Civil Procedure I

Short and plain stmt of the claim showing that pleader is entitled to relief (P still needs to set forth factual matter to support ea element of the claim)

Summons

Appearance

General= answer- general denial of all allegations in complaint

Special= motion to quash- party’s request that court nullify process or action instituted by the other party

Pleadings

Motions

Sufficiency Pleadings

legal insufficiency: failure to state a cause of action by failing to allege all elements of conditional imperative; objecting to sufficiency of substance

general demurrer (state)

12(b)(6)- motion to dismiss for failure to state a claim

Form Insufficiency: failure to make facts clear and complete

special demurrer (state)

12(e) motion to make a more definite stmt.

Motion to dismiss by challenging complaint

Answer

Negative Defenses (deny material allegations of the complaint otherwise it's deemed admitted) and/or

Affirmative defenses

Counterclaim

Pre-Trial

Discovery

Subject Matter Jurisdiction of the Federal Courts

State courts have plenary jurisdiction= can adjudicate everything including fed issues
Federal courts have limited subject matter jurisdiction
Strategic considerations for picking Fed Court over State court

State courts environment is more local vs. more sophisticated and nat'l fed ct

Location

Broad discovery

Speedy trial

Single assignment system (cases usually assigned to a single judge from the outset)

Source of jurors (juries drawn from the entire fed district)

Diversity- 1 major category of subject matter jurisdiction

diversity jurisdiction allows the federal courts to hear cases in which the claims arise solely under state law, so long as constitutional and statutory requirements are satisfied
Justification is to afford an alternative forum to out-of-state litigants who might be victims of local prejudice ag. Outsiders

In a diversity case, state law is going to be litigated.

Article III
- Sec. 1 establishes the Supreme Court and gives Congress the power to create inferior federal courts.
- Sec. 2 sets out the scope of the federal judicial power. Fed. Courts may hear cases: arising under the Constitution or fed law, affecting ambassadors, or btw citizens of different states.

28 USC 1332. Diversity of Citizenship; amount in controversy; costs
- current scope of the diversity jurisdiction that Congress has granted to the federal courts is granted here since there must also be some statutory grant by Congress vesting fed courts w/jurisdiction (not enough that an exercise of federal jurisdiction is merely permissible under the Constitution)
- (a) District courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum of $75K and is btw:

citizens of different states;

citizens of a state and citizens or subjects of a foreign state;

citizens of different states and in which citizens or subjects of a foreign state are additional parties; and

a foreign state, as P and citizens of a state or of different states.

For the purposes of this section, section 1335 and section 1441, an alien admitted to the u.s. for permanent residence shall be deemed a citizen of the state in which such alien is domiciled.
(b) Except when express provision therefore is otherwise made in a statute of the U.S., where the P who riles the case originally in the fed courts is finally adjudged to be entitled to recover less than the sum of $75K, computed w/out regard to any setoff or counterclaim to which the D may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the P and, in addition, may impose costs on the P.
Under 1332, a corporation can be a citizen of more than one state:

In the state(s) in which it is incorporated and

The state in which it has its principal place of business
- General rule: corp can have only 1 principal place of business for purposes of diversity jurisdiction

3 Different Tests used to locate a corp's principal place of bus:

Nerve Center Test
- Locus of corp decision-making auth and overall control

Corporate Activities or Operating Assets Test
- Greater weight is attached to the location of a corp's production or service activities

Total Activity Test
- Hybrid of the other 2 tests; considers all the circumstances surrounding a corp's business to discern its principal place of business; balancing of all relevant factors

Requirements for Diversity Jurisdiction:

Amount- in- Controversy Requirement:
- For a fed court to have diversity jurisdiction, amt in controversy must exceed $75K
- Amt is computed as of the date of the action= subsequent events do not defeat jurisdiction
- Jurisdictional amt requirement is satified unless P's complaint shows to a legal certainty that she could not recover more than the minimum amount
  - If claim made if good faith; there need only be some legal possibility of recovering the minimum amt

Complete Diversity (Strawbridge v. Curtiss- Marshall)
- no diversity jurisdiction if any P is a citizen of the same state as any D, no matter how many parties are involved in the litigation
- Exception: Minimal diversity
  - 2 statutes enacted by Congress allows min. diversity in catastrophic mass accidents and big dollar class actions (otherwise complete diversity is required or federal question)
  - all that’s required is for 1 P to be from a different state than D

Determining Citizenship
- Mas v. Perry.
  - Ps are a couple- husband from France and wife from MI. They found a 2 way mirror in their home. D was from LA.
  - Last domicile is important to determine for diversity jurisdiction
  - Domicile= Residence + Intent to Remain
  - Complete Diversity of parties required
  - Determination of one's state citizenship for diversity purposes is controlled by fed law
  - Citizenship for diversity purposes means domicile (more than mere residence)
Determining the Amt in Controversy in diversity cases seeking injunctive relief (nonmonetary relief in cases in which the value differ):

P's viewpoint Rule:
- Relief should be valued from the P's perspective (value to P)

D's viewpoint Rule:
- D's perspective (cost to D)

Either viewpoint Rule

Exceptions to exercise of DJ:
- Fed Court may decline to exercise jurisdiction is some types of cases even though it falls w/in their jurisdiction:
- Domestic relations-- divorce, alimony, or child custody decrees
- Probate proceedings (for the probate court to exercise jurisdiction)
- Local actions

Federal Question-
last major category of federal subject matter jurisdiction

In a federal question case, federal law is going to be litigated.

Osborn v. Bank of the United States (1824). S.C. upheld a statute that read granting of fed court jurisdiction over any case to which the bank was a party. Even if the suit was about a state law debt, the bank was a fed creation and in every case there would be a question about whether it could legally sue- a federal question.
- Question forms an original ingredient in every cause and even if unimportant once decided upon, it is enough to be relied upon to uphold federal question jurisdiction.
- Broad view of federal question power

Holding permits Congress to define federal question jurisdiction extremely broadly, but courts have held that Congress has not defined federal question jurisdiction this broadly under the general federal question statute 28 U.S.C. 1331

28 U.S.C. 1331. Federal Question.
- The District Courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.
- Statute is a lot shorter than the diversity statute (1332) b/c fed Question is kept simple since it's favored over DJ
- Principle that the federal judiciary should have authority to interpret and apply fed law
Requirements to raise federal question:
- Federal Claim OR
  - Is the P seeking relief on the basis of a fed claim?
- Federal Issue in State Law Claim
  - If not, does the P's nonfederal claim turn on a substantial issue of federal law that is included in the P's well-pleaded complaint?
  - Federal issue must be an element of the state-law claim
  - Louisville & Nashville R. Co. v. Mottley (1908).
  - P sued D railroad in fed court alleging that railroad had breached a contract to provide P w/free lifetime passes to ride the railroad. To invoke fed question jurisdiction, P alleged in their complain that D would defend breach of contract action (state law claim) by claiming that a newly enacted fed statute prohibited such passes
    - Rule: Defenses arising under federal law is not enough to bring to federal court under federal question. Fed. Defense doesn't make it a fed. Question.
      - Defenses are not raised till later= If you can't open the suit in federal court, you have to go to state court.

P's allegation relating to the fed statute were not essential to P's action for breach of contract and were merely anticipating a defense

No amount in controversy requirement
A federal claim or question is sufficient to vest the court w/ jurisdiction unless it clearly appears to be immaterial or made solely for the purpose of obtaining jurisdiction, or where the claim is wholly insubstantial and frivolous
- Litigant need not show that he will prevail on the merits of the claim; the federal claim need only be arguable b/c the court is required to determine whether it has subject matter jurisdiction before it considers the merits
Purposes for FQ:
- Judges selected under same procedure as the S.C. justices- greater similarity in the interpretation of nat'l law
- Promotes a more uniform, correct application of federal law
- Existence of an alternative forum stimulates state courts to give more attentive treatment to claims of fed right

Supplemental Jurisdiction

Goal: promote judicial economy and consistency of decision by removing obstacles to having all related controversies decided in one proceeding; don't want to duplicate trials
- =sometimes a federal court may decide matters that, if presented independently, would not provide a basis for federal subject matter jurisdiction
- Often you'll have a case where you have both state and federal issues- if it's roughly enough related, supplemental jurisdiction will cover both issues

Pendent Jurisdiction
- P w/a jurisdictionally sufficient claim (usu a fed question) could join a related claim ag the same D even though the 2nd claim was not itself w/in the court's subj matter juris
- Aldinger v. Howard.
- P brought suit ag officer of WA and sought to join county as an add'l D.
  - Court refused to apply pendent jurisdiction to an additional party to whom no independent basis of fed jurisdiction existed.
  - =Limited approach to pendent party jurisdiction.
  - Very different to permit P, who has asserted a claim ag 1 D w/ respect to which there is fed juris, to join an entirely diff D on the basis of a state law claim over which there is independent basis of fed jurisdiction simply b/c his claim ag the 1st D and his claim ag 2nd D derive from a common nucleus of operative fact

Ancillary Jurisdiction
- Party (usu the D) could assert a related claim ag another D, the P, or a 3rd party, even though the 2nd claim was not itself w/in the court's jurisdiction
- Finley v. United States.
- P's husband and 2 children were killed when their plane struck electric power lines while landing in SD. Filed suit alleging negligence under fed law. P was not allowed to later amend complaint to allege state law tort claims.
  - Even where there was exclusive fed jurisdiction over a fed claim ag 1 D, Court held that there could be no juris over a related, nonfederal claim ag a nondiverse party b/c a grant of juris over claims involving particular parties does not itself confer juris over additional claims by or against diff parties.
  - Agreed to limited approach in Aldinger and casted doubt on all extensions of ancillary jurisdiction to claims ag added parties w/out express congressional authorization.

