Jurisdiction in Federal Courts: Wrongful Death Action and Personal Jurisdiction, Study notes of Law

Download Jurisdiction in Federal Courts: Wrongful Death Action and Personal Jurisdiction and more Study notes Law in PDF only on Docsity! Chapter 1: An Overview of Procedure 01/07/2007 A. The Idea and Practice of Procedure Procedure: how rights are enforced in courts procedure law (aka adjucative law): goal is not to affect behavior FRCP 26 – Duty to Disclose; General Provisions Governing Discovery (p.447) a. there are certain things you must provide to the other side without a discovery request name and phone of anyone with discoverable information (and the subject) that you may use to support your claims or defenses How do we know if a procedural rule is a good one? accuracy – want to be able to apply the law correctly, get the desired result efficiency – not necessarily at the lowest cost but one that promotes fairness may have the opposite effect of accuracy (ie res judicata) US – Adversary System plaintiff and defendant direct the course of the litigation and procedural rules provide guidance as to how resolved ie: parties decide what evidence they want in discovery, procedural rules say how to get it courts are the referees Moving towards a system where courts take a more active role B. Where Can Suit Be Brought? Hawkins v. Masters Farms, Inc. (2003) p. 6 Facts: Kansas: M’s tractor crashed into C, C died. H sued M as representative of C’s estate. claim brought in federal court but under Kansas state law (wrongful death action) – could have been brought in state court M files motion to dismiss – claims that there is no diversity of jurisdiction and thus there is a lack of jurisdiction in federal court. Court Grants. Because the court has not decided anything about the merits of the case, it can be adjudicated in another court – the dismissal is not an adjudication of the merits. Issue: Subject matter jurisdiction? Holding: Incomplete diversity, case dismissed. Analysis: Subject matter jurisdiction: the power to hear that type of case General Limited: court can only hear certain types of cases ie: Federal Courts, probate courts, small claims court Personal jurisdiction: court has the power to adjudicate the parties’ rights – usually the defendant 01/08/2008 Constitution – Article III Section 1 - establishes US SC and gave Congress the power to create inferior courts to rule on fed law Section 2 – Federal Court Subject Matter Jurisdiction – includes, but not limited to: all cases arising from: constitution, laws of the US, US treaties cases affecting ambassadors, other public ministers, and consuls diversity jurisdiction – between citizens of different states US Code – Title 28 §1331 – Fed Cts have original jurisdiction if case involves Constitution, laws or treaties of US §1332 – Other times that Fed Court has original jurisdiction civil matters exceeding sum of $75,000 if between ... citizens of different states, etc... ol Must have complete diversity to fall under federal jurisdiction – both Ps conflict with both Ds citizenship is usually established at the time that the case is filed when filing as personal representative, use citizenship at the time of death of the deceased personal representative is deemed to be citizen of place where deceased was Person is a citizen of the state where he or she domiciled – (a) residence and (b) intent to remain. Court determined C resided, and intended to remain in Kansas, therefore there was incomplete diversity and Fed Ct lacked subject matter jurisdiction in this case, had to go beyond the face of the complaint and look to evidence to determine intent to remain – you do not have the definite intention to leave at some point in the future once you establish a citizenship in a state, you remain a citizen of that state until you have the intent to remain indefinitely in another state in which you are residing Party claiming federal subject matter jurisdiction has the burden of proof. (this case estate) This case can now be re-filed as a jurisdictional matter in state courts. Statute of Limitations may pose a problem. Some states have a saving action – if the action is properly filed, will toll SOL for the fed. litigation Missouri – has subject matter jurisdiction but probably does not have personal jurisdiction over the defendants How do Fed Courts determine personal jurisdiction? FRCP 4(k)(1)(A) - Fed DC, in general, asserts personal jurisdiction to the same extent as the state courts 01/09/2008 Jurisdiction Subject Matter: court is authorized to hear that type of case cannot be consented to if the court lacks jurisdiction Personal: court is authorized to restrict the individual on trial’s rights can be consented to if the court lacks jurisdiction Venue: localizes where a case can be tried within the judicial system (ie which district) C. Stating the Case 1. Lawyer’s Responsibility Bridges v. Diesel Service (1994) p.13 Facts B brought action against DS for wrongful termination under the American with Disabilities Act in District Court (Fed Subject Matter Jurisdiction established because the case arises out of federal law) Court dismissed claim without prejudice for failure to exhaust administrative remedies – there was a pre-requisite of filing with EEOC before proceeding with ADA trial DS now moves for sanctions under FRCP 11 claiming that signing of the document was objectively unreasonable under the circumstances Issue: Is this a violation of FRCP 11 in which sanctions are proper? Holding: No. FRCP 11 is intended to prevent misconduct – procedural rather than substantive error. Analysis FRCP 11(b) – by signing and submitting to court, you are certifying that you have conducted a reasonable inquiry under the circumstances that (1) not being presented for improper purposes (2) claims, defenses are warranted by existing law or are non-frivolous argument for extending 1 Rule 20: Permissive Joinder of Parties (a)(1): Plaintiffs – “same transaction or occurrence” (a)(2): Defendants – similar standard Rule 21: under the federal rules, misjoinder is not grounds for dismissal of the action – rather, if misjoined, party(s) will be dropped or claim can be severed Note: Rule 42 allows the ordering of a separate trial for convenience, to avoid prejudice or to expedite and economize this difference from severance in that it remains part of the same action, merely a separate trial severance is a completely separate action if the claims are interrelated, and there is a need for same judgment, then will do separate trials if there will be no harm or prejudice created by separate judgments, will go to severance Rule 19: Compulsory Joinder ie: 3 claims to interest in the same property (A, B, and C). A sues B seeking partition. Should C be joined? C would be prejudiced by the judgment – would have issues with his interest in the property, even if C is not technically legally bound ie: if C wants to sell his interest, would run into issue when the court records say that A and B each own half of the property Rule 19: looks to whether the absence of C would prejudice those parties in the complaint or C himself necessary party: one who should be joined if it is feasible (absence causes prejudice) – see above indispensable party: if the person is so important that the case should not proceed without them (ie: in cases where the court lacks jurisdiction) that the court will dismiss rather than go on Larson v. American Family Mutual Ins. Co Insured (P) v. Insurance Company and Lawyer (D) 2007 U.S. Dist. LEXIS 41864 (D. Colo. 2007). NATURE OF CASE: Motion to amend complaint to add party. RULE OF LAW: (1) An amendment to a complaint seeking to join a party to a lawsuit that is filed one month after complainant confirms the party's involvement in the lawsuit is timely filed under the Federal Rules of Civil Procedure. (2) All persons may be joined in one action as defendants if claims against them arise out of the same transaction or occurrence as the other claims. FACTS: The Larsons (P) retained an attorney, Brad Ross-Shannon (D), to sue American Family Mutual Insurance Company (D), which held their homeowners' policy, after the company (D) failed to pay a house fire claim. Ross-Shannon (D) did not pursue their claim because he was trying to be hired by American Family (D) in other matters. The Larsons (P) fired Ross-Shannon (D) and hired another attorney, who initially filed a complaint in April 2006 against only American Family (D), in state court. American Family (D) removed the case to federal court on the basis of diversity jurisdiction. After the insurance company (D) provided discovery in January 2007, the Larsons (P) learned that Ross-Shannon (D) was in talks with the company (D) while he was representing the Larsons (P). The Larsons (P) attorney then sought to amend their complaint to add Ross- Shannon (D) as an additional defendant, based on breach of fiduciary duty, legal malpractice, and conspiracy, claims that would destroy diversity and force a remand to state court. Ross-Shannon (D) and American Family (D) objected, arguing that the amendment was not timely filed, since they knew of the purported claims against Ross- Shannon (D) in February 2006, and waited until February 2007 to filed the amendment, and that joinder of new parties should not be allowed, because the new claims do not arise out of the same transaction or occurrence as the other claims. ISSUE: (1) Is an amendment to a complaint seeking to join a party to a lawsuit that is filed one month after complainant confirms the party's involvement in the lawsuit timely filed under the Federal Rules of Civil Procedure: (2) May all persons be joined in one action as defendants if claims against them arise out of the same transaction or occurrence as the other claims? HOLDING AND DECISION: (Figa, J) (1) Yes. An amendment to a complaint seeking to join a party to a lawsuit that is filed one month after complainant confirms the party's involvement in the lawsuit is timely filed under the Federal Rules of Civil Procedure. The Larsons (P) may have suspected that Ross-Shannon (D) was negotiating with American Family (D) before February 2006, but could not confirm that it was so until American Family (D) provided discovery in January 2007. In addition, they would be prejudiced if they were denied the opportunity to amend their complaint to add these claims in this case, because they would then be required to bring the claims in a separate and somewhat duplicative lawsuit in state court. (2) Yes. All persons may be joined in one action as defendants if claims against them arise out of the same transaction or occurrence as the other claims. One theory proposed in the amended complaint is that the delay by Ross- Shannon (D) in the filing of a lawsuit against American Family (D) and American Family's (D) denial of payment of the claim was due in part to the fact that the lawyer (D) and insurer (D) were discussing the possibility of joining forces. The breach of their respective duties arise out of the same occurrence or transaction, or series of occurrences or transactions, and it would be inefficient to have one set of claims tried against American Family (D) in federal court and another set tried against the lawyer (D) in state court. Joinder is therefore proper. Remanded to state court. ANALYSIS: Note that the court looked for evidence that the plaintiffs tried to join the lawyer to the case in order to cause the cause to be remanded to state court, but did not find any such evidence. But even if the court did find such evidence, the plaintiffs were within their rights to amend the complaint. Bridgeport Music, Inc. v. 11C Music (2001) p. 24 Facts: B brought action against over 770 music and entertainment companies for copyright infringement – alleging that they are allowing a “sampling” of music in which they claim ownership interest taking a clip of the sound recording and incorporating that same clip in another song defendants challenge the claim under Rule 20(a) – improper joinder say that each count will require a unique set of proof Issue: Improper Joinder? Holding: Yes. It is different defendants doing discrete acts, just happen to involve the same plaintiff and be similar in nature. just because the claim is the same does not mean that it is the same transaction Analysis Note: copyright infringement is in the exclusive jurisdiction of the federal courts Plaintiff brought as one action to show the compound effect defendants will claim that the work is long, merely used a couple notes plaintiff is trying to show a pattern – wants it too look like a significant problem Court also says that even if series of occurrences, still cannot join Rule 21: has been interpreted to give the courts discretion in severing lawsuits 01/15/2007 Rule 14: Third-Party Practice P D 3rd Party (ie: indemnity, insurance company) this rule collapses the 2 separate actions into 1 even though the D hasn’t yet been found liable, can be brought into the action from the outset so that they will be there to pay judgment when it is rendered this is not a device to say that somebody else is liable for fault and not me (ie: I didn’t hit the plaintiff, X did) in that case, D wouldn’t be asserting a defense (3rd Party P) as opposed to saying 3rd party D “Impleader” 1 2. Intervention Rule 24 - Intervention allows someone who is outside of the action to invite themselves into the action as either a 3rd party P or 3rd party D 2 Types Intervention of Right: similar to necessary joinder concept Permissive Intervention Rule 22 – Interpleader deals with the situation where you have something that more than one person wants, but you don’t want it ie: insurance company issues life insurance policy, 2 people claim that they are beneficiary, the insurance company can go to court and interplead both, deposit money into the court, and the 2 claimants would be left to fight it out 3. Class Actions Extension of the necessary parties idea – in these cases, the judgments would affect so many people, but the individual results may not be enough to warrant litigation A class of people is represented by a certain number of named parties you have the opportunity to opt out of the class so that you can sue on your own (if you don’t opt out, then res judicata will bar any future suit based on the same action) E. Factual Development – Discovery Federal Rules assume that the plaintiff and defendant will conduct a reasonable investigation under the circumstances, using the devices open to them without the aid of the court ie: surveillance, checking the internet, etc. the fact investigation is limited, and that is why the pleading does not have to be extremely specific Rule 26-37: Federal Discovery Rules 26(a) Required Disclosures mandatory disclosures now required even before discovery, you have to turn over without being asked Initial: who you plan to call as witnesses, what types of documents you plan to use, etc, in aid of your own case Pretrial these disclosures must take place before discovery begins (what was once discovery are now termed additional discovery tools) depositions (30) , interrogatories (33), production of documents (34), physical or mental examinations (35), requests for admissions 26(b) Scope of Discovery (1) any nonprivleged matter that is relevant to any party’s claim or defense relevant information need not be admissible at trial if the discovery appears reasonably calculated to the discovery of admissible evidence ie: hearsay is discoverable, but cannot be admitted at trial (2) limitations on frequency and intent 01/16/2008 Butler v. Rigby (1998) p.31 Facts lawsuit for automobile accident assume negligence and thus state law, probably in federal court because of diversity defendants filed notices of depositions on AMG and MHC could have done that and had their verdict correctly set aside would be if the jury itself was unreasonable. 