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TABLE OF CONTENTS

I. Constitutional Nonsense Part I – Pre-Judgement Seizure and the
14th Amendment 1
A. DUE PROCESS 1
B. CURRENT STANDARDS 1

II. Rule 68 – Recovery less than Pre-Trial Settlement Offer 1
A. THE RULE 1
B. GENERALLY 1
C. TIMING AND HEARINGS 1
D. INTERACTION WITH 42 U.S.C. § 1988 2

III. Complaint 2
A. RULE 8: NOTICE PLEADING 2
1. Rule 8(a) Contents of Claims for Relief 2
a. The Rule 2
b. Grounds for Relief 2
c. Rule 8(a)(2) Statement of Facts 2
2. Rule 8(e)(2) Pleading in the Alternative 2
a. The Rule 2
b. Generally 3
c. Quotable 3
B. RULE 9(B) HIGHER STANDARD FOR FRAUD AND MISTAKE 3
1. The Rule 3
2. Generally 3
3. Other Higher Pleading Standards 3

IV. Rule 11 Sanctions 4
A. THE RULE 4
B. GENERALLY 4
C. IMPOSITION OF SANCTIONS 4

V. Rule 4: Service of Complaint 5
A. SERVICE IN STATE WHERE COURT SITS 5
1. Process Other Than Subpoena or Summons and Complaint 5
2. Subpoena or Summons and Complaint 5
a. To be served by Marshal, &c. 5
b. Other 5
3. “Long-arm Service” 5
4. Time Limits 5
VI. Answer and Pre-Answer Motions 5
A. TIMING OF ANSWER 5
B. RULE 12(B)(6): DEMURRER TO THE COMPLAINT 6
1. Generally 6
2. Standard of Review 6
a. Generally 6
b. Quotables 6
3. Amendment After Grant of Demurrer 6
a. Generally 6
b. Quotables 6
4. Rule 12(c) Motion for Judgement on the Pleadings 7
C. OTHER PRE-ANSWER MOTIONS 7
1. Rule 12(e) Motion for More Definite Statement 7
a. Generally 7
b. Quotables 7
2. Rule 12(f) Motion to Strike 7
a. The Rule 7
b. Generally 8

VII. Challenges under Rule 12(g)/(h) 8
A. RULE 12(H)(1) DISFAVORED DEFENSES 8
B. RULE 12(H)(2) FAVORED DEFENSES 8
C. MOST FAVORED DEFENSE 8

VIII. Default Judgement 8
A. IN GENERAL 8
B. ENTRY OF DEFAULT BY CLERK 8
C. RULE 55(B) ENTRY OF DEFAULT JUDGEMENT 9
1. Rule 55(b)(1) Entry by Clerk 9
2. Rule 55(b)(2) Entry by Judge 9
D. RULE 55(C) SETTING ASIDE DEFAULT AFTER ENTRY OF DEFAULT AND
BEFORE ENTRY OF JUDGEMENT 9
1. “Good Cause Shown” Factors 9
2. Constitutional Limitations 9
E. RULE 60(B) AFTER ENTRY OF JUDGEMENT 10
1. Rule 60(b) Generally 10
2. Where Motions Must Be Made within One Year 10
3. Where Motions May Be Made at Any Time 10
4. 28 U.S.C.§1655: In Rem Actions Where Defaultg Party Was Nver
Served 10

IX. Answer 10
A. RULE 8(B) RESPONSES TO ALLEGATIONS 11
1. The Rule 11
2. Generally 11
B. RULE 8(C) PLEADING OF AFFIRMATIVE DEFENSES 11
1. Generally 11
2. Qualified Immunity under 42 U.S.C. § 1983 11
3. Specificity 11
a. Rule 9(a) Capacity to Sue 12
b. Rule 9(c) Denial of Performance of Conditions Precedent 12

X. Rule 13 Counterclaims 12
A. COMPULSORY COUNTERCLAIMS 12
B. PERMISSIVE COUNTERCLAIMS 12
C. COUNTERCLAIMS VS. CROSSCLAIMS 12
D. SAME TRANSACTION OR OCCURRENCE 12
1. Tests for Rule 13 “Transaction or Occurrence” 13

XI. Rule 41 Dismissal 13
A. RULE 41(A)(1)(I): VOLUNTARY DISMISSAL (WITHOUT PREJUDICE) 13
B. RULE 41(A)(2): VOLUNTARY DISMISSAL AFTER ANSWER 13
C. RULE 41 AND IMPOSITION OF RULE 11 SANCTIONS 13

XII. Rule 15(a): Leave to Amend 13
A. REASONS FOR DENIAL OF LEAVE TO AMEND 13

XIII. Rule 15(b): Conforming Pleadings to Evidence 14

XIV. Rule 15(c): Relation Back 14
A. GENERALLY 14
B. QUOTABLES 14

XV. Rule 15(d): Supplemental Pleadings 14

XVI. Rule 17(a): Real Party in Interest 15

XVII. Rule 10(a): Use of Real Names of Parties 15
A. GENERALLY 15
B. QUOTABLES 15

XVIII. Multiparty Practice in General 16

XIX. Rule 18(a): Joinder of Claims 16

XX. Joinder of Parties 16
A. RULE 19 COMPULSORY JOINDER 16
1. Generally 16
2. Rule 19(a), “Necessary Parties”; The Rule 16
3. Rule 19(b) “Indispensable Parties” 17
a. Rule 19(b) the Rule 17
b. Provident Tradesman’s Weighing of Equities 17
B. RULE 20: PERMISSIVE JOINDER 17

XXI. Rule 14: Impleader 18
A. CRITERIA FOR IMPLEADING PARTIES 18

XXII. Interpleader 18
A. RULE 22 RULE INTERPLEADER 18
1. Diversity 18
2. Size of Stake 19
3. Venue 19
4. Service of Process 19
B. 28 U.S.C. § 1335: STATUTORY INTERPLEADER 19
1. Diversity 19
2. Size of Stake 19
3. Venue 19
4. Service of Process 19

XXIII. Rule 24 Intervention 19
A. GENERALLY 19
B. RULE 24(A): INTERVENTION AS OF RIGHT 20
1. The Rule 20
2. Interest 20
3. Timeliness 20
C. RULE 24(B): PERMISSIVE INTERVENTION 20

XXIV. Rule 23 Class Actions 21
A. RULE 23(A): CRITERIA FOR CERTIFICATION OF CLASS 21
1. Numerosity 21
2. Commonality 21
3. Typicality 21
4. Vigorosity 21
B. RULE 23(B) 21
1. Rule 23(b)(1) Adverse Practical Impact on Current Parties
21
2. Rule 23(b)(2) Availability of Overall Injunction 22
3. Rule 23(b)(3) General Efficiency 22
C. RULE 23(C)(2)”OPT-OUT” NOTICE TO CLASS MEMBERS IN RULE
23(B)(3)CLASSES 22

XXV. Discovery 22
A. GENERALLY; TYPES OF DISCOVERY 22
1. Rule 30: Depositions 22
2. Rule 33: Interrogatories 23
3. Rule 34: Document Production 23
4. Rule 35(a): Medical Examination 23
B. RULE 26(C): PROTECTIVE ORDERS 23
C. MOTIONS TO COMPEL DISCOVERY – SANCTIONS 23
1. Generally 23
2. Sanctions 23
D. RULE 26(B)(3): ATTORNEY WORK PRODUCT EXEMPTION 24
E. RULE 26(B): EXEMPTION FROM DISCOVERY OF EXPERT WITNESSES 24
1. Generally 24
2. Classification of Experts 24
a. Rule 26(b)(4)(A): Experts who will testify at trial 24
b. Rule 26(b)(4)(B): Nonwitness experts retained or specially
employed to assist in preparation for litigation 24
c. Informally consulted experts 24
d. Experts whose information was not acquired in preparation
for trial 24
F. COMMON LAW ATTORNEY/CLIENT PRIVILEGE 24
1. Generally 24
2. Corporations 25
3. Waiver 25

XXVI. Rule 56(c): Motions for Summary Judgement 25
A. SHIFTING OF BURDEN OF PROOF 25
B. TIMING OF MOTIONS 26
1. Motions Made Prior to End of Discovery 26
a. Rule 56(f) 26
b. Judge-Made Protections 26

XXVII. Rule 16: Pre-Trial Conferences 26
A. FINAL PRE-TRIAL CONFERENCE 26
1. Traditional Goals 26
2. Settlement, the Additional Goal 27
B. PRE-TRIAL ORDER 27
1. As a Substitute for Pleadings 27
2. Stipulations, Witnesses and Exhibits 27

XXVIII. Summary Jury Trial 27

XXIX. Constitutional Nonsense Part II – Right to Trial by Jury
27
A. RULE 38: TRIAL BY JURY 27
B. TRADITIONAL CONSTITUTIONAL APPROACH 27
C. CURRENT CONSTITUTIONAL TWO-PRONG TEST 27
D. PROPOSED THREE-PRONG TEST 28
E. PRESENCE OF MIXED LEGAL AND EQUITABLE ISSUES/REMEDIES 28
F. LIMITATIONS AS TO “PUBLIC RIGHTS” 28
G. LIMITATIONS AS TO JURY’S ROLE AS TRIER OF FACT 28
H. LIMITATIONS IN SITUATIONS IN WHICH THE PARTY HAS PUT HIMSELF
IN THE POWER OF A COURT IN EQUITY 28

XXX. Taking the Case from the Jury 29
A. CONSTITUTIONAL LIMITATIONS 29
B. RULE 50 MOTION FOR JUDGEMENT AS A MATTER OF LAW 29
C. JUDGEMENT AS A MATTER OF LAW; DIRECTED VERDICT AND J.N.O.V.
29
1. Directed Verdict 29
2. Judgement non obstante veridictum (J.N.O.V.) 29
D. RELATION BETWEEN THE TWO TYPES 29
E. STANDARD FOR COURT’S REVIEW OF DIRECTED VERDICT/J.N.O.V.
MOTIONS 29
1. Generally 30
2. Quotables 30
F. JNOV AND ORDER FOR A NEW TRIAL 30
1. Generally 30
2. Options Upon Appeal 30

XXXI. Remittitur and Additur 31
A. REMITTITUR 31
1. Generally 31
2. Theories of Calculation 31
B. ADDITUR 31

XXXII. General and Special Verdicts; Special Interrogatories
31
A. RULE 49(A): SPECIAL VERDICTS 31
B. RULE 49(B): GENERAL VERDICT WITH SPECIAL INTERROGATORIES
32