28 U.S.C. 1367. Supplemental Jurisdiction (1990) and Article III Sec. 2

Judicial doctrines codified into this statute and restore law to its pre-Finley state
Under this statute, once a federal court has jurisdiction over a claim under 1331 or 1332, it may hear all claims that are related to the claims over which it has "original" jursidiction

(a) Jurisdictional power to limit of Constitution

explicitly grants supplemental jurisdiction over claims that involve the joinder or intervention of additional parties

(b) Exception for diversity cases
- when fed SMJ is founded solely on diversity of citizenship, SJ is limited
- No SJ over claims by P ag persons made parties under Rule 14, 19, 20, 24
- No SJ over claims by persons proposed to be joined pursuant to Rule 19, 24
- limitations apply when exercising juris would be inconsis w/juris reqs of 1332
(c) Discretionary Decline of Jurisdiction
- explicitly authorizes DC to decline juris in certain circumstances that largely implement discretionary factors identified in UMW v. Gibbs

if law to be applied to nonfederal claim is uncertain, district court may decline to entertain that claim so that the parties can get a surer footed reading of the applicable law from a state court

Fed ct may conclude that nonfederal claim is the real body of the case

If all claims over which the fed court had original jurisdiction are dismissed, court may dismiss the nonfederal claims. In deciding whether to do so, the court should consider the amount of time invested in the case by the court.

Fed courts may also decline to exercise SJ in extraordinary circumstances if there are other compelling reasons for declining juris

Statute grants federal courts that have original jurisdiction over a claim supplemental jurisdiction over all other claims that form part of the same case or controversy under Article III of the Constitution. Focus of the constitutional inquiry is whether the claims sought to be added to those w/in federal jurisdiction are part of one constitutional case.
- United Mine Workers of America v. Gibbs.
- Armed members of the UMW prevented the opening of the mine P was a superintendent of. Court articulated 3 part test to determine whether a federal court has the power to entertain pendent claims.

Substantial federal claim
- Fed claim must be sufficiently substantial to support federal question jurisdiction.

Common nucleus of operative fact
- Federal and nonfederal claims must derive from a common nucleus of operative fact.

One judicial proceeding
- Federal and nonfederal claims must be such that the P would ordinarily be expected to try them in 1 judicial proceeding.

Removal

P generally considered the master of his complaint= P may choose to avoid fed- removal jurisdiction by pleading only state claims or by joining parties who will destroy DJ
- Exceptions:
  - P may not defeat DJ by fraudulently joining a D ag whom P has no cause of action
  - Pleading prevents P from disguising a fed cause of action that would make case removable
  - Complete preemption= pleading mandates that certain causes of action are so exclusively federal in character that even if P does not plead them, they will completely preempt any state cause of action and make any cause of action that P attempts to plead fed and therefore removable
If P files an action in state court but could originally have filed in fed court, D can remove action to the federal court (can never remove from fed court to state court!)

Basis to bring to Federal Court:

Federal question
- If P's state court complaint raises a fed question, D may remove
  - well-pleaded complaint rule applies= D's federal defense to P's state law claim is not sufficient to support removal
  - If P chooses not to assert a possible fed claim, D may not remove case by citing unasserted claim
    - If P amends complaint to assert fed claim, then D can remove or if fed law complete preempts state law on the matter and converts P's claim into one of fed law, case is removable (complete preemption)

Diversity (requirements apply here too)

Separate and independent fed claim (1441(c))

Special Removal statutes

28 USC 1441. Actions removable generally.
- (a) If P has named fictitious "John Doe" Ds in the complaint, they are disregarded for purposes of determining whether there is complete diversity in cases that are removed from state to fed court.
- (b) Any civil action of which DC has original jurisdiction…shall be removable; any other such action shall be removable only through diversity when D is not a citizen of state in which action is brought
  - DJ is designed to protect ag local prejudice and they're a local party- NA
- (c) A D sued on a separate and independent claim or cause of action w/in fed question jurisdiction may remove, even if the P has joined nonremovable claims
28 USC 1446. Procedure for removal.

(a) D(s) desiring to remove…shall file in DC for the district and division w/in which such action is pending a notice of removal signed pursuant to FRCP Rule 11 and containing a short and plain stmt of grounds for removal, together w/ a copy of all process, pleadings, and orders served upon such D(s) in such action.
- Copy of the notice should be sent to other parties and to state court

Only Ds can remove and All Ds must join

Exception: when ground for removal is a separate and independent claim, only D ag whom this claim is asserted need seek removal

Challenging Subject Matter Jurisdiction

FRCP 12(b) How Presented. Motion to dismiss made only on the following grounds
Lack of SMJ may be asserted at any time by any interest party
- answer, suggestion to the court prior to final judgment, on appeal, raised by the court sua sponte
Parties may not create the jurisdiction of a fed court by agreement or by consent

Venue

Concerns: convenience of the parties, judicial economy, prevent P from suing where it would be burdensome for D to appear and defend

Venue is a STATUTORY LIMITATION on where a suit may be brought
- Involves the proper place to bring the action (determined after court has determine whether it has jurisdiction)

Usually considered after it is determined that there is statutory authorization for the exercise of jurisdiction and that the exercise of jurisdiction is constitutional.

28 USC 1391. Venue Generally.
- (a)(1), (b)(1) D's Residence-
  - venue is proper in a judicial district where any D resides, if all Ds reside in the same state, whether fed SMJ is based on diversity jurisdiction or a fed question
    - Gen residence refers to domicile (place she resides w/intent to remain indefinitely)
- (a)(2), (b)(2) Location of Substantial part of events or omissions or of property-

venue is proper in "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," whether fed SMJ is based on diversity of citizenship or a fed question

Bates v. C & S Adjusters, Inc. Bates incurred debt while resident of PA. Creditor in PA. Bates moved to NY and mail was forwarded to him there. Suit brought in NY.
- Venue proper under (b)(2) b/c statutory std for venue focuses on where events occurred and not whether D has made a deliberate contact (imp factor in PJ)
  - Mail forwarded there and his residence there= sub events

Property present- property must be subj of action for venue provision to apply or local action rule may apply instead of 1391

(a)(3), (b)(3) Fallback Venue-

Used when no other venue requirements cannot be satisfied in any district usually in multiD cases; P must show that venue cannot be established in any other district to rely on fallback provisions
This applies only if the other 2 venue rules do not apply and they differ depending on whether case is based solely on DJ
(a)(3) Diversity Cases- venue proper where D is sub to PJ
(b)(3) Federal Question Cases- venue proper where a D is "found"

Found means a district in which she can be served w/ process

(c) Residence of corporation
- Corp deemed resident of any judicial district in which it is subject to PJ
(d) Aliens
- in a suit ag an alien, venue is proper in any district

For DJ though, alien deemed citizen of state in which he's domiciled

28 U.S.C. Section 1404. Change of Venue
- (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
  - In deciding a motion to transfer, general rule is that P's choice of forum should rarely be disturbed; transfer is only proper only when balance of conveniences strongly favors transfer.
  - Either P or D can move to transfer
  - Ferens v. John Deere Co.
  - P's moved to transfer, arguing that they had sued in an inconvenient district, but where were really trying to end up w/both a favorable forum and law of their choice.
    - In a diversity suit or in cases where P sues in a court that has proper venue and jurisdiction, a transfer for the convenience of the parties does not affect choice of law b/c transferee court is to apply the same choice of law rules that transferor court would have applied
      - Goal- stop shopping for more favorable law

Forum Non Conveniens

Even when jurisdiction and venue are proper, courts may decline to exercise jurisdiction on the ground that the location P selected for case is grossly inconvenient (allows court to exercise its discretion)
When the inconvenience problem can be solved by transfer to another fed district, the court may not dismiss; but if proper forum is in another country, the fed court can dismiss
- Piper Aircraft Co. v. Reyno.
- Aircraft crashed in Scotland. Aircraft was manufactured in PA, but all decedents were all Scottish residents and aircraft was registered in Great Britain. Factors strongly pointed towards Scotland as appropriate forum
  - Possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry unless remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all
Court considers private and public factors in making a decision whether to dismiss on forum non conveniens grounds

