Personal Jurisdiction

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Methods to obtain good personal jurisdiction Personal service in state (tagging - Burnham) Residency in state Consent/voluntary appearance Implied Consent (Hess v. Palowski) Continuous or substantial in-state contacts (part of minimum contacts analysis, general jurisdiction) Minimum contacts Quasi-in-Rem: Must have minimum contacts (Shaffer v. Heitner) and must be attached at outset of case (Pennoyer) In-Rem: Dispute arises from property attached Personal Service in State good jurisdiction if defendant is personally served while within the territory of the state. Length of time or stay doesnt matter Reason for stay in state can be unrelated to issue at hand Burnham v. Superior Court transient jurisdiction still good. As long as defendant is tagged while in state, good jurisdiction. Quasi-in-Rem attaching property at the outset of litigation no longer secures good PJ. Can still attach property as collateral for judgment or in order to prevent them from liquidating their assets, though. Shaffer v. Heitner Heitner brings suit against Greyhound, attaches stock of company execs to secure jurisdiction. Held that property must be related to the suit, did not satisfy minimum contacts test Personal Jurisdiction in Federal Courts A federal court can only exercise personal jurisdiction over potential defendants to the extent that a state court in the state where that federal court sits could.

PERSONAL JURISDICTION MINIMUM CONTACTS AND PURPOSEFUL AVAILMENT Minimum Contacts Rule good jurisdiction if the defendant has sufficient contacts with the state so as to satisfy the notions of fair play and justice, that it would be fair for defendant to have to litigate there. Focuses on minimum contacts at time of action, not time of lawsuit. Degrees of Minimum Contacts Single isolated incident which is the underlying cause of suit Hess v. Palowski defendant is PA driver who gets in to accident in MA. MA has a statute that says that anyone who drives on their highways consents to personal jurisdiction there. Because the suit arose out of this one contact with the state, even though small, good jurisdiction. McGee v. International Insurance only one insurance contract in the state, but because that contract is the cause of the lawsuit, minimum contacts satisfied Continuous and systematic contacts which have relatively high association with cause of suit International Shoe v. Washington IS had continuous and systematic contacts with state, those contacts the reason for suit Pervasive contacts with state suit can have no relation to the contacts but considered fair because there will be no trouble bringing suit there. Good general jurisdiction can be sued for anything in this state. Purposeful Availment courts hold that defendant must have purposefully availed itself to the state, made direct contacts with it, in order to be subject to good jurisdiction there. Helps define quality and nature of contacts. Defendant seeks benefit from acting in that state, derives substantial revenue Asahi marketing directly, advertising there, designing goods for that jurisdiction count as purposeful availment according to OConnor Worldwide Volkswagen

Fairness Requirement minimum contacts test must satisfy fairness requirement. Even if minimum contacts are otherwise satisfied, if it does not satisfy fairness test then no PJ. Only when minimum contacts exist that these other factors are weighed only have the power to deny PJ, not grant it. Plaintiffs interest/burden in litigating in that forum Defendants interest/burden in litigating in that forum Forums interest in the law suit (did it occur there, its laws implicated?) Interests of other possible forums Judicial system interests (efficiency, etc) Helicopteros v. Hall Helicol travelled to Texas to enter into contract with plaintiffs. Helicol had otherwise limited contacts with Texas. Contact not sufficient to satisfy minimum contacts test mere purchases not enough to justify jurisdiction over non-resident if suit does not arise from purchases Burger King v. Rudzewicz defendants made contract with FL corporation to open a franchise in MI. Defendants purposefully availed themselves to FL laws by reaching out to FL corporation and making a contract where most of the paperwork was directed there. Stream of Commerce Cases courts split on issue of whether or not putting products into the stream of commerce constitutes purposeful availment. Two options: Corporation did not purposefully avail itself to the state if it did not market, directly sell, or otherwise have any operations or activities in that state. Mere awareness that goods may end up in the state does not satisfy purposeful availment. Corporation knew or should have known where their products were going. Especially with component part manufacturers, can accurately predict where parts will end up being sold. Manufacturer both foresees and benefits from sales in other states, whether it distributes there directly or not.

Asahi Metal v. California Asahi makes component part of bicycle tires that ended up in CA. Placement of product into stream of commerce does not constitute a purposeful act on the part of the defendant to avail itself to that state. Test makes it very difficult to secure jurisdiction over component part maker, because they will never be the actor advertising or selling in the market. PJ in this case would not satisfy fairness requirement. Even if there were minimum contacts, fairness concerns would outweigh. Dissent: placing product into stream of commerce is predictable and corp should know where it goes Worldwide Volkswagen defendants sold car in NY, car accident in OK. No purposeful actions directed at OK. Only reason the car ended up there was because of unilateral actions of plaintiff. Not enough to reasonably foresee the possibility that the product enters that state. Dissent state has strong interest to be able to regulate stream of commerce, products that enter. Defendant benefited from contacts with the state. PERSONAL JURISDUCTION LONG-ARM STATUTES Long Arm Statutes necessary because, even though courts technically have the jurisdiction to hear certain types of cases, they do not have the power to hear them unless the state legislature appropriates them this power. Long-arm statutes necessary to give courts power to exercise jurisdiction. General long-arm statute: one that grants state courts jurisdiction up to the outer boundaries of the due process clause Enumerated long-arm statutes: specifically list types of contacts with the state over which states can exercise jurisdiction. If an enumerated statute has a provision that says the statute is intended to reach to the limits of due process, means that those listed contacts should be interpreted as liberally as due process would allow. Ex: transacting business not just limited to having permanent employees, continuous operations.

General Inquiry: must act two questions in regards to long-arm statutes Is there a long-arm statute under which jurisdiction can be secured? Is the exercise of PJ under the long-arm statute constitutional? State Interests long-arm statutes usually upheld in cases where state has legitimate interest in regulating certain activities Activity outside the State long-arm statutes allow states to exercise jurisdiction over defendants who committed acts outside the state, as long as those acts affect the state in some way. Gray v. American Radiator defendant negligently manufactured valve in OH, put into water heater in PA by a different manufacturer and then sold to IL where it exploded. Court held that defendant had committed a tortious act within the state in accord with the long-arm statute. Held that injury within the state enough to justify jurisdiction there, even though manufacture of the product occurred outside the state. Federal Courts unless there is a federal long-arm statute that applies, the reach of a federal court is generally only as far as the state in which it resides. CHALLENGING PERSONAL JURISDICTION First (Best) Option: Special Appearance some states allow defendants to make a special appearance where they come only to litigate the issue of personal jurisdiction. The act of showing up to the court does not submit them to PJ. If any other issue that could be construed as a defense on the merits, defendant loses protection of special appearance. Most states do not allow interlocutory appeals on issue of PJ, though some do.

