Civ Pro Outline - Personal JD

CIVIL PROCEDURE I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. Personal JD Notice & the Opportunity to Be Heard Federal Subject-Matter JD Venue (matters of geography) Challenging Forum Selection Erie Doctrine Pleadings Joinder Discovery Pre-trial Adjudication Trial Appeal Preclusion Doctrine CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) I. Personal JD (In what state can π sue Δ?) a. In personam JD (state has power over the Δ himself b/c of a personal connection with the state) i. Statutory Sphere (a state’s statute(s) that grants JD to its courts): Is there a statutory base for in personam JD? 1. General/ubiquitous in personam JD statutes: a. Traditional bases (of Pennoyer’s 4 traditional bases) (general JD) b. Nonresident Motorist Act, invoking implied consent (See Hess v. Pawloski, specific JD). 2. Long-arm statutes – attaches to nonresidents, clawing them into their state’s courts. Typically, these are specific JD. a. “claiming the full C88al limit” (see CA & RI). b. “Laundry-list” long-arm statute “A nonresident can be sued in this state on a claim arising from Δ doing [something].” i. Injuries may be part of “tortious act”, as in Gray v. American Radiator (Ill. 1961) – very broad JDal reach, pro-π. ii. Injuries may not be part of a “tortious act”, as in Green v. Advance Ross (TX) – narrower JDal reach, pro-Δ. ii. Constitutional Standard (based on C88’s Due Process clause of 5th & 14th Amdts) 1. Federal Courts adopt the rules of State court JD; there is no such thing as a “nat’l contact test.” (DeJames v. Magnificence Carriers (1980), also FRCP 4(k)(1)(A)); exception: Statutory interpleader, 28USC§2361 allows nat’l service (beyond scope of course). 2. 4 Traditional bases of in personam JD (Pennoyer v. Neff, S.Ct. (OR) 1877) a. Presence – Π served Δ w/ process w/in the forum state (general JD) i. This likely survives Int’l Shoe, per Scalia’s plurality opinion in Burnham v. Superior Ct (of CA), 1990. 1. Prof. Levin prefers Scalia’s opinion: this is the “traditional notion[] of fair play” upon which Int’l Shoe was constructed. ii. However, Brennan’s concurrence in Burnham skips this and goes straight to Int’l Shoe’s “Min contact” test. 1. This is weak & unpredictable. 3 days in CA constitutes “minimum contact” for general JD? Exactly when does this kick in? b. Agent – Π served Δ’s agent w/ process w/in the forum (general JD) c. Δ is domiciled w/in the forum state (general JD) i. Reaffirmed in Milliken v. Meyer, 1940: “Domicile in the state is alone sufficient to [confer JD].” d. Δ consented to a state’s JD (explicitly, implicitly, or inadvertently by waiver) (general JD) i. MA’s Nonresident Motorist Act: This expands a state’s general JD w/in the Pennoyer model. Drivers consent to JD & appoint gov’t official as agent (1927, Hess v. Pawloski, though this was specific JD, per the statute). ii. Contracts: reasonable forum clauses in Ks are permissible and will be honored (Carnival Cruise Lines, 1991). 3. Add’l source of General JD: if the Δ’s tie w/ the forum state is “continuous & systematic” (Int’l Shoe dicta) a. A forum state has GenJD over a corporation where: i. Incorporated CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) ii. Principle place of business (HQ), or iii. if “that corporation’s affiliation with the State are so ‘continuous and systematic’ a to render it essentially at home in the forum state.” (Goodyear v. Brown, 2011, where NC did not have GenJD over a foreign company solely b/c an injury was felt there. Similar to Helicopteros & Daimler). 4. Minimum Contacts (Specific JD), if traditional bases cannot apply.  The court has JD if the Δ “has such minimum contacts w/ the forum so that exercise of JD does not offend traditional notions of fair play and substantial justice.” International Shoe, S.Ct. (WA) 1945  This is a discrete, 2-part test with a sliding scale, more of 1 makes up for less of the other. Burger King (MI/FL 1985) b. “Contact” Prong: Is there a relevant contact btwn the Δ and the forum state? Factors include: i. Whether Δ made “purposeful contact/availment” with the forum? (i.e. did Δ reach out to the forum in some way?) 1. Δ’s contact to the forum cannot only be from the unilateral action of a 3rd party, the π. (Walden v. Fiore, 2014, where NV resident traveled to ATL to gamble. NV lacked JD over ATL Δ). 2. Merely causing an effect in the forum is not enough! (Walden v. Fiore) 3. π need not have any connection to the forum state. Only the Δ does (Keeton v. Hustler Magazine: “a perfect application of the ‘purposeful contact’ rule,” per Prof. Levin). 4. Did Δ reach out to forum state through advertising or some other clear means? ii. Foreseeability that Δ might be sued in the forum state (Worldwide Volkswagen, 1980) 1. In WW VW, Δs did not purposely avail themselves to OK; an OK lawsuit was not foreseeable for NY Δ. iii. Relatedness – Does the π’s claim arise from the Δ’s contact w/ the forum? iv. Contractual connection (Burger King) v. “stream of commerce” (SoC) – court is split on whether SoC is enough to secure Contact (Asahi, 1987, plurality) 1. may not be enough (Asahi, O’Connor’s plurality opinion. CA must have been particularly targeted through, say, advertisement, special customer service, a dedicated 800 number, something!) 2. may be enough (Asahi, 1987, Brennan’s opinion. This goes to foreseeability) vi. Does an int’l company’s sale to all 50 states count as “Contact”? Split/plurality S.Ct., McIntyre v. Nicastro, 2011. 1. Plurality (Kennedy): NO. No JD b/c mere SoC is not enough. 2. Dissent (Ginsburg): YES, b/c they explicitly targeted “anywhere in the US.” This is ~ to targeting each state individually. Therefore, they purposely availed themselves to NJ JD. c. “Fair play & substantial justice” Prong: Is the forum so gravely difficult & inconvenient that Δ is at a severe disadvantage in litigation? (BK). Many factors come from Asahi. i. Convenience for the Δ & witnesses. 1. Burden is on the Δ to show that the forum is unC88al. Very high bar to clear! (BK did not meet it) 2. Relative wealth of parties is irrelevant; cannot inherently help the “small fry” Δ. (BK) 3. (1) Prior deals; (2) likely future relations; (3) terms of K; and (4) parties’ actual course of dealing. (BK). ii. The interest of the forum state (Asahi) 1. In Asahi, CA no longer had an interest in the case b/c the CA-party had dropped out of the litigation. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) 2. In Daimler (in Sotomayor’s concurrence): CA lacked an interest in an “Argentina-rooted” case brought by foreign πs vs. a German Δ. iii. Π’s interest in obtaining relief (Asahi) iv. “The interstate judicial system’s interest in obtaining the most efficient resolution of controversies.” (Asahi) 1. State court can stay out of int’l affairs to avoid international friction (Asahi, Daimler (Sotomayor’s concurrence), and the Iranian Shaw case). v. “The shared interest of the several States in furthering fundamental substantive social policies.” (Asahi) 5. Internet & other technological contacts a. Early days of the internet: sliding scale of interactivity (from Zippo, 1997): i. Definite contact: Δ clearly does business in forum (enters into Ks continuously…) ii. Maybe contact: Interactive websites where a user can exchange info w/ a host. iii. Definitely not contact: Δ has just posted info on the Web which is accessible in forum. b. Note: w/ online purchases, sellers often don’t know who/where the buyers are! (removes the element of Purposeful Availment). b. In rem JD (state has power/JD over Δ’s property, either real or personal) – The case is fundamentally about the property, ie, who owns it? i. Statutory Basis: 1. Does the Forum have an attachment statute (notice: long-arm statute does not apply here) permitting the attachment of a nonresident’s property. All states have this. ii. C88al basis: 1. This is simple. Is the disputed property in the forum state? 2. Minor complication: Shaffer (see below in quasi-in rem) used sweeping language that may have implied that Min.Contacts also applies to purely in-rem cases (even though it was itself a quasi-in rem case). Though technically not yet decided, likely not true. c. Quasi-in rem JD – The case is not related to the property; the property is just being used as a JDal basis to get Δ into court. It would be in personam if π could get in personam JD over the Δ. Pennoyer v. Neff would have been an in personam case, but the Δ had left the forum. i. Statutory Basis: 1. Same as for in rem (above): attachment statute. ii. C88al Basis: 1. Property must be attached at the outset of litigation (Pennoyer v. Neff, π lost only b/c he attached the property too late). 2. Quasi-in rem JD was expanded to also include intangible property: a. For quasi-in rem JD, the C88 req’s that the Δ have minimum contact w/ the forum; it’s not enough that his property just so happens to be there (Shaffer v. Heitner, 1977). i. Shaffer included sweeping language implying that Min.Contacts is always the test for everything, but Scalia’s opinion in Burnham (1990) suggests that traditional bases can still apply. b. Debt can be used as property to leverage quasi-in rem JD, and we ~ carry our debts w/ us wherever we go. Debt “clings” to the debtor; creditor’s “property” goes wherever the debtor goes. Harris v. Balk, 1905. Overruled by Shaffer v. Heitner. c. In-state bank accts can be used as a JDal basis. Pennington v. 4th Nat’l Bank, 1917 (Brandeis). Outdated b/c of Shaffer. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) d. How judgments travel (Full Faith & Credit) i. Rule: A court’s (valid!) jgmt is only good/binding to the extent that the court had JD. ii. In personam: In personam jgmts create a personal obligation on that Δ, which follows the Δ’s person and property all over the nation. 1. Even if the Δ goes interstate, the π can follow and collect. 2. If Δ has out-of-state property, π can have the sheriff seize that out-of-state property to satisfy the original jgmt. iii. In rem & quasi-in rem: The jgmt is only valid to the extent of the value of the attached property. 1. Π cannot take a quasi-/in rem jgmt to another state & expect full faith and credit. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) II. Notice & the Opportunity to Be Heard [Special Requirements that ensure Due Process & Perfect Personal JD] a. Service of Process (FRCP 4, generally) i. What is process? It is 2 documents: (1) a summons, and (2) a copy of the π’s complaint (FRCP 4(c)(1)). 1. Summons: formal notice from the court, notifying Δ of the suit. This is a symbol of the court’s power over the Δ. a. In effect, service of process is a way we perfect personal JD. ii. Who? Service can be effected by any non-party who is at least 18 yrs old, not necessarily an officer (FRCP 4(c)(2)). iii. When? Process must be served w/in 90 days of filing the complaint. If you don’t, ct will dismiss the case w/o prejudice, unless π can show good cause (FRCP 4(m)). iv. How to serve a competent, non-minor human being? FRCP 4(e)(2) gives 3 ways: 1. (A) Personal service – process is served directly to the Δ anywhere in the forum state. a. See Harry Grossman’s (shady but legal) tactics. b. However, “a jgmt procured fraudulently, as here, lacks JD & is null and void.” (Wyman v. Newhouse, 1937, in which a mistress tricked Δ into coming to FL to serve process. This was fraudulent & not recognized as valid service of process). c. Grossman is fraudulent in serving process (okay), but Wyman was fraudulent in establishing JD (not okay). 