Orgs.law.harvard.edu



I. Subject Matter Jurisdiction

A. Authority under applicable constitutional and statutory provisions to adjudicate the type of controversy before the court: statute must be consistent with the broad constitutional grant of subject matter jurisdiction, as congress cannot authorize more jurisdiction than the constitution allows.

B. Constitution: Article III, Section 2

1. Article III, Section 2 of the Constitution authorizes federal courts to hear cases b/w citizens of different states, commonly referred to as diversity jurisdiction, to prevent local bias; the constitutional grant is satisfied as long as there is minimal diversity between the parties, one plaintiff is a citizen of a different state than one defendant. Article III, Section 2 does not directly confer diversity jurisdiction on the federal district courts. The power of Congress to create lower federal courts includes the power to define their jurisdiction by statute. It may authorize them to hear all cases within the constitutional grant of diversity, or some, or none.

2. Article III, Section 2 authorizes courts to hear “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” According to Osborn, the Framers recognized that federal courts, created and administered by the federal government, must have the power to interpret and enforce federal law. In Osborn, the constitutional grant of federal question jurisdiction in Article III, Section 2 was broadly construed: So long as a case involves a non-frivolous issue of federal law, a “federal ingredient,” a federal court may be authorized to hear it. The power of Congress to create lower federal courts includes the power to define their jurisdiction by statute. Article III, Section 2 sets the outer limit, but Congress may authorize federal courts to hear all cases within the constitutional grant, or some, or none. Congress has authorized the federal district courts to hear some cases that arise under federal law, but not others.

C. Diversity Jurisdiction: 28 U.S.C. 1332 (a)

1. The diversity statute, 28 U.S.C. 1332, is narrower than the Article III grant. It imposes an amount in controversy requirement, determined by whether the plaintiff might recover more than $75,000 from the defendant if he wins (courts have held that a single plaintiff may aggregate separate claims against a single defendant). In addition, Strawbridge holds that the statute requires complete diversity: no plaintiff is from the same state as any defendant. 1332(a).

2. Configurations contemplated: (1) Citizens of different states (NY v. MA); (2) Citizens of State and citizens of foreign state (NY v. FR); (3) Citizens of different states and in which citizens of foreign state are parties (NY & FR v. MA & FR); (4) A foreign state and citizens of State or different states (Country of France v. NY & MA)

3. A person is a citizen of the state where he is domiciled. To be a state citizen for diversity purposes, he must be a citizen of the US (or admitted for permanent residence). Most courts hold that a person’s domicile is the last state in which he resided with intent to remain indefinitely.

4. Corporations are also held to be state citizens for diversity purposes. 28 U.S.C. 1332(c)(1) states that a corporation is a citizen of the state in which it is incorporated and the state of its principal place of business, nerve center, where the managers direct, control, and coordinate corporate activities, often headquarters under Hertz.

D. Federal Question Jurisdiction: 28 U.S.C. 1331

1. 28 U.S.C. 1331 grants jurisdiction to the federal district court over all cases “arising under the Constitution, laws or treaties of the United States.” The grant of federal question jurisdiction in 28 U.S.C. 1331 is narrower than the Osborn interpretation of the Article III, Section 2 scope of federal question jurisdiction. Under Mottley’s well-pleaded complaint rule, the court looks only to the plaintiff’s claim in determining whether a case arises under federal law.

2. In general, the Holmes test works to determine whether a case satisfies the Mottley requirement. If federal law creates the cause of action that the plaintiff seeks to enforce, the federal court has jurisdiction under 28 U.S.C. 1331. Is the plaintiff enforcing a federal right; in Mottley, the plaintiff was saying federal law did not apply. Federal question cases include cases such as those that involve federal regulatory regimes, such as Labor Law, Environmental Law, Federal Tax, Patent, and Securities Law (statutes enacted by Congress, not state legislatures)

3. If the plaintiff seeks relief on a state law cause of action, it usually does not. Cases that are not “federal question” cases but instead cases that arise under state law include contracts cases, torts cases, property cases, most criminal cases, domestic relations cases, inheritance cases, and other cases under state statutes that involve law made by the states rather than the federal government; unless the parties are diverse, such cases must be litigated in state court (state and federal courts are said to have concurrent jurisdiction over diversity cases).

4. Occasionally, a case will be held to arise under federal law even though the plaintiff seeks recovery on a state claim. In cases such as Grable v. Darue, the Supreme Court has recognized that sometimes a plaintiff will have to establish an important proposition of federal law in order to prove a state law claim.

5. Depending on the importance of the federal issue, whether federal jurisdiction would disrupt the allocation of business between state and federal courts, and other prudential factors, a court may find that the federal district court has jurisdiction over a state law claim under 28 U.S.C. 1331 (hard Erie cases where state law clashes with national interests).

6. The jurisdiction of the Supreme Court is established in Article III, Section 2. It is also regulated statutorily, but the statutes regulating the Supreme Court’s appellate jurisdiction are much broader than the federal question statute, 28 U.S.C 1331. Many state court cases involve issues of federal law, and the Supreme Court can review them, even if the federal issue is raised as a defense or in some other posture. Though such cases do not satisfy the Mottley rule, they are within the grant of appellate jurisdiction to the Supreme Court.

7. If a court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action. FRCP 12(h)(3). Subject matter jurisdiction can be raised sua sponte, by the court, or at any time by the parties. Capron.

E. Supplemental Jurisdiction: Gibbs and 28 U.S.C. 1367

1. Jurisdiction over the added state law claim(s): inquiry into whether the federal court has jurisdiction to hear the state law claim b/c of its relation to the main claim that supports federal jurisdiction

2. We are in federal court b/c of diversity or federal question jurisdiction, but there is some other claim being asserted; we must look at every claim being asserted b/c there must be federal smj over all claims: Q1 - Does each claim meet diversity or federal question jurisdiction? If one does not, try supplemental

3. Gibbs notes that the Article III grants jurisdiction over cases and posits a “same nucleus of operative fact” test for determining when the constitutional standard for getting a non-diversity, non-federal question jurisdiction claim heard is met. The Gibbs test is relevant only after federal question or diversity jurisdiction establish subject matter jurisdiction the main claim. The Gibbs test for constitutionality works in tandem with the 28 U.S.C. 1367 statutory provisions, just as Article III works in tandem with the narrowing provisions of the diversity (1332) and federal question (1331) statutes.

