LAW SCHOOL ESSENTIALS FEDERAL CIVIL PROCEDURE PROFESSOR JOHN C. JEFFRIES, JR. UNIVERSITY OF VIRGINIA SCHOOL OF LAW

LAW SCHOOL ESSENTIALS FEDERAL CIVIL PROCEDURE PROFESSOR JOHN C. JEFFRIES, JR. UNIVERSITY OF VIRGINIA SCHOOL OF LAW A. Success n an Exam INTRODUCTION TO FEDERAL JURISDICTION AND PROCEDURE 1. Learn the Subject Matter 2. Prepare fr the Exam B. Overview Nte 1: There are several tpics that are cvered in mst (but nt all) Civil Prcedure curses. Adapt these lectures as apprpriate fr yur specific curse. 1. Persnal Jurisdictin 2. Subject Matter Jurisdictin 3. Erie Railrad and State Law in Federal Curt 4. Pleadings and Amendments t Pleadings 5. Jinder f Claims and Parties 6. Discvery 7. Mtins Practice 8. Preclusin C. Prcedural Due Prcess All prcedural rules must satisfy Prcedural Due Prcess Basically, this requires ntice and the pprtunity t be heard Issues regarding the timing f hearings and the adequacy f ntice are gverned by the balancing test: The individual interests at stake and the value f the prcedure v. the gvernment s interest in efficiency

A. Persnal Jurisdictin (PJ) 1. In General BASIC PERSONAL JURISDICTION GENERAL IN PERSONAM JURISDICTION Cncerns the curt's pwer t adjudicate the rights and liabilities f this defendant Smetimes referred t as territrial authrity t adjudicate Questins f PJ always cncern the. Curt always has pwer ver defendants in its territry Example 1: A defendant served in State X can generally be sued in State X. PJ becmes an issue when dealing with an ut f state defendant. PJ is an issue in any curt, whether state r federal Generally, state curts and federal curts fllw the same rules fr persnal jurisdictin. Federal curts typically use the lng arm statutes f the states. Overview: Every PJ issue invlves tw questins (bth must be addressed): 1) Has the particular basis fr exercising persnal jurisdictin ver an ut f state defendant been by statute r by rule f curt? 2) Is the particular basis fr exercising persnal jurisdictin permitted by the? 2. Types f Persnal Jurisdictin : against the persn : against the thing : srt f against the thing B. In Persnam Jurisdictin 1. Grunds fr Asserting General In Persnam Jurisdictin a. Service f prcess n the defendant while physically present in the state PJ ver the defendant fr any claim whatsever Exceptins: Presence prcured by r ; r Defendant came int the state ONLY in bedience t a summns 2 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

b. Permanent residence Suffices even if the defendant is nt in state when served c. Fr Crpratins Can always be sued in the state r states in which it is Can always be sued in the state f its The "nerve center" f the cmpany r the executive ffices 2. General In Persnam Jurisdictin Under the abve grunds fr PJ, a defendant can be sued in the state n any claim, even ne that arse frm activities elsewhere. Called persnal jurisdictin C. Specific In Persnam Jurisdictin Based n the statute Gives curts in persnam jurisdictin ver ut f state defendants wh have sme incidental cntact with the state Claim must arise frm the cntact with the frum state Every state has a lng arm statute. Many states say that their lng arm statutes extend as far as the. Other states enumerate particular activities that subject the defendant t PJ. Fr example: Any act r missin in the state causing injury t either persn r prperty here r elsewhere Any act r missin the state causing injury t persn r prperty here, prvided that the defendant cnducted sme activities here Any claim arising ut f a cntract t perfrm in this state r t pay smene in this state t perfrm services elsewhere Any claim arising ut f a cntract t t r frm this state, r arising ut f the shipment f such gds Any claim regarding lcal prperty Any actin against a directr r fficer f a dmestic crpratin Any cntract f insurance where the plaintiff is a resident f this state where the claim arse r the event giving rise t the claim tk place Exam Tip 1: Almst everything is cvered by a state's lng arm statute, s lng as the claim arises ut f the transactin invlving that state. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 3

D. Cnstitutinal Aspect Due Prcess Clause Internatinal She persnal jurisdictin ver an ut f state defendant requires between the defendant and the frum state. Ask whether it wuld be t sue the defendant in the state? Sufficient minimum cntacts such that it is cnsistent with traditinal ntins f fair play and substantial justice t sue the defendant here. In assessing minimum cntacts, curts lk fr a by the defendant f the prtectins f the frum's laws. Cntacts between the frum and the d NOT suffice. Even when minimum cntacts exist, jurisdictin must be reasnable and fair. E. Imprtant Cases Exam Tip 2: The minimum cntacts Due Prcess test is nt always clear. Usually, there will be gd arguments n bth sides f whether the exercise f persnal jurisdictin cmplies with Due Prcess. The analysis usually beings with Internatinal Shes. But, there are ther imprtant cases: Wrld Wide Vlkswagen, Burger King, Asahi, and McIntyre Machinery v. Nicastr. 1. McIntyre Machinery v. Nicastr (2011) Prducts liability case invlving a machine manufactured in the United Kingdm that injured smene in NJ. Manufacturer had n activity r cntact with NJ ther than the fact that ne f the machines it manufactured ended up in NJ. Questin: Des putting a gd int the stream f cmmerce make the manufacturer amenable t suit wherever the gd freseeably shws up? Or, in additin t freseeability, des the defendant have t d smething t purpsefully avail itself f the prtectin f the state s laws? Hlding: (Split decisin) Merely intrducing gds int the stream f cmmerce des nt make yu liable wherever the gd freseeably shws up. The defendant must have dne smething mre hwever slight t purpsefully avail itself f the prtectin f the frum s laws. Purpseful availment includes: sending a int the jurisdictin, sliciting business in that jurisdictin, the gds in that jurisdictin, and delivering gds t users in that jurisdictin. 2. Daimler v. Bauman (2014) Limited the reach f general in persnam jurisdictin 4 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