01/22/2007 H. Former Adjucation Rush v. City of Maple Heights (1958) p.46 Facts R’s motorcycle ran into hole in the road, R thrown off an injured. Brought separate claims for damage to the motorcycle and then for personal injury Motorcycle – Municipal Court – ruled in favor of R Personal Injury – Court of Common Pleas – determined that issues of negligence and proximate causation had been established at the previous trial, only thing to determine was measure of damages, judgment entered for R City appeals –claims error in allowing R to split cause of action and file in separate courts Judgment reversed Issue: Can a plaintiff file separate claims for injury to person and property? Holding: No. Rule: A person may maintain only one action to enforce his rights existing at the time such action is commenced. Analysis Former Adjudication Collateral Estoppel: issue preclusion prevented from raising issue in a later action Res Judicata: claim preclusion if the same cause of action, than everything in the second lawsuit will be precluded, not just the issues Rush’s lawyer was relying on stare decisis – in Vasu v.Kohlers, the Supreme Court had split injury to person and property into 2 separate and distinct clams the Court overrules this past decision by adopting persuasive evidence of the majority rule used in other states the point of moving to the broader scope of causes of action is to force the plaintiff to join all claims from the same tortuous act or else they will lose the ability to bring the claim to trial increases efficiency, fosters policy of repose Note: could husband bring claim that he was injured? Yes, res judicata applies only to the individual. But, under the federal rules, he is allowed to join them – res judicata simply wouldn’t prevent him from filing claim in his own right. Doctrine of Mutuality of Estoppel – applies in FL, but Federal Courts and other states have abandoned in regards to the exact same issue (P1 and P2 are in the same accident and bringing the same cause of action) but P1 and P2 file separate claims, the judgment in the first case is not binding on the second 01/23/2007 I. Appeals State Court System Trial Court Appellate Court Supreme Court (FL-Circuit Ct.) (FL- Dist. Ct. of App) Review by the intermediate appellate court is by right Review by the Supreme Court is discretionary Federal Court System Trial Court Appellate Court Supreme Court (District Ct) (Circuit. Ct. of App) Review to the Circuit Court of Appeals is by right Review to the US Supreme Court is discretionary - writ of certiorari 1 can/will review when lower federal courts disagree, when State Supreme Court has decided a case on federal law in diversity (Erie cases) – some states have provided a certification procedure whereby federal courts can certify questions to the State Supreme Court so that the federal court has a better idea on how State would find the issue if the SC chooses not to answer, then the federal court is simply left trying to guess what the State SC would do Apex Hosiery v. Leader (1939) p.51 Facts P brought an action for treble damages under the Sherman Anti-Trust Act Court makes order for the discovery and production of documents for inspection, copying, and photographing by the plaintiff for use in trial defendant appeals this order – want a reversal of the order to produce Issue: Is an order pertaining to discovery appealable? Holding: No. As a general rule, in the federal justice system, only final orders (those that would end the case) are appealable. Interlocutory (intermediate) orders, as in this case, are generally not appealable. Analysis under the version of FRCP in place at the time of the case, to begin discovery you had to have court order, you could not simply request from the party – this is what happened here this court notes that the issue on appeal could have great effect on the outcome of the case, but nevertheless these interlocutory orders are not appealable WHY? if reviewable, litigation would be extended further, would interrupt discovery NOTE: all orders of a magistrate judge, though interlocutory in nature, are reviewable by the district judge these are not considered appeals - magistrate is like "assistant judge" just because interlocutory orders are not immediately appealable does not mean that they are not reviewable once the final judgment is rendered, assuming that the issues have been preserved, Appealability: the ability to take the order up right now Review ability: applies to most every legal issue in the case – will be reviewable at some point Note: “Per Curiam” – unanimous and unsigned in the above case, probably means that the opinion was written by a law clerk – used if straightforward matter also used when court is split significantly but nobody wants to write concurring or dissenting opinion (less often the reason for per curiam opinion) 28 U.S.C. §1292 (a) (b) if the DC makes a decision that this is an interlocutory order worthy of review, CoA can choose to review it this is very rare Immediately Appealable Orders? Butler v. Rigby – the decision to order, and the decision not to order, production of certain documents NO Bridgeport Music – separate trials and severance ct thinks factual issues closely interlaced – simply order separate trials not until after both trials (entire case has been litigated) is final judgment entered but, if severed – completely separate trials, then each enters final judgment thus if separate, the result from the first trial is not immediately appealable because no final judgment has been entered but, if severed, immediately appealable because the case has been disposed of Bell v. Novick – court denied more specificity NO an order denying a motion to dismiss allows the case to go on but, an order granting a motion to dismiss ends the case and thus IS appealable Houchins Case an order granting summary judgment is immediately appealable, but an order denying is not one exception: when has qualified immunity from suit – meaning they are not qualified to be subjected to litigation – an order denying their immunity is immediately appealable Appropriate Standards of Review issues of law are reviewed de novo: the court starts from scratch (are not bound by the lower courts finding) ie: if the jury instructions correctly stated the law ie: if it was proper to grant a motion to dismiss, summary judgment, or JNOV on questions of fact, the court of appeals adopts a more deferential standard – Rule 52(a)(6) must be clearly erroneous for a finding of fact to be set aside why? the trial judge is the one who is there – probably in a better position to determine credibility 1 if there was no type of notice (even constructive) then no jurisdiction; but if there had been notice, then the attachment would serve to allow jurisdiction based on quasi in rem f. if you do not attach from the outset, you cannot obtain quasi in rem jurisdiction g. a state can adjudicate the status of persons within its state – even though it directly effects another party h. in this case, seeking personal judgment against B, thus need personal jurisdiction over B i. here, B instead of waiting for a default judgment to be rendered, B argued before judgment and lost in enforcement, B again argues that there was lack of jurisdiction precluded by res judicata? B made special appearance in Minnesota for sole purpose of defending himself (special appearance) – allows you to contest lack of jurisdiction without submitting yourself to general jurisdiction even if Minnesota had gotten it wrong – B had subjected herself to her court, thus the Minnesota court had jurisdiction to determine whether had jurisdiction and B cannot raise the claim again in a separate suit Pennoyer v. Neff – you can consent to personal jurisdiction if defendant comes in and fails to make a special appearance, consenting to jurisdiction of the court if the defendant does make special appearance, the court has jurisdiction only over that issue 01/28/2008 Consent as basis for personal jurisdiction was later extended to include implied consent many states have statutes that by driving on highways on state, you consent to having a state official represent you in any action resulting from collision of that state Hess v. Pawloski: defendant was involved in an accident on Massachusetts highway, asserted jurisdiction based on above type statute this is “implied consent” – not consent in a meaningful sense to be tried in that state gives rise to specific jurisdiction – applies only to certain type of claim Justifications state has interest in protecting its citizens from nonresident drivers you are getting benefit from driving on highways, and they fact that they are regulated based on state laws Court said even though left the state, still subject to jurisdiction because he came into the state Raising Claims of Personal Jurisdiction: special appearance – allows you to come into the state solely for the purpose of contesting the jurisdiction under Federal Rules – no special appearance FRCP 12: defense can be raised in the answer or in a pretrial motion see (g) and (h) – sequence in which must be waived; lack of jurisdiction can be waived if not raised at the proper time Collateral Attack vs. Direct Attack Collateral Attack- An attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than within the original action or an appeal from it. Direct Attack- As applied to a judicial proceeding, an attempt by appellants to avoid or correct a judgment in some manner provided by law B. The Modern Constitutional Formulation of Power 1. Redefining Constitutional Formulation of Power Corporations were always an issue for personal jurisdictions – service of process rules did not work very well corporation is a fiction – entity created by operation of law if corporation was created by laws of state, it is a citizen of that state but what about the other states? Courts tries to look at it under both options created under Pennoyer – seemed inconsistent (diff. jurisdictions) consent – state can create presumption that by doing business within the state, you are consenting to jurisdiction within that state this would give the state the power to adjudicate only those claims against the corporation that involved activity within the state... state gets specific jurisdiction physical presence – if you say that doing business in the state is the same as personal service of process, then you are acquiring general jurisdiction once they leave the state, lose jurisdiction the 2 concepts flow together into “doing business” as a basis for asserting personal jurisdiction over corporation Milliken v. Meyer 2 partners sued each other; Meyer was resident in Wyoming but was served in Colorado Court determined that it was OK even though process was served outside of the states boundaries court says that by being a domiciliary of a state, the courts of that state could exact personal jurisdiction - mutual benefits established domicile as basis for jurisdiction (residence plus intent to remain) International Shoe Co. v. Washington (1945) p.76 Facts: ISC is a Delaware corporation with its principal place of business in St. Louis, MI engaged in the manufacture and sale of shoes and other footwear ISC maintains no offices in WA, no contracts for sale or purchase there, no stock in that state, makes no deliveries in interstate commerce employed 11-13 salesman who resided in WA (where their principal activities occurred) orders were shipped f.o.b. from points outside of WA into the state (invcd. at place of shpmt) Washington sues to recover unpaid contributions to the state unemployment compensation fund statute allowed, and WA complied with both, service of process against one of the employees in the state and mailed process to headquarters ISC contends that is activities within the state are insufficient to confer jurisdiction and thus it would be a denial of due process to subject them to taxation. used the device of special appearance to raise defense – lost in admin agency and state courts US SC: affirms Issue: Within the limitations of the Due Process clause of the 14th Amendment, has ISC, by its activities in the State of Washington, rendered itself amenable to proceedings in the courts of that state? Holding: Yes (thus, it is not a denial of due process to exact taxes on them) Old Rule: jurisdiction to render judgment in personam is grounded in de facto power over their person New Rule: To be subject to a state’s jurisdiction, a party must have certain minimum contacts with it such that maintenance of the suit does not offend traditional notions of fair play and substantial justice Analysis Assertion of jurisdiction by a state where it does not comply with requirements violates due process, thus it is a federal constitutional issue (giving rise to jurisdiction) if you are within the boundaries of the state, then personal service of process still sufficient but, when not within the boundaries, then minimum contacts are sufficient Previous Law Bases for Personal Jurisdiction 1 presence – “doing business” consent implied consent “doing business” driving + tort domicile ISCo – the Court is looking back over all the decisions (general rule plus exceptions) and looking at the underlying principle behind them saying the Courts in the past were instead basing decisions unconsciously on the minimum contacts principle (which is broad enough to cover these exceptions) Minimum Contacts: 2 Components continuous and systematic activities in the state give rise to the claim Insufficient isolated and casual unrelated to claim 01/29/2008 Gives Rise to Claim Unrelated to Claim Isolated and Casual II - ? III - NO Continuous and Systematic I – YES IV -? Why Do These Matter? Relatedness: Related v. Unrelated Frequency : Isolated v. Continuous you receive benefits and protection and in return you have reciprocal duties II: MAYBE Hess v. Pawloski: was allowed – but, it was not based on this theory, it was the law Generally, the answer will be yes – look at the context IV: SOMETIMES this one is more uncertain if the state asserted jurisdiction in these claims – general jurisdiction The arrows above show the direction of increasing intensity frequency this is the area where there is jurisdiction relatedness All Personal Jurisdiction Questions: start with the analyzing the International Shoe framework E. Self-Imposed Restrains on Jurisdictional Power: Long Arm Statutes as a Restraint on Jurisdiction 1. Long Arm Statutes as a Restraint on Jurisdiction Every Assertion of Jurisdiction Requires 2 Things there is a statute authorizing the assertion of jurisdiction Defendants responded by entering special appearance – contended that the ex parte sequestration did not accord due process of law, that the property seized was not capable of attachment in DE and that they did not have sufficient contract with DE to sustain the jurisdiction of that states courts DE Courts: rejected s claims – asserted quasi in rem jurisdiction US SC: reversed Issue: Should the standard of fairness and substantial justice set forth in International Shoe Co. be held to govern actions in rem as well as in