4. Does 1367(a) grant jurisdiction? Answer is yes if it meets Gibbs common nucleus of operative fact, same transaction or occurrence test

5. Does 1367(b) take away that grant? Applies only in diversity cases; only takes away supplemental jurisdiction claims by the plaintiffs (claim by plaintiff must meet all diversity requirements-amount in controversy and complete diversity); was not meant to expand

6. 1367(c) Courts may decline supplemental jurisdiction if state law is complex, claim substantially predominates over federal law claim, federal law claim is dismissed, or other reasons like jury confusion

F. Removal

1. Object of removal is for either party to be able to have a case heard in federal court if the case is within federal jurisdiction: If a plaintiff files a case in state court that could have been filed in federal court initially or the federal district courts have original jurisdiction, the federal removal statute allows the defendant to remove the case to federal court. 28 U.S.C. 1441. One exception is 1441(b), which bars removal of a diversity case if any defendant resides in the state in which the suit is brought. (30 days from receiving pleading or order from which it can first be determined that the case is removable 28 U.S.C. 1446(b))

2. One removal statute 28 U.S.C. 1441(a) functions as a specialized venue statute: requires removal of a state case to the federal district that covers the geographic area where the state court sits; way to get case to a different federal venue after removal is transfer

3. Removal is automatic. Even if the defendant removes a non-removable case, it will be pending in federal court once the notice of removal is filed and the state court is notified. A party who believes that the case was improperly removed or that it is not within the federal court’s subject matter jurisdiction should move in the federal court to remand the case.

4. Motion for remand or moving claim from federal to state court: Motions to remand for lack of subject matter jurisdiction may be made at any time prior to final judgment in the case. Motions based on other objections, such as a late notice of removal or failure of a co-defendant to agree to the removal, must be raised within thirty days after removal. If these non-jurisdictional objections are not asserted within this thirty-day period, they are waived.

5. Court assesses its jurisdiction as of the beginning of the case, so if the federal claims drop and parties are non-diverse, the court still has jurisdiction, but also has discretion to hear or remand state law claims to state court. Carnegie-Mellon University v. Cohill. It is likely that a court would choose to remand state law claims if the federal claim dropped out early, since there is little rationale for hearing the state claims in federal court.

6. All defendants must agree to remove. Chicago, Rock Island & Pacific Railway Co. v. Martin.

7. If plaintiff thinks that the case is not removable or that the defendant did not use the proper procedure to remove, she should move in the federal court to remand the action to the state court. 28 U.S.C. 1447(c) within 30 days of removal

II. Personal Jurisdiction

A. Authority to require the defendant to appear in the forum and defend the action there: plaintiff can sue the defendant in any state where the court has power over the defendant herself or the defendant's property. A court can exercise personal jurisdiction over a defendant only if it has the constitutional authority to do so and the relevant statute authorizes the particular exercise of pj at issue.

1. Statutory Analysis: The Constitution does not confer personal jurisdiction on the courts of a state; the state legislature does. Within constitutional bounds, states typically define the reach of personal jurisdiction in their courts through long arm statutes, which specify contacts with the state that allow their courts to assert jurisdiction over the defendant. Does the state long-arm statute permit service of process to the full extent of the constitution? A court typically does not have personal jurisdiction unless it is both granted in the long arm statute and permitted under the Constitution. Many states’ long arm statutes give the courts as much personal jurisdiction authority as the Constitution allows. Some give the courts less personal jurisdiction authority than the constitution allows; in the event that a state gives more, that grant is irrelevant as the Constitution is the supreme law of the land.

2. Constitutional Analysis: Courts usually look to the Fourteenth Amendment Due Process Clause to determine whether a particular forum should be allowed to exercise pj over a defendant. The Fourteenth Amendment applies to the states, not the federal government, and says “No State shall…deprive any person of life, liberty, or property, without due process of law…” A federal court’s power is usually limited by the Fifth Amendment Due Process Clause, which is similar to the Fourteenth Amendment, but has been interpreted to permit the federal court to exert much more pj authority than the Fourteenth Amendment permits the state courts to execute. See Republic of Panama v. BCCI Holdings (11th Circuit case discussing differences b/w Fourteenth and Fifth Amendment analyses of pj). The Fifth Amendment, however, like the Fourteenth Amendment, does not automatically confer on a court the power to exercise personal jurisdiction. Typically, a long arm provision must confer that authority. The long arm provision that applies in most federal cases is Rule 4(k)(1)(A). It states that personal jurisdiction exists over a “defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district is located.” A federal court can usually exercise pj over a defendant only if the courts of the state in which that federal court sits could do so, so the relevant question is does the Fourteenth Amendment’s Due Process clause permit personal jurisdiction this context? That is determined, first, by the state’s long-arm statute and, then, by the progeny of cases interpreting personal jurisdiction.

B. Modern in personam jurisdiction and the distinctions b/w Specific (plaintiff’s cause of action arises out of or relates to defendant’s contacts with the forum), General jurisdiction (even if plaintiff’s cause of action does not arise out of or relate to defendant’s contacts with the forum, defendant can be sued in the forum for a claim that arises anywhere in the world because of defendant’s contacts with the forum), and other categories - Glannon, Perlman, and Raven-Hansen separate domicile, transient presence (tag), and consent/ waiver, whereas some authors group those categories with general jurisdiction. After the defendant’s contacts with the forum are defined with specificity, the most lenient test to determine if a cause of action arises out of or relates to defendant’s contacts with the forum is the “but for” test:

1. But for defendant’s contacts with the forum, plaintiff would not have the current cause of action

C. Prerequisite information: In some respects, International Shoe overrules Pennoyer. After Shoe, a court can exercise pj over a defendant even if the defendant was not served within the state, was not domiciled or present in the state, and did not otherwise consent to be sued in the state. Contacts provide a new and independent basis for establishing pj that did not exist under the Pennoyer framework. At the same time, some basic principles from Pennoyer remain intact. The territorial authority of a court is still important. For example, a defendant must generally have a contact within the forum state in order to be subject to a lawsuit there. Moreover, some of the basic methods for establishing pj remain effective. For instance, personal service on an individual defendant while the defendant is within the state still supports personal jurisdiction, at least in most circumstances. Burnham. Domicile and consent also remain legitimate bases for establishing pj. Finally, the focus on a company’s “presence” and whether it is “doing business” in a state has morphed into a conceptually similar doctrine: general jurisdiction (as distinguished by Glannon, Perlman, and Raven-Hansen). So although Shoe expanded the permissible scope of a court’s pj authority, some of the underlying principles and doctrines contained in Pennoyer remain good law.

D. Specific Jurisdiction looks at (1) minimum contacts and (2) reasonableness; If a claim arises out of a defendant’s contacts, a court will very likely conclude that personal jurisdiction is established, even if some of the reasonableness factors are not satisfied.