2. (B) Substituted service – Process can be (1) left at Δ’s “dwelling or usual place of abode” (2) w/ “someone of suitable age and discretion” who (3) “resides there”. a. This is typically read in a common-sense (though technical) way: Summer homes in summer time typically work. b. A person may have more than 1 residence for this purpose. (Nat’l Development Co. v. Khashoggi, 1991) Adnan Khashoggi was allowed to be served in NYC, even though he argued that his Saudi Arabia compound was his true home. c. “Suitable age” has no magic age; 16 may be okay, but 5 won’t likely be. 3. (C) Agent Service – Service of process to an authorized agent a. Agent appointed by law: See Hess v. Pawloski above. b. Agent appointed by Δ, contractually: See Szukhent (1964) – A party to a private K may appt an agent to receive service of process, even if (1) the agent is not personally known to the Δ, (2) the agent has not expressly agreed to transmit notice to the party, and (3) the agent is the wife of 1 of the π’s officials. [broad liberty to contract an agent]. 4. FRCP 4(e)(1) also allows π to serve process in any way permitted under the state law of either (1) the state in which the federal court sits, or (2) the state in which “service is made”. v. How to serve a corporation? FRCP 4(h)(1): 1. FRCP 4(h)(1)(A) also incorporates state methods under FRCP 4(e)(1) (see above). 2. FRCP 4(h)(1)(B) Process can be served on “an officer, a m’ging or gen’l agent, or any other agent authorized by appt or by law.” a. The goal is to find somebody with enough responsibility, so that we would expect him to transmit important papers. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) ii. NY read this broadly (in a π-friendly manner) by allowing a “claims adjuster” to receive process (Hellenic Challenger, 1980). 1. Prof. Levin did not agree with this: the rule is int’lly restrictive, to protect the due process rights of the Δ. vi. Waiver of Service: FRCP 4(d). [technically, this is not service of process] 1. How to request a service waiver: FRCP 4(d)(1)(1)(A-G) (Supp. pg 11) lists req’ts for service waiver. 2. Punishment to Δ for failing to waive service: FRCP 4(d)(2) Δ must pay (A) the expenses of proper service, and (B) reasonable ancillary expenses such as court costs or attorney’s fees associated w/ making proper service. 3. The goal: move away from formal service, to streamline time, cost, and formality of this procedure. vii. Where? Where can process be served? 1. For Fed.Ct, Δ can be served anywhere in the state (not just the district) in which the federal court is located, FRCP 4(k)(1)(A). 2. The Fed.Ct can also serve Δ out of state, only if permitted by the state law of the state containing the FedCt. FRCP 4(k)(1)(A). a. Notice: FedCts don’t inherently need to be limited by the state lines. We have chosen to do this. 3. 2 minor exceptions: a. “The Bulge Rule”: Process can be served out of state, even w/o state permission, as long as its w/in 100 miles of the issuing federal courthouse. However, this does not apply to original Δs; it only applies to Δs joined under FRCP 14 (3rd Party Practice/Impleader) or Rule FRCP 19 (Necessary/Indispensable Parties). FRCP 4(k)(1)(B). b. If authorized by federal statute (FRCP 4(k)(1)(C)). An example: Federal Statutory Interpleader (which is rare!). b. C88al Standard for Notice (particularly, for constructive notice) i. Leading case here is Mullane v. Central Hanover Bank (1950), which dealt w/ how to notify beneficiaries of a trust: 1. Technically, actual notice is not req’d (recall Khashoggi and Hellenic Challenger). 2. Per Prof. Freer’s podcast: “Notice must be reasonably calculated under all the circumstances to apprise the Δ of the suit.” 3. Adequate effort is req’d. π must be “reasonably certain” to have informed the affected parties, or if such notice is not reasonable, then you must sort of do your best. a. For easily-identifiable Δs, πs were req’d to sent 1st class mail to each (they were already sending mailers anyway). b. For not-easily-IDable Δs, πs were permitted to publish in the newspaper, b/c they couldn’t reasonably do better. ii. w/o requiring actual notice, some cases can slip through the cracks (Δ may not know of the suit, through no wrongdoing of their own) 1. In Dusenbery (2002), due process was not violated when the FBI mailed letters to a Δ’s prison, the warden signed for it, but Δ never got it (FBI received the receipt). This opinion passed over a dissent from Ginsburg + 3 more. iii. One must take reasonable additional steps if you have reason to know Δ failed to receive notice (Jones v. Flowers, 2006, in which certified mail was bounced back to the sender. Sender was req’d to take add’l steps). c. Special Problems w/ the “opportunity to be heard” i. Pre-jgmt seizure of property 1. The court has never been clear about how to structure this, but factors include: Case Name (ST, yr) Fuentes (FL, 1972) Mitchell (LA, 1974) Di-Chem (GA, 1975) CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) Moniker Stolen Oven/repo. Land taken in LA. Bank garnishing wages Removed by: State (sheriff) State (sheriff) State (garnished) Req’d sworn statement or evidence? No (just an assertion) Yes No Approved by Judge? No (clerk) Yes No Bond req’d? Yes Yes Yes Prior Hearing req’d? No No No Satisfies “Due Process”? NO! YES! NO! CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) III. - Federal Subject-Matter JD [In what court can π sue Δ? State or Federal?] Every single claim brought in Federal Court must have a C88al or Statutory hook/basis, b/c the C88 gives FedCts only limited Sub.matter JD. Parties cannot stipulate or otherwise get around this req’t (in Del Vecchio, 2000, both parties argued that the federal court had JD; it was still remanded) The req’t is so important that “lack of subject matter JD” is FRCP 12(b) defense with the longest lifetime. FRCP 12(h)(3). State courts can hear ~ any case (Diverse or Fed Q). Exception: FedCts have exclusive JD over a few FedQ cases (i.e. patent infringem’t, 28USC§1338). a. Diversity of Citizen (28USC§1332(a)) req’s (1) diversity of citizenship and (2) an amt in controversy that exceeds $75,000. i. Case must be btwn citizens of dif’t states (28USC§1332(a)(1)) 1. Complete diversity rule: There is no div’ty if any π shares state citizenship w/ any Δ. (Strawbridge v. Curtiss, 1806, CJ Marshall). 2. The court tests for diversity when the case is filed. (a subsequent change in citizenship is irrelevant). 3. State Citizenship of human being US Citizens a. To invoke DivJD, a human being must be a US citizen (Dred Scott v. Sandford, 1856). b. A US citizen is a state citizen of the state in which s/he is domiciled (Mas v. Perry, 1974). c. A human always has exactly 1 domicile (initially inherited from parents at birth). 2-part test: i. Where one currently resides (in WW VW, πs weren’t domiciled in AZ b/c they hadn’t gotten there yet), and ii. Where one has the subjective intent to keep a permanent home (in Mas v. Perry, students were not domiciled in their university state). 4. Alienage JD: Cases btwn US citizens and foreign citizens (who aren’t permanent residts domiciled in US) ( 28USC§1332(a)(2)) a. If there are foreign entities on both sides, there must also be US citizens on both sides (to claim Diversity JD) b. alien Permanent Residents are ~ quasi-citizens of their state of domiciliary (28USC§1332(a)(2)) c. For “dual-nationals” (ppl w/ 2 passports), only the US passport is considered; alienage JD can’t be invoked. d. Ex: Sadat v. Mertes (7th Cir. 1980) US Citizen, domiciled in Egypt can’t invoke diversity JD at all b/c: i. US citizen prevents him from invoking alienage JD, but ii. lack of state citizenship (he’s not domiciled in US) prevents invocation of diversity-of-citizenship JD! 5. State Citizenship of a Corporation (28USC§1332(c)(1)): Corporations are citizens in: a. All states in which the corporation is incorporated (can be multiple states), and/or b. The single state “where it has its principal place of business (PPB)” (can only be 1 of these). Tests for PPB: i. “Nerve center test”: PPB is where executive/corporate decision-making and overall control take place. (“suits follow the suits”). This was adopted in Hertz Corp. v. Friend (2010, unanimous S.Ct.). This is often its HQ. 1. Prof. Levin stressed this Nerve Center Test. ii. “Muscle Center” or “Place of Activity”: Where the corporation does more than anywhere else (incl manufacture) iii. “Total Activities Test”: PPB = nerve center, unless ALL of the company’s activity is in a single state. 6. State Citizenship of an unincorporated business CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) a. The business inherits citizenship from any/all of its members. (for limited p’nerships: look to both gen & limited partners) 7. When representatives sue on behalf of others a. When a rep sues on behalf of another (a decedent, infant, incompetent), the rep is deemed to adopt the citizenship of the party they represent. (28USC§1332(c)(1)). b. [this is dif’t from class actions, where citizenship is taken directly from the representative himself.] 8. Is there collusive joinder (to force a case into FedCt)? a. Parties cannot “improperly or collusively” “make or join” parties to invoke FedJD (28USC§1359). See Kramer v. Caribbean Mills (1969), in which a Panama company hired Kramer (in TX) for $1, just to sue a Caribbean Mills (a Haitian company) in US Federal Ct. Such a construction was struck down. 9. Are there nominal parties (to prevent a case from entering FedCt)? a. Courts will only focus on citizenship of real parties, not nominal/formal parties (“one who, in a genuine legal sense, has no interest in the result of the suit”). In Rose v. Giamatti (1989), π-Rose (OH) was hauled into FedCt despite his joinder of the Reds & MLB (both OH) b/c they were considered nominal parties. The rules here were strained to serve the policy concern of busting the in-state bias that favored π-Pete Rose. b. Citizenship of “fictitious” parties are not considered for purposes of removal (28USC§1441(b)) ii. Amount in controversy 1. The amt must exceed $75k, not including interest or costs (28USC§1332(a)). 2. The π’s claim governs if it’s in good faith (per St. Paul Mercury), unless it is clear to a “legal certainty” that she cannot recover that amount. [high bar!] a. Punitive damages can be included unless it is clear “beyond a legal certainty” that π would never be able to recover the JDal amount. (Del Vecchio, 2000, even though in that case, JD was not found b/c the main issue was aggregation). b. In Tongkook (1994), parties did not accurately keep track of debt actually owed (which was much lower than 1st believed) so the FedCt was sure “beyond a legal certainty” that π couldn’t recover the JDal amt. The case was remanded to state ct. i. Tongkook unwound FedJD based on facts uncovered during discovery. This is the minority view. ii. Majority view: ~ McNulty (1994), which maintained FedJD but imposed costs (per 28USC§1332(b)). 