantive state law is applied
differently in fed courts so as to create an advantage for parties litigating in fed ct
instead of state court
o “Forum shopping is unacceptable when it comes as a consequence of judge made
rules created to fill in supposed gaps in positive federal law” (inequitable
administration of the law)
o Forum shopping concern only applies to non-rule federal law gap filling (AKA
fed CL)  relevant when fed CL (Conflicting with state law) encourages forum
shopping
 Cannot apply forum shopping bc rules of FRCP is to encourage ppl to file in fed ct
over state court bc more uniform than state courts
 Horizontal Forum Shopping: forum shopping among the several states (can choose
to bring action among many states)
o World wide VW (both Horizontal & Vertical forum shopping)
 OK state ct: Want local trial in local court
 Fed Ct:
 Vertical Forum Shopping: forum shopping between state court and federal court
o Erie & Hanna are concerned with vertical forum shopping
- Why do we not wade into Erie?
 When a Fed rule can reasonably be interpreted as procedural  that rule wins and
trumps state law
 Don’t care what state law says, don’t even look it
 If rule covers this situation and
 Only if the Fed rule is ultra vires do we pass up on the Fed Rue
- No exceptions to rule 23, it’s an across the board prescription bc congress enacted rule
23
 Allstate: there is exceptions to the rule
 Scalia: doesn’t matter, bc expressio unius, congress also enacted the exceptions to rule
23 and congress (unlike NY) has ultimate authority over the FRCP

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- It’s not up to the state law to determine whether it is like the FRCP  The court
determines this
 What matters is what the rule itself regulates
 If it governs only the manner and the means by which the litigant’s rights are enforced,
it is valid
 If it alters the rules of decision by which the court will adjudicate these rights  it is
not valid
- Not aggravating Allstate liability
 All individuals bringing suit alone would result in same liability
 Even if individual P’s would have no incentive to bring suit alone (without class
action)  this is merely incidental and not substantive bc does not alter the rules by
which the court will adjudicate the rights
nd
- 2 Circuit: rule 23 & NY law do not conflict bc address different issues
 Scalia: distinction is artificial between certifiability and eligibility is semantic
o Why is it artificial? Because both rules are doing the exact same thing
(distinction is merely semantic)
- Ginsburg: NY is damages (Remedies)  procedural but doesn’t conflict with rule 23 bc
rule 23 doesn’t command a particular remedy be available  can apply rule 23 to maintain
suit in fed ct and then apply state law for the remedies portion of the procedure in fed ct (No
conflict)
 NY law is not about maintaining suit, but its about remedies
o Looks more substantive than procedural bc parties could have brought individual
suit in state court and pursued the statutory penalty (doesn’t affect a party right to
bring suit, just affects the remedies they can pursue under class action vs.
individual suit but party can still bring suit under either just changes the damages
they pursue)
o If they chose to pursue class action  must forgo statutory damages instead and
seek actual damages or injunctive or declaratory relief
 901(b) aimed at controlling how actions must end and controlling the size of a
monetary award  remedies  procedural
 Rule 23 describes a method of enforcing the claim for relief, & governs procedural
aspects of class litigation but allows state law to control the remedy…
 Scalia: 901b says nothing about remedies, and the court cannot read into the law what
the law itself does not say  not looking at the law for its purpose, looking at the law
for what it is and mentions nothing about remedies but instead regards the bringing of
the action
o We as the court are not willing to get creative and construe the law in a way that
its not written
 Why does Scalia argue this? TEXTUALIST  EXPRESSIO UNIUS
o Concerned with judicial rulemaking bc this is subjective and fed courts do not
have the authority to interpret state laws
o Allowing judicial rule making would lead the lower courts to interpret state laws
and lead to inconsistency and potential for multiplicity of conflicting overlapping
laws which
o Either you can maintain the class action, or you Can’t  this is the only question
the NY law addresses

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  Remedies are usually viewed as procedural but Ginsburg takes an unorthodox
approach in classifying them as substantive

Stevens: Must look to state law & substantive policy—Is this law so intertwined with
substantive rights that the federal must move aside? (this would be justified by 2702(b) of
enabling act)
- Scalia’s approach ignores the 2nd limitation (SS 2702(b)) & focuses only on SS 2702(a)
- Although Scalia’s approach is simplified, the text of the Enabling Act itself does not allow
the court to do so… “courts cannot ignore text and context in the service of simplicity”