1. World Wide Volkswagen 1980: (1) Test is not just if it is foreseeable that product would get to Oklahoma; more than foreseeability is needed. Defendant must be able to anticipate being sued in the forum because of some action it took. Purposeful availment is key; defendants did not reach out to Oklahoma, so no purposeful availment. (2) Reasonableness factors: Overall, does it make sense to bring the case here? Is plaintiff’s interest in adjudicating in the forum legitimate (especially important when plaintiff is injured) or somewhat attenuated? What is forum’s interest? Alternative forum’s interest? Inconvenience for defendant (travel, witnesses, relative wealth but was rejected in Burger King); Efficiency (the docket and if others will be encouraged to forum shop); List is clearly not finite as the cases invoke a variety of factors, i.e. Shared substantive policies (Kulko, in which court rejected jurisdiction b/c interest in family harmony)

2. Burger King 1985: Keep in mind that more than a contract is needed for purposeful availment; look to surrounding negotiations and performance. After minimum contacts were established, Supreme Court put burden on defendant to show that forum was so gravely inconvenient that defendant was at a severe disadvantage

3. Asahi 1987: (first stream of commerce case): I make valves in state A, I sell them to heater manufacturer in State B (avail myself); heater manufacturer sells to state C, D, and E (my valve is getting there but I didn't send it); my valve explodes in C, D, or E (we got no law as justices split 4 to 4 and Stevens didn't choose)

1. Brennan: it is a contact if I put the product into the stream and can reasonably anticipate that it can get to a state; I knew where he was marketing and benefited

2. O'Connor: more is needed; what Brennan said plus intent to serve state; I did something to avail myself of the forum, advertise or have an agent; if it got there with unilateral action of third party, I am not subject to personal jurisdiction in the forum

3. Reasonableness analysis in international context: “The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.” Has Congress acted to suggest there is an interest in resolving cases such as this in U.S. courts? Do the substantive interests of foreign court cut against the reasonableness of jurisdiction? In “every case” the foreign government’s interests, “as well as the Federal interest in Government’s foreign relations policies, will be best served by…an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the plaintiff or the forum State.”

E. General Jurisdiction allows a plaintiff to sue the defendant for any claims, no matter where they arose, but only if the defendant had continuous and systematic contacts with the state.

1. Continuous and systematic Contacts (Helicopteros) – “purchases and related trips, standing alone, are not a sufficient basis for a State’s assertion of jurisdiction”

2. Place of Incorporation or Principal Place of Business: first in Perkins, then in Hertz 2010 – nerve center, where the managers direct, control, and coordinate corporate activities, often headquarters

F. Alternatives to General and Specific Jurisdiction

1. Consent or Waiver

2. Domicile/Home (Milliken)

3. Transient presence or tag jurisdiction: personal service on an individual defendant while the defendant is within the state, even though claim arose outside the state (Burnham)

1. Additional question: do traditional bases exist alongside International Shoe? Court split 4-4 b/c Stevens

2. Scalia said presence when you're served is okay and you do not have to go through the International Shoe framework; this has always been good and International Shoe said minimum contacts exists along side traditional bases

3. Brennan said you always apply International Shoe; it has supplanted and replaced the traditional bases

G. Challenging Personal Jurisdiction

1. Special appearance: appear in court and raise no issue but personal jurisdiction

2. Object to pj by filing a motion to dismiss the case for lack of pj [(12(b)(2)] or by objecting to personal jurisdiction in the answer

3. Collateral challenge: fail to appear in court where plaintiff filed the original lawsuit (will result in a default judgment against defendant); plaintiff can take default judgment to a state where defendant resides or has assets (court there will typically enforce judgment under the Full Faith and Credit Act; defendant, in a collateral challenge, appears in enforcing court and contends that the original court’s judgment was invalid for lack of pj (risky: by not appearing in original court, defendant waived any opportunity to contest plaintiff’s claim on the merits, and should only be done if defendant has no defense or a weak defense, amount at issue is small relative to cost to mount a defense, and argument against pj is strong)

III. Notice

A. Even if a defendant’s contacts in a state subject her to personal jurisdiction there, the court must assert jurisdiction over her by an order to appear and defend the action. This is usually accomplished through service of process, delivery to the defendant of the initial papers in the action. Service of process (also used to refer to delivery of a court order-subpoena-to a witness to testify or provide documents—Rule 45—and to refer to delivery of copies of motions, discovery documents, and other papers generated after pleading to other parties—Rule 5) formally asserts the court’s authority over the defendant and it informs her of the case so she can prepare to defend it. Due Process Clauses in both the Fifth Amendment (applicable to federal courts) and the Fourteenth Amendment (applicable to state courts) impose constitutional constraints on methods of service of process. Below are the methods of service of process that are constitutionally sufficient to provide notice: FRCP 4’s 5 Statutory Subparts

1. process consists of a summons and a copy of the complaint; summons is a symbol of government's and hence the court's power over the defendant (FRCP 4a1)

2. service can be made by any nonparty who is 18 (FRCP 4c2)

3. service on an individual: governed by 4e2 (3 choices: personal service-walk up and hand papers to defendant anywhere; substituted service-must be at defendant's dwelling or usual abode and you must serve someone of suitable age and discretion who resides there; service on the defendant's agent-sometimes appointed by law (nonresident motorist laws, for example) and sometimes by contract; 4e1 allows service by state law method (state where court sits or state where service rendered-often where we get service by mail)

4. service on a business: 4h1 tells us we will serve an officer or a managing or general agent; does not include every employee and will vary with facts; looking for someone with sufficient responsibility that we can expect her to transmit papers; high enough to be a representative

5. waiver of service by mail: 4d; done by first class mail; send waiver form with self addressed envelope that says I waive formal service; if defendant does not return and has no good reason, process will be served and defendant will have to pay for it

B. Constitutional standard as interpreted by the Supreme Court

1. Mullane v. Central Hanover Bank: famous standard, notice must be reasonably calculated under all the circumstances to apprise the party of the proceeding; all in rule 4 are constitutional even if defendant does not get it; wife shreds papers after being served (passes Mullane)

2. Jones 2006: if you become aware that defendant did not get service, you may have to take additional action; letters kept getting returned, so something else was required to apprise defendant of proceeding

C. SMJ & PJ: Constitutional or Article III grant of subject matter jurisdiction is broad, so is the Fifth Amendment grant of personal jurisdiction. Just as the Fifth Amendment’s broad grant of personal jurisdiction to the federal government is restricted by FRCP 4(k)(1)(A), the Fourteenth Amendment, and state long-arm statutes, Congress can pass statutes that give the federal courts less than the full scope of constitutionally permissible subject matter jurisdiction; likewise, Congress cannot confer more subject matter jurisdiction or personal jurisdiction than the Constitution permits.

D. SMJ v. PJ: SMJ concerns a court’s constitutional authority to hear a case while pj is not a limitation on the court’s inherent authority, but a procedural protection for a defendant under the Fourteenth Amendment Due Process Clause; hence pj, a protection, can be waived by a defendant, but smj, which concerns constitutional authority to hear a case, cannot be waived. In function—pj tells you what state you can sue a defendant in, whereas smj tells you what court (state or federal) can hear your suit’s claims. Personal jurisdiction is over parties. SMJ is over claims.

IV. Venue

A. Venue refers to the particular court within a court system where a plaintiff can file a lawsuit. Each federal district is a distinct venue. Each state has at least one federal district court. Venue requirements exist to ensure that a case is litigated in a court that is conveniently located and has some connection to the lawsuit or to one or both of the parties.