personam? Holding: Yes. Rule: all assertions of state curt jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. Analysis the court is asserting quasi-in-rem: using its jurisdiction over the stock to assert jurisdiction over the nonresident defendants the stock has nothing to do with the litigation itself attachment at outset of the litigation of property of defendant completely unrelated to claim Note: DE had statute saying that stock was property of state in which incorporated Why does it make sense that ISC should extend to cases involving the presence of property? asserting jurisdiction based on the presence of property is a fiction the presence of property has no significance unless it represents a contact The Court does not hold that presence of property in the state is irrelevant can provide evidence of contacts Also: for pure in-rem actions, the presence of property in the state is enough when the law suit relates to the property within the jurisdiction, it would make sense to assert jurisdiction (even if minimal contacts, highly related) Here: the stock is completely unrelated to the litigation and does not suggest contacts that would meet the other tests for jurisdiction – thus no jurisdiction Re-Evaluation of Harris v. Balk isolated, contact, likely not cause no grounds for jurisdiction What about real property? if law suit has nothing to do with the land, then probably still do not have jurisdiction might be sufficient if even though completely unrelated, totally continuous and systematic ie: deriving income off a farm that you own but do not work it yourself 3. Specific Jurisdiction 02/04/2008 World-Wide Volkswagen Corp. v. Woodsen (1980) p.98 Facts: Robinson’s bough Audi from Seaway Volkswagen in NY – driving it through Oklahoma, car was stuck causing a fire which severely burned mother and 2 children R’s brought a products-liability action in DC for County Creek, Oklahoma Volkswagen challenged Okla. from exercising in personam jurisdiction When Okla. S.C. denied writ, appealed to US S.C. Issue: In personam jurisdiction? Holding: No. Foreseeability alone is not a sufficient benchmark under the due process clause. Rule: It is the defendant’s conduct and connection with the forum State that determine whether he should reasonable anticipate being haled into court there. Analysis: Volkswagen carried on no activity whatsoever in the state R: argues that because could have foreseen the vehicle would travel there, should be subject to litigation there Due Process Clause is not violated if forum state asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state 1 Note: the manufacturer of the product (in this case Audi) will be subject to suit where the product cause injury issue comes in with those who precede and follow the manufacturer (ie Word-Wide) 02/05/2008 Burger King Corp. v. Rudzewicz (1985) p.114 Facts: Rudzewicz and MacShara opened a Burger King Franchise in Drayton Plains, Michigan in the course of opening, purchased supplies from BK Miami, went to training there, and negotiated with Miami Headquarters R and M fell behind in rent payments, BK first negotiated then sued in FL fed. District Court (invoking diversity and trademark jurisdiction) R and M challenged based on personal jurisdiction, DC entered judgment against them Circuit Court: Reversed BK appealed to US SC - Reversed Issue: Was there fair warning that particular activity may subject them to the jurisdiction of a foreign sovereign? Holding: Yes. Rule: fair warning requirement is satisfied if the defendant has purposefully directed his activities of residents of the forum and litigation results from alleged injuries that arise out of or related to those activities In appropriate cases the court may evaluate the burden on the defendant the forum State’s interest in adjucating the dispute the interstate judicial system’s interest in obtaining the most efficient resolution of controversies the shared interests of the several States in furthering fundamental substantive social policies Analysis There Are 2 Steps Long Arm Statute in this case looking for specific personal jurisdiction under keys acts required under a contract.... here not sending rental payments to Florida Constitution this is the focus of this opinion Court takes into the 2 of the 4 factors burden on defendants State’s interest Minimal Contacts Test does double duty purposeful availment 4 factors assessment Test Min Contact/ Purposeful Availment and Reasonableness a strong showing of one will require a strong showing of the other to overcome McGee: no problems asserting jurisdiction, way less contacts so why? McGee: was the big bad insurance company Here: poor little franchisees – less reasonable to subject them to jurisdiction in another state, need to come up with another reason why 02/06/2008 Asahi Metal Industry Co. v. Superior Court (1987) p.107 Facts Zurcher lost control of Honda motorcycle, filed product-liability action in California alleging motorcycle tire, tube and sealant were defective named Cheng Shin (Taiwanese manufacturer of tube) as defendant Cheng Shin filed cross-complaint seeking indemnification from Asahi (Japanese manufacturer of tube valve’s assembly) this is the only complaint remaining unresolved from the accident California Superior Court (the state trial court): found that it was not unreasonable that Asahi should defend claims of defect on international scale Asahi appeals to US S.C. Reversed. Issue: Does mere awareness that the components the defendant manufactured, sold, and delivered outside the US would reach the forum State in the stream of commerce constitute minimum contacts? Holding: No. Not reasonable. More care should be given in asserting jurisdiction in the international context. heavy burden on , little interest for state of adjudicate– perfect anti-reasonableness argument Analysis World-Wide: a consumer’s unilateral act of bringing defendant’s product into the forum State is an insufficient constitutional basis for personal jurisdiction over the defendant also looked into whether it would be reasonable and fair Sales: Asahis Cheng Shen Honda Zurcher Cheng Shen affidavit: Asahi is aware that the parts they make are incorporated in tires that will ultimately go into US and into CA Long Arm Statute: asserts limit to the extent of the Constitution and thus apply the same test 2 Part Tests (1) Minimum Contacts/ Purposeful Availment The “substantial connection” between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State” – this is not court holding (4/9 votes) Stream of Commerce position maybe (2) Reasonableness (Fair Play and Substantial Justice) court determines that the burden on this case would be severe (this is the holding) Should we have separate technology review standards or should we adopt technology neutral internet standards? Blue Note Case: name of NY Jazz Club and Record Label – trademark holder Columbia, Missouri – also opened a Blue Note claimed trademark violation sued in NYC – why? advertised on the internet, links to TicketMaster etc Court found no jurisdiction Zippo Case CA company provided information over internet, subscription service provided information to individuals in PA Zippo Mfg. in PA sued in PA for trademark infringement Court determined that there was personal jurisdiction here, there is a direct service to paying subscribers as opposed to Blue Note which was just informational Sliding Scale Test (mentioned in Pavlovich) 02/07/2008 Most Frequently Cited Test for Internet Cases: Sliding Scale most often cited from Zippo Case refers to the degree of interactiveness of the website more analogous to a store front Palovich v. Superior Court (2002) p.120 Facts Palovich operated a website that provided DeCSS program source code along with other information Palovich started the website while he was a student at Purdue in Indiana now resides in Texas and is president of a technology consulting company there The Code of the unencryption software contained some of the algorithms of the CSS software this is copyright infringement 1 Carnival Cruise Lines, Inc. v. Shute (1991) p.141 Facts: Shutes purchased tickets for 7-day cruise through travel agent in Arlington, WA; got on the ship in LA Face of Ticket: “Subject to conditions of contract on pages 1-3” one of the clauses stated that all disputes shall be litigated in the State of FL Ms. Shute slipped and fell – brought negligence suit in USDC for Western District of Washington Carnival moved for SJ – claiming that Shutes were required to being suit in FL DC: refused to enforce the forum-selection clause Court of Appeals: affirmed Supreme Court: reversed Issue: Should a forum-selection clause contained on cruise tickets be enforced? Holding: Yes. Forum-selection clauses will not be upheld if there is bad-faith motive, accession is obtained by fraud or overreaching, or if there was no notice of the provision. Analysis they argue that even if they had read the contract, there was no room for negotiation as to the clause therefore, they argue that there was no consent Carnival: in deciding that they will take this cruise, as opposed to many other available options, they are consenting Court Looked at: Carnival had its principal place of business in FL and leaves from FL ports Had they not met the personal jurisdiction, would there have been jurisdiction in WA? sliding scale – interactive websites, agents selling in the state entered into contract in Washington arises out because factual causal relation but the claim is not a contractual claim there is a little bit of an issue with minimum contacts 02/12/2008 D. The Constitutional Requirement of Notice Due Process Nexus Notice FL Long Arm Statute – Subsection (c) What is required to give constitutionally sufficient notice? Mullane v. Central Hanover Bank & Trust Co. (1950) p.146 Facts NY Banking Law §100c provided for accountings of fund to be made 12-15 months after the establishment of a common trust fund, and then for every three years thereafter common trust fund: pools small trust estates into one fund for investment administration Mar 1947, Bank petitioned NY Surrogate's Court for settlement of its first account as common trustee by this time there were approximately 113 trusts participating in the fund only notice of the settlement proceedings required by §100c to beneficiaries was by publication despite the fact that many of the beneficiaries lived outside the state of New York. when the fund had started, however, Bank had sent notice by mail of the future proceedings Mullane was appointed special guardian and attorney for those parties known or unknown who had any interest in the income of the fund, and Vaughan was appointed to represent those parties with interest in the principal. Mullane appeared specially to object to the statutory provision for notice, claiming that it was inadequate to afford the due process required by the Fourteenth Amendment TC: overruled objections, overruled by NY SC and NY Ct. of Appeals US SC: affirmed in part (id/location unknown) and reversed in part (id/location known) Issue: Can a state dispense with notice if the whereabouts of the property owner are known? Holding: No. The reasonableness, and hence the constitutional validity, of any chosen methods may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonable permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. can be inherently reasonably likely to give notice if that is not possible, has to be as good as any of the other ways to give notice Analysis: once basis for asserting power: if the trust corpus is located in the state, physical presence of the property will qualify as an in rem action (adjucating the in state property) after Shaffer, not real in rem, all actions are really in personam – how we categorize irrelevant Publication: sufficient for unknown beneficiaries though know probably won’t reach sufficient because there is no method that is more likely to give them not cts. treat similar to abandoned property, also, if they had required notice be given, you would be unable to have the common trust accounts – wouldn’t be able to do the accountings for known beneficiaries, this was deemed insufficient when the address is known, then more likely to know about through the mail Bank had made mailings to the known beneficiaries in the past (income) Is Ct. saying mail notice is always sufficient as due process? NO OK in this case because: when 1 on 1 litigation – the expense is not as much of a factor the interest of all beneficiaries is the same – enough will get the notice that interest will be protect when there are a lot of individuals participating, this type of service suffices Does this overrule Pennoyer v. Neff that allowed publication as notice for all pure in rem actions? Pennoyer: when the property is attached, provides constructive notice because the assumption is allowed that the person (a) will have someone looking after the property and will know about it or (b) abandoned the property and would not care if it was adjudicated Mullane: Implies that in the cases where you have the name and address of the claimant, better notice may be given this was held to be true in a later case Sufficient Notice depends upon the defendants, the nature of the litigation, and likelihood of reaching FRCP 4(e) Serving an Individual Within a Judicial District of the United States. (1) following state summons procedures (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Due Process Nexus long arm statute constitutional (minimum contacts/fair play) Notice Rule 4 constitutional (reasonableness) Rule 4 – note, only covers summonses (a) what the defendant needs to know to properly defend in the case needs to be contained this is the basis for the defense insufficient service of process (b) plaintiff is required to carry out service of process (within the statutory period) 1 (c) must be made by someone over the age of 18 and must not be a party (d) waiver of service of process send form by mail requesting defendant to waive service – would include the request for the waiver and the waiver itself in the mail this eliminates the requirement for making service of process why would defendant do this? defendant has the duty to avoid costs in service of process if refusing to waive increases costs, plaintiff can recover the costs from defendant extends time the defendant has to respond from 20 to 60 days (e) if defendant does not waive, or plaintiff does not ask to waive, must use one of these methods (1) following state laws of where service is made or state where trial will be, or federal methods (k)(1)(a) in the usual cases, reach of jurisdiction of federal district courts is determined by state’s long arm statute (k)(1)(b) 100 mile rule – applies only to parties joined as additional parties allows assertion of personal jurisdiction, regardless of long arm statute, as long as defendant within 100 miles of the court (k)(1)(c) jurisdiction when authorized by federal statute 02/13/2008 E. Self-Imposed Restrains on Jurisdictional Power: Long Arm Statutes as a Restraint on Jurisdiction 1. Long Arm Statutes as a Restraint on Jurisdiction Gibbons v. Brown (1998) p.160 (see notes 01/30/2008) 2. Venue as a Further Localizing Principle 28 USC §1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. gives jurisdiction to the district courts – all U.S. DC have the power to hear that kind of case (subject matter jurisdiction) 28 USC §1391: Venue generally (a) A civil action wherein jurisdiction is founded only on diversity