CIVIL PROCEDURE - OUTLINE – PROF.

HUGHES
Table of Contents
Heading Page #
I. An Overview of Procedure…………………………………………1
II. The Constitution and Choice of Law (Erie)……………………...1
B. The Erie Problem………………………………………………………...1
C. Post-Erie Cases………………………………………………………….3
III. Pleading…………………………………………………………...5
A. The Complaint …………………………………………………………..5
IV. Ethical Limitations 5
A. Rule 11 Cases 7
B. Special Claims: Requiring, Forbidding Specificity in Pleading 7
C. Allocating the elements 7
V. Defenses and Objections 8
A. Rule 8: General Rules of Pleading 8
B. Rule 12: Motions 8
C. Reply 9
D. Amendments 9
VI. Discovery 10
A. Modern Discovery 10
B. The Possibilities and Limits of Discovery 10
C. Surveying Discovery: Procedures and Methods 12
D. Discovery and Privacy 14
E. Discovery in an Adversary System 15
F. Controlling Abuse of Discovery 15
VII. Resolution without Trial 16
A. Default Judgment 16
B. Involuntary Dismissal 16
C. Summary judgment 17
D. Judicial Management of Litigation 18
VIII. Trial 18
A. Limits of Rational Inference 18
B. Procedural Control of Rational Proof 18
C. Controlling Juries before Verdict 19
D. Controlling Juries after Verdict 19
IX. Personal Jurisdiction 19
A. Specific Jurisdiction 19
B. Specific Jurisdiction: The Modern Cases 21
C. General Jurisdiction 23
D. Consent as a Substitute for Power 23
E. Constitutional Requirement of Notice 24
F. Venue 24
I. An Overview of Procedure
A. Why do we have procedure?
1. Procedure is partly the rules/etiquette of lawsuits
2. It also reflects our desire for peace and regularity
B. Types of jurisdiction
1. Subject Matter Jurisdiction
Overview - Subject Matter Jurisdiction
1. Limited jurisdiction: small claims, tax
a. All federal courts have limited jurisdiction
i. Jurisdiction is limited by Art. III, § 2 of the Constitution
ii. Also limited by Title 28 (the Judiciary Code)
iii. Only arising under the Constitution or diversity claims
2. General; circuit, district, common pleas, etc.
a) Diversity occurs when parties are residents of different states:
it must be alleged and proved.
2. Personal Jurisdiction
Rule 4(k)(1)(A) – Personal Jurisdiction
If plaintiff can gain personal jurisdiction over someone in a court of general
jurisdiction in the state in which the district court is located, he can do so in that
district court as well.
II. The Constitution and Choice of Law (Erie)
1. Article VI: Constitution and federal laws are “The Supreme Law of
The Land; and the Judges in every State shall be bound thereby.”
2. Rules of Decision Act: In absence of a controlling federal statute, the
federal court system is required to respect statutes, common law of states.
B. The Erie Problem
1. First judiciary established fed. diversity jurisdiction (28 U.S.C §1652)
2. Swift v. Tyson (N.Y. Fed. Ct. 1841) (Story)
a) “Bill of exchange:” sought to be collected on.
b) ROL: “Deduce the doctrine from general principles of
federal law”- anti-Erie. A “charter of judicial independence”
from state common law. Favored business interests.
c) Laws are more usually understood to mean the rules and
enactments promulgated by the legislative authority thereof.
d) Problem with Swift: failed to create the uniformity that Story
desired. Instead, created different standards based on jurisdiction,
and forum-shopping.