Plaintiff purchased a Mercedes frm a Mercedes subsidiary in Argentina. Plaintiff sued Daimler in CA, claiming that the parent cmpany was at hme in CA, s was subject t general jurisdictin there. Hlding: The cnnectin between the U.S. subsidiary and the subsidiary in Argentina was t remte t exercise PJ ver the parent crpratin withut vilating Due Prcess. Nte that it is unclear hw much Daimler limited general jurisdictin; it at least applies t internatinal issues. Exam Tip 3: 1) Remember t discuss TWO key questins: (i) Is this assertin f jurisdictin authrized by statute r rule f curt? (ii) Is it permitted by the federal Cnstitutin? 2) Keep in mind the distinctin between general and specific in persnam jurisdictin. Specific jurisdictin under the lng arm statute reaches nly claims arising ut f a cntact with the state. General jurisdictin is based n presence, dmicile, state f incrpratin, r principal place f business, and allws suit n any claim whatever, regardless f where it arse. 3) In analyzing whether persnal jurisdictin is cnsistent with the minimum cntacts test and is reasnable, remember t refer t the majr cases yu studied in class by name. Additinally, refer t any thery mentined by yur prfessr as t hw such questins shuld be analyzed. 4) If yu get an essay questin abut persnal jurisdictin, make sure t lk fr ther issues raised by the same facts (such as subject matter jurisdictin r multi party litigatin). ADVANCED PERSONAL JURISDICTION IN REM, QUASI IN REM, AND NOTICE A. In Persnam Jurisdictin (cnt'd) 1. Cnsent Defendant can cnsent by in defense. Cnsent can als be given in advance by. Cnsent can be based n appintment f fr receiving service f prcess. 2. Waiver An ut f state defendant cannt cme int the state, litigate, and then bject t persnal jurisdictin. Vluntarily litigating n the merits any bjectin t lack f persnal jurisdictin (i.e., a general appearance). A defendant waives any bjectin t lack f persnal jurisdictin by n the merits befre raising that claim. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 5

Federal Rules: A defect in persnal jurisdictin must be raised at the r it is waived. "First pprtunity" a mtin t if the defendant chses t file ne, OR the, if the defendant chses nt t file a mtin t dismiss (whichever is filed first). 3. Federal Exceptins Generally, federal curts fllw the persnal jurisdictin law (lng arm statute) f the states in which they sit. Special federal rules that extend persnal jurisdictin beynd state bundaries: Federal Interpleader Act ("statutry interpleader") authrizes natinwide service f prcess; and Multiple claimants t a single prperty The Bulge Prvisin f the Federal Rules authrizes service anywhere within miles f the federal curthuse, even if in anther state, in tw situatins: Impleading third party defendants under Rule 14; and Jining under Rule 19. B. In Rem Jurisdictin Suit against a thing (the res), rather than a persn Applies against any kind f prperty, real r persnal, s lng as the prperty is lcated in (i.e., the curt has territrial authrity ver the prperty) C. Quasi In Rem Jurisdictin Seizes in state prperty t frce an ut f state defendant t litigate an unrelated claim Shaffer v. Heitner quasi in rem is subject t the same cnstitutinal cncept f applicable t in persnam jurisdictin Nt an imprtant surce f jurisdictin tday D. Ntice and Service f Prcess 1. In General Persnal service n the defendant in the frum state des tw things: 1) Establishes the defendant's in the state; and 2) Gives the defendant. 6 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

2. Persnal Service Used t assert jurisdictin Shuld als be used fr in rem r quasi in rem actins when the f an interested party is knwn. 3. Methds f Service Three main methds: t the defendant; Leaving the summns at the defendant s with a persn f suitable age and discretin; r Delivery t an authrized, if ne has been appinted. In additin, service may be made by any methd authrized by where the federal curt sits. 4. Service fr In Rem Actins Must make effrt t lcate all the claimants t the prperty and serve them persnally If yu cannt lcate r identify claimants, then yu can rely n ntice by. BASIC SUBJECT MATTER JURISDICTION FEDERAL QUESTION AND DIVERSITY JURISDICTION A. Federal Subject Matter Jurisdictin (SMJ) 1. In General Cncerns the pwer f the curt t decide Generally, the persnal jurisdictin f federal and state curts is the same, but it is cmpletely different fr subject matter jurisdictin. Federal curts have limited subject matter jurisdictin. State curts are generally curts f SMJ. The general jurisdictin f state curts extends t claims based n federal law. State and federal curts generally have jurisdictin. Federal curts are curts f SMJ. The basis fr SMJ must be affirmatively in every case and if challenged, must be. 2. Waiver There is n f lack f SMJ. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 7

Lack f SMJ cannt be cured by the defendant s r failure t bject 3. Objectin t SMJ Lack f SMJ can be raised by any party, including the party wh. Lack f jurisdictin can be raised at any time, including fr the first time. 4. Tw Main Categries f SMJ 1) 2) B. Federal Questin Jurisdictin 1. Basis Exists if the claim arises under 2. Well pleaded Cmplaint claim must be based n federal law. Lk t the well pleaded cmplaint a cmplaint that says all it needs t say and n mre Luisville & Nashville R.R. v. Mttley The Mttleys were injured n the railrad line; gave up their claim t sue in exchange fr unlimited rides n the train The railrad stpped hnring the passes, claiming that a change in the federal law made the lifetime passes invalid. The Mttleys sued fr specific perfrmance t cmpel the railrad t hnr their lifetime passes; in their cmplaint, the Mttleys stated that the railrad was claiming a federal law prevented them frm hnring the passes. Hlding The curt did nt have federal questin SMJ; the Mttleys case invlved specific perfrmance f a cntract, which arises under state law The railrad had an argument under federal law, but this was a defense C. Diversity Jurisdictin 1. Basis Cvers disputes between citizens f different states r citizens f a state and a freign cuntry, if the amunt in cntrversy exceeds, exclusive f interest and csts. Exceptins: and actins. 8 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