Usually substantial weight is given to P's choice to sue in a forum where venue and jurisdiction requirements are satisfied
Fact that the law in the more convenient forum is less favorable to P usually has no significant weight
Court cannot dismiss unless the alternative forum is available
Court can condition the dismissal to protect ag unfairness to P (ex. Statute of limitations)

Dismissal on the basis of forum non conveniens requires that there be an another more convenient forum where P can obtain adequate relief

Choice of Law

28 U.S.C. 1652. State Laws as Rules of Decisions ("Rules of Decision Act")
- Starting point for the applicability of state law in the fed courts
- The laws of the several states, except when the Constitution or treaties of the U.S. or Act of Congress otherwise requires or provide, shall be regarded as rules of decision in civil actions in the courts of the U.S., in cases where they apply.
Former Rule- Swift v. Tyson

"laws of the several states" in the Rules of Decision Act was interpreted to encompass only statutory law and did not include state general common law
- =fed courts could follow fed general common law absent state statutory law
- Fed courts were bound by applicable state statutes and local common law

Erie Doctrine: The Rules of Decision Act and The Rules Enabling Act

Erie R. Co. v. Tompkins.
Court saw Erie as the opportunity to overrule Swift. Tom was walking home along a footpath when he was struck by an object from a passing train. T's lawyers tried to avoid harsh PA rules by Erie (NY based) in fed court. DC applied general law= T won damages.
- In the absence of an Act of Congress providing governing law, a fed court should follow applicable state common law principles since there is no fed gen common law.
  - Cpngress has no power to declare substantive rules of common law applicable in a state and no clause in the Constitution purports to confer such a power upon the federal courts

Guaranty Trust Co. v. York.
whether state statute of limitations should be applied in a fed diversity jurisdiction case?

where a fed court has jurisdiction solely b/c of diversity of citizenship, outcome of litigation in fed court should be substantially the same (re: legal rules)
- If substantive= state law should be used
- Outcome Derivative Test: Major test for whether state law should be regarded as substantive for Erie purposes articulated:

Will application of fed law instead of state law significantly affect outcome of the litigation?

Hanna v. Plumer.
Whether service of process shall be made the manner prescribed by state law or FRCP Rule 4(d)(1) in a diversity jurisdiction case? Holding: FRCP service of process on a D's spouse at their home rather than personal service required by MA law was valid and controlling.

Case suggests that while Outcome Derivative Test survives, it should be applied in modified form in light of the policies underlying the Erie rule (modified test N/A to this case though)
- Twin aims (policies of Erie)- discouragement of forum shopping and avoidance of inequitable administration of the laws

Rules Enabling Act
- (Congress) under which the Fed Rules are promulgated
- Act gives S. Court the power to adopt Fed Rules regarding practice, procedure, and evidence in the fed courts as long as the Rules do not abridge, enlarge or modify any substantive right
- = If procedural= fed courts will use fed rule (bureaucratic idea)
- =Erie and Enabling Act recognized power of Congress to prescribe housekeeping rules for fed courts even though some of the rules will differ form comparable state rules

Determining whether to apply state or federal law is known as an Erie problem.
- usu arise in diversity cases but can arise in supplemental state claims in fed q cases

General rule: state substantive law and federal procedural law govern

1st: ask whether there is a true conflict btw a state and fed rule that purport to apply and cannot be harmonized?
- There is no true conflict if a fed rule or practice doesn't exist and state law is of substantive nature, or the fed and state rules- while related- do not speak to exactly the same point, or the 2 rules agree.
  - =In such cases, no choice of one or the other is necessary.
2nd: if there is a true conflict, look to the source of the potentially applicable federal rule of law
- Test for the federal rule's validity and governing force varies depending on whether it derives from the Constitution, a statute enacted by Congress, a court rule promulgated under the Rule Enabling Act, or purely from decisional law (as opposed to interpretation of the Constitution, an Act of Congress, or a Federal Rule)

Is the source of the potentially applicable fed rule grounded in the Constitution?

If Yes= federal rule governs, period, w/out regard to the source, importance, or substantive nature of any contrary state rule.

Is the federal rule of law found in an Act of Congress?

If so, it governs as long as it is constitutional (falls w/in powers of Congress and doesn't violate any independent fed constitutional right)

Is the fed rule of law a FRCP?

If so, the Rules Enabling Act (28 U.S.C. 2072) provides the principal test for its validity:

Must be arguably procedural- dealing w/ practice, procedure, or evidence

And must not abridge, enlarge, or modify any substantive right

If it passes these tests and is constitutional, the federal rule governs.

Is the federal rule of law judge-made?

If so, it should not govern in fed court if it fails the twin-aims test of Erie as stated in Hanna v. Plumer:

If the fed courts do not follow the state rule, will it encourage forum shopping btw state and fed courts and inequitable administration of the laws by providing different, and possibly outcome affecting, regimes of applicable law?

Certain judge made law cases involve an essential characteristic of the fed court system, such as relations among the jury, trial judge, and appellate court. In such cases, it might be necessary to balance state interests ag those served by a decisional fed rule, or to see whether the state and fed interests both can be accommodated.

If there is a conflict btw the requirements of a FRCP and state procedural rule, generally fed courts will apply a fed rule of civ pro unless court determines that the rule violates the Rules Enabling Act of the fed Cons

In Erie, the Court stated that there is no fed general common law, in several areas of fed authority or interest, the fed courts may develop fed common law by borrowing or even preempting state law. You may need to ask whether a case involves:
- A need to borrow state law (ie. statute of limitations for a fed claim when Congress has enacted none)
- An express or implied authorization from Congress for the fed courts to develop fed common law
- A fed interest significant enough to call for uniform fed decisional law

Which State's Law Applies?
b/c diversity cases involve parties from different states, fed courts must often decide which state's law is to govern

General Rule:
- fed court will apply the law of the state in which it sits (includes state's choice of law rules)
- Klaxon Co. v. Stentor Electric Mfg. Co..
  - Court held that the fed courts must apply the conflicts-of-law rules of the states in which they sit b/c proper function of a fed court is to ascertain what the state law is, not what it ought to be.
Id of state law is easy only in the presence of an on-point statute or law declared by its highest court in a decision; otherwise:
- Fed courts should give proper regard for state court rulings
  - Court should consider Erie's "twin aims" and apply the law it thinks the state Supreme Court would apply

Mason v. American Emery Wheel Works.
- State supreme court had not had the chance to consider the new emerging rule, so court look at similar recent cases and inferred fairly that the state supreme court is prepared to reconsider and revise the old rule

Abstention
- Fed court may stay its proceedings to permit highest court of the state an opportunity to interpret
Certification
- Alternative method of ascertaining state law
- Procedure that allows the court of 1 system to petition the court of another system for the answer to an unresolved legal question
- If certification is permitted, state's highest court accept questions from S.C. and from Fed. Court of Appeals

Federal Common Law

Federal courts do have authority to create common law in particular areas of fed authority or interest, subject to overruling by Congress ie:
- labor relations;
- where there is a strong federal interest in developing a uniform fed common law (reqs for notice of forgery on govt checks),
- where interstate disputes are involved,
- and where American foreign relations are involved
Few areas involving "uniquely fed interests" which are so committed by the Constitution and laws of the U.S. to fed control that state law is pre-empted and replaced when necessary by fed law by the courts

Displacement: occurs only when a significant conflict exists btw fed policy or interest and the operation of state law or application of state law would frustrate specific objectives of fed legislation

Boyle v. United Technologies Corp. Whether a contractor providing military equipment to the fed govt be held liable under state tort law for injury caused by a design defect?
- The contractor cannot be held liable b/c the fed policy displaces the state law which holds govt contracts liable for design defects in military equipment since the state law presents a sig conflict w/fed policy

Pleadings: How You Start a Lawsuit

The Complaint

P begins a civil action by filing in a court of appropriate jurisdiction a complaint seeking some sort of judicial relief ag specified D.