B. Venue, PJ, and SMJ: Functionally—Personal jurisdiction gives us choices b/w states or points to a state. Subject matter jurisdiction tells us if we can go to federal court or have to go to state court. Venue tells us which court (94 federal districts and we have to lay venue in an appropriate federal district). Doctrinally—Restrictions on a plaintiff’s choice of venue are designed to ensure that the location of the suit is reasonable and convenient given the location of the evidence, the witnesses, and the defendant. Venue overlaps with personal jurisdiction in that both concepts often consider the defendant’s relationship to the forum, but venue is neither constitutionally compelled (as pj is under the Due Process Clauses of the 5th and 14th Amendments and as smj is under Article III) nor focused exclusively on the defendant’s interests. Although fairness to the defendant is a concern for venue, fairness to the defendant is pj’s primary concern; in contrast, venue statutes often require an examination of the plaintiff’s, witnesses’, and court’s connections to the case. Subject matter jurisdiction is designed to limit a court’s power to hear a particular type of dispute. Personal jurisdiction focuses on whether a state as a whole is a fair location in which to force the defendant to litigate. Venue turns on whether a particular court within a state is a convenient location for the suit.

C. Interaction w/ pj, smj, and venue in terms of waiving objections to venue. Subject matter jurisdiction limits a court’s power to hear a case. It is not a privilege or right that belongs to the parties, so the parties cannot waive it. In contrast, personal jurisdiction is a due process protection that belongs to the defendant. If the defendant decides not to take advantage of that protection, the defendant is free to do so. If a plaintiff files a case in an improper venue, that mistake does not implicate the court’s constitutional authority to hear the matter, as smj does). Rather, the filing of a case in an improper venue means that the case was filed in a court that the legislature has determined to be inconvenient or inefficient for the parties or the court. In this sense, venue offers protection to the parties, making it more like pj. A party is considered to waive a motion to dismiss for lack of proper venue unless the motion is made at an appropriate time. Rules 12(g)-(h).

D. Basic Venue Provisions – 28 U.S.C. 1391(a) and (b): State statutes tend to authorize venue more expansively than the federal venue statute in that many authorize venue on the basis of the plaintiff’s residing there. For federal: 28 U.S.C. 1391 (a) and (b): (a) for diversity and (b) for federal question; they boil down to the same; lay venue in any district where all defendants reside; if all defendants reside in same state, we can lay venue in any district where one of them resides (defendants will not be greatly inconvenienced if they reside there and objectives of venue are served—convenience and forum interest in deciding when its residents are involved—subsection 1); can lay venue in any district in which a substantial part of the claim arose (evidence and witnesses are likely to be located here and objectives of venue are served—likely an efficient and convenient forum for the lawsuit and forum generally has an interest in deciding when something takes place in the forum)

1. What does reside mean? Human resides in district where domiciled; businesses - 1391(c) says businesses reside in all districts where they are subject to personal jurisdiction when the case is filed

2. (a)(3) and (b)(3) almost never apply, come up usually when claim arises overseas. If this happens; plaintiff may be forced to pursue claim separately as it will usually occur when there is more than one defendant, and it becomes impossible to get pj in one place against all. Subsection (a)(3) will make venue proper anywhere one defendant is subject to pj whereas (b)(3) requires that one defendant “may be found” there; this limit has been overcome by many courts interpreting (a)(3) and (b)(3) to authorize venue anywhere one defendant is subject to pj b/c there does not appear to be any reason for the difference in treatment (regardless, the pj problem likely remains for one of the defendants)

3. One can consent to or waive requirements for a proper venue

4. Constraints on pj and venue can restrict a plaintiff’s choice of courts in which to file a suit. Parties in commercial transactions avoid problems about forum choice by agreeing in advance that suits involving the transaction may or must be brought in a particular state or court, forum selection clause. Generally enforced if they bear a reasonable relation to the parties or their contact.

5. 1391 (a) and (b) say “except as otherwise provided by law” and this matters b/c specialized venue statutes: 28 U.S.C. 1402 for tort claims against the federal government can be brought where plaintiff resides or where incident at issue occurred; copyright and patent 28 U.S.C. 1400(a) and (b); Employment discrimination (Title VII) may be brought… 42 U.S.C. 2000e-5(f)(3) (p371)

6. Certain specialized statutes are exclusive meaning they replace general provisions of 1391, whereas some are supplemental in that they authorize venues in addition to 1391

7. One removal statute 28 U.S.C. 1441(a) functions as a specialized venue statute: requires removal of a state case to the federal district that covers the geographic area where the state court sits; way to get case to a different federal venue after removal is transfer

E. Transfer of venue: from one federal district to another (different than removal); original federal court is called transferor; court to which it transfers is the transferee; for both statutes, transferee must be a proper venue and have pj over defendant; these must be independently true without waiver by defendant (can't waive for transfer purposes); had to have been able to bring it there initially

1. 1404(a) applies when transferor is a proper venue; we can transfer based on convenience for parties and witnesses and interests of justice: looking for whether the other court is center of gravity (public and private interest factors say other place makes more sense); also other place is place where case could have been brought initially (that cannot be waived)

2. 1406(a) applies when transferor is an improper venue; court can transfer if it is in the interests of justice or dismiss the case; usually it is in the interests of justice to transfer a case when there is another federal venue where the case could have been brought.

3. forum nonconveniens: where a court dismisses b/c there is another court that makes more sense but transfer is impossible; court is in a different judicial system; in state court in Alabama and better court is state court in Kansas; usually this comes up when a foreign country is involved or state to federal or federal to state

4. for forum nonconveniens, alternate forum must be able to provide an adequate remedy to the plaintiff (remedy that is consistent with basic notions of fairness); same private and public interest factors apply) even thought award was significantly lower in Scotland for Piper

1. Piper: most things related to Scotland so Court said dismiss and let plaintiff's sue in Scotland (forum nonconveniens dismissal); American courts are more liberal so plaintiffs often try to get in; public and private factors are assessed

2. Private interest factors: less deference to plaintiff when plaintiff is not from forum; evidence, witnesses, other potential third-party defendants, complete and efficient resolution of controversy

3. Public Interest factors: application of foreign law and domestic law may confuse jury, where events triggering the claim took place and relative interest in US/ foreign court deciding case (precedential value)

4. Standard for abuse of discretion is reasonableness not whether Supreme Court would’ve reached same conclusion if deciding de novo

V. Erie Doctrine

A. One of the basic premises of our federal system is that the federal government has limited power to make law. Most of the subjects upon which Congress has the authority to legislate are enumerated in Article I, Section 8 of the Constitution. These subjects involve matters of national interest like defense, customs duties, naturalization, coinage, and interstate commerce. Though Congress has pushed the envelope, aggressively invoking the Commerce Clause and the spending power to regulate other areas, large areas of activity are predominantly or exclusively regulated by the states. The Erie Doctrine grew out of the fact that Article III, Section 2 authorized federal courts to hear cases b/w citizens of different states. The Erie Problem generally comes up when in federal court under diversity; look for federal judge deciding an issue that involves state law. Erie says in diversity cases, federal court must apply state substantive law; Erie says this result is required: the first Congress provided in Section 34 of the Judiciary Act of 1789 that the federal courts should apply state law in cases that did not involve federal law; this famous statute is the Rules of Decision Act. 28 U.S.C. 1652. Further, Erie says the Constitution compels this interpretation (Article III and 10th Amendment).