2. Diversity f Parties a. General rule Requires cmplete diversity Every citizenship n the plaintiff s side must be different frm every citizenship n the defendant s side f the case. Example 2: Plaintiff 1 frm PA and Plaintiff 2 frm PA sue Defendant frm NY = cmplete diversity. Example 3: Plaintiff 1 frm PA and Plaintiff 2 frm NY sue Defendant frm NY = lacks cmplete diversity. b. Minimal diversity (exceptin t cmplete diversity requirement) Special statutes allw minimal diversity (any plaintiff is diverse frm any defendant), including: Cases brught under the Federal Interpleader Act; Class actins with mre than $ at stake; and Certain interstate mass trts c. Time fr determinatin f diversity Diversity must exist when the was filed. It des nt matter whether there was diversity when the cause f actin arse. 3. Citizenship f the Parties a. Individuals Every individual is a citizen f the state f. Dmicile residence with the intentin t remain (permanent residence) A persn can have nly ne dmicile at a time Aliens are citizens f the cuntry f their citizenship b. Representative Parties The citizenship f a representative party, such as a trustee, usually cntrls. Exceptin: Fr the legal representative f an estate (e.g., executr), the citizenship f the cntrls. Exceptin: Fr the legal representative f an infant r an incmpetent persn (e.g., guardian), the citizenship f the r the cntrls. c. Class Actins The citizenship f the named parties cntrl. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 9

There must be cmplete diversity fr all the named parties, but nt fr the ther class members. d. Crpratins Crpratins can have several citizenships at nce: 1. State(s) in which it is ; and 2. State where it has its. e. Unincrprated Assciatins Citizenship f every partner r every member f the unin cunts. It is very difficult t bring a diversity actin against these entities. 4. Devices t Create r Destry Diversity There are several actins that can create r defeat diversity. Fr example: Mving frm ne state t anther A cmpany culd be acquired by anther cmpany Selling r assigning a claim These actins are permitted, s lng as they are nt dne slely fr that purpse (i.e., shams r fraud). The partial assignment f a claim fr purpses f debt cllectin cunt fr diversity. 5. Amunt in Cntrversy a. Rule Jurisdictinal amunt fr diversity generally must exceed. Test: the plaintiff s allegatin is sufficient. Only when there is a legal certainty that the amunt will nt be met will the case be dismissed fr lack f jurisdictinal amunt. b. Aggregatin When can smaller claims be heard (AIC under $75,000+)? When ne plaintiff sues ne defendant and the aggregated claims exceed $75,000; r When multiple plaintiffs enfrce a single right r title against ne defendant and the aggregated claims exceed $75,000; r c. Cunterclaims Des a cunterclaim in a diversity case have t satisfy the jurisdictinal amunt? N, if the cunterclaim is. 10 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

Yes, if the cunterclaim is. ADVANCED SUBJECT MATTER JURISDICTION SUPPLEMENTAL AND REMOVAL A. Supplemental Jurisdictin (Pendent and Ancillary Jurisdictin) 1. In General Generally, a federal curt with subject matter jurisdictin ver ne claim can hear additinal claims (ver which the curt wuld nt have had subject matter jurisdictin) if all claims cnstitute the same. The claims must share a cmmn nucleus f perative fact. Permitted under 28 U.S.C. 1367 2. Federal Questin Issue: whether a federal curt can hear state law claims Example 4: Federal and state claims against defendant A, arising ut f the same transactin r ccurrence. The federal curt may hear bth claims if the tw claims share a cmmn nucleus f perative fact. Example 5: Federal claim against defendant A and a related state claim against defendant B. The federal curt may jin defendant B and hear bth claims because f pendent r supplemental jurisdictin arising frm the federal claim against defendant A. Nte: supplemental jurisdictin is a questin f pwer. Whether t exercise that pwer is. 3. Diversity Jurisdictin Issue: whether a federal curt can hear additinal claims that d nt satisfy the jurisdictinal amunt r claims against additinal parties that d nt satisfy cmplete diversity. a. Cunterclaims A federal curt sitting in diversity has supplemental jurisdictin ver cunterclaims. A cmpulsry cunterclaim arises ut f the same transactin r ccurrence as the main claim (it shares a cmmn nucleus f perative fact). A cmpulsry cunterclaim can be heard regardless f A federal curt sitting in diversity can hear a cunterclaim nly if it satisfies the jurisdictinal requirements: 1. There must be cmplete diversity; and LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 11

2. There must be mre than in cntrversy b. Crss claims A federal curt may exercise supplemental jurisdictin ver a crss claim (a claim by a plaintiff against a c plaintiff, r by a defendant against a c defendant) s lng as the crss claim and the main claim share a. It des nt matter that the c plaintiffs r c defendants are nt diverse r that the crss claim is less than $75,000. c. Permissive jinder If ne diverse plaintiff satisfies the jurisdictinal amunt, ther diverse plaintiffs with claims against the same defendant can be heard under supplemental jurisdictin if their claims share a cmmn nucleus f perative fact, regardless f amunt. Example 6: Class Actins: If there is a class actin with five named parties, all f whm are diverse frm the defendant, but nly ne f whm suffered injuries exceeding $75,000, the claims f all the thers can be heard as well if all claims arse frm the same cmmn nucleus f perative fact. (This is in additin t the jurisdictinal prvisin regarding class actins where the ttal amunt in cntrversy exceeds $5 millin). The same is true even if the plaintiffs d nt jin as a class, but merely permissively jin as plaintiffs in the same actin. If ne plaintiff meets the jurisdictinal minimum, and all plaintiffs meet cmplete diversity, the curt can hear all the claims with the same cmmn nucleus f perative fact. 4. Exceptins t Supplemental Jurisdictin in Diversity Cases Mst additinal claims and parties can be brught int a diversity actin nly if cmplete diversity is maintained and the additinal claims exceed $75,000. Claims by plaintiffs against under Rule 14; Claims by plaintiffs against additinal jined as necessary parties under Rules 19 and 20; Claims by under Rule 24, as well as claims against such ; and Claims by plaintiffs jined invluntarily under Rule 19. 5. Summary Supplemental jurisdictin wrks fr federal questin cases acrss the bard and in diversity cases in three situatins: 12 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