Courts will follow what they gauge to be the narrowest opinion

- Explains why most courts tend to follow the Stevens approach in Shady Grove
 Allstate: adopts 2nd circuit analysis  there is exceptions to the rule

In diversity, state substantive law and federal procedural law applies in fed ct
- becomes important to know whether rule is substantive or procedural
- depends on which test you use to determine whether its substantive or procedural
 outcome determinative test York
 Scalia Shady grove: is there a FRCP on point? Is Rule reasonably procedural? 
applies
 Stevens Shady Grove
 Ginsburg Shady grove
 Hanna: reasonably interpreted as procedural?
 Harlan: does the rule courtroom behavior or regulate primary conduct ?
o If primary conduct  strike it down
 SOL: procedural substantive distinction in conflict of laws too
o Erie  substantive
- Scalia approach on 8(a) & the plausibility requirements of a complaint
 Twombly & Iqbal  Scalia will only look for “short and plain statement”
 Everything else is a judicial interpretation of the rule which is “gap filling” that could
lead to vertical forum shopping
- Courts will follow what they gauge to be the narrowest opinion
 Explains why most courts tend to follow the Stevens approach in Shady Grove

YY. Erie question:

1. Is the federal rule procedural?
a. Apply tests to determine if procedural  reasonably interpreted as procedural? Does
it really regulate procedure?
2. Does the federal rule cover this situation?
a. If it does  FRCP rules

Diversity Jdx
- Parties of one state vs part of another state (complete diversity) @ time of removal
- Amount in Controversy: Exceeds $75k

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 XII. Federal Question Jurisdiction
Why Federal Question Jdx?
- Uniformity of federal law
- Federal interest in federal law
- Not to overburden state courts
- Expertise and specialization within the federal judges on federal law

Based on statute (28 USC SS 1331)

- Case must arise under the laws of the US
 Federal law
 US Constitution
 Treatises

Must do this:
- Well pleaded complaint: face of P’s claim must include the fed question
 Federal law must have a substantial & direct bearing on the case
o Ex: claim based directly on alleged violation of a federal statute
- Substantial = Federalism: restricted in mixed action cases to instances in which congress has
allowed private rights of action
 Merrell Dow: without express or implied federal right of action  no SS 1331 jdx
o Fed jdx demands a substantial & contested fed issue which indicates a serious fed
interest in claiming the advantages sought to be inherent in a fed forum (ex: claims that
really and substantially involve a dispute or controversy regarding the validity,
construction, or effect of fed law)
- Substantial = Supremacy Clause: whether regulatory scheme congress established is one that calls
for expertise, independence, & uniformity fed ct can provide
 Whether the presence of federal law is enough to federalize the claim under SS 1331 is a
matter of degree

A. Routes for getting into Fed Ct:

1. “Arising under federal law”  claim poses federal Q claim has fed Q jdx (EASIER TO
SATISFY)
 Holmes: the suit arises under the law that creates the cause of action
o There is a federal statute which creates the right for party to bring suit 
straightforward fed jdx
o Encompasses express & implied causes of action
 Implied: the statute itself doesn’t provide cause of action, but courts say there is a
cause of action under the provision
- Narrow interpretation: express or implied cause of action created by the fed law gives individuals
right to bring suit in fed court to enforce the rights that the federal law creates
 When fed law creates a private right of action & furnishes the substantive rules of decision,
claim arises under federal law and fed ct possesses fed question jdx under SS 1331
 If private right of action exists  private citizens can generally bring suit in state or fed ct
o Private right of action: created when a statute gives to private persons, not merely
public authorities, the power to enforce the rights created by the statute through
litigation
 Express: Statute expressly provides for this private right of action; or
 Implied: Court may conclude that such a right is implied by statute, despite
absence of explicit congressional language granting such a right

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2. Vindication of right under state law necessarily turns on federal law (HARDER to SATISFY)
 Mixed cases: State law provides the cause of action, but federal law affects liability and will
have to be adjudicated for P to prevail
o Arises under fed law if in order for P to secure relief sought, he will be obliged to
establish both correctness and applicability to his case of a proposition of fed law
o If complaint discloses need for determining the meaning or application of a fed law
 Turns on whether the federal issue is:
a. Necessary: federal issue is an essential part of P’s claim  must be adjudicated to
resolve the dispute (issue must be resolved for the resolution of the suit)
b. Substantial: federal issue is not trivial to P’s claim (strong federal interest in
resolving the issue for the uniformity of how such a law is applied)  Case specific
 claims that really and substantially involve a dispute or controversy regarding
the validity, construction, or effect of fed law
c. Balancing Division of Power: balancing the division of labor & responsibilities
between the states and the fed gov (Grable)
 Without disturbing the division between fed and state gov.

