Author: Michael P.
School: Rutgers – Newark
Professor: Prof Gonzalas


Read p. 118-177

Why do we have the judicial branch



9 phases of litigation

1. pleading

initiating suit, putting people on notice, narrowing issues for parties and courts

a. complaints (P)

b. Rule 12(b)(6) – motion to dismiss from D*

c. answer (D)

d. Rule 12s – motion to strike, M.D.S.

e. Rule 12( c) – motion after answer*

2. discovery

engage in fact uncovering

3. summary judgment

Rule 56 – can reach final judgment, brought by D or P*

4. pre-trial phase

conferences, expect witness list

5. trial

a. P case

b. D case

c. Rule 50 – given facts there is no other conclusion*

d. jury charge

e. deliberation

f. judgment*

6. 1st appeal*

7. 2nd appeal (discretionary)

8. Enforcement

9. Out of Court Settlement



*Only final judgments are appealable



1. Writ

2. Field Code

3. Notice



– narrow the issues to a single issue (form of action)

– get ready for trial

– English common law

– each writ had its own rules

– parties would plea back and forth until the issue was narrowed

– did not allow joiner of claims or parties

– had to be exact or case was thrown out

– could choose to sue in equity court (chancery courts)

– file complaint

– less rigid than writs

– could sue multiple defendants and bring multiple issues

– no jury

– in US until mid 1800s

– went straight from pleadings to court


Field Code

– on line in mid 1800s in NY

– one form of civil action and rules would not vary from claim to claim

– had discovery

– three kinds of pleadings (complaint, answer, reply and (demurrers))

– less important to narrow the issues

Gillispie v. Goodyear Service Stores (Sup NC 1963)

Issue: P cause of action did not contain facts. From a demurrer for D, P appeals

Rule: A complaint must contain a sufficient plain and concise statement of the facts constituting a

cause of action.

– notice

– narrow

– weed out frivolous claims by looking at facts

must plead ultimate facts (bare facts to set out allegation), instead of legal conclusions

– evidentiary facts not allowed or needed

– but admitting in the answer, it cannot be brought up at trial

– by stipulating to detailed complaint, the P can be screwed


Federal Rules

– liberal

– installed in 1938

– brought uniformity to federal jurisdiction

– abolished separate system of law and equity

– borrowed from field code

– state claim instead of facts

– only about notice

– Poser suggested there must be some facts involved

– US v. Board of Harbor Commissioners

-12(e) hard to win, not favored

– D moved for 12(e) but was denied because the plea is restricted to situations where a pleading

suffers from unintelligibility rather than the want of detail

– in a field code state, detail would fish out frivolous cases

– 12(f) – motion to strike – disfavored motions

– McCormick v. Kopman, (Ill 1959)

– P sued because D hit her drunken husband driving. Two counts contradicted each other and the jury

found the D guilty on both counts

– the counts can be pleaded together if the P does not know the truth (alternative pleading) but P

can not collect on both.

– Rule 11 updated 1983 to make sanctions easier.

– Rule 11 was downgraded in 1993

– 21 day safe harbor period

Zuk v. Eastern Penn Psychiatric Institute (3rd 1996)

– P psychologist sued former employer D for copyright infringement for taping sessions. D filed

12(b) and sanctions under 11( c)(1)(A). Court asked P to explain why they should not be sanctioned. They were and the client paid his sanctions but the attorney didn’t and appealed.

– 28 § 1927 Counsel’s liability for excessive costs

– sanctions are to deter conduct, not punish and the amount of sanctions were too high ($15,000)

extensive review of Rule 11

– Rule 11(b)(4) deals with the denial of allegation by the defendant

– Rule 11(b)(1)

– can be brought by motion or on court initiative

– safe harbor not available if court initiative


– Rule 11 must be served on opposing counsel 21 days before filing to allow them to fix it before

filing; the defective complaint would then be amended

– Rule 12(b)(6)

Mitchell v. Archibald & Kendall, Inc 1978

– P was shot in the face when waiting to unload his truck on the street adjacent to the

loading dock. D files 12(b)(6) because act was on a public street.

– Where the pleadings raise a contested issue of material fact, a 12(b)(6) motion must be


– Plaintiffs admitted they were parked on the street

– “Premises" is treated as the defendant’s property boundaries

– most courts will not grant 12(b)(6) if facts state some claim

– look most favorably on complaintee

– normally brought before answer

– advantages – do not have to answer, gives you more time

– if you know P cannot amend complaint, 12(b)(6) is a good idea

– might be telling P was is faulty with his case

– watch out for Rule 11

– Rule 9(b) – Fraud, Mistake, Condition of the Mind

– Ross v. A.H. Robins Company 1979

– P alleging fraud in a securities transaction must specifically allege the acts or omissions

upon which his claim rests and the time at which the events occurred

Cash Energy, Inc v. Weiner 1991

– P alleged 4 corporate officers participated in the chemical dump

– Court uses 9(b)

– Claim will be dismissed unless P file an amended complaint that pleads at least an outline

of the factual basis for the claims rather than mere conclusions

Leatherman v. Tarrant County NICU

– whether a federal court may apply a heightened pleading standard in civil rights cases

– court stated it must rely on summary judgment and control of discovery to weed out

unmeritorious claims sooner rather than later

– Rule 12(b)(4) + (5) – the way parties are put on notice > summons and complaint

– defects in process of notification

– Rule 12(b)(7) – P files suit but fails to include necessary party

When served, a D will answer with 12(a) or a 12(b) defense


The favored defenses can brought anytime under 12(h)(2) because they might not be known until after discovery


The defense of lacks jurisdiction over the subject matter can be raised at any time even after judgment


Insufficiency of service of process – cannot be stated after answer

Failure to state a claim upon which relief can be granted


12( c) – Motion for Judgment on the Pleadings – calls for summary judgment if you can not bring 12(b)

– used by P to weed out weak cases after answer



Answer (20 days)