1. ; 2. ; and 3. Vluntary jinder f plaintiffs when there is cmplete diversity with all named plaintiffs, ne f them has a claim exceeding $75,000, and all claims share a cmmn nucleus f perative fact. B. Remval 1. Intrductin Mves case frm t curt There is n mechanism fr transferring a case frm t curt. 2. General Rule Remval is prper ONLY if the case culd have riginally been brught in. Only can remve. 3. Federal Questin Remval based n federal questin jurisdictin is prper nly if the plaintiff s claim is based n federal law. Example 7: The Mtleys filed an actin in state curt fr specific perfrmance f a cntract invlving lifetime passes. The railrad asserts a defense based n a federal statute, and tries t remve t federal curt. There cannt be remval because the plaintiff s case is based n state law. 4. Diversity Remval based n diversity jurisdictin is prper nly if: There is cmplete diversity; The amunt in cntrversy exceeds $75,000; The case is brught in a state f which n is a citizen; and Remval must be within f the cmmencement f the actin in state curt (unless the plaintiff acted in bad faith t prevent remval). Diversity must exist when the cmplaint is filed and when the case is remved. 5. Remval Prcedures Ntice f remval is filed in the curt, cpy t the curt. Case is remved autmatically the authrity f the state curt ceases LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 13

If the case was remved imprperly, the plaintiff can file a petitin fr in the federal curt. A hearing is held n the petitin Exam Tip 4: Remval is an attractive tpic t law schl prfessrs. A remval questin allws yur prfessr t test several subjects at nce: the law f remval, the subject matter jurisdictin f federal curts (either whether the plaintiff s claim is a questin f federal law r diversity jurisdictin), and supplemental jurisdictin. ERIE RAILROAD AND CHOICE OF LAW A. Chice f Law The Erie Dctrine 1. Federal Law in State Curt State curts adjudicate federal law unless Cngress makes federal jurisdictin exclusive. State curts fllw federal substantive law when adjudicating federal questins. Generally, state curts fllw state prcedural laws, even if a federal claim is being litigated. 2. State Law in Federal Curt Federal curts mst cmmnly adjudicate state law in diversity cases Als thrugh supplemental jurisdictin, state law cmpulsry cunterclaims, state law crss claims, r third party claims as they arise in federal cases. Federal curts apply state law (per Erie). Federal curts almst always adjudicate state issues using prcedures. 3. State Substantive Law v. Federal Prcedural Law Erie is a rule f issues nt cases; it des nt depend n the basis f federal jurisdictin. The key is when state law applies t the issue. State substantive law: substantive law creates and impses bligatins. Erie includes statutes f and as substantive law. Federal prcedures: federal curts almst always fllw federal prcedure fr adjudicatin f state law claims. Federal prcedures include anything cvered by the Federal Rules f Civil Prcedure. 14 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

B. Substance/Prcedure Distinctin under Erie 1. Histry In the past, federal curts adjudicating state law claims had t apply state prcedural law if it was determinative. Hwever, any rule, n matter hw blatantly prcedural, culd be seen as utcme determinative, s this test was abandned. Curts then tk a balancing apprach, balancing the federal and state interests In applicatin, this balancing test prduced t much uncertainty. 2. Hanna v. Plumer (1965) The Federal Rules f Civil Prcedure apply in federal curt, n matter whether the claim is based n state r federal law. Limitatin: In rder t use a federal rule, the rule must be valid First, ask whether there is a federal prcedural rule gverning the issue. If s, apply the federal rule. Secnd, if there is n federal prcedural rule gverning the issue, engage in the between federal and state interests. This test shuld cnsider the twin aims f Erie: T avid ; and T avid the inequitable administratin f justice. 3. Gasperini v. Center fr Humanities (1996) The curt purprted t fllw Hanna, but it read the federal prcedural rule very narrwly in rder t prtect a state interest. This apprach seemed t cmbine steps 1 and 2 discussed abve, rather than using the mechanical apprach f applying the federal prcedural rule. 4. Analysis Exam Tip 5: The key is nt t reach a particular cnclusin, but in the analysis. Erie applies in federal curt when an issue might be prcedural (NOT statutes f limitatins r burdens f prf) and requires a tw step analysis: First, cnsider whether there is a Federal Rule f Civil Prcedure n pint if s, it applies. Secnd, if nt, balance the state and federal interests at stake, and the risk f prmting frum shpping and the inequitable administratin f justice. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 15