1. Erie says apply state substantive law in diversity cases and on other issues not governed by federal law. Where the meaning of state law is unclear, a federal court should apply the “state supreme court predictive approach”; under this approach, the federal court asks what rule the state’s highest court would apply today, even if older cases have applied a different rule. Federal judges are likely to require strong evidence before disregarding a state supreme court decision based on a prediction.

2. Klaxon: use choice of law rules of state in which court sits to determine which state’s substantive law to apply to a claim. This advances Erie’s policy of uniform outcomes

3. Standard Oil: Though Erie said there is no federal general common law, there is still federal specific common law. In some cases, because of the national character of a question or the federal interests at stake, the law applied must be federal. In such situations, if no federal statute provides a rule of decision, a federal court must create a federal rule of decision (where national uniformity is not needed, local state law may be incorporated as the federal rule of decision, rather than creating a uniform federal common law rule-where local state law will serve the relevant purpose and would not frustrate the objectives of federal law-Kamen; in such case statute would be federal but substance would be same as that of the state). Standard Oil was a case in which government had a significant interest in making a uniform rule applicable throughout the United States, not just creating a federal rule of decision because of the national character of the issue and the counterintuitive ends of incorporating local state law for substance (state decision on indemnification or not), it was deemed appropriate to make a uniform no-indemnification rule across the US; if a statute is made after a common law rule, the statute takes precedence

4. Hard Erie Problem – Deciding cases when state law is arguably substantive and/ or procedural and deciding cases in which choice of law governing a procedural matter is outcome determinative, has significant importance w/ regard to national interests, and/ or advances Erie’s Twin Aims (1-consistent results in state and federal court, 2-

5. Cities Service Oil suggested that federal court in a diversity case would be required to defer to state law on at least some procedural issues in order to implement the Erie principle of consistent results in state and federal court, even though it would apply a different rule in a federal question case.

6. Guaranty Trust Co. v. York looks to the rationale underlying Erie: Would allowing the federal court to ignore state law lead to a different outcome in federal court that the plaintiff would receive in the state court “a block away”? Intent of Erie was to insure that in all cases where a court is exercising jurisdiction on the basis of diversity, the outcome of the litigation in the federal court should be substantially the same. This logic suggests that if applying a federal procedural rule instead of a state rule would affect the outcome, the federal court should use the state rule. (outcome determinative test)

7. Byrd: Erie does not mandate use of state law on issues like whether a judge or jury decides a case, just on clearly substantive issues like duty of care to a trespasser or scope of a property easement, but not on matters that involve the administration of court processes. York’s outcome determinative test calls for application of state law on issues like whether a judge or jury decides a case because it implements a policy of uniformity that defers to state law even where deference is not mandated by the constitutional division of powers b/w states and the federal government. York suggests that even where there was federal authority to use a separate rule, a federal court should defer to state law in the interest of having the case come out the same way that it would in state court. If this test is based on a policy, it can be weighed against other policies. In Byrd, Justice Brennan concludes that the policy of uniform outcomes would lead to the application of the state rule; however, if deferring to state law would interfere with other policies important to the administration of the federal courts, the Court may opt to follow federal practice. Byrd suggests that if the state approach is an accident of history rather than a strongly held state policy, the federal approach should be followed.

8. Hanna: York and Byrd both involved conflicts b/w a federal judicial practice and state law. Hanna involves the question whether a federal diversity court should follow a state practice that conflicted with rule of practice (dicta) and one of the Federal Rules of Civil Procedure (holding).

9. Hanna under York: York’s outcome determinative test would mandate the use of state law as the case would proceed if the plaintiff was entitled to serve process under the Federal Rules, but would be barred if state in-hand-service rule must be used. Hanna refines York in light of the “twin aims” of the Erie Doctrine to create a modified outcome determinative test

10. Hanna part I: Hanna’s interpretation of the “twin aims” looks at if the difference in state and federal practice is substantial enough to lead a plaintiff to choose federal court over state court and if the difference in state and federal practice provides a significant litigation advantage that makes it inequitable to ignore state practice – overall, whether the difference would lead a lawyer to choose one system over the other

11. Hanna Part II: Hanna says that because Congress Delegated to the Supreme Court the authority to adopt the Federal Rules in the Rules Enabling Act; because of the Supremacy Clause of Article VI, the Rules apply unless they exceed the authority granted in the Rules Enabling Act to write the Rules. Rule is within the delegation in REA if it satisfies a broad test: “The test must be whether a rule really regulates procedure,--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.” (quoting Sibbach)

12. Limit in REA: A rule may not “abridge, enlarge, or modify any substantive right” 28 U.S.C. 2072(b): A rule that complies with the delegation in 2072(a) may not be within Congress’ delegation of rulemaking power to the Court, if the Rule infringes on state substantive rights. Though a rule may be in Congress’s power to enact (because it is arguably procedural), it may not be within its delegation of rulemaking authority to the Supreme Court in the REA (because it affects substantive rights).

13. Shady Grove: Question 1-Scalia’s plurality opinion starts by asking whether Rule 23 applies. If it does, it governs unless it is invalid. He concludes that it does apply and conflicts with New York’s rule barring class actions for penalties, whereas Rule 23 says you can bring a class action if certain criteria are satisfied. Basing validity on the purpose of each state’s contrary procedure in such cases could destroy the uniform application of the Federal Rules. That would be ironic given the long battle to establish uniform rules of procedure in the federal courts under the REA.

14. Shady Grove: Question 2-Because plurality concludes that Rule 23 conflicts with state law, it proceeds to consider whether rule is valid under Hanna Part II. First, does it regulate procedure (28 U.S.C. 2072(a))? It passes this hurdle as it regulates joinder of claims in federal lawsuit. Second, does the rule, if authorized under 2072(a), unduly affect substantive rights (2072(b) whether the rule abridges, enlarges or modifies a substantive right)? Here, his reasoning appears to fall back on the pronouncement that the rule “leaves the parties’ legal rights and duties intact and the rules of decision unchanged.”

15. Shady Grove dissent: Ginsburg does not agree; she argues that interpreting Rule 23 to allow a class action barred by state law has the potential to transform a $500 case into a 5 million dollar award. State law had a substantive end, limiting a defendant’s liability in a single lawsuit in order to prevent the exorbitant inflation of penalties, remedies the legislature created with individual suits in mind. In view of the purpose of the ban on penalty class actions, and the impact that allowing a class action under Rule 23 will have on the parties’ substantive rights, she would avoid the conflict by interpreting Rule 23 more narrowly and find it inapplicable. Since she finds the rule inapplicable, she turns to Hanna Part I’s modified outcome determinative test and finds that ignoring New York’s limit would be improper under both prongs of that analysis.

16. Problems with both: Scalia’s approach can be criticized as interfering with New York’s policy to avoid excessive penalty judgments. Stevens, concurring in judgment, criticizes Scalia for not adequately considering the 2072(b) issue, and criticizes Ginsburg for applying the RDA to a case in which there is a governing federal rule. In addition to dealing with the fact that Rule 23 directly addresses the certification question, clearly a procedural issue, Ginsburg must deal with the fact that the New York statute bars penalty class actions even if the underlying claims in those cases are not based on New York law. It hardly seems that New York can define the substance of rights under federal law or other states’ law.

