Professional Documents
Culture Documents
Reinert Civ Pro Fa2015
Reinert Civ Pro Fa2015
Personal Jurisdiction
Requires power of the legislature with a statute and to not violate due process through the
constitution
Specific Jurisdiction
Pennoyer v. Neff
Establishes 3 situations for jurisdiction
Present in the state/forum when served/agent in the state
Resident of state with notice/domiciled
Property within the state and it was attached at the time the lawsuit was
initiated
* if they appear in the court considered to be consenting. Sometimes consent
is voluntary and sometimes it is the result of failing to object appropriately to
an attempted exercise of jurisdiction
Mitchell tried to recover legal fees from Neff and couldn’t get Neff to pay
because he was out of state so took his land.
Oregon had no right to assert power cause Neff was not in Oregon and Mitchell
failed to attach the property at the beginning of the lawsuit. Neff got his property
back
Exception would be if they consented to give jurisdiction in the state
Tried to use QIR-2 because it required courts to have power over some property
that belonged to the defendant although the dispute was not about the ownership
of the property
Hess v. Palowski
Pennoyer is not overturned. Doesn’t fit nicely but there is implied consent
because it is assumed Hess knows the laws of MA by driving on the roads.
Palowski wins.
Was able to exclude people from entering the state with a motor vehicle
There was acceptance by operating a motor vehicle in the state and through
the acceptance they appointed an agent that could be served
Used by Kane v. New Jersey which held that New Jersey could require an
out of state resident to file a formal instrument appointing a New Jersey
agent to receive process
Public interest – connection between the driving and the collision.
On the same footing, Hess can use MA courts against Palowski so Palowski
should be able to use MA courts against Hess.
Make and enforce regulations to promote the care on the part of all residents
and nonresidents
International Shoe v. Washington
In order to assert personal jurisdiction over a non-resident defendant, the
defendant must have sufficient minimum contacts within the state
Contacts must be related to the suit in question
Measurement of the quality and volume of contacts
Do not offend traditional notions of fair play and substantial justice
(Fairness/Reasonableness)
Contact part and fairness part test
2
The only tie between the Delaware bank and FL was caused by Mrs. Donner’s
unilateral activity of moving there thereby not creating a contact
Decided to ignore the state’s interest
World-Wide Volkswagon v. Woodson
Only connection in Oklahoma was that an automobile sold in NY to NY residents
involved an accident in OK on their way to AZ due to the defective gas tank and
fuel system
WW is incorporated and has it PPoB in NY and is under contract with retail
dealers in NY, NJ and CT.
Cars by their very purpose and design are so mobile that the petitioners can
foresee it is possible for use in OK. The goods are sold and distributed by the
petitioners were used in the State and the petitioners derive a substantial revenue
from goods used or consumed in the State
Concept of minimum contact:
protects the defendant against litigation in an inconvenient photo.
Ensures that the states do not reach out beyond the limits imposed on them
Test has two parts
Contacts
And fairness (“fair play and substantial justice”)
Fairness factors (Only relevant if found a contact)
Burden on the defendant (primary concern)
Forum state’s interest in adjudicating the suit (McGee)
Plaintiff’s interest in obtaining convenient and effective relief
Interstate judicial system’s interest in obtaining the most efficient
resolution of controversies and
The shared interest of the several States in furthering fundamental
substantive social policies
Protection in the form of reasonableness or fairness
Needs to be reasonable that it requires the corporation to defend a particular
suit which is brought there.
There was single one isolated occurrence to try and establish jurisdiction but
foreseeability alone has never been a sufficient benchmark because they could not
have seen being brought there for trial and it was the unilateral activity of those
who claim some relationship with a nonresident cannot satisfy the requirement of
contact with the forum state (Hanson)
Defendants had no relevant contact with OK because they did not purposefully
avail themselves of any benefit in OK.
Unilateral act of plaintiff to drive car to OK
Foreseeability product would get there not enough. Need to foresee being sued
What it provides
First, contact and fairness
Second a relevant contact
Contact must be purposeful availment (benefits of the forum in some way)
and foreseeability (Foreseeability of forum)
Five fairness factors
5
The contacts that the company had with TX did not constitute continuous and
systematic contacts. The claims did not arise out of and are not related to
Helicol’s activities within TX.
Was not authorized to business in TX and never had an agent of service of
process within the state. Never signed any contract in the state, no employee
based or recruited there. No office there or property. There was only one trip
to Houston.
There was a contract stating that the controversies arising out of the contract
would be submitted to the jurisdiction of Peruvian courts
Purchases and related trips standing alone are not a sufficient basis for a State’s
assertion of jurisdiction
Mere purchases made in the forum state even if occurring at regular intervals
are not enough to warrant a State’s assertion of general jurisdiction over a
nonresident corporation in a cause of action not related to those purchase
transactions
Wanting to have helicopters is not the same as wanting to be in TX. It was not
purposeful conduct because when you are selling you purposefully decide where
you want to sell.
Contacts with the forum not with the people in the forum
Not considered to be like Perkins. (HQ made it at home)
Company was conducting any business and immediately after the Japanese
occupation of the Philippines and was doing so in OH. Corporation’s
president maintained his office the necessarily limited wartime activities of
the company
Maintained an office, drew and distributed salary checks, used two active
bank accounts and held directors’ meetings in OH
Goodyear Dunlop Tires Operations v. Brown
Wreck was allegedly caused by defective tires manufacturer by subsidiaries in
Turkey, France and Luxembourg and trying to bring suit in North Carolina
Manufacture tires for sale mostly in European markets
Do not solicit business in NC but a small percentage of tires (tens of
thousands out of tens of millions were distributed in NC but the tire in the
accident was never distributed in Turkey
Supreme Court reversed saying general jurisdiction cannot be based on a stream
of commerce theory
Shipping products through the stream of commerce into the forum cannot
constitute such substantial and continuous contact as to justify general
personal jurisdiction
General jurisdiction requires that defendant have substantial and continuous
contact with the forum to the point where the defendant is essentially at home in
the forum
“instances in which the continuous corporate operations within a state are so
substantial and of such a nature as to justify suit against it on causes of action
arising from dealings entirely distinct from those activities”
Human = domicile
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Sending salesmen to a state regularly does not make them amenable to suit there
even with an application and with authority to do business in the state and had
appointed an in-state agent for service of process
Has not yet resolved whether registration alone is a sufficient basis for the
exercise of general jurisdiction
Carnival Cruise Lines v. Shute
Agreed all disputes and matters whatsoever arising under in connection with or
incident to this contract shall be litigated before the court in the state of Florida
Supreme court didn’t considered the minimum contacts and addressed the
enforceability of the forum selection clause
Will be enforced unless really unfair
Federal Rule 4
Can exercise personal jurisdiction over a defendant only if that power is authorized
by statute and its exercise comports with due process
(k)(1)(A) – general service rule. Court “piggy-backs” on the long-arm statute of the
state in which it sits
(k)(1)(B) – special service rule applies to parties joined under Rule 14 or 19
(k)(1)(C) – Federal Court Administration Act allows service in any district where the
defendant resides, is found, or has an agent
When authorized by federal statute, give jurisdiction over defendants when served
with process for certain causes of action
(k)(2) – establishes personal jurisdiction for a claim that arises under federal law if
the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction
Two steps
Whether defendant is subject to personal jurisdiction in any one of the 50
states (not subject to jurisdiction in any state court of general jurisdiction)
Inquiry whether defendant’s contacts with the nation satisfy due process
(consistent with Constitution and Laws)
Can have plaintiff show there is not other state for sufficient contacts and show
why not enough or ask defendant to show has sufficient contacts with another
state
Federal Rule 12?
Baldwin v. Iowa State Traveling Men’s Ass’n
Those who have contested an issue shall be bound by the result of the contest and that
matters once tried shall be considered forever settled as between parties. Should apply
in every case where one voluntarily appears, presents his case and is fully heard and
why he should not in the absence of fraud be thereafter concluded by the judgment of
the tribunal to which he has submitted th case
Confirms that a defendant who makes no appearance remains free to challenge a
default judgment for want of personal jurisdiction
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Amount in Controversy
3 rules:
The amount alleged must exceed 75K – exactly 75K, it is no good (Freeland).