Essential parts of a complaint are:

Caption--- (Rule 10(a))

jurisdictional allegations--- Rule 8(a)(1))

Body--- Rule 10(b)- s
- tmt of facts upon which recovery is sought (short and plain stmt of the claim showing pleader is entitled to relief)
- separate causes of action
- direct allegations
  - Allegations must be made only after reasonable inquiry and w/ a belief that the pleading is likely to have evidentiary support- Rule 11
  - ok to have alternative and inconsistent allegations
  - Substantive and procedural aspect
- Defenses generally need not be anticipated by P

prayer for relief--- Rule 54(c)

Subscription--- Rule 11
- complaint must be signed by the attorney or party if unrep

Purposes of Pleadings

give notice of the general character of the controversy btw parties;
determine scope of the action for the trial and scope of any judgment in the action

FRCP 7(a). Pleadings
- complaint and an answer, which may contain a counterclaim;
- a reply to a counterclaim;
- an answer to a cross-claim, if answer contains a cross-claim;
- 3rd party complaint, if a person who was not an original party is summoned under provisions of Rule 14;
- and a 3rd party answer, if a 3rd party complaint is served
- no other pleading shall be allowed, except that the court may order a reply to an answer or a 3rd party answer

FRCP 8. General Rules of Pleading--- Ethos of Federal Rules!!!
- (a) Claims for Relief.
  - Pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or 3rd party claim, shall contain

short and plain stmt of the grounds upon which court’s jurisdiction depends- showing the ground upon which the subject matter jurisdiction of the fed court is invoked

Notice Pleading= short and plain statement of the claim showing that the pleader is entitled to relief, and
- show pleader is entitled to relief and set forth factual assertion sufficient to support each claim!!!
- Purpose: simply identify the transaction out of which P’s claim arises, so that the D has notice of the claim.
- Swierkiewicz v. Sorema.
  - P was demoted after many years while working at an insurance company.
  - An employment discrimination complaint need not plead a prima facie case of discrimination.

a demand for judgment for the relief the pleader seeks

relief in the alternative or of several diff types may be demanded
Dioguardi v. Durning.
1. P tried to import bottles of tonic. Complaint was dismissed for failing to state facts sufficient to constitute a cause of action.

Old rule: state “facts sufficient to constitute a cause of action”
New Rule: 8(a) only a short and plain stmt of the claim showing that the pleader is entitled to relief.
Even though badly stated, court figured out what P was alleging.

(e) Pleading to be Concise and Direct; Consistency
- (1) allegations in complaint should be simple, concise and direct
- (2) Party may set forth 2 or more stmts of a claim or defense alternately or hypothetically, either in 1 count or defense or in separate counts or defenses. When 2 or more stmts would be sufficient, the pleading is not made insufficient by the insufficiency of 1 or more of the alternative stmts. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds. All stmts shall be made sub to the obligations set forth in Rule 11.

Pleader also permitted to plead inconsistent versions of the facts- almost all courts now permit inconsistent allegations if made in good faith (some reason why P could not know which version was true)

FRCP 10. Form of Pleadings
- (a) Caption; Names of Parties
  - Every pleading shall contain a caption setting forth- name of the court, title of the action, file no., and a designation as in Rule 7(a), names of parties.
- (b) Paragraphs; Separate Stmts
  - Each claim or cause of action should be set forth in a separate group of serially numbered paragraphs and each paragraph should be limited to a stmt of a single set of circumstances

Alternative and Inconsistent Allegations
- Original common rules: Pleadings used to reduce every controversy to a single issue of law or fact therefore alternative/inconsistent allegations would have made the search for the single issue impossible and were forbidden
- Now:
  - P may properly allege facts based on inconsistent legal theories (ie. Battery and negligence- okay to go to trial on both theories so that if the facts do not sustain 1 theory, they may sustain the other)
  - And FRCP 8(e)(2)
Prayer for Relief-- 8(a)(3) and 54(c)
- Complaint must also contain a prayer for relief (ex. Stmt of relief sought)
- FRCP 54(c). (Judgments) Demand for Judgment
  - In Default Cases (limit on damages!)
  - If the D defaults by failing to defend, the relief granted cannot exceed what is prayed for in the complaint or differ from it in kind
  - In Contested Cases
  - P is not limited to the relief prayed for in the complaint; court may award any relief to which a party is entitled to under the pleadings and proof- even if different from or greater than that prayed for in the complaint
  - Bail v. Cunningham Bros. P requested to amend the complaint the morning of the trial to increase the amount of damages claimed ag D.
    - Rule 54- claimant may be awarded damages in excess of those demanded in his pleadings.
    - Motion to amend, even on the morning of the trial, should have been granted b/c it won’t vary any material facts or change any issues.
Pleading Special Matters
- FRCP 9(b). Fraud, Mistake, Condition of the Mind
  - In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated w/particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
  - limited to cases involving fraud or mistake- need slightly more than rule 8(a) b/c fraud allegations require more specificity than a mere notice pleading
  - Ultimate facts in a fraud action must always be pleaded w/particularity; general allegations are not sufficient
  - In fed securities fraud claims, Private Securities Litigation Act requires very detailed allegations
  - Denny v. Carey. Class action alleging violation of fed and state securities laws to conceal the true picture of 1st Penn’s financial condition.
    - 9(b)- P’s burden of pleading fraud w/ particularity is met when there is sufficient identification of the circumstances constituting fraud so that the D can prepare an adequate answer to the allegations.
    - P should be able allowed to flesh out the allegations in the complaint through discovery after satisfying the minimum burden.
  - Denny v. Barber. Circuit court was more conservative to what's req'd 4 9(b).

The Summons

Court issues its process (summons) directing the named D to appear.

FRCP 1. Scope of Rules
- Rules govern the procedure in the U.S. district courts in all suits of a civil nature whether cognizable as cases at law or in admiralty, w/exceptions stated in Rule 81. Shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
FRCP 2. One Form of Action
- One form of actions to be known as “civil action”
FRCP 4. Summons
- (a) Form. Summons shall be:
  - Signed by the court,
  - bear seal of the court,
  - identify the court and parties,
  - directed to the D,
  - state the name and address of the P’s attorney or of the P, if unrepresented;
  - state the time w/in D must appear and defend and notify D that failure to do so will result in judgment by default ag the D for the relief demanded in the complaint
  - Court may allow a summons to be amended
- (b) Issuance.
  - Upon or after filing the complaint, P may present a summons to the clerk for signature and seal. If summons is in proper form, the clerk shall sign, seal, and issue it to the P for service on D. A summons, or a copy of the summons, if addressed to multiple Ds shall be issued for ea D to be served.
- (c) Service w/ Complaint; by whom Made.
  - (1) summons shall be served together w/ a copy of the complaint. P is responsible for service of a summons and complaint w/in the time allowed under subdivision (m) and shall furnish the person effecting service w/ the necessary copies of the summons and complaint.
  - (2) Service may be effected by any person who is not a party and who is at least 18 years of age. At the request of the P, the court may direct that service be effected by a U.S. marshal, deputy U.S. marshal, or other person or officer specially appointed by the court for that purpose. Such an appointment must be made when P is authorized to proceed in forma pauperis pursuant to 28 U.S.C. Sec. 1915 or is authorized to proceed as a seaman under 28 U.S.C. Sec. 1916.

Responding to the Complaint

Motions
FRCP 12. Defenses and Objections- When and How Presented- By Pleading or Motion- Motion for Judgment on the Pleadings
- Must be in writing, and must specify the ground upon which it is based
- (a) When Presented./ Time Permitted for a Response
  - Usually D must respond either by a motion pursuant to Rule 12, or by answering the complaint 20 days from service of complaint
  - Extensions to D’s time allowed pursuant 4(d)- usu. 60 days after date when request for waiver was sent
- (b) How Presented. Basic challenge to legal sufficiency of adversary pleadings Motion to dismiss may be made only on the following grounds:

Lack of jurisdiction over the subject matter;

Lack of Jurisdiction over the person

Improper Venue

Insufficiency of Process

Insufficiency of Service of Process

Failure to state a claim upon which relief can be granted; and
- failing to state facts sufficient to constitute a cause of action
- One of a number of procedural devices (summary judgment, partial summary judgment, directed verdict, and judgment notwithstanding the verdict), designed to screen out frivolous and nonmeritorious cases
- Asks- assuming the facts pleaded are true, do they constitute a legal claim upon which P is entitled to judicial relief?
  - Courts will assume the facts are true (provided the complaint sets out sufficient facts to outline the cause of action) and assess whether, even if all well-pleaded facts are taken in the light most favorable to the P, the complaint fails to set out a legal claim that would entitle the P to relief= Rule 12(b)(6) permits a judgment as a matter of law in favor of the D
- Effect if motion is granted is usu give P one opp to amend the complaint
  - constitutes an adjudication on the merits, so further actions on the same claim are barred

Failure to Join a Party whose Joinder is required by Rule 19

(c) Motion for Judgment on the Pleadings.

After pleadings are closed but w/in such time as not to delay the trial, any party may move for judgment on the pleadings.
If outside of the pleadings, motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 and all parties shall be given reasonable opp to present all material madder pertinent to such a motion by Rule 56.