XXXIII. Impeachment of the Jury Verdict 32

XXXIV. Constitutional Nonsense Part III – Constitutional
Amenability 32
B. CONSTITUTIONAL V. STATUTORY AMENABILITY 32
1. Constitutional Amenability 32
2. Statutory Amenability 33
C. TYPES OF JURISDICTION 33
1. In Personam 33
2. In Rem 33
3. Quasi In Rem 33
a. Suit Relating to Pre-Existing Claim to Property 33
b. Suit Not Related to Pre-Existing Claim to Property 33
D. “MINIMUM CONTACTS” ANALYSIS 33
1. Engaging in Purposeful Activity in State 34
2. Foreseeability 34
3. Availment 34
E. GENERAL V. SPECIFIC JURISDICTION 34
1. General Jurisdiction 34
2. Specific Jurisdiction 34
3. Contacts and Relation Analysis 34
4. Brennan’s Factors 34
F. REASONABLENESS: “TRADITIONAL NOTIONS OF FAIR PLAY AND
SUBSTANTIAL JUSTICE;” MOTHERHOOD AND APPLE PIE 35
G. TRANSIENT PERSONAL JURISDICTION 35
H. RULE 4(E): OR, WHY THIS BULLSHIT MATTERS FOR FEDERAL COURTS
35
I. RULE 4(F): IS THAT A BULGE IN YOUR JURISDICTION OR ARE YOU
GLAD TO SEE ME? 35

XXXV. Venue 35
A. VENUE VS. JURISDICTION 35
1. Jurisdiction 36
2. Venue 36
B. 28 U.S.C. § 1391(A)/(B): FEDERAL VENUE FOR CITIZENS 36
C. 28 U.S.C. § 1391(C)/(D): FEDERAL VENUE FOR
FOREIGNERS/CORPORATIONS 36
D. OTHERS 36

XXXVI. Forum Non Conveniens 36
A. 28 U.S.C. § 1404(A): STATUTORY FORUM NON CONVENIENS 37
1. Substantive Law Transferred 37
2. Jurisdictional Limits 37

XXXVII. Federal Jurisdiction 37
A. FEDERAL JURISDICTION AND THE CONSTITUTION 37
B. DIVERSITY JURISDICTION 37
1. Time of Diversity 37
2. Constitutional Diversity 37
3. Statutory Diversity 37
C. 28 U.S.C. § 1332: REQUIREMENTS FOR DIVERSITY 37
1. Absolute Diversity 37
2. Amount in Controversy 38
D. DOMICILE AND CITIZENSHIP 38
1. Natural Persons 38
2. Persons Other Than Natural Persons 38
a. Corporations 38
b. Unincorporated Associations (e.g., labor unions) 38
c. Partnerships 38
d. Class Action Class Members 38
E. AMOUNT IN CONTROVERSY 39
1. How Determined 39
a. Damages 39
b. Injunctive Relief 39
c. Multi-Party Litigation 39
F. “ARISING UNDER” JURISDICTION 39
1. Generally 39
2. Holmes and Federal Law 39
3. The Well-Pleaded Complaint 39
G. 28 U.S.C. § 1367: “SUPPLEMENTAL JURISDICTION;” PENDENT AND
ANCILLARY JURISDICTION 40
1. The Bad Old Days; Ni-No! Ni-No! Ni-No! 40
2. Supplemental Jurisdiction 40
a. What is It? 40
b. 28 U.S.C. § 1367(a): No, Really, What is It? 40
3. Pendent Jurisdiction 40
4. Ancillary Jurisdiction 41
5. 28 U.S.C. § 1367(c): Limitations on Pendent/Ancillary
Jurisdiction 41
6. 28 U.S.C. § 1367(b): Limitations on Ancillary Jurisdiction
41
7. 28 U.S.C. § 1367(c): Tolling the Statute 41
H. “DOES THIS LOOK LIKE SURROGATES COURT TO YOU?” 41

XXXVIII. Removal 42

XXXIX. E[e]rie: It’s Creepy and It’s Kooky/It’s Really Kinda
Spooky/It’s altogether Ooky/The Erie Doc-tuh-rin 42
A. GENERALLY (DA-DA-DA-DUH SNAP SNAP) 42
B. ROLE OF FEDERAL COURTS UNDER EERIE (DA-DA-DA-DUH SNAP SNAP)
42
C. SURVIVAL OF FEDERAL COMMON LAW (DA-DA-DA-DUH DA-DA-DA-DUH DA-
DA-DA-DUH SNAP SNAP) 42
1. Generally 42
2. Rights of the Sovereign 42
3. Federal Pre-emption 43
a. Generally 43
b. Explicit and Implicit Pre-emption 43
D. HANA V. PLUMER FEDERAL RULE ANALYSIS 43
1. Is it an FRCP “R”ule? 43
a. Is it Constitutional? 43
b. Is it Valid under the Rules Enabling Act? 43
2. Is there a Conflict Between the FRCP Rule and the State
Rule? 43
a. Direct Conflict between the FRCP Rule and the State Rule
43
b. Reconciliation of the Federal Rule and State Rule 43
3. Non-FRCP “r”ules in Conflict with State Rules/Law 44
a. Generally 44
E. FEDERAL STATUTE ANALYSIS 44

Civil Procedure Outline
Better Bring Your Lunch, We Gon’ TRY Some Lawsuits

I. Constitutional Nonsense Part I – Pre-Judgement Seizure and the
14th Amendment

A. DUE PROCESS
At a minimum, due process requires notice and an opportunity to be
heard. Even if the deprivation is de minimis, it is still an
unacceptable deprivation.

B. CURRENT STANDARDS
1. Writ must be issued by a judge after a hearing, not by a
clerk filling out a form;
2. Writ must be issued based on factual not conclusory
allegations contained in a sworn statement, showing probable
cause; there is a preference for use of such procedures in simple
matters of debt rather than complex tort suits
3. Opportunity for party whose property has been seized must
be granted promptly after seizure, with burden of proof on seizing
party; there is a preference for procedures that require the
posting of a bond by the seizing party

II. Rule 68 – Recovery less than Pre-Trial Settlement Offer
A. THE RULE
. . . If the judgement finally obtained by the offeror is not more
favorable than the offer, the offeree must pay the costs incurred
after the making of the offer.
FED. R. CIV. P., Rule 68

B. GENERALLY
Where the plaintiff prevails but receives less than in a pre-trial
settlement offer made by defendant, cost are taxed to the
plaintiff.

C. TIMING AND HEARINGS
The Rule contains provisions relating to the timing of the offer,
passage of time being deemed refusal, timing of hearing on cost-
shifting, &c.

D. INTERACTION WITH 42 U.S.C. § 1988
This includes a shift of prevailing-party counsel fees payable to
plaintiff under 42 U.S.C. § 1988 in civil rights cases; “winning”
for purposes of the fee-shifting provisions of § 1988 means
prevailing on any significant issue. [p. 67 Smith v. Western
Electric]

III. Complaint
A. RULE 8: NOTICE PLEADING
FRCP “restrict the pleadings to the task of general notice
giving,” Hickman v. Taylor, 329 U.S. 495 (1947). [p.80 Marek v.
Chesney] This rule has been tightened up of late [p. 287]

Complaint may be vague, as, in contrast to fact/Code pleading, the
fact gathering process takes place during discovery.

1. Rule 8(a) Contents of Claims for Relief
a. The Rule
A pleading which sets forth a claim for relief . . . shall contain
(1) a short and plain statement of the grounds on which the
court’s jurisdiction depends, unless the court already has
jurisdiction . . . (2) a short and plain statement of the claim
showing that the pleader is entitled to relief and (3) a demand
for the relief the pleader seeks.
FED. R. CIV. P., Rule 8(a)

b. Grounds for Relief
Relief may be requested in the alternative, and the court may
grant relief which it feels is appropriate, unless the judgement
is rendered in default, in which case it is capped at the relief
requested (Rule 54(c)).

c. Rule 8(a)(2) Statement of Facts
“Short and plain statement” of the facts; pleadings which are long
and rambling may fall afoul of this Rule; counterparty may have a
remedy under Rule 12(f) (see [ ] below)

2. Rule 8(e)(2) Pleading in the Alternative
a. The Rule
A party may set forth two or more statements of a claim or defense
alternatively or hypothetically . . . . A party may also state as
many separate claims as the party has, regardless of consistency .
. . . All statements made shall be subject to . . . Rule 11.
FED. R. CIV. P., Rule 8(e)(2)

b. Generally
Pleading in the alternative is permitted, UNLESS the plaintiff
must in the nature of things know which of the alternative
averments is true.

c. Quotable
If the right is abused, as where the pleader has knowledge of the
true facts (viz, he knows the facts belie the alternative)
pleading in the alternative is not justified.
McCormick v. Kopmann, p.125 (quoting Church v. Adler)

B. RULE 9(B) HIGHER STANDARD FOR FRAUD AND MISTAKE
1. The Rule
In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity.
Malice, intent, knowledge and other condition of mind . . . may be
averred generally.
FED. R. CIV. P., Rule 9(b)

2. Generally
Purposes of the Rule include provision of notice in what could be
extremely complex litigation, protection of the reputation of the
defendant and prevention of “strike” suits.

3. Other Higher Pleading Standards
De facto higher standard applied for “disfavored actions,” to wit:
a. civil rights violations;
b. anti-trust violations
c. civil conspiracy

De jure higher standard provided for plaintiffs filing in forma
pauperis, pursuant to 28 U.S.C. § 1915, allows dismissal of
“frivolous or malicious” pauperis suits.

IV. Rule 11 Sanctions
A. THE RULE
. . . The signature of an attorney or party constitutes a
certificate by the signer that the signer has read the pleading,
motion or other paper; that to the best of the signer’s knowledge,
information and belief, formed after reasonable inquiry it is well
grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification or reversal of existing
law, and that it is not interposed for any improper purpose. . . .
If . . . paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, shall impose upon the
person who signed it, a represented party or both, an appropriate
sanction. . . .
FED. R. CIV. P. Rule 11

B. GENERALLY
Lawyer and client signing must aver that each pleading, motion or
other paper has been read, that the contents are true to the best
of his knowledge and that it is grounded in current law or a good
faith attempt to extend or alter current law.

Rule 11 applies to ALL papers filed, not merely initial
complaints.

The signer has a continuing duty to re-evaluate certification in
the light of after-discovered facts.

Current version provides for an objective standard of inquiry;
“[a]n empty head but a pure heart is no defense,” Thornton v.
Wahl, 787 F.2d 1151, 1154 (7th Cir. 1986). “Reasonable inquiry”
prevents blind reliance on one’s client or even on co-counsel.

Rule 11 attacks the problem of frivolous lawsuits by means of
attacking sloppy lawyering; even a lawsuit in actuality filed for
purposes of harassment in the real world will not be found to be
harassment for purposes of Rule 11 if it presents a valid claim.