3. Π’s amt recovered is irrelevant, but if π recovers < JDal amt, the FedCt may impose Δ’s (& π’s) costs on π. (28USC§1332(b)) 4. Is aggregation (adding together 2 or more claims to get over the JDal amt) permitted? a. We can aggregate (even unrelated) claims if there is 1 π and 1 Δ (per Del Vecchio, but this was not the issue there) b. We cannot aggregate (even similar) claims if there are multiple parties on either side (in Del Vecchio, πs lacked DivJD b/c they tried to aggregate their claims). (Del Vecchio applied the “no aggregation” rule from Snyder v. Harris). i. Exception1: Aggregation among πs can be done if there is a “single indivisible harm” or claim “a common undivided interest,” as in which of 1 of 3 kids will inherit an $80k property (i.e. a single res or joint tortfeasors). ii. Exception2: 28USC§1332(d): Class Action Fairness Act: can be aggregated if sum exceeds $5MM. 5. From whose perspective is the amount calculated? [ex: an injunction that would cost Δ $80k will benefit π $50k]. Cts are split: a. Majority of cts: the JDal amt is tested by the value to the πs [the example case would lack DivJD]. b. Some cts (incl’ding Posner’s 7th Cir, of Del Vecchio) will allow the larger of either the π’s benefit or the Δ’s cost. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) b. Federal Question JD (28USC§1331: DistCt has subject matter JD of all civil actions “arising under the C88, laws, or treaties of the US.”) i. “Well-pleaded Complaint Rule”: Look only to the π’s complaint, and ask whether π’s claim “arises under” federal law (ignore windowdressing, anticipatory defenses, “artful pleading”, etc.) 1. Prof. Freer’s key inquiry: “is the π asserting/enforcing a Federal right?” a. Louisville RR v. Mottley (1908): A recent fed law had banned RRs from settling suits w/ free passes. Mottley (π) sued RR to uphold free passes! FedJD was declined, b/c π was asserting basically a “breach of K” claim; Fed law was a defense. i. Mottley rule: It is not enough that the π alleges some anticipated defense to his CoA and asserts that the defense (federal law) is unC88al. ii. Cases that are purely based on a federal CoA are easily FedQs iii. What about “arising under” cases: claims brought under state law that nonetheless turn on substantial Qs of federal law? 1. Key inquiry, from Grable v. Darue, 2005: Does a state-law claim (1) necessarily raise a stated fed issue, (2) actually disputed (3) & substantial, (4) which a fed forum may hear w/o disturbing Congress’s approved balance of fed/state judicial responsibilities? a. American Well Works v. Layne (1916, Holmes): Defamation (state) suit based on a patent infringement (fed): No fed JD b. Shoshone Mining v. Rutter (1900): A federal CoA lacked FedJD (rare) b/c the Fed law said: Right to poss. is set by local rules. Therefore, Fed CoA was overwhelmed by predominance of state-law issues. (Miners resolving land patent). c. Moore v. Chesapeake RR (1934): π violated KY’s Employer Liability Act that made violation of a Fed std a state tort. No fed JD, b/c the state tort issue predominated. d. Smith v. KC Title (1921): A state CoA did secure FedJD b/c π claimed that Δ’s securities purchase (state law) was declared to be unC88al by Congress. (π was asserting a federal right). e. Merrell Dow Pharma v. Thompson (1986): π sued Δ for Neg.per se b/c they violated Federal label statute. ~Moore, No Fed. JD b/c Fed std was only one element of a state tort. State interest predominated. f. Grable v. Darue (2005): Issue of land ownership (state issue) arose b/c the IRS seized and sold π’s land (Fed). Yes FedJD b/c (1) it answers “yes” to the key inquiry above, and (2) there is substantial Fed interest in applying tax law uniformly! c. Supplemental (supp’l) JD (28USC§1367) [seminal case: United Mine Workers v. Gibbs, 1966]  Claims that would otherwise not have Fed.Subj.MatterJD can be heard in FedCt if they arise from the same ‘common nucleus of operative facts’ (CNoOF) as a claim that has independent FedJD (either DivJD or FedQ). This is b/c these claims are part of the same “case” (Gibbs) i. Does (A) grant supplemental JD? 1. (A) A non-FedJD claim may proceed in FedCt if it accompanies a Fed claim that arises from a CNoOF. This codified Gibbs. a. Note: this also allows π to sue other Δs (see last sentence of (A)). ii. Must supplemental JD be undone? 1. (B) Supp’l JD is undone if (1) the original claim is based on DivJD, and (2) the supp’l claim is asserted by plantiffs vs parties brought in under FRCP 14 (3PP/impleader) FRCP 19 & FRCP 20 (mandatory & permissive joinder), or FRCP 24 (intervention). Codifies Kroger. iii. May supp’l JD be undone by the dist.ct? 1. (C) Supp’l JD can be undone by the ct’s discretion (from Gibbs). (C)(1-4) provide a list of reasons. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) a. (1-4) list is exhaustive; lower courts must articulate their reason for remanding a supp’l claim. Executive Software, 1994. d. Removal (28USC§§1441, 1446, 1447) [moving a case from state court to federal court?] i. Removal is a 1-way street: only from state ct to fed ct. 1. To remove, the Δ need not ask the state ct for permission. Δ need only file a notice of removal (and a bit more) in the proper federal court (28USC1446(a)). 2. Removal has its own venue provision: a case can only be removed the federal ct encompassing the state ct in which the initial claim was filed (28USC§1441(a)). ii. Is the case able to be removed? 1. Main Rule: A case can be removed if it could have been brought initially in federal court (28USC1441). a. This must be based on the “well-pleaded complaint” rule (see Mottley). Removal cannot be based on an answer. 2. Only defendants can remove (28USC§1441(a)) a. Π cannot remove based on a counterclaim made by the initial Δ (Shamrock Oil). b. A 3rd party Δ cannot remove, either (Home Depot, 2019: for removal, Δ means only “the party sued by the original π.” i. This is a very narrow interpretation of “Δ”, limiting the ability to remove cases. 3. All Δs must agree to remove in a timely fashion (Davis v. Shreveport, 2012, and 28USC§1446(b). 4. How does the ct treat 2 unrelated claims (that do not share a CNoOF)? a. Under 28USC§1441(c)(1), if you have (removeable) and (not removeable) claims, it can all be removed. Then, b. Under 28USC§1441(c)(2), once it’s all been removed, the Dist.Ct. “shall sever” the (not removeable) part, and remand it. iii. Timing: removal can only be done w/in 30 days of the case becoming removable (often when process is served). (28USC§1446(b)). CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) IV. - Venue [in which district can suit be brought?] Purpose: protect Δs from unfair trial location (π convenience is not such a relevant factor). a. States have broad discretion to design their venue rules their own way (in Burlington Northern RR v. Ford, 1992, a unanimous S.Ct. upheld Montana’s venue rules: in-state corps could only be sued in the county of their PPB, but out-of-state corps could be brought anywhere in MT). b. Basic Provisions for Federal venue (no C88al provision to this; it’s statutory) i. Was the case removed? 1. If so, proper venue is in the district embracing the state court in which the suit is pending (see 28USC§1441(a) above). ii. (Repealed: Local/transitory distinction is repealed, see 28USC§1391(a)(2)) Local action must be brought in the district where the land lies. 1. Local actions are those involving ownership, possession, or injury to land (including trespass). iii. For suits initially filed in FedCt by π (28USC§1391) – 3 dif’t ways to choose venue 1. If all Δs are residents of the same state, an action may be brought in a judicial dist in which any Δ resides (28USC§1391(b)(1)), a. What does “resident” mean? i. For human beings (incl legally permanent residents), residence is the same as domicile (28USC§1391(c)(1)). ii. For any entity-Δ: Δ “resides” in any dist. in which the Δ “is subject to the ct’s personal JD” (28USC§1391(c)(2)). 1. This is very dif’t than “citizenship”: i. For example, Ford is only a citizen of DE (incorporated) & MI (PPB), but ii. Ford resides in every dist in the US, b/c it does continuous business everywhere. 2. Suit can also be brought in any judicial dist in which a “substantial part” of the claim arose (28USC§1391(b)(2)), OR a. “substantial part” test was upheld in Bates v. C&S Adjusters (1992), where the ct ruled that “receipt of a collection notice is a substantial part of the events giving rise to a claim under the act (at bar).” 3. If a claim arises oversees – If there is no district (anywhere in the US) that may otherwise be acceptable, suit can be brought in any judicial dist in which “any Δ is subject to the court’s personal JD w/ respect to such action.” (28USC§1391(b)(3)). iv. Transfer (an intra-system move from one ct to another, ie from one state ct to another w/in the same state, or from one dist to any other) o Transferor ct: the ct from which the case is transferred. o Transferee ct: the ct to which the case is transferred. o Main Rule: A dist ct may transfer an action to another dist (1) where it might have been brought originally, or (2) to any dist to which all parties have consented (28USC§1404(a); also from Hoffman v. Blaski (TXIL transfer case). o Purpose: “For the convenience of parties and witnesses, (or) in the interest of justice” (28USC§1404(a)). o Transferee ct makes common sense; it’s the case’s center-of-gravity. Gulf Oil v. Gilbert (1947) gave us private & public factors to weight for forum non conveniens, and these are also applicable here. 1. Is the transferor ct a proper venue? a. If so, §1404(a) transfer: law of the transferor ct is applied, no matter which party transfers: CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) i. Van Dusen v. Barrack (1964), the Δ moved to transfer; law of transferor ct governs. ii. Ferens v. John Deere (1990), π moved to transfer; law of transferor ct. still governs. 1. This seems a bit unfair, b/c the π got his ideal choice of law (transferor ct) & ideal venue (transferee ct). 2. Is the transferor ct not a proper venue? a. If so, §1406(a): transferor ct’s discretion either to transfer the case to a proper venue or to dismiss the case (rare choice). c. Forum non Conveniens (FnC) – When a ct dismisses a case b/c litigation would be far more appropriate in some other court.  Δs love FnC, b/c foreign πs try to get cases into US due to our more lenient tort law (strict products liability & punitive damages).  This is a highly discretionary doctrine: o In 1984, the Iranian Shaw v. Gov’t case was not heard in NY, on political grounds. Whereas o In 1930s, a British ct agreed to hear a German case w/ a Jewish party b/c German law would have been wholly unfair. i. Is the obviously more convenient/center of gravity location for this case somewhere else? 1. Consider transfer, if that more obvious place is w/in the same system as the ct where the claim is pending (see above). ii. Is transfer unavailable (b/c it’s not w/in the same judicial system)? 1. The trial ct has discretion to dismiss the case under FnC. iii. How does a ct choose whether to dismiss under FnC? We weigh the same factors we considered under a §1404 transfer. 