Federal Rules defendant may appear before answering to the merits of the complaint and object to personal jurisdiction. Defendant may also raise other objections at the same time without waiving objection to PJ. Immediacy requirement a defendant who answers on the merits and only later objects to personal jurisdiction will not be allowed to do so. Most defendants who lose on issue of PJ may stay to litigate on the merits without waiving their objection so that they can appeal the issue. Interlocutory appeal on issue of PJ not allowed. Second Option: Collateral Attack ignore original suit entirely, take the default judgment, and object to personal jurisdiction when the plaintiff attempts to enforce that judgment against you in the enforcing state. Enforcing court always has the option of concluding that original court lacked personal jurisdiction Risky because, if defendant loses on his objection to PJ in the enforcing court, cannot argue on the merits because the issue was already settled by the first court Cannot do both issue preclusion will prevent defendant from making special appearance and then relitigating the issue in a collateral attack (assuming they lose original objection).

PERSONAL JURISDICTION NOTICE Notice Requirement notice is given its own consideration and inquiry apart from PJ and minimum contacts. Notice must be given in a manner which is reasonably calculated to reach the intended parties. Adequate notice does not depend on type of jurisdiction which is exercised Mullane v. Central Hanover Bank & Trust CHBT gave constructive notice of hearing through local newspaper, even though many beneficiaries lived across the country Notice must be reasonably calculated to reach the intended parties. Mere publication not good enough. Notice through certified mail would be good enough. Does not require best service (personal service) because cost would be too high. Service can be made by any non-party whos at least 18 years old Rule 4(c)(2) How do we serve a person Rule 4(e)(2): Personal service walk up to person and give it to him Substituted Service: must be at Ds dwelling + serve someone of suitable age and discretion who resides at dwelling Serve Ds agent Rule 4(e)(1): we can use a method that is permitted by state law State where federal court sits; or State where service is affected How do we serve a business (corporation, partnership, etc.) Rule 4 (h)(1): serve officer or managing/general agent Somebody whos superior enough to take it Rule 4(e)(1): whatever method the state says Waiver of service: Rule 4(d) done by mail Mail the waiver form to D and must provide self-addressed stamped envelope D can sign waiver form and mail it back to P D has waived formal service

If D fails to return waiver form, she may be liable to pay cost of formal service Waiving service speeds up process and saves costs..more efficient

Subject Matter Jurisdiction

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Diversity of Citizenship federal courts can hear cases involving parties who are from different states of residence See: 28 USC 1332 Requirements: total diversity, AIC Total Diversity Requirement All plaintiffs must be diverse from all defendants. Does not matter if plaintiff not diverse from other plaintiff or defendant not diverse from other defendant. Citizenship U.S. citizens are residents of the state in which they are domiciled. State of residence does not change until the individual moves to a new location with an intent to stay there. Special rules for citizenship: Corporation is dual citizen of state of incorporation and state of principal operations. Can look at total activity based on all aspects of activity For partnerships, look at citizenship of all partners. For unincorporated associations, such as unions, they take the citizenship of all members. Hard to secure total diversity here. Foreign permanent resident is resident of the state in which they reside Administrator of estate of decedent is resident of the same state as decdent Mas v. Perry Mr. and Mrs. Mas suing, question is Mrs. Mass citizenship. She was citizen of Mississippi though lived in Louisiana for some time for school. Mississippi remains Mrs. Mass domicile even though she did not intend to return to live there. As long as she had not moved to a new domicile with an intent to stay there, Mississippi remains her state of residence. Amount in Controversy Requirement generally, claims in diversity suits must amount to $75,000. AIC evaluated at outset, and claims are only thrown out if the judge determines, to a legal certainty, that there is no way the AIC can be satisfied. Heavily weighted toward plaintiff. Special rules for amount in controversy: Single plaintiff can sue single defendant and aggregate multiple claims, even if claims are unrelated Two plaintiffs, each with separate claims, suing a common defendant CANNOT aggregate their claims, even if claims are related

Single plaintiff with claims against multiple defendants CANNOT aggregate claims, even if claims are related Rule (except below): each plaintiff must have required amount against a defendant A plaintiff with a claim that satisfies the required amount can join with another plaintiff whose claim does not satisfy the required amount when the claims are related. Court has supplemental jurisdiction over claim that does not satisfy AIC. Citizenship Determined at Outset of Trial status of diversity is determined at the outset of litigation. Does not change if someone moves during trial. Coury v. Prot Coury (CA) sues Prot (TX/France) in Texas state court. Prot removes case to TX District Court, but argues that his domicile was actually France. Good diversity while did move to France, did not intend to stay there so domicile did not change. Although removal was improper because Prot sued in his home state, Prot waived right by not filing complaint within 30 days. Defects in Diversity defects (e.g. non-total diversity) can be cured prior to the case going to trial. Can dismiss a non-diverse defendant prior to trial and proceed with diversity trial. Judicial economy does not make sense to dismiss a case for want of diversity and relitigate it when the judgment itself would have been fair. Caterpillar v. Lewis party which busted diversity entered the litigation, but claims between non-diverse parties were settled prior to litigation. Even though there was not complete diversity at the time of removal, judgment still good. Costs of relitigation too high to justify remanding to state court, given that defect was cured and diversity was complete at time of judgment. Special Statuses for Diversity US citizen domiciled abroad diverse from no one No jurisdiction to hear alien v. alien Can hear citizen v. alien SMJ FEDERAL QUESTION JURISDICTION