(e) Motion for a more definite statement.
- Attack on the form of the pleadings; granted only where the pleading under attack is so vague and ambiguous that it would be unreasonable to require the moving party to reply to it
- rarely granted
(f) Motion to Strike.
- either party may move to strike an insufficient defense or any “redundant, immaterial, impertinent or scandalous” matter in the other’s pleadings
- Rule disfavored and is infrequently granted b/c it is a drastic remedy and is often sought by the movant as a dilatory tactic; only granted if allegations attacked have absolutely no possible relation to controversy
- May be used to attack separate portions of the complaint which are insufficient as a matter of law

Other Motions Attacking Pleadings= 12(e); Rule 12(f)
American Nurses’ Association v. Illinois.
- Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that P can prove no sets of facts in support of his claim which would entitle him to relief.
- Complaint shouldn't be dismissed merely b/c it included invalid claims along w/a valid 1

Answering the Complaint
- If motions are denied, answer is filed- put at issue the factual allegations in the complaint= denying allegations of the claim and/or setting forth some affirmative defenses

Denials
- Rule 8(d):
  - Allegations to which a reply is not permitted or required are considered avoided or denied and P may controvert them at trial
  - Matters requiring a responsive pleading are taken as admitted if not denied in the reply or if a reply is not filed
- Rule 8 requires a D to make one of 3 responses to the contents of P’s complaint- admit, deny or plead insufficient information in response to each allegation
  - General Denial- not recommended b/c it will deny all of the allegations and usu. There something which the D in good faith should admit
  - Specific Denial

Affirmative Defenses
- D must plead any defense or objections that constitute “New matter” or an affirmative defense; Anything that D must prove in order to avoid the P’s claim
- Definition: 2 types-
  - ones that admit the allegations of the complaint but suggest some other reason why there is no right of recovery (other factual circumstances there which would exonerate D even if facts alleged by P are established)
  - and ones that concern allegations outside of the P’s prima facie case that the D therefore cannot raise by a simple denial in the answer
- function: provide notice to P of the possible existence of the defenses and D’s intention to advance them
- in determining whether a defense not listed in Rule 8(c) must be raised affirmatively, courts look to federal statutes in fed question cases and to state practice in diversity cases
- FRCP 8. General Rules of Pleading

(c) Affirmative Defenses. 19 affirmative defenses that must be raised specifically

Accord and satisfaction,

Arbitration and award,

Assumption of risk,

Contributory negligence,

Discharge in bankruptcy,

Duress,

Estoppel,

Failure of consideration,

Fraud,

Illegality,

Injury be fellow servant,

Laches

(unreasonable delay or negligence in pursuing a right or claim in a way that prejudices the party against whom relief is sought),

License,

Payment,

Release,

Res judicata,

Statute of frauds,

Statute of limitations,

Waiver, and any other matter constituting an avoidance or affirmative defense

Ingraham v. United States.

Rule 8(c) contains a residuary clause + 19 affirmative defenses= must be raised timely otherwise it constitutes a waiver
- Concerns- whether taking opposite party by surprise; whether being used as a dilatory tactic; technical failure, convenience

Taylor v. United States.

D not required to plead limitation of damages under a statute capping damages. Court held that govt did not waive this right to cap b/c they didn't plead it. Only affirmative defenses can be waived.

Counterclaim
- D may set forth by way of counterclaim any claims that she has against the P. Claims need not be related to claims set forth in the complaint.

Crossclaim
- In fed court actions, D may set forth in the answer any claims that she has ag a co-D that relate to the transaction or occurrence or to any property that is the subj of the P's complaint

Amendment

Rule 15. Amended and Supplemental Pleadings=
- reflects imp policies of the fed rules
- Purpose: provide max opp for each claim to be decided on its merits rather than on procedural technicalities
  - Rule has a permissive approach that DC are to take to amendment requests, no matter what their character may be.
- Reflects the fact that the fed rules assign the pleadings the limited role of providing the parties w/ notice of the nature of the pleader’s claim or defense and the transaction, event, or occurrence that has been called into question
  - Pleadings are no longer carrying the burden of fact revelation and issue formulation, which is now discharged by the discovery process
- (a) Amendments.
  - Allows for the automatic amendment of a pleading before a response has been served or w/in 20 days of the service of the original pleading if no response is required
  - After that an amending party must obtain the leave of the court or the consent of the opposing party
  - A party shall plead in response to an amended pleading w/in the time remaining for response to the original pleading or w/in 10 days after service of the amended pleading, whichever pd may be longer, unless the court otherwise orders.
  - Beeck v. Aquaslide 'N' Dive Corp.
    - Whether it was an abuse of the trial court's discretion to grant leave to amend allowing D to deny admissions that it designed, manufactured, and sold water slide?
    - Rule 15(a)- allows leave to amend to be freely given when justice so requires and is w/in discretion of DC
    - DC must look for bad faith, prejudice, and undue delay before granting motion to amend
    - For appellate review- motion to amend pleadings reviewable only for an abuse of discretion
- (b) Amendments to Conform to the Evidence.
  - If issues not raised by pleadings= treated as if they had been= conform to the evidence
- Worthington v. Wilson.
  - P wasn't allowed to amend claim ag unknown police officer identified in original compliant. This case shows the rule 15 often arises under statute of limitations claims.
  - Moral- get it right before statute of limitations runs b/c maybe the court will bail you out, but like here, maybe they won't.

Relation Back Doctrine- Amending possible Ds after statute of limitations have run
- Additional Ds
  - Do not allow P to add new D after statute of limitations has run unless new D is an entity related to the original D, P has a strong interest in obtaining relief, and the added D will not suffer prejudice
- Misnamed D
  - If P technically misnamed D, P should be allowed to fix the error and have claim relate back to original filing
- Unnamed D
  - If a P knew the identities of some D but not others, do not allow P to add unnamed D after statute of limitations have run

Provisions to Deter Frivolous (Abusive) Pleadings

FRCP 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions.
Verification and Signature Requirements for pleadings
- (a) Signature
- (b) Representations to Court- (b) Under Rule 11, following matters are certified by the person signing the pleading:

Signer has made a reasonable inquiry into the factual and legal grounds for the pleading

The factual allegations have evidentiary support or will likely have evidentiary support after the signer has a reasonable opportunity to further investigate and use discovery

Position taken in the pleading is warranted by existing law or a nonfrivolous argument for a change in existing law or the establishment of new law

Paper was not filed for an improper purpose

(c) Sanctions.

(1) How Initiated.
- (a) By Motion. Allows more court discretion in the imposition of monetary sanctions and has added a 21 day “safe harbor” during which the filing party may withdraw the challenged paper w/out censure
- (b) On Court's Initiative and if they wish to do this:
  - Must enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney law firm, or party to show cause why it has not violated subdivision (b).
  - Hadges v. Yonkers Racking Corp.
  - safe harbor pd required!
(2) Nature of Sanctions: Limitations
(3) Order

(d) Inapplicability to Discovery.
- Subdivisions (a) through (c) of this rule don't apply to disclosures and discovery requests, responses, objections, and motions that are subj to provisions of Rules 26 through 37.
Objective std in regards to the attorney bringing a claim
Allows sanctions ag law firms or parties responsible for violations as well as the individual attorney who actually signed the document
Rule attempts to curb abuse of the fed pleading rules by imposing affirmative duties on attorneys and by raising the possibility of sanctions for failure to discharge them

Surowitz v. Hilton Hotels Corp.
P didn't possess the understanding/knowledge to verify the information as required by a rule, but that's not justification to dismiss complaint.
- Signature of complaint per Rule 11 says that to the best of his knowledge, info and belief, there is good ground to support complaint.

JOINDER

Definition: the uniting of parties or claims in a single lawsuit
It is not required for P to join in a single action separate and independent claims, Ps usually join related claims due to principles of res judicata and danger of collateral estoppel.

Permissive Joinder (of claims)

Common Law- joinder of separate claims permitted only if all claims were in the same form of action and there was identity of parties to each claim.

Now: FRCP 18. Joinder of Claims and Remedies.

· (a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or 3rd party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.

· Abolishes all restrictions on joinder of claims and provides that a party asserting a claim for relief may join as many claims as she has against an opposing party, regardless of subject matter.

· P can even join claims to meet the jurisdiction amount requirement for fed DJ if ag the same person arising from a separate transaction

· only restriction on the claims that may be joined is imposed by SMJ requirements.

· Ex. Joinder of parties rules in multi-party cases

· Rule works in tandem w/ Rule 15 (amendment of pleadings) and Rule 20 (Joinder of parties)

In its discretion, the trial court may remedy any possible inconvenience or prejudice caused by the joinder of claims by ordering separate trials.
- FRCP 42. Consolidation; Separate Trials
  - (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or 3rd party claims, or of any separate issue or of any number of claims, cross- claims, counterclaims, 3rd party claims, or issues always preserving inviolate the right of trial by jury as declared by the 7th Amendment to the Constitution or as given by a statute of the United States.