Complaint or

File 12(b) motion >>>denied, 10 more days to answer


Do Nothing




Effect of winning 12(b) motion is usually dismissal without prejudice (they may refile)(has not reached the merits of

the case)


Default (Rule 55)- Defendant does not answer

Entry Default – entering the default by the clerk

– can be set aside

– cuts off defendants right to participate in suit

– all of the allegations are deemed admitted

Default Judgment – an adjudication on the merits that can result after the default is entered

– can be set aside

– must be entered by clerk first (sum certain)

– can be from clerk or the judge (sum disputed or unknown)

– P cannot recover more damages than he asked for in the complaint

Default usually arises because lack of notice

Party must move for default


Shepard Claims Service, Inc v. William Darrah & Associates US appeals

– careless attorney lets his secretary answer a motion and does not file in time

– court stated three factors (Rule 55( c)

1. whether the plaintiff will be prejudiced

2. whether D has a meritorious defense

3. whether culpable conduct of D led to default



Admissions & Denials

– have to admit to any allegations in complaint they know are true and deny any that might be false


David v. Crompton & Knowles Corp (Penn 1973)

– whether D should have been permitted to amend its answer

– since D delayed its amendment of the answer that stated D admitted the charge, the statute of

limitations had run out on the proper party


Prayers for relief


Affirmative Defenses

– even if P could prove everything, there is a defense that would win (sovereign immunity, limitation of

damages, statute of limitations)

– must raise in answer

– except for special 12b

– can amend in rule 15

– P does not have to address any potential affirmative defenses in the complaint




– D becomes the P

– brings costs down


Wigglesworth v. Teamsters Local Union No. 592 (Va 1975)

– P claims he was restricted from freedom of speech (Federal court)

– D counterclaims that P made slanderous remarks during a press conference about the suit. (State claim)

– must be state claim because it is not:

– Federal Question

– Diversity Suit

– supplemental jurisdiction (ancillary)

– if it is compulsory (same controversy)


Pleadings cont.


Complaint-> answer (20 days) OR

\> Rule 12B motion (answer) -> Denied 45 days -> 10 days Answer.

Into Rule 12C after answer – more often used to point out defects in answer by plaintiff.

Error to make a 12C motion and attach other real evidence. Rule 12C only on allegations. If evidence attached – treat as motion for summary judgment.


Effect of 12B motion is dismissal without prejudice (case is dismissed without final adjudication – res judicata does not attach )– opportunity for plaintiff to re-file an amended complaint to cure whatever defect is out there.

With prejudice is a decision based on the merits of the case.

If wasn’t a flaw in one of the parts of pleading – can’t raise it the second time around (after amended).


IF have a Rule 12B6 motion and offer it on duty but nothing else – can’t Rule 12B6 other elements if they haven’t changed.





Entry of Default – Defendant has choice of doing nothing. Courts rely on plaintiff to make motion to enter default. Way to force D to reply.


1. Cuts off D’s right to participate in suit; a late answer is null and void.

2. Also allows P to go to next step for entry of default judgment.

3. All allegations in complaint are deemed admitted.


Liquidated – clerk can enter default.

Unliquidated – must be heard by judge. Will require a proveup hearing so that P will have to put up evidence to establish the amount of damages. D has right to contest damages.


Avoiding Default Judgment:

Rule 55c – motion to set aside entry of default.

Rule 60b – motion to set aside default judgment.


Some courts will take other forms of participation as a response to avoid default:

D is entitled to notice of further hearings if entered an “appearance"

Some cases have deemed informal contacts not an appearance.

One case informal settlement negotiations sufficient where D indicated intent to defend on the merits.


Lenient Approach to answers – why?


Rule 54B – Frow Doctrine – restricts court’s power to enter final judgment for less than all the parties (one of the parties defaults), policy to avoid logically inconsistent adjudication – Frow v. De La Vega.

Distinguished in In re Uranium Antitrust Litigation – where defendants severally and jointly liable.


Answer –

1. Rule 8b – requires D to either admit or deny the allegations, limits ability to make a general denial. (10b allows to include these in one paragraph). ONLY HAVE TO ADMIT IF CERTAIN IT IS TRUE – if some reasonable basis can deny it, or if really don’t know.

2. Prayer for relief.

3. Raise affirmative defenses – even if P can make out prima facie case on each claim – still cannot recover b/c some defense at law. (Consequence of not raising them in answer is waiver). Exception is could amend your answer. Could raise it at trial if put P on notice – if not unfair (prejudiced plaintiff).

Review GOMEZ p. 196 – plaintiff must allege bad-faith to plead around defense. Ruling is NO – P’s don’t have to plead around defense to rebut potential affirmative defenses.


4. Counterclaims (Wigglesworth)


Zeilinski v. Philadelphia Piers, Inc. – proper way to answer long, conjunctive statement is to admit the parts that are true and deny the parts that are not. – laid out in Rule 8.


Rule 13

A. compulsory -> waived if not asserted in answer.

B. permissive -> not waived (may) – counterclaim not related to underlying claim (only slightly more efficient to bring it together with other claims)


Rule 13i – Separate Trials: Summary Judgments

Court can bifurcate the claims before trial to address different claims in different proceedings.


Rule 13(g) – cross-claims of co-parties

– must be related to claims in litigation


Rule 13(h) – bringing another defendant in on a cross-claim or counter-claim




Rule 15A


Plaintiff has complaint, 4 months later moves to amend complaint. Defendant has not yet filed an answer. OK?

Rule 15 A – allows Plaintiff to file an amended pleading.

If Defendant filed Rule 12B6 motion (in 3 months). Would plaintiff have right to amend complaint?

Here, Defendant still didn’t make a responsive pleading, so Rule 15A still allows Plaintiff to respond. (Rule 7 gives definition of what a pleading is and a motion is).


Hypo 2:

Plaintiff files and serves a complaint. 20 Days late, defendant files an answer. Can defendant amend answer to include other affirmative defenses 15 days after serving the answer.

Amended answer would stand b/c w/in 20 days of Rule 15A.