- States courts have concurrent power over all federal claims (except claims exclusive to fed jdx)
 Just bc federal statute is involved doesn’t mean you must litigate in fed ct. but you may choose
to
o Unless statute falls within exclusive judicial authority of fed cts
 This occurs when Congress explicitly provides for exclusive federal jdx & thereby
prevents state courts from adjudicating on such federal ex
 Ex: bankruptcy law, maritime law, copyright & patent

Franchise Tax Board v. Construction Laborers Vacation Trust

SCOTUS: congress had given lower fed cts jdx to hear only cases in which a well pleaded complaint
establishes either that fed law creates the cause of action or that P’s right to relief necessarily depends on
resolution of a substantial question of fed law

1. Gully: a right or immunity created by Constitution or laws of US must be an element (an essential
one) of P’s case (element of P’s prima facie case)
 Even if state law creates the cause of action, it still might arise under laws of the US if a well
pleaded complaint established that its right to relief under state law requires resolution of a
substantial question of fed law in dispute between the parties
- Holmes— American Well: suit arises under the law that creates the cause of action
 More useful for describing a district court’s original jdx

2. Smith: arose under fed law where vindication of a right under state law necessarily turns on some
construction of fed law a state law claim could give rise to fed question jdx so long as it appears
from the complaint that the right to relief depends upon the construction or application of fed law
 Homes rejected as an exclusionary principle

ZZ.Federal Q Jdx Cases:

- fed law has a substantial and direct bearing on the case
- Bender: alleging constitutional violations stemming from enforcement of ordinance restricting # of
commercial signs his establishment could display

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 - Hudson: Title 7 race discrimination filed by former employee alleging discrimination in failure to
promote, retaliation in non-selection for promotion, harassment, demotion based on race, &
discriminatory termination
- Ware: university employee brought action against uni alleging violation of age discrimination in
employment act (ADEA)
- Alder: investor in limited partnership interests in real estate tax shelters brought suit against joint
venture which syndicated and promoted sale of interests, its parent corp, and corp officers. Investors
asserted violations of Securities Exchange Act of 1934, Racketeer Influence & Corrupt Org. Act
(RICO), CL fraud, negligence, & breach of fiduciary duty

AAA. Well Pleaded Complaint Requirement: federal Q appears on the face of the “well
pleaded complaint”
- P’s claim must include the fed question (not D’s response)
 Doesn’t mean that it is actually pleaded in complaint filed with the court
- “Well-pleaded”: least P needs to include in complaint to fully state her complaint against D, without
anticipating D’s likely response to that claim
 Cannot be an anticipated defense (must be stated within P’s claim); don’t know if D actually
will bring that defense  then there’s no basis for court to assert federal jdx (concern of
efficiency)
o Ensures courts will have a live federal issue before asserting jdx
- Standing also ensures this
 Injury in Fact: invasion of legally protected interest that is concrete and particularized &
actual or imminent and not conjectural or hypothetical
 Causal Relationship between injury and complained of conduct; injury can reasonably be
traced to action of D and not resulted from independent action from some 3 rd party
 Redressable Relief: Likelihood injury will be redressed by a favorable decision prospect of
obtaining relief from injury as a result of a favorable ruling is not too speculative