1. Public factors: a. What law would apply? Which community should be burdened by litigation? Etc. 2. Private Factors: a. Where are the witnesses? Where is the evidence? Etc. b. The fact that the π can’t recover the same amt elsewhere may be a factor, but it is not dispositive! (Piper v. Reyno). 3. In Piper Aircraft v. Reyno (1981), the S.Ct. decided that the case involving the Scottish plane crash belonged in Scotland, and they dismissed the case from the 3rd Cir. (in PA) under FnC. iv. What may come after a ct dismisses under FnC? 1. The ct may impose conditions on the Δ, such as waiving a statute of limitations, or personal JD objection, etc. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) V. Challenging Forum Selection (what can Δ do if they don’t like the forum chosen by π?) a. Some state (but not the fed cts) allow Special appearance: A “protective bubble” that allows a Δ to appear before ct only to challenge lack of inpersonam personal JD. During this time, process may not be served on the Δ. b. Federal System: i. When a Δ receives process, s/he has 2 choices to avoid default: 1. Answer (a pleading) w/in 20 days, or 2. Make a motion (request a court order) ii. Threshold defenses for which Δ can move (or include in the answer): FRCP 12(b): 1. (1) lack of subject-matter JD _ 2. (2) lack of personal JD 3. (3) Improper venue 4. (4) Insufficient process [rare. There was a problem w/ one of the documents] 5. (5) Insufficient service of process [the service was done improperly] (“waivable defenses”) 6. (6) Failure to state a claim upon which relief can be granted; and 7. (7) Failure to join a(n indispensable) party under Rule 19. iii. Timing matters! 1. (1) If ct determines at any time it lacks sub-matter JD, the ct must dismiss the case! FRCP 12(h)(3), also Capron v. Van Noorden. a. This is b/c sub-matter JD is an issue of the C88al allocation of power btwn Fed & state courts. This is hugely important! 2. FRCP 12(b)(2-5) must be put in the 1st Rule 12 response, otherwise, they are waived! FRCP 12(h)(1). 3. (6-7) can be raised at any time through trial. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) VI. Erie Doctrine [What do we do when a Federal Ct is presented w/ a matter of State Law?] -        Main Rule: The FedCt must apply state substantive law to cases of DivJD. (Erie v. Tomkins, 1938, Brandeis). Main Reasoning: (1) the Rules of Decision Act (28USC§1652) & by the C88 (presumably the 10th Amdt). o If a Federal law is ever valid & on-point, it trumps state law and must be applied (Supremacy Clause of the C88). o Substantive Law: Any law defining whether a party is liable, or laying out elements of a CoA (at least). o Procedure: “Procedure is the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” (from Sibbach v. Wilson, 1941) - Table of precedential examples. Substantive (i.e. state law applied) Procedural (i.e. fed Rule/law applied) Whether Δ owed a duty to π. Easy. (Erie v. Tomkins, 1938).  Interstate waterways: still subjected to Fed. common law (fed substantive Whether to apply a statute of limitations (Guaranty v. York, 1945) law). (Hinderlider v. La Plata River, 1938) When to toll/stop a statute of limitations (Walker v. Armco, 1980)  Judge-jury relationship (Byrd v. Blueridge, 1958) Matters of who shoulders the Burden of Proof (class hypo, J. Rutledge)  Allowing a judge to direct a verdict, despite contrary state law (Heron v. South Pacific). $10,000 bond req’t. (Cohen v. Beneficial, 1949) Trial ct standard of review of jury damages (Gasperini, 1996, issue 1)  $10 court filing fee (class hypo) Conflict-of-law rules that will govern a case (Klaxon v. Stentor, 1941)  Appellate ct standard of review of jury damages (Gasperini, 1996, issue 2) a. Analytical model to determine state/substantive vs. fed/procedural: i. Hanna prong: Is there a FRCP on point that directly clashes w/ state law? 1. If so, apply FRCP (Hanna v. Plumer, 1965, where π served Δ in accord w/ FRCP 4(e)(2) but not per Mass. law. FRCP won, for π). a. This is not a matter for the Rules of Decision Act, so it’s not even an Erie doctrine case! b. This is b/c of the Rules Enabling Act (28USC§2702): Valid FRCPs trump state law (no FRCP’s ever been invalidated, in part b/c they’re created by the power of the S.Ct.) (b) no FRCP may alter “any substantive right.” c. The FRCP will win as long as it is valid under §2702 & C88al, which is will be as long as it is “arguably procedural.” (very low bar!) d. …this is ~ a Supremacy Clause matter: a federal law/rule is valid over that of a state, as long as it is valid. 2. Keep in mind, the Ct may read an FRCP narrowly (to apply state law) or broadly (to apply Fed law). 2 examples: a. Narrow: In Walker v. Armco (1980) i. The Q was when to toll a SoL. Per FRCP 3, case would not be time-barred (upon filing complaint). Per OK law, it would have been (upon service of process). ii. Ct read FRCP 3 very narrowly, to apply only to when a case is commenced, not to speak to when/whether to toll the SoL! Then applied state law & dismissed the case, b/c otherwise it might be unfair/bias non-locals. iii. Values promoted: Statutes of Limitation – (1) repose (comfort for Δs) & (2) accurate decisions (witnesses die, etc) CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) b. Broad: In Burlington RR v. Woods (1987) i. Woods won a case w/ substantial damages. Per Alabama law, if Burlington lost their appeal, they must pay appellate fees + 10%. Per FRCP, Appellate ct can exercise discretion of when to dole out add’l costs. ii. These could have coexisted, but the ct ruled them to be incompatible. iii. Values promoted: We don’t want to discourage appeals in FedCt (promote justice & judicial integrity). It implicates our internal judicial procedure. c. Broad: In Sibbach v. Wilson, 1941 i. The Q was whether to require a medical examination. Although this implicated substantive rights, the majority ruled that it was a broad matter of discovery (FRCP 35), which is primarily procedural. ii. “Somewhat procedural” rules will likely be applied over state law. (Hanna stands on Sibbach). ii. Erie (“Twin-Aims,” from Hanna dicta) prong: If there’s not a fed directive on point, is the FedCt bound by state law? Or can they audible? o This is a Rules of Decision Act (28USC§1652) matter, which is an Erie concern. o Value promoted: We can’t create a bias favoring non-locals (via DivJD in FedCt) over locals (restricted to State Ct). 1. Avoidance forum-shopping (“Twin-aim” 1) a. Key inquiry: If the Fed law were adopted, would it cause litigants to flock to FedCt? If so, it’s unfair to in-state litigants! i. Ex: Gasperini v. Center for Humanities (1996), Issue 1 (whether trial ct should be able to review jury damages if they merely “deviate materially” from expectations (per NY law) or only if they “shock the conscience” (per fed)) 1. Trial ct std of review is substantive of jury damages is substantive, b/c if the more deferential fed std is adopted, πs would flock to FedCt. Unfair. 2. Avoid inequitable administration of the laws (“Twin-aim” 2) a. Is the matter outcome determinative? [can’t be read too broadly… any issue could be outcome determinative, in a way] i. If so, it’s likely to be substantive (Guaranty v. York, 1945, ruled that the state’s SoL couldn’t be waived in favor of the federal equitable doctrine of laches.) ii. SoLs are substantive b/c if they aren’t, we’re giving longer life to a CoA in FedCt than in StateCt. This would bias non-local πs over local πs. 3. Balance of State/Federal Interest a. In Byrd v. Blueridge Electric (1958), FedCt ruled that the case could be heard by a jury, despite state law that said such a case, as worker’s comp, could not be heard by a jury. i. State Interest: the state had not articulated why a judge must preside, so there was no articulated state interest. ii. Federal Interest: the Federal influence of a jury’s importance was an “affirmative countervailing consideration.” The right to a jury was not C88al here, b/c it was not incorporated by the 14th Amdt, but Brennan alluded to it as an influence/persuasive effect (even if it could not command). b. Gasperini v. Center for Humanities (1996), Issue 2 (whether appellate ct should be able to review jury damages de novo (per NY law) or with deference (per fed)) CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) i. Appellate ct std of review of jury damages is procedural (applying Fed law), b/c the FedCts have their own authority to allocate power btwn trial & appellate cts, and b/c the FedCts feel an influence from the 7 th Amdt Reexamination Clause. FedCts don’t want appellate cts intrusively reviewing jury decisions. VII. - Pleadings [Documents that parties file w/ the court & serve on each other] We now require “notice pleadings,” which are far less strict than the older common law req’t of presenting detailed facts & issue narrowing. FRCP 7(a) provides an exhaustive list of all available pleadings. Most important: (1) The complaint, (2) The answer. a. FRCP 11: Sanctions: Attorney signature/certification i. (a) Req’s an attorney to sign all non-discovery documents (discovery has an analogous, separate rule). ii. (b) This certifies that document is generated, generally, in good faith, “to the best of the (certifier’s) knowledge” and “formed after an inquiry reasonable under the circumstances.” 1. For example, maybe a complaint requested at 3pm the day before the SoL runs won’t require the same detail. iii. What does the signature certify? 1. (b)(1) the document is not for an improper purpose (harassment, cause unnecessary delay, needlessly increase litigation cost, etc) 2. (b)(2) Legal contentions are warranted by law, or present a nonfrivolous argument for changing or repealing an existing law. 3. (b)(3) Factual contentions are either supported by evidence, or are likely to be supported upon investigation. 4. (b)(4) Denials of factual contentions, ~ (b)(3), are either supported by evidence, or are likely to be supported upon investigation. iv. 3 notes about FRCP 11: 1. Sanctions are discretionary: “… the court may impose an appropriate sanction…” (FRCP 11(c)(1)). 2. Sanctions are aimed at deterrence (not punitive) & can be nonmonetary. 3. A motion for violation/sanctions is served, but not filed, per FRCP 11(c)(2). a. “Safe Harbor Rule” – Parties have 21 days to correct misstatements before the motion can be filed. i. Note: Safe Harbor Rule only limits sanctions imposed by the other party, not judge-imposed sanctions. b. The Complaint [FRCP 8]  Filing the complaint (under FRCP 3) commences the law suit. i. Every complaint must contain 3 elements, per FRCP 8(a): 1. (1) short & plain statement of the grounds for the FedCt’s subject matter JD 2. (2) short & plain statement of the claim showing that the pleader is entitled to relief, and a. Value promoted by liberal “notice pleadings”: allows cases to be heard on the merits, not be disposed of on technicalities. i. Example: Dioguardi (1944) had an almost unbelievably sparse complaint, but was upheld. b. “Specific facts are not necessary” when a party is representing themselves (pro se); complaint must only give notice. Erickson, 2007 (same month as Twombly, giving a lower bar to an inmate-π not treated for Hep-C. CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) c. “Plausibility Test”: Π must present sufficient facts in the complaint to show that a CoA is plausible (not merely conceivable), Twombly, 2007 (case was dismissed b/c π failed to assert that AT&T had behaved collusively). i. Value promoted: Cts seek to curb “fishing expedition,” especially for antitrust cases, known for extreme expense! d. Pleading must set out each necessary element. e. Exceptions: must state facts “with particularity” for claims of: i. Fraud or mistake, per FRCP 9(b), or ii. Special (abnormal) damages, per FRCP 9(g). [See the AZ case of the permanent erection]. 