17. What Stevens’ concurrence adds: He goes on to consider whether applying rule 23 will abridge or modify a substantive right. He concludes that “the bar for finding an Enabling Act problem is a high one and finds little evidence that New York’s statute was enacted to restrict substantive rights. He says that “The mere possibility that a federal rule would alter a state-created right is not sufficient. There must be little doubt.”

18. Roadmap established by Erie and Hanna: Court must determine whether a state rule is clearly substantive. If it is, state law applies under Erie. If it is not, the court will invoke the Hanna Part I analysis (for conflicts that don’t involve a federal statute or rule) or the Hanna Part II analysis (for conflicts that do involve such a conflict). The arguments in a Federal Rules case will focus on the toughest parts of the Hanna Part II analysis: whether there is a direct conflict b/w the Federal Rule and state law and whether the federal rule abridges, enlarges, or modifies any substantive right.

19. Tests for when a Federal Rule that is “procedural” under 28 U.S.C 2072(a) abridges, enlarges, or modifies a substantive right: (1) affects a state right “granted for one or more nonprocedural reasons, for some purpose or purposes not having to do with the fairness or efficiency of the litigation process” – John Hart Ely; (2) if parties, in stating their claims and defenses to each other on the eve of suit, would refer to the right in making the strongest case for their position on the merits of the case (would classify Shady Grove conflict as substantive, since possibility or a class action would dramatically strengthen plaintiff’s bargaining position); (3) if it would have the effect of altering existing remedial rights conferred as an integral part of the applicable substantive law scheme…such as an arrangement for attorney’s fees….Section 2072 is intended to allocate to Congress, as opposed to Supreme Court exercising delegated legislative power, lawmaking choices that necessarily and obviously require consideration of policies extrinsic to the business of the courts, such as the recognition or non-recognition of a testimonial privilege (1985 congressional committee report); (4) state law should govern “primary private activity” that occurs before and independent of litigation and not litigation related matters such as the method of service of process at issue in Hanna (Justice Harlan Hanna concurrence)

20. No Supreme Court case has held a Federal Rule invalid under the substantive rights proviso in 2072(b). In Semtek, Court suggest that FRCP 41(b) might run afoul of the proviso if it were interpreted to establish a rule of claim preclusion different from that under applicable state law. In Semtek, however, the Court avoided that risk by interpreting the Rule as inapplicable. We know that the rules must be tested against 2072(b), but not exactly how to do so.

21. Most common problems: Statute of limitations – The Court held in Hanna that a federal rule is “procedural” if it “really regulates procedure,--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 (quoting from Sibbach). Under this broad definition, the rule probably passes muster, since it governs the time within which a case can be filed, which certainly relates to the judicial process. However, even if this Rule is “procedural” under 28 U.S.C. 2072(a), it probably modifies substantive rights under 2072(b). The time available to bring an action is closely tied to the existence of the right itself. It serves a “non-procedural purpose,” to provide defendants peace of mind after a certain date that a lawsuit will not be filed. Very likely, this Rule would run afoul the substantive rights proviso, leading the Court to invalidate the rule.

VI. Pleading (Twombly and Iqbal)

A. Pleadings are documents that set forth claims and defenses; first pleading is the complaint, and filing it starts a case (requirements in rule 8): first, subject matter of court; then short and plain statement of claim; then, relief sought

1. 8a2 short and plain statement of the case: historically, notice pleading was standard, just to put defendant on notice; federal rules avoided speaking to facts until Twombly 2007 and Iqbal 2009; they raise the standard: together they boil down to (1) court will ignore conclusion of law (2) plaintiff must plead facts supporting a plausible claim (even though rule 8 has never required pleadings of facts) - plausible is higher standard than possible (3) court will use its own experience and common sense to determine if a claim is plausible (a lot of criticism b/c judge can use background and have a lot of discretion - has resulted in a lot more challenges to pleading - what is plausible is in eye of beholder)

2. Rule 9b and 9g require details and particulars: allegations of fraud and mistake must be made with particularity; you have to give chapter and verse; what was done and dates; g is about special damage, area that does not normally happen, exceptional and doesn't normally result so details required

3. defendant's response: rule 12 tells us that when you get sued you have a choice of how to respond but whatever choice you make, you have to respond within 21 days after service of process; if you fail, you run the risk of default; you can respond by motion or by answer

1. a motion is not a pleading; it is a request for the court to order something; two specialized ones are 12e and 12f; e is motion for more definite statement (when complaint is unintelligible) f is motion to strike (trying to cut out things that just do not belong in pleading - I demand a jury trial but inappropriate in this case)

1. 12 b is the huge one: can be raised by motion or by answer; these are defenses and there are 7 (1 is smj, 2 is pj, 3 is venue, 4 is insufficient process (fairly unlikely as process is two documents and this arises when problem with one), 5 is insufficient service of process and this happens more often, 6 is failure to state a claim, and 7 is failure to join a party under rule 19 or indispensable party)

1. 12g and 12h have strict things about waiver and bottom line 3 rules are: 12b 2, 3, 4, and 5 must be put in first rule 12 response or they are waived, called waivable defenses; 12b6 and 7 can be raised for the 1st time any time through trial (have to raise them at trial and not on appeal); 12b1 can be raised any time in the case (it is unwaivable; if we don't have smj, it is unconstitutional and a usurpation of state power)

2. answer under 8b, must respond to the complaint; go through everything: 3 responses (admit, deny, and might be able to say I don't know or lack sufficient evidence, can only do that if stuff is not in my control); failure to deny is an admission, and that is true on everything except damages; if you do not deny something in the complaint, it has been admitted; second thing 8c1 affirmative defenses, affirmative defense allows defendant to raise new fact whereas in a denial all you're doing is denying; if you are right with affirmative defense, you win; statute of frauds and statute of limitations are classic; you have to plead these affirmative defenses; they must be in answer or you run the risk of waiving them

3.

VII. Joinder (related to pleadings as it tells us how many claims are being brought and against whom claims are being brought); does not confer smj or pj – Rule 82

A. Joinder rules define the scope of a case: how many claims and how many parties; these are a great vehicle for testing subject matter jurisdiction; every single claim has to have federal subject matter jurisdiction; we must find a joinder rule and check every single claim for diversity or federal question and then apply supplemental when necessary

B. Rule 18a - plaintiff may join any claim against the defendant; then smj must be assessed; can case as structured get into federal court

C. Rule 18b - claim joinder by the defendant; counterclaim and crossclaim come into play; 13a and 13b are counterclaim, asserted against an opposing party ; 13(a) is compulsory (assert here or lose the claim, only compulsory claim in the world); A sued B and B failed to sue A on something that arose in same transaction or occurrence; 13(b) is permissive or it does not arise from same transaction or occurrence (you may assert even if unrelated)

1. Still have to assess subject matter jurisdiction for each claim; NY plaintiff v. FL defendant and claim for 100K; we are in federal court on diversity; D sues P as well for 90K (compulsory counterclaim b/c it is against opposing party and arises under same transaction or occurrence); counterclaim gets in under diversity