If Defendant files answer with the counter-claim, then plaintiff can file answer with counter-claim and Defendant wouldn’t be allowed to amend, because Plaintiff already filed a responsive pleading.


Effect of amendment is to substitute for effective pleading. So, plaintiff must also re-allege all claims that alleged in first pleading. Facts not re-alleged are waived. Again starts clock on responsive pleading.


Still have 20 days to file a responsive pleading or 10 days after an amended pleading has been served.


Rule 15B

If Plaintiff brings complaint on intentional infliction of emotional distress. If find no evidence in discovery for intent then pursue a claim on negligence and can amend complaint if defendants put on notice.


Rule 15D

Supplemental pleading:??????

If subsequent event happens following complaint on first event.



Bank files complaint that D has missed several installments on loan. Bank couldn’t file a supplemental pleading to allege D’s default on other installments – would have to amend complaint. (CONTINUING VIOLATION – AMEND PLEADING TO CONFORM WITH PROOF). May not be necessary to seek formal amendment as long as D put on notice in discovery that Bank will be seeking payment on the other installments.


Relation Back – If have statute of limitations, can only amend complaint that relate back to events that happen before statute expired – not new events – because will be a SOL violation. – must conform to Rule 15C.


REVIEW p. 217 – CA relation back rules to RULE 15C.



Rule 41 – Dismissal of Actions

Rule 41(a) – Voluntary Dismissal

– Second dismissal is with prejudice

Rule 41(b) – Involuntary Dismissal



– In common law a leasee could not bring suit, he had to convince leaser to bring suit

Rule 17(a) – broadens the scope of potential plaintiffs

Rule 17(b) – capacity to sue or be sued – minors, incompetents, corporations that dont pay their taxes, estate cannot



Southern Methodist University Association of Woman Law Students v. Wynne and Jaffe (1979)

– Should the Ps be forced to reveal their names

– No exception to the rule of “the parties to a lawsuit should not be concealed"

– Exceptions are protecting privacy in a very private matter

– Under this example of law students, it is not a private matter


Rule 18 – Joinder of Claims

– allows a party to join as many claims, legal, equitable, or maritime, as the party has against the opposing party


Rule 20 – Permissive Party Joinder

– allows joiner of multiple persons as parties if they assert any right to relief jointly, severally, or in the

alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or

occurrences and if any question of law or fact common to all these persons will arise in the action.


Kedra v. City of Philadelphia

– Although the events giving rise to Ps claims in this case occurred over a lengthy time period,

they all are “reasonably related"


Insolia v. Phillip Morris, Inc.

– D claimed improper Rule 20 because the Ps claim do not rise out of the same transaction


Rule 19 – Compulsory Joinder of Parties


Three questions to ask:

1. Is the missing party necessary? If not…the case proceeds

if yes

2. Can they be joined? If they can they will be joined

if no

3. Are they indisputable? Rule 19(b) If yes….case dismissed


Janney Montgomery Scott, Inc. v. Shepard Niles, Inc.

– P sues Underwood in state court

– P sues Unibank in state court

– P sues (D) Shepard in federal court because of diversity jurisdiction

– D brings motion for failure to join an indispensable party

– Court stops at step one and rules that party is not necessary


19(a)(1) – could relief be given to existing party

19(a)(2)(i) – would then missing party be predijuse from the relief, typical in injunctions

19(a)(2)(ii) – exposes D to multiple actions or obligations

19(b) – has four factors that the court looks at




P 1> D 2> D3rd 4> D4th


3 5





Rule 14 is derivative liability


Clark v. Associates Commercial Corp (1993)

– Court should allow impleader of a proper third-party action unless it will result in some prejudice to the parties.



– used when there is a fund in question

– Requirements

– party seeking to interplead must identify stake

– stake cannot be general assets

– need multiple claims

– claims must be adverse

– inconstant liability


State Farm Fire and Casulity Co. v. Tashire

– truck driver hit bus and State Farm the insurance carrier for the driver brought suit to limit its liability

– a policy from State Farm allowed a cap of $20,000 per occurrence

– P wants all actions to be brought in interpleader

– a party with such a small stake should not be able to determine jurisdiction and interpleader

– court allows interpleader of potential claimants


Rule 22 Interpleader – needs complete diversity between stakeholder and claimants

– service under rule 4

– can use if there is a federal question

– venue of defendants or where events occurred or where property is

1335 Statutory Interpleader – minimal diversity between claimants

– service nationwide

– venue of residence of one or more claimants



Intervention – Rule 24

– a device for an outsider who has an interest in a lawsuit to voluntarily join it as a party

– intervener is bound by the law of the case

– Natural Resource Defense Council v. USNRC

– NRC gave NMEIA permission to give applicants a nuclear license without the required

environmental impact statement. NRDC brought suit to make NMEIA required statement IAW

the Atomic Energy Act

– AMC and KNC (current license holders) seek intervention pursuant to Rule 24(a)(2) and (b)

– motion denied in trial court, appealed

– Interveners must have 1) interest, 2) impairment, and 3) lack of adequate representation

– interest

– requiring a DIRECT interests in the outcome of the lawsuit in too narrow a

interpretation of Rule 24(a)(2)

– some courts allow non-economic interests, some do not

– this court found the interests of movants is sufficient to satisfy the requirements of Rule


– impairment

– would be an impairment to AMC + KNC if judgment is made

– representation

– UNC may settle out


– Cascade Natural Gas v. El Paso Natural Gas

– court ruled intervention was appropriate when there is a economic interest


Rule 24(a) – intervention of right

Rule 24(b) – permissive intervention

– (b)(2) gives a broad reason for courts to allow intervention


Class Action – Rule 23

Used for: Efficiency of parties and system

Avoid inconsistent adjudication

On notice you may: do nothing (and thus accept)


join actively

Problems with fee structure and settlement

25% of recovery or hourly rate




Hansberry v. Lee

– AA brought house in white neighborhood with covenant

– trial court voided sale and held the covenant was valid because the case was part of a pervious

class action suit (Burke) and P was bound by that decision

– failure of due process (life, liberty, property) if: interests are not protected or inadequate