Federal question jurisdiction good jurisdiction if the case arises out of a federal issue. See 28 USC 1331. Face of Complaint federal issue must be raised in plaintiffs complaint. Basis for federal question jurisdiction cannot arise out of an answer or other defense. Well pleaded complaint rule (Mottley): in order for a case to arise under federal law, and thus have good FQ jurisdiction, the plaintiff would have to raise the federal issue in a complaint which includes the elements they need to prove to establish their claim, and only those elements. Mottley included questions of federal law in their complaint, but they did not have to in order to state a claim for relief. Holmes Test: federal law creates the underlying substantive right plaintiff seeks to enforce and authorizes them to go to court to seek remedy If a federal statute which allows claimants to bring their claim does not state a cause of action cannot be brought in federal court. A suit where the cause of action is based in state law, but where a federal issue is needed to prove that cause of action, can be brought in federal court. Louisville & Nashville Railroad v. Motteley plaintiffs railroad pass was not reissued after Congress passed statute preventing their issuance. Railroad will argue in defense that federal statute prevented them from reissuing pass. Federal question must be raised on face of plaintiffs complaint, not in an answer. Here the issue only arises out of state contract law. Only federal question is due process question, which is in response to defendant. Bracken v. Matgouranis Bracken argues that her answer to defendants answer would raise a federal question, on which the case would turn. Federal question must be contained on face of the complaint. SMJ SUPPLEMENTAL JURISDICTION Supplemental Jurisdiction plaintiff can bring multiple claims, some with good SMJ and some that dont have good SMJ, if the original claim has a good basis for independent jurisdiction and the other claims are transactionally related. 28 USC 1367: supplemental jurisdiction A: federal court has jurisdiction over all other claims that arise from same case or controversy as original claim

B: no supplemental jurisdiction in DIVERSITY cases over claims made by PLAINTIFF against persons made parties under Rules 14, 19, 20, or 24, or over claims from persons proposed as plaintiffs under Rules 19 or 24 if doing so would bust diversity C: district court can decline to exercise supplemental jurisdiction in some circumstances If other claims which are added have an independent basis of SMJ, then dont look to supplemental jurisdiction. Can enjoin additional parties as long as claims are related UMW v. Gibbs Gibbs brings federal and state claim in federal court, both claims arise from same fact pattern Federal court has jurisdiction over both claims if they arise out of a common nucleus of operative fact Scenarios If plaintiff brings a proper federal claim or diversity claim, the court can also hear all claims that are part of the common nucleus of operative fact (Gibbs-type nexus), UNLESS part of the exceptions below CANNOT exercise supplemental jurisdiction in DIVERSITY CASES over joinder of parties under Rules 14, 19, 20, 24 or joinder of claims under Rules 19 and 24 IF the exercise of supplemental jurisdiction would bust complete diversity. Three Step Analysis Does Court have Constitutional power to hear the case? Yes if they arise from same transaction or occurrences Gibbs type nexus Does Court have statutory power to hear the case? Usually yes, per 1367. If the original claim is proper because of good federal question or diversity, then Court authorized to hear all cases that have Gibbs-type nexus. HOWEVER, for DIVERSITY CASES some cases under 1367(b) will not get supplemental jurisdiction in some cases Key Takeaways If there is a proper federal claim, court has supplemental jurisdiction to hear claims by or against other parties if those claims arise out of same transaction or occurrences, even if the plaintiff has not asserted any jurisdictionally sufficient claim against the added party.

Venue
case 28 USC 1391 A (DIVERSITY ONLY) good venue in:

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Venue another set of considerations in determining if a given district is proper to hear the

District of any defendants residence, if all residents reside in same state Does not depend on citizenship, just residence District in which a substantial part of the events or omissions leading to the suit occurred, or where a substantial part of the property that is the subject of the action is situated Ex: failure to perform on contract, tortious harm, manufacturing, etc Multiple districts may qualify here does not have to be best district, any will satisfy rule Judicial district in which any defendant is subject to personal jurisdiction, but only if there is no other district in which the action can be brought Not available if there is a viable venue from either of the first two provisions Usually only works for events occurring outside of U.S. B (NON-DIVERSITY CASES) good venue in: District of any defendants residence, if all residents reside in same state Does not depend on citizenship, just residence District in which a substantial part of the events or omissions leading to the suit occurred, or a substantial part of the property that is the subject of the action is situated District in which any district may be found (good PJ), but only if there is no other district which would qualify as good venue Usually only works for events occurring outside of U.S. C (RULES FOR CORPORATE DEFENDANTS) corporation resides in any judicial district in which it is subject to personal jurisdiction. If there is more than one district in a state, corporation resides in any district in that state in which it has sufficient minimum contacts. Does not apply to corporate plaintiffs D (RULES FOR ALIEN) aliens can be sued in any district Waiver defendant waives objection to venue by failing to raise it when they respond to plaintiffs complaint (see Rule 12) Exception for Other Provisions of Law if there is a law which stipulates where certain types of cases may be brought, venue statute defers to those Ex: patent infringement claims, by statute, limited to district in which infringement occurred and defendant has regular and established place of business.

PKWare v. Meade defendant didnt make delivery of software, suit brought in district where software was to be delivered In contract cases, failure to make delivery and payments constitutes substantial part for purposes of venue statute Transfer of venue not needed here operative events split between the two districts, defendant only 300 miles from current venue, lots of time already invested in current venue so judicial economy favors non-transfer Forum Non Conveniens claim that trial should proceed in another forum because that other forum is significantly more convenient. Motion to dismiss the case so the other forum can pick it up. Courts evaluate both private and public factors of fairness and justice: Private factors Benefits and burdens to plaintiffs and defendants, respectively Defendants and plaintiffs interests in forums Public factors Interest of the forum citizenship of parties, applicable law, etc Interest of other possible forums Judicial system interests inclusion of all parties, packaging of claims, access to evidence and witnesses, Court of Appeals does not have de novo review must view with deference to District Court Piper Aircraft v. Reyno plane crashed in Scotland, possible malfunctioning parts manufactured in the U.S. Forum non conveniens invoked so that case proceeds in Scotland inquiry should be focused on convenience, not applicable law. Public and private interests point to allowing trial to proceed elsewhere REMOVAL Removal defendant can remove a case which was brought in state court to the relevant federal court, as long as the federal court could have heard the case in the first place if it would have had original jurisdiction. Must be removed to the federal district court where the case was originally brought in state court only one court to which any case can be removed Venue doesnt apply for removal must be removed to relevant district court

Entire suit must be removed, not individual claims. Relevant statute: 28 USC 1441 Process for Removal Motion for removal must be filed within 30 days of plaintiffs pleading Once notice is filed, state court loses control and federal court takes over Plaintiff can argue in federal court that removal was procedurally improper or that federal court lacks proper SMJ Home State Exception if defendant is sued in their home state, cannot remove a diversity suit. Suits with good FQ jurisdiction are removable without regard to citizenship. Amendments if a complaint is amended, and this amendment would grant federal courts jurisdiction over a case, then defendant may remove it. Ex: plaintiff sues in state court over a state law claim. Amends complaint later to include a federal question. Removal statute allows for removal of this suit. Can remove cases such as Gibbs, which have an anchor federal claim, but cannot remove cases such as Motteley because no original jurisdiction. TRANSFER Transfer request that case be transferred to another federal district in the issue of fairness 28 USC 1404 can transfer case to another district where it might have been brought for the sake of convenience of the parties and witnesses keeps old venue law

28 USC 1406 can transfer case to another district where it might have been brought if there is a defect (venue, jurisdiction, etc). takes on new venue law

Considerations district where case is transferred to must satisfy rules of personal jurisdiction, SMJ, and venue (will probably already satisfy SMJ because it was already in federal court).