3. (3) a demand for the relief (it may include relief in the alternative). c. Δ’s response (the answer) – this ties to Unit V: Challenging Forum Selection. i. When a Δ is served or waives service, s/he has 2 choices to avoid default: 1. Answer (a pleading), or 2. Make a motion (request a court order) ii. Timing: when must an Answer/Motion be filed? [FRCP 12(a): “Time to Serve a Responsive Pleading”] 1. If formal process was served, Δ has 21 days from service, per FRCP 12(a)(1)(A)(i). 2. If service was waived (under FRCP 4(d)), Δ has 60 days from when π mailed waiver form to Δ, per FRCP 4(d)(3) & FRCP 12(a) (1)(A)(ii). 3. If a motion is properly filed (w/in 20 or 60 days), but denied, Δ has 10 days to file an answer. iii. An answer must contain the following, to constitute a sufficient response to the complaint: 1. Admit/deny the allegations asserted, per FRCP 8(b)(1)(B). Possible answers: a. “Admit” b. “Deny” i. Partial denial – “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.” (FRCP 8(b)(4)) c. “I do not know” – info must be beyond your control/ not public info – has the effect of a denial, per FRCP 8(b)(5). d. , governed by FRCP 8(b)(6): i. If a responsive pleading is req’d, it has the effect of an admission ii. If a responsive pleading is not req’d, it has the effect of a denial iii. If it relates to an amt of damages, it is not an admission. 2. Raise affirmative defenses, per FRCP 8(c) (long list, including SoL, Statute of Frauds, res judicata, etc). a. If Δ fails to raise affirmative defenses in a timely fashion, they waive them. (Lafont v. Decker, 1999). 3. What constitutes a denial FRCP 8(b) vs. an affirmative defense FRCP 8(c)? [important b/c the latter are waived] a. Rule/Statement of the Q: If it is a matter within the π’s case, it’s subject to denial; if it’s outside, it must be asserted by an affirmative defense (Lafont v. Decker). b. Examples: i. The assertion that a check was a gift, thereby undermining a contract’s consideration: deniable (w/in). Lafont ii. How to treat a statutory damage cap that is not flagged in the answer but is later surpassed by a jury? CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) 1. Ingraham (5th Cir. 1987): It’s an aff’v Δ. Since it wasn’t mentioned in the answer, it’s waived (for π). 2. Taylor (9th Cir. 1987): It’s an aff’v Δ b/c it’s part of the Δ’s case, but it shouldn’t come up until the matter is ripe, when damages are announced. A waiver isn’t appropriate; there should be a post-trial motion. 3. Prof. Levin’s take: full-throated support for Taylor. (an aff’v Δ that is not waived). d. Amending Pleadings [FRCP 15].  Value promoted: Ct wants parties to resolve issues on the merits (i.e. to amend pleadings), unless good reasons cut the other way.  Rule 15 has 3 parts (a, b, c) that all treat different circumstances. i. FRCP 15(a): Amendments Before Trial 1. (1) a party (π or Δ) has a right to amend their pleading once w/in 21 days after serving it. (a “mulligan”). 2. (2) in all other cases, a party may only amend either w/ opposing party’s consent or leave of court. “The ct should freely give leave when justice so req’s.” a. In Beeck v. Aquaslide (1977), ct granted the amendment, b/c “justice so required.” ii. FRCP 15(b): Amendments during & after trial (due to variance: when evidence at trial does not match what was pleaded). 1. Is there variance (evidence at trial not matching what was pleaded)? If not, you’re in the wrong section. 2. Was the variance objected to at trial? a. (1) if so, the evidence is inadmissible, but the ct “may permit the pleadings to be amended.” Moreover, the court should “freely permit an amdt” if [ability to rule on the merits] outweighs [prejudice to other party]. b. (2) if not, when an issue beyond the pleadings is tried by “the parties’ express or implied consent,” it must be treated “in all respects as it raised in the pleadings.” After trial is through, pleadings can be amended to conform to the new evidence. i. Liberal 2-part test for “Implied consent”: 1. Did non-amender receive actual notice of unpleaded matters? And 2. Did non-amender have an adequate chance to litigate the matter? ii. In Moore v. Moore (1978), a child custody case, Δ-mother asked for more than she’d pleaded for, and she got most of it b/c of implied consent. She lost alimony (no consent, b/c it’s not directly related to child custody), but she won on the related matters of custody, visitation rights, etc. iii. FRCP 15(c): Relation back of amendments (relation back: an amdt can be back-dated to the date of the original pleading) o b/c this involves claims outliving their SoL, the court cares that the Δ is on notice of this amended claim. 1. (1)(B) Claims in an amdt relate back if arising out of the conduct, transaction, or occurrence set out in the initial pleading; OR 2. (1)(C) if amdt changes party against whom the claim is asserted, so long as: [you sued wrong person, but right person knew!] a. FRCP 15(c)(1)(B) is satisfied, b. The recipient rec’d such notice of the action that it will not be prejudiced in defending on the merits, and c. The recipient knew or should’ve known the action would’ve been vs them, but for a mistake of the proper party’s ID. i. In Krupski v. Costa Crociere (2010), π mistakenly sued cruise company (named-Δ) instead of CC (proper-Δ), the actual carrier. Ct swapped in the proper-Δ and allowed the claim to relate back under (1)(C). The proper-Δ was on notice b/c, inter alia, their lawyer was the same as named-Δ’s! ii. Tease out “mistake”, w/ Examples: CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) 1. Small police dept sued for brutality. 2 unnamed officers are sued. No mistake, so no relation back. 2. Small cop dept sued for brutality. Π names “John and Jane Doe” or 2 random cops… is this sufficient? How much “good faith” is req’d to constitute a mistake? (good Q!) VIII. Joinder [be mechanical. Step 1: procedural joinder. Step 2: Fed. Subject Matter JD Always a 2-step process: (1) Is there a FRCP permitting joinder of this party/claim in FedCt? (2) if so, does that claim have Fed.Subj.MatterJD? 4 Tests for determining whether claim arises out of same “transaction or occurrence” (T/O):  Are the issues of fact and law raised by the claim and counterclaim largely the same?  Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule?  Will substantially the same evidence support or refute P’s claim as well as D’s counterclaim?  Is there any logical relation between the claim and the counterclaim? a. Claim joinder by the π (FRCP 18(a)) i. A party asserting a claim may join, as independent or alternative claims, as many claims as it has vs an opposing party. [can be unrelated!] 1. The ct has discretion to order separate trials of one or more separate issues/claims (FRCP 42(b)). ii. Π be ware: if you do not join a claim, you may be (issue/claim) precluded from bringing it in a 2nd suit. (Rush v. Maple Heights, 1958, motorcycle tort case. Π couldn’t sue for $12k of personal damage b/c π had already sued for $100 bike damage. Same T/O. Estopped.) b. Claim joinder by the Δ i. Counterclaim (a claim vs an opposing party) 1. Compulsory Counterclaim (FRCP 13(a)) [arises from same T/O] a. A pleading must state as a counterclaim any claim that “arises out of the T/O that is the subject matter of the opposing party’s claim.” FRCP 13(a)(1). Mitchell v. Bank (1932, “small potatoes” case): A 2nd suit was not permitted b/c it involved the same matters as the 1st. i. Fail-safe: FRCP 60: The ct can allow for reopening a case under new evidence, but it’s not at all favored. b. Note on JD: a compulsory counterclaim does not need independent JDal ground. It gets supplemental JD (by def’n) b/c it arose out of the same T/O (28USC§1367(a)); §1367(b) won’t remove JD b/c it only kills JD for claims brought (1) by πs, and (2) under certain rules, none of which are FRCP 13. US v. Heyward-Robinson (1970). 2. Permissive Counterclaim (FRCP 13(b)) [does not arise from same T/O] a. “A pleading may state as a counterclaim vs an opposing party any claim that is not compulsory.” b. JD Note: a permissive counterclaim req’s independent grounds for FedSubMatterJD (not same T/O). Iglesias (1969). ii. Crossclaim (a claim vs a co-party that arises out of the same T/O as the underlying claim, FRCP 13(g)) 1. Crossclaims are not compulsory. 2. In Lasa v. Alexander (1969), “Marble contract case.” Claims 1-5 ~ marble; claims 6-8 ~ tort. Majority allows (and Levin agrees) that all claims can be joined b/c they share a central Q. o o CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) a. Fail-safe: FRCP 42(b) permits the ct to separate claims if efficiency/justice call for it. 3. Note on JD: you will always have at least Supplemental JD (by def’n). See “JD Note” for compulsory counterclaim. c. Proper parties (FRCP 20(a)) – Who may be joined as co-πs or co-Δs? i. To be proper co-πs, parties must satisfy this 2-pt test: 1. Claims arise under the same T/O (FRCP 20(a)(1)(A)), AND 2. Any Q of common law or fact will arise in the action (FRCP 20(a)(1)(B)). ii. To be proper co-Δs, claims asserted all Δs must satisfy the same 2-pt test as for πs, above, given for Δs in FRCP 20(a)(2)(A-B). iii. JD Note: These are just the procedural joinder rules. FedSubjMatterJD must be determined independently. d. Necessary (Nec) and Indispensable (Indpb) Parties (FRCP 19) – Are there any absentee parties who must be joined? o Note: joint tortfeasors are not Nec parties (Temple v. Synthes, 1990. This was was not covered in class! Do not cite!) i. Is an absentee “necessary”? (FRCP 19(a)(1)) (if no, π has discretion. If yes, go to next Q) Yes, if the absentee meets any of these 3 tests: 1. (A) promotes efficiency: if the party is absent, will the ct be unable to “accord complete relief among existing parties”? a. In Bank of America v. Superior Ct of CA (1940), parties w/ claim to the same estate were deemed “Nec” (for purposes of efficiency, ie, avoid add’l suits) but not “indpb” b/c cts don’t like to dismiss cases & majority of estate was represented. b. In case law, this is not the predominant test. 2. (B)(i) Protects absentee: not incld’g the absentee “may as a practical matter impair or impede” his ability to protect his interest. a. In Warner v. PacBell (1953), Δ-phoneCo won b/c the “1st Mrs. Caryl Warner” (1st Wife) had her legal right (to be in a phonebook) implicated but was not present to defend herself. b. In Haas v. Jefferson Nat’l Bank (1971), π sued bank for shares, but bank said Glueck (Absentee) claimed ½ the shares. Absentee was Nec b/c his shares/interest were at stake here! (Absentee couldn’t be joined b/c it would destroy diversity, so case was dismissed. Note: this was appropriate b/c π could sue absentee in state ct, satisfying FRCP 19(b)(4)). 