Counterclaims

As part of her answer, D may set forth by way of counterclaim any claims that she has against the P.
FRCP 13. Counterclaim and Cross-Claim.
- (a) Compulsory Counterclaims.
  - If D's claim ag the P arises out of the same transaction as the claim set forth in the complaint, the counterclaim is compulsory= it must be asserted in the action or it will be barred (principles of res judicata, waiver or estoppel can explain this result)
  - United States v. Heyward-Robinson Co.
    - Rule 13(a) a counterclaim is compulsory if it arises out the transaction or occurrence that is the subj matter of the opposing party's claim.
      - If compulsory, fed court acquire jurisdiction ancillary to the jurisdiction of the claim asserted in the complaint and no independent basis of fed jurisdiction is required.
  - A counterclaim is compulsory:

Arises out of the transaction or occurrence that is the subj matter of P's claim AND

Does not require the presence of 3rd parties over whom the court has no jurisdiction (provision invokes the requirement of Rule 19)

4 tests suggested for determining whether claims comprise the same transaction for purposes of Fed Rule 13:

Are the issues of fact and law raised by the claim and counterclaim largely the same?

Would res judicata bar a subsequent suit on D's claim absent the compulsory counterclaim rule?

Will substantially the same evidence support or refute P's claim as well as D's counterclaim?

Is there any logical relation btw the claim and the counterclaim?

(b) Permissive Counterclaims.
- A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.
- Permissive= optional for D to assert them in the counterclaim; may be brought in a later, separate action
- When D's claims ag the P are unrelated to the claims set forth in the complaint
(c) Counterclaim Exceeding Opposing Claim.
- A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
(d) Counterclaim Against the United States.
- These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof.
(e) Counterclaim Maturing or Acquired After Pleading.
- A claim which either matured or was acquired by the pleader after serving a pleading may, w/the permission of the court be presented as a counterclaim by supplemental pleading.
(f) Omitted Counterclaim.
- When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.

28 USC 1367. Supplemental Jurisdiction
- (a) Provides for supplemental jurisdiction over claims that are part of the same case or controversy under Article III of the Constitution as the P's claim.
- (b)

Cross Claims

D may set forth in the answer any claims that she ag a co-D that relate to the transaction or occurrence or to any property that is the sub of P's complaint
- Responsive pleading- co-D ag whom the claim is asserted must file an answer to cross-claim (Rule 7(a))
cross-claims are permissive & failure to raise them doesn't bar suit in subsequent action

LASA per L'Industria del Marmo Societa per Azioni v. Alexander.
- Since cross-claim must relate to the transaction in the existing action, better view is that it is w/in the supplemental jurisdiction of the court, and no independent ground for fed jurisdiction is required.

Basic cross claim ag a co-D; P1 could cross-claim ag his co-party P2 for contribution as to the claim asserted in D's counterclaim

FRCP 13
- (g) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party ag a co-party arising out of the transaction or occurrence that is the subjec matter either of the original action or of a counterclaim therein or relating to any property that is the subj matter of the original action. Such cross-claim may include a claim that the party ag whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action ag the cross- claimant.
- 2 prerequisites for a cross claim:
  - That it be a claim by 1 party ag a co-party and
  - That the claim arise out of the same transaction or occurrence as the original counterclaim
- (h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counter-claim or crossclaim in accordance w/the provisions of Rules 19 and 20.

cross-claimant may add new parties ag whom it has claims growing out of the same transaction

Counterclaims lie only ag the opposing party (P) and sometimes compulsory
Cross-claim lies ag a co-party (D2) and permissive
Impleaders are claims ag a 3rd person who is a stranger to the action
Impleader claim is limited to a claim for indemnification or contribution
Cross-Claim can be asserted for any claim D1 has against D2 arising out of the transaction that is the basis for the P's action

Permissive Joinder of Parties

Rules of PJ apply to parties who may be joined ("proper parties")
P may join anyone involved in the transaction that is the subject matter of the suit

FRCP 20. Permissive Joinder of Parties
- (a) Permissive Joinder. .
- Parties may join or be joined in 1 action if:

A right to relief is asserted by (or ag) them jointly, severally, or in the alternative
- Separate or joint
  - Ea P isn't req'd to have an interest in every cause of action in all the relief prayed for. If there's several Ps, they have the opt. to seek separate relief or joint relief. If several Ds are joined, the relief sought may be ag ea separately or ag them jointly.
- In the alternative
  - P "in doubt" sometimes, a P may be in doubt as to which of sev D is liable for his injuries in such a case. It's proper for P to set forth a claim ag ea in the alternative, so that their respective liabilities can be determined.
    - Court shouldn't dismiss after close of P's case merely b/c P hasn't show which of the 2 Ds is responsible if has shown that 1 of them must have been
      - Not unfair to req ea of the D to assume the risk of failure to show that he wasn't responsible @ least reserve decision on the motion to dismiss until after the Ds rest

Right to relief arises out of the same transaction or series of transaction and
- Construed very broadly
- Some causal relationship or interrelation among D's conduct, or in the interest being asserted by multiple Ps is suff
- Where D's are joined in the action b/c P is in doubt about which 1 cause his injuries, the injury issues supplies the requisite relationship b/w the claims joined even where the conduct of the 2 Ds is otherwise factually unrelated

There's at least 1 question of law or fact common to all parties sought to be joined ("Common question requirement"):
- Suff if there's a single question of law in fact common to all parties joined (not nec that the common question be in dispute)
  - If this req is relatively unimp court will define req #2 more narrowly to prevent joinder of claims that have no sig evidentiary relationship to each other
    - =practical test applies- art the issues in the 2 claims factually intertwines w/ ea other in any sig way

there are limitations on the rules of joinder where there are several co-P or co-D but no restriction if a single P is suing a single D. When there are multiple parties, at least one of the claims by or against each party must arise out of the same transaction or series of transactions and must involve a common question of law or fact affecting each of the parties joined

(b) Separate Trials. Option for the court @ its discretion to remedy any possible inconvenience or prejudice caused by the joinder of claims by ordering separate trials

As long as the req for joinder of parties are met, each of the parties joined may assert as many claims as she has ag any opposing party (Rule 18)
- Allows unlimited joinder of claims as long as there's a transactional connection among all of the parties

FRCP 21. Misjoinder & Non-joinder of Parties.
- Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
- A misjoined claim may be dismissed on motion of the party ag whom it is asserted, and the whole action may be dismissed as to that party if no claim for relief remains ag him
28 USC 1367. Supplemental

(b) In addition to the req of personal juris over Ds, fed SMJ reqs must be satisfied as to all parties (Ps or Ds) permissively joined= supplemental jurisdiction not extend to PJ when permissively joined matter isn't part of the same case or controversy w/the claim over which the fed court, has original jurisdiction or in diversity cases where banned by 28 U.S.C. 1367(b)

Note: *Fed SMJ reqs must be met for all parties. Supplemental Jurisdiction will NOT help when joinder is of a matter that is not part of the same case or controversy as the claim over which the federal court has original jurisdiction.*

Compulsory Joinder

CJ rules cover parties who must be joined (indispensable parties) and those who should be joined if possible (conditionally necessary parties)
- Joinder req'd for any person who has a material interest in the case and whose absence would result in sub prejudice to the absentee or to other parties before the court

FRCP 19. Joinder of Persons Need for Just Adjudication

Persons to be joined if feasible

Provides that any person w/ an interest in the subj matter of a pending action shall be joined as a party if:
- 1) in his absence complete relief cannot be accorded those already parties or
- 2) his interests is such that to proceed w/out him would be substantial prejudicial as to a practical matter b/c it would
  - a) impair his ability to protect his interest in later proceedings or
  - b) expose the parites already before the court to the risk of double liability or inconsistent obligation

Determination by court whenever J is not feasible

If a person to be joined cannot be made a party, the court must determine whether in equity and in good conscience, the action can proceed w/out him or whether action should be dismissed. Court's determination based on following practical considerations ("equity and good conscience" test)

Extent to which any judgment rendered in the action would be prejudicial to the interest of the absent party, or the interests of those already by the court.

Extent to which such prejudice could be lessened or avoided by appropriate court action.

Whether relief rendered w/out the absent party would be adequate, and

Whether the P has any other adequate remedy if the action is dismissed for Nonjoinder of the absent party

Pleading reasons for nonjoinder

Exception of class actions

Impleader

A procedure that permits D to bring into the lawsuit a 3rd person who is or may be liable for all or part of the P's claim ag the D (only ag a person not yet a party)
- Confined to those situations in which the defending party has a right to indemnity, in whole or party, ag the impleaded 3rd party
- Authorizes impleader of any person who is or may be liable for any part of P's claim
- General rule: courts do not allow a P to implead a D's ins co until after the P has obtained a judgment ag D

FRCP 14. Third Party Practice.

(a) When Defendant May Bring in Third Party.
- Impleaded party must also file a counterclaim or cross-claim ag existing parties, or may implead any person who may be liable to him, subject to the jurisdictional limits.
(b) When Plaintiff May Bring in Third Party.
2 features that guard against prejudice to the 3rd party:

3rd party may plead any defenses that the D might have ag the P's claim and may participate fully in defending ag the claim; and

Court may grant a separate trial on any separate issues of the 3rd party claim if needed to prevent undue confusion or prejudice

Leave of court is not required for impleader if the D (3rd party P) files a 3rd party complaint of impleader w/in 10 days after he serves his original answer. Thereafter, leave of court is required, and grant of the motion is @ the discretion of the court.