may be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. this clause makes clear that this is purely a fall back provision – otherwise, must use (1) or (2) (b) A civil action wherein jurisdiction is not founded solely on diversity be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. instead of using personal jurisdiction, says where that defendant may be found corporate, some number of sales, individuals personal service or process (c) Corporation is a resident of any state in which it is subject to personal jurisdiction. residence is one of the variables for determining venue (d) An alien may be sued in any district. alien cannot bring suit in any jurisdiction – applies to individuals and foreign corporations must be subject to personal jurisdiction Rule: The fact that two different types of law would be used in this suit is more favorable toward the case being moved to Scotland for Scottish law to try it Analysis Piper’s transfer was moved by the court under §1404 Hartzell not subject to personal jurisdiction in California and was transferred to Pennsylvania under §1631 Therefore the Pennsylvania court law applies California law to Piper, but the Pennsylvania court can decide to apply whatever law it wants to Hartzell (decided on Scotland) California court would apply California choice of law rules; California choice of law rules would say that Pennsylvania law applies to Piper; Pennsylvania rules would not go with the Hartzell case; therefore Pennsylvania choice of law rules say that Scottish law applies to Hartzell; now we have two sets of laws that are applicable to two sets of defendants Defendants move for forum non convenience because they want the case tried in Scotland Forum non convenience is not listed under 12(b) so it is not technically waived here if you do not raise the defense in the first motion Could have moved for forum non convenience dismissal in California, though District court in Pennsylvania grants the forum non convenience Court of Appeals reverses, saying that it is inappropriate because of considerations affecting the court’s own administrative and legal problems, the court may in the exercise of its sound discretion dismiss the case” Court says it is inappropriate to consider whether it is going to be an unfavorable change of law from the plaintiffs point of view Court wants forum of non convenience to be a powerful doctrine; don’t want to open the floodgates to foreign litigants who want to come to the united states and sue American companies in American courts to get the benefits of American law (the fact that plaintiffs in this case are foreign is a huge strike against them in this case) Foreign plaintiff is using to get a more favorable law, whereas an American would be using it to get to another state b. Transfer under 28 U.S.C. §§ 1404, 1406, and 1631 1 Chapter 3: Subject Matter Jurisdiction A. The Idea and Structure of Subject Matter Jurisdiction If a court doesn’t have it then it renders whatever it does void; Extremely important to have Transcends adversary system; concept of jurisdiction that is so basic that it cannot be waived (structural concept that relates to structural government) Federal government a government of limited powers; true to federal courts If federal courts rendered judgment where they had no subject matter jurisdiction it would affect the state and the individuals as well; therefore it is guarded closely Two Main Categories Federal Question Jurisdiction Diversity Jurisdiction B. Federal Question Jurisdiction Federal Question Jurisdiction: Arising under federal law; applies to the whole case if it arises under federal law Implication: Includes any related state law Courts have interpreted it broadly as a constitutional matter Osborn v. United States: all cases of any federal ingredient may be filed in the United States as a federal matter Narrower definition for statutory test with respect to original jurisdiction: §1331 Language has always been interpreted more narrowly than the constitutional standard for cases filed originally in the trial court, there has to be a stricter test for cases arising under federal law than the constitutional standard Congress could change this and say with all cases of any federal ingredient may be filed in the United States as a federal matter, but they have not Dual insulations: political pressure and broad caseload 02/19/2008 Louisville& Nashville Railroad v. Mottley (1908) p.182 Facts Mottleys were injured in a railway accident; to settle their claims the railroad in 1871 gave them a lifetime pass good for free transportation on the line Several decades later, Congress, believing that railroads were using free transportation to bribe public officials, made free passes unlawful the railroad thereupon refused to honor the Mottleys’ passes, citing the new federal legislation The Mottleys sued in federal court for specific performance, alleging - s concede these are the issues (a) that act of Congress referred to does not prohibit the giving of passes under the circumstances of the case; and (statute does not apply) (b) that if the law is to be construed as prohibiting, it conflicts with the 5th Amendment because it deprives the plaintiffs of their property without due process of law Federal Trial Court: granted Motleys the requested relief Defendants appeal to the Supreme Court SC did not look at the merits – ordered dismissal by circuit court for lack of jurisdiction Issue: Is there a federal question? Holding: No. Although allegations show that very likely, in the course of litigation, a question under the Constitution would arise, they do no show that the suit (ie plaintiff’s original cause of action) arises under the Constitution. Rule: A suggestion of one party that the other will or may set up a claim under the Constitution or laws of the US does not make the a suit one arising under that Constitution or those law – federal question must be implicated in the original complaint. Analysis: Neither party raised the issue of subject matter jurisdiction – yet, the SC raises it on their own motion Court will always check to see if their really is a basis for claim to be decided Why is issue not waived when doesn’t object? FRCP 12(h) What if the SC decided on the merits and then afterwards, party realizes that there is no subject matter jurisdiction? Can they subsequently bring suit in state court? No. Implicitly, by rendering a judgment, the SC must have decided that there was subject matter jurisdiction (even though it may not have been briefed/litigated). Constitutional Test: Is there any federal issue in the case? If this was applied, the Court would have subject matter jurisdiction – the only issues are the validity of the contract based on federal law and constitutionality Here: the Court uses “well pleaded complaint rule” and determines no federal question jurisdiction s are suing for breach of contract seeking specific performance – state law creates the cause of action for breach the federal issue would come into play in the s answer (affirmative defense) Rule: The federal questions must be properly pleaded in the original complaint to be a federal question; anticipating that they will arise in the defense is not sufficient to establish federal question jurisdiction (“arising under...”). Removal would not have been an option – requires that it could have been pleaded in federal court and the rule established here says that as pleaded, not suitable for federal court. Holmes: suit arises under the law which creates the cause of action many cases can be resolved thinking about this way Fair Labor Practices – arising under federal law libel – arises under state law Mottley (breach) – state law Note: not the same as the well pleaded complaint rule breach of duty to shareholders – while breach is state law, violation of federal law may be what creates the breach and thus could be a case arising under federal law it is not unheard of to have state law rights of actions incorporate federal issues Chicot County Drainage District v. Baxter State Bank (p.191) parties who have appeared but failed to challenge the subject matter jurisdiction of a district court may generally not thereafter attack its judgment in another court, state or federal, for lack of diversity or federal question jurisdiction the issue of jurisdiction is subject to res judicata Dismissal 2 Options: 12(b)(1) – there is no jurisdiction because there is no claim arising under federal law 12(b)(6) – there is no federal claim, therefore no federal jurisdiction Court: if there is any arguable basis for a federal claim, the district court should examine the federal question not as a matter of jurisdiction but on a Rule 12(b)(6) motion to dismiss the substantive claim important because if dismissed under 12(b)(6) then cannot bring that federal claim in state court C. Diversity Jurisdiction 02/20/2008 Arises from “case or controversy” between citizens of different states/countries See 28 USC §1332 note, unlike 1331, 1332 contains an amount in controversy requirement – Congress has been increasing the amt (a) can involve (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state as plaintiff and citizens of a State or of different States. 1 uses same transaction or occurrence standard (common nucleus of operative fact) Why? might be a res judicata issue might be forced into going to state court if they don’t want to bring separate suits (forcing them to give up federal courts) Court also gives federal courts the opportunity to decline jurisdiction in certain circumstances: federal claim minor and the state claims predominate danger of undue confusion 2 Part Test: Power (common nucleus of operative fact) Discretion 28 USC §1367 – this is Congress’ attempt to codify Gibbs (a) Power Prong this is the scope of what is covered by 1367 – when you have a claim that is within federal jurisdiction, brings with it all other claims that are so related to tat they form part of the same case or controversy under Art. III of the Constitution includes claims that involve joinder or intervention of additional parties (this is an extension of Gibbs) if it is in the same constitutional case, then supplemental jurisdiction so long as the constitutional case invokes original jurisdiction on the grounds of federal question, does not matter if the parties brought in would “destroy complete diversity” because that is not the basis on which the federal court had jurisdiction (c) Discretion Prong (1) and (2) state issue is the more important one (3) district court has dismissed all federal claims (4) catch all provision Jin v. Ministry of State Security (2003) p.207 Facts s all practice Falun Gong (self improvement practice similar to Tai Chi) Chinese government perceived as a threat, began campaign in chine to eradicate the practice in US, to reach overseas Chinese residents, government sought to use mass media outlets, going so far as to stage a limited-access news event where practitioners set themselves on fire s brought action alleging violations of their rights under the Constitution and federal and state law by persons and entities associated with the People’s Republic of China alleged civil rights violations, challenged RICO statute (basis for federal jurisdiction) and alleged defamation (a state claim) CTC () moves to dismiss the defamation claim pursuant to 12(b)(1) and (6) Court dismisses - s defamation claim past 1 year statute of limitations Issue: Is dismissal appropriate? Holding: Only under 12(b)(6) – failed to state a claim because Statute of Limitations had expired. 12(b)(1) Challenge – Court looked at 2 part test to determine if supplemental jurisdiction appropriate Do the claims derive from a common nucleus of operative fact? if the state law and federal claims are related to the point that the s would ordinarily be expected to try them all in one judicial proceeding Do the interests of judicial economy, convenience, and fairness support? Analysis 12(b)(6) – based on the face, which included the first instance of defamation, Court could determine when the SOL would expire and dismiss for failure to state a claim s lost more by having won on the subject matter jurisdiction than had it been decided that the Court lacked subject matter jurisdiction cannot re-file this action in state courts – res judicata this is the typical Gibbs scenario – pendant claims 02/25/2008 Diversity Cases: 28 USC §1367(b) – exception to supplemental jurisdiction (a), but applies only to diversity cases even if has supplemental jurisdiction under 1332(a), id plaintiffs claims against persons was under Rule 14, 19, 20, or 24 of the FRCP, then no jurisdiction when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. Exxon Mobil Corp. v. Allapattah Services, Inc. (2005) Supp. p.212 Facts: 10,000 Exxon dealers filed class action against Exxon in D.C. in FL alleging an intentional and systematic scheme by Exxon where they were overcharged for fuel invoked §1332(a) diversity jurisdiction D.C. – unanimous jury verdict for s certified the case for interlocutory review, asking whether or not it had properly exercised §1367 supplemental jurisdiction SC: Affirmed Issue: Can a federal court in a diversity action exercise supplemental jurisdiction over additional plaintiffs whose claims do not satisfy the minimum amount-in-controversy requirements, provided the claims are part of the same case or controversy as the claims of plaintiffs who do allege a sufficient amount in controversy? Holding: Yes. Rule: When the well-pleaded complaint contains at least one claim that satisfies the amount-in- controversy requirement, and there are no other relevant jurisdictional defects, the district court has original jurisdiction over that claim Analysis: CONTAMINATION THEORY. Examples: (1) (FL) (state claim) 1(GA) – when only , there is complete diversity and federal jurisdiction (state claim) 2(FL) – once added, destroys complete diversity Here: 2 joined under FRCP 20 – would seem that had jurisdiction under 1332(a) which would be excepted out by 1332(b) after Allapattah – don’t even get to (b) because requires the contamination theory would knock out at (a) (2) (FL) (state claim) (GA) ( joins) 3P(FL) under 1332(b), would seem that had jurisdiction: first part satisfies 1332(a), the 2nd part is not the s claim, thus would seem to satisfy 1332(b) Allapattah: contamination theory – can’t get past 1332(a) (3) (FL) (state claim) (GA) ( joins) 3P(FL) ( amends complaint) 3P(FL) 1332(b): no supplemental jurisdiction (4) (FL) 1 (GA) (GA) joined under Rule 20, (Assume that got past 1367(a) – ignore Allapattah rule) this would be a 1367(b) loophole that is cured by Allapattah wanted to avoid this because this would be accepted but example 1 would not (5) (FL) (100,000) 1 (FL) (50,000) contamination theory does not apply to jurisdictional amount, thus this would be allowed this rule applies to Rule 20 and 23 1367 Review (a) gives you the scope of supplemental jurisdiction qualified by contamination theory (b) exceptions for diversity cases (c) gives the courts discretion over which cases to take 1 E. Removal 28 U.S.C. §1441 (a) Any case brought in state court can be removed to federal court if the action would have been able to be filed in the federal court to begin with. (b) Diversity Cases: removable only if none of the defendants are citizens of the State in which the action is brought. Problem 1 p.212 – Removable? a. Defamation is state claim, no removal (even though anticipate a deferral defense – claim couldn’t have been filed in DC) b. Yes, clearly under the Constitution. c. Yes, have diversity and jurisdictional amount requirement. d. No under 1441(b) - is citizen of the state where claim is brought. e. Yes, not solely a diversity case thus citizenship would not defeat removal (assuming qualifies for supplemental juris) f. No. As long as you have any local defendant, cant be removed. g. Past: when state court did not have jurisdiction, could not remove to federal courts because of the lack of jurisdiction. Now: 1441(f) allows for removal in these cases 02/26/2008 28 U.S.C. §1446 – Procedure for Removal (a) Where case is originally filed in state court, the defendant must provide a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. (b) 30 days to remove after filing initial complaint in state court. If initial complaint is not removable, has 30 days from date that amends the complaint to be removable (a case may not be removed on the basis of diversity jurisdiction (from §1332) more than 1 year after commencement of the action) 28 U.S.C. §1447 – Procedure for Challenging Removal Problem 2 p.213 a. Grounds on which there is federal jurisdiction – 1446(a) b. Sanctions under Rule 11 c. Cannot remove after 30 days – 1446(b) d. Yes. 1446(b) e. Maybe. Situation where it looks like is trying to stay out of federal court – federal courts have split on this question. some states prohibit the plaintiff from seeking a specific amount of money - gets whatever amt. proved in those situation, federal courts have said that s must prove beyond a preponderance of the evidence that the amount in controversy is above the jurisdictional limit other jurisdictions hold that the ad damnum clause is not the limit on recovery in these states, does not make sense to not allow the to prove that the amount in controversy is more f. 1446(b) – a case cannot be removed more than a year after filing if jurisdiction based on 1332 If no, and merely a federal practice and see if outcome determinative. State: required personal service on the administrator, Federal required only domiciliary service the served to wife of administrator – would be valid under federal, not under state defended that because outcome determinative and should be dismissed, Ct. denies this. Hanna Part 2: There is a federal rule (saying domiciliary service is permissible) not a question of whether outcome determinative or not only issue is whether it is valid – if so then apply the federal rule Hanna Part 1: Even if there were no applicable federal rule, we would apply the federal practice. in those circumstances, the issue is whether outcome determinative. Defines Outcome Determinative As: would it affect the choice of the forum. How Do you Decide if federal and state laws conflict? Do they intend to do the same thing and go about it in a different way? Examples of Issues: FRCP 3: A civil action is commenced by filing a complaint with the court. What if state requires service of process for civil action to commence. Regan Case: the federal court says that it does not conflict, and thus the state rule applies in federal court. Said that FRCP 3 marks when other things begin to toll, not the SOL. Burlington v. Woods: AL state law says that the losing party who appeals and then loses again has to pay 10% penalty of the amounts awarded against them. Federal Rule said that any party who appeals only has to pay penalty if appeal is frivolous. SC said that they were both aimed at the same thing, deterring appeals, but the federal rule gives the Ct. discretion and the state doesn’t - said the federal rule applied Transfer of Venue in Stewart Org. v. Rico There was a state law that disfavored forum selection clauses in contracts; the federal rule 1404 for transfer of venue where there is a forum selection clause the standard approach is to give effect to the forum selection clause State rule is per say, the federal deals with discretion, then the federal rule is in direct conflict with state rule and then must ask whether the federal statute valid? Rule governing transfer of venue is arguably procedural, and therefore should apply Court majority concluded apply 1404 and consider forum selection clause - give weight to it 02/28/2008 If there is an issue with a line between substance and procedure, then you would ask the question, “Is there a federal statute, rule, or enactment that covers the case?” If not, then treat it as any other Erie issue: Is the different between what the state rule does and the federal rule does, out come determinative? Would it be influenced by difference in favoring one forum over the other? You have an uncompelled federal practice going up against a state rule and you ask if it is outcome determinative and ask: “Is there a strong state policy against following the state rule?” If there is a federal enactment that is arguable related, then ask: Is there a real conflict between that federal enactment and whatever the state practice is? Must identify the one that you think might be relevant (Find a FRCP that might cover the case to determine what the Fed court might do in this case; or you might have a federal statute) Does it conflict with the state rule? What is the purpose of the federal rule and the sate rule? Do both try to accomplish the same purpose but in different ways? Is the federal rule valid? (If federal rule controls and is valid, then it applies) Substance/Substance Distinction Erie/Hanna Part I (right side of chart): outcome-determinative; no federal rule or statute that governs, then you ask whether the state rule is substantive and if it will effect forum shopping for the federal court not to apply it Hanna Part II (left side of chart): where federal rule and state rule conflict ; the federal rule controls as long as it applies and is valid; state rule would only apply if it was substantive in the sense that because it is in contact with the federal rule it is actually invalid 1 Hypothetical: State statute that says that malpractice cases the plaintiff within 60 days after filing the complaint, must file and affidavit of merit signed by a physician that the plaintiff’s injury is likely a result of negligent medical care; does that provision have to be applied in federal court? It is not in conflict with FRCP 8 It was outcome determinative Chapter 5: Incentives to Litigate 03/03/2008 A. Litigation in the United States at the End of the Twentieth Century 1. How Much Litigation? Winning (adjudicated cases): tort cases: about even (s 51%, s 49%) contract cases: s win more (62%) 2. Why Litigate? will sue if the cost of suit is < than the expected recovery there are certain area in which there is a statutory provision for fee-shifting this can change the calculation because there is more of an incentive to sue under the traditional American rule: each side pays their own costs of suit under the English Rule: the loser pays the other sides costs B. Substitutionary Remedies (Damage Remedies) 1. Compensatory Damages must allege and prove any damages – influences whether the lawyer will take on the case how the defendant defends the case possible settlement Much of discovery revolves around figuring out the amount of the litigation 2 Categories Economic Harm Non-Economic Harm (ie pain and suffering) trend in jurisdictions is to put a cap on this type of harm 2. Liquidated, Statutory, and Punitive Damages Liquidates/Statutory Damages: way of avoiding damage estimates at trial certain types of harm, hard to estimate and especially hard to prove damages ie: in contract law, will come up with the cost of breaching the contract at the formation of the contract upfront, make a decision as to what the damages will be Punitive Damages nominally aimed at punishment, though some claim that they also capture a portion of the damages that could not be proven but were suffered goal: deterrence sometimes, the proven damages are not enough to prevent someone from repeating the harm not very common – only awarded in about 6% of cases and the average award is $50,000 recently, Supreme Court has taken to trying to set a cap on punitive damages based on the due process clause conservatives/originalists are vehemently opposed to this State Farm Mutual Automobile Insurance Co. v. Campbell (2003) p.270 Facts Campbell was driving on 2 lane highway, went into oncoming traffic lane to pass 6 cars Ospital, in the other lane, swerved to avoid head on collision and hit Slusher Ospital was killed, Slusher uninjured, and Campbell unscathed 1 Inglis and 4 other wholesale bakery companies filed antitrust action against various competitors charging violations of §1 and §2 of the Sherman Act – contends that the s are guilty of discriminatory and below cost-pricing of their “private label” bread products Inglis moved for preliminary injunction in the Northern CA markets against 5 of the s DC: denied On Appeal: Remanded – required to also examine under alternate test Issue: Preliminary Injunction Appropriate? Holding: ??? – need to analyze under each of 2 tests entitled to preliminary injunction only if court finds that will suffer irreparable injury if injunctive relied is not granted the will probably prevail on the merits in balancing the equities, s will not be harmed more than the is helped by the injunction and granting the injunction is in the public interest Of the harm that the may occur to the s is sufficiently serious, it is only necessary that there be a fair chance (rather than probability) of success on the merits. Analysis Now: Courts will not grant any preliminary injunctions for predatory pricing FRCP 65: Preliminary Injunction v. Temporary Restraining Order (a) preliminary injunction: requires notice, adversary process (b) temporary restraining order: thinking is that informing the other purpose would defeat purpose/takes too long – this is the extreme form of irreparable harm harm so immediate and so severe that even giving notice of the hearing before the order is issued would make the case essentially moot in general, limited to 10 days Chapter 6: Pleading 03/04/2008 A. The Story of Pleading 1. Introduction (Telling Stories) 3 Courts in England – based on the cause of action; each had its own body of substantive law as well as procedures Court of Kings/Queens Bench Court of Exchequer Court of Common Please Various Causes of Actions most important was trespass protected different invasions of personal interest assault and battery debonis asportatis (chattel) – possession of personal property quare clausum gregit (real property) case trover – conversion of personal property assumpsit special assumpsit – contract general assumpsit – implied contracts ejectment Why Use Action of Trespass Rather Than of Debt for Contracts? Debt: Compurgaration – Wager of Law if you could get enough people to lie for you, then you could get out of the debt Therefore, s wanted to use law of trespass which required a finding of the facts, compurgaration not allowed One of the key procedural instruments of all the forms was the primary pleading for the writs at common law, the goal of pleading was to produce only 1 issue Declaration Demurrer – issue of law // Plea - Dilatory - Preemptory Traverse (Denial) – becomes new issue // Demurrer – issue of law // Confession and Avoidance – new fact ???? - Traverse // - Confession and Avoidance Demurrer // Rejoinder - Traverse // Demurrer // - Confession and Avoidance Surjoinder - - * Keep Going Until Get Down to Only 1 Issue FRCP 7: Pleadings and Motions (a) the federal rules do not require the parties to plead until there is only 1 issue 1 FRCP 8: effects of denial or avoidance – how the federal rules deal with what used to be C&A (c) sets out affirmative defenses (b)(6) effect of failing to deny 03/05/2008 Common Law v. Equity Common Law: not allowed to speak on your own behalf much of what is now law in terms of discovery, evidence, pleadings is derived from Equity had a number of limitations (ie: large backups), problems with administration advantages: had remedy called an accounting for profits David Dudley Field: “Field Codes” (major procedural reform in the mid-nineteenth century) abolishing the forms of action abolishing common law pleading abolishing the distinction between law and equity Idea: go straight to the heart of the claim in the complaint the facts (failure to plead facts: demurrer) the cause of action based on substance rather than technicalities Fact Pleading Today: must say enough, can’t merely state legal conclusion but you cannot plead too much specificity – becomes pleading evidence Theories of Pleadings Doctrine: in the forms of action, had to pick which form of action which to make claim on this kind of thinking carried over to facts pleading the was held to the theory of the pleadings – if the facts could support 2, did not matter you were held to what you plead based on the form of action which you filed FL 112(b)(2)??: abandon cause of action but still required to plead “ultimate facts” – referring to specificity required to be more specific than the federal rule but when you look at advisory note, specificity varies based on the cause of action FRCP 8(a)(2): requires a short and plain statement of the claim showing that pleader entitled to relief. ie: specific facts then “ drove negligently injuring plaintiff” is sufficient see Federal Form 9, Bell Novak Today: have moved away from fact pleading and towards notice pleading don’t use the words facts or cause of action – instead statement of claim 2. The Functions of Pleading 03/06/2008 Bell Atlantic v. Twombly (2007) Handout Facts 1984: AT&T was divested – broke up into a system of regional service monopolies 1996: Telecommunications Act set conditions for authorizing entrance into the long distance market had to allow people who wanted to come into the market to use your infrastructure (ie lease) Here: Twomblys are consumers claiming that Bell Atlantic was conspiring with large competitors not to enter each others markets not to provide adequate access to smaller competitors Note: in proving antitrust/conspiracy, must show more than acting in the same way where you can explain what’s going on by an external event, then not conspiracy must be signed – by attorney of record or if representing self, the party 11(b): Representations to the Court: by presenting – signing, filing, submitting, or advocating – the signor certifies that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances that: (1) no improper purpose (ie: harass, cause unnecessary delay, or needlessly increase cost of litigation) this is the 1 of the 4 that is a subjective standard – “good faith” requirement (2) warranted by existing law or are non-frivolous arguments for extending. modifying, or reversing or establ. new Haddle v. Garrison: knew the law was against them – consistent with Rule 11 if lawyers are unaware of the adverse law, will be a violation of 11(b) (3) fact contentions have evidentiary support or, if specified, will likely have it after further investigation/discovery (4) denials are warranted on evidence or, if specified, are reasonably based on belief or lack of information Note: only person signing (usually attorney) can violate the Rule – though others can be sanctioned inquiry reasonable under the circumstances – court will look at many factors statute of limitations might affect – ie: if it is going to expire in a week 11(c): Sanctions (1) after giving notice and reasonable opportunity to respond, if court determines 11(b) has been violated, the court