2. Same fact pattern but defendant files counterclaim for 45K; first you say it is compulsory as it arises under same transaction or occurrence but does not invoke diversity b/c of amount in controversy; here we need 1367a which grants it as it is a compulsory counterclaim that arises out to the same transaction or occurrence; 1367b only takes away supplemental jurisdiction over claims by plaintiffs (before mentioning supplemental jurisdiction, I must say why it doesn't meet federal question or diversity)

3. Judge may sever claims –Rule 21- or order separate trials of unrelated claims to avoid confusion or save time –Rule 42b-

D. Crossclaim is 13g and against a co-party and arises out of same transaction or occurrence; crossclaim is never compulsory; A (VA) sues B (NY) and C (NY); amount in controversy met; C should file compulsory counterclaim against A (it invokes diversity b/c amount and diversity met) C may assert crossclaim against B; under 13g, this is okay but there is no diversity here and we must assess this individually; no diversity and no federal question so we have to go to supplemental (same transaction or occurrence always meets Gibbs and 1367a; 1367b only takes away claims by plaintiffs, so this is okay b/c it is by defendant

E. 20(a) Proper Parties: not must but may; if we are going to have co-parties this is where they come from; 3 of us in same car may sue one defendant; 20a1 authorizes plaintiffs to sue together, says we can b/c our claims arise from same transaction or occurrence and they raise at least one common question, whether other driver was negligent; 20a2 authorizes plaintiff to sue multiple defendants, and it is exactly the same test; so we can sue cab driver and his company; this tells us who may be joined as a procedural matter but we must assess smj and pj

F. Rule 19: who must be joined: this has to be obvious; plaintiff, defendant, and nonparty floating around; sometimes court will pull that person in; ask - Is A, the absentee third party, necessary or required? answer is yes if we meet any of 3 tests in 19a1 (wont mess up smj and can get pj); next test is feasibility and it has 2 parts

1. 19a1A-without A, court cannot accord complete relief among the parties; looking at efficiency, if we don't bring A in, there will be separate litigation

2. 19a1B1-Absentee's interest may be harmed if she is not joined

3. 19a1B2-worries about absentee's interest subjecting defendant to risk of multiple or inconsistent obligations; not worried about absentee but defendant

4. Joint tort feasors are never necessary b/c one can sue the other in a later suit;

5. joinder only feasible if we have pj and diversity won't be messed up; potential 3rd step is where absentee cannot be joined b/c of pj or diversity when first half of this test is met; we let this happen without absentee or we dismiss the case; both are lousy options (Rule 19b has 4 factors for this) fourth one is most important and it means we should not dismiss this unless plaintiff has alternate forum (can plaintiff get justice in another forum where all can be joined); if court dismisses, we have to call absentee indispensable and say we dismissed for that reason

G. Impleader Rule 14a1: (can’t only be liable directly to the plaintiff, must be liable to defendant for the plaintiff’s claim and not a separate claim for its own losses) Impleader addresses the situation in which a plaintiff’s claim against a defendant triggers a right of the defendant to be reimbursed for the plaintiff’s claim (or part of it) by someone else; Defendants implead under the title of third party plaintiff (can only implead in the event of indemnification or passing on of liability for plaintiff’s claim, contribution); third party defendant, person brought in by impleader can pass on liability as well with same constraints via rule 14a5; 14a2C authorizes defenses against plaintiff’s claim; 14a2D authorizes claims against the plaintiff arising from transaction or occurrence that give rise to the main claim; 14a3 allows plaintiff to assert claims against third party defendant; when either party does they become opposing parties and counterclaim provisions of 13a and b are triggered

1. every claim must be assessed for smj; say what the claim is why it is okay and then if it meets diversity, federal question, or supplemental

H. Class action-where a rep sues on behalf of a group; 7 topics in 23a: 4 prerequisites (numerosity - must be too many for practicable joinder as coplaintiffs; commonality in question of law, fact or something (Walmart v. Dukes 2011 - held that class failed to meet commonality requirement which is normally easy; possibly b/c large number and disparate issues and individual facts; rep's claim must be typical of class members; rep will adequately protect/ represent interests of the class (due process))

1. 23b1 and 2 are fairly specialized but everyone focuses on 23b3 which is often referred to as damages class as people often sue for money here; 2 things you must show: common questions predominate over individual questions (not enough to just have a common question); class is superior method for resolving the dispute); can have individual hearings after

2. No class action until court grants motion to certify: court must define the class and it must appoint class council; incumbent on judge to appoint class council

3. notice of pendency: in b3 court must give individual notice to all members reasonably identifiable and it must tell them all the stuff in 23c2b (they are in the class and bound if they do not opt out); this notice is only required in b3 not 1 or 2 in which notice is discretionary

4. Who is bound by a class judgment: all class members except those who opted out of a b3; there is no right to opt out of a b1 or b2 which are known as mandatory classes

5. settlement or dismissal of a certified class: either settlement or dismissal must be approved by the court; you cannot do this on your own but under 23e settlement or dismissal must be done by court; notice given to class members and feedback requested but ultimately up to judge

6. subject matter jurisdiction must be here; big deal is with diversity; how do you invoke it; law is finally absolutely clear here; for citizenship, you look only at the rep and not the class member; all you need is the rep diverse from all defendants; amount in controversy in Exxon Mobil v. Allapatah; okay if rep's claim exceeds 75K; don't care about class members; this is based on supplemental jurisdiction (as long as rep is diverse from all defendants and rep's claim exceed's 75K)

VIII. Discovery

A. Federal rules are pretty liberal as the whole idea is no trial by ambush or surprises

B. Required disclosures 26a: parties must produce information without any requests, comes up at 3 times under a1, 2, and 3; a1 is the big deal (early in the case); you must identify people with discoverable info that you may use to support claims or defenses; also have to identify documents and things with that kind of info in it and includes electronic information; 26a2 is required disclosure about experts we will use at trial; pretrial required disclosures, layout all witnesses and what we will raise at trial

C. Discovery tools: five - all can be used to get info from party but which can be used for nonparty: depositions in 30 and 31 (oral in 30 written in 31; answers are all oral; deponent is sworn in and taken down stenographically; can use depositions to get info from party or nonparty; must subpoena nonparty or she does not have to show up); these are expensive and time intensive - interrogatories (written questions answered in writing under oath - only to parties not to nonparties, these are useful for background info to prepare for deposition) - request to produce rule 34 written request for access to documents or electronically stored information or materials like widgets, 34 c says this can be sent to nonparties but subpoena is still necessary - medical exam, 35a, must get court order, have to show good cause and, can get medical exam of a party or someone in party's custody or legal control, does not extend to employees as this is fairly narrow and includes parents and children - requests for admission rule 36, they can only be sent to parties and you force the party to admit or deny any discoverable matter (failure to deny is an admission)