C. IMPOSITION OF SANCTIONS
While rule appears mandatory on paper, it contains considerable
latitude for judicial discretion:

1. “Reasonable” inquiry as to facts at time of filing, judge
decides what is reasonable based not on true facts but on what was
knowable at time of filing;
2. “Good faith” argument for extension/alteration of law,
judge decides what is good faith;
3. “Appropriate” sanction, can range from a good yelling-at
to serious money (5th Circuit has stated that it is usually
appropriate to impose least serious acceptable sanction), sanction
is in discretion of judge.

V. Rule 4: Service of Complaint
A. SERVICE IN STATE WHERE COURT SITS
1. Process Other Than Subpoena or Summons and Complaint
Must be served by U.S. Marshal or Deputy (e.g., John Wayne) or
specially appointed person (Rule 4(c)(1)

2. Subpoena or Summons and Complaint
a. To be served by Marshal, &c.
A marshal shall serve for forma pauperis complainants, sailors or
if the court so orders, on anyone else (Rule 4(c)(B))

b. Other
Process to be served on sane adults and corporations may be served
in accordance with state law or by mail with an acknowledgement of
service (Rule 4(c)(C)) or in accordance with Rule 4(d)

3. “Long-arm Service”
Unless pursuant to a statute which allows nationwide service (or
pursuant to “bulge” jurisdiction), a district court may bring in
out-of-state parties in accordance with the long-arm statutes of
the state in which it sits (Rule 4(e)). This may extend the time
for answer if the state provides a longer period (Rule 12(a)).

4. Time Limits
Complaint and summons must be served within 120 days of filing of
action with court (Rule 4(j)).

VI. Answer and Pre-Answer Motions
A. TIMING OF ANSWER
Time frame for regular people filing answer is 20 days from
receipt of complaint, or if service is effected in accordance with
Rule 4(e) [state long arm statute], as provided in state law;
unless parties agree to extension. Period for U.S. Government is
60 days.
Time frame for filing answer is extended 10 days by filing a pre-
answer motion.

B. RULE 12(B)(6): DEMURRER TO THE COMPLAINT
1. Generally
Demurrer/failure to state a claim for which relief may be granted,
judged strictly on the face of the face of the complaint; if
similar motion is made after filing of answer and/or other
materials (affidavits, &c.) are taken into account, becomes a
motion under Rule 12(c)/Rule 56(c), and other side gets a shot at
introducing its own factual allegations.

2. Standard of Review
a. Generally
Take all facts averred in complaint of non-movant as true and draw
all permissible inferences therefrom. Even if the complaint
mispleads the action, the complaint may not be dismissed if the
facts indicate there is a viable cause of action (i.e., plead
fraud, facts show tortious interference with contract, but no
fraud, complaint still survives).

b. Quotables
[A] complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim that would entitle him to relief
Conley v. Gibson, 355 U.S. 495 (1957).

3. Amendment After Grant of Demurrer
a. Generally
Generally, if the complaint is dismissed, courts will allow at
least one amendment under Rule 15(a); this should not even be
necessary since the Rules provide that a party may amend prior to
the filing of a responsive pleading (i.e., answer), and a 12(b)(6)
motion is not a responsive pleading.

b. Quotables
Fed.R.Civ.P. 15(a) provides in pertinent part, that “[a] party may
amend the party’s pleading once as a matter of course at any time
before a responsive pleading is served….” Appellees never filed
a responsive pleading, but instead first filed their motion to
dismiss for failure to state a claim or for summary judgement.
These motions are not pleadings. Under the terms of F.R.Civ.P.
15(a) [sic], therefore, [plaintiff] should have been permitted “as
a matter of course” to amend his complaint.
Caine v. Hardy, 905 F.2d 858 (5th Cir. 1990)(citations omitted)

4. Rule 12(c) Motion for Judgement on the Pleadings
This is equivalent of a motion for failure to state a claim under
Rule 12(b)(6) or for summary judgement under Rule 56(c), depending
on whether matter external to the pleadings is taken into account.

In its role as a 12(b)(6)-equivalent, it represents a chance for
the plaintiff to attack the legal sufficiency of affirmative
defenses/counterclaims raised in the answer.

C. OTHER PRE-ANSWER MOTIONS
1. Rule 12(e) Motion for More Definite Statement
a. Generally
Confined to situations where pleadings are completely
incomprehensible, but many courts will use it as a means of
getting to the question of whether demurrer should be granted.

The person whose pleading is attacked has 10 days to respond or
the complained-of pleading is struck.

b. Quotables
“A motion for a more definite statement under Rule 12(e) is
ordinarily confined to situations where a pleading suffers from
‘unintelligibility rather than the want of detail.’” United States
v. Board of Harbor Commissioners, 73 F.R.D. 460 (D. Del.
1977)(quoting Moore’s Federal Practice).

2. Rule 12(f) Motion to Strike
a. The Rule
Upon motion made by a party before responding . . . or if no
responsive pleading is permitted . . . within twenty days after
service . . . or upon the court’s own initiative at any time, the
court may order stricken from any pleading any insufficient
defense or any redundant, immaterial, impertinent, or scandalous
matter.
FED. R. CIV. P., Rule 12(f)

b. Generally
The rule serves two functions; clarification of the pleadings and
striking therefrom scandalous matter (e.g., the “brown-eyes
defense”) and as a sort of 12(b)(6) motion for affirmative
defenses, which may be stricken as a matter of law.

VII. Challenges under Rule 12(g)/(h)
A. RULE 12(H)(1) DISFAVORED DEFENSES
[must be made before answer or in answer or forever waived]
1. Lack of personal jurisdiction (Rule 12(b)(2))
2. Improper venue (Rule 12(b)(3))
3. Inadequacy of form of process (Rule 12(b)(4))
4. Inadequacy of service of process (Rule 12(b)(5))

B. RULE 12(H)(2) FAVORED DEFENSES
[may be made prior to judgement]
1. Failure to state a claim (Rule 12(b)(6))
2. Failure to join a necessary/indispensable party (Rule
19(a)/(b))
3. Failure to state a legal defense to a claim (Rule
12(c)/Rule 10(f)?)

C. MOST FAVORED DEFENSE
[may be made at any time, even after judgement]
1. Challenge to court’s subject-matter jurisdiction

VIII. Default Judgement
A. IN GENERAL
Judgement may be entered where time to answer has expired and no
answer has been received.

B. ENTRY OF DEFAULT BY CLERK
Distinguish from entry of judgement (which may only be done by
clerk as described below).

C. RULE 55(B) ENTRY OF DEFAULT JUDGEMENT
1. Rule 55(b)(1) Entry by Clerk
If claim is for a sum certain or calculable sum certain and
defendant is not an infant or incompetent and has totally failed
to appear, clerk may enter judgement without judge.

2. Rule 55(b)(2) Entry by Judge
If the amount of the judgement is not a sum certain or calculable
sum certain (or plaintiff is incompetent or has not failed totally
to appear), judge must enter judgement.

D. RULE 55(C) SETTING ASIDE DEFAULT AFTER ENTRY OF DEFAULT AND
BEFORE ENTRY OF JUDGEMENT
Standard is “for good cause shown:”
1. “Good Cause Shown” Factors
United Coin Meter Co. v. Seaboard Coastline R.R. [cited p.162]
factors:
a. will plaintiff be prejudiced?
Reasonable change in position by plaintiff based on judgement;
alteration in factual surroundings (death of witness, &c.).[p.166
n.5]

b. does defendant have meritorious defenses?
Defense must be a matter of substantive law which might lead to
success at a trial on the merits, not pure procedure or conclusory
denials.

Defense must be backed by some facts, rather than conclusory
allegations in order for court to view as meritorious UNLESS
defendant was never served with process.

c. was default a result of culpable/wilful conduct of
defendant?
Distinguish between conduct of defendant’s counsel and conduct of
defendant; if conduct by the latter, default is more likely to be
upheld. [p.166 n.7] The conduct must be intended to thwart
judicial process or made with reckless disregard of effect of
conduct.

2. Constitutional Limitations
Where the defendant has not actually been served, the default must
be set aside even if the defendant can show no meritorious
defence.

E. RULE 60(B) AFTER ENTRY OF JUDGEMENT
1. Rule 60(b) Generally
Here a party is seeking relief from a judgement which has already
been entered; the standard is much stiffer than for a motion under
Rule 55(b).

There are two classes of reasons for setting aside judgements,
those where the motion must be made within one year and those
which permit the motion to be at any time.

By its terms, Rule 60(b) does not control where in in rem actions
where the defaulting party was never served (controlled by 28
U.S.C. § 1655) or where there has been a fraud upon the court.

2. Where Motions Must Be Made within One Year
a. mistake, inadvertence or excusable neglect
b. newly discovered evidence which could not by due
diligence have been discovered during the trial
c. fraud (whether extrinsic or intrinsic to the case)
d. [NOT UNDER RULE; in rem actions under 28 U.S.C. § 1655,
see infra]

3. Where Motions May Be Made at Any Time
a. judgement is void
b. the judgement has been satisfied or released, a prior
judgement on which it was based has been vacated, or prospective
application of the judgement is no longer equitable
c. “any other reason”

4. 28 U.S.C. § 1655: In Rem Actions Where Defaulting Party
Was Never Served
In actions to clear title, or enforce liens on property in the
disctrict, if service is not practicable and is made by
publication, if the absent party appears within one year, the
judgement may be set aside.

IX. Answer
A. RULE 8(B) RESPONSES TO ALLEGATIONS
1. The Rule
A party shall state in short and plain terms the party’s defenses
to each claim asserted and shall admit or deny the averments upon
which the party relies. If a party is without knowledge or
information sufficient to form a belief as to the truth of an
averment, the party shall so state and this has the effect of a
denial. . . . When a pleader intends in good faith to deny only a
part or a qualification of an averment, the pleader shall specify
only so much of it as is true and shall deny only the remainder.
FED. R. CIV. P., Rule 8(b)

2. Generally
Averments must be admitted or denied specifically; the only
situation under which a general denial is permitted is where the
defendant is denying everything including the jurisdiction of the
court.

Defendant must admit or deny averments in complaint, or may claim
it is without sufficient knowledge to form a belief.

If the last, if information is under control of defendant, and he
claims not to have sufficient information, it operates as an
admission; otherwise it operates as a denial.

B. RULE 8(C) PLEADING OF AFFIRMATIVE DEFENSES
1. Generally
Affirmative defenses must be plead or they are waived.

An affirmative defense is a descendant of the common law “plea in
confession and avoidance;” it seeks not to deny the facts pled by
the plaintiff or the insufficiency of the facts to constitute a
cognizable cause of action, but rather to plead other facts or
legal theories external to the plaintiffs facts or cause of action
to avoid liability.