may impose sanctions on any attorney, law firm, or party that violated rule or is responsible for violation absent exceptional circumstances, law firm must be held jointly responsible what if client lies to you (as lawyer), you conduct reasonable investigation and story checks out? you have not violated Rule 11 while Client violated – cannot be sanctioned because 11(b) requires the signor to violate (2) “Safe Harbor Provision” motion must be prepared and served separate from other motions (don’t consolidate) must wait 21 days to see if withdrawn or appropriately corrected before filing with the court and seeking sanctions (4) sanction must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated may include: nonmonetary directives (ie: take CLE), pay penalty to court, reasonable attorneys fees, and other expenses directly resulting from the violation 03/18/2008 (5) Limitations on Monetary Sanctions. court must not impose a monetary sanction against a represented party for violating Rule 11(b)(2) client cannot be held responsible for lawyers failure to conduct a reasonable investigation Walker v. Norwest Corp. (1996) p.356 Facts Massey, Walker’s atty, filed complaint in SD DC for breach of fiduciary duty and other state actions claimed diversity jurisdiction - and some of the s are citizens of different states stated that many of the other defendants were residents of SD Norwest wrote letter asking to dismiss/warning would seek sanctions – Massey did not District Court: awarded sanctions against Massey Analysis Note: actions did not fully comply with the requirements of Rule 11 minimal diversity is insufficient – must be complete violation of 11(b)(2) why did the court choose to impose sanctions? Bridges: the mistake was made but recognized and admitted 1 Walker: even after being forewarned, plaintiff failed to correct at a minimum, plaintiff would have to allege complete diversity – failed to do so law does not require the plaintiff to have all information necessary to determine if there is complete diversity Christian v. Mattell, Inc. (2003) p.360 Facts 1990: Christian, undergrad at USC, created and marketed collegiate cheerleading doll “Claudene” Christian alleged that Mattel obtained copy in 1996, year of creation, and infringed on appearance with their “Cool Blue” Barbie line Hicks, Claudine’s lawyer, filed action for copyright infringement 2 Months after complaint filed Mattel moved for SJ – Barbie contained 1991 copyright notice on head, thus as a matter of law could not infringe Claudine’s head sculpture right Hicks refused to inspect doll, through it, would not dismisfs action Mattel served Hicks with motion for Rule 11 sanctions DC: granted Mattel’s motions for SJ and Rule 11 Sanctions ($501,565) singling out: failure to file memorandum of law in support of papers styled as motion to dismiss behavior during early meeting of counsel interruption of Claudine’s deposition when Claudine made a damaging admission misrepresentations during oral arguments about number of dolls infringing/whether reviewed misstatement of law in SJ opposition brief about joint authorship of copyrightable works Hicks and Christian Appeal: sanctions vacated – shows court looked at extrinsic misconduct Remanded Analysis conduct in depositions, discovery meetings of counsel, oral representations at hearings, and behavior in proper proceedings do not fall under Rule 11 why are oral arguments not included – 11(b) – has to be written can an oral statement in connection with a written paper also excepted? NO. ie: if you make an allegation in complaint, and at the time you make them you have a reasonable basis and later find out them to not be true – cannot continue to assert Note: just because cannot be sanctioned under Rule 11, does not mean that cannot be sanctioned ie: discovery has stricter requirements, hence the exemption from Rule 11 On Remand: sanctions provided under Rule 30 for discovery misconduct 28 USC §1927: any person who multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct court has inherent authority to sanction Pro Se Litigants: basically a sliding scale under Rule 11 (see case on discussion board) Misrepresentations During Oral Arguments: Mattel: is this later advocating factual mistake in the complaint? Court: there needs to be a very clear connection between the oral argument and the complaint basically, need a direct repetition of the factual allegation or legal theory to fall under Rule 11(b) 4. Special Claims: Requiring and Forbidding Specificity in Pleading Rule 9(b): Fraud or Mistake; Condition of Mind. In alleging fraud or mistake, party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. See Form 13 Stradford v. Zurich Insurance Co. (2002) p.365 Facts Stradford’s dental office was insured by Zurich effective Aug. 1999 – Aug. 2000 Stradford failed to pay for a period – policy cancelled Oct. 1999 – Dec. 1999 began paying: policy reinstated Dect 14, 1999, Stradford notified Jan. 9, 2000 Jan. 17, 2000: Stradford filed claim alleging water damages while on vacation originally $151,154 (Zurich paid); amended for $1,209,456 (suing for here) also, he was not compliant with Zurich’s investigation which was required by contract Zurich counterclaimed fraud Stradford moved to dismiss on Rule 9(b) Analysis see p.369 – special rules in securities supplement notes from case – what is required of specificity Specificity: requires that the time, place and nature of the alleged misrepresentations be disclosed to the party accused of fraud insufficient here that they alleged claim to be false – must say how 9(b) is exclusive only those things stipulated require specificity – everything else requires only the general pleadings under 8 Twombly(?): antitrust cases – increased specificity in these types of cases though the court says not so? Private Securities Litigation Reform Act (1995): special rules that apply to claims alleging fraud under fed security statutes shall specify each statement alleged to be misleading, the reason(s) why, and, if an allegation regarding the statement or omission is made on information and belief, must state with particularity all facts on which the belief is formed 03/19/2008 5. Allocating the Elements Gomez v. Toledo (1980) p.372 Facts Gomez was employed as an agent with the Puerto Rico Police Dept. Upon learning that two other officers had provided false information in a criminal proceeding he was discharged by Superintendent of Police Toledo. as a result, Gomez was transferred to Police Academy – position of lesser significance. Toledo ordered an investigation which proved the Pet’s claims as valid. Gomez testified at trial to his assertions, thereafter Toledo had criminal charges brought against him Gomez was acquitted and then sought reinstatement with the force with back pay Toledo moved to dismiss complaint for failure to state cause of action DC: granted motion – held that because Gomez did not allege bad faith in complaint CoA: affirmed Cert Granted: Reversed Issue: When bringing action against public official whose position might entitle him to qualified immunity, is the plaintiff required to allege bad faith in order to state a claim for relied or must the defendant plead good faith as an affirmative defense? Holding: Burden of pleading on the defendant. qualified immunity is an affirmative defense: the burden of pleading rests with the defendant Analysis He moved to dismiss for failure to state a claim – proper procedural device? pre-answer: 12(b) concurrent with answer or after: Rule 12(c) motion for judgment on the pleadings Here: made motion because complaint did not allege bad faiths in the civil rights case Law Itself: no bad faith requirement Case Law: qualified officer immunity if the action done in good faith : is required to allege bad faith Court: court determines that this is an affirmative defense - must plead 1 (c) Same as in (b), except that X, a friend of A, has told B that he was standing 20 feet away and saw A running north. 03/24/2008 b. Affirmative Defenses Rule 8(c): Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. (2) Mistaken Designation” If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. Note: This is the old common law plea of confession and avoidance. Layman v. Southwestern Bell Telephone Co. (1977) p.387 Facts Layman owned property and sued Southwestern Bell for trespass when then placed telephone wires in their answer, Southwestern pleaded only a general denial Trial: Southwestern was allowed to introduce evidence of an easement over Layman’s objections as well as a joint use agreement with electric company Trial: judgment for Southwestern On Appeal: Reversed Issue: What defenses must be affirmatively pleaded as a condition to the admissibility of such evidence at trial? Holding: Whether intends to rest defense upon some fact not included in the allegations necessary to support the plaintiffs case. general denial places in issue all material allegations in s petition and entitled to prove any fact to show that s cause of action never had any legal existence if defense is in the nature of a confession of the facts of s petition but avers that the s theory of liability even though sustained by the evidence does not apply to it because of additional facts which place in a position to avoid any legal responsibility for its action, such defense must be set forth in the answer Analysis easement requires introduction of a separate document that what pleaded Denham v. Cuddeback: says that adverse possession is not an affirmative defense seems like this contradicts Layman possible to reconcile on the basis that AP requires same set of facts that s trespass argument, therefore not relying on something completely different this case could have only gone this way without discovery. under 26(a) required to disclose anything that you intend to use to defend your case FL Rule 1-130: has to attach any documents intend to use in your answer (?) Hypo: sues for running through red light, denies generally. At trial, wants to introduce evidence that he wasn’t there at all. Is this an affirmative defense? No. To have an affirmative defense, need both confession and avoidance. This does not mean that the cannot get in trouble for making a specific enough denial. See Jones v. Clinton p.58 (has chapter on affirmative defenses) first aff. def.: not actually an affirmative defense did not allege injury cognizable at law: also not an affirmative defense if there is any doubt, and even in cases where there is not so much, attorneys may plead as an affirmative defense to ensure that will not be waived problem: court may require to assume the burden of proof on these defenses 3. Reply 4. Amendments Rule 15: Amended and Supplemental Pleadings. (a) Amendments Before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course: (A) before being served with a responsive pleading; or (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading, whichever is later. If the defense of failure to state a claim is raised in a motion, and not in the answer, a. The Basic Problem: Prejudice Beeck v. Aquaslide ‘N’ Dive Corp. (1977) p.394 Facts Beeck was injured on waterslide – sued Aquislide on theory of negligence, strict liability, and breach of implied warranty claiming they manufactured slide Aquislide had 3 insurers on case – on their information originally admitted to manufacturing; upon a review by president realized that not theirs District Court Moved to Amend: granted After granted, moved to separate trial on the issue of manufacture: granted – found not s Trial: moved for summary judgment - granted On Appeal: Affirmed Issue Holding Basic Standard: amendment should be granted freely if justice so requires. To overcome this presumption, need evidence of bad faith, prejudice or undue delay. Analysis standard of review was very deferential Here: bad faith: was acting on the information of 3 insurers when admitted to mfg. so no later found out that had been subject to similar lawsuits based on counterfeit Aquaslide products would this change the inference that was acting in good faith? possible. prejudice: 1 critical issue – in between time had admitted mfg and now denying, SOL has run Court: might not be prevented from bringing suit against actual manufacturer because counterfeit implies that mfg. and maybe others were engaged in fraud if this is the case, may toll the statute of limitations Jones v. Clinton: dropped defamation claim – WHY?! b. Statutes of Limitations and Relation Back 03/25/2008 Moore v. Baker (1993) p.400 Facts Moore consulted Baker about blockage of carotid artery – Baker recommended surgery and informed of risks then Moore signed consent. Surgery left Moore severely and permanently disabled. On the last day permitted by SOL, Moore filed complaint alleging that did not give informed consent Baker filed motion for S.J. Moore then moved to amend complaint to assert negligence: Denied. Issue Holding Analysis while the complaint did refer to the operation, the problem was that failure to give informed consent refers to the actions before the operation while negligence refers to the time during the operation problem is that as a result of the original complaint, Dr. had no notice of any negligence claim Does rule require that you state the same theory in amendment? No. 15(c) says nothing about alleging a theory, only about the facts of the case. Page: seems this court is being unusually restrictive Bonerb v. Richard J. Caron Foundation (1994) p.402 Facts Bonerb was patient at rehab facility, injured while participating in mandatory exercise program original complaint alleged negligent maintenance of facilities & supervision – personal injury claim substituted counsel – moved to amend complain and add “counseling malpractice” (past SOL) DC: granted Issue Holding Analysis Relation Back Doctrine: one who has been given notice of litigation concerning a given transaction or occurrence has been provided with all the protection that statutes of limitations are designed to afford same nucleus of facts – same basketball case Court: an amendment which changes the legal theory of the case is appropriate if the factual situation upon which action depends remains the same and has been brought to s attention by original pleading FRCP 15(c)(1)(C): allow relation back even when you change the name of the party Requires the same criteria to be met as the relation back in normal cases EXCEPT that if you want to amend to change the name of the party, the correct defendant needs to have found out about the error in suing the wrong defendant during the period of time in which the defendant could have properly been served with process (filing of complaint plus 120 days it takes for service of process to take place) Makes clear that this is a service of process provision If you want to change defendants, the one that you want to change to must have been aware in the time when suit would have been proper by suing the wrong , you are in effect serving process on the correct when the correct finds out (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party (iv) any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure: (3) Pre-Trial: what the party is actually going to use in its case When are the initial disclosures required? FRCP 26(f) Conference of the Parties; Planning for Discovery (1) the parties must confer as soon as practicable — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). (3) Parties required to come up with a Discovery Plan FRCP 16(b): Scheduling Conference (3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. FRCP 26(a)(1)(C): Time for Initial Disclosures — In General. A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure. (d) Timing and Sequence of Discovery. (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. (2) Sequence. Unless, on motion, the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery. 2. Asking Questions: Interrogatories and Depositions (Rules 28, 30, 31, 32, 33, and 37) Deposition: not required to do any work, just answer questions Interrogatories: can require work of the party being questions one of the main characteristics is that they allow one party to ask another a party a question that requires a reasonable investigation if too burdensome, may give rise to objection/protective order 1 FRCP 30: Deposition by Oral Examination (b) Notice of the Deposition; Other Formal Requirements. (6) Notice or Subpoena Directed to an Organization: In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. FRCP 33: Interrogatories to Parties (a) In General (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2). (2) Scope: An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time. (b) Answers and Objections. (1) The interrogatories must be answered: (A) by the party to whom they are directed; or (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. (2) Time to Respond. must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (3) Answering Each Interrogatory: Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. (4) Objections: The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. (5) Signature: The person who makes the answers must sign them, and the attorney who objects must sign any objections. (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. 