C. Interstate Applicatin f Erie: Erie deals with federal curts fllwing law (vertical chice between federal and state law). Law f cnflicts (r chice f law) deals with state curts fllwing state law (hrizntal chice between the frum state and anther state s law). Klaxn v. Stentr Electric. Mfg. C. (1941): Hlding: a federal curt adjudicating state law under Erie must fllw the cnflicts rules (chice f law rules) f the state in which it sits. In ther wrds, if Erie cmpels the federal curt t apply state law, and there is sme dubt abut which state s laws shuld gvern, the federal curt shuld apply the rules f the state. Klaxn The questin was whether a successful plaintiff in a state law cntract actin was entitled t pre judgment interest. The cntract was made and apparently was t be perfrmed in New Yrk and New Yrk authrized prejudgment interest. But the case was brught in a federal curt situated in Delaware. Delaware did nt authrize pre judgment interest. The Supreme Curt said that the law f the frum state (Delaware) gverns the chice f which state s law shuld apply. In ther wrds, the federal curt must use Delaware s chice f law rules t determine whether Delaware r New Yrk law wuld apply t the issue f pre judgment interest. Erie tried t eliminate frum shpping between state curt and federal curts by making federal curts apply state law. Hwever, Erie expanded pprtunities fr frum shpping amng states. Editr's Nte 1: The Prfessr misspke when summarizing the impact f Erie and Klaxn. Erie was the case that eliminated intrastate frum shpping, but expanded frum shpping amng federal curts sitting in different states. Klaxn attempted t remedy that by requiring federal curts t use the state s chice f law rules. D. Substance vs. Prcedure in the Law f Cnflicts (State State Law) Under a state s chice f law rules, a state curt might be required t apply the substantive law f anther state, but the state curt always fllws its wn prcedures. The substance/prcedure distinctin in federal state chice f law under Erie is different frm the substance/prcedure distinctin in state state chice f law under cnflicts. Example 8: There is an autmbile accident in Maine, and ne driver sues the ther in federal curt in Massachusetts, based n diversity jurisdictin. Maine and Massachusetts have different rules regarding the burden f prf regarding cntributry negligence. Maine requires that the defendant prve that the plaintiff was cntributrily negligent, while Massachusetts requires the plaintiff 16 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

t disprve cntributry negligence. Because the accident ccurred in Maine, the Massachusetts curt wuld fllw Maine law as t substantive issues (i.e., what is negligence). Hwever, the Massachusetts curt wuld treat the burden f prf as prcedural, and wuld therefre fllw its wn rule requiring the plaintiff t disprve cntributry negligence. The federal district curt sitting in Massachusetts fllws Massachusetts law as t burden f prf because, under Erie, burden f prf is substantive (state law created the underlying trt claim), and Massachusetts is the frum state. Massachusetts state law treats burden f prf as prcedural under its chicef law rules. Because burden f prf is prcedural, Massachusetts applies its wn rule. S, the federal curt fllws Massachusetts law regarding cntributry negligence. A. Ntice Pleading 1. In General PLEADING Histrically, pleading was difficult because each kind f claim had its wn rules f pleading. One f the chief aims f the Federal Rules f Civil Prcedure was t standardize and simplify civil pleading. 2. Pleadings a. Cmplaint States a claim fr Either the plaintiff r the defendant may file a cmplaint against a c party (a cmplaint). The defendant can use a cmplaint t a third party defendant. b. Answer Filed by the ppsing party t respnd t the cmplaint Must cntain respnses t the allegatins f the cmplaint May als cntain, and in sme cases, c. Reply An answer t a cunterclaim 3. Claim fr Relief Recvery is nt limited by the claim fr relief, except fr default judgments. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 17

4. Ntice Pleading Pleadings need nt detail all the evidence nr spell ut the legal thery Pleadings need nly give f the pleader s cntentin. A statement f the claim will suffice. Mst things can be alleged generally, but sme things must be specially pleaded. 5. Special Pleading Special pleading matters must be pleaded with sme particularity, detail, and specificity. Matters that must be specially pleaded include: Fraud r ; and Special damages, i.e., damages that d nt rdinarily flw frm the wrng alleged. Example 9: Yu are hit by an autmbile and yu claim medical expenses, persnal injury, pain and suffering, and lst wages all thse things may be alleged generally. But let s say yu allege in yur cmplaint that yu missed yur clsing sessin, yu culdn t sign yur clsing dcuments, and yu have enrmus ecnmic damages. That is nt the type f damages t rdinarily flw frm the accident, s thse damages must be specially pleaded. 6. Answer (cnt'd) Must cntain respnses; may cntain affirmative defenses and cunter claims Respnses: Admit, deny, r lack f sufficient knwledge Failure t respnd is an. Affirmative defense defenses which require. Include: assumptin f risk, cntributry negligence,, fraud, release,, and statute f limitatins. Basically, any defense that has a name is likely an affirmative defense and must be pleaded in the defendant s answer. B. Amendments t Pleadings 1. As f Right May be had within 21 days f service f that pleading, unless that time is cut shrt by the defendant s respnse. 2. By Leave f Curt After the 21 day perid, leave t amend can be sught frm the curt Leave t amend shuld be. Leave t amend can be denied fr any gd reasn, fr example: 18 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

Repeated amendments, r the defendant has relied n the prir cmplaint and wuld be unfairly impacted by the amendment. 3. Amended Pleadings and Relatin Back In sme circumstances, an amended pleading is deemed t t the date f the riginal pleading. If the statute f limitatins has nt yet run, the date des nt matter. If the statute f limitatins has run, then relatin back determines whether the amended pleading is timely. An amendment that adds a claim r defense relates back t the date f the riginal filing if it cncerns the same cnduct, transactin, r ccurrence as the riginal pleading. The key is. 4. Amendment t Add a Party An amendment t add r change a party must cncern the same as the riginal pleading, AND The party t be added must have r had reasn t knw that the actin shuld have been brught against him. Example 10: Parent Cmpany and Subsidiary: Suppse a suit is filed against a crprate subsidiary, and the pleading subsequently is amended t name the parent cmpany. Meanwhile, the statute f limitatins runs. Is the actin time barred?. The actin is nt barred, the amendment cncerned the same transactin and the riginally filed suit gave the parent. Example 11: Changing Capacity f Plaintiff: Suppse suit is filed by the head f a small business wh realizes he cannt file suit withut bard apprval. The bard des ratify, but by then the statute f limitatins has run. The actin is nt barred. Example 12: Crrecting Mistake as t Identify f Defendant: Suppse a plaintiff slips and falls n a sidewalk in a shpping area but mistakenly sues the wrng stre. After the statute f limitatins has run, the plaintiff realizes the mistake and tries t amend the cmplaint t sue the crrect stre. The actin is barred; the new defendant had n reasn t knw, n ntice, f the riginal actin. The amended pleading is time barred. N relatin back. C. Recent Decisins 1. Pssible Change in Ntice Pleading Ntice pleading allwed almst any cmplaint t be sufficient t initiate discvery, which is time cnsuming, expensive, and burdensme t the defendant. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 19