Cannot include interests and costs and overall recovery is irrelevant
Court must give plaintiff an appropriate and reasonable opportunity to show
good faith in believing that a recovery in excess of the jurisdictional amount is
reasonably possible (Whitchurch)
Aggregation – is where we must add multiple claims to get over 75K. Rule: we
aggregate the P’s claims if there is one P vs. one D. There is no limit on the
number of claims. The claims do not have to be related in any way. You can
aggregate all the claims you want this way. You cannot aggregate if you multiple
parties on either sides. Ex: One P vs. two Ds, you can’t aggregate those claims.
Where we must add multiple claims to get over $75k
The rule:
We aggregate π’s claims if it’s one π against one ∆ (Don’t need to be
related)
No aggregation if multiple parties on either side
Joint claim – you use the total value of the claim. Here the number of parties is
irrelevant. Joint interest based on substantive law in State. Only can add when
law says we can, otherwise can’t
A.F.A. Tours v. Whitchurch (Examples 287)
Dismissal for lack of jurisdiction was improper because the court (1) failed to
give AFA an appropriate opportunity to show that it satisfied the jurisdictional
amount and (2) failed to apply the proper standard to AFA’s request for damages
and injunctive relief
Must appear to a legal certainty that the claim is less than the jurisdictional
amount
Plaintiff has the burden to prove the amount
Amount must be pleaded in good faith
Burden of proving AIC is on the person asking for diversity jurisdiction.
Freeland v. Liberty Mut. Fire Ins. Co.
Must be more than $75,000. Cannot be exact
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Holmes/Creation Test: A suit arises under the law that creates the
cause of action.
If created by Federal law, arises under (usually)
If created by State law, does not arise under federal law, unless
requires application of Federal law.
EXCEPTION: Shoshone Mining Co. v. Rutter
Federal law creates cause of action but it is governed by state
law
Met federal ingredient test so could have had jurisdiction
Did not arise under the federal law
T.B. Harms v. Eliscu
dispute about who owns copyright but state law would resolve the
dispute (really is a contract claim).
Claim under state law: contract -> no federal issue in well pleaded
complaint
Holmes/Creation Test – remedy for complaint is not expressly
granted
Had federal ingredient to take it but didn’t have a statute
Smith v. Kansas City Title & Trust Co.
Sued to stop the corporation from investing in bonds issued under
federal statute. Argued statute was unconstitutional
Arose under state law, but litigation focused on federal law so
upheld federal question jurisdiction
Federal issue was a part of the well pleaded complaint
Moore v. Chesapeake & Ohio Railway
Plaintiff claimed that his employer had violated the state statute
State law created cause of action in a case to be decided by the
construction of federal law
No federal question jurisdiction did not arise under federal law
Federal issue comes up as anticipated defense
Nature of the federal interest in Smith was more important
(uconstitutional)
Merrell Dow Pharmecuticals v. Thompson
Alleged that it violated the Federal Food, Drug and Cosmetic Act
by misbranding a drug.
Court faced a case where state law created the claim of negligence
per se but in which the litigation would focus on interpretation of
federal law.
No federal question jurisdiction
More like Moore because the federal statute was not
unconstitutional
Concerned about flood gates
Grable & Sons Metal Products v. Darue
Quiet title action – in rem in state court because federal statute
required personal service
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Declaratory Judgments
Allow the federal court to issue a declaration of rights and other legal relations to
an interested party in controversy
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Court tells you what the law is and whether what you are doing it right or
wrong
Ask ourselves: Usually defendant trying to beat the plaintiff; what would it look
like if traditional action where plaintiff’s asking court to get defendant to do
something
Within its jurisdiction that matters and doesn’t expand jurisdiction
Joinder
Cannot affect the requirements for personal jurisdiction, subject matter jurisdiction or
venue. Therefore they need to be addressed.
When party is joined in defensive capacity, must have personal jurisdiction over
them. (Offensively inserting, submitted to personal jurisdiction)
Every claim joined in federal court must be supported by federal subject matter
jurisdiction
Must address three steps for whether a claim can be asserted (or a party joined) in federal
court requires:
(1) is there a joinder provision in the Federal Rules that allows assertion of this claim
(or joinder of party)?
(2) if so, does this claim invoke diversity or citizenship, alienage or federal question
jurisdiction?
If so, may be assert in the pending case
(3) if not, whether the claim can nonetheless be asserted in federal court through
supplemental jurisdiction
Harris v. Avery (OLD RULE)
Two causes of action of false imprisonment and slander
Question: did they arise out of the same transaction or occurrence?
Allowed to unite several causes of action in the same petition, whether they be
legal or equitable, or both when they are included in either:
The same transaction, or
Transactions connected with the same subject of action
Determined all the causes of actions may be untied in an action on the case
Although different injuries, arose out of the same transaction
Two categories
Permissive rules – gave litigant a litigant the option of aggregating parties and claims
in single lawsuit, but not required
Mandatory – require the litigant to do so
Rule 18: Joinder of claims
(a) Governs what the plaintiff can assert in a single case. No requirements.
Claims DO NOT have to be related. They do not have to rise out of the same
transaction or occurrence because will be split for trial if there is jury confusion
(Rule 42: allows severing)
Rule 42(a): Consolidation
If actions beore the court involve a common question of law or fact, the
court may:
Join for hearing or trial any or all matters at issue in the actions
Consolidate the actions; or
Issue any other orders to avoid unnecessary costs or delay
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The plaintiff MAY join as many claims as they have. NOT required
Claim joinder is not only by the plaintiff because defendants can become
plaintiffs by asserting counterclaims, crossclaims or third-party claims.
Claims can only be asserted in federal courts if they invoke federal subject matter
jurisdiction
M.K. v. Tenet
Joinder was possible because Rule 18 allows unrestrictive joining
Rule 13: Counterclaim and Crossclaim (Claim not a defense and asserted in the
answer)(page 39)
13(a) Compulsory Counterclaim
(1) pleading MUST state any claim that at the time of service the pleader has
against the opposing party if the claim: (Claim must invoke federal subject matter
jurisdiction
(A) arises from the same transaction or occurrence as the opposing party’s
claim
(B) Does not require adding another party over whom the court cannot acquire
jurisdiction
NOTE* - if the court needs to add another party and can’t be joined
because can’t get jurisdiction not forced to bring the claim
If CC meets diversity you’re good you have SMJ over it
If CC doesn't meet diversity (under AinC), it doesn't meet Fed Q, it must
meet 1367! It usually will because its CNOF and it's a claim by the
DEFENDANT, so it will meet (a) and (b) don't worry.
(2) Exceptions
(A) defendant need not assert an otherwise compulsory counterclaim if she
has already asserted the claim in another case
(b) Permissive Counterclaim: (Not required to assert it. MAY be asserted). Does not
arise from the same “transaction or occurrence”
Never will meet supplemental
(c) Relief Sought in a Counterclaim: Counterclaim may exceed the plaintiff’s claim of
relief
(d) Counterclaim against the United States: does not expand the right
(e) Can assert the claim by supplemental pleading:
United States v. Heyward-Robinson Co.
D’A and H were contractors on two jobs in Ct. The Navy Job was federal and the
Stelma Job was state. D’A sued H and Maryland under the Miller Act for
payment for the Navy job. H denied this filed a counter claim for over payment on
both jobs. D’A denied and counterclaimed for money from the Stelma Job.
The contracts were treated together at trial, had joint payment, insurance, and
facts were connected. Jurisdiction over Stelma claim was disputed
Both the original claim and the Stelma counterclaim arose out of the same
transaction or occurrence and thus joinder was proper (no independent jurisdiction
basis needed)
Joining is about efficiency
The Stelma counterclaim was compulsory so it came under sup. Jurisdiction
though it was a state claim.