Impleaded party must file an answer to the 3rd party complaint, and answer may raise whatever defense could be asserted to the original cause of action (P vs. D).

Court has considerable discretion in deciding whether the permit a 3rd party complaint

Factors to be considered in determining whether to grant leave to implead a 3rd party D are:

Whether the movant deliberately delayed or was derelict in filing the motion

Whether impleading would unduly delay or complicate the trial;

Whether impleading would prejudice the 3rd party D; and

Whether the 3rd party complaint states a claim upon which relief can be granted

Court must balance the benefits derived from impleader (benefits of settling related matters in 1 suit ag. Potential prejudice to P and 3rd party D)

28 U.S.C. Sec. 1367

Impleader claim is usually deemed ancillary to the main claim and has no effect on jurisdictional and venue requirements= an independent ground of fed juris need not be established and impleaded D cannot object to venue
provides for supplemental jurisdiction over additional claims so long as they are part of the same case or controversy as the action over which the court has original jurisdiction.= std encompasses impleader claims and additional related claims asserted by the 3rd party P ag the 3rd party D.
When a fed court's SMJ is based solely on diversity, Section 1367(b) withholds supplemental jurisdiction from Ps who bring claims ag parties joined pursuant to Rule 14.

Interpleader
Device designed to enable a party who might be exposed to multiple claims to money or property under her control ("stakeholder") to settle the controversy in a single proceeding and require them to litigate among themselves to determine which, if any, has a valid claim to the debt or property involved
- Once the stakeholder's right to interplead is established and he has deposited the funds or property in court, he can be released or "discharged" from the litigation; it is up to the adverse claimants to litigate their claims to the property
2 types of interpleader:

Rule 22 interpleader
- Permits interpleader in any action that meets the normal jurisdictional requirements in fed court and proper diversity or fed question
- Complete diversity btw P-stakeholder and all of the adverse claimants or a fed question must be involved
- Where all the claimants are citizens of 1 state and the stakeholder is a citizen of another- suit brought only under rule 22
- If case relies on diversity jurisdiction, jurisdictional amount is the same as in any other civil action $75K
- Service of process is the same as in any other civil action

Statutory interpleader--28 USC 1335
- Contains special provisions as to jurisdiction, venue, and service of process, if:
  - 2 or more claimants of diverse citizenship are making adverse claims to the same debt, instrument, or property owed or held by the P and
    - Minimal diversity is all that is needed
  - Debt, instrument, or property has a value of at least $500
- P must deposit (or give security for) the entire amount in his possession that is claimed by the claimants and may not hold back amts that he claims
- Diversity among the claimants required
- Reach of process is nationwide

28 USC 1397
28 USC 2361

Intervention

Procedure whereby a nonparty, upon timely application, may become a party in a lawsuit in order to protect her interests in that action

Whether intervention is allowed depends on a balancing of 2 conflicting policies:

That the P should be allowed to be "master of his action" in the sense of joining such parties w/him or ag him as he wishes; and

That other interested parties and the court have an interest in avoiding multiplicity of litigation or inconsistency or result, which may require overriding the P's choice of parties

FRCP 24. Intervention/ Types of Intervention: Upon timely application anyone shall be permitted to intervene in an action:

(a) Intervention of Right
- (1) Federal statute
  - Intervention granted as a matter of right where a fed statute confers an unconditional right to intervene.
- (2) To Protect Intervenor's interest
  - Also granted when the applicant claims an interest relating to the property or transaction that is the subj of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest.
    - Nature of interest
    - Outcome of litigation may impair intervenor's interests
    - Intervenor not adequately represented by present parties
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:
- Court has very broad discretion to permit a nonparty to intervene if:

A fed statute confers a conditional right to intervene; or

A question of law or fact in common w/the main action is part of the applicant's claim or defense

Motion for leave to intervene must be made in a timely fashion
Effect of Intervention in fed cases:
- SMJ: if action is in fed court solely on grounds of diversity, there is no supp juris over claims by intervenors or claims by P ag persons who intervene (28 U.S.C. 1367(b))= must be an independent basis for fed court juris to permit assertion of the claim.
- If fed juris doesn't depend solely on diversity of citizenship there would usu be supplemental juris over claims by or ag intervenors of right.

DISCOVERY

Common problems on the test:
- Scope of discovery= Is the matter relevant to the claims or defenses in the action and not privileged? Yes= w/in scope of discovery.
- Protective orders= Is there a good cause for a protective order limiting, conditioning, or delaying the discovery?
- Sanctions= Has a party's resistance to discovery or noncompliance w/discovery rules and orders been sufficient to warranty judicial imposition of sanctions?
Main Vehicles for seeking discovery:
- Initial disclosure
- Depositions- Sworn oral testimony of witnesses
- Interrogatories- Written addressed to your opponent; always answered by the lawyer
- Document request
- Request for inspection of property, crime scene, factory
- Request for physical and mental admissions
- Request for admissions
FRCP 26. General Provisions Governing Discovery; Duty of Disclosure

LIBERAL DISCOVERY! (adopted in 1993 and amended in 2000)
Discovery is not limited to admissible evidence; can get access to info that you might not use during trial

(a) mandatory disclosure--
- Initial disclosure- produce only info that will support its claims and defenses
- Materials to be disclosed:
  - Identity of witnesses: names, address, and if known phone number of any person the disclosing party may use to support its case
  - Documents that may be used: copy or description of all documents in its possession that it may use to support its claims or defenses
  - Damages computation: computation of those damages and produce the documents on which the computation is based
  - Insurance Agreements: ins agreement that might cover the claim
- As discovery progresses and new things come up, required to update parties on new witnesses (esp. experts)
- (1)(e) gives a limited no of categories of cases in which substantial discovery is unlikely are exempted from the disclosure requirement and accompanying attorney conference and discovery mortorium provisions ie. habeas corpus petitions
(b) relevant to the claim/ cause of action

relevant to the claim or defense of any party ("limited' discovery in 2000)
court has power to limit discovery to prevent abuse of discovery ie.discovery unduly burdensome or unreasonably cumulative

(c) Protective order
- Marrese v. American Academy of Orthopaedic Surgeons.
  - Compare the hardship to the party ag whom discovery is sought w/ hardship to the party seeking discovery if discovery is denied
  - More weight to social value interests than to purely private interest
  - Possibility of reconciling the competing interests through a carefully crafted protective order (ie. en camera inspections)

Depositions:

Oral Examination of a witness under oath in the presence of a court reporter

FRCP 30. Depositions Upon Oral Examination
(a) When Depositions May Be Taken; When Leave Required.
- (2)(a) Presumptive limit of 10 depos (per side-- Ps, Ds, 3rd-party Ds)
- (2)(b) rules provide that a given witness's depo may be taken only once
(b) Notice of Examination: General Requirements; Method of Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone.
- Permits a right to choose the method of recording and the duty to bear the cost ie. writing, oral, by telephone, videotape
- An attorney may notice the deposition of a corp or association, requiring the latter to produce the person or persons having knowledge of the subject matter upon which the depo is to be taken
  - Party seeking the info must detail the issues that are to be explored in order that the organization can ascertain which of its personnel has the relevant knowledge
- Party wishing to depose a witness must give written notice to every other party in a reasonable length of time in advance- identifying the deponent, time and place of dep
  - Sufficient to give notice to the parties that a deposition is to be taken
  - A nonparty witness must be commanded to attend by means of a subpoena
- Subpoena (when necessary) or the notice may direct witness to bring along and produce at the depo any documents that could property be sought by a request for production of documents
(c) Examination and Cross-Examination; Record of Examination; Oath; Objections.
(d) Schedule and Duration; Motion to Terminate or Limit Examination.
- Witness may be instructed not to answer a question only to:

Preserve a privilege

To enforce a limitation on evidence imposed by the court in the case, or

To present a motion for a protective order (30(d)(4))
- Witness may move to limit or terminate the exam if questioning is conducted in an unreasonably oppressive manner

durational limitation on depos= 1 day of 7 hours.

authorizes the imposition of costs and attorney's fees to sanction any culpable indiv if the court finds that any impediment, delay or other conduct has frustrated the fair exam of the deponent

(e) Review by Witness; Changes; Signing.
- When depo is concluded, reporter prepares a transcript, which the deponent then is called upon to sign
(f) Certification and Delivery by Officer; Exhibits; Copies.
(g) Failure to Attend or to Serve Subpoena; Expenses.