– P’s interests in Burke were opposite of Hansberry


Eisen v. Carlisle & Jacquelin

– petitioner filed class action for 6,000,000 class members

– only 2,250,000 could be located

– district court failed to comply with Rule 23(c)(2) and imposed the cost of notice on defendant

– individual notice to identifiable class members is not a discretionary consideration to be waived


23(a) prerequisites:

numerosity – joiner through traditional ways would be impractable

commonality – common questions of law or fact

typicality – must show there is a adequate overlap of claims

representative – catch all prerequisite

Holland v. Stelle

– P class action for Amendment VI violation for restriction of access to counsel in prison

– court stated P had met requirements of 23(a)

– notice is not required for this action


23(b)(1) + (2) are not commonly used

23(b)(3) – is more common

– predomiary common question

– superiority


Mass torts

– single event tort (train wreck)

– exposure (toxic tort)

– mass exposure over time (asbestos)


In The Matter of Rhone-Poulenc Rorer, Inc.

– D filed motion for mandamus, asking to direct the district judge to rescind his order certifying

the class action

– district court wanted to divide the negligence into two court sessions

– court determined TC plan exceeded the permissible bounds of discretion in the management of

federal litigation



Coca-Cola Bottling Co. v. Coca-Cola Co

– D was forced to turn over their secret recipe to determine whether the different Cokes had the

same formula

Vincon v. Superior Court

– superior court upheld order for P to undergo a mental exam in her sexual harassment suit with

mental distress damages


To be discoverable under Rule 26(b)(1) material needs to be relevant to the claim or defense of any party

Davis v. Ross

– D instituted a defamation action based on a letter

– case originally dismissed on 12(b) looking at letter because it was either attached to the

complaint or included in the complaint, reversed on appeal

– discovery issue on both sides

– Davis wants – discovery of D’s net worth for damages

– billings of the law firm in which partner was a witness

– names of other employees who have complained

– all were denied

– Ross wants Davis’ treatment by psychiatrist which was granted

Zises v. Department of Social Services

– P dropped sexual hassassment suit after being ordered she had to turn over her diary

Kozlowski v. Sears, Roebuck & Co.

– D was ordered to produce records of complaints and communications of injuries or death.

– D did not and default judgment was ordered, D appeals

– D claimed records were impossible to get and the P should find it himself but court found an

inadequate filing system is not the P’s fault.




Hickman v. Taylor –

W. Glaser – more realistic. Not cataclysmic or panacea.


– have role of giving preparation for trial – with pleadings now restricted to notice-pleading

– judge given more authority in presenting evidence and pushing progress of case

– abuse of discovery can lead to longer and expensive trials]

McLaughlin v. Copeland – discovery cannot be used to see whether there may be a factual basis party has not yet made.


Move over time from optimism to pessimism – especially in larger cases. Lack of empirical evidence, but plenty to anecdotal evidence. Survey says that in at least 50% of cases parties have avoided revealing something even though broad discovery.



In Re Convergent Technologies Securities Litigation (1985) – self policing solution


– counsel should have responsibility to be cooperative and sensible to make speedy and inexpensive trials, as such courts should be last alternative to mediate discovery

– Rule 26 imposes proportionality requirement on discovery behavior – NOT that discovery will lead to admissible evidence (recognition of expense of discovery)

– Then after this threshold requirement, must weigh burden of discovery against potential value of evidence (Is cost efficient?, etc.) (26b2)

– Court ruled that P should be excused from answering interrogatories until completed substantial amount of discovery

– Plaintiffs wanted to pin D’s down to certain answers. LIMIT FACTS THAT D CAN RELY ON TO SUPPORT LITIGATION.


– No sanctions in this case.


Contention Interrogatory – asks for the contention of the party being asked. Common for party to spit out bunch of contention interrogatories to delay litigation – easy to generate. However very burdensome and time-consuming for answering party. CONFLICT BETWEEN ONE’S DUTY TO BE ZEALOUS ADVOCATE AND ETHICS.


Problem of abuse of discovery

Rule 34 amendment in 1980 meant to have counsel label documents and not insert them among unimportant ones.

Issue of search for truth v. serving of client’s interest?

German use of having judge conduct discovery.

1983 amendments seek to limit broad discovery.

1993 amendments limited number of interrogatories and depositions and initial disclosure of core information and discovery plans in an early meeting of counsel.


Professor Langbein Critique of Discovery:

Judge could conduct discovery.


Difficult for judge to give standardized treatment for cases – highly individual.


Would be shifting cost onto taxpayer.

Judge may lack time.

Opens door to sorts of corruption.


German system lacks the virtues of American System – lacks adversarialness – parties have incentive to discover as many facts as possible. If have early factfinder, run risk of bias and have risk of low incentive to dig deeply – also lose ability to shape facts – adversaries may observe a different set of facts than a neutral observer.


Note #3:

Lack of trial skills lead to reliance on discovery. Is that bad not go to trial?

Usually settle if not some merit to Plaintiff’s case. Settlement could be good for both, while trial results tend to be one side or another. BUT, maybe worse off because good to have system with public airing of disputes and public record – value in precedents.


Discovery Devices


General strategy is to use document inspection, then interrogatories before deposition.

HOWEVER: If hoping to corner party in early phase, then may want to depose key witness to get their testimony down on paper.


26g – Rule 11 like signature requirement for discovery requests and responses.


Initial Disclosure

– turnover of core materials – Rule 26a1, relevant to facts alleged with particularity in pleadings (opposition – required turnover of harmful materials w/o opposing counsel asking for it)

o had effect of decreasing the amount of formal discovery and the cost of litigation

o 2000, US Supreme Court amended rule to remove the particularity requirement and require disclosure limited to material that the disclosing party may use to support its claims or defenses.

o Rule 26d – disclosure will precede formal discovery.