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(g) Crossclaim against a Coparty (Permissive: don’t want to force into a venue they
didn’t choose)
Pleading MAY state a crossclaim
Must be against a coparty
Must arise out of the same transaction or occurrence as the original action or
of a counterclaim therein
May include an assertion that the coparty is or may be liable for all or part of the
claim against the party asserting the crossclaim
Meaning would be responsible for the plaintiff’s claims
ALWAYS meets supplemental jurisdiction
Crossclaims by plaintiffs needs to be based on the counterclaims made by
codefendant parties
LASA v. Alexander (668)
Facts: Several claims arose out of contracts to construct the Memphis City
Hall, including cross-claims between the contractor, Southern Builders (D)
and one of the subcontractors, Alexander (D) Primary case is about the
contract between Lasa and Alexander-- Alexander’s counterclaim against
Lasa for breach and restitution are both compulsory – Rule 13(a)
Alexander’s cross-claims against SB for nonpayment and firing – Rule 13(g)
OR Rule 18
Satisfies requirements for cross claims because it is against a co party and has
arisen from the original cause of action (but for the original contract, the
subcontract wouldn’t have been breached
Policy considerations behind rule 13 was that the rights of all parties be
adjudicated in one trial; even if based on two contracts
Intended to dispose of entire subject matter arising from one set of
facts in one action
Broad reading of “transaction or occurrence”
If too complicated; judges discretion under rule 42(b) to separate
certain claims into separate trials if conducive for judicial economy
What do we take from this case?
A) Every time a claim is asserted against me, I have compulsory
counterclaim obligations and permissive counterclaim opportunities
Party having suit brought against it has a counterclaim obligation if LR
(as is the rule)
B) Rule 18 says all claims can be joined, related or not
Danner v. Anskis (679)
13(g) can be filed by defendant against co-defendant, or plaintiff against co-
plaintiff only if the plaintiffs are subject to a counterclaim by defendant
Can’t file cross claim against co-plaintiff if not being sued for something
Liebhauser **the subject matter of action important, and the language of the
statute is important
Earle MSimilar to LASA, just b/c you bring in party under Rule 14 doesn’t
mean they’re not a co-party…we can still treat them as a co-party depending on
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circumstance (In LASA Alex brought in totally new party when they brought in
Aydellote but can still treat him as a co-party)
Same Transaction or Occurrence Test
(1) Same issue of fact or law
(2) Res Judicata
(3) Same evidence to refute P’s claim and support D’s counterclaim
(4) Logical relationship (Heyward)
Are they connected? Always YES as lond as there is subject matter
jurisdiction
Rule 20: Permissive Joinder of Parties
CoPlaintiffs (a)(1) may join in one action if their claims:
(A) Arise “out of the same transaction, occurrence or series of transactions or
occurrences”
(B) And, raise one common questions of law or fact
CoDefendants (a)(2) may be joined if the claims against them”
Arise “out of the same transaction, occurrence or series of transactions or
occurrences”
And, raise one common questions of law or fact
Ryder v. Jefferson Hotel Co.
Two separate torts to a husband and a wife must be brought separately
M.K. v. Tenet
6 P sued the CIA, director and others for violation of the privacy act
Joinder was possible because Rule 18 allows unrestrictive joining
Plaintiff’s use Rule 20(a)(1)(A) known as the transactional test and argue that the
claims are logically related and can be said to arise out of the same transaction,
occurrence or series of transactions or occurrences.
They have satisfied the first prong
Second prong 20(a)(1)(B): are the claims related by a common question of law or
fact?
Yes. Satisfied second prong.
Tanbro Fabrics Corp. v. Beaunit Mills Inc.
Involved in separate or independent contracts and not in the same transaction or
occurrence
Bad they didn’t join because the seller and the processor both want to blame each
other
George v. Smith
Prisoner could not join parties because the claims were unrelated and did not arise
out of the same transaction.
Rule 21: Misjoinder and Nonjoider of Parties
Misjoinder of parties is not a ground for dismissing an action. On motion or on its
own, court may add or drop a party. Court may also sever any claim against a
party.
Way to override the P’s structuring by forcing joinder of absentees
`a: Required Joinder of Parties (Trying to determine if an absentee should be
forced into a suit)
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(B) must assert any counterclaim against the third party plaintiff under
Rule 13(a), and may assert any counterclaim against the TPP under Rule
13(b) or any crossclaim against another TPD under rule 13(g)
(C) may assert against plaintiff any defense that the TPP has to the
plaintiff’s claim
And (D) may assert against the plaintiff any claim arising out of the
transaction or occurrence that is the subject matter of the plaintiff’s claim
against the third party plaintiff
(3) Plaintiff’s claims against a TPD - may assert against the TPD any claim
arising out of the transaction or occurrence that is the subject matter of the
plaintiff’s claim against the TPP. TPD must then assert any defense under
Rule 12 and any counterclaim under Rule 13(a), and may assert any
counterclaim under rule 13(b) or any crossclaim under Rule 13(g)
(5) TPD claim against a nonparty
(b) when a plaintiff may bring in a third party – when a claim is assert against a
plaintiff may bring a third party if this rule would allow a defendant to do so
Only a defending party can join an absentee through impleader
Defending party using the impleader is the Third party plaintiff and the
absentee joined by the impleader is a third party defendant
Usually used when they may be responsible
for the harm caused (contribution claim)
or agreed to take on liability (indemnify)
Rule 14(a)(1) establishes that a defending party has a right to implead
within 14 days after she serves her original answer to the plaintiff’s
complaint (permissive rule. Not required to implead.)
Rule 14(a) creates three claims:
(1) impleader claim under 14(a)(1) asserted by a defending party against an
absentee who may owe her indemnity or contribution on the underlying claim
against her
(2) the unsloping 14(a) claim asserted by the plaintiff against the TPD under
Rule 14(a)(3)
(3) And the downsloping 14(a) claim asserted by the TPD against the plaintiff
under Rule 14(a)(2)(D)
Jeub v. B/G Foods Inc.
Can implead a third party prior to a final judgment; Rule 14 in not restricted to
the rights of indemnity of contribution which are presently enforceable
May implead a party who is or may be liable
Too, Inc. v. Kohl’s Department Stores Inc.