3. (B)(ii) Protects Δ: Does the absentee’s interest potentially subject Δ to multiple or “inconsistent oblications”? a. Note: this often comes up if Person A sues Company (middleman) to do something that impacts Person B. b. In Warner v. PacBell, Δ-phoneCo also won, if π won, Δ would be bound to remove 1st Wife from phonebook, but then 1st Wife (not bound by suit) could sue to enforce her right. This could subject Δ to inconsistent obligations. c. In Haas v. Jefferson Nat’l Bank (1971), π sued bank for shares, but bank said Glueck (Absentee) claimed ½ the shares. Absentee was Nec also to prevent bank from inconsistent obligations. ii. If so, is joinder of the absentee feasible? (if yes, join! If not, move to the next step) 1. Focal points of this analysis: Personal & Sub.Matter JD! 2. Joinder is not feasible if ct does not have personal JD over Absentee, or if joining Absentee would destroy SubMatter JD (Haas). iii. If not, is the absentee party “indispensable”? (If not, case may proceed, but if so, case must be dismissed. FRCP 19(b)). 1. 4 factors (FRCP 19(b)(1-4)) addressing whether “in equity or good conscience, the action should proceed” or be dismissed. a. Prof. Freer: “Courts will almost never dismiss under FRCP 19 unless there is an alternative forum.” (see (4) below). b. Incld’ing (4): whether π would have an adequate remedy if the action were dismissed for nonjoinder. (Haas: state ct) c. If, after this 3-Q analysis, case is dismissed, then the Absentee is labeled “indpb”. d. In FRCP 12(b)(7), Δ can move to have a case dismissed for failure to join Indpb parties. pg. 22 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) e. Impleader (also called “3rd Party Practice”, or 3PP) [FRCP 14] i. (a) Impleader allows original Δ to join a new Δ (3rd Party Δ, “3PΔ”), iff the 3PΔ “is or may be liable” to the original Δ for all or part of the π’s claims vs the original Δ. ii. Per Levin, FRCP 14(a) is explicitly designed to facilitate indemnification (if 100% liability) or contribution (if < 100% liability). iii. See diagram below. 1. Claim 4: impleader, for indemnification (not crossclaim, b/c 3PD was not an initial party)! a. JD check: No DivJD, but we have SuppJD, under 28USC§1367(a) by def’n (same T/O, CNoOF). Claim is okay. 2. Claim 5: permitted joinder under FRCP 14(a)(2)(D), as long as it arises from same T/O. a. JD check: same as above. Claim is okay. 3. Claim 7: permitted joinder under FRCP 14(a)(3), as long as it arises from same T/O. a. JD check: No DivJD. Although §1367(a) grants SuppJD (same T/O), §1367(b) kills SuppJD b/c it’s a claim (1) brought to FedCt by DivJD, (2) by initial π (3) against a party (3PD) joined by FRCP 14 (§1367(b) codified Kroger). Claim fails! Claim 1 Facts Underlying state matter (tort) 2 CNoOF (same T/O) 3 not CNoOF (unrelated) 4 Indemnification for #1 5 CNoOF (same T/O) 6 not CNoOF (unrelated) 7 CNoOF (as joint tortfeasor) 8 CNoOF (same T/O) Joinder Analysis N/A Mandatory counterclaim (FRCP 13(a)) Permissive counterclaim (FRCP 13(b)) Impleader (FRCP 14(a)) Impleader (FRCP 14(a) (2)(D)) Joining independent claims (FRCP 18(a)) Permitted under Impleader Rule, FRCP 14(a)(3) Mandatory counterclaim JD Analysis DivJD (assume amt in controversy) Overall: Permitted? Yes DivJD, also SuppJD Yes DivJD (SuppJD not available b/c facts are not related) No DivJD (ILL) Yes SuppJD (same T/O) No DivJD (MO) Yes SuppJD (same T/O) No DivJD (MO) No SuppJD (dif’t T/O) No Div JD (MO) No SuppJD (§1367(b) Kroger exception) No Div JD (MO) Yes Yes Yes No (no JD) (dif’t T/O) No (no JD) (same T/O, but §1367(b) π-exception) (eliminates ~artful pleading) Maybe, but not likely (no JD), but (FRCP 13(a)) pg. 23 No SuppJD (§1367(b) Kroger exception) Ct may grant immunity to π to bring CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) this claim at a dif’t time. (Some cts would permit this, to promote justice) f. Intervention – When an absentee party joins himself! (FRCP 24) i. Intervention of Right (FRCP 24(a)(2)) o This is ~ the 2nd test for a “Necessary party”, to protect Absentee’s interest (FRCP 19(a)(1)(B)(i)) o The difference: with Nec parties, the ct/Δ drags Absentee to ct; here, Absentee brings himself. 1. “On timely motion, the ct must permit” intervention by parties who can show both that the: a. Absentee’s interest can be harmed if he is not joined, and b. Absentee’s interest is not adequately represented by the current parties. 2. “Interest” (from Smuck v. Hobson, 1969: Ct permitted white parents to intervene after black parents (π) defeated Board of Education (Δ). However, Δ did not appeal (they wanted to get the heck out of court!)) a. Must balance 2 competing interests: i. Achieve judicial economies of scale (it’s in the ct’s interest to let in max # of parties to dispatch quick justice) ii. Prevent any single lawsuit from “becoming fruitlessly complex or unending.” 3. “Adequate Representation” (also from Smuck) a. Adequate representation is satisfied as long as the party has sufficient interest in full litigation, regardless of whether the motivations to litigate are the same. i. In Smuck, intervention was permitted b/c Δ had no interest in full litigation. They wanted out of court. 4. Remember to check JDal matters! Be careful with Supplemental JD (§1367(b) kills DivJD whether intervenor is π or Δ!). ii. Permissive Intervention (FRCP 24(b)(1)(B)) 1. “On timely motion, the ct may permit” intervention by parties who has “a claim or defense that shares w/ the main action a common Q of law or fact.” (we had no cases for this). 2. Per Prof. Freer, SuppJD won’t likely apply b/c permissive intervention won’t be closely enough associated w/ the underlying T/O. g. Interpleader i. Prof. Levin: “arcane and unusual.” He stressed that this was not very significant. ii. 2 types of interpleader: 1. Statutory Interpleader (§1335, §1397, §2361) a. JD requires only minimum diversity of claimants (any claimant must be diverse from any other single claimant) b. Threshold amt is $500. (these are 2 very easy thresholds). c. Also permits nation-wide service! 28USC§2361. 2. Rule Interpleader (FRCP 22) a. Only used if one can’t get statutory interpleader (if, say, all claimants share citizenship). pg. 24 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) IX. Class-Action [FRDC 23] a. 4 prereqs. FRCP 23(a) One may sue on behalf of all members only if: i. (1) Numerosity ii. (2) Commonality 1. Broad: in Marisol v. Giuliani (1997), ct granted certification even though 2 subclasses would be req’d. 2. Narrow: in Walmart v. Dukes (2011), ct denied certification b/c of lack of commonality: (1) no single corporate policy implicated and (2) “less about a common Q than the redressability of a common issue.” a. Rein in Walmart: McReynolds v. Merill Lynch (2012): class action is okay b/c there’s a single corporate policy implicated (whereas Walmart was more amorphous). iii. (3) Typicality iv. (4) Adequacy of Representation 1. General rule: cases only bind parties. Exception: in class actions, a rep represents you. Carveouts: a. Named party can’t rep a class that internally disagrees (Hansberry v. Lee, 1940, a racially rest’v cov’t wasn’t enforced). b. Gonzales v. Cassidy (1973): a rep’s decision not to appeal may indicate inadequate representation (~ FRCP 24(a)(2), in which “adequate rep” is a consideration in intervention of right, as in Smuck v. Hobson). Gonzales’s 2-prong test: i. Did the trial ct correctly determine (initially) that the rep would adequately represent the class? ii. Does it appear, after the termination of the suit, that the class rep adequately protected the interest of the class? 1. Gonzales failed prong 2, so post-jgmt collateral attack is appropriate. b. 3 dif’t paths to certification (FRCP 23(b)): i. (1) class action is req’d b/c individual suits may create bias against either: 1. (A) Δ (“establish incompatible stds”) – this requires an injunction or declaratory relief (not damages!)– or 2. (B) absentee πs (maybe a pot of $ isn’t big enough to go around?) ii. (2) “The party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief… is appropriate respecting the class as a whole.” 1. This type of class action can accommodate blanket damages, but not varied damages! It’s designed for injunctions. 2. Marisol v. Giuliani (1997) was certified here. iii. (3) Mass-damages (mass tort) – A common Q of law or fact “predominate” 1. Req’s Notice! (FRCP 23(c)(2)(B): “th ct must… includ[e] individual notice to all members who can be ID’d.” a. In Eisen v. Carlisle (1974), cert was denied b/c small-lot investor hadn’t sent notice around. Difficult balance: nonnotified parties are not likely to feel unrepresented, but otherwise, small πs could leverage enormous liability w/ ease vs Δ. i. This case is reminiscent of Mullane. 2. Req’s “opt-out” option. 3. Note: common Q cannot “predominate” if, under Erie, state law would need to be applied. Castano (mass-tort tobacco case) Q pg. 25 p pp ( ) CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) c. Subject matter JD (DivJD) i. Unless under CAFA (req’g $5MM damages), 1. “Citizenship” must be completely diverse among named parties, and 2. JD amt: claims may not be aggregated. At least 1 claim must satisfy amt-in-controversy. ii. Phillips Petroleum v. Shutts (1985, KS gasoline royalties case) reminds us that under Int’l Shoe, only Δ (not π) must have “min. contacts”. X. Discovery a. asdf XI. Pre-trial Adjudication Summary Jgmt Analysis [from Steven’s Attack outline] ASSUME: π has burden at trial. Δ is moving. Is there a dispute of material fact (π and Δ disagree on things that could change the result of the case)? If the legal theory cannot succeed, there are no “material” facts and thus no dispute! Cf. 12(b)(6). Is the dispute genuine, drawing all reasonable inferences in favor of π? YES. Go to trial. NO. Continue analysis. Did π introduce any rebuttal evidence? NO. Did π introduce enough evidence to succeed at trial? Go to trial (or π can rarely win, 56(f)(1)). Otherwise, Δ wins the case. YES. Does Δ’s evidence provide sufficient grounds for Δ to get a directed verdict? Δ wins the case. Otherwise, go to trial. ASSUME: π has burden at trial. π is moving. Is there a dispute of material fact (π and Δ disagree on things that could change the result of the case)? If the legal theory cannot succeed, there are no “material” facts and thus no dispute! Cf. 12(b)(6). Is the dispute genuine, drawing all reasonable inferences in favor of Δ? YES. Go to trial. NO. Continue analysis. Did π introduce enough evidence to succeed at trial? pg. 26 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) NO. Go to trial (or Δ can win, 56(f)(1)). YES. Did Δ introduce rebuttal evidence? NO. π wins the case. YES. Is Δ’s evidence so weak that π has grounds for a directed verdict? π wins the case. (rare) Otherwise, go to trial. XII. Trial a. asdf XIII. Appeal a. Asdf XIV. a. Asdf Preclusion Doctrine pg. 27 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) [from Kathryn Wilson’s Attack Outline] Discovery Rule 26 – Duty to Disclose; Gen Discovery Provisions [p.63] Rule 30 – Depositions by Oral Examination [p. 82] Rule 33 – Interrogatories to Parties [p. 88] Rule 35 – Physical/Mental Examinations [p. 93] Rule 36 – Request for Admission [p. 94] Rule 37 – Failure to Make Disclosure / Sanctions [p. 96] Discovery Rules General Scope Rule 26 – Discovery must be relevant to claims/defenses. (Sullivan & Cromwell)  Relevance ≠ admissibility (in certain cases) Defenses -Not relevant -Not proportional Rule 26(b)(1) - Inadmissible evidence is discoverable if it is: (Fasset) 1. Relevant 2. Proportional 3. Not privileged -Privileged -Unduly invasive Court must protect privacy interests in ordering discovery w/o denying parties essential info ( Marrese).  