In short, “Yeah, but . . . ”

2. Qualified Immunity under 42 U.S.C. § 1983
Gomez [p. 172], “qualified immunity” is an affirmative defense:
plaintiff need not plead bad faith, defendant must plead good
faith.

3. Specificity
a. Rule 9(a) Capacity to Sue
Capacity of plaintiff to sue must be raised by specific negative
averment
b. Rule 9(c) Denial of Performance of Conditions Precedent
Non-performance of conditions precedent must be specifically
averred

X. Rule 13 Counterclaims
A. COMPULSORY COUNTERCLAIMS
Must arise out of same “transaction or occurrence” as underlying
claim, Rule 13(a); no independent federal jurisdiction required.
Even if the counterclaim is compulsory, however, it may not be
entertained if it requires the presence of a third party over whom
the court cannot get jurisdiction, id., and need not be entered if
it is already the subject of pending litigation, id..

Counterclaims must be made at the time of filing the answer if the
counterclaim exists at the time of the answer (Rule 13(a)); after
acquired counterclaims may be added with the permission of the
court by means of amendment (Rule 13(e)); counterclaims in
existence at the time of the answer which were omitted by
oversight, inadvertance or excusable neglect, or where justice so
requires, may be added by amended pleading if the court permits
(Rule 13(f)).

These are “compulsory” only in the sense that if not litigated in
the proceeding, res judicata will bar their later assertion.
[p.231 nn. 2, 3]

B. PERMISSIVE COUNTERCLAIMS
Arises out of other transactions or occurrences; independent
federal jurisdiction required in order to be tried with underlying
claim UNLESS they constitute a valid set-off against plaintiff’s
recovery, Rule 13(b).

C. COUNTERCLAIMS VS. CROSSCLAIMS
A counterclaim is a defendant’s claim against a plaintiff, a
cross-claim is between defendants inter se.

Even cross-claims arising out of the same transaction or
occurrence are permissive (rather than compulsory) if they are
between co-defendants, Rule 13(g).

D. SAME TRANSACTION OR OCCURRENCE
Similar (but not identical) language is found in Rule 15 [relation
back] and Rule 24 [intervention]. “Same transaction or occurrence”
is an open textured phrase; that is to say, nobody knows exactly
what it means.

1. Tests for Rule 13 “Transaction or Occurrence”

Four tests:
a. Are the issues of fact and law raised by the claim and
counterclaim substantially the same?
b. Would res judicata bar a subsequent suit on the
counterclaim?
c. Will the same evidence serve to substantially dispose of
both claim and counterclaim?
d. Is there a “logical relation” between claim and
counterclaim?
if so they arise from the same transaction or occurrence and are
compulsory.

XI. Rule 41 Dismissal
A. RULE 41(A)(1)(I): VOLUNTARY DISMISSAL (WITHOUT PREJUDICE)
Voluntary dismissal (without prejudice) must occur prior to filing
of answer or motion for summary judgement under Rule 12(b)(6);
however, certain courts have disallowed dismissal even prior to
that point if the merits have been reached in an earlier hearing,
e.g., motion for a TRO.

Right to voluntarily dismiss without prejudice may occur only
once.

B. RULE 41(A)(2): VOLUNTARY DISMISSAL AFTER ANSWER
Court may impose such conditions as it sees fit, including
prejudicial nature of dismissal or attorneys fees of defendant
being taxed to plaintiff. If a counterclaim has been asserted, the
initial claim may be dismissed and the counterclaim retained; the
plaintiff thus becomes the defendant.

C. RULE 41 AND IMPOSITION OF RULE 11 SANCTIONS
Even though a court has dismissed the action, it still retains the
right to impose sanctions for conduct occurring while the action
was still live.

XII. Rule 15(a): Leave to Amend
Leave to amend shall be liberally granted where the interests of
justice require; as a practical matter, courts will permit
amendment unless there is good reason not to.

A. REASONS FOR DENIAL OF LEAVE TO AMEND
1. Unfair prejudice to other side
2. Undue delay in filing for amendment

XIII. Rule 15(b): Conforming Pleadings to Evidence
If matters are introduced at trial without objection which are
outside claims made by pleadings, the pleadings are deemed amended
to reflect such matters; the court should freely allow the
admission of extra-pleading materials where justice requires, &c.

XIV. Rule 15(c): Relation Back
A. GENERALLY
Where new parties are added after initial filing, the amendment
may “relate back” to the date of initial filing for statute of
limitation purposes if:

1. If permitted by the statute of limitations of the
applicable [state or federal] law, if the relation-back provisions
of that law are more liberal than the Rule 15(c) provisions
2. the new claim arises out of the same transaction or
occurrence as the original claim
3. the new defendant received actual notice (as opposed to
legally cognizable service) of the claim prior to the expiration
of the statute, such that he will not be prejudiced
4. the new defendant should have been aware that, but for
error of the plaintiff, he would have been a defendant in the
original suit.

B. QUOTABLES
(1) the basic claim [arose] out of the conduct set forth in the
original pleading; (2) the party to be brought in [has] received
such notice that it will not be prejudiced . . . ; (3) the party
must or should have known that, but for the mistake concerning
identity, the action would have been brought against it; and (4)
the second and third requirements must have been fulfilled within
the prescribed limitations period.
Sciavone v. Fortune, 477 U.S. 21, 29 (1986)

XV. Rule 15(d): Supplemental Pleadings
Pleadings may be amended to cover matters arising after the filing
of initial pleadings and prior to trial; however, these must be in
aid of claims already made, and not to introduce new claims.

XVI. Rule 17(a): Real Party in Interest
Every action shall be prosecuted by the real party in interest.
Real parties in interest include trustees, executors &c. suing on
behalf of beneficiaries, &c., and need not join beneficial owners,
&c.

Note that for purposes of diversity jurisdiction, the trustee, &c.
is deemed to be a citizen of the state of which his beneficiary,
&c. is a citizen.

There may be more than one real party in interest; the real issue
is res judicata effect as to interested parties.

Purpose is to preclude multiplicity of suits. Most frequent source
of issues is subrogation; subrogee is entitled to have subrogor
sue on his behalf, since he will be barred from bringing action
after.

XVII. Rule 10(a): Use of Real Names of Parties
A. GENERALLY
Rule requires that real names of parties be used in styling suits;
however, judges have permitted exceptions where suits will
necessarily reveal intimate/embarrassing matters, e.g.,
disciplinary proceedings against professionals, matters which
would lead to infamy in the community, e.g., transexuality (Doe v.
Blue Cross, infra) or an intent to violate challenged law, e.g.,
Roe v. Wade.

B. QUOTABLES
“The most common instances are cases involving abortion, mental
illness, personal safety, homosexuality, transexuality and
illegitimate or abandoned children in welfare cases. The common
thread running through these cases is the presence of some social
stigma or the threat of physical harm to the plaintiffs attaching
to the disclosure of their identities to the public record. . . .
That the plaintiff may suffer some embarrassment or economic harm
is not enough.”
Doe v. Blue Cross & Blue Shield, 794 F. Supp. 72, 74 (D.R.I. 1992)
(quoting Doe v. Rostker, 89 F.R.D. 158 (N.D. Cal. 1981)).

“The decision [as to whether a party may sue anonymously] requires
a balancing of considerations calling for maintenance of a party’s
privacy against the customary and constitutionally-embedded
presumption of openness in judicial proceedings.”
Id., 794 F. Supp. at 73 n.3 (quoting Doe v. Stegall, 653 F.2d 180
(5th Cir. 1981)).

XVIII. Multiparty Practice in General
A child of equity, has been enthusiastically embraced by the FRCP:
the more claims tried at once the better. If claims are related
they should be heard together, if unrelated, heard separately.

[T]he impulse is toward entertaining the broadest possible scope
of action consistent with fairness to the parties; joinder of
claims, parties and remedies is strongly encouraged.
United Mineworkers v. Gibbs (cited on p.209)

XIX. Rule 18(a): Joinder of Claims
Distinguish from “Joinder of Parties;” this essentially allows
parties already in court to bring even unrelated claims against
counter-parties; however, it is a rule of pleading not of trial
and unrelated claims may well be severed by the court under Rule
42(b).

XX. Joinder of Parties
A. RULE 19 COMPULSORY JOINDER
1. Generally

There are two classes of parties:

Necessary Parties under Rule 19(a), who should be joined if the
court can get jurisdiction over the parties and whose addition
will not destroy subject matter jurisdiction (must usually
diversity jurisdiction) and

Indispensable Parties under Rule 19(b) who must be joined or the
suit must be dismissed. The latter class is based on the premise
that a “court must do complete justice or none at all; ” if a
party which must be joined cannot be then the suit must be
dismissed if it cannot “in equity and good conscience” be
permitted to proceed.

Note that, like impleaded parties, parties can be joined under the
district court’s “bulge” jurisdiction (Rule 4(f)).

Note that the diversity of parties may become an issue under 28
U.S.C. 1367(a)/(c). See below.

2. Rule 19(a), “Necessary Parties”; The Rule
A person who is subject to service . . . and whose joinder will
not deprive the court of jurisdiction over the subject matter . .
. shall be joined . . . if (1) in the party’s absence complete
relief cannot be accorded among those already parties, or (2) the
person claims an interest in the subject of the action and is
situated that disposition of the action in the party’s absence may
(i) as practical matter impair or impede the person’s ability the
person’s ability to protect that interest or (ii) leave any of the
persons already parties subject to substantial risk of incurring
double, multiple or inconsistent obligations . . . .
FED. R. CIV. P., Rule 19(a)

3. Rule 19(b) “Indispensable Parties”
a. Rule 19(b) the Rule

In determining if a party is in fact indispensable the court
considers four factors:

The factors to be considered by the court include: first, to what
extent a judgement rendered in the persons absence might be
prejudicial to the person or those already parties; second, the
extent to which the, by protective provisions in the judgement, by
the shaping of relief, or other measures, the prejudice can be
lessened or avoided; third whether a judgement rendered in the
person’s absence will be adequate; fourth, whether the plaintiff
will have an adequate remedy if the action is dismissed for non-
joinder.
FED. R. CIV. P., Rule 19(b)

b. Provident Tradesman’s Weighing of Equities

Under Provident Tradesman’s Bank & Trust Co. v. Patterson, the
Supremes isolated four equitable factors to be weighed in
determining if a party is indispensible:
(1) the plaintiff; his interest in a federal forum
(2) the defendant; his interest in not becoming subject to
multiple litigation or inconsistent relief
(3) the absent party; his interest in avoiding prejudice from the
proceeding;
(4) the interest of the courts and public in complete, consistent
and efficient settlement of controversies.