Impleader appropriate when the third party defendant’s liability to the third
party plaintiff is dependent on the outcome of the main claim or third party
defendant is potentially secondarily liable as a contributor to the defendant
Things to consider when impleading a third party defendant
Whether the movant deliberately delayed or was derelict in filing the
motion
Whether impleading would unduly delay or complicate the trial
Whether impleading would prejudice the third party defendant
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And whether the third party complaint sttes a claim upon which relief can
be granted
Rule 24: Intervention
Absentee brings themselves into the pending case
(a) intervention of right (must allow them to join: burden on intervenor)
(1) federal statute may confer the right
(2) Can intervene in absence of a statute if:
(1) claims an interest relating to the property or transaction that is the
subject of the action
And (2) situated that disposing of the action may as a practical matter
impair or impede the intervenor’s ability to protect its interest
(3) will not have the right to intervene if an existing party adequately
represents her interest
(b) Permissive intervention (Court has discretion to permit the absentee to join)
Should be granted if the court determines that its benefits outweigh the
burdens it creates
(1) in general – may permit
(A) given conditional right to intervene by federal statute (judges
discretion)
(B) has claim or defense that shares with the mainaction a common
question of law or fact
(2) By Government officer or agency (similar to A and B above)
(3) With discretion generally look at
(1) whether the absentee has delayed unduly in seeking to intervene
(2) whether intervention might prejudice any existing parties;
And (3) the status of the pending proceedings
(c) Notice and pleading required
Generally look at
(1) how long the absentee knew of her interest before seeking to intervene
(2) the extent of prejudice caused to the existing parties by the absentee’s
delay
(3) the extent to which denial of intervention might prejudice the absentee;
And (4) unusual facts that augur for or against a finding of timeliness
Smuck v. Hobson
Determined that both Hansen and Smuck had no right of intervention under
Rule 24(a)(2)
Because Hansen’s interest did not relate to the property or transaction
which is the subject of the action and Smuck has no appealable interest
because he had a fair opportunity to participate in its defense and in the
decision not to appeal and has no interest as an individual
Policy behind interest test; accommodation of two possibly conflicting goals
To achieve judicial economies of scale and
To prevent a single lawsuit from becoming fruitlessly complex
Parties interest in the case is less important than if the case would
impede his protection of his interests, or that his interest is not
adequately represented
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Supplemental Jurisdiction
Every claim asserted in a case in federal court (not just the plaintiff’s original claim) must
satisfy a basis of federal subject matter jurisdiction
Meant to foster
Efficiency
Convenience
And consistency of outcome
If it does not have an independent basis, it still can be heard in federal court through
supplemental jurisdiction. You must have one claim that can get it into court on an
independent basis and supplemental is used for the additional claims that don’t meet
it on an independent basis
may take jurisdiction over claims that do not by themselves satisfy an independent
basis if and only if the claims are so closely related to the claim that invoked the
federal court’s jurisdiction as to be considered part of the same case or controversy
claim
United Mine Works v. Gibbs
Plaintiff and defendant were citizens of Tennessee so there was no diversity
Two claims
Defendant violated his rights under the federal labor laws
And that the same behavior by the defendant also violated the plaintiff’s rights
under state law
Believed had supplemental jurisdiction over the claim because the claim
“derived from a common nucleus of operative fact” with the claim that
invoked the federal subject matter jurisdiction
Satisfied if the claims arise from the same transaction or occurrence
Aldinger v. Howard – dismissed because she was living with her boyfriend (civil rights
claim)
Pendant claim cannot be brought
Problem with adding an additional defendant
Congress excluded civil rights actions against counties and municipalities
Owen Equipment v. Kroger
Kroger sues OPPD who then adds Owen. Kroger then amends and adds Owen. OPPD
assumed Owen was from Nebraska but was from Iowa
No federal issue and no complete diversity
No independent basis for supplemental jurisdiction
Diversity over OPPD. Adding Owen would cause contamination
1367(a) kicks us out
Owen came in under Rule 14
Finley v. United States
1346 allows jurisdiction over civil actions against United States
statute doesn't say that you can bring this claim so they interpreted as you cannot bring
claim
Walkthrough 1367
Civil Action which district courts have jurisdiction
Additional claim related
Pendant claim or pendant party
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1337(b) exceptions
1332? No, jurisdiction on 1331
after this you stop reading (b)
1367 (c) – discretionary measures
Same as Aldinger
Exec. Software v. United States – 1367 (c)
Codifies Gibbs
Have the power, but declining to use it
Court must articulate why
Unless the plaintiff has acted in bad faith to prevent a defendant from
removing the action
1446
(c)(2) provides as a starting point that the plaintiff’s dollar demand in her complaint is
deemed to be the amount in controversy
If the plaintiff
(a) sues for nonmonetary relief
(b) sues for monetary relief without stating an amount
Or (c) sues for monetary relief of $75,000 or less in which the claim does not
cap what she can recover
Defendant may allege the amount in controversy in her notice of removal
Shamrock Oil & Gas Corp. v. Sheets
Whether a plaintiff can remove on a federal counterclaim
Cannot because the plaintiff originally picked the forum and would have picked
the federal courts originally
Defendant can remove if they are a citizen of another state if the matter in dispute
exceeds the jurisdictional amount
§1441 – general removal: grants removal from state to fed courts “embracing the place”
where the claim was filed, this is only if it could have been filed in fed court originally
§1441(a)- grants right of removal to the D or Ds (all must agree to remove)
§1441(c)- provides that if the P joins a separate and independent federal question
claim with one or more removable claims, the D may remove the entire case
Problematic with the courts to determine “separate” [don't worry about this]
§1441(e)- provides special removal rules for multiparty single accident actions that
can be heard in fed court under minimal diversity of §1369
§1441(f)- allows for removal even if state court did not have jurisdiction (was an
exclusively fed court issue)
§1446 –
§1446(a)- sets forth the filing process of a notice for removal
§1446(b)- requires that the notice of removal be filed in federal court within 30 days
after “receipt by the defendant, through service or otherwise” of the complaint in the
case she wishes to remove.
§1446(b)(2)(A)- Congress codified the “rule of unanimity,” which requires that
removal be joined by all defendants “who have been properly joined and served.”
§1446(c)- if removal is improper the P must move to remand within 30 days, unless
its improper due to lack of subject matter jurisdiction, then there is no limit and the
court must remand
§1446(d)- requires the D give written notice to all adverse parties and file a copy with
state court
§1447 –
§1447(c)- If removal was improper the court must remand it to state court
§1447(d)- the order to remand under 1447(c) is not reviewable on appeal or
otherwise, except in civil rights cases removed according to 1443
§1447(e) – court
33
Pleading
Rule 8(a)
Three requirements to avoid dismissal
(1) a statement of the grounds of subject matter jurisdiction
Not including personal jurisdiction
(2) a statement of the claim to show pleader is entitled to relief (most important)*
Can be attacked for two kinds of insufficiency with 12(b)(6)
Legally insufficient – allows the case to go forward
Looks at the face of the complaint
If the plaintiff proved everything alleged here, would she win?
Does the law recognize a right to recover on the facts she has alleged?
Or Factually insufficient
Want to plead facts over conclusions of law
Should be allegation of facts constituting a cause of action instead
of conclusory statements
Defendant will usually challenge this with a motion to dismiss for failure to
state a claim under 12(b)(6)
(3) And a demand for relief sought.
Do not need to complain damages unless diversity to prove diversity for
8(a)(1)
Dioguardi v. Durning (559)
Held the tonics for a year and sold them at auction. Plaintiff bid $110 for them but
someone else bid $120 and the sale was made to the other person
District court granted a motion to dismiss for failure to state facts sufficient to
constitute a cause of action. Court reversed saying they did not see how plaintiff
could be properly deprived of his day in court
Goal was try to remove formalism
Defendant would say no notice cause had no idea what the complaint was about
A complaint must state just enough facts to sufficiently notify the opposing party
of the claims against him so as to allow them to begin preparing a defense
Conley v. Gibson (562)
Said that Rule 8 only requires that the plaintiff give the defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests
Notice pleading – all plaintiff needs to do is put the defendant on notice
For fairness
A complaint should not be dismissed for failure to state a claim unless it appears
beyond a doubt that the plaintiff can prove no set of facts in support of their claim
which would entitle them to relief
Form 11
Date, place and uses negligence. Doesn’t have to establish negligence or says
anything how they were negligent
If too specific and wrong would be in trouble. Want it vague
Swierkowitz v. Sorema N.A. (565)
Was isolated by Mr. Chavel and excluded from business decisions and meetings and
denied the opportunity to reach his true potential
34
Court said they need to show a prima facie case that raises an inference of
discrimination
He was terminated, there was discrimination and other people weren’t
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit
***When we read a complaint, we take everything (facts) to be true…All inferences
are to be drawn in favor of the plaintiff
Still true now, but now it’s harder to decide what it means to allege facts/inferences
Bell Atlantic Corp. v. Twombly (569)
Congress tried to pass a law to increase competition in telephone markets by
permitting ILEC’s to provide long distance service
They chose not to compete in local markets and the prices didn’t go down
Plaintiff’s in Twombly brought a class action on behalf of telephone customers
seeking to allege violation of the Sherman Act on the grounds of restraint of trade
The plaintiff’s needed to survive a 12(b)(6) motion to dismiss for failure to state a
claim
Plaintiffs would need to prove at trial that any conscious parallel behavior was
a result of this agreement
Would need to show some conscious parallel behavior and some plus
factor to demonstrate that the behavior was the result of agreement
Question: what must the plaintiff plead to satisfy Rule 8(a)(2)
Conley said the complaint was sufficient unless it appears beyond a bout that the
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief
Claiming in Twombly that they did not set forth enough factual matter to suggest
that an agreement was made
Plaintiffs must go beyond possibility and allege plausibility
Require enough facts to state a claim to relief that is plausible on its face
Want to avoid the threat of discovery expense because it will push cost-
conscious defendants to settle even anemic cases before reaching trial
Court says we need more than Swierkowitz
Important from Twombly:
Saying that a company had an actual agreement is an element of the civil action
so we cannot take that as true
Step 1: which allegations are factual and which are conclusory?