a) The Erie Problem: When federal court is hearing case

solely based on diversity jurisdiction, and when there is no
controlling federal or state statute, should court apply a
general federal standard or the common law standard of
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The Swift v. Tyson Standard:
1. Federal courts should deduce doctrine from general principals of federal law.
2. The courts should basically create a federal common law.
3. Problem: Applying a federal common law creates forum-shopping between
state, federal court because of difference in standard applied.
3. Holmes’ Attack on Erie
a) There is no Law apart from authority that creates it. The
federal common law cannot exist without authority behind it.
b) Example of forum-shopping: Black & White Taxi Cab Co. v.
Brown and Yellow Taxi Cab. Co.: KY case, removed to fed. court.
4. Erie Railroad v. Tompkins (S.Ct. 1938) (Brandeis)
a) P severed arm by train on way back from mom-in-law’s house.
Q: between wanton negligence (state common law standard) or
general federal standard.
b) S.D.N.Y. applied Swift, ruled for federal common law “general
negligence” standard instead of the willful and wanton negligence
standard set forth by the Penn. S.Ct.
c) S.Ct.: reversed and remanded.
d) When finding the law pertaining to the case, courts must look
to the authority for making such law (viz., the state court).
(1) Fed. Cts. must honor state-made rights and obligations
e) Brandeis’ three problems with Swift:
(1) Failure to create desired uniformity of common law
(2) Failure in equal protection: forum-shopping favored
out-of-state D.
(3) Quoting Holmes, “an unconstitutional assumption of
powers by courts of the United States…” No power of
federal courts to create common law standards. No
“transcendental body of law” outside state.
(1) Erie Doctrine: In Federal courts, where jurisdiction is
founded solely on matters of diversity, matters of
substance are to be founded on state law, whether
statutory or common. Whether the law of the state shall
be declared by its legislature in a statute or by its highest
f) Reed’s concurrence: line between procedural and substantive is
hazy, but no one doubts federal power over procedure.
(1) Should only have disapproved of Swift insofar as to
make common law decisions of courts applicable to federal
courts sitting in diversity jurisdiction.

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 C. Post-Erie cases
1. Guaranty Trust Co. v. York (U.S. 1945) (Frankfurter)
a) Ps York sued bond trustee alleging misrepresentation and
breach of trust. New York substantive law governed. Defendant
(Guaranty/appellant) invoked statute of limitations in New York.
b) S.D.N.Y.: state’s statute of limitations does not apply.
c) Avoidance of question of substantive v. procedural law.
c) The Outcome-Determinative Test: In all cases where a
federal court is exercising jurisdiction solely because of the
diversity of citizenship of the parties, the outcome of the
litigation in the federal court should be substantially the same, so
far as legal rules determine the outcome of a litigation, as it
d) Glannon: York and Cities Service Oil stretch the Erie doctrine
beyond its constitutional necessities (there were constitutional
federal procedural rules for such cases, so why resort to state law?)
e) However, there is the need to balance interests between state
and federal interests.
2. Byrd v. Blue Ridge Rural Electric Cooperative (1958) (Brennan)
a) Plaintiff sued defendant for injury on the job. Defendant
alleges that as an employee, the plaintiff needed to go through
avenues of the S.C. WCA, and thus was immune from tort actions.
b) Reversed and remanded: Strong federal policy against
disrupting the judge/jury relationship in the federal courts and
allowing juries to decide questions of fact (7th amendment).
c) If the likelihood of difference in outcome between state and
federal law is small, then federal standard/law should apply.
d) A matter of form and mode, not of rights and obligations.
d) Byrd: Because the federal judiciary is independent, it
must act independently according to its custom, viz., to
assign the jury the power to decide the factual matter of a
3. Hanna v. Plumer (1965) (Warren)
a) Reframes the Erie issue as statutory rather than constitutional
b) D. Ct., 1st Circuit court citing Ragan dismissed case because P
had failed to comply with state method of serving process.