Document Inspection

– Rule 34 permits parties to demand opportunity to inspect documents and other tangible things possessed by opposing parties

– Send request to opposition – should describe documents with “reasonable particularity" – often a categorical description – now after 1993 require parties to disclose some pertinent documents (26a1b)

– Should have documents in its “possession, custody, and control" – control includes efforts to obtain documents from others, where party is believed to have influence over possessor of documents – Cooper Industries, Inc. v. British Aerospace, Inc.


– If documents numerous – made available in location where they are kept.

– Also authorizes parties to enter premises to measure or inspect.


Document Request

Rule 34.

Maybe advantage in using this as opposed to interrogatories is no limit here.

Can look at document and interpret it yourself – in interrogatory lawyer may draft brief, narrow response.





– Rule 33 permits a party to send written questions to another that must be answered under oath – must make reasonable efforts to answer based on any or all knowledge that they have. (AFTER 1985) – but by motion can ask court for more.

– However abuse:

o Questions might be burdensome to answer – Rule 33a limits number to 25

o Answers tend to reveal little and general to avoid giving harmful information

– not good for narrative answers

– Rule 33a – quetions not improper b/c elicit opinion – even where seek opinion about question of law and fact

– Court may defer duty to answer until discovery has been completed









– permits questioner to compel witness to answer questions spontaneously and allows interrogating party to follow up on answers with further questions

– most expensive form of discovery

– Rule 30(b)(1) – allows any party to schedule deposition

– Rule 30(b)(2) – imposes numerical limit of 10 depositions per side

– Rule 30(b)(5), 34 – documents, time limits???






Physical or Mental Examinations




p. 353 Note #6

How probing should discovery be?

Coca-Cola Bottling Company v. Coca-Cola Co.

Court grants D’s motion to compel discovery of the formula.

Leads to settlement.


Coke could file a motion for a protective order in 26c to protect confidentiality of formula. HOWEVER CHANCE COULD VIOLATE PROTECTIVE ORDER.

Still have possibility of Plaintiffs bringing a weak case and using discovery requests to justify a settlement.

Could disclose differences in Cokes rather than formula itself.


Could some different ingredients be derivatives of others? Then producing differences will not reveal without revealing entire formulae.

What determines standard? Look at contract and determine intent of drafters of contract.


p. 355 Note #9

Vinson v. Superior Court

Did P waive privacy rights to psychological state by claiming emotional distress?


Davis v. Ross


General trend is to allow psychological tests in discovery.

Awtry v. US –

“Fishing expedition" by mental examination?

Probative – tends to prove or disprove. Amount earning is certainly probative b/c shows



Kozlowski v. Sears, Roebuck & Co.

– have duty for party to produce documents under his/her control


– Need records of other cases with pajamas because would tend to prove some design defect. (contrast In re Richardson-Merrell, Inc.)




Incentive structure – if put costs on requesting party, then no incentive to keep down costs of searching records. PROBLEM WITH SMALL CLAIMS – IS WORTH DISCOVERY FOR SMALLER CLAIMS.






NOTE 6 p. 359 – Interrogatory as opposed to document request.


2000 Document Requests

Under old rule – party could file claim out of transaction or occurrence – pursue discovery relevant to SUBJECT MATTER of accident and uncover material relevant to another type of claim. CAN NO LONGER FISH FOR OTHER CLAIMS.



1. Opinion work product – are almost never discoverable therefore questions are asked with opinions

2. Great need work product – discoverable

Can be waived


Attorney – Client Priviledge


Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in cofidence by the client, by the legal advisor, except the protection be waived.

Upjohn v. United States

– communications are not discoverable

– facts are discoverable


HYPO: Chip maker was told by her lawyer that it could infringe on patent. Chip maker moves to Intel nad Intel sues AMD for patent infringment. Lawyer for Intel wants chip maker to tell about what lawyer told her


Expert Witness – can give opinions but not legal conclusions


In Re Shell Oil Refinery, 1990

– Plaintiffs are not entitled to any discovery of experts (expensive research) not expected to testify at trial

– parties seeking to show exceptional circumstances under Rule 26(b)(4)(B) carries a heavy burden


Rule 26 – General Provisions Governing Discovery; Duty of Disclosure




Sham affidavit – court can discount affidavit if it is made just to avoid SJ.



1. Hypo 1 Conflicting evid strongly Deny D SJ

favoring D


2. Hypo 2 Same, but conflict arises Sham Affidavit Rule Ct may disreguard

from Ps post-motion declaration Ps declaration and grant SJ to D


3. Hypo 3 Ps evidence shows D could be ?

cuplable party D does not deny


Hypo 3a Same except D denies in sworn



4. Dyes P has no evidence, D denies in Grant D SJ

sworn testimony


5. Arnstein P evidence shows D could be Deny D SJ

culpable party, D denies


Arnstein v. Porter

– P sued D for copyright infringment, court granted D SJ, P appealed

– Court of Appeals ruled Ps creditbility should be leave to the jury. Therefore there is a genuine issue of



Adickes v. S.H. Kress & Co. – traditional approach

– a store refused to serve a schoolteacher and she was arrested for vagrancy after she left the store

– DC granted SJ, Court of Appeals affirmed

– RULE: where the evidentiary matter in support of the motion does not establish the absence of a

genuine issue, SJ must be denied even if no opposing evidentiary matter is presented

– D did not establish the absence of a policeman in the store

– reversed



Celotex Corp v. Catrett

– DC granted D SJ because of insufficent evidence, Court of Appeals reversed

– the nonmoving party has failed to make a sufficient showing on an essential element of her case

– easier to move line to B


1. traditional approach – movant must shift the burden to non-movant

2. Louis approach – must demostate the lack of evidence in non-movant’s case

3. Currie – same as directed verdict at trial, no burden on movant who has no burden at trial

Wigmore diagram




P Reasonable Zone D









– Rule 16

– Pretrial conferences

– pushes settlement

– Heileman Brewing Co. v. Joseph Oat Corp.