Take the facts only not the legal conclusions
Step 2: taking facts as true, can we infer a plausible claim
Only complaints with plausible claims for relief will survive a motion to
dismiss
Ashcroft v. Iqbal
For a motion to dismiss, they ignore legal conclusions alleged in the complaint
Rather they look at the factual allegations to see if the claim is plausible (More
than possible) Is there a reasonable inference of the alleged misconduct?
To determine this plausibility, the court draws on its judicial experience and
common sense
Need to be more than formulaic recitation of the elements of a claim (Legal
conclusions)
35
Some believe with Twombly and Iqbal that they improperly raised the bar for entry to
federal litigation
IMPORTANT FOR PLEADING:
Step 1: allegations: which are fact which are conclusory?
Are they formulaic recitations of the elements of a claim?
Step 2: Looking at only factual allegations in plaintiff’s favor taken as true, does it
move towards plausibility?
More than possible less than probable? Reasonable inference of the alleged
misconduct?
Step 3: consider alternative explanations.
What would the court draw from judicial experience and common sense?
Responding to the complaint: Answer
Plaintiff must arrange to have the process served to the defendant under rule 4
Defendant can respond by both a motion and an answer
Can dispute the facts in the answer
Could raise an affirmative defense
Could assert a counterclaim
Could dispute the law and say even if it is true would still lose 12(b)(6)
Rule 12
(a)
(1) defendant must respond within 21 days after being served with process
(4) serving a motion under this rule changes the time in which to serve an
answer
(A) if the court denies the motion, responsive pleading must be served
within 14 days after notice of the court’s action
12(b) Motions
(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) insufficient process (not common)
(5) insufficient service of process (problem with how defendant was served)
(6) failure to state a claim upon which relief can be granted
(7) failure to join an absentee under Rule 19
American Nurses’ Association v. Illinois (611) (before Twombly and Iqbal)
Plaintiffs sue for wage disparity based on sex discrimination. Claim the state pays
workers in predominately male job classifications a higher wage not justified by
any difference in the relative worth of the predominately male and predominately
female jobs in the state’s roster
Was dismissed because the complaint pleaded a comparable worth case and
that a failure to pay employees in accordance with comparable worth does not
violate federal antidiscrimination law
To demonstrate a discriminatory purpose, the failure to act would have to
be motivated by a desire to benefit men at the expense of women
When males and females are in same position, males are still paid
more
36
Can’t hold state liable for noticing it and not acting on it. Needed
to be intended
The general discrimination claim is kept, but this is pre Iqbal (Post Iqbal court
may have found that comparable worth was alternative explanation)
This would not be enough after Twombly and Iqbal
Rule 8(b) – Denial
May admit, deny or plead insufficient information
(1)-state defense to each claim and admit or deny the allegations
Note: Do not want to deny everything, because you may not want the jury to hear certain
things. Also, if you deny something you know is true judge will rule you admit
everything.
Affirmative defenses
Rule 8(c) – admits the allegations of the complaint, but challenges plaintiff’s legal
right to bring the action by suggesting a reason why relief is not available
Ingraham v. United States (620)
Failure to raise a timely affirmative defense constitutes a waiver
How to determine whether a defense is affirmative
Amendments
Rule 15 – governs amendments in federal practice
(a) Amendments of Right and Leave to Amend – get them without asking
Two kinds of amendments
(1) As a matter of course (15(a)(1)) – when there is a right to amend
(A) when the defendant has a right to amend – 21 days after serving it
(B) when the plaintiff has the right to amend – where a responsive
pleading is required. 21 days after service of a responsive pleading or
21 days after service of a motion under rule 12(b), (e) or (f).
Motion to present defenses, more definite statement or to strike
(2) Permissive amendments (15(a)(2)) – when there is no right to amend
When the right to amend expires must get the court’s permission or
written consent from the adverse party
The court should give leave to amend when justice so requires
Gives judge discretion and shows preference for permitting
amendment
Forman v. Davis
Courts must state reasons for denying a motion for leave to amend
Relevant factors to consider
(1) need to balance the harm to the moving party if she is not permitted
to amend against prejudice caused to the other party if leave to amend
is granted
(2) whether the moving party has delayed unduly in seeking leave to
amend
(3) bad faith or dilatory purpose of the moving party
(4) whether the moving party has failed to fix deficiencies in previous
amendments
And (5) whether amendment would be futile
Wouldn’t survive motion to dismiss
37
Could have been negligent but we allow it. Doesn’t matter if it wasn’t
reasonable
Is the defendant prejudiced? No. Just sued wrong person.
Provisions to deter frivolous pleadings
Rule 11
Applies to every pleading, written motion and other paper. Court must strike any
document not signed
(a) signature requirement
(b) Certification to the court
Certifies to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances
If it happens right before the statute of limitations not expected to do as
thorough of an investigation
(1) certifies it is not presented for an improper purpose
(2) certifies that the legal contentions are warranted by law or by a
nonfrivolous argument extending, modifying, or reversing existing law or for
establishing new law
Meant to protect creative lawyering just need to make sure it is not
frivolous
(3) certifies that the factual contentions have evidentiary support, or, if
specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery
(4) for denials of factual allegations are reasonably based on belief or a lack of
information
(c) Sanctions – purpose not to punish but to deter behavior in the future
(2) sanctions against another party or their own attorney
(3) show cause requires a party to explain why specified behavior did not
violate Rule 11(b)
(4) nonmonetary sanctions can be appropriate
(5) a party represented by counsel cannot be held liable for monetary
sanctions for violating Rule 11(b)(2)
Cannot be presumed to know the law sufficiently to satisfy that
certification item
Summary Judgment
Only reason to have a trial is to resolve genuine disputes of material fact. So if there is no
dispute over material fact, may enter judgment as a matter of law without a trial.
Governed by Rule 56.
Can go beyond pleadings and consider evidence because it comes after discovery
When there is a genuine dispute of fact, summary judgment must be denied and the
matter must go to trial. They cannot pick which set of facts they find most likely
Courts have the discretion to conclude that it would be more appropriate to go to trila
even if the standard for summary judgment is met
One source of doubt may be the credibility of a person giving evidence
Courts do not have discretion if the admissible evidence shows a genuine dispute of
material fact
40
Said that the nonmoving party must produce more than a scintilla, she must
produce sufficient evidence from which a reasonable jury could find in favor
of the nonmoving party.
The clear and convincing requirement is relevant in determining whether
the plaintiff could avoid summary judgment
Celotex Corp v. Catrett (helpful to defendants)
Wrongful death claim against several manufacturers of asbestos
Did D expose P to asbestos?
D’s argumentNo admissible evidence to support the claim
P’s argumentHere’s some: 3 documents/affidavits
D responds: those are not admissible, moved for Summary Judgment
PROVE IT: One defendant moved for summary judgment not by producing
evidence but by pointing out that the plaintiff lacked evidence showing that
the decedent had been exposed to asbestos that it had manufactured
Adickes v. SH Kress (954)
Reversed by Celotex. Originally required a party making a motion for
summary judgment to support its motion with evidence
A party who does not have the burden of proof at trial may move for summary
judgment without producing evidence. Such party may point out that the
record is devoid of evidence supporting the other party’s position
Motion – opposing party lacks sufficient evidence
Pro (Rehnquist): P should bear the burden of proving no evidence by for
example, taking a deposition because they do not need to prove at trial;
Con (Brennan): D should bear the burden because D is moving party
Reflected in Rule 56(c)(1) that summary judgment is permitted because a fact
cannot be supported
Helpful to defendants. Allows them to move for summary judgment on the
basis of an absence of record evidence supporting an element of the
plaintiff’s claim
Matsushita Electric Industrial Co. v. Zenith Radio Corp.