03/31/2008 Discovery is supposed to take place without the court ever gets involved however, certain discovery requests are going to be objected to by the party, or non-party, receiving them FRCP: if there is an objection, the parties have to try to take care of themselves before seek assistance of Court parties must certify to this FRCP 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (a) Motions to Compel (5) Who Pays Expenses Of Motion Resulting From Objection: if you make the motion, and the party who objects has grounds for objection – court can require payment of attorneys fees and related expenses if party objects without a reasonably ground – court may require payment of attorneys fees and related expenses (d) Sanctions if you simply ignore interrogatories, may be grounds for immediate sanctions FRCP 30: Deposition by Oral Examination depositions are like testimony in court – under oath and transcribed while no judge presiding, can be later reviewed by the judge with respect to most depositions, 2 important characteristics (1) the court (judge) isn’t there (2) they jury isn’t there objection can be raised, continue questioning, and then the court can review before the deposition is read at trial and heard by the jury (c) Examination and Cross Examination (1) conducted as they would be at trial (2) objections – noted in the record but question must still be answered EXCEPT: person may instruct a deponent not to answer when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under 30(d)(3) (d)(1) Duration: Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. Court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine deponent or if deponent, another person, or any other circumstance impedes or delays the examination. (d)(3): At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If objecting deponent or party so demands, must be suspended for time necessary to obtain an order. Problems p.420 1. a. No. Interrogatories only apply to parties. (33(a)) but, will have to answer when the information is subpoenaed or will be subject to sanctions. (45 or 47?) b. No. Can’t submit more than 25 interrogatories. can’t simply not answer – must object 33(b)(3); if not objectionable, must answer you would have to answer the first 25 – object to the remainders 2. a. b. c. If run out of time during deposition, without going to court, the questions should be taken subject to the objection and then can be reviewed later by the court. If the objecting party will not allow answer – 37(a) (3)(B)(i) – one of the the grounds for motion to compel is refusing to answer question subject to the usual provisions regarding the award of expenses. 3. Examining Things and People: Production and Inspection of Documents and Things (Rules 34 and 35) 1 (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and [more subjective requirement] (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. [this is to prevent parties from attempting to wear down other side] (2) Failure to Sign: Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention. (3) Sanction for Improper Certification: If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation. FRCP 37: (b) Failure to Comply with a Court Order. (1) Sanctions in the District Where the Deposition Is Taken: If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. (2) Sanctions in the District Where the Action Is Pending. (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent — or a witness designated under Rule 30(b)(6) or 31(a)(4) — fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. (B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person. (C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. (c) Failure to Disclose (d) Party's Failure to Attend Own Deposition, Serve Answers to Interrogatories, or Respond to Request Inspection. (1) In General. (A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent — or a person designated under Rule 30(b)(6) or 31(a)(4) — fails, after being served with proper notice, to appear for that person's deposition; or (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. (B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action. (2) Unacceptable Excuse for Failing to Act: A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). [26(c) = Protective Order] (3) Types of Sanctions: Sanctions may include any of the orders listed in Rule 37(b)(2) (A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. Problem p.425 1. 2. If you fail to name a witness in your disclosure and then go to call that witness on trial, 37(c)(1) says that you may not be able to use at trial 3. If you fail to identify an unfavorable witness in the discovery requests........ [see discussion board] 1 26(g): look at Tiffany Converse’s answer!!! – imposes automatic sanctions, appropriate sanction: fees, poss. 4. a. Rule 34 request and the party receiving the request doesn’t respond: first have duty to work it out. Can use 37(a)(1) OR use 37(b) – one step sanctions D. Discovery and Privacy 1. The General Problem of Privacy Stalnaker v. Kmart Corp. (1996) p.427 Facts Kmart moves for protective order for non-party witnesses in sexual harassment claim; wants to protect info on their voluntary sexual and romantic conduct Kmart argues not relevant to what happened to Stalnaker Issue Holding Analysis Allows discovery into voluntary sexual or romantic conduct of employees with Kmart if show Kmart employee encouraged, solicited or influenced employee to engage in such activity. Limits use of discovery to this litigation and bars disclosing to third party. Court will place a protective seal so that information does not get out beyond use in trial. FRCP 26(c): Protective Orders. Jones v. Clinton (see p.114) Court required that certain criteria be met before could start asking more probative questions E. Discovery in an Adversary System 1. Privilege and Trial Preparation Material Hickman v. Taylor (1947) p.438 Facts Public hearing after a tug boat accident resulted in counsel for , Fortenbaugh, filing interrogatories asking for all detailed conversations between counsel for respondent and survivors from the accident. F privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation which the survivors then signed. This is different than just a memo of the conversation: no lawyer impressions, simply a written statement F also interviewed other people he believed to have information – some cases he made memoranda of what he told them, others he only made mental note Trial: DC – not privileged CoA – privileged (thus not discoverable) On Appeal: Affirmed. Issue Holding Rule: Where relevant and non-privileged facts remain hidden in an attorney’s file, and where production of those facts is essential to the preparation of ones case, discovery may properly be had. Analysis “the deposition-discovery rules are to be accorded broad and liberal treatment. no longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponents case. mutual knowledge of all the relevant facts gathered by both parties Chapter 8: Resolution Without Trial 04/07/2008 A. The Pressure to Choose Adjucation or an Alternative FL 1-700: mandates some sort of settlement/negotiation attempt by the parties 1. Default and Default Judgments Rule 55: Default; Default Judgment (a) Entering a Default: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. (b) Entering a Default Judgment. (1) By the Clerk: if the plaintiff's claim is for a sum certain or a sum that can be made certain (2) By the Court: In all other cases, the party must apply to the court for a default judgment. court may conduct hearings to, among other things, compute the amount of damages (c) Setting Aside a Default or a Default Judgment: The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b). (d) Judgment Against the United States: A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court. Rule 60: Relief from Judgment or Order (b): direct attack on the judgment (c) Peralta v. Heights Medical Center (1988) p.467 Facts Peralta had an employee who got injured, went to the hospital, and was supposed to pay for the employee’s injuries. Peralta was served (outside the time limit) but chose not to show up TC: default judgment entered attached the property On Appeal: reversed – invalid (thus null) service under Texas law Issue: Holding Analysis claimed that would have won on the merits had he had notice, thus should not reverse Court: “where a person has been deprived of property in a manner contrary to the most basic tenants of due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits. why? usually, when the Court attaches and sells property, do not get full value had he gone to trial and judgment were entered against him, could have come up with money another way or sold the property himself. 2. Failure to Prosecute: Involuntary Dismissal Rule 41(b) Involuntary Dismissal; Effect: If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits. 1 3. Voluntary Dismissal Rule 41(a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2 and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. (2) By Court Order; Effect: Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. FL: allows once before trial, and if no motion for SJ filed, can move to dismiss anytime before jury without prejudice Rule 41 (d) Costs of a Previously Dismissed Action: If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. 04/08/2008 B. Avoiding Adjucation C. Curtailed Adjucation: Summary Judgment State of the Evidence: (1) 10 – 30%: proper to issue DV or SJ for the other party [Judge] (2) 35 – 65%: this is a jury issue [Jury] (3) 70 – 90%: overwhelming evidence; no reasonable jury could find otherwise – proper to issue DV or SJ [Judge] Burden of Production: suffers who will suffer directed verdict if they fail to carry (ie: if you end up in State of Evidence 1 – failed) Rule 56: Summary Judgment (a) By a Claiming Party: (b) By a Defending Party: party against whom relief is sought may move at any time, with or without supporting affidavits, for summary judgment on all or part of the claim (c) Serving the Motion; Proceedings: motion must be served at least 10 days before the day set for the hearing the opposing party may serve opposing affidavits before the hearing day. Celotex Corp. v. Catrett (1986) p.516 Facts Catrett filed suit for breach of warranty and strict liability – alleges husband’s death resulted from his exposure to products containing asbestos manufactured or distributed by 15 named s 2 s filed motions challenging personal jurisdiction, while the other 13 filed motions for SJ. Celotex said Caltrett failed to provide evidence that the product was proximate cause. Celotex then produced 3 documents which claimed a material issue of fact – was a letter from a former worker for petitioner, as well as a letter from insurance company to petitioner. Ruling on SJ: TC: granted SJ - claim not proven within the SOL CoA: reversed – petitioner introduced no affidavits or otherwise to support its motion. On Appeal: reversed and remanded Analysis CoA: wanted to produce affirmative evidence that contradicted s statements SC reverses: that standard is wrong because it fails to account for the fact that the burden of production on the Rule: if has burden of production; can win on SJ by simply pointing out the gap in s proof See Rule 56(b): may move with or without supporting affidavits Houchens (man disappeared in Thailand) was required to prove (a) that he died and (b) accidentally moved for SJ – had not put forth enough evidence to show that he had died accidentally Bias v. Advantage International, Inc. (1990) p.521 Facts Bias’ parents, as executor of estate, brought suit against Adidas Shoe Company, Lloyds Insurance Underwriters, and Advantage International, a sports and entertainment agents' firm. The suit claimed that Advantage International (by and through their agent - employee) had failed in their duty to their client (Bias) to obtain a life insurance policy (also of at least $1 million in value) as the parents asserted that Bias had instructed his agent to do. Advantage International moved for summary judgment on the ground that because of Bias’ cocaine use, would not have been able to obtain a $1 million dollar policy had they tried DC: granted motion On Appeal: affirmed. Analysis : not insurable. unclear whether the insurability is part of s or s case assuming that affirmative defense, carries burden – once produced evidence to show that he was not insurable, the court said the burden shifted to Here, the witnesses had no stake in the case, and the s never deposed, so the court deemed uncontroverted evidence, thus leading to SJ this is a very unusual case 1 Chapter 10: Trial 04/10/2008 Rule 50: Motion for Judgment as a Matter of Law (a) Judgment as a Matter of Law what used to be directed verdict – takes away from the jury to get a judgment against a matter of law against the - only need to show that there is an element of case where jury could not find for to get a judgment as a matter of law against - have to show that jury could not find in s favor on any of their claims 2 Key Factors: party must have been fully heard (b) Renewing the Motion After Trial: Equivalent to JNOV must have made a motion under 50(a) that was denied to raise one post trial Rule 52(c): Judgment on Partial Findings (= Motion for Judgment as a Matter of Law for Bench Trials) States of the Evidence Giving Rise: Is there no evidence from which the jury could infer a fact essential to the non-moving party’s case Evidence is so overwhelmingly weak that the court should not permit a jury to find the fact the evidence is being offered to prove There is no real dispute on the facts; issue is applying law to the facts and thus why should it go to the jury A. The Limits of Rational