B. RULE 20: PERMISSIVE JOINDER
Parties may be joined if relief may be granted them or if
liability found against them arising out of the same transaction
or occurrence. This type of joinder is in the sound discretion of
the court.
Note that the diversity of parties may become an issue under 28
U.S.C. 1367(a)/(c). See below.

XXI. Rule 14: Impleader
Defendant can implead a party which may owe a duty of
indemnification or be otherwise liable under the applicable
substantive law to defendant if plaintiff prevails. A key factor
to remember is that an impleaded party will not destroy diversity
even if from the same state as a plaintiff, so long as the
plaintiff does not directly present a claim against the impleaded
party (see discussion of 28 U.S.C. § 1367(b)/Ancillary
jurisdiction, below).

A defendant may implead a party as-of-right if he does so within
10 days after serving the answer; thereafter leave upon motion is
required.

Note that, like necessary or indispensible parties, parties can be
impleaded under the district court’s “bulge” jurisdiction (Rule
4(f)).

Note that the diversity of parties may become an issue under 28
U.S.C. 1367(a)/(c). See below.

A. CRITERIA FOR IMPLEADING PARTIES
1. Possibility of liability under applicable substantive law,
either to defendant or to plaintiff.

2. Claim of impleaded party’s liability is related to the
claim on which the original defendant is being sued.

Once a party is impleaded he may, claim, counterclaim, implead
&c., just as an original defendant might.

Note that only under admiralty practice may the defendant tender
the impleaded party to the defendant and say, in essence “here,
sue him;” in normal impleader action the original defendant and
the impleaded party both remain parties to the suit. Since
admiralty is a matter of federal constitutional jurisdiction, this
will not create an impermissible diversity problem.

XXII. Interpleader
Where who has rights to an identifiable thing (the “stake”) is in
dispute, and there are or may be multiple claimants, in order to
prevent multiple liability, party deposit the stake in the court
and compel all claimants to join proceedings before that court as
a condition to getting the thing.

Distinguish two types: statutory and Rule interpleader [p.240
n.8].

A. RULE 22 RULE INTERPLEADER

1. Diversity
Complete diversity required; all stakeholders on the one hand, and
claimants on the other, must be from different states.

2. Size of Stake
$10,000 minimum

3. Venue
Residence of stakeholder, of all claimants or place where the
controversy arose

4. Service of Process
Subject to Rule 4 (within state or in accordance with state long-
arm statute)

B. 28 U.S.C. § 1335: STATUTORY INTERPLEADER

1. Diversity
Need diversity only between two of the claimants
2. Size of Stake
$500 minimum
3. Venue
Residence of one or more claimants
4. Service of Process
Nationwide

XXIII. Rule 24 Intervention

A. GENERALLY
God knows why you’d want to be in a lawsuit, but if that’s what
you want, here’s how you get it. You can actually force the court
and the parties to let you join the fun, sort of like the Beave
always trailing after Wally.

Courts will often condition intervention on agreements to limit
the role of the intervenor, by limiting discovery, &c.; this has
been found acceptable by the Supremes since the court has the same
power over original parties.
Note that the diversity of parties may become an issue under 28
U.S.C. 1367(a)/(c). See below.

B. RULE 24(A): INTERVENTION AS OF RIGHT

1. The Rule
Upon timely application anyone shall be permitted to intervene in
an action: (1) when a statute of the United States gives an
unconditional right to intervene; or (2) when the applicant claims
an interest relating to the property or transaction which is the
subject of the action and the applicant 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, unless
the applicant’s interest is adequately represented by the existing
parties.
FED. R. CIV. P., Rule 24(a)

2. Interest
The “practical matter” test looks beyond the consequences of the
immediate legal controversy, to the effects of that controversy;
thus, the stare decisis effect of a decision on a party similarly
although not identically situated, will be enough to permit
intervention. However, the interest asserted by the intervenor
must be a legally protectible interest; while the Supremes have
held this to include a practical economic interest, their
decisions in this area are muddy and the better current view seems
to confine interest to a legally cognizable one. [p. 248]

3. Timeliness
Factors to determine if intervention is timely:

a. when intervenor knew or should have known of interest in
the case;
b. whether the intervention would prejudice the existing
parties;
c. whether there would be prejudice to the intervenor if
intervention was denied;
d. “any other unusual factors”
Stallworth v. Monsanto, 558 F.2d 257 (5th Cir. 1977).

C. RULE 24(B): PERMISSIVE INTERVENTION
Here intervention may be made in the discretion of the court if a
statute gives a conditional right to intervene, there is a common
question of law or fact between the applicant’s claim or defense
and that of a party, or where a parties claim or defense is based
on a regulation, &c. and the intervenor is the relevant
governmental agency.

In determining whether to permit intervention, the court looks to
delay or prejudice to the original parties; courts keep in mind
that once a party is permitted to intervene, that the party has
all the rights of an original party and thus could throw a major
monkey wrench into the works.

Courts look to the adequacy of representation by the original
parties, the positive effect intervenors may have in fact
development and the desirability of having intervenors bound by
whatever the decision is.

XXIV. Rule 23 Class Actions
In order to get a class certified, the plaintiff must surmount two
separate barriers, Rule 23(a) and Rule 23(b). Classes may be
divided into subclasses (Rule 23(c)(4)) if their interests
conflict. In class action suits, the judge takes a more active
role than in cases where all parties are in fact in court to
protect themselves (Rule 23(d)).

A. RULE 23(A): CRITERIA FOR CERTIFICATION OF CLASS

1. Numerosity
Class has too many members for practical joinder
2. Commonality
Class members share a common question of law or fact
3. Typicality
The claims or defenses of the class representative are typical of
those of class members
4. Vigorosity
The representation provided by the class representative will be
fair and adequate.

B. RULE 23(B)

If the hurdles in Rule 23(a) are overcome AND

1. Rule 23(b)(1) Adverse Practical Impact on Current Parties
Prosecution of individual actions would risk outcomes creating
inconsistent standards with respect to the party opposing the
class;

Would as a practical matter bind non-party members of the
potential class or impair or impede their rights (e.g., limited
fund cases);

2. Rule 23(b)(2) Availability of Overall Injunction
The party opposing the class has acted on grounds generally
applicable to the class members, such that a single overall
injunction would be just;

3. Rule 23(b)(3) General Efficiency
The court finds that common questions predominate over individual
questions and that class certification is superior to other
methods in fairness and efficiency, taking into account:
a. the interests of the potential class members in
controlling their own case
b. the extent and nature of litigation already commenced
c. the desirability or undesirability of concentrating the
litigation in one forum
d. the difficulties in managing the class action

C. RULE 23(C)(2) “OPT-OUT” NOTICE TO CLASS MEMBERS IN RULE
23(B)(3) CLASSES
Individual notice must be provided to each class member, and they
must be given a chance to opt out. If they don’t opt out, they
will be bound by the result; limited to 23(b)(3) cases.

XXV. Discovery
A. GENERALLY; TYPES OF DISCOVERY

Types of discovery: deposition, production of
documents/examination of things/entry on land,
interrogatories/depositions on written questions, medical
examinations (Rule 26(a)).

Other than medical examinations, discovery is intended to be
“self-executing” without judicial intervention (although, as a
practical matter they spawn tremendous amounts of satellite
litigation).

Burden is on discoveree to prevent discovery (through motions to
quash); discoveror must merely file requests without intervention
of court.

Due to rampant abuses, discovery requests are now subject to a
sort of modified Rule 11 as to the legality, propriety of purpose
and burden of the discovery requested (Rule 26(g)).

1. Rule 30: Depositions
Most commonly used tool, there are special rules for deposition
prior to filing of complaint (Rule 27), for presentation into
evidence of depositions of dead, crazy, feeble or witnesses more
than 100 miles away (Rule 32(a)(3)) and for compulsion of
witnesses (Rule 45(d)).
2. Rule 33: Interrogatories
Can go only to an opposing party; however, the same effect is
produced by “depositions on written questions” to non-party
witnesses.
3. Rule 34: Document Production
Note that this includes production of documents in the possession
or under the control of the party required to produce; thus, if a
party is seen to have sufficient influence over the party holding
the documents (subsidiary, major client, &c.) the party will be
required to produce. The Supreme’s have even held that where
disclosure was violative of foreign penal law, documents must be
produced since the foreign corporation could influence the foreign
government to waive or change the law.
4. Rule 35(a): Medical Examination
Affirmative motion must be made by discovering party to compel
counterparty to submit to medical examination.

Physician is appointed by court from lists given by parties’
counsel.

In order to succeed in compelling examination, medical condition
of examinee must go to the heart of the case.

B. RULE 26(C): PROTECTIVE ORDERS
In the event, protective orders are insufficient: what penalty is
enough. [p.317 n.8]

C. MOTIONS TO COMPEL DISCOVERY – SANCTIONS

1. Generally
If a party refuses to co-operate in discovery, the discoveror may
make a motion that the court compel discovery. If the party still
refuses to comply, a variety of sanctions are available (Rule 37).
2. Sanctions
Sanctions may range from a custom-tailored set of presumptions
that act as if the material sought to be discovered was discovered
and had the maximum negative impact on the non-complying
discoveree to outright dismissal/entry of default judgement if
there is “willfullness, bad faith or fault.”

D. RULE 26(B)(3): ATTORNEY WORK PRODUCT EXEMPTION
Derived in altered form from Hickman v. Taylor; distinguish from
near-absolute attorney/client privilege; this covers interviews
between attorney and non-client witnesses made in preparation for
litigation.

E. RULE 26(B): EXEMPTION FROM DISCOVERY OF EXPERT WITNESSES
1. Generally
Work product Exemptions are not absolute, since other party may
obtain materials if they show “substantial” need and inability to
obtain materials without “undue hardship;” another open textured
provision, almost infinitely malleable at the will of the judge.

All party need do under Rule 26(b)(4) is provide list of
witnesses, the opinions they are expected to give, and the grounds
they will provide for such opinions.

2. Classification of Experts
a. Rule 26(b)(4)(A): Experts who will testify at trial
Must be identified, and the substance of their testimony set out
if requested by interrogatory; subject to further discovery upon
motion if warranted.

b. Rule 26(b)(4)(B): Nonwitness experts retained or
specially employed to assist in preparation for litigation
Adverse party may only discover facts or opinions of non-
testifying expert upon showing of substantial need, i.e., that
information is not otherwise available.

Expert costs may be defrayed by the discovering party under Rule
26(b)(4)(C).

c. Informally consulted experts

d. Experts whose information was not acquired in
preparation for trial
Experts who are employees of a party or witnessed the events are
discoverable like other parties.