Nail in coffin for Adickes’
US TV manufacturers sued several Japanese manufacturers and alleged that
the Japanese companies had conspired to keep prices of their products sold in
the US artificially low which could violate antitrust laws
Supreme court upheld the defendant’s motion for summary judgment
Plaintiffs were required to come forward with more convincing evidence to
defeat the summary judgment because their evidence was implausible because
the companies would have had to endure many years of losses to make the US
companies go out of business.
The party opposing the motion for summary judgment is to receive the
benefit of all reasonable doubts as to whether there is a genuine dispute of
fact, but the doubts must be reasonable and courts should not slip into
sheer speculation when assessing the nonmoving party’s position
Take aways:
Summary judgment can be appropriate in large complex litigation
42
Dismissal for Failure to Prosecute. Plaintiff must proceed with “due diligence,”
meaning within a “reasonable time.” If plaintiff does nothing to move case forward, case
is dismissed. These are always with prejudice, on the merits (adjudication for defendant).
Trial
Have to dispute a material fact
7th Amendment
In suits at common law where the value in controversy shall exceed twenty dollars,
the right of a trial by jury shall be preserved
Suits at common law
Distinguished from cases at equity
Right is preserved
Amendment does not create or grant a right to a jury trial
Rule 38
(a)(1) echoes the importance of this constitutional guarantee by providing that the
right to jury trial under the Seventh amendment is preserved to the parties
inviolate
(b)(1) Demand (14 Days after last pleading is served) in writing
(d) If you don’t request it, you WAIVE it. If you do request it, you can’t rescind it
unless the other party consents
D counted on your jury request so they didn’t make one
First step: Historical Test: Whether the case asserted would have been heard by a jury at
English Common law in 1791.
Must assess whether the matter would have been tried in the law (as opposed to
equity courts in 1791 in England. Must also take account of modern procedural
reforms including the FRCP.
If not, must assess whether the case is analogous to a right that would have been
litigated at law in 1791 in England
Second, Assess the availability of a jury on an issue-by-issue basis
Curtis v. Loether (legal or equity?) what kind of relief when wasn’t tried in 1791
Ask what the relief that was sought is – damages (actual and punitive) which is
offered in courts of equity
If an issue of fact underlies a claim for legal relief, it must be tried to a jury,
without regard to whether the overall thrust of the case is equitable
If an issue of fact underlies both a claim for legal relief and equitable relief, it
must be tried to a jury.
Only if an issue of fact underlies a purely equitable matter is it tried to a judge
without a jury.
44
Court held that jury trial is required because of mandatory nature of the damages.
Rules
1) Look at what it was like in the 18th century (1791) [Tull]
Must assess whether the matter would have been tried in the law (as opposed to
equity courts in 1791 in England. Must also take account of modern procedural
reforms including the FRCP.
If not, must assess whether the case is analogous to a right that would have been
litigated at law in 1791 in England
2) Is there a statute? [Curtis] What is the remedy/relief sought? (go to 3)
If it’s a new claim- Yes jury trial if the statute is creates legal rights and
remedies; where damages are placed in statute, is there discretion to award
damages (discretion is associated with equity); where is the right enforces (admin
agencys, no jury right) [Curtis]
3) Court’s assess the availability of a jury on an issue-by-issue basis. The mere presence
of equitable issues cannot rob a party of the right to a jury trial on legal issues. [Beacon]
It does not matter whether a claim to legal relief is “incidental”, the right to a jury
trial cannot be deprived [Dairy Queen]
Unless there are “imperative circumstances which the current court cannot
anticipate”, the jury issues shall be tried before the equity issues. [Dairy Queen]
The characterization by the party's is disregarded [no artful pleading] [Dairy Queen]
Legal relief- must be tried to a jury, without regard is the overall case is of equity
If mixed- right to jury trial so if there have overlapping factual issue the issues will
be determined by a jury; but see exception when equitable claims would be tried first
[Fox] but can't imagine a circumstance when it would apply.
All equity claims- No jury trial
Except in Ross situation where the claim requires the establishment of a legal
claim.
Jury confusion may be a reason to find that a legal remedy is inadequate. [Dairy Queen]
You can appoint a special master to assist the jury under Rule 53(b).
Even this limited inroad should only be made in exceptional circumstances.
46
Trial Motions
Rule 50(a) - Judgment as a Matter of Law (or Directed Verdict) (JMOL)
Similar to summary judgment but they are made at or even after trial
Judge would be concluding that the jury should not go to the jury because there is
insufficient evidence to justify having the jury consider it
Concludes there is no dispute on a material issue of fact, reasonable people
could only conclude one way so there is no need for a jury deliberate and the
court can enter judgment as a matter of law (Rule 50(a)(1)), called a directed
verdict.
Any party can move for it after the other party has been fully heard on an issue in a
jury trial
Defendant can move twice, once when P finishes and once when they finish
One produces sufficient evidence to overcome a motion for JMOL if she
shows enough that a reasonable jury could find for her
Rule 50(b) - Judgment Nonwithstanding the Verdict also known as renewed judgement as
a matter of law (RJMOL)
Judge let the case go to the jury, the jury goes for deliberation and the jury reached
the conclusion that reasonable people simply could not have reached. Court can take
away the victory and enter judgment for the other party
Motion RJMOL must be brought no more than 28 days after entry of the judgment
Would be determining that there was no legally sufficient evidentiary basis to find
for the party who won the jury’s verdict
Part of the Seventh Amendment provides that federal courts may not reexamine facts
determined by juries “otherwise…than according to the rules of common law”
Common law recognized RJMOL but permitted it only if the party seeking it had
moved for JMOL at the close of all the evidence
Changes now to where it is required that a party move for JMOL
appropriately at trial after plaintiff presents evidence
Jury trial verdict could be set aside only when there is a complete absence of
probative facts to support the conclusion reached
******For JMOL or RJMOL do not concern the credibility of witnesses and weight of
the evidence. That is for the jury
Galloway v. United States (1055)
Court says JMOL is OK because in 1791 they had demurrer and motion for new trial
in 1791
It is not that “the rules of the common law” in 1791 deprived trial courts of power
to withdraw cases from the jury.
The jury was not absolute master of fact in 1791.
The amendment was designed to preserve the basic institution of jury trial in only its
most fundamental elements, not the great mass of procedural forms and details
Neely v. Martin K. Eby Construction Co.
Whether the court of appeals after reversing the denial of a defendant’s Rule 50
motion may itself order dismissal or direct entry of judgment for defendant
Court is allowed to make final disposition of the issues presented, except those which
in its informed discretion should be reserved for the trial court
47
Rule 50(e) makes express and adequate provision for the opportunity for plaintiff to
present grounds for a new trial in the event plaintiff’s verdict is set aside by the COA
If he does so in his brief – or in a petition for rehearing if the COA has directed
entry of judgment for appellant – the COA may make final disposition of the
issues presented.
If appellee presents no new trial issues in his brief or in a petition for rehearing,
the COA may, in any event, order a new trial on its own motion or refer the
question to the DC, based on factors encountered in its own review of the case
It was, of course, incumbent on the COA to consider the new trial question in the
light of its own experience with the case
But we will not assume that the court ignored its duty in this respect, although it would have been
better had its opinion expressly dealt with the new trial question.
Denman v. Spain (1061)(No reasonable jury)
Denman was injured in a head on collision by defendant and defendant passengers
died. Two witnesses saw defendant speeding but not crossing lanes, which was
needed to prove the accident was his fault. Jury ruled for Plaintiff. Defendant
motioned for JMOL and won (everything was circumstantial/possibilities).
Defendant motioned for RJMOL and it was sustained and entered. The plaintiff
appeals. Don’t know anything about how the accident occurred just details
beforehand.
Burden was on the plaintiff to prove by a preponderance that the operator was guilty
of negligence but also that such negligence caused or contributed to the collision and
consequent damages
The conclusions that could have been made could have only been made on
possibilities and verdicts cannot be based on possibilities
There is no sound or reasonable basis upon which the jury or this court can
say that the plaintiff met the burden. Was merely speculative. Issue with
causation.
Kircher v. Atchison (1064)(Reasonable jury could find)
plaintiff said he went under train and hand was severed.