Louisville & Nashville R.R. Co. v. Motley

Rule: For a suit to arise under the Constitution and laws of the United States, giving a federal court
jurisdiction to hear the case, a plaintiff must allege a cause of action based upon those laws or that
Constitution.
Holding: For federal question jdx to be granted, P’s statement must show that her original cause of action
arises under the Constitution or a federal law.
- Instead, P’s "well pleaded complaint" must state that D directly violated some provision of the
Constitution, laws or treaties of the United States reversed & remanded with instructions to
dismiss for lack of jurisdiction.
 not sufficient that P anticipates that D will raise a federal statute in defense.
Notes:
- What did P need to do to get fed jdx?If she had challenged the statute as unconstitutional in her
complaint would that have worked?
 Ultimately SCOTUS still construed the statute to uphold the railroad’s action in rescinding the
passes but only after P brought action in state court and D responded raising authority of the
statute for its actions
- Declaratory judgment act: Allows potential D’s (like railroad in Motley) to become P instead and
test whether their conduct is excused under a federal law
 But, in Skelly Oil Co v. Phillips Petroleum Co.: SCOTUS held the act did not alter jdx of fed cts
 if P’s could not plead well in fed ct neither could D’s like the railroad who did not want to
wait to be sued before determining the constitutionality of their potential defenses

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 Grable & Sons v. Darue Engineering
- Merrell Dow: without express or implied federal right of action  no SS 1331 jdx
(VINDICATION OF STATE RIGHTS ROUTE)
 Fed jdx demands a substantial & contested fed issue (necessary) which indicates a serious fed
interest in claiming the advantages sought to be inherent in a fed forum
 claims that really and substantially involve a dispute or controversy regarding the validity,
construction, or effect of fed law
- However, even when there is a disputed fed issue that is of ostensible importance to fed forum, it is
never necessarily dispositive of jdx  always subject to a possible veto
 Appropriateness of such jdx must be evaluated only after an assessment of any disruptive
threat in exercising fed jdx

BBB. Test for fed q jdx:

does a state law claim necessarily raise a stated fed issue, actually disputed and substantial, which a fed
forum may entertain without disrupting any congressionally approved balance of fed and state judicial
responsibility?
- Merrell: Not dispositive that there is no private right of action, but a factor to consider in
combination with the assessment of the effect that the grant of fed q jdx may have on the fed-state
judiciary balance as well as the federal interest of the forum in the federal issue of the applicable
federal law
- On what grounds did P challenge removal? What did D need to show to remove case to fed ct
 P takes Holmes approach  no private right of action  no way to get into fed ct
 Case presented a necessary and substantial issue of fed law 
o Only issue is did the IRS follow the procedure required under Fed law?
o SCOTUS agrees

CCC. Tribal Courts

Williamson v. Lee Optical

- More recently congress has said that states can assert jdx in certain situations
 If the state is willing to accept the burdens and responsibilities of exercising power of Native
Americans  if states are willing to integrate Natives into community then may able to
entertain suit on native Americans (reciprocal burden)
- A state may regulate a business if its legislature determines there is a particular health and safety
problem at hand and that the regulation in question is a rational way to correct the problem.
- Although OK law might be arbitrary and wasteful in many cases, it is absolutely necessary in other
cases where directions from a prescription are required for fitting glasses.
 Regardless, it is a decision for the state legislature, not the judiciary, to balance the advantages
and disadvantages of the prescription requirement.
 In conducting this balancing, the legislature could have reasonably concluded that
prescriptions are needed often enough to justify requiring them in every case where lenses are
brought to an optician. Prescriptions might not be required in every case, but this is not the test
under the Constitution for upholding the law.
o Rather, it is sufficient that there is a particular health and safety evil at hand for
correction and that the particular legislative measure is a rational way to correct it. The
legislature made a rational determination that the law is needed in the present case, and
the judgment of the district court is reversed
- Sovereignty does not always mean territory  it can also mean citizenship

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 - Constitutional Sources of Fed jdx over Tribes:
 Constitution gives fed gov. power to enter into treaties and this treaty power grants congress
exclusive and plenary power of the native tribe
 Commerce clause: congress shall have power to regulate commerce within the tribe

DDD. Removal & Remand

Removal: for D to remove a case to fed ct (from state ct) case must meet the same test for federal Q jdx
under SS 1331 (requires the same basis as it takes to bring case into fed ct) [28 USC SS 1441]

Caterpillar Inc. v. Lewis:

Rule: If federal jurisdiction is proper at the time of the judgment, then a district court's error in
prematurely removing a case from state court to federal court does not warrant vacating the verdict.
- Even if no complete diversity @ time of removal but there is complete diversity at time of
judgement  allowed even if P objects
 A dist. Ct. error in failing to remand a case that was improperly removed (even where P
objected) is not fatal as long as diversity requirements are met at the time judgement is
entered.
- Willing to overlook statutory errors where they run up against overriding considerations of finality
efficiency, and economy

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