Inference Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911) p.584 Facts cow got onto train tracks and hit – unable to determine if (a) gate left open or (b) broken fence Holding Rule: if the evidence is such that there are equally plausible inference, the party who bears the burden of persuasion on that issue should lose on a motion for judgment as a matter of law what the court is saying that the party has put forth no evidence and thus has failed their burden of production Moving party does not need their own evidence, simply needs to point out of lack of evidence in the other party’s case (see Celotex) Today: would not be a case of no evidence – would get an accident reconstructionist B. Procedural Control of Rational Proof 1. Juries, Democracy, and Rationality 2. Adversarial Responsibility for Proof 3. Burdens a. Burden of Persuasion b. Burden of Production 4. Controlling Juries Before the Verdict a. Judgment as a Matter of Law (Directed Verdict) Pennsylvania Railroad v. Chamberlain (1933) p.594 Facts There are some train cars. Then the dead guy, then more train cars. He gets squashed between some of the cars. What is the railroad able to offer as evidence on the issue of what happened in the accident? Employees in the group of cars that crashed into him indicated that there was no collision at all. But there is another witness who gives some evidence of a collision. But the Court finds that this witness does not satisfy the plaintiff’s burden of production. In theory, under the modern Rules, the railroad could have moved for a directed verdict at that point, and it would have been valid. Analysis: typically, where you have conflicting testimony, as in here, the jury will resolve it jury is usually, except in rare circumstances, allowed to evaluate and determine credibility WHY DOES THE SC SAY THAT THIS IS NOT A CONFLICTING EVIDENCE CASE? he did not hear the crash in a directional sense, it could have been anywhere in the yard the witness was not an angle where he would be able to discern when he said the cars were moving together, it would have been impossible therefore, they say witness is testifying to something that they could not possibly know if simply unlikely, not enough – the court must conclude that it is impossible [Example of extremely evidence of an issue essential to that party’s case] p.599: Railroad Co. v. Stout children playing on railroad turntable and got injured not fenced, not locked – no dispute about the evidence Issue: do the undisputed facts constitute negligence? if there is no issue of fact, why should the issue go to the jury? to determine if it was reasonable that not fenced/locked – proper standards of care [if the legal standard is clear, the court will decide issue; if the legal standard requires application to facts, go to jury/ 04/14/2008 Class Notes from Ian 04/14/2008 Class Notes from Kirsten Judgment as a Matter of Law (Directed Verdict): during trial Judgment as a Matter of Law (Judgment Notwithstanding the Verdict): after trial Both are asking: Is there sufficient evidence for which a reasonable jury could find for the other party on that issue? Motion for a New Trial (1): Some error during the course of the trial that the trial court recognizes some mistake/ prejudicial error (procedural error) Can be grounds for new trial, but not necessarily grounds FRCP 61: only if it decides that the error is something significant will it go to the extreme of granting a new trial (2): when court determines that jury has returned a verdict that is against the weight of the evidence Harder to articulate standard because the consequences are different then the procedural errors Where the jury is confused from confusing information more deference for trial court’s grant for new trial Where the jury is not confused and it is a common question such as whether to believe the witness, then the trial court’s decision for new trial receives more scrutiny FRCP 59: the court may on motion grant new trial on all or some issues Does not state a standard in itself: errors in the omission of evidence or procedural errors during trial (a)(1)(b): can grant new trial in a nonjury trial 1 (a)(2): have flexibility of the court correcting itself on bench trial; court can go back in its finding and change the result if that is appropriate (cannot do that with a jury verdict because they are only given one set of evidence; cannot call them back and make them consider new evidence) Lind v. Schenley Industries (1960) Facts Plaintiff was a sales manager of corporation and claimed that corporation had promised him that he would receive 1% of commission on all sales made in his office (implausible assertion); witnesses willing to testify that the promise was made to manager; defendant testified against it; jury nevertheless made verdict for plaintiff Trial court granted judgment notwithstanding the verdict and then conditionally granted a new trial [FRCP 50(c)] for erroneously admitting evidence Standard for Trial Court in considering jury verdicts: Should grant the new trial on the grounds that the verdict is against the weight of evidence, but only if it is SERIOUSLY erroneous Middle Ground: Should grant judgment as a matter of law if trial court thinks the jury has completely misunderstood the case and there is absolutely no evidence to justify the verdict for the plaintiff Should leave the verdict if it is just erroneous then he cannot grant a new trial (trial court should not substitute its view of the evidence for that of the jury) Ex: if verdict winner after the first trial now loses in the second trial (if that is what you wanted to happen you would just award JNOV); cannot keep granting new trial until you get the verdict that you want (Page confused with need for new trial as a remedy) Where no evidence to support evidence, then judgment as a matter of law is appropriate; or no question about evidence and it was only about the manner of negligence and jury does not need to decide that issue (is this negligence or not); that leaves situations of conflicting evidence where there is a lot of evidence on one side and only a little on the other (the court here says that that is the situation where you should be hesitant to grant a new trial because that is what the jury’s job is) When no confusing and its asking whether to believe defendant or not then jury should decide When it is appropriate to grant new trial is when the jury is apparently confused from the evidence being completely complicated When you grant a new trial it is not immediately appealable: not a final order; simply says going back to new trial and then once there is a final judgment in the case and then you can appeal it If plaintiff wins first trial and defendant wins new trial; goes back and there is an error free new trial and the defendant wins; the plaintiff can go back and appeal the error in granting the new trial FRCP 50(c): where there is both a motion for JNOV and new trial, then the court can grant the judgment not withstanding the verdict and then conditionally grant the motion for new trial Do this in case you are wrong in granting the JNOV, then the court decide whether it is necessary to grant the new trial (ruling on one does not affect the finality of the ruling for motion of a new trial; can all go up together) Confusion with FRCP 50(c) & (e) Four Possibilities (structure of these on various possibilities is getting at trying to allow each side the verdict winner and loser to argue for its second best position): Four Possibilities JNOV and new trial; court can grant both (new trial conditionally) Could deny both JNOW and new trial Case is immediately appealable and not a problem Could deny JNOV and grant new trial Could grant JNOV and conditionally deny the new trial Defendant wants JNOV first, New trial Second, and the last thing it wants is the Verdict to stand Plaintiff wants Verdict first, New trial Second, JNOV last On appeal of however the court resolves this motion, each side will get to argue for its first best position and conditionally for the second best Analysis It would have been barred by FRCP 13(a) except that Martino didn't file a response in the first action. not barred for failing to raise compulsory counterclaim becase did not answer had Martino answered, would not be a res judicata issue at all Ct. protects consistency allowing Martino to bring a counterclaim might allow a judgment inconsistent with the first action. FRCP 13(a): Compulsory Counterclaim – ONLY MUST BE ASSERTED WHERE THERE IS AN ANSWER (1) In General. A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. McDonald failed to raise the anti-trust action in the initial action, and now seeks to sue for this very same clause in the 2nd action. it doesn’t matter that it arises out of the original claim the problem is that it bars the final judgment Common Law Compulsory Counterclaim Rule: If the defendant does not answer, thus there is no compulsory counterclaim, the raising of the claim will later be barred if it might allow a judgment inconsistent with the first judgment. 2. Between the Same Parties: only applies to “same parties” in the original jurisdiction = same party or parties and parties in privity Searle Brothers v. Searle (1978) p.673 3. After a Final Judgment 4. After a Judgment “on the Merits” Consent judgment is a judgment on the merits typical dismissal for failure to state a claim without preuduce: action not barred with predjudice: dismissal for jurisdictions are not judgments on the merits FRCP 41(b): (b) Involuntary Dismissal; Effect. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits. B. Issue Preclusion/ Collateral Estoppel Note: only applies if Res Judicata does not apply 1. The Same Issue 2. An Issue “Actually Litigated and Determined” Illinois Central Gulf Railroad v. Parks (1989) p.688 Facts: The Parks’ car collided with an Illinois Central train. The Parks sued the railroad for personal injuries to Bertha and loss of consortium to Jessie. Bertha won, but Jessie got nothing. Then Jessie sued separately for personal injuries. The railroad moved for summary judgment, and the trial judge said that Jessie’s claim was not barred. The trial judge also said Jessie was not barred on the issue of contributory negligence. The railroad appealed. Issue: Is Jessie’s claim precluded? Are any particular issues precluded? 1 Rule: Claim preclusion precludes the relitigation of a cause of action for which there has been a final judgment. However, issue preclusion applies if the causes of action are not the same but some of the issues raised in the second suit were “actually litigated and determined” in the first suit. Analysis: The court says that claim preclusion doesn’t apply because the railroad admits that the new suit is based on a distinct cause of action from the first suit. The court says that issue preclusion may apply to the matter of Jessie’s contributory negligence. However, the court finds that the jury could have either found for the railroad based on a finding of contributory negligence or Jessie’s failure to meet the burden of proof. Since there’s no way of knowing why the jury came to the conclusion they did, it’s okay to try the issue over again because the court thinks it wasn’t really “litigated and determined” with finality. C/E Rules: Collateral estoppel only applies to any issues that were actually determined; not issues that could have been determined and weren’t. (1) If the case could have been decided on more than one ground, and it is impossible to determine the grounds which it was actually decided upon (ie: general jury verdict), then NONE are given collateral estoppel effect. (collateral estoppel does not preclude the issue from being re-tried) (2) Where 2 issues are actually decided in the case, but one is not necessary for the result(does not by itself support the judgment), then that one is not given collateral estoppel effect. Note, if both are actually necessary and both are actually litigated, then both will get collateral estoppel effect. (3) Where there are 2 alternate grounds, any one of which would support the result independently, and you know how the jury viewed the issue, there is a split in authority. Majority (older): both given collateral estoppel effect Restatement: none should be given collateral estoppel effect. Exception: if there is an appeal, and an affirmance. Note: See Handout!!! 3. An Issue “Essential to the Judgment” 4. Between Which Parties 04/16/2008 General Rule: uses the same parties standard as res judicata BUT, many jurisdictions, including the Federal Rules, have relaxed Defensive Collateral Estoppel - Universal Rule A v. B J/B C v. B allowed all jurisdictions will allow C to re-try the issue of B’s negligence cannot use defensive collateral estoppel against someone who was not an original party Offensive Collateral Estoppel – Jurisdictions Split on Mutuality of Estoppel A v. B J/A C v. B Florida: C cannot collaterally estop B from asserting evidence that not negligent Fed (or jurisdiction has relaxed): C should be allowed to rely on this to establish that B guilty this is an example of offensive non mutual, collateral estoppel where there are prior inconsistent judgments, cannot apply collateral estoppel effect Example: SEC sues Corp for securities fraud. Establishes that they have violated securities law. Shareholder then sue Corp. for damages from violation. Can Corp. re-litigate the issue of violating? FL: yes because the shareholders were not parties to the initial action Fed: no; this is an example of offensive litigation Things to Look At In Determining Whether A Judgment Should Have Collateral Estoppel Effect; if losing one case sparks a host of other cases unexpectedly, court may determine that the did not devote the full effort and thus should not be precluded from defending later FROM TWEN: Collateral Estoppel (or Issue Preclusion) involving nonparties to the first lawsuit. 1. Defensive Use. Suppose P has claims against two defendants, D1 and D2, and the claims have a common, identical issue X (e.g., the validity of P’s patent in patent infringement actions). Suppose also that P sues D1, there is a judgment in that action, then P sues D2. If P wins on issue X in the suit against D1, then P may not collaterally estop D2 on the issue. (This is a universal rule, based on due process. A judgment cannot bind someone who was not a party to the lawsuit.) If P loses on issue X in the suit against D1, then in jurisdictions (like FL) recognizing mutuality of estoppel, D2 may not collaterally estop P on the issue. But in jurisdictions that allow defensive non- mutual use of collateral estoppel, then D2 may collaterally estop P on the issue. 2. Offensive Use. Now suppose two (or more) plaintiffs, P1 and P2, claims against D, and the claims have a common, indentical issue Y (e.g., the issue of negligence in a single tort that harmed two people). Suppose also that P1 sues D, there is a judgment in that action, then P2 sues D. If P1 loses on issue Y in the suit against D, then D may not collaterally estop P2 on the issue. (This is a universal rule, based on due process.) If P1 wins on issue X, then in jurisdictions (like FL) recognizing mutuality of estoppel, P2 may not collaterally estop D on the issue. But in jurisdictions allowing offensive non-mutual use of collateral estoppel, then P2 may collaterally estop D on the issue. C. The Boundaries of Preclusion 1. Claim Preclusion 2. Issue Preclusion 3. The Law of the Case and “Judicial Estoppel” 1