Apply fairness test at a lower standard of convenience. Focus on plaintiffs and witnesses, because defendant is the one motioning for transfer. There is a proverbial thumb on the scale in favor of the plaintiff, since they get to choose where to bring suit in the first place. Plaintiffs burden/benefit Defendants burden/benefit Judicial system interests Original forums interests Possible new forums interests Differences in applicable law

Pleadings
Complaint must be sufficient and specific

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Legal sufficiency assuming the facts are true, is there a claim on which recovery could be based? Factual specificity level of factual detail Rule 8 a Claim for Relief: a pleading that states a claim for relief must contain: a short and plain statement on the grounds for the courts jurisdiction a short and plain statement of the claim showing that the pleader is entitled to relief a demand for the relief sought b Defenses; Admissions and Denials In general, response must: state in short and plain terms its defenses to each claim asserted against it, and admit or deny the allegations asserted against it Denials a Denial must fairly respond to the substance of the allegation General and specific denials a party that intends in good faith to deny all the allegations of a pleading, including jurisdictional grounds, may do so by a general denial. A party that does not intend to deny all of the allegations must either specifically deny designated allegations or generally deny all except those specified. Lewis v. U.S. Slicing Machine Co. defense alleges that complaint doesnt state a claim for relief With modern pretrial tools such as discovery and deposition, dont have to explicitly state all facts in complaint. Meant to give adequate notice of the suit. Zielinski v. Philadelphia Piers plaintiff injured while on defendants pier, sued defendant. Defendant entered general denial. Only after pleadings had been filed did plaintiff learn true employer of tortfeasor. Since defendant only entered general denial, plaintiff could not have known true employer of tortfeasor until discovery. No bad faith.

PLEADINGS AMENDMENTS Rule 15 a Amendments Before Trial Amending as Matter of Course party may amend pleading once as a matter of course Before being served with responsive pleading, or Within 20 days after serving the original pleading if responsive pleading is not allowed Other amendments in all other cases, a party may amend its pleading only with the opposing partys written consent or the courts leave. Time to Respond unless otherwise specified, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading, whichever is later. b During and After Trial Based on objection at trial if at trial a party objects that the evidence is not within the issues raised by the pleadings, the court may permit pleadings to be amended. Should be given freely when doing so will aid in presenting the merits and will not prejudice opposing partys action or defense on the merits. For issues tried by consent when an issue not raised by the pleadings is tried by the parties express or implied consent, it must be treated in all respects as if it was raised in the pleadings. A party may move at any time, even after judgment, to amend the pleadings to conform them to the evidence and raise unpleaded issue. c Relation Back of Amendments When an Amendment Relates Back an amendment to a pleading relates back to the date of the original pleading when: The law that provides the applicable statute of limitations allows relation back The amendments asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading, or The amendments changes the party or the naming of the party against whom a claim is asserted Key Takeaways 15(a) gives all parties the opportunity to amend pleading once, either before a responsive pleading is filed (for plaintiff) or within 20 days of serving original pleading (for defendant) Amendment relates back to original date of pleading if it arises from same transaction or occurrence (Gibbs). Works even in cases where amendment would run afoul of statute of

limitations. Works with Rule 8 because defendant has already been notified of cause of action, just adding another complaint entitled to relief. An amendment which adds a new party to the suit will not relate back to the original suit, UNLESS: The claim against the new party arises from the same transaction or occurrence as the original claim The new party had notice, within the period for delivery of the original complaint to the original defendant, that the action against the original defendant had been filed The new party knew or should have known that, but for a mistake as to the identity of the proper party, the original action would have been against him. Beeck v. Aquaslide plaintiff injured on waterslide believed to be of defendants manufacture. Three insurance companies inspected slide and concluded this. Before trial companys president inspected the slide and determined that it was not of Aquaslide manufacture, amended response. Leave to amend to be freely given in order to avoid injustice. No bad faith or undue delay here. Burden of showing prejudice to amendment falls on party opposing amendment Amendments Should Be Given Freely Unless: Party seeking amendment acted in bad faith Party seeking amendment engaged in undue delay Party against whom the amendment is made suffers prejudice Look to prejudice only when defendant was not already apprised (through first complaint) of the events over which he was being sued. If amendment arises out of same transaction or occurrences, then defendant was probably apprised of these events and there would be no prejudice.

PLEADINGS DEFENSES UNDER RULE 12 12(a): Time for Answer unless otherwise specified, responsive pleading must be served: Within 20 days after being served with summons and complaint, or If it has waived service, within 60 days after request for waiver was sent, or within 90 days after it was sent to defendant outside of U.S. Counterclaim or crossclaim party must serve answer within 20 days Reply to answer must serve reply to answer within 20 days after being served with order to reply 12(b): How to Present Defenses. The following motions must be made prior to responsive pleading. If a pleading sets out a claim for relief which does not require a responsive pleading, then opposing party may assert any defense at trial to that claim. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. May assert the following defenses by motion: 1 - Lack of subject-matter jurisdiction 2 - Lack of personal jurisdiction 3 - Improper venue 4 - Insufficient process 5 - Insufficient service of process 6 - Failure to state a claim upon which relief can be granted (law does not authorize recovery) 7 - Failure to join a party under Rule 19 12(e): Motion for a More Definite Statement May make motion for more definite statement of a pleading that is so vague or ambiguous that the party cannot reasonably prepare a response. Motion must be made before responsive pleading 12(g): Joining Motions Right to Join can join any motion from this rule (12) with another from this rule Limitation on Further Motions Except as provided in 12(h), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available but omitted in earlier motion 12(h): Waiving and Preserving Defenses When some are waived a party waives any defense listed in 12(b)(2)-(5) by:

Omitting it from the motion as described by 12(g), or Failing to either: Make it by motion under this rule, or Include it in a responsive pleading or in an amendment allowed by Rule 15 When to raise others failure to state a claim upon which relief can be granted, to join a person required by Rule 19, or to state a legal defense to a claim may be raised: In any pleading allowed or ordered under Rule 7(a) By a motion under Rule 12(c), or At trial Lack of subject-matter jurisdiction if the court determines at any time that it lacks proper subject-matter jurisdiction, the court must dismiss the action Key Takeaways Usually must file responsive pleading within 20 days Must make all pre-trial motions in 12 at the same time or else they are waived EXCEPT 12(b)(1,6-7) First piece of paper that defendant files must contain all waivable objections. Not required to file any Rule 12 motions, but if you dont and want to raise these defenses they must then be contained in the answer. Note: can still make motion to transfer venue and object to subject matter jurisdiction after filing answer or defense under Rule 12 These defenses are pre-trial and only look to what is contained in plaintiffs complaint. Langadinos v. American Airlines plaintiff assaulted by drunk passenger on flight. Amended pleading prior to answer, but defendant filed motion to dismiss under 12(b)(6). Claim for relief only has to be plain and simple. All that is needed is generalized statement of facts from which the defendant will be able to frame a responsive pleading. Bell Atlantic v. Twombly Twombly brings class action suit against Bell Atlantic, alleges collusion because of inference through their behavior Need more than conclusory statements to satisfy 12(b)(6). Must be an allegation sufficient to create a claim for relief. Factual allegations must provide a plausible basis for concluding some relevant act occurred

Eerie
Decision Roadmap:

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If there is a Federal Rule that speaks to the issue, then use that Rule UNLESS the Rule abridges or modifies any substantive state right (relevant to the claims and defenses of the lawsuit) If there is not a Federal Rule, perform an Erie anaylsis Would application of federal practice be outcome determinative in the sense that it would promote forum shopping? If it would promote forum shopping, what are the relevant federal interests in applying its practice? If there are particularly strong federal interests (Byrd), then can still apply federal law/practice Four Situations Conflicts between Federal Constitutional Provision and State Law if the Constitution mandates a practice different from state law, constitutional requirement prevails on both substantive and procedural issues (i.e. 7th Amendment right to jury trial). Conflicts between a Federal Statute and State Law if Congress has the authority to enact such a statute, then the federal statute will govern if it is arguably procedural. (Stewart v. Ricoh) Conflicts between Federal Rule and State Law Federal Rule applies as long as it is valid and does not abridge or modify any substantive rights. Conflicts between Federal Judicial Practice and State Law judges have no authority to issue rulings which would regulate primary behavior (behavior outside of court). For practices regulating in-court behavior, apply state law if the difference would be outcome determinative by promoting forum shopping. What Constitutes a Conflict between Laws? If there is no direct conflict, then apply state law. When does a Rule/statute not apply because it abridges, enlarges, or modifies a substantive right? Courts have rarely held that a rule doesnt apply for this reason Rule would have to have a substantial impact on state policy unrelated to litigation Most likely a Rule will be struck down as abridging a substantive right if it substantially affects out-of-courtroom behavior. Rules which dont favor either party and only apply to the litigation or efficiency of the suit will probably be upheld.

Erie v. Tompkins plaintiff was struck by defendants train while walking along track in PA, brings suit in NY. PA common law says that defendant only owes duty of care as to a trespasser because he was walking along track. Decision for defendant railroad state law applies State law should govern in substantive issues. Imposition of federal common law would prejudice state citizens by forcing them to litigate without protection of state laws. State common law given same weight as state statutes. Both must be applied by federal courts when applicable. General Rules federal court in a given state, unless federal law otherwise provides, must apply law that a state court would apply in that situation. In cases where state court must apply laws of another state (see Fauntleroy), federal court must apply those same laws Also applies to foreign laws Same laws must be applied in court after transfer of venue Common Law and Statutes where applicable, federal courts must apply both state common law as well as relevant state statutes. Interpretation of Law by Federal Courts where state law is unsettled or unclear, federal courts must nevertheless, if obligated to, apply the state law and make a reasonable effort at interpretation. No guarantee that federal courts will get it right, and there is no state-based review of federal decisions on state law Trade-off between protection of state citizens and slight possibility that state law interpreted incorrectly Guaranty Trust v. York plaintiff brings suit after state statute of limitations had run. Rule: outcome determination federal court should apply state law so that enforcement of laws is the same Byrd v. Blue Ridge Byrd sued Blue Ridge for injuries sustained while working. State law would dictate that judge makes determination of whether or not Byrd was a statutory employee, while federal practice is to submit it to jury. Supreme Court ruled that federal practice governs here.

Must look at federal interests in applying their practice as well as outcome determination. Strong importance of maintaining judge-jury relationships under 7th Amendment in federal courts. Hanna v. Plumer Hanna sues Plumer over damages sustained in car accident in SC, case brought in MA as diversity suit. Service left at defendants house, which satisfied federal rule but not MA rule on service. Rule: if there is a valid Federal Rule that speaks to the issue, apply that rule Congress has authority to promulgate rules governing procedure in federal courts, would overstep power to say Congress cannot do this Rule must be arguably procedural Modified outcome determinative test: outcome determinative if the difference between federal and state practice would encourage forum shopping and would result in inequitable administration of laws Stewart v. Ricoh forum selection clause in contract provided that case was to be litigated in NY. Plaintiff brought suit in Alabama. Trial court would not grant motion to transfer under 28 USC 1404. Hanna analysis extends to conflicts of state law with federal statutes here there is a conflict between state practice to not transfer and 28 USC 1404. Rule: if federal statute is arguably procedural, then apply federal statute over state law

Preclusion

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Claim preclusion requirement that all related claims be brought in the first lawsuit If in a 2d Restatement jurisdiction, barred from bringing a second suit even it is on a new theory of recovery that arises out of same transaction or occurrence Usually not a problem with joinder Rule 18 very lenient and can bring multiple claims Claim preclusive effects will be universal federal and other state courts must apply same claim preclusive effects that would have been applicable in original state Requirements for Claim Preclusion to Apply Same parties in both proceedings Same transaction/occurrence Preclusive effect will be the same in all other courts (federal/state) as it would have been in original state Migra v. Warren plaintiff had valid employment contract with defendant school district. Brought suit in Ohio court for breach of contract, on which she won. Later brought suit in federal court, alleging that termination of employment had violated her constitutional rights. Precluded from bringing second claim, even though new theory of recovery. Issue arises from same transaction, should have been brought in first suit. Rule: same claim preclusive effects in federal and other state courts as there would have been in the original state court. State federal court