Tw recent cases have tried t cut back n ntice pleading by requiring that the cmplaint state a case fr recvery. 2. Bell Atlantic C. v. Twmbly (2007) An anti trust case where the plaintiffs alleged that the defendants had made agreements in restraint f trade The plaintiffs had n evidence that the defendants made such an agreement; they merely had evidence that the defendants had the pprtunity t make such an agreement. The main purpse f the cmplaint was t initiate discvery Supreme Curt: the cmplaint shuld be dismissed because the allegatins as stated were nt sufficiently plausible. A trial curt shuld ask whether the cmplaint was sufficiently t allw the suit t g frward. 3. Ashcrft v. Iqbal (2009) Plaintiffs sued the Attrney General and varius members f the FBI, but the allegatins were exceedingly thing. The curt ruled that the cmplaint shuld nt g frward because it did nt cnvey a plausible case that the plaintiffs wuld win. 4. Imprtance f the Tw Cases Curtail ntice pleading Allw district judges t dismiss, befre discvery, cmplaints that they think are bviusly unfunded. Objectins: The Supreme Curt essentially changed the federal rules n pleading withut using the frmal prcess fr changing the rules. Requiring plausible allegatins befre discvery will result in the dismissal f sme cmplaints that have merit. Exam Tip 6: The mst likely way yu wuld be tested n these cases is in an issue sptting cntext. If yur prfessr has had a strng reactin t these cases ne way r anther, keep that in mind and discuss it n yur exam. D. Verificatin and Certificatin 1. Verificatin Mst pleadings are nt verified They are nt swrn and are nt required t be 20 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

2. Certificatin Pleadings (and all ther litigatin dcuments) must be by the This signature certifies that there is an apprpriate and basis fr filing that paper. The attrney certifies that, t the best f his r her knwledge, after inquiry: There is n imprper purpse; The legal cntentins are warranted by existing law r by a argument fr a change in the law; The factual allegatins have, r if nted, are likely t have supprt after discvery; Denials f factual allegatins have, r if nted, are reasnably based n lack f infrmatin r belief Imprper certificatin can be raised by the curt r a party, and can lead t dismissal r sanctins (usually the csts fr respnding are impsed n the attrney) DISCOVERY A. Mandatry Disclsures (Three Stages) 1. Initial Disclsures,, and cntact infrmatin f persns with discverable infrmatin; Cpies r descriptins f and things; Cmputatin f ; and agreement(s). 2. Experts Disclsure f all, with their qualificatins, publicatins, infrmatin n which they based their pinins, and cmpensatin 3. 30 Days befre Trial List f all witnesses and exhibits t be used. Nte 2: Mandatry disclsures are nt fllwed in all state curts, nr in sme U.S. district curts. N natinal cnsensus n mandatry disclsure. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 21

B. Scpe f Discvery 1. General Rule Relevance can discver anything that might be at trial r that might lead t smething that might be admissible at trial. Discvery is NOT limited t admissible evidence. 2. Exceptin #1: Evidentiary Privilege Anything cvered by an evidentiary privilege is NOT discverable (e.g., attrney client privilege). Evidentiary privilege refers t an affirmative prtectin against disclsure; it des nt apply t simple bjectins t admissibility. Hearsay is nt a true evidentiary privilege and is subject t discvery because it might lead t admissible evidence. 3. Exceptin #2: Wrk Prduct Rule The attrney wrk prduct rule prtects: and things (nt infrmatin); Prepared (nt pre existing materials); By r fr. Creates a immunity frm discvery (nt abslute). It can be vercme if the party seeking discvery can shw: 1. fr the dcument r thing; and 2. Cannt get it elsewhere. A simple shwing that it will cst mney is nt sufficient. Tw special cases: Yu can always get a cpy f yur wn, whether yu are a party r a mere witness. Yu can never discver the. 4. Experts a. Expert wh will testify at trial Final reprt is discverable; draft reprts usually are nt Cmmunicatins between expert and cunsel are generally nt discverable, except fr: The final reprt f the expert; paid t the expert; and 22 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

The facts and assumptins prvided by the lawyer as the basis fr the expert s pinin. b. Experts wh will nt testify at trial Almst n discvery can be had. 5. Prtective Orders Fr shwn, a curt can d whatever is necessary t prevent discvery frm being excessively burdensme r expensive. Curts have brad authrity t issue prtective rders, althugh they prefer nt t. C. Discvery Devices 1. Oral Depsitin Questins asked and answered rally and under. A party is limited t 10 depsitins, unless the curt allws mre. A depsitin is limited t ne day f seven hurs, unless the curt allws mre. T depse a party, must give stating when and where. T depse a mere witness, must have a. A subpena duces tecum requires the depnent t bring dcuments r things. Depsitins may be taken befre any ntary public wh is nt disqualified fr having sme interest. Almst always, the ntary public is als the stengrapher befre whm the depsitin is taken. 2. Written depsitin Questins given in writing t a hearing fficer wh asks them rally Rarely used 3. Written Interrgatries Questins asked and answered under ath. Usually limited t interrgatries, unless the curt allws mre. Parties can prvide access t recrds in respnse t interrgatries, s lng as nt unduly burdensme. 4. Discvery and Inspectin f Dcuments and Land Request t prduce and permit inspectin f things under the cntrl f If a witness has dcuments r land, must use a subpena duces tecum Request must be described with particularity 5. Physical and Mental Examinatin 1) Available nly against a LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 23