Interrogatories

Written questions from 1 party to another party to the action requiring written responses
Served during discovery and no court order is required to send them
Answers are prepared in writing
Require the party to answer not only of her own knowledge, but also on the basis of info to which she has reasonable access w/in 30 days after interrogatories are served
Motion to compel responding party to answer fully is avail if answer is evasive or incomplete

FRCP 33. Interrogatories to Parties.
(a) Availability.
- Presumptive limit of 25 interrogatories to each party
(b) Answers and Objections.
- Party must answer or object to interrogatories w/in 30 days after their date of service
(c) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b)(1), and the answers may be used to the extent permitted by the rules of evidence.
- Provides that an interrogatory is not necessarily objectionable merely b/c an answer involves an opinion or contention that relates to fact or the application of law to fact
(d) Option to Produce Business Records.
- Requires a party exercising the option to produce its business records to specify the records from which the answer can be found in sufficient detail to permit the interrogating party to locate and to identify them as readily as can the party served

Presumption is the responding party must bear the expense of complying w/ discovery requesting but it may invoke district court's discretion under rule 26(c) to grant orders protecting it from undue burden or expense in doing so ie. cost shifting
8 factor test to determine whether discovery costs should be shifted:
- Specificity of the discovery requests
- Likelihood of discovering critical info
- Availability of such info from other sources
- Purposes for which the responding party maintains the requested data
- Relative benefits to the parties of obtaining the info
- Total cost associated w/ production
- Relative ability of each party to control costs and its incentive to do so
- And resources available to each party

Zubulake. Whether production of documents is unduly burdensome or expensive turns on whether it's kept in an accessible format? Active, online data; near-line data; offline storage/archives; backup tapes; erased, fragmented or damaged data

Physical and Mental Examinations

FRCP 35. Physical and Mental Examination of Persons.

(a) Order for Examination. When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

o Exams may be ordered by an suitably licensed or certified examiner usu. Selected by the party wanting the exam

(b) Report of Examiner. Upon request, examinee has right to receive copy of the examiner's report, but waives the doctor-patient privilege w/respect to any previous exams of the same condition by his own physician

(c) Definitions. For the purpose of this rule, a psychologist is a psychologist licensed or certified by a State or the District of Columbia.

Rule requires a court order for an exam and imposes strict stds

Person's physical or mental condition must be in controversy and
- Condition that's the subj of the exam must be raised directly by pleadings or by factual contentions of the parties through discovery

movant must show good cause to compel exam
- Weigh pain, danger or intrusiveness of the exam ag need for, or usefulness of, info to be gained

Effect of rule is to encourage parties to stipulate to exams

Requests to Admit

FRCP 36. Requests for Admission.
(a) Request for Admission.
- Device to eliminate issues by imposing a duty on the party served to knowledge the existence of facts that are not in doubt and that should not be necessary to prove at trial
- May be served by any party on any party, whether or not adverse at anytime after Rule 26(f) pretrial conference and response must be filed w/in 30 days under oath
(b) Effect of Admission.
- If presentation of the merits will be served, court may allow a party to amend or withdraw an admission previously made

Subject of Request:
- Facts or application of law to fact
  - Request may ask the party served to admit the genuineness of a documents, the truth of factual allegations, or applicability of legal concepts to specified facts in issue
- Conclusions of law
- Ultimate issues
- Opinions
- Matters unknown to responding party
Appropriate responses:
- Admit-- not permitted to controvert admission at trial; binding in present action only
- Deny-- if matter denied and matter is later proved, party may be liable for full costs of proving that matter unless court finds that there were good reasons for the denial
- Reasons for not admitting or denying-- state refusal and grounds for good cause
  - Ignorance of matter sought to be admitted
  - Self-incrimination
If there is no timely response to a request, matter is deemed admitted
- Court may excuse party's failure to respond in a timely manner, withdraw or modify an admission in a timely response== Court's decision turns on the degree of prejudice the requesting party will suffer b/c of its reliance on the admission
Functions: Pleading refinement and possibly a discovery device if a party uses them early enough in the litigation to help identify the issues not in dispute and to target the remaining issues for discovery
Responding party may also object to a request b/c improperly phrased or b/c it seeks privileged or protected info and may request a court to extend its time to respond

Sanctions

Non compliance/non cooperation can cause sanctions, but courts are reluctant to impose
FRCP 26(c). Protective Order.
- Designed to prevent undue burdens that might otherwise be imposed by discovery
- Granted only on a showing of good cause by the party seeking protection
  - Confidential information
    - Showing that info has been held in confidence
    - Showing that a specific harm is likely to flow from disclosure of the info
    - Privacy interests
- Judge can create an order appropriate for that case ie. forbid discovery altogether; designation of confidential info; no public access to discovery
- Can grant an order if a depo has been schedule at an unnecessarily inconvenient place
- Before going to court to get a protective order, parties must confer together to see if they can settle it first before going to court

FRCP 37. Failure to Make or Cooperative in Discovery; Sanctions.

(a) Motion for Order Compelling Disclosure or Discovery.
(b) Failure to comply with order.
- (1) Sanctions by Court in District Where Deposition is Taken.
- (2) Sanctions by Court in Which Action Is Pending.
(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection.
(g) Failure to Participate in the Framing of a Discovery Plan.

B4 filing a motion to compel discovery, a party must attempt to meet and confer w/the opposing party in an effort to secure compliance w/out court action.
B4 discovery sanctions can be imposed, party seeking discovery must usu obtain an order compelling discovery

If a motion to compel discovery is made, an evasive or incomplete answer is treated as a failure to answer
If a party completely fails to file a response to a discovery request or to attend his properly noticed depo, discovery sanctions can be sought immediate, w/out the need for a prior order compelling discovery
If a party fails to make or supplement a prediscovery disclosure as required by Rule 26 and the failure was harmful, party who failed to disclose will be prohibited from using the undisclosed evidence and may also impose Rule 37(b) sanctions,
Rule 27(b) sanctions are usu reserved for failures to comply w/discovery orders.
Trial court has substantial discretion to select the proper sanction
Possible Sanctions:
- Order that facts pertinent to the undisclosed material be established in favor of the party seeking discovery= Establishment of a party's prima facie case
- Dismiss or default nondisclosing party
- Hold nondisclosing party in contempt
- Preclusion of right to present claims or defenses
- Dismissal of counterclaims;
- Exclusion of evidence
- Forfeiture or
- Jury instruction that a party's failure to disclose can lead to the assumption that evidence would be unfavorable to that party

Summary Judgment

FRCP 56. summary Judgment.

Pretrial device that permits the court to determine whether there is an issue of fact to be tried; allows court to look at evidentiary material to determine this
Decided before trial normally
- D can move for summary judgment at any time and P may do so 20 days after commencement of the action
Granted when court determines that "there is no genuine issue as to any material fact" or that there is "no triable issue as to any material fact"
Moving party's Burden
- If moving party has burden of proof, must produce evidence of such strength that no reasonable jury could find for the opposing party
- If moving party doesn't have the burden of proof:
  - Not enough to move for summary judgment w/conclusory assertion that P has no evidence to prove his case
  - Initial responsibility of informing the court of the basis for its motion
Opposing party's burden
- If moving party has made the initial showing, burden is on the opposing party to come forward w/evidentiary material that established the existence of a triable issue
Should be used sparingly
View evidence in the light most favorable to the nonopposing party and see if there is a genuine dispute
Opposing party is entitled to notice of the motion and an opportunity to submit opposing materials
Materials considered on a motion: Admissions in the pleadings; affidavits made on personal knowledge of facts (moving party is not required to submit affidavits); discovery materials
When Presented w/ a Motion for Summary Judgment:
- Has moving party made a sufficient initial showing?
- Was the opposing party given notice and an opportunity to respond?
- Is there a triable issue?
If motion is granted, judgment is entered for the prevailing party. If motion is denied, litigation continues.

Pretrial Management

FRCP 16. Pretrial Conferences; Scheduling; Management

(a) Pretrial Conferences; Objectives.
(b) Scheduling and Planning.
- DC are required to enter a scheduling order w/in 90 days after a D's appearance and w/in 120 days after service of complaint= set time limits for joining parties, amending pleadings, completing discovery, and filing motions
(c) Subjects for Consideration at Pretrial Conferences.
(d) Final Pretrial Conference.
(e) Pretrial Orders.
(f) Sanctions.

Expanded judicial role pretrial process-
- mandatory conferences among the parties (26f, 16a-c, and final pretrial conf 16d)
- Control and development of civil cases
  - Mandatory scheduling order
- Judge serves as an engaged supervisor- responsible for encouraging, facilitating, and even pressuring the parties to resolve their disputes
- Issue simplication
- keep cases moving at a reasonable pace, and to see that cases not needlessly tried
- deadlines for specific litigation activities, makes explicit and expands the topics to be discussed at the pretrial conference, provides for greater supervision of discovery, allows for earlier consideration of summary judgment motions
- Settlement promotion- by ordering parties to be present at pretrial conferences
- Affords trial court broad discretion in the imposition of sanctions on the parties for failure to comply w/ a scheduling order and absence from, or lack of prep for, a pretrial conference