ISSUE PRECLUSION Issue Preclusion prevents parties from relitigating issues that were actually litigated and decided in a prior action with the same defendant Issue preclusion can only be an issue if claim preclusion is not Can only be used on parties who previously litigated and lost on an issue Do not need to have been a party to the original proceedings to use issue preclusion Requirements for Issue Preclusion Must be same issue as first proceeding Must actually have been litigated Issue must actually have been decided verdict given Issue preclusion will not apply unless the decision on the issue in the original proceeding was necessary to the courts judgment Ex: plaintiff sues scaffolding company, who impleads manufacturing company of ladder. Court finds that ladder was manufactured by the company, but that the defect was not reason for fall. Issue of who made the ladder can still be litigated even though decided on, because that finding was not necessary to the judgment of the court. Defensive Issue Preclusion usually involves repeat plaintiff where plaintiff sues one person, loses on that issue and then tries to sue another defendant. Defensive issue preclusion acts as an incentive for plaintiff to join as many defendants as possible in one lawsuit. Offensive Issue Preclusion where new plaintiff sues repeat defendant on an issue which they have litigated and lost on previously. Problematic but court does not rule it out Up to discretion of court variety of factors go into consideration Has defendant won any of these actions in past, or lost all of them Any procedural opportunities that would not have been available in the first action that now are (broader discovery, extension of PJ, subpoenas, etc) Incentive of defendant to litigate hard on first issue Could new plaintiff have joined as a plaintiff in the first proceeding Parklane Hosiery v. Shore plaintiff brought suit that defendant issued misleading statement in relation to a merger. Prior to this suit SEC had brought suit on same issue, where court ruled

that proxy statement had been misleading. Shore attempted to use issue preclusion to prevent Parklane from relitigating the issue because they had already litigated and lost on it. Shore could not have joined the original suit because it was an SEC suit. Can use offensive issue preclusion, but court has discretion. Can consider if there are other inconsistent judgments, whether defendant had incentive to litigate aggressively, whether there are new procedural rules available in this proceeding, and if plaintiff could have joined original proceeding (wait and see problem)

Joinder
JOINDER - CLAIMS

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Joinder of Claims allows parties, once they are properly joined in a lawsuit, to assert additional claims against opposing parties Rule 13 counterclaims authorizes defending party in a suit to assert claims back against a party who has claimed against him Rule 13 cross-claims allows claims against a co-party that are transactionally related to original claim Rule 18 a party seeking relief from an opposing party (i.e. already has a claim against him) may join with his original claim any additional claims he has against that opposing party Rule 13 Counterclaims and Cross-Claims 13(a) compulsory counterclaims: if the claim arises from the same transaction or occurrence, then it is compulsory and he must bring it in the original action or lose it 13(b) permissive counterclaims: do not have to be related to the original claim. 13(g) cross-claims: must arise from same transaction or occurrence as the main claim. Asserted by one party against a co-party (plaintiff-plaintiff or defendant-defendant). Joinder is optional, so can sue separately on these claims. Rule 18 General Claim Joinder 18(a) a party seeking relief from an opposing party may join with his original claim any additional claims that he has against that opposing party. No same transaction or occurrence requirement for these claims. Key Takeaways Must still satisfy subject-matter jurisdiction, venue, personal jurisdiction Counterclaims that arise from same transaction or occurrence are compulsory and must be brought as a counterclaim in the original suit or lost Can bring counterclaims not transactionally related to original claim at any time, can be brought separately If defendant asserts a counterclaim against original plaintiff, the defendant can then add a party to the counterclaim pursuant to Rule 20 (same transaction or occurrence and common question of law or fact). Cross-claims against a co-party must be transactionally related to original claim If party makes a cross-claim or counterclaim against another party, then rule 18(a) kicks in and they can bring any other claims they may have, including counterclaims.

If you have a permissive counterclaim that cant come into federal court on its own, then it cant come into federal court at all. Compulsory counterclaim will always be able to get into federal court because, by definition, it must be transactionally related to original claim. Compulsory counterclaims can always get into federal court because they are transactionally related and get supplemental jurisdiction through 28 USC 1367(a) Permissive counterclaims, by definition, are not transactionally related and so they do not fall under 1367(a). If they dont have independent basis for SMJ, wont get in Iglesias v. MONY Iglesias brought suit alleging that he was terminated because of discrimination. In discovery MONY discovered that he had continued padding his expense account and tried to use this to justify termination, tried to amend counterclaim. Counterclaim is permissive because it doesnt arise from same transaction or occurrence as original claim. First claim is about termination, second claim is about padded expense accounts which were not a reason for termination If counterclaim is permissive, it needs its own basis for supplemental jurisdiction in order to be heard. Does not get in under 1367(a) because not transactionally related, and 1367(b) prevents it.

JOINDER PARTIES Rule 20 Permissive Joinder of Parties a Persons who may be joined 1. Plaintiffs persons may join in one action as plaintiffs if: They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and Any question of law or fact common to all plaintiffs will arise in the action 2. Defendants persons may be joined in one action as defendants if: Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and Any question of law or fact common to all defendants will arise in the action 3. Extent of relief neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities. b Protective measures the court may issue orders, including an order for separate trials, to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. Rule 14 Third Party Practice a When a Defendant may enjoin a third party 1. Timing defendant may, as a third party plaintiff, serve summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. Must obtain courts leave if it files third-party complaint more than 10 days after serving original answer. 2. Third-party defendants claims and defenses the person served with the summons and third-party complaint (third party defendant): Must assert any defense against the third-party plaintiffs claim under Rule 12 Must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any cross-claim against another third-party defendant under Rule 13(g) May assert against the plaintiff any defense that the third-party plaintiff has to the plaintiffs claim, and