In camera inspection  Noninvasive discovery first Depositions A deposition will be ordered, even if it adds only a relatively small piece of evidence. ( Polycast / Deloitte)  Non-party witness may have greater protection against costly, marginally relevant discovery.  Barring depo is disfavored and unusual.  Depos are more confrontational 🡪 may prevent deponent from “shaping” answer too much. Interrogatories Interrogatory: formally written Qs an adversary is required to answer. (Leumi Financial) Defenses -High cost -Little gain Defenses -great prejudice  pg. 28 Scope determined by the pleadings. -too broad CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory)    Factual conclusions generally OK; legal opinions OK only in some (balance economy/prejudice) Court may assist parties in limiting Q that’s broad but still w/in scope. Burden may fall on requesting party to justify why issue is relevant. Rule 33(a)(2) – court may order that an interrogatory need NOT be answered until designated discovery is complete, pretrial conference or other time. Balancing Test: Court may compel answer to a legal-opinion-seeking interrogatory only if:  Economy to be achieved is greater than the  Possible prejudice to answering party. To calculate possible prejudice, courts must weigh: 1. Nature of the case 2. Knowledge of answering party 3. Amount in discovery to be completed 4. Proximity of the issue to be narrowed to central issue in the case Production of Property & Data Rule 26(b)(2)(B) – limits burden of electronic discovery w/ category: “Not Readily Accessible” Rule 34 – (parties) Producing Docs, Electronically Stored Info & Tangible Things / Land Rule 45 – (non-parties) Subpoena Rule 37 – Failure to preserve electronically stored info Defenses -High cost -Too broad -Not important -Not useful Factors to determine whether to require discovery but shift costs (Zubulake): 1. Specificity & degree of tailor of discovery request 2. Availability of info from other, more easily accessed sources 3. Cost of production v. amount-in-controversy 4. Cost of production v. available resources to each party 5. Ability of parties to control costs & incentive to do so 6. Importance of the issue(s) 7. Benefits to the parties of obtaining info Additional considerations on whether to compel a party to produce no readily accessible info:  Importance & usefulness of further info  Failure to produce relevant info that seems likely to have existed but is no longer available on easily accessed sources. Physical & Mental Examinations Rule 35 – Court may compel a party or person under legal custody (kid) to submit to examination.  Applies to both πs and ∆s Defenses -No good cause pg. 29 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory)   Person to be examined must be a party to the action Requires more than mere conclusory allegation/relevance -Not in controversy Moving Party must make an afÏrmative showing for each condition sought to be examined (Schlagenhauf): 1. Genuinely in controversy; and 2. Good cause exists a. Usefulness of info to be gained b. Pain, danger, intrusiveness of exam Requests for Admission Rule 36 – party may request adversary to admit truth of certain fact or legal Q.  Once party admits fact, it is conclusively established – unless ct allows withdrawal/amendment Rule 36(b) – Not an admission for any other purpose 🡪 can’t be used to sue party in another proceeding. Defenses -Prejudice -Does not promote adjudication on the merits Rule 36(b) – an admission can be withdrawn or amended if it: 1. Promotes deciding on the merits; and 2. Does not prejudice other party. Automatic Disclosure Rule 26(a)(1) – Initial, Required Disclosures  A party does NOT have to disclose a witness or documents it does not intend to use. Defenses -Not intended for use Work Product Defenses Rule 26(b)(3)(A) – prep materials for trial, especially attorney work, are generally NOT discoverable, unless: i. It is otherwise discoverable under 26(b)(1); and ii. Shows substantial need for materials. -No substantial need Because of Test: materials are considered to be in anticipation of litigation if they would not have been created BUT FOR the litigation. -Not relevant -Not essential -Privileged Court must protect against disclosure of: 1. Mental impressions 2. Conclusions 3. Opinions 4. Legal theories Discovery may be had where: 1. pg. 30 Relevant, non-privileged facts remain hidden in attorney files; and CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) 2. Production of those facts is essential to preparation. Policy Concerns:  Preservation of adversary system  We don’t want to disincentivize lawyers from recording thoughts  Inaccuracy & untrustworthiness concerns if we compel attorneys to release such info Sanctions Defenses -Not willful Rule 37(e) & Spoliation – destruction or alteration of evidence or failure to preserve prop for another.  Deters parties from engaging in spoliation.  Places risk of erroneous judgments on party who wrongfully created the risk.  Restores the prejudiced party to same position he would’ve been in. -Good faith -Mere oversight = to simple neg “Fault” covers: (1) willfulness, (2) bad faith and (3) gross negligence. Grossly Negligent failure to obey order compelling discovery may justify severest disciplinary measures under Rule 37.  Litigant chooses counsel at his peril.  Disregard of professional duties can lead to dismissal of client’s claim. Adjudication w/o Trial Rule 55 – Default Judgment [p. 122] Rule 56 – Summary Judgment [p. 123] Summary Judgment Rules When moving party has made a prima facie showing: To withstand MSJ, non-moving party must show specific facts giving rise to a genuine issue for trial. (Bias) Defenses -Genuine issue -Improper inferences drawn Inferences:  MSJ inappropriate where inferences must be drawn on Qs of (Cross):  Motive  Intent -Facts contradicted by record pg. 31 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory)    Subjective feelings / reactions Inferences must be viewed in light most favorable to party opposing the motion (Adicks). If only speculative – so faint a hope – judge may order MSJ (Cross).  Court cannot deny MSJ based on mere possibility it could go the other way. Evidence on the Record: court may not rely on visible fiction ( Scott) Court may not rely on a version of the facts for an MSJ that is:  blatantly contradicted by the record; and  no reasonable jury would believe it Burden of Proof:  Initial burden on moving party 🡪 must establish no “genuine issue of material fact”  Only shifts to non-moving party after moving party has met burden (Celotex).  Where nonmoving party will bear burden of proof at trial on dispositive issue, MSJ may rely on:  Pleadings  Depositions  Answers to interrogatories  Admissions on file Rule 56 – mandates summary judgment against party who: 1. Fails to establish an essential element to his case; and 2. bears the burden of proof at trial. Default Judgment Default Judgment – obtains where ∆ fails to plea or “otherwise defend” (Coulas )  NOT a default judgment where party pleads but fails to show up at trial.  Once an answer on the merits is filed and case is at issue, default judgment is not proper.  If ∆ fails to appear at trial, a judgment on the merits may be entered against him. *Levin argues court got it wrong in Coulas :  Language of Rule 55 seems to oppose its conclusion.  If anyone should get 3-day notice, it should be one who participated. For Analysis 🡪 see next page. Defenses pg. 32 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) General Inquiry: Is the MSJ’s case so strong that the court would be right to take this from the jury? Analysis: 1. Who bears the burden at trial? a. If movant:  Must support MSJ w/ materials in 56(c).  AfÏrmative showing shifts burden to non-movant to establish there is an actual genuine issue of material fact - “poking holes” in movant’s arguments 56(c)(1)(B). b. If non-movant:  Moving party must establish:  AfÏrmative evidence negating essential element of non-moving party’s claim; or  Demonstrate non-moving party’s evidence is insufÏcient to establish essential element.  Moving party must clearly show lack of sufÏcient, credible evidence.  Non-moving party may point to evidence in the record supporting their claim to defeat MSJ. 2. Did moving party overcome all inferences against them and present a prima facie case in their MSJ supported by evidence in the record? a. If no 🡪 MSJ must be denied. b. If yes… 3. Did the non-moving party provide a rebuttal? a. If no 🡪 MSJ must be granted. b. If yes… 4. Does the non-movant’s rebuttal raise a genuine issue for trial ? a. If yes 🡪 MSJ must be denied. b. If no 🡪 MSJ must be granted. The Trial Stage & Juries Rule 48 – Number of Jurors; Verdict [p. 112] Rule 49 – Special Verdict & General Verdict [p.113] Rule 50 – Judgement As A Matter of Law [p. 114] Rule 53 – Masters [p.118] pg. 33 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) Right to A Jury Trial Basis of Injunctive Relief in Fed Courts (Beacon Theater): 1. Irreparable harm 2. Inadequacy of legal remedies Jury must resolve legal issues before judge resolves equitable issues where (Beacon):  A case contains both legal and equitable claims; and  Jury trial would not provide π relief from irreparable harm. Legal v. Equitable Test (Ross): 1. Pre-merger custom 2. Remedy sought (more important inquiry) 3. Practical limitations of juries Jury trial = constitutional 🡪 must be preserved wherever possible ( Beacon)  Jury of 6 satisfies 7 Am guarantee. (Colegrove)  Class action πs may obtain a jury trial on any legal issues presented ( Ross)  7 Am guarantee extends to actions derived from statutes if effectively tort-like and seek damages (Curtis).  Either party may demand jury trial.  7 Am does NOT establish jury as the exclusive factfinder (Atlas Roofing)  Where gov’t sues in its sovereign capacity over Congressionally enacted rights, it can assign factfinding to an admin agency. th th th Rule 53 – appoints masters to assist jury in exceptional cases w/ complex issues.  Designed to preserve jury trial.  