D. Scope of discovery: what can we get 26b1; we can discover anything relevant to a claim or defense; can discover anything reasonably calculated to lead to admissible evidence; that is broader than admissible; heresay is not admissible at trial but may lead to evidence - privileged matter is not discoverable, confidential communication (attorney-cleint, husband-wife, doctor-patient) - work product 26b3 trial preparation material (Hickman in 1947 - work product is material that is prepared in anticipation of litigation, must be with an eye toward litigation and not monthly report like or something done anyway (this is to avoid freeloading, you can't get the product of my labor), work product protection is not absolute, can get at it if you show substantial need and that it is not otherwise available (can't take deposition b/c witness left country), can never get mental impressions, conclusions, opinions, and legal theories, work product does not have to be generated by a lawyer, can be any rep of a party or party herself or private detective

IX. Pretrial Adjudication (discovery might give us something that's helpful here)

A. Difference b/w 12b6 and summary judgment: 12b6 is motion to dismiss for failure to state a claim, court cannot look at evidence, only at face of complaint to see if it states a claim; if all facts were true, would plaintiff win; does law recognize this; look at Twombly and Iqbal - sometimes 12b6 points out sloppy pleading; even when 12b6 is granted it is often with leave to amend

B. Summary judgment is rule 56 and here the court can look at evidence; moving party must show there's no genuine dispute of a material fact and she is entitled to judgment; past 12b6 as claim has been stated; here, question is whether we need to go to trial whereas 12b6 we are trying to see if we need litigation at all; only reason to go to trial is to resolve issues of fact and if evidence shows no dispute, no need for trial; parties provide info such as affidavits proffered by parties and court looks to see if there is dispute of material fact; courts tend not to grant summary judgment; moving party bears burden of proof and all facts viewed in the light most favorable to nonmoving party

1. Anderson: “substantive law will identify which facts are material. Only disputes which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”

2. Pay attention to moving party: when moving party has burden of proof at trial, party must prove that there is no issue of genuine material fact on any element; normally, the defendant will use proof-of-the elements motion for affirmative defense or disproof-of-an element motion (Slaven); defendant moves for summary judgment more often than plaintiff (there is also absence-of-proof motion which according to Celotex does not require proof, but proof is advisable as burden of proof is on moving party; though advisable, 56(c)(1)(B) now expressly states that a party may prove the absence of genuine dispute by showing that an adverse party cannot produce admissible evidence to support the fact.”

3. 3 Rarely granted: in sworn affidavits (evidence), 15 credible witnesses can say one thing and one drunk can say another and there is still a dispute of fact

X. Judgment as a Matter of Law

A. Only go to trial to resolve dispute of fact; 1st, must put on enough evidence to get to jury: Motion for judgment as a matter of law rule 50 (used to be motion for directed verdict); with this motion, if court grants it, we take case away from jury, if we do it too hastily there is a 7th amendment (right to trial by jury) problem; 50a1 says reasonable people could not disagree on the result; evidence is so clear and overwhelming case could not come out the other way; 50a2 says you can make this motion only after the other side has been heard at trial; often this is aimed at failure to produce evidence on one of the elements that party must prove; can't win without all elements: this does the same thing as summary judgment just at trial here; courts are nervous about this, so sometimes they deny this on theory jury will get this right

B. Renewed motion for judgment as a matter of law which used to be judgment not withstanding the verdict: rule 50b; exactly the same as jmol except it comes up later; court denied jmol and jury returns a verdict and the loser makes this motion; if court grants, it takes judgment away from person jury said should win and enters judgment for other party; we are saying if we grant this that jury reached a conclusion that reasonable people could not reach; plaintiff did not make a showing of all elements: must move for this within 28 days after entry of judgment and jmol and rjmol must be raised by a party's motion (court can't do it); to move for rjmol, you must have moved for jmol at a proper time at trial or it is waived

C. Motion for new trial: rule 59a1; timing is same as rjmol, no more than 28 days after entry of judgment, but if this is granted, we start over; this can be based on anything that makes the court think we should start over; maybe the judge put the burden on wrong person, maybe judge took a bribe, maybe juror did additional investigation; usually a motion, but court can do this on its own; this is less drastic than rjmol in which party who won may win in new trial whereas that party loses in rjmol (rule 60 corrects mistakes)

XI. Preclusion (res judicata and collateral estoppel)

A. Claim preclusion - no way to hide the ball, have to have two cases to raise preclusion and case one has to have gone to judgment and case 2 must be pending; case 1 is case 1 b/c it goes to judgment 1st; does judgment in case 1 preclude us from litigating in case 2 (above is general for both): start with claim preclusion 3 steps

1. 1-show that both cases were brought by same claimant against same defendant (same parties in same configuration)

2. 2-case 1 ended in a valid final judgement on the merits; on the merits rule of thumb 41b; all judgments are on the merits unless they're based on jurisdiction, venue, or indispensable parties; default judgment is even on the merits

3. 3-both cases involve the same claim; how do we define claim: majority defines it as a transaction or occurrence (one lawsuit for that transaction or occurrence); primary rights theory is minority view: different claim for each right invaded no matter how many transactions there were (if one transaction brings rise to contract and tort claims you have two)

4. Hypo Meg hits Lois-Case 1-Lois sues Meg for personal inury; Case 2-Lois sues Meg for property damage; element 1 is met; element 2 is met; element 3: majority view yes; minority view no

5. Same Hypo and 1-Lois sues Meg and we have a winner; 2-Meg sues Lois; cannot be res judicata or claim preclusion; we dismiss not same parties in same configuration (also compulsory counterclaim)

B. Issue Preclusion-we are focusing on something narrower than a claim; if we litigated an issue in case 1, we will not litigate it in case 2; do claim first, and if I can't get it, do issue and if same issue emerges then it is established for this case: 5 requirements

1. Valid, final judgment on the merits

2. Same issue was actually litigated and decided in case 1; we can get claim preclusion from default judgment but not issue

3. Have to show that issue was essential to the judgment; w/o that finding, judgment may have been different

4. Against whom is preclusion used; answer is same, it can only be used against somebody who was a party to case 1; party includes people in privity (landlord/ tenant, mortgager/ mortgagee, etc.) or represented by party in case 1; for due process, you can only be bound if you had your day in court

5. By whom is preclusion used; starting point is mutuality; traditional rule was you could only use this if you were a party to case one but most important development has been non mutual issue preclusion; mutuality is not required by due process and some jurisdictions adopt this; it is being used by someone who was not a party; can be non mutual defensive - person using collateral estoppel or issue preclusion in case 2 is defendant who was not a party in case 1 (roommate borrows car and you are vicariously liable; roommate hits me and I sue your roommate; we litigate and your roommate wins b/c I was negligent); I sue you and you say that issue preclusion should take care of you b/c I was negligent: go through all five steps: today, majority view allows non mutual defensive as long as person it is being used against had a full opportunity to litigate; in a variation on the hypothetical, you sue me and want issue preclusion; this is non mutual offensive b/c you were not a party and you are the plaintiff (most courts say no, but under Parklane, there is a trend toward accepting as long as it is not unfair to use; fairness factors are full chance to litigate in case 1, forseeability of multiple litigation (I knew when I sued your roommate, this could have happened); ease of joinder in case 1 (this would be problem here); inconsistent judgments

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