F. COMMON LAW ATTORNEY/CLIENT PRIVILEGE
1. Generally

“(1) Where legal advice of any kind is sought (2) from a
professional legal advisor in his capacity as such (3) the
communications relating to that purpose (4) made in confidence (5)
by the client (6) are at his instance permanently protected (7)
from disclosure by himself or the legal adviser, (8) except the
protection be waived.

WIGMORE ON EVIDENCE § 2292

2. Corporations
In Federal courts, applies to contacts between counsel (whether
in-house or outside) and ALL employees of client; some states
continue to apply a “control group” test, where only contacts with
high governing officials are privileged.

3. Waiver
The protection may be waived where the party puts the privileged
material at issue by litigation stance, for witness preparation or
where the privileged material is revealed, even inadvertently, to
the opponent or a third party.

XXVI. Rule 56(c): Motions for Summary Judgement
Summary judgement is a new procedure created by the Fed. R. Civ.
P.; serves the function that a demurrer to the pleadings would
have in a fact pleading regime. The summary judgement procedure
weeds out “loser” cases before extensive judicial resources are
wasted on them.

There must be no issue of material fact. Materiality of fact will
vary case to case); (i.e., while in a malpractice case acts and
omissions of doctor would ordinarily be material, if there is a
question as to the running of the statute, that is material and
until disposed of the acts of the doctor are not material).

Further, there must be more than a scintilla of evidence to permit
the case to go forward.

Generally, in cases where state of mind is a factor, e.g., anti-
trust cases, summary judgement is not allowed since the demeanor
of the witness will be a determinative factor in the case.

A. SHIFTING OF BURDEN OF PROOF
In situations where the movant would have the burden of production
at trial, the burden remains on the movant in summary judgement.

Where the non-movant would have the burden at trial, there are
three basic approaches:
1. The burden of production shifts to the movant, who must
come forward with enough evidence to justify shifting the burden
back to the non-movant (Adickes v. Kress)
2. The movant merely must meet the burden, i.e., show the
absence of some necessary element of the non-movant’s case;
3. The movant has no burden whatsoever and the non-movant
must demonstrate that there are sufficient disputes as to material
fact to go forward based on facts not allegations (Celotex v.
Catrett).

Current approach is Celotex: If the defendant is moving for
summary judgement, burden of production remains on plaintiff; the
defendant need do nothing except point out weaknesses in the
plaintiff’s case, having done so the plaintiff must come forward
with substantial evidence to refute defendant.

B. TIMING OF MOTIONS
While motions can be made at any time by the defendant and within
20 days from service by the plaintiff, normally they are made
after completion of discovery and by the plaintiff.

1. Motions Made Prior to End of Discovery
There are two protections for a plaintiff when a defendant makes
an early motion for summary judgement:

a. Rule 56(f)
Defendant may make motion to prevent summary judgment on the
grounds he has not completed discovery.

b. Judge-Made Protections
Judges will often refuse to permit summary judgement motion to be
considered prior to discovery.

XXVII. Rule 16: Pre-Trial Conferences
A. FINAL PRE-TRIAL CONFERENCE

1. Traditional Goals
Ready the case for trial by clarifying outstanding issues and
minimizing other issues by stipulations as to evidence and
exhibits.

2. Settlement, the Additional Goal
To ready case for settlement; rules now compel client to show up
with power to negotiate a settlement.

B. PRE-TRIAL ORDER
1. As a Substitute for Pleadings
Order sets out a concise summary of allegations and defenses, and
the pleadings are deemed amended to conform to the order; these
may be amended only in the case of manifest injustice.

2. Stipulations, Witnesses and Exhibits
Order provides a list of facts which the parties have stipulated
to be true; judge will lean on parties to stipulate as much as
possible to streamline trial.

Order provides a list of exhibits to be admitted, and, unless
otherwise noted, exhibits are deemed authentic and admissible.

Order lists each side’s witnesses other than impeachment
witnesses.

XXVIII. Summary Jury Trial
A pretend trial with attorneys reading evidence to act as a
predictor of how a jury would behave; used as a settlement tool.

XXIX. Constitutional Nonsense Part II – Right to Trial by Jury
A. RULE 38: TRIAL BY JURY
Must be demanded at a very early date or the right is waived.

B. TRADITIONAL CONSTITUTIONAL APPROACH
A pure historical analogy test: was the action (or a similar
action) heard by judges or by Chancellors in England in 1791?

C. CURRENT CONSTITUTIONAL TWO-PRONG TEST

1. Is the current cause of action analogous to a cause of
action in equity or at law in English practice in 1791?
2. Is the remedy analogous to a remedy available at law or in
equity?
Remedy is not all remedies available, it is remedy sought by
plaintiff in particular case.

Remember, just because you are paying money doesn’t mean the
remedy is legal; if the money is gotten on a restitutionary
theory, it may be characterizable as “equitable” relief.

Most important prong is the remedy prong; according to Brennan,
the first prong should be eliminated since no District Court judge
is enough of a legal historian to handle it.

D. PROPOSED THREE-PRONG TEST
Footnote 10 to Gran Financieros; some Supremes law clerk getting
feisty: prongs same as the two-prong test EXCEPT that there is
added a prong requiring judges to take into account “the practical
limitations on the ability of juries;” this has been a big flop in
the lower courts, who have almost universally refused to apply it.

Someone did hire Lord Devlin to point out that the complexity of a
case would have been a factor in whether the Chancellor would have
taken over a case in English equity practice in 1791 but nobody
believes him, but cf. Jarndyce v. Jarndyce.

E. PRESENCE OF MIXED LEGAL AND EQUITABLE ISSUES/REMEDIES
Even if the legal issues are “secondary” to the equitable issues,
the legal issues will predominate and a jury trial be required.

F. LIMITATIONS AS TO “PUBLIC RIGHTS”
Administrative proceedings by sovereign vindicating “public
rights;” since Congress creates the right, it can limit the
availability of a jury. Generally involves cases in which the
United States is a party, but not always.

G. LIMITATIONS AS TO JURY’S ROLE AS TRIER OF FACT
It is permissible for the jury to adjudge guilt or innocence and
the judge to determine remedy, since the heart of what is to be
preserved is the jury’s role as trier of fact.

H. LIMITATIONS IN SITUATIONS IN WHICH THE PARTY HAS PUT HIMSELF
IN THE POWER OF A COURT IN EQUITY
In bankruptcy proceedings, the Court has distinguished situations
in which a party has filed a claim against the estate and then
later required to disgorge voidable preferences, as to which the
proceeding is merely part of the adjustment of claims function of
a bankruptcy court (a traditionally equitable court) and
situations in which the party has not put itself in the power of
the bankruptcy court, and the action to cause disgorgement must be
tried by a jury in the district court.

XXX. Taking the Case from the Jury
A. CONSTITUTIONAL LIMITATIONS
This implicates the second clause of the Seventh Amendment, since
jury verdicts are not to be reviewed except in accordance with the
common law.

B. RULE 50 MOTION FOR JUDGEMENT AS A MATTER OF LAW
This is the new name for a directed verdict or J.N.O.V.; use the
old ones since it is clearer what phase of the trial you are
talking about and judges will inevitably take 50 years to use the
new terms (cf. necessary and indispensible parties, abolished in
1966).

Essentially, the motion is a sort of Rule 56/summary judgement
motion with live people (see, notes to 1991 amendment), made after
the presentation of evidence at the trial or “renewed” after the
jury verdict is in.

C. JUDGEMENT AS A MATTER OF LAW; DIRECTED VERDICT AND J.N.O.V.
Combines two separate (but related) concepts:

1. Directed Verdict
Parties (as a matter of course) call for a judgement at the close
of plaintiff’s case, and defendant’s case, that the evidence
presented, even if taken as true, is insufficient to warrant a
jury to find for the presenting party.

2. Judgement non obstante veridictum (J.N.O.V.)
Losing party always moves for J.N.O.V., on the grounds that no
reasonable jury could have found as the jury did.

D. RELATION BETWEEN THE TWO TYPES
The motions are the same; the distinction is in the timing of the
motions.

For Constitutional reasons, the courts have created the fiction
that a J.N.O.V. is merely a motion for directed verdict made at
the close of all evidence and prior to sending the case to the
jury and as to which the court has reserved judgement.

The only time this would come into play is if an attorney, through
gross negligence, failed to make the appropriate motion at the
close of all evidence.

E. STANDARD FOR COURT’S REVIEW OF DIRECTED VERDICT/J.N.O.V.
MOTIONS
1. Generally
The court must take all evidence in favor of the non-movant (often
expressed as in favor of the verdict in the case of a J.N.O.V.)
and draw all reasonable inferences therefrom and decide that, as a
matter of law, no reasonable jury could find in favor of the non-
movant.

There must be more than a scintilla of evidence in favor of the
non-movant before the motion may be defeated; there must be
“substantial evidence” in favor of the non-movant.

2. Quotables
On motions for directed verdict and for judgement notwithstanding
the verdict the Court should consider all of the evidence–not
just that evidence that supports the non-mover’s case–but in the
light and with all reasonable inferences most favorable to the
party opposed to the motion. If the facts and inferences point so
strongly and overwhelmingly in favor of one party that the Court
believes that reasonable men could not arrive at a contrary
verdict, granting of the motions is proper. . . . A mere scintilla
of evidence is insufficient to present a question for the jury.
Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969)

F. JNOV AND ORDER FOR A NEW TRIAL
1. Generally
This concept relates to a J.N.O.V.; parties will move for a
J.N.O.V., or, in the alternative, for a new trial; under Rule
50(c), the court must rule on both at the same time. Courts will
often grant this motion on the grounds that, even if the appellate
courts over-rule the J.N.O.V., the order granting a new trial
might still survive.

An order granting a new trial is granted and reviewed on a much
laxer standard than a J.N.O.V.; if the court is convinced that the
verdict was granted “contrary to the weight of the evidence” it
may order a new trial and will only be over-ruled on an “abuse of
discretion” standard.

2. Options Upon Appeal
a. JNOV granted, new trial conditionally granted

Court of appeals has right to review both.

b. JNOV granted, no new trial granted
Court of appeals has right to order new trial

c. JNOV denied, new trial granted
Court of appeals can grant JNOV (obviating new trial), can reverse
on new trial or let new trial stand

d. JNOV denied, new trial denied
Same as above

XXXI. Remittitur and Additur
A. REMITTITUR

1. Generally
The judge offers the plaintiff a deal; accept a reduction in the
jury award or he will grant the defendant’s motion for a new
trial, and the plaintiff will have to go through it all again.
This is permitted in federal courts, since the lesser amount is
included in the (erroneous) greater amount; the court is merely
lopping off the excresence.