2) Only permitted when the party s physical r mental cnditin is 3) Only fr shwn. 6. Admissins A request fr admissins is useful fr streamlining trial. Failure t respnd within 30 days is an. Certificatin: respnses t requests fr admissins (and all ther dcuments) must be signed by the. Signature certifies that there is a reasnable basis and gd faith Admissins have n effect. Binding in the current case, but cannt be used in any future prceeding. D. Use f Discvery at Trial The admissibility f discverable evidence is gverned by the rules f evidence. Depsitins: The depsitin f an adverse party is almst always admissible as an admissin against interest The depsitin f a mere witness may be used t impeach the testimny f the witness at trial (prir incnsistent statement) The depsitin f a witness wh des nt testify at trial generally cannt cme in because it is hearsay. Hwever, there are exceptins t the hearsay rule, fr example: The depnent is dead; The depnent is beynd the curt s subpena pwer; The depnent has lst the ability t remember; The depnent is mre than 100 miles frm the trial E. Enfrcement Sanctins Curt has wide pwer and discretin t enfrce discvery rders. Discvery defaults resulting in immediate sanctins: Failure t attend ne s wn depsitin Failure t respnd t interrgatries Failure t respnd t a request fr dcuments r things In all ther cases, the party seeking discvery must seek an rder cmpelling discvery frm the curt. 24 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

MULTI CLAIM LITIGATION A. Same Plaintiff and Same Defendant N limitatin n jinder f claims between the same plaintiff and same defendant. In a diversity actin, a plaintiff can all claims against the same defendant t exceed $75,000. B. Cunterclaims 1. Cmpulsry Cunterclaims Cmpulsry cunterclaims must be pleaded nw r will be lst frever. A cunterclaim is cmpulsry if it arises ut f the as the riginal claim. N independent jurisdictinal base is required, and the statute f limitatins is nt a prblem if the plaintiff s claim is timely when it is filed. 2. Permissive Cunterclaims Unrelated t the riginal claim D nt arise ut f the same transactin r ccurrence Independent jurisdictin is required. MUST satisfy the jurisdictinal minimum in diversity cases. A permissive cunterclaim must cmply with the statute f limitatins. C. Crss claims Claims against c parties Must arise ut f the same as the main claim Crss claims cmpulsry. Exam Tip 7: Cunterclaims are highly testable because they allw prfessrs t test tw issues at nce. First, yu need t knw the difference between a cmpulsry and a permissive cunterclaim. Secnd, in federal curt, yu need t knw the effect n the jurisdictinal rules. A cmpulsry cunterclaim cmes under supplemental jurisdictin. A permissive cunterclaim requires an independent jurisdictinal base (federal questin r diversity). MULTI PARTY LITIGATION A. Jinder 1. Permissive Jinder f Parties Any number f plaintiffs may jin if they assert claims arising ut f the same transactin r ccurrence and there is a f law r fact. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 25

Any number f defendants may be jined in the same suit if the claims asserted against them arise ut f the same transactin r ccurrence and there is a cmmn questin f law r fact. NO party can be jined whse presence wuld destry. Every plaintiff must be diverse frm every defendant. If cmplete diversity is maintained, and if ne plaintiff claims mre than $75,000, ther plaintiffs with smaller claims can cme in thrugh supplemental jurisdictin. 2. Cmpulsry Jinder f Parties (by defendants) A necessary party is a persn wh is nt a party yet, but whse presence is necessary fr a. N party can be jined whse presence wuld destry. N party can be jined withut persnal jurisdictin. Bulge prvisin : a necessary party may be served within miles f the curthuse. If a necessary party cannt be jined, the curt decides whether the party is truly. The curt can dismiss the suit, r The curt can cntinue the suit withut the necessary party. B. Interventin (primarily by plaintiffs) Nte 3: Jinder deals with wh may and wh must be jined as a party, and the issue is almst always with jinder f defendants. Interventin deals with utside persns wh vlunteer t enter a lawsuit, and chiefly cncerns plaintiffs. Interventin as f right may be had when the utsider claims an interest in the subject matter f the lawsuit that may be by the dispsitin f the pending actin. Permissive interventin may be allwed by the curt whenever there is a f law r fact between the main claim and the intervener s claim. NO supplemental jurisdictin fr either kind f interventin. An intervenr must maintain and must have a claim wrth mre than. C. Interpleader 1. In General Purpse is t avid multiple liabilities n cmpeting claims t the same prperty Prperty is called the, and may be real r persnal, tangible r intangible. 26 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

The party pssessing such prperty is the. The parties wh claim an interest in the prperty are the. Offensive Interpleader when the stakehlder claims an interest in the prperty, he is called a stakehlder plaintiff and interpleads all claimants as defendants. Defensive Interpleader when the stakehlder defendant has been sued by a claimant, he interpleads ther claimants as plaintiffs. 2. Rule Interpleader (Rule 22) Establishes a remedy in a lawsuit that is therwise within the curt s jurisdictin Often ineffective because the curt cannt exercise persnal jurisdictin ver all the claimants 3. Statutry Interpleader Federal Interpleader Act Special jurisdictinal minimum f nly $ ; Allws service f prcess t btain persnal jurisdictin ver all the claimants; Venue is prper in any district where resides; and Subject matter jurisdictin is based n diversity. Exists when any tw claimants are frm D. Impleader (Third Party Practice) Allws a defendant t bring int the suit smene wh is r may be liable t the fr all r part f the claim against him. The impleaded party The riginal defendant defendant as against the plaintiff, and as against the third party impleaded defendant. Example 13: Cntributin Amng Jint Trtfeasrs. Tw trtfeasrs injure the plaintiff. The plaintiff sues ne but nt the ther. The sued defendant can implead the ther trtfeasr, nt because the ther trtfeasr may be liable t the plaintiff, but, given the right f cntributin, because she is r may be liable t the defendant fr part f plaintiff s claim. Example 14: Cntract Indemnificatin. A general cntractr makes cntracts with sub cntractrs. Each cntract requires the sub cntractr t reimburse (indemnify) the general cntractr fr any defect in that sub cntractr s wrk. If the wner sues the general cntractr, the general cntractr can implead the LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 27