Believe it was not too unreasonable for jury to accept even if lacked certainty RJMOL
In light of all the circumstances, it cannot be held as a matter of law, that
plaintiff’s version was such as to contravene the laws of nature, or as to render
the jury’s acceptance of it unreasonable
Jury was not compelled to find against him because he could not with certainty
relate the exact manner in which his left hand came to be on the east rail
It could reasonably have been inferred that his failure to explain this
circumstance was due to the fact that in the critical few minutes he was under
the train he was unconscious, or substantially so, from the blow on his head
as the outcome of stepping into the hole.
Reeves v. Sanderson Plumbing Products, Inc. (1065)(did not consider evidence in favor
of nonmovant)
Kind and amount of evidence necessary to sustain a jury’s verdict that an employer
unlawfully discriminated on the basis of age
Is defendant entitled to judgment as a matter of law when the plaintiff’s case
consists exclusively of a prima facie case of discrimination and sufficient
48
The court is not required to view the evidence in the light most favorable to the
party who won at trial
Judge could have made a mistake, like putting the burden of persuasion on the wrong
party, giving an erroneous instruction, or wrongly allowing the instruction of
improper evidence leading one to believe that justice would be served by having the
parties retry the case before a new jury
Will not justify an order for a new trial unless it was prejudicial
If the error or misconduct was harmless and did not affect the outcome of the
case, the new trial is inappropriate
Against the great weight of the evidence
Invites the judge to “substitute their fact finding for that of the jury”
If having given full respect to the jury’s findings the judge on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed, it is to be expected that he or she will grant a new trial
Aenta Casualty & Surety Co. v. Yeatts (1112)
Question whether Yeatts was engaged in criminal conduct and the verdict and
judgment were in his favor and the plaintiff brings an appeal
Plaintiff never made a motion for a directed verdict and even if they did, it
would have been denied and any JNOV would have been as well
Garrison v. United States (1113)
Where there is substantial evidence in support of the plaintiff’s case the
judge may not direct a verdict against him, even though he may not
believe his evidence or may think that the weight of the evidence is on the
other side; for, under the constitutional guaranty of trial by jury, it is for
the jury to weigh the evidence and pass upon its credibility.
He may however set aside a verdict supported by substantial evidence
where in his opinion it is contrary to the clear weight of the evidence, or is
based upon evidence which is false; for, even though the evidence be
sufficient to preclude the direction of a verdict, it is still his duty to
exercise his power over the proceedings before him to prevent a
miscarriage of justice
Granting or refusing or a new trial is a matter resting in the sound
discretion of the trial judge, and that his action thereon is not reviewable
upon appeal, except in exceptional circumstances
Do not believe the denial of the motion amounted to an abuse of discretion or
that there are any of the special circumstances which would subject his action
to review by this court.
In Re Green’s Estate (1114)
Contended court erred in granting a motion for a new trial on the ground that
the evidence as a whole was insufficient as a matter of law to support a verdict
for respondents
When the motion is granted as here for insufficiency of the evidence, it is only
in rare cases showing abuse of discretion that an appellate court will interfere
because the trial judge must weigh all the evidence and determine the just
conclusion to be drawn therefrom
52
It cannot be held that a trial court abused its discretion where there is a
conflict in the evidence or where there is any evidence which would support a
judgment in favor of the moving party
If A v. B and A wins. B moves for new trial. Cannot be an abuse of
discretion if there is a conflict in evidence or where there is any evidence
which would show the jury could have found for B on the evidence.
There is substantial evidence in the case supporting the trial court’s action and
we should not interfere with its order granting said motion.
Marsh v. Illinois Cent. R. Co. (1115)
District judge granted judgment nonwithstanding the verdict, but denied an
alternative motion for new trial
Believed the evidence was insufficient to go to the jury
Court of appeals reversed
Believed the weight of the evidence is overwhelmingly against the
plaintiff but we do not agree that the grant of a judgment nonwithstanding
the verdict was therefore justified
Could not grant a JNOV but was allowed to grant a new trial although
there were no errors of law
Dyer v. MacDougall (1115)
When passing on a motion for a directed verdict must disregard his own views
of witnesses’ credibility and therefore of their demeanor that he believes or
disbelieves some of the testimony is irrelevant
Judge must not deprive plaintiff of any advantage they may derive from
having the jury pass upon the oral testimony
He can base his actions on his belief or disbelief of witnesses on a motion
for a new trial but not JNOV
Another troublesome basis for an order of a new trial is that the damages awarded in
the verdict were excessive or inadequate
Question to ask: whether the damages reflect appropriately: Federal courts may
apply a “Shock the Conscience” test
Allowed to order a new trial when the jury’s verdict deviates materially from
verdicts returned in similar cases.
Permits a judge to intervene more permissively than the ordinary federal
shocks the conscience standard
May grant a partial trial as to damages only
Or might consider a conditional order of new trial (Remittitur and additur)
Would grant a new trial on damages only if the party rejects the condition the
court puts on the order
Remittitur
Court may try to pressure the plaintiff to remit what the court believes is
excessive damages
It is permitted in most state courts.
It is permitted in federal court only if the court allows the plaintiff the
option of accepting either:
(1) the figure set by the court
Or (2) the order of new trial
53
28 days of entry of the judgment and this evidence is likely to change the
outcome of the case
Patrick v. Sedwick (1127)
P action for medical malpractice alleging permanent injuries
P won on liability
D moved for a new trial because doctors devised a new treatment that
would ameliorate P’s injuries and therefore should reduce his damages
Trial court denied the motion
No assurance that the improvement would be permanent
Motion for new trial on the grounds of newly discovered evidence
must meet the following:
(1) must be such as would probably change the result on a new
trial
(2) must have been discovered since the trial
(3) must be of such a nature that it could not have been discovered
before trial by due diligence
(4) must be material
(5) must not be merely cumulative or impraching
Must relate to the facts which were in existence at the time of the
trial
American Civil Liberties Union v. Department of Defense (1128)
P sought documents under Freedom of Information Act pertaining to
the treatment of detainees and to interrogation methods used against
top Al Qaeda members
P moved under 60(b)(2) and 60(b)(6) based on the new evidence in
media showing evidence agents participated in interrogation of
detainees
Needed to show for 60(b)(2):
(1) Newly discovered evidence is of facts existing at the time of
the prior discussion
(2) the moving party is excusably ignorant of the facts despite
using due diligence to learn about them
(3) the newly discovered evidence is admissible and probably
effective to change the result of the former ruling
And (4) the newly discovered evidence is not merely cumulative of
evidence already offered
Needed to show for 60(b)(6):
(1) Asserted grounds for relief are other than those recognized in
clauses 1 through 5
And (2) extraordinary circumstances justify relief
Court found media reports would not have changed the earlier ruling
and were merely cumulative of evidence already submitted
Believe it fell under newly discovered evidence so 60(b)(6) not
available
55
Finality/Res Judicata
Case 1 has ended and a judgment has been entered. Question we ask is whether that
judgment from case 1 precludes anyone from litigating anything in Case 2, which is
pending. Mat do so through claim preclusion or issue preclusion
Both are affirmative defenses under Rule 8(c)(1)
Once the defense is raised, they bear the burden of proof
Important policies
Finality – litigation must be finished at some point
Repose – to know that she cannot be sued repeatedly on the same claim
Consistency – if relitigated, there is a chance it would be resolved differently in
different cases
Efficiency – litigation is publically funded and want to make sure resources are not
wasted
Claim Preclusion/Res Judicata (the thing has been decided)
Gets only one opportunity to assert a claim
Three requirements for claim preclusion
(1) Case 1 and Case 2 must have been brought by the same claimant against the
same defendant
Works for all claims. Do not need to just be by the plaintiff. Are for any
claimant (Meaning counterclaims)
Can only be asserted against someone who was a claimant in Case 1
Nonparty preclusion
Can only occur when the nonparty is in privity
(2) Case 1 must have ended in a (a)valid, (b)final judgment (c)on the merits
(a) Valid
Competence of the court in Case 1
Did the court have subject matter over the case and personal
jurisdiction over the parties?
If yes, then valid.