Rule 50


Galloway v. US

– ex-military had two crazy incidents in a year and blaims years in service

– ISSUE – whether the evidence was sufficent to sustain a verdict for petitioner

– DC granted Ds motion for directed verdict…..affirmed


EXAM QUESTION: Why should the proceedual system have a way of taking the verdict away from the jury?

a. worried that the juries might get it wrong


Summary judgement is similar to directed verdict


Lavender v. Kurn

– man found dead at train switch and estate claimed it was roadroad’s negligence. May have been theft

– Supreme Court reversed judgment for P claiming insifienct evidence to go to the jury


Guenther v. Armstrong Rubber Co.

– tire exploded and injuried P but witness testified that the tire was not the tire P believed it to be

– 75% of tires sold at store were Ds

– DC made directed verdict

– AC said jury should resolve probability problem and reversed


Ahern v. Scholz

– an agent sued a member from Boston for unpaid royalities. Ahern admitted breach but jury said the

breach was not material. TC denied P motion for new trial

– New trial when the “verdict is against the clear weight of the evidence, or is based upon evidence which

is false, or is based upon evidence which is false, or will result in a clear miscarraige of justice

– AC affirmed


Remittitur and Additur


Dimick v. Schedt

– P brings new trial motion, D aggrees to increase in judgment without consulting P, court denies motion,

P appeals

– quotion verdict


Judge should only grant when evidence is so one-sided.


General verdict with special derogitory – requires the jury to answer questions

Special verdict

General verdict


Whitlock v. Jackson

– P wants jury verdict overturned because the questions the jury answers were claimed to be inconsistant

with its verdict




14th Amendment Due Process Issue

5th Amendment


Have to plead for federal and state jusidictional issues


In personam – case against the person


In rem – case against a thing (property)


Quasi in rem – hybrid


Pennoyer v. Neff

– start of jusdicational problems when due process problem with serving in rem suit

– presence vs. consent


International Shoe

– P sells shoes in Washington but is headquartered in Deleware

– minimum contact


McGee v. International Life

– insurance premiums sent to Texas company did not count towards minimum contact

– payments had notiong to do with reaching out to P


World-Wide Volkswagen Corp. v. Woodson

– Facts 1. Bought in NY 2. Accident in OK 3. No contacts of sales, servs,advertise, /purposefully avail

themselves 2 the law – No jxn. b/c no purposeful availment, no min. contact

1. Fair play & subst. justice 2 D

2. Terr. Manufacturers should anticipate but Distributors dont

– Unilateral activity by P isnt enough 2 find jxn over D


Calder v. Jones

Facts: Florida magazine smeared D, D sued in California

– expressly aimed at California and established minimum contact


Burger King Corp v. Rudzewicz, 471 U.S. 462 (1985) p 68

Facts: D applied and got a Burger King franchise. The franchise was opened in Birmingham, Michigan. Burger King is a Miami corporation. Franchisees purchased $165,000 worth of equipment from Burger King in order to set up the restaurant. Even before final agreements were signed the parties began to disagree over site-development fees, design, rent, and whether the franchisees would be able to assign their liabilities to a corporation they had formed. Business was good for awhile but then started to decline. D could not make monthly payments to Miami. Headquarters sent notice of default and negotiations began. They were unsuccessful and Burger King ordered D to vacate the premises. They refused and continued to occupy and operate the facility as a Burger King restaurant.

Procedure: Trial court found Florida did have jurisdiction. Court of Appeals said they did not have jurisdiction.

Issue: Did Florida have jurisdiction over these Michigan residents and in light of the fact that Burger King’s claim did not arise within Florida?

Rule: When there are minimum contacts with a state, that state can have jurisdiction even if the minimum contacts did not mean physical presence in that state.


Asahi Metal Industry Co. v. SuPerior Court, 480 U.S. 102 (1987) p75.

Facts: Zurcher was injured when his motorcycle went out of control and collided with a tractor. He sued the maker of the tube, Cheng Shin Rubber Company, Ltd. (a Taiwanese corporation) claiming it was defective. In turn Cheng Shin filed a cross complaint against the maker of the valve, Asahi Metal claiming faulty valve assembly. Zurcher settled his case, leaving the cross complaint..

Procedure: The California Supreme Court found the exercise of jurisdiction over Asahi to be consistent with the Due Process clause. The USSC reversed.

Issue: Does CA have jurisdiction over Asahi Metal, a Japanese corporation, whose only connection to CA is in the valves in tires which are eventually sold in CA by another Asian company.

Holding: CA has no jurisdiction over Asahi.

Rationale: Considering the international context, the heavy burden on the alien defendant, and the slight interest of the plaintiff and the forum State, the exercise of personal jurisdiction by a CA court in this instance would be unreasonable and unfair.


Millennium Enterprises, Inc. v. Millennium Music, L.P.

– P sues D for selling music CDs in Oregon (there home) over the internet.

– Court found web site was not geared towards interactive sales and thus action was not a

substantial connection


A judgement in rem affects the interests of all persons in designated property. A judgement quasi in rem affects the interests of particular persons in designated property.



Shaffer v. Heitner, 433 U.S. 186 (1977) p 82.


  • Heitner brought suit in a Delaware court against Greyhound Corporation and its officers and directors
  • None of the directors were residents of the state of Delaware
  • Greyhound’s corporate headquarters were in Arizona
  • the alleged wrongful actions had occurred in Oregon
  • Shaffer was a non resident of Delaware.

Issue: Did the service and the sequestration order in Delaware violate D’s right to due process?

Rule: The minimum contacts analysis of International Shoe should be applied to jurisdiction over


Holding: When property is completely unrelated to the plaintiff’s cause of action its presence alone will

not suffice to support jurisdiction (overruled Harris v. Balk).

presence of property in a state may bear on the existence of jurisdiction by providing contacts among the forum state, the defendant, and the litigation.

Delaware’s assertion of jurisdiction over appellants in this case is inconsistent with that constitutional limitation on state power.