1. Jurisdictin sub cntractr, wh may be liable t the general cntractr fr all r part f the wner s claim against him. In diversity actins, impleader falls under the curt s jurisdictin The citizenship f the impleaded third party and the amunt f the claim d nt matter Hwever, supplemental jurisdictin des nt extend t new claims by the riginal plaintiff against the third party defendant In rder fr the riginal plaintiff t bring a claim against the impleaded third party, the claim must have an independent jurisdictinal basis Impleader triggers the bulge prvisin fr persnal jurisdictin E. Class Actins In additin t all ther grunds f persnal jurisdictin, a third party defendant may be served within miles f the curthuse. 1. Prerequisites Exam Tip 8: Keep in mind whether yur prfessr discussed class actins as a means f dispute reslutin, r frm a mre public plicy standpint. f parties; questins f law r fact; f claims by the class representative; and Adequacy f representatin by the representatives lawyer. 2. Dismissal r Cmprmise Requires 3. Diversity Jurisdictin Exists if the are cmpletely diverse frm all defendants and if at least has a claim wrth $75,000+. 4. Class Actin Fairness Act Allws very large class actins, invlving mre than members and mre than at stake t be based n diversity (meaning any plaintiff is diverse frm any defendant). 28 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

MOTIONS PRACTICE A. Terminatin withut Trial Devices fr terminating litigatin withut trial: 1. Mtin t dismiss fr failure t state a claim n which relief can be granted (Rule 12(b)(6)); Challenges the legal sufficiency f the 2. Judgment ; Only used if the pleadings agree n the facts rare 3. ; Either the defendant r the plaintiff des nt appear 4. Vluntary dismissal; 5. Invluntary dismissal; and 6.. B. Vluntary Dismissal Ordinarily A plaintiff has a right t a vluntary dismissal (taking a nnsuit ) ONCE, at any time prir t the defendant s serving an answer r a mtin fr summary judgment. C. Invluntary Dismissal Usually a dismissal With prejudice bars re litigatin because it perates as a judgment n the merits Exceptins: There is a lack f ; Imprper venue; r Failure t jin an party. These are dismissed withut prejudice. May be impsed fr: Failure t prsecute, failure t cmply with the Rules f Civil Prcedure, r failure t cmply with a curt rder D. Summary Judgment 1. Relatin t Failure t State a Claim A mtin fr failure t state a claim under Rule 12(b)(6) tests nly the legal sufficiency f the plaintiff s claim. Summary judgment tests. LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 29

Summary judgment is apprpriate when the facts alleged wuld supprt recvery if true, but it is bvius that they are nt true. Summary judgment is apprpriate in the absence f factual supprt. 2. Partial Summary Judgment Summary Judgment can be granted fr the whle case r any part f it. That is, it can be granted: Only fr r against ; Only n certain claims; Only against ; r Only n particular issues. 3. Standard fr Granting Summary Judgment N as t any material fact and that the mving party is therefre entitled t judgment as a matter f law. This means that n culd find the ther way. 4. Supprting a Mtin fr Summary Judgment Must pint t particular parts f materials and evidence that wuld be admissible at trial Generally, statements must be : Affidavits; Respnses in a ; Answers t interrgatries; Dcuments; Stipulatins Pleadings are nt rdinarily swrn statements. Thus, mere assertins and denials in the pleadings d nt create a genuine dispute; there must be sme admissible evidence The swrn statements must be based n (nt hearsay). Example 15: Ethel sues Fred fr injuries suffered during an autmbile accident. Ethel mves fr summary judgment, which she supprts with an affidavit stating that she was walking dwn the street when Fred ran ver the curb and hit her with his Buick. If Ethel s allegatins are taken as true, Fred lses. S, Fred must defeat the mtin by creating a genuine issue f material fact. He cannt simply pint t his answer. Fred als cannt say he will call a witness wh will say Ethel is lying (that s hearsay). He must make a swrn 30 2017 Themis Bar Review, LLC LSE Federal Civil Prcedure

E. Trial by Jury statement based n persnal knwledge raising a genuine issue f material fact (e.g., he was in Philadelphia at the time). Issues traditinally tried at law still carry a right t jury trial. Issues traditinally tried in equity generally d nt carry a right t jury trial. There is n right t a jury trial fr issues tried in r admiralty. Equity includes and requests fr specific perfrmance If equity issues and legal issues verlap, try legal issues first t preserve the right f jury trial. Example 16: Plaintiff sues Defendant seeking an injunctin t stp his cnduct. Defendant cunterclaims fr damages. The suit is fr equity and the cunterclaim is at law. F. Mtin fr Judgment as a Matter f Law (frmerly Directed Verdict) In essence, this is a mtin fr summary judgment made after a jury trial has begun. Standard: If, viewed in the light mst favrable t the ppsing party, the evidence cannt supprt a, the mvant is entitled t judgment as a matter f law (n reasnable jurr culd find the ther way). If the case turns n the credibility f a witness, it must g t a jury. Made by the defendant at the clsing f the evidence, and then again at the clsing f all the evidence. G. Renewed Mtin fr Judgment as a Matter f Law after the Verdict (frmerly JNOV) A mtin made after. Standard is the same A prir mtin is required a mtin fr judgment as a matter f law must have been made at the clse f all the evidence. H. Mtin fr a New Trial Can be made at the same time as a renewed mtin fr judgment as a matter f law. Judgment as a matter f law is a determinatin. A new trial, hwever, may be granted in the sund discretin f the district curt fr varius reasns, including: An errr rendered the judgment ; There was that culd nt with rdinary diligence have been fund earlier; There was prejudicial miscnduct by a lawyer, party, r jurr; r LSE Federal Civil Prcedure 2017 Themis Bar Review, LLC 31