e) Hanna v. Plumer
1. Rule 4(d)(1) allows summons and complaint to be left with a competent
adult at residence of the defendant. (Mass. service of executor of estate).
2. Hanna I: Federal Rule governs if it is arguably procedural (does not
abridge, enlarge, or modify substantive right).
3. Hanna II: Federal Judicial Practice: governs if it wouldn’t create
substantial differences in forum-shopping or inequity.
c) Supreme Court took case because of the “threat to the goal of
uniformity of federal procedure” posed by the lower court.
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 d) Congress has power over procedural matters with respect
to the federal courts. Because Congress has set the rules of civil
procedure for federal courts and because those rules are
constitutional, Fed.Cts. must follow.
4. Semtek Intl. Inc. v. Lockheed Martin Corp. (2001) (Scalia)
a) P filed for breach, business torts in Cal. state court, removed to
federal courts. Dist.Ct. dismissed for expires statute of limitations.
b) P brought suit in MD state court, then removed to MD D.Ct.
c) “Adjudication on the merits” sometimes means judgments that
do not pass on the substantive merits of the claim.
d) If the Rule 41 (b) operated as indicated by the respondents,
it would violate the Erie holding by creating substantial
differences between state and federal litigation.
Semtek:
1. Rule 41 (b) - Any dismissal constitutes an adjudication of merits.
2. However, because federal court was sitting in diversity, and because a CA
court could not compel MD court to observe statute of limitations, Hanna
dictated that to avoid forum-shopping, the federal court, on a diversity
issue involving state law, cannot force a MD court to observe that statute.
3. This is necessary to prevent forum-shopping.

Spectrum of Erie analysis

apply state lawapply state lawapply federal law apply federal law

“rights and “form and mode”“form and mode”“form and mode”

obligations”where outcomeoutcome affectedoutcome not
created bylikely to bebut strong fed.Likely to be
state law (Erie)affected (York)interest (Byrd)affected (Hanna)

Analysis of Conflicts between State and Federal Procuedre in diversity cases

Conflict between U.S. Constitution and State Law (Byrd)
U.S. Constitution trumps
Conflicts between a Federal Statute and State Law
If Fed. Statute is procedural, then it trumps
Conflict between F.R.C.P. and State Law
F.R.C.P. applies if valid (see Semtek, see Hanna II)
Conflicts between a Federal Judicial Practice and State Law
Choose the state rule if it would be outcome-determinative. 4
III. Pleadings
Rule 4 – Service of Process
B. Five Methods of Summons (Summons and Complaint):
1. Give summons to an agent
2. Leave with adult
3. Serve Person personally
4. Serve according to laws of forum state
5. Serve according to state where service is happening
C. Rule 4(a)
1. 1A – Notice of Action (2 copies), Request of Waiver Service of Summons
2. 1B – Waiver of Service of Summons (accompanied by complaint)
3. Good cause must be shown for failure to waive (or pay cost of service).
4. 60-day period to respond to complaint (larger than 20 day normal
period). Must respond to waiver request in reasonable time.

Rule 7 - Pleadings Allowed, Form of Motions

(a) Pleadings
- A complaint and an answer
- Reply to a counterclaim
- Answer to a cross-claim
- 3rd party complaint, answer
- No others, except if court demands reply (court’s discretion).
(b) Motions and other Papers
a. Application to the Court
b. Made in writing (unless during trial)
c. State particularity of ground for motion
d. State relief sought

Rule 8 - General Rules of Pleading

(a) Claims for Relief
(b) “a short and plain statement of the grounds on which the court’s jurisdiction
depends,
(c) A short and plain statement of the claim showing that the pleader is entitled
to relief, and
(d) A demand for judgment for the relief the pleader seeks.”
A. The Complaint
1. Notice Pleading: A Claim must
a) Invoke a body of substantive law
b) Sketch factual scenario, if proven true, falls in body of law.
c) Allege jurisdiction
2. Complaints fail because:
a) Inept statement of the facts
b) Failure to state facts on which relief can be granted.
c) Unsound service of process.
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IV. Ethical Limitations
Rule 8(e) - Pleading to be Concise and Direct; Consistency
1. Each averment shall be simple, concise, and direct
2. Party may set forth two or more claims alternately or hypothetically.
- Valid despite inconsistencies (as many as necessary).
- All statements subject to the obligations in Rule 11.

Rule 11 - Signings of Pleadings, Motions, Others; Reps. to Court; Sanctions

(a) pleading and written motions must be signed by attorney.
(b) Representations to the Court. Atty. states to best of knowledge:
(1) Not for improper purpose
(2) Claims, etc. warranted by existing law or by
a non-frivolous argument for extension, etc.
(3) Evidentiary support or likely to have such
(4) Denials of factual contentions are based on
evidence or reasonable belief.
(c) Sanctions
a. After notice and reasonable opp. To respond, court may impose
sanctions if 11(b) has been violated
(1) How Initiated
(a) By separate motions for sanctions
(i) Describe specific alleged conduct
(ii) Served according to Rule 5
(iii) 21 days to withdraw or correct
(iv)Court may award reasonable
expenses and attorney’s fees incurred
in presenting/opposing the motion.
(v) Firm responsible for employees
(b) On court’s initiative
(i) Court may enter an order
describing conduct that violates 11(b)
(ii) Party then directed to show cause
why 11(b) has not been violated.
(2) Nature of Sanctions; Limitations
Sanctions limited to deter similar conduct.
Sanctions may be nonmonetary, payment of
reasonable attys.’ fees, penalty to court.
(a) No momentary sanctions for 11(b)(2)
(b) Monetary sanctions not awarded on court
init. unless opp. to withdraw not taken
(3) Order
(a) when imposing sanction, court shall
explain violation and basis for sanction.
(b) (d) Inapplicable to Discovery

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 A. Rule 11 Cases
1. Walker v. Norwest Corp. (8th Cir. 1996)
a) Failure to allege complete diversity jurisdiction.
b) D. Ct. - Rule 12(b)(1) motion – dismiss, lack of jurisdiction.
c) Rule 11 (b)(2): The atty. for P did not know the law; the claim
was not warranted by existing law.
d) Atty. could have used safe harbor provision to withdraw under
21-day safe harbor provision.
e) Rule 11(c)(2): cannot be sanctions against party
2. Christian v. Mattell, Inc. (9th Cir. 2003)
a) Barbie doll case.
b) P’s attorney brought frivolous action, given time to withdraw
claim under Rule 11 (b)(2) - failure to conduct reasonable inquiry.
c) D awarded $501,565 in attys.’ fees.
d) Remanded: Rule 11 sanctions, non-Rule 11 acts (discovery).
B. Special Claims: Requiring, Forbidding Specificity in Pleading
Rule 9 - Pleading Special Matters
b) Fraud, Mistake, Condition of the Mind
(1) Claims of fraud or mistake made with particularity
(2) Conditions of mind (malice, intent) averred generally
e) Time and Place: treated like any other material matter
c) Special Damages: must be specifically stated
1. Stradford v. Zurich Insurance Co. (S.D. N.Y. 2002)
a) Rule 15(a) ability to amend freely “when justice requires.”
b) Rule 9(b) claims for fraud must be stated with particularity.
c) P is a dentist in Staten Island, failed to pay insurance
premiums. Filed for damages against insurance company.
d) Counterclaim for fraud by D against P. Hightened standards of
pleading for fraud because of the tendency of the charge to damage
the accused, regardless of its validity. P moved to dismiss
counterclaim on grounds of lack of particularity.
e) However, D’s counterclaim lack specificity of “date, time,
and place.” D’s counterclaim dismissed.
f) However, leave to amend, summary judgment for Ds.
2. Leatherman, Swierkiewicz v. Sorema
a) Expresio unius exclusio alterius.
b) Discrimination case: moral turpitude, reply to the denial in
the answer. Reply had to have particulars.
C. Allocating the Elements
1. Triad of Burdens
a) Burden of pleading (alleging)
b) Burden of production (producing evidence)
c) Burden of persuasion (persuading trier of fact)
2. Gomez v. Toledo (S.Ct. (1980))
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 a) P.R. police. Charged with wiretapping, fired without hearing.
b) P brought action against D, the Superintendent of the P.D.P.R.
c) Respondent then moved to dismiss the complaint for failure to
state a cause of action because of D’s immunity.
d) Under § 1983, there is no requirement to allege bad faith.
Burden of pleading an affirmative defense of immunity is on D.
V.Defenses and Objections
A. Rule 8: General Rules of Pleading
Rule 8(b) - Denials
a. only deny part which D contests (must give P notice of defenses)
Rule 8(c) - Affirmative defense
a. Admission and avoidance.
b. Any matters constituting an avoidance or affirmative defense.
Rule 8(d) - Specific denial
a. aspects not denied are taken as true
B. Rule 12: Motions
1. A request to the court for an order (consists of):
a) Motion itself (request)
b) Notice of the motion
c) Affidavits or other factual documents necessary.
d) Factual memo that includes reason for the motion
e) “Proposed Order” for the judge to sign if he so chooses.

Rule 12 Motions
Rule 12(a) – Answer
a. (1) Answer given within 20 days
b. (4) Answer given 10 extra days after motion
Rule 12(b)(2) – motion for dismissal for lack of justification
Rule 12(b)(6) - motion to dismiss for failure to state claim on which relief can be
granted
a. legal question: cheap, easy way to end a case quickly.
Rule 12(c) - Motion for Judgment on the Pleadings
a. ability to supply paper evidence
b. ability for plaintiff to move for summary judgment
c. no dispute on facts: judge can decide because there is no use for a jury.
d. P has not shown that D is liable.
Rule 12(e) – motion for more definite statement (not specific, compl. enough for answer)
Rule 12(f) - motion to strike
a. strike punitive damages, aspects of claim that are not applicable
Rule 12(h)(1) – least favored: brought up in answer, not at all (personal jurisdiction,
improper venue, insufficient process, insufficient service process) (one place, one time)
Rule 12(h)(2) - defense for failure to state a claim upon which relief can be granted
a. Can be brought through trial.
b. Also, failure to join a party under Rule 19
Rule 12(h)(3) - dismissal for lack of subject matter jurisdiction (any time).
Motions can be included in answer, except for motions for clarifications. 8
 2. Haddle v. Garrison
a) § 1985 case because of P’s termination from D corp. because
of cooperation with a federal investigation.
b) Rule 12(b)(6) motion for failure to state of claim on which
relief can be granted (P an at-will employee, no property interest).
c) S.Ct.: irrelevant whether at-will employee or not because of
still protected property interest, so motion failed.
3. Zielinski v. Philadelphia Piers, Inc. (E.D. Pa. (1956)
a) Rule 8(b): Deny only parts that it actually contends.
b) PPI sells to CCI Other forklift had initials P.P.I. on it. PPI
answered in interrogatories that it did not operate the forklift.
c) P could not sue CCI because statute of limitations had run out .
d) Equitable estoppel: a change of position (since the time of the
answer) such that the party who is changing needs to be stopped.
e) Because D did not deny specifically in right places, court
ruled D did own forklift, employed driver, and admitted both.
4. Layman v. Southwestern Bell Telephone Co.
a) Defense of easement by previous owner to SWBC.
b) At trial, P objected to introduction of easement evidence, as it
is an affirmative defense, which was not set out in response by D.
c) Rule 8(c) avoidance, affirmative defense.
d) Ejusdem generis: when a list is not exhaustive, other matters
have to be something of same type as those already on the list.
e) D adding facts not included in those necessary to P’ complaint.
C. Reply
Rule 7(a) - Replies
1. A reply is necessary under Rule 7(a) if there is a counterclaim by D.
2. Replies occasionally come up to affirmative defenses, but are not required
under Rule 7(a). They can be mandated by the court.
D. Amendments
Rule 15 - Amendments
1. Rule 15(a) May amend: any time before a response of pleading is served
a. Or within 20 days if no response permitted.
b. Otherwise:
i. Only by leave of court (leave given when justice so
requires)
ii. or with written consent of adverse party.
2. Rule 15(c) Relation Back of Amendments
a. Relation back permitted by law providing statute of limitations or
b. Claim or defense asserted in amended pleading arose out of
conduct, occurrence set forth or attempted in original pleading, or
c. The amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing provision is
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 1. Beeck v. Aquaslide ‘n’ Dive Corp. (8th cir. 1977)
a) Waterslide: realization two years after complaint that slide was
not made by D. Inspection by insurance co., finally, by pres. of co.
b) D - leave to amend pleadings, leading to sum. judgment for D.
c) Rule 15(a): amendments are to be freely given when justice
requires. Except when bad faith, undue delay, etc.
d) Possible rule 11(b) violation: lack of reasonable inquiry.
2. Moore v. Baker (11th Cir. 1993)
a) P: medical malpractice for failure to advise of alternative
remedies. After motion for summary judgment by D, P moved to
amend complaint to assert allegations of negligence. Wants
relation back under Rule 15(c). However, the amendment was not
foreseeable and rose out of a completely different series of facts
(during and after the surgery) than the original complaint.
3. Bonerb v. Richard J. Caron Foundation (W.D. N.Y. 1994)
a) D is non-profit rehab facility in Westfield, PA.
b) Original complaint filed by P alleges that P was injured while a
rehab patient at D’s facility. Negligent maintenance of court by D.
c) Court granted P’s motion for new counsel.
d) Later, P moved to amend complaint to add cause of action for
counseling malpractice. Relation back under Rule 15(c).
e) Because arising out of the same facts and because of the
timing (compared to Moore), relation back allowed.
VI. Discovery
A. Modern Discovery
1. Def: The court-mandated production of information from other parties
and non-party witnesses (broad range).
2. Rule 26(b)(1)26(a) (auto discl.)30 (deps)33 (inter.)34 (prod.)
3. Lets parties to find merits, strengths of the opposing arguments.
4. One party can wear the other down because of time and money.
5. Primary changes in 2000 to rules of discovery
a) Changes in required disclosures
b) Narrowing of def. of material discoverable w/o judicial order
c) Nnational restrictions on the number of interrogatories and
depositions and length of depositions absent a judicial order.
d) Set of changes designed to encourage judicial monitoring and
possible cost-sharing of discovery.

d) Rule 26(b)(1) “The Rules giveth”  The broad scope of

discovery
1. Allows parties to seek discovery, w/o court approval, “regarding any
matter
a. not privileged
b. relevant to the claim or defense of any party.”
B. The Possibilities and Limits of Discovery
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 1. Court may compel discovery of any matter relevant to the subject
matter (Rule 37) (does not mean that it is admissible).
Rules 16, 26 and 30 - Limits on Discovery The Rules Taketh Away Limits
1. Rule 16 Pre-trial hearing sets limits of discovery
2. Rule 26 privileged or irrelevant matters not subject to discovery.
3. Rule 26(c) limitations on discovery done to irritate, annoy, or in bad faith.
4. Rule 30(d) limitations on depositions done to irritate, annoy, in bad faith.
5. Rule 26(b) limitations because of irrelevance or encroaching on privilege.
6. Rule 26(b)(3) trial prep materials only available when party in substantial
need of materials and is unable without undue hardship to get equivalent.
(Work product limitations: See Hickman v. Taylor)
2. Davis v. Precoat Metals (N.D. Ill. 2002)
a) Ps motion seeks discrimination complaints made against D by
non-clerical/non-administrative employees (same groups).
b) Courts can limit unreasonably cumulative or duplicative
discovery, or if it can be obtained more easily. (Rule 26(b)(1) –
discoverable)
3. Steffan v. Cheney (D.C. Cir. 199n0)
a) P refused to answer Qs in depositions regarding homosexual
conduct and anything not pertaining to legality of his separation.