(b) Final Judgment
One that ends the litigation on the merits and leaves nothing for the trial
court to do but execute the judgment
Does not apply to interlocutory orders because they may be amended
during the litigation
(c) On the Merits
For a valid final judgment to have a preclusive effect, it must have been
based on the facts underlying in the dispute, on the question of who did
what
MERITS:
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Three requirements
(1) Issue must have been actually litigated
Did Case 1 go to trial and evidence get presented on the particular issue?
Does not need to be sufficient evidence to meet the burden at trial
Look at the decisions/transcripts/pleadings
Merely raising an issue in pleading doesn’t count
Summary judgment/dismissal with prejudice can carry issue preclusive
effect
Determining there is no material factual dispute is an adjudication on
what facts exist and constitutes litigation
Cromwell v. County of Sac (1237)
Sued to recover bonds issued by the county because the bond issuance
was fraudulent
Case 1: Cromwell sued the county to recover on certain claims for
interest on particular bonds
County proved the bond issuance was fraudulent
Case 2: sued the county to recover on different claims for interest on
the bonds because he was a Holder in due course (HDC) and then they
must pay even if it is fraudulent
County was entitled to issue preclusion on the fact that the bond
issuance was fraudulent, but Cromwell wanted to say he was an
HDC and he was entitled to do so.
Reason why could say it was fraudulent because it was litigated
and decided in Case 1 but the HDC issue was not litigated or
decided in Case 1
(2) Issue must have been necessarily decided
May present alternative theories of recovery at trial
Once one such theory is established it may ignore the others
General verdict in favor of the claimant is never ambiguous. Found that A
was not negligent and Z was negligent
General verdict in favor of the defendant is ambiguous. Could have found
that A was negligent, Z was not negligent or both of the above. No issue
preclusion.
Russel v. Place (1243)
Case 1: for more than two years it was used by the public so the patent
is no good so it can’t be enforced
First court determined infringement but sued on fat liquor and leather treatment.
Not clear if the court ruled on 1 or both of those. P sued again for infringement.
Case 2: two parts of the patent so couldn’t tell which one was used
No issue preclusion- we don’t know if they decided on both or not.
It was a general verdict, so we need to relitigate.
It was not necessarily decided because didn’t know if it was the
fat liquor or the leather treatment or both. Special verdict form
would have resolved it
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Concerned about wait and see where it would be unfair to defendant because
give plaintiff a windfall
Parklane Hosiery Co. v. Shore
Violation of federal securities laws by a corporation and some of its
managers
Case 1: SEC filed an administrative enforcement proceeding against the
various defendants alleging they had issued a materially false and
misleading proxy statement in connection with the merger. Sought only
equitable relief
Found the proxy statement was materially false and misleading
Case 2: private palintiffs sued the same defendants on the same claim
concerning the same proxy statement
Defensive use of issue preclusion incentivizes the claimant to join all
potential plaintiffs in Case 1 where offensively it has the opposite effect
Offensive will only apply where it will not reward a private plaintiff
who could have joined in Case 1
Could be unfair to defendants where:
Sued for a small amount of money and might have little
interest to defend with vigor then Case 2 someone uses
offensive preclusion for a large amount
Multiple claims would be unfair to penalize for one when won
the others
Unfair if did not have full and fair opportunity to litigate in
Case 1
Allowing preclusion would not promote inefficient litigation.
The plaintiffs could not have joined because C1 was brought by the SEC
No unfairness was present
Defendant’s had every reason to litigate vigorously
No inconsistent judgments on the books. The only judgment was
unfavorable to the defendants
No procedural opportunities that would justify a refusal to allow the use of
offensive collateral estoppel
Erie Doctrine
Erie problems arise only in federal court and concern the choice between federal and state
law
Generally arises in diversity of citizenship cases because in a federal question case it
arises under fed law
The constitution requires the application of state law to some aspects of the case
Vertical Choices of Law vs. Horizonal choice of law
First need to determine if you are apply federal or state law (Vertical)
Start with the Rules of Decisions Act
Federal courts must apply state law as the rules of decision in civil cases,
except where federal law applies
Then determine which state’s law governs (horizontal)
Swift v. Tyson
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Swift was a diversity of citizenship case brought in federal court in NY. Typical rule
was that discharge of debt was not consideration in NY. The court embraced the
modern principle that discharge of debt was consideration
Interpreted the phrase “laws of several states” in the Rules and Decisions Act to
include only state statutes and state common law of local concern
With matters of general concern Courts concluded that federal courts in diversity
cases were free to apply their own conception of General common law
Determined that decisions of the court did not constitute laws (Odd)
Swift was based on the notion that there was only one true common law
Determined that the federal law was assigned the job of determining the content
The general common law to be applied depended on which court state or federal was
hearing the case. Led to vertical disuniformity
Black and White Taxicab Co. v. Brown and Yellow Taxicab Co.
People could only use taxicabs provided Brown and Yellow at the railroad and other
companies including Black and White opposed the contract cause it froze them out of
customers
Kentucky courts held exclusive dealing contracts were void
BY wanted to sue BW in federal court to argue federal general common law would
enforce the exclusive contract
Issue was that they were both citizens of KY so BY dissolved the corporation and
reincorporated in TN making the corporation a citizen of TN and then they went
to Fed court and got an injunction. Supreme court upheld this injunction
Erie v. Tompkins
Tompkins (PA) was walking on a path next to the train track in PA when the Eire
Railroad passed from behind and something hit Tompkins on the head and he
suffered injuries. He sued in NY Fed Court.
Tompkins argued that the path was commonly used and that he was an invitee having
a duty owed to him. Railroad contended that he was a trespasser and they were not
liable because it was not willful or wanton harm
State law on this was clear: he was a trespasser and that he would lose. Sued in Fed
Court for the general common law where he would be an invitee
Four parts of the opinion
Determined there was a mistake where the courts were meant to apply statutory
and common law from the rules of decisions act
Determined the one true common law had failed in practice
Created discrimination by noncitizens against citizens because noncitizens
could select the court
Cant remove if sued in own state court
Noncitizen advantage because they could pick federal court or state court
and could have different laws in each
Court took a turn saying “If only a question of statutory construction were
involved, we should not be prepared to abandon a doctrine so widely applied
throughout nearly a century.”
Determined that it overruled Swift because it was unconstitutional
Can’t have more power than the sovereign that created you (Congress)
Constitutional basis
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Scalia Dissent- He thinks the rule fails the scope test [plain meaning test], its not
broad enough because it leaves no room for the operation of state law because it
doesn't mention forum selection clauses. The language of fairness and justice is
forward looking not backward [clause]. He thinks it comes from judge made law
and then goes to outcome determinative.
Shady Grove Orthopedic Association, P.A. v. Allstate Ins. Co.
Assertion of a statutory claim under NY law for allegedly unpaid interest
concerning insurance benefits
Under NY law it couldn’t be a class action but under Rule 23 it was allowed
to be a class action
Rule 23 answers the question in dispute and therefore if valid would apply
under Hanna
Conflict
NY State law cant bring this as class action
Federal law you could bring class action
Scalia plurality
Plain meaning of Rule 23 conflicts with state law
When you find that conflict, we just ask if the federal law is arguably
procedural
Some action Rule 23 controls and some don’t
Stevens
Agrees there is a conflict
In order to determine federal rule you must ask if state rule is bound up with
state rights so much that it is substantive
Dissent
Agrees with Steven in looking at State law
Think State law is bound up and Steven analyzed state law wrong
Only good for guidance in future cases
Semtek v. Lockheed
1. Case 1 – Federal District Court
2. Case 2 – Semtek sues again in MD
a. Longer statute of limitation
3. Lockheed moves to dismiss for claim preclusion (same parties)
4. Court concludes that the dismissal was “on the merits” and had a
preclusionary effect
a. Rule 41(b)
i. Dismissal on the merits is adjudication on the merits
unless the court states otherwise
ii. Not about preclusion, its about when you can file in
the same court
iii. Broad Rule 41(b) reading may violate Rules
Enabling Act
5. Federal judge made law decides what preclusive effect it will have
on a federal judgment
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