2. Theories of Calculation
a. The minimum reasonable verdict should be awarded, since
amounts in excess of that have not been submitted to a
“reasonable” jury, defeating the defendant’s right to a jury trial

b. The amount which the court feels to be correct (lying
between the minimum and maximum reasonable awards)

c. The maximum reasonable amount, on the grounds that the
defendant cannot be heard to complain of a reasonable verdict,
since the jury evidently intended to award as much as was allowed

B. ADDITUR
The judge offers the defendant a deal; pay more or he will grant
the plaintiff’s motion for a new trial; this is not constitutional
since the additional amount was not included in the jury’s
verdict. No I didn’t say this makes sense.

XXXII. General and Special Verdicts; Special Interrogatories

A. RULE 49(A): SPECIAL VERDICTS
The court may have the jury fill out a form setting out in detail
their findings of fact as to controlling facts in the case. Courts
have held that these should be submitted to counsel in advance
that they may object, as being required by Rule 51 in combination
with Rule 49(a).

B. RULE 49(B): GENERAL VERDICT WITH SPECIAL INTERROGATORIES
The court may allow the jury to enter a general verdict but also
answer interrogatories, which, if the interorogatory answers are
inconsistent with the general verdict, will be used to enter the
actual verdict, notwithstanding the general verdict.

XXXIII. Impeachment of the Jury Verdict
Federal Rule of Evidence is that nothing other than external
information brought into the jury-room or external pressures
brought to bear on the juror may permit impeachment of a verdict.

There are two alternate state rules: the Delaval rule which
permits no impeachment and the Iowa rule which permits juror
testimony as to overt (factually checkable) acts such as bringing
in external materials or pressures from bailiffs or fellow jurors
to rapidly reach a verdict.

XXXIV. Constitutional Nonsense Part III – Constitutional
Amenability
A. GENERAL ANALYTIC FRAMEWORK
1. International Shoe Constitutional Amenability
a. “Minimum Contacts”
b. “Reasonableness”
2. Mullane XIVth Amendment Notice and Opportunity to Be Heard
3. Statutory “Long-Arm” Amenability
4. Compliance with Service Procedures

B. CONSTITUTIONAL V. STATUTORY AMENABILITY
Distinguish carefully between Constitutional amenability and
statutory amenability:

1. Constitutional Amenability
Can the courts of a jurisdiction, consistent with the Due Process
Clause, exercise jurisdiction over a party?

The first element is International Shoe amenability; this combines
two questions, minimum contacts and reasonableness.
Even if the party has the minimum contacts and the exercise of
jurisdiction comports with “traditional notions of fair play and
substantial justice;” a further question is whether adequate
notice and an opportunity to be heard has been granted.

2. Statutory Amenability
Has the legislature of the jurisdiction granted such authority to
the courts pursuant to the relevant “long-arm” statute?

Has the party been appropriately notified in accordance with the
relevant service statute?

C. TYPES OF JURISDICTION
These are of absolutely no importance in the modern era, but are
still good to know:

1. In Personam
Jurisdiction is asserted over the defendant in a personal
capacity; all of his assets are subject to suit.
2. In Rem
Suit seeks to determine interests of all persons in a particular
item of property, e.g., suit to quiet title.
3. Quasi In Rem
Quasi in rem jurisdiction is where a plaintiff asserts rights to
property within the control of the relevant court to extinguish
the rights of a particular person therein.
a. Suit Relating to Pre-Existing Claim to Property
Suit against the property for a claim arising out of that
particular property; e.g., foreclosure of a pre-existing lien on
the property.
b. Suit Not Related to Pre-Existing Claim to Property
Suit against the property to satisfy a separate judgement obtained
against the owner not related to the property.

D. “MINIMUM CONTACTS” ANALYSIS
This is applicable to all attempts to get jurisdiction over out of
state defendants, regardless of whether the proceeding in in
personam, in rem, or quasi in rem.

1. Engaging in Purposeful Activity in State
This MAY include putting goods into stream of commerce which party
knows stream of commerce will wash up in state; stream of commerce
stops at the consumer level, however, party is not
constitutionally amenable merely because consumer brings chattel
into state; further, an evenly divided court split on the question
of whether “stream of commerce” doctrine was proper, at least as
to two foreign (really foreign) corporations.

Sending filthy magazines to New Hampshire or trashy tabloids to
California could do it.

2. Foreseeability
Could the defendant have reasonably foreseen that his actions
would result in being “haled into court” in the forum?

Distinguish foreseeability that, for example, a chattel produced
by the defendant could foreseeably wind up in the jurisdiction
through the acts of a consumer.

3. Availment
Has the party availed itself of the benefits of the laws of the
State, such that it is fair to give the State jurisdiction?

E. GENERAL V. SPECIFIC JURISDICTION

1. General Jurisdiction
The activities of the defendant are such that he should be
amenable to jurisdiction of the state even if the claim arises out
of acts not relating to the defendant’s contacts with the state.

2. Specific Jurisdiction
The claim asserted arises out of the defendant’s contacts with the
state.

3. Contacts and Relation Analysis
Generally, “minimum contacts” are likely to be found if the
contacts are extremely numerous and/or the contacts are directly
related to the cause of action. As the number of contacts
decreases and their relation to the cause of action becomes more
attenuated, minimum contacts are less likely to be found.

4. Brennan’s Factors
According to Brennan, the following factors may be taken into
account to allow jurisdiction in cases where the minimum contacts
would not otherwise permit:
a. burden on the defendant
b. interest of the forum state in adjudicating the matter
c. interstate judicial system’s interest in efficient
adjudication
d. interest of the states in furthering their substantive
social policies

F. REASONABLENESS: “TRADITIONAL NOTIONS OF FAIR PLAY AND
SUBSTANTIAL JUSTICE;” MOTHERHOOD AND APPLE PIE
This is a mantra ritualistically repeated in any case relating to
Constitutional amenability; all attempts to get jurisdiction over
an out-of-state party must comport with T-N-of-F-P-and-S-J. Repeat
this phrase at least five times in any answer to a Constitutional
amenability question; it doesn’t actually mean anything, but the
Supremes do it so why not you?

G. TRANSIENT PERSONAL JURISDICTION
If you are in the state, you are subject to service of process
there, regardless of how long you are there or for what purpose.
One can even be served with process flying over the state.

Per the Nin-erator: “Hey, its traditional so it must be a notion
of fair play and substantial justice, right?”

H. RULE 4(E): OR, WHY THIS BULLSHIT MATTERS FOR FEDERAL COURTS
Under Rule 4(e), in the absence of a statute permitting nationwide
service (e.g., statutory interpleader), the District Court has
personal jurisdiction over all parties in the state in which it
sits (and, with respect to parties to be joined or impleaded
parties, the Bulge) and service over out-of-state defendants in
accordance with the state’s procedures.

The related state’s long-arm statute thus constrains the Federal
courts. Go figure.

I. RULE 4(F): IS THAT A BULGE IN YOUR JURISDICTION OR ARE YOU
GLAD TO SEE ME?
A district court also can exercise jurisdiction over out-of-state
parties to be joined (Rule 19) or impleaded parties (Rule 14)
within (or having minimum contacts with the area within) 100 miles
of courthouse.

XXXV. Venue
A. VENUE VS. JURISDICTION
Distinguish venue from jurisdiction:

1. Jurisdiction
May suit be heard in that state?
2. Venue
Where in that state may the suit be heard?

B. 28 U.S.C. § 1391(A)/(B): FEDERAL VENUE FOR CITIZENS

1. The judicial district where a defendant resides, if all
defendants reside in the same state (same for both
diversity/1391(a) and federal question/1391(b))
2. A judicial district where a substantial portion of the
events omissions giving rise to the action have taken place or
where a substantial part of the property which is the subject of
the action is located (same for both diversity/1391(a) and federal
question/1391(b))
3. Differences between Diversity and Federal Question
(1391(a)(3)/1391(b)(3))
a. For diversity actions, where any defendant are subject
to personal jurisdiction at the time the action begins
b. For federal question actions, if there is no other
disctrict available under (1) or (2), a district where any
defendant resides
C. 28 U.S.C. § 1391(C)/(D): FEDERAL VENUE FOR
FOREIGNERS/CORPORATIONS
1. Foreigners may be sued anywhere
2. Corporations may be sued in any district in which they are
subject to personal jurisdiction at the start of the action; in
multi-district states, they are deemed to reside in any district
with which it has sufficient contacts to subject it to personal
jurisdiction if the district were considered as a separate state,
or in the district with which it has the most contacts if there is
no such district

D. OTHERS
There are special rules for agents of the U.S. Gov’t (1391(e)) and
for foreign states (1391(f)).

XXXVI. Forum Non Conveniens
Even if the defendant is subject to jurisdiction in a distant
state, he may still get the suit moved if trying the suit there
would work hardship upon him.

A. 28 U.S.C. § 1404(A): STATUTORY FORUM NON CONVENIENS

1. Substantive Law Transferred
The substantive law of the original forum is transferred with the
case.
2. Jurisdictional Limits
Suit may not be transferred to any place in which the defendant
was not subject to service.

XXXVII. Federal Jurisdiction
A. FEDERAL JURISDICTION AND THE CONSTITUTION
Article III gives jurisdiction to Federal courts for cases and
controversies between citizens of different states or “arising
under” the federal Constitution and laws.

This is not self-executing; in other words statutory authorization
is required to implement these grants of jurisdiction. The
relevant statutes have been construed to grant authority slightly
narrower than the Constitution would permit.

B. DIVERSITY JURISDICTION

1. Time of Diversity
Diversity is determined as of the time of filing the suit, and
later changes will not impact the existence of diversity
jurisdiction.
2. Constitutional Diversity
The Constitution only requires that one party on each side of the
suit is from a different state.
3. Statutory Diversity
There are addtional statutory requirements read into 28 U.S.C. §
1332, ever since 1806.

C. 28 U.S.C. § 1332: REQUIREMENTS FOR DIVERSITY

1. Absolute Diversity
The diversity statute (28 U.S.C. § 1332) has been construed to
require absolute diversity; no plaintiff party may be from the
same state as any defendant party.
2. Amount in Controversy
The “amount in controversy” must exceed $50,000.

D. DOMICILE AND CITIZENSHIP

1. Natural Persons
Domicile is not necessarily residence; there is a two-part test:
(a) does the person make his or her residence there?
(b) with the intention of remaining?

A wife is generally taken to have assumed the domicile of her
husband. Don’t tell Hillary, she’ll go batshit.