Burnham v. Superior Court, Quasi in rem (prop dealing with suit and minimum contact or presence)


  • Burnhams were married in West Virginia in 1976.
  • In 1977 they moved to New Jersey where there two children were born
  • In July 1987 they decided to separate.
  • They agreed Mrs. Burnham, who intended to move to California, would take custody of the children.
  • Mrs. Burnham brought suit for divorce in California state court in early January 1988.
  • In late January petitioner visited southern California on business, after which he went north to visit his children in the San Francisco Bay area, where he was served with a California court summons and a copy of Mrs. Bernham’s divorce petition.
  • He then returned to New Jersey.


Later that year petitioner made a special appearance in the California Superior Court, moving to quash the service of process on the grounds that the court lacked personal jurisdiction over him because his only contacts with California were a few short visits to the State for the purposes of conducting business and visiting his children. Superior court denied the motion and the California Court of Appeal denied mandamus relief.


Does due process require a similar connection (as in Pennoyer and International Shoe) between the litigation and the defendant’s contacts with the state in cases where the defendant is physically present in the state at the time process is served upon him? Can California have jurisdiction over Mr. Burnham based simply on his presence in the state during a few short visits?


Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard.


Because the due process clause does not prohibit the California courts from exercising jurisdiction over petitioner based on the fact of in-state service of process, California has jurisdiction over Mr. Burnham.


Never been a case in American history that held or even suggested that in state personal service on an individual was insufficient to confer personal jurisdiction. No state has abandoned in state service as a basis of jurisdiction.


Shaffer involved jurisdiction over an absent defendant. The logic of Shaffer’s holding – which places all suits against absent nonresidents on the same constitutional footing, regardless of whether a separate Latin label is attached to one particular bases of contact – does not compel the conclusion that physically present defendants must be treated identically to absent ones.

Scalia’s opinion in this case was not a majority opinion. So the main question is still unanswered. The court said there is enough to attain jurisdiction, but not exactly clear why exactly.


Helicopteros Nacionales De Columbia, S.A v. Hall, 466 U.S. 408 (1984) p 67.

Facts: – D, a Colombian entity, bought supplies and helicopters extensively in Texas but did not maintain any offices in the state.

  • P’s decedents were killed in Peru by the crash of a helicopter operated by defendant.

Procedure: P sued in a Texas Supreme court. The exercise of jurisdiction was upheld. Later the Supreme Court heard the case. The SC reversed the decision of the Texas Supreme Court.


Issue: Did the state of Texas have jurisdiction over the Colombian company based on the amount and type of contact it had with citizens of Texas? Was the due process clause violated by the Texas Supreme Court decision which found jurisdiction?


Rule: When contacts are made that do not fulfill the requirements of and continuous systematic business, the state cannot claim jurisdiction.


Holding: Texas had no jurisdiction over this Colombian company.

Rationale: The jurisdiction Texas has claimed is found to be general. This means jurisdiction can only be supported by “continuous and systematic” contacts. Purchases from Texas, although frequent do not satisfy these demands.

Policy/Notes: Brennan dissented: D obtained numerous benefits from the transaction of business in Texas and it is reasonably fair to expect it should face obligations that attach to its participation in such commercial transactions. Also Brennan doubted the finding this case was one of general jurisdiction.



waiver, contract, stipulate, sanction

Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee Consent by D that ct. by agruing merits




min contacts – specific (claims arise or related to contact w/ forum states) and general (claims do not arise

from D’s contacts)







Carnival Cruise Lines v. Shute K w/selected forum 1. FL has int. 2. Cost lowered=AF by it Admiralty isnt binding on state ct.


  • Shutes, residents of Washington State, purchased passage on a Carnival Cruise Lines ship through their local travel agent.
  • They paid for the tickets through the agent.
  • The tickets contained notice in small print that “all disputes and matters whatsoever… shall be litigated in Florida.”
  • While cruising in international waters off Mexico, Mrs. Shutes was injured when she slipped on a deck mat during a guided tour of the ship’s galley.
  • The Shutes sued Carnival for injuries in distirct court in Washington state.


The district court dismissed their action on the ground that Carnival had insufficient contacts with Washington. The court of Appeals reversed refusing to enforce the forum selection clause because it was not freely bargained for, and because theShutes would be financially unable to pursuing the litigation in Florida. The Supreme Court reversed.


Although there was a forum selection clause which state Florida would be the forum for any suits, were there still reasons why Carnival could be held to Washington jurisdiction?


Contract forms are subject to scrutiny for “fundamental fairness,” and must be examined for fraud or overreaching.


The forum selection clause is valid and thus there is no jurisdiction in Washington.

Mullane v. Central In 1946, Central Hanover Bank & Trust Co.

– established a common trust fund. In March, 1947 it petitioned court for its first settlement. There were 113 trusts included, and the beneficiaries resided both in and out of New York. The only notice given was by newspaper publication in strict compliance with the minimum requirements of NY Banking Law _100-c(12). When fund was established, they did mail to all parties notice of the judicial settlement. A special guardian was appointed for all persons known or unknown or otherwise not appearing. Appellant (Mullane) appeared specially and objected that notice was inadequate. The objections were overruled, and the Surrogate entered final decree of settlement. Affirmed by App. Div. Sup Court and COA of NY.


Test: notice must be “reasonably calculated to notify D under circumstances” (w/in limits of practicality)

In rem/in personal distinctions outdated and irrelevant. 14th Amendment applies to both.

Beneficiaries have potential to be deprived of their property rights under this proceeding, so it must measure up to due process standards–notice and hearing.

Have to balance interests of state and individuals–guidelines for fair notice:

must actually inform

publication alone not sufficient

publication was not supplemented here.

In some cases, publication alone has to suffice–if don’t know whereabouts of people, or it their interests are future interests, or can not be discovered in due course of business.

The court doesn’t expect the unreasonable (expenditures, etc.).

In this case, then, they’re excused for not notifying everyone (unknowns), but they should have at least mailed notice. (this notice to most would serve to protect interests of group as a whole).


4 things to know from Mullane

1) have to show party tried to notify

2) are other methods more likely to work?

3) practical limits (is it reasonable)?