May also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff 3. Plaintiffs claims against a third-party defendant plaintiff may assert against the third-party defendant any claim arising out of the same transaction or occurrence as original claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert permissive counterclaims or crossclaims. Joinder, Generally Under Rule 20, multiple plaintiffs can sue together if they assert claims that are transactionally related and involve a common question of law or fact Good for reasons of efficiency and can avoid inconsistent judgments Under Rule 20, can sue multiple defendants if claims are transactionally related and involve a common question of law or fact. Rule 20 is permissive not required to sue all defendants/join all plaintiffs Under Rule 14, a defendant can only implead a third-party defendant if their liability is derivative for all or part of the original defendants liability Usually tort claims (jointly and severally liable), contract indemnification clauses, insurance are good Impleader of a third party under Rule 14 does not affect courts jurisdiction over original claim Impleader of a third party under Rule 14 does not affect venue determination Under Rule 14, there must still be a basis for good subject matter jurisdiction over the impleader claim. Can be diversity between defendant and third-party defendant, federal question, or can be supplemental jurisdiction. Under Rule 14, there must be good PJ over third-party defendant because you are adding a party to the suit. When doing fairness analysis, focus on the burden on third-party plaintiff to bring the indemnity action at a later date and in a different forum. Under Rule 14, a properly impleaded third-party defendant can assert a claim against the original plaintiff Same rule for counterclaims, rule 12 defenses apply to third-party defendants Determination of third-partys liability will depend on the outcome of the main claim. If original defendant is found not liable, then they are found not liable to the original defendant. Rule allows third-party defendant to assert defenses to original defendants liability to plaintiff, as well as third-partys liability to original defendant.

Allstate v. HCB Coston was subcontractor for HCB, which built a home that burnt down. HCB filed third-party complaint against Coston arguing that they were truly liable, not them. Cant use its them, not me defense. Liability must be derivative, and in this case it is not so cant get in under 14(a) Owen v. Kroger Kroger was electrocuted by power line owned by OPPD, brought diversity suit. OPPD filed third-party complaint against Owen, operator of crane which touched power line. Kroger amended complaint to include Owen as a defendant. During the middle of trial Owen revealed its place of business, which busted diversity. Cannot add Owen as a defendant because it would bust diversity

JOINDER MANDATORY JOINDER OF PARTIES Rule 19. Required Joinder of Parties a Persons Required to be Joined if Feasible 1. Required Party a person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: In that persons absence, the court cannot accord complete relief among existing parties, or That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the persons absence may: As a practical matter impair or impede the persons ability to protect the interest, or Leave an existing party subject to a substantial risk of incurring inconsistent judgments against them 2. Joinder by court order if a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff. 3. Venue if a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party. b when joinder is not feasible if a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: the extent to which a judgment rendered in the persons absence might prejudice that person or the existing parties the extent to which any prejudice could be lessened by: protective provisions in the judgment, shaping the relief, or other measures whether a judgment rendered in the persons absence would be adequate whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder Key Takeaways A party is required to be joined under Rule 19 if the non-joinder of that party could result in inconsistent judgments against the defendant or when the third party could lose its interest in the suit Not feasible to join a party when they dont satisfy any of personal jurisdiction, subject matter jurisdiction, or venue.

If there is a required party, the court can still decide to go on with the suit without them if their joinder isnt feasible. Number of factors (above) which go into consideration. Rationale for Mandatory Joinder protects defendant. If other necessary parties arent present in the litigation, then the defendant could get stuck with inconsistent judgments. Those other parties who are not in the litigation will not be bound by the judgment of the court in future proceedings, so those rulings could come out contrary to the original ruling. Feasibility it may not be feasible to join a party for reasons such as personal jurisdiction, subject-matter jurisdiction, and venue Helzberg v. Valley West Helzberg had lease with Valley West where VW would not lease to more than two other jewelry stores. When Valley West signed lease with third, Helzberg moved for injunction. VW moved to dismiss because third store wasnt included as a party. Not feasible to join because not subject to personal jurisdiction of the court Court did not dismiss because Lords rights were not implicated by proceedings and VW voluntarily entered into two conflicting lease agreements Tort Cases usually wont have mandatory joinder in tort cases. Joint tortfeasors will usually be permissive parties. Temple v. Synthes - Temple had surgery, screws broke off in his back. Sued manufacturer. Synthes moved to dismiss because did not join mandatory parties of the hospital and doctor. Not necessary to name all joint tortfeasors as defendants in the same action permissive parties

Trials
TRADITIONAL JUDGE-JURY RELATIONSHIP

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Right to Jury Trial the right to a trial by jury is preserved by 7th Amendment Only applies to federal courts, but most state courts follow the rule as well No right to trial by jury in suits on equity Lavender v. Kurn Deceased was switchthrower for defendant railroad, died while on the job. Unclear how he died, but jury returned verdict for plaintiff. Missouri SC reversed, but USSC reinstated original verdict for plaintiff. There was evidence from which a rational trier of fact could have found for the plaintiff Jury is the finder of fact doesnt matter if court would have ruled another way as long as there was a rational basis for the jury to decide the way that it did. Allocation of Duties between Judge and Jury Jury: Evaluates evidence Evaluates credibility of witnesses More witnesses on one side than the other Cases where evidence seems to be equal Judge: Assures that sufficient evidence has been presented

JUDGMENT AS MATTER OF LAW Judgment as a matter of law granted when one party has not met their burden of production. Has not produced evidence from which a rational trier of fact could find for them. Same as directed verdict When a Judge can issue directed verdict At close of plaintiffs evidence if issue is clear (uncommon) At the close of all the evidence Post-verdict (jnov) Standard for Evidence there must be sufficient evidence for a rational trier of fact to make a decision either way Federal standard take into account the non-moving partys evidence, as well as any evidence of the moving party which is uncontradicted Erie Problem: when there is a conflict between burdens of persuasion, use the state burden of persuasion. Rule 50 a Judgment as a Matter of Law In General if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: Resolve the issue against the party, and Grant a motion for judgment as a matter of law against the party Motion motion for judgment as a matter of law may be made at any time before the case is submitted to the jury Pennsylvania Railroad v. Chamberlain plaintiff was worker for railroad, was riding on cars when they were allegedly struck from behind by another string of cars. Plaintiff was thrown off and run over. Conflicting testimony on whether or not there was collision. Evidence not sufficient for jury to give verdict for plaintiff one person who testified that they collided could not actually see the cars and was in direct contradiction to testimony of workers on cars which allegedly struck plaintiffs