Rare for case to be too complex for a jury (DQ). Province of the Jury Q for the Jury: Deciding the meaning of a contract is a Q of fact ( Dobson)  Unless there was no evidence that would authorize the jury’s conclusions, they must stand. BUT: judges, not juries, are better suited to find the meaning of a patent term. ( Markman)  Training and experience w/ written docs  Highly technical nature of patent law claims  Need for uniformity in treatment of given patent militates in favor of court determination. Jury Misconduct y pg. 34 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) Where the real purpose and intent of the jury is clearly, sufÏciently and convincingly clear, the court may mold an informal verdict to render it formal and effective ( Robb)  Where verdict is uncertain or ambiguous, it cannot be molded. Mansfield Rule: court is barred from relying on juror’s afÏdavits ( Sopp). Reasons for Strict-Exclusion Rule: 1. Need for stability of verdicts 2. Need to protect jurors from fraud/harassment 3. Desire to prevent prolonged litigation 4. Need to prevent verdicts being set aside b/c of subsequent doubts or juror changed his mind. 5. Sanctity of the jury room. Rule: To obtain a new trial based on a juror’s mistaken, but honest, response, a party must demonstrate juror failed to (McDonough): 1. answer honestly a material question on voir dire; and a correct response would’ve provided a valid basis for a challenge for cause. Judicial Power to Override Rule 50(a): authorizes a judge – after witnesses testify and evidence is presented – to withhold from the jury and enter judgment as a matter of law if:  there is insufÏcient evidence to raise a genuine issue of fact; and  a particular result is required under governing law (i.e. “directed verdict”) Rule 50(b): authorizes judge to enter a judgment as a matter of law after issue was submitted to the jury and jury reached a verdict. (i.e. JNOV) Verdicts cannot be based on possibilities.  Where a jury’s conclusion is based on mere possibility – no by a preponderance of the evidence – JNOV is appropriate (Denman).  Verdict cannot rest on facts that contravene the laws of nature (Kircher). Judge may set aside a verdict supported by substantial evidence where (Aetna): 1. It is contrary to clear weight of evidence; or 2. It is based upon evidence which is false. Judicial Discretion: Granting/refusing a new trial is a matter resting in the discretion of the judge and is NOT reviewable, except in exceptional circumstances ( Aetna) Rule of Evidence 606(b)(1): Juror may testify about whether: 1. Extraneous prejudicial info was improperly brought to jury’s attention 2. Outside influence was improperly brought to bear upon any juror 3. There was a mistake in entering the verdict onto the verdict form. *Testimony re: statements made during deliberations generally prohibited. pg. 35 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) Binding Effects of Decisions Rule 41 – Dismissal of Actions [p. 103] Rule 15 – Amended & Supplemental Pleadings [p. 45] Claim Preclusion / Res Judicata Defenses Claim Preclusion: applies to those you bring as well as those you could have brought.  Parties have every opportunity to bring all claims and should do so.  Litigation is burdensome enough the 1 time w/o redoing it.  There is a need for certainty that comes w/ finality. -Not on the merits Prerequisites for res judicata: 1. Final judgment 2. Judgment must be “on the merits” 3. Claims must be the same in the 1 and 2 suits 4. Parties in 2 action must be the same as those in the first (or had rep in prior action) -Not a part of the same “T/O” st st nd nd “Transaction or Occurrence” Test: A party who asserted a right to relief arising out of a particular “transaction or occurrence” must join all claims she has arising from it, or omitted claims will be barred by res judicata.  Preclusion turns on the right to join the claim in OG action (i.e. was it available to π)  A claim is fundamentally based on a single transaction, including joinder ( Jones).  Judgment may be on a portion.  Cause of action = unlawful violation of a right shown by facts ( Smith)  Res judicata does NOT bar suit between same parties where:  It involves different “rights” and “wrongs”; and  Proof/evidence to sustain recovery varies materially. Adjudication “On The Merits” If party has full opportunity to litigate on the merits and chooses not to do so 🡪 res judicata baby.  Ex: ∆ never answers to the merits and loses by default.  18(a) – allows π to join virtually all claims.  15(a) – leave for amendments should be granted freely as justice so requires. -Not represented in prior class action pg. 36 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) 41(b) – a dismissal for failure to comply w/ a fed rule or court order is treated as an adjudication on the merits, unless dismissal states otherwise (Rinehart).  Usually carries claim preclusive effect b/c not actually litigated.  Most involuntary dismissals operate as adjudication on the merits 41(b) – only bars π from filing SAME claims in the SAME fed court. ( Semtek)  Erie concerns 🡪 goal is to deter forum shopping. An order dismissing for failure to state a claim which does not specify dismissal is w/o prejudice, is res judicata. ( Rinehart)  Π must convince the court to either  Dismiss w/o prejudice; or  Permit an amendment. Final Judgment: generally, until final judgment is entered, it remains too uncertain to support res judicata plea in a separate action between parties.  EXCEPTIONS:  Final judgment in a mandamus proceeding does NOT preclude a separate action for damages (Heaney).  Res judicata does NOT bar a subsequent cause of action where π unrepresented class member brings an action that overlaps w/ matter in class action suit (Bogard).  Not fair to place burden on unprotected class member.  Claim not precluded where it matures after the termination of prior claim. Balancing Test: court must weigh (Heaney): 1. Cost of repetitious, fragmented and inefÏcient litigation against 2. Society’s interest in providing a forum for the just and responsive adjudication of every claim. *Generally, claims against additional ∆s – which could have been joined but were not – are not barred by res judicata.  Π’s rights to sue separate ∆s are considered “distinct” claims.  Different parties Issue Preclusion / Collateral Estoppel Issue Preclusion: applies only to matters actually litigated and decided in an earlier suit.  Deals w/ issues already litigated that may come up in a later suit on separate events.  Both π and ∆ may invoke it.  Issue preclusion must be:  Clear / unambiguous  Necessary to the judgment. Prerequisites for Issue Preclusion: Defenses -Not actually litigated in prior suit -Not necessary to prior judgment pg. 37 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory)     Identical issue previously presented; Judgement in 1 action is (1) valid, (2) final and (3) “on the merits”; Issue was actually litigated; and Necessary / essential to the judgment st Judgment & Preclusion  Ambiguity of the issue by trier of fact should NOT create an estoppel (Russel).  Judgment must show – on its face, in the record or extrinsic evidence – that precise Q was raised and determined in prior suit. (Russel)  It is the judgment – not verdict or factual conclusions – that give preclusive effect ( Rios)  Judgment w/ 2+ issues is treated as conclusion upon all where (Patterson):  all are decided in favor of the same litigant; and  judgment rests upon them jointly. Multiple Independent Grounds – Division of Authority:  1 Restatement: When a judgment is based on alt. grounds, the judgment is determinative on both grounds.  J. Alito favors this view.  Patterson view.  2 Restatement: When there are multiple independent holdings in the first decision, the judgment is not conclusive to either issue alone.  Concern w/ uniformity and predictability st nd Non-Mutual Collateral Estoppel – allows a new party to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action.  courts have largely abandoned mutuality requirement. (Bernheard v. BoA)  It would be unjust and waste of resources to permit one who had his day in court to reopen identical issue by merely switching ∆s.  Only appropriate where party had a full and fair opportunity to litigate the issue in 1 action. (Blonder) st Defensive Nonmutual Estoppel:  Defensive use occurs when ∆ seeks to prevent π from asserting a claim π has previously litigated and lost against another ∆.  Ex: Bank asserted estoppel “defensively” to prevent π from proving an essential element of her claim.  More easily justified than offensive use of estoppel.  Usually the party being estopped is the π in the original suit and chose the forum and ∆.  Hardly seems unfair to bind π. Suit 1: π 🡪 ∆ Suit 2: π 🡪 ∆ 1 2 (π loses on issue A) (new ∆ pleads collateral estoppel to bar π from relitigating issue A) Offensive Non-mutual Estoppel: pg. 38 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) Occurs when π seeks to foreclose ∆ from litigating an issue ∆ has previously litigated unsuccessfully in a prior action w/ another party.  ∆ already had their day in court and should not be able to relitigate that issue. Court must use caution when allowing “offensive” non-mutual estoppel (Parklane):  Judicial economy  Courts do not want to encourage πs to take a “wait and see” approach.  Fairness to ∆:  ∆ did not choose the forum in the initial suit.  ∆ may not have had incentive to fully and vigorously litigate in 1 case   st Suit 1: π → ∆ Suit 2: π → ∆ 1 2 (∆ loses on issue A) (new π invokes collateral estoppel to establish issue A in her suit against ∆) *Fed courts have broad discretion to determine when offensive collateral estoppel may be applied. ( Parklane Hosiery) A judge should NOT allow collateral estoppel where (Parklane Hosiery):  Π could easily have joined/intervened in the earlier action; or  Application of offensive estoppel would be unfair to ∆. In determining the validity of a plea of res judicata, three Qs are pertinent (Parklane Hosiery):  Was the issue decided in the prior suit identical w/ the present one?  Was there a final judgment on the merits?  Was the party against whom the plea is asserted a party or in privity w/ a party to the prior suit? Claim Preclusion Analysis: (1) Are the parties in the 1 and 2 case the same? st nd (2) Did the party bring the same claim(s) as was available to them in the 1 case?  Did it arise out of the same T/O as claim in 1 case? st st (3) Was there a final, valid judgment? (4) Was the judgment “on the merits”  41(b) – All judgments are on the merits, unless based on JD, venue, or indispensable parties.  Exceptions:  Leave to amend w/o prejudice  Mandamus proceeding for $ (Heaney)  Unrepresented class member ( Bogard) pg. 39 CIVIL PROCEDURE – Spring 2020 (1L) – Prof. Levin – Notes Based on Podcast from Prof. Freer (Emory) Issue Preclusion Analysis: (1) Did the 1 case end in a valid, final judgment on the merits? (2) Was the same issue actually litigated and determined in 1 case? (3) Was the issue essential to the judgment? st st (4) Against whom is issue preclusion used?  Issue preclusion may only be used against someone who was a party or in privity to 1 case.  Due process requirement. st (5) Are the parties mutual?  If yes 🡪 issue is precluded.  If no… (6) Is the issue preclusion defensive or offensive?  Non-mutual defensive issue preclusion: person asserting it (1) was not a party in 1 case and (2) is ∆ in 2 case.  If yes 🡪 issue preclusion generally permitted. st  nd Non-mutual offensive issue preclusion: person asserting it (1) was not a party in 1 case and (2) is π in 2 case.  Could π have easily joined/intervened in 1 case?  Avoidance of πs using “wait & see” approach.  Conservation of judicial resources.  Would it be unfair to ∆ to allow collateral estoppel?  ∆’s opportunity / incentive to vigorously litigate in 1 case  ∆’s foreseeability of multiple suits  Restrictive procedural rules in 1 case  Avoidance of inconsistent judgements  Would be unfair to give conclusive effect to any one of them. st st st st nd pg. 40