2. Persons Other Than Natural Persons
a. Corporations
Corporations have dual citizenship:
i) state of incorporation
ii) state of the corporation’s “principal place of business”
Where the principal place of business is unclear, courts tend to
look to the “nerve center” from which executive decisions emanate
or to the location of the principal place of manufacturing/service
of the business (book goes with “nerve center” test).
b. Unincorporated Associations (e.g., labor unions)
Unincorporated associations are deemed to have the citizenship of
each of their members; thus no member of the association may be
from the same state as a party on the other side of the case.
c. Partnerships
Both general and limited partnerships have the citizenship of all
partners. (Note however that the decision as to limited
partnerships was the subject of a strong dissent by a couple of
Supremes)
d. Class Action Class Members
Only the class representatives (as opposed to all class members)
need to be diverse.

E. AMOUNT IN CONTROVERSY
1. How Determined

a. Damages
The amount in controversy is determined by the face of the “well
pleaded complaint;” if the plaintiff in good faith is requesting
relief in excess of the statutory minimum, the suit may proceed.
Suit will only be barred if it is clear to a legal certainty that
the amount will not be recoverable.
b. Injunctive Relief
The usual method is to determine the value of the relief to the
plaintiff; some courts, however, look to the cost of the relief to
the defendant.
c. Multi-Party Litigation
The claims of separate parties may not be aggregated unless the
claims are so-called indivisible (e.g., husband and wife suing,
beneficiaries of a will suing a faithless executor). Thus, for
example, in a class-action suit, each class member must have
claims exceeding the $50,000 mark.

F. “ARISING UNDER” JURISDICTION
1. Generally
As with diversity jurisdiction, the statute implementing the
“arising under” provisions of the Constitution is more narrowly
construed than the applicable Constitutional provision.

2. Holmes and Federal Law
“[A] suit arises under the law that creates the cause of action”

Where the cause of action is created by a Federal law, then it is
said to have arisen under the Federal laws; there is an exception
where the federal government has pre-empted (implicitly or
explicitly) an entire area of law (e.g., labor under LMRDA or
pension/benefit plans under ERISA), in which case all causes of
action relating to the topic (whether or not arising under a
specified provision of federal law) may “arise under” for 1331
purposes.

3. The Well-Pleaded Complaint
For a case to arise under the federal laws, the federal statute
must be invoked on the face of the complaint; the fact that the
plaintiff anticipates (or the defendant makes) a defense based on
the federal laws, is insufficient for arising under jurisdiction.
An exception is made for insubstantial or frivolous complaints
made purely to invoke jurisdiction.

G. 28 U.S.C. § 1367: “SUPPLEMENTAL JURISDICTION;” PENDENT AND
ANCILLARY JURISDICTION
1. The Bad Old Days; Ni-No! Ni-No! Ni-No!
These were common-law rules whereby federal judges could get their
pudgy little hands on cases not properly diverse or arising under
due to their relationship to cases over which they did have proper
jurisdiction.

The Nin-erator put a stop to this nonsense, and told Congress
unequivocally that for once they should stop babbling on CSPAN and
feeling up teenage pages (of the gender of their choice) and do
their jobs to give or deny the federal courts jurisdiction.

As a result, 28 U.S.C. § 1367 was passed. (No doubt a Note on the
effect of this on the soporific quality of CSPAN and on the virtue
of under-aged legislative go-fers is coming soon to a Law Review
near you.)

2. Supplemental Jurisdiction
a. What is It?
In an effort to look like they were doing something, Congress did
not use the terms pendent and ancillary, but rather the
overarching term “supplemental.”

The chances of Federal judges using this term are approximately
equivalent to those of scoring big-time on your dream date with
Cindy Crawford (cf. “necessary” and “indispensible” under Rule
19). For women readers, substitute the term “Richard Gere.” For
hamster readers, go on to the next section.

b. 28 U.S.C. § 1367(a): No, Really, What is It?
Under 1367(a), Federal courts have jurisdiction over “claims that
are so related to claims in the action within such original
jurisdiction [diversity or "arising under"] that they form part of
the same case or controversy under Article III of the United
States Constitution.”

This embraces both pendent and ancillary jurisdiction, but the
carve-outs in 1367(b) make it clear that there really is still a
difference.

3. Pendent Jurisdiction
Where a plaintiff having a right to the federal forum on the basis
of original jurisdiction brings a suit under state law arising
from the same nexus of operative facts. A typical example would be
suing for securities fraud under Section 10(b)/Rule 10b-5 and
bringing a common law state fraud action while you were at it.

4. Ancillary Jurisdiction
Where a defendant in a diversity brings joins or impleads a co-
defendant who is non-diverse as to the plaintiff. The plaintiff is
still barred from suing the non-diverse party directly; the
defendant, having been haled into the federal forum can sue who he
will.

5. 28 U.S.C. § 1367(c): Limitations on Pendent/Ancillary
Jurisdiction
The federal courts may punt on a pendent claim if:

a. the claim raises a novel/complex state law question.
This codifies pre-1367 decisions holding that a court may decline
pendent jurisdiction if the state courts would provide a “surer
footed reading of state law.”
b. the state claims substantially predominate over the
federal claims
c. the federal court has dismissed all of the claims over
which it has jurisdiction; in the case of 1331 jurisdiction, all
arising-under claims are gone and only the state law claims
remain; in the case of 1332 jurisdiction, all diverse claims are
gone and only non-diverse impleaded/joined/intervened claims are
left
d. in exceptional circumstances, blah, blah, blah.

6. 28 U.S.C. § 1367(b): Limitations on Ancillary Jurisdiction
Where the subject mattter is based on diversity, the original
plaintiff cannot sue non-diverse parties impleaded under Rule 14,
joined under Rules 19 (necessary/indispensable) or 20
(permissive), or who have intervened under Rule 24 (as of right or
permissive), nor can additional plaintiffs proposed to be joined
under Rule 19 or seeking to intervene under Rule 24 bring non-
diverse claims.

7. 28 U.S.C. § 1367(c): Tolling the Statute
While a pendent/ancillary claim is in federal court and for 30
days thereafter (or such longer period as permitted by state law)
the statute is tolled.

H. “DOES THIS LOOK LIKE SURROGATES COURT TO YOU?”
On a common law basis, Federal judges will not touch divorce or
probate matters with a ten-foot pole, even if the parties are
diverse or they try to dress them up as federal matters.

Probably the quickest route to Rule 11 sanctions imaginable would
be to present a diverse divorce to the S.D.N.Y., “good faith”
arguments for the reversal of current law notwithstanding. One of
the few remaining satisfactions in being a federal judge is that,
while one may be required to listen to day after day of testimony
on Tommy Pitera’s dissection techniques, at least one knows that
the words “Farrow Previn” will never be heard in ones courtroom.

XXXVIII. Removal
Feggedaboudit.

XXXIX. E[e]rie: It’s Creepy and It’s Kooky/It’s Really Kinda
Spooky/It’s altogether Ooky/The Erie Doc-tuh-rin

A. GENERALLY (DA-DA-DA-DUH SNAP SNAP)
Under the doctrine of Eerie, a Federal court deciding a state law
claim is bound by the statute law and decisional law of the
relevant state.

The Eerie decision located the basis for the doctrine in both the
Rules of Decision Act (ordering Federal courts to apply state law,
including, per Eerie, decisional law) and the Vth Amendment Due
Process Clause or some other unclear constitutional thing, maybe
the Xth Amendment, or something. Eerie thus could not be over-
ruled by Congress even if it did rewrite the RDA, and nobody could
even figure out what section of the Constitution needed to be
amended if they tried. Talk about carved in granite!

B. ROLE OF FEDERAL COURTS UNDER EERIE (DA-DA-DA-DUH SNAP SNAP)
The federal courts (up to and including the Supremes) are to act
like lower state courts with respect to the decisional law of the
highest state court; this leaves a lot of flexibility, since the
federal court need not mechanically apply stale higher court
precedents.

C. SURVIVAL OF FEDERAL COMMON LAW (DA-DA-DA-DUH DA-DA-DA-DUH
DA-DA-DA-DUH SNAP SNAP)

1. Generally
If the area is one of substantial federal interest (interstate
commerce, &c.) the court will apply federal common law to it even
if the claim is brought under state law.
2. Rights of the Sovereign
Where the law would determine the rights of the sovereign (e.g.,
commercial paper of the United States), and there is need for a
uniform Federal rule (as opposed to situations in which the
application of disparate state standards will not impede an
important governmental purpose), Federal common law will apply.
3. Federal Pre-emption
a. Generally
Where the area of law is controlled by Federal statute, all claims
in the area will be decided under Federal common law, whether or
not the claim is pled as a state law claim.
b. Explicit and Implicit Pre-emption
The pre-emption of the area may be explicit (e.g., ERISA/LMRDA
pre-emption provisions) or implicit (the Congress has passed so
much legislation in the area that there is no longer room for the
local law to operate).

D. HANA V. PLUMER FEDERAL RULE ANALYSIS
1. Is it an FRCP “R”ule?
Is the Rule a Federal Rule of Civil Procedure (as opposed to a
local rule, or non-statutory rule), enacted under the Rules
Enabling Act?

a. Is it Constitutional?
Is the rule Constitutionally valid? If it deals solely with
procedure, or items in the procedure/substance grey area it will
be considered a priori constitutionally valid.

b. Is it Valid under the Rules Enabling Act?
Is a rule valid under the REA, or does it create or destroy
substantive rights? Incidental impact on substantive rights will
not destroy the validity of the Rule.

2. Is there a Conflict Between the FRCP Rule and the State
Rule?
a. Direct Conflict between the FRCP Rule and the State Rule
If the Federal Rule of Civil Procedure directly conflicts with the
local statute, the Federal Rule controls (assuming it passed the
test of being a valid Federal Rule).

b. Reconciliation of the Federal Rule and State Rule
If the two may be reconciled, then both apply (e.g., permitting an
action to commence Federally upon filing, but tolling the statute
of limitations only upon personal service; permitting a
shareholder derivative suit to go forward based on the FRCP but
also requiring the posting of bond required by local law).

3. Non-FRCP “r”ules in Conflict with State Rules/Law
a. Generally
If the rule is merely a “little-r” rule, the Federal “r”ule will
control unless its application over the state rule would lead to
forum shopping and unfair treatment of local and out-of-state
plaintiffs, the twin Erie evils.
b. Erie Analysis
The conflict of the rules and the potential for causing forum
shopping will be analyzed based on whether use of the Federal rule
would lead litigants in general to prefer to file their suits in
the Federal rather than state forum. The test is not whether
application of a given “r”ule would be outcome determinative in a
given case.

E. FEDERAL STATUTE ANALYSIS
In cases where the “Rule” is actually a statute (e.g., transfer
under 28 U.S.C. § 1404), the following analysis will apply:
1. Does the situation fall within the ambit of the statute?
2. Is the statute Constitutional?
If so the Federal statute will control.

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