Howard v. Wal-Mart Howard slipped and fell on a puddle of soap in an aisle. Not known who actually spilt the soap conflicting theories. Evidence was sufficient for jury to return verdict for plaintiff directed verdict not appropriate [Link] where a judge enters a verdict for a party as a matter of law when the jury returns a verdict for the opposing party Usually used in close cases Good practice to allow the case to go to the jury, just in case it gets sent back on appeal there is already a jury verdict on the record Have to have moved for a directed verdict during the pendency of the trial in order to get postverdict jnov NEW TRIALS Rule 59 New Trials a In general 1. Grounds for a new Trial the court may grant a new trial on all or some of the issues to any party as follows: After a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court After a nonjury trial, for any reason for which a rehearing has heretofore been granted b Time to file a motion a motion for a new trial must be filed no later than 10 days after the entry of judgment New Trial can be granted for any reason which, at the time of the statute, had before been granted Granting of a new trial doesnt pick a winner, more vacates the verdict Should only be granted when enforcement of jury verdict would result in miscarriage of justice or if result is unconscionable In simple cases with highly disputed facts, more weight should be given to jury verdict because they are trier of fact Reasons for New Trial: Verdict against great weight of evidence Error in jury instructions Misconduct by judge, party, counsel, or other unfairness at trial

Misconduct by jury Extraneous influence must be shown bribes, improper evidence Internal problems with jury deliberations are NOT grounds for new trial Discovery of new evidence, where party shows: Evidence was actually discovered after the trial Evidence could not have been discovered earlier with more diligent effort Evidence is likely to change the outcome of trial Size of the verdict is contrary to weight of the evidence Federal courts review size of verdict by asking of it shocks the conscience Standard of Review by Appellate Court on appeal, court has de novo review over questions of law (weight of evidence) and abuse of discretion review of size of verdict questions. Latino v. Kaizer plaintiffs suspected of scalping tickets, police arrested them. Conflicting stories. Jury found for defendant police officers, judge granted rule 59 motion for new trial because believed police had perjured. Judge acted as 13th juror and granted a new trial because he would have ruled a different way There was sufficient evidence for a rational trier of fact to return verdict for defendants. POST-TRIAL MOTION PRACTICE Even after trial and verdict has been entered, Court of Appeals has power to enter motions for either party Can order new trial Can order District Court to decide whether a new trial should be given Can enter directed verdict for one party Weisgram v. Marley fire in plaintiffs home which allegedly caused by defective heater. Plaintiff submits evidence from three sources to prove connection between heater and defendant, defendant argues that testimony unreliable and inadmissible. Jury returned verdict for plaintiff, Court of Appeals overturned and instituted directed verdict for defendant. Court of Appeals has authority to order new trial or enter directed verdict on appeal Fairness should be important concern for Appellate court in deciding what to do EXCESSIVE VERDICTS

Rule 59 allows for new trial on grounds that verdict was excessive. New trial can be on damages alone or can be a completely new trial, even if there were no grounds for new trial based on weight of the evidence Conscience Shocking Standard in order to get new trial, party must show that award was conscience shocking Deferential to juries because damages mainly fact-finding function Standard of Review: abuse of discretion Gasperini v. Center for Humanities defendant lost photo slides belonging to plaintiff. Jury awarded verdict of $450,000. District Court denied rule 59 motion, but court of appeals granted it. NY law should be applied on issue of damages different standard for judgment on whether to grant a new trial between state and federal courts, difference in grading is substantive issue

SUMMARY JUDGMENT Motion for Summary Judgment (Rule 56) assesses sufficiency of evidence prior to commencement of trial. Usually wont be granted when case turns on intent, usually a question for factfinder Motion based entirely on written record. Can look at evidence that has been introduced and argue that it will not be admissible/relevant at trial. In order to succeed, must prove that there is no dispute of material fact for the jury to decide on Can submit any materials that demonstrate that there is admissible evidence to prove/disprove a material fact (testimony, affidavits, depositions, etc). If opposing party puts forward no materials that they have evidence, then summary judgment should be granted. If there is no evidence, cant prove that issue and so court shouldnt have to hear the case. Celotex v. Catrett wife brought wrongful death suit against Celotex because husband allegedly had been exposed to their asbestos products. Defendant argued that testimony which she had (three sources saying that it was probably their product) would not be admissible as hearsay. Defendant did not have to have affirmative proof that product was not theirs, just has to show that plaintiff failed to make a showing on an essential element of their case No requirement to produce affirmative proof in the negative. Just have to proof that there is not sufficient evidence to support claim. Types of Issues which can be answered by summary judgment Preclusion questions Statute of limitations Sufficiency of evidence Scott v. Harris plaintiff injured when police officer ran him off the road in high-speed chase, says that force was excessive. Argues that bumping him off the road was not necessary in the circumstances because he did not pose a danger to other drivers. Court held that a video of plaintiffs driving proved that he was wrong. No dispute of facts here not possible to find in favor of plaintiff. Driving clearly not safe and his testimony clearly not correct version of events.

POST-JUDGMENT RELIEF Appeals in federal court, usually have to wait until judgment to appeal most issues Exception: trial courts which deny or grant injunctive relief dont want to have to wait to appeal issues of injunctions because could cause irreparable harm. Requires parties to appeal even dispositive issues Rationale: makes litigation process easier, smoother, more efficient. Otherwise a party who lost on an issue would appeal immediately every time they lost on it. Cohen Collateral Order Doctrine where an appeal would be effectively useless if exercised at a later date, then allowed immediate appeal. Must argue and prove that there is a right to not have to endure trial Double jeopardy, personal jurisdiction apply Forum selection clauses NOT immediately appealable Bowles v. Russell defendant convicted of taking part in murder by trial court, lost appeal of case. Filed habeus motion but lost, and filed for appeal AFTER 30 day period for filing had run. Judge granted 17 days for filing of appeal, but usual time is only 14 days. Defendant filed appeal after 14 day limit. Taking of appeal within proscribed time is mandatory and jurisdictional not subject to individual exceptions. Cannot have exception to jurisdictional rule. Rule 60 Relief from Judgment or Order b Grounds for relief from a final judgment, order, or proceeding On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: mistake, inadvertence, surprise, or excusable neglect newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) fraud, misrepresentation, or misconduct by an opposing party the judgment is void the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable, or any other reason that justifies relief

DeWeerth v. Baldinger DeWeerth owned Monet painting, had it in her family castle during WW2. After the war it had disappeared. Baldinger bought the painting from an art dealer in NYC many years later. When DeWeerth learned that Baldinger had the painting, demanded that it be returned and brought suit. District court ruled for plaintniff, Court of Appeals reversed. DeWeerth then moved for relief from judgment at District Court which was granted, Court of Appeals reversed. NY law had been clarified after original trial. Granting of relief from judgment inappropriate in this instance. Federal court made a reasonable interpretation of NY state law, even if it was later clarified. All that is required of federal court in matter of state law is reasonable attempt at interpretation.