4) every case fact-specific


Buckeye Boiler Case – D sold lot of heating products in CA but uasually not the particluar one that exploded. (general min contact)




State Long Arm Statute

Territorial consent

Jurisdiction personal juris min-contacts

14th Amend Due Process presence



Rule 12(b)(5) – contests the sufficiency of service

– doesn’t matter tat the person was actually served, the problem is with the WAY they were


– remedy is time until it is refiled


VENUE – created by statute, not by constitution (28 U.S.C. 1391)

– Diversity (includes escape hatch (venue where there is personal juris))

– Federal Question (no escape hatch)


– watch out for multi-district states


Bates v. C&S Adjusters, Inc

– collection letter was forwarded from PA D to P who resided in New York. Court held that the

substantial part of the action was made when the letter was delivered in NY


Convenence Jurisdiction

– movant must show that other forum is available

– must show that other forum is more convenant

– there are private and public factors


Piper Aircraft Co v. Reyno

– P (Cali), administrix of deceased airline passingers sued plane (PA) and prop (OH) manufacturers in CA

state court. State court removed to District court on D’s motion for diversity. Transferred to PA district

court on D’s 1404 motion. D filed FNC motion to move to Scotland where no strict liability.

– DC court found connection with Scotland complelling, AC reversed

– SC agreed with DC when passengers and accident occurred in Scotland


– problem when there would leave no remedy at all

– this motion is not usually granted




– Diversity jurisdiction

– Constitutional Issue


Complete diversity

Congress strips the Federal courts from Constitutionsl jurisdiction


Mas v. Perry

– Husband and wife were spied upon when they lived in Louisiana

– H was a citizen of France, she was a citizen of Mississippi, both were in LA because they were students

– P sued for $100,000 each

– domicile is a permanent home in which you intend to return when absent

1. physical presence

2. intent to remain


– cannot assign a claim to get diversity


Diversity in Class Actions (Rule 23) – class leading P is the only P to consider when looking at


– every P must meet the $75,000 barrier or the case is not fed


Domestic cases will not be heard in fed court even when there is diversity jurisdiction


General a P can aggragate more than one claim against the D to make the $75,000 contraversy.

– not allowed if a P brings multiple claims against different Ds unless those Ds are joint


– if multi-Ps are suing a single D, aggragation is not allowed to meet 1332 unless they are joint



Fed Question jurisdiction is the most important

– relevant at time of filing

– rule 15-2c

– Louisville & Nashville R.R. v. Mottley

– P brought a contract dispute over a lifetime train pass

– D claimed refusal to comply was based on a act of Congress

– whether the statute is a violation of due process

– federal question was not on the face of the complaint but rather an underlying issue

– Rule 1331 vs Article III, Section 2


2 ways to get to SC

– Dis > App > SC

– St TC > St App > St SC > SC

Article III – power defining clause (not a given right)



To bring a case within the statute, a right or immunity created by the Constitution or laws of the United

States must be an element, and an essential one, of the plaintiff’s cause of action.

Still good law but….


Merrell Dow Pharmaceuticals Inc. v. Thompson

– P claimed injury was do to D misbranding of drug IAW the Federal Food, Drug, and Cosmetic


– a complaint alleging a violation of a federal statute as an element of a state cause of action,

when Congress has determined that there should be no private, federal cause of action for the

violation, does not state a claim “arising under the Constitution, laws, or treaties of the United



Suplemental Jurisdiction


– aka Pendant and Ancilary Jurisdiction


United Mine Workers of America v. Gibbs

– state law claims are appropriate for federal court determination if they form a seperate but parallel ground for relief also sought in a substantial claim based on federal law

– once it appears that a state claim constitutes the real body of a case, to which the federal claim is only a

appendage, the state claim may fairly be dismissed

– Art III only requires arising out of the same claim (transactually related)



Pendent (anchor claim based on federal question) (invoked by P normally)


28 USC §1367

Ancillary (anchor claim based upon diversity) (invoked by someone other than P)



UMW v. Gibbs (Pendent)


Pendent Party Jurisdiction – not allowed


Owen Equipment & Erection Co. v. Kroger

P(IA) > St > D(NE) > St > D(IA)

– should impleaded third party claim be forced to litagate in state court


Rule 1337a – supplemental jurisdiction

– claims by P by action of Rule 14 (impleader), Rule 19, Rule 20 (party joiner) have no

suplemental jurisdiction

– no jurisdiction to P who is joined by Rule 19 or 24 and is nondiverse to D (Rule 20 is


Removal §1441(a)

– D can move to Fed court

– all Ds have to concur in removal

– cant be removed if P is suing in D state with state claim (not diverse)

– watch out for 1441(c)


Other Stuff

– Federal proceedures are followed in Fed court

– If there is no Fed law, state law governs

– state common law is created by courts

– state statutes are created by legislature




– so many opportunties in trial court to decide the merits of the case

– Appellate Court clarify the law

– have a different institutional role than the district court. Supposed to be more concerned with

clarifying law and less concerned with reaching the “right outcome" Appelant courts better

postioned to perform that task b/c dont get bogged down in to many substantive issues of case

– doesnt undermine legitmacy

– normative value of having two courts for review


Who can appeal?

28 U.S.C §1291 – federal judgment rule, appeal cannot be taken until lower court reached a final

judgement on the merits


A case does not generally become appealable until final judgment


Rule 58



Gillespie approach (fexible)

Katlin approach (tradional)


Colateral Order Doctrine – may appeal a order that is not a final judgment if:

1. must be final to the sub-issue

2. issue has to be seperate to the merits

3. issue must be effectivly unreviewable


Interlockatory Appeal

1. issue must be question of law

2. issue must be controlling

3. must be difference of opinion as to what the law is

4. must advance termination of case


Useful in big litagation



– seperate ligigation that litigate brings a suit against district court to a appellant court


Rule 54(b) – partial final judgment rule

– court may hear a claim so as not to hold up a smaller counter-claim

– claim must be seperate and independant

– claim must be subject to a final order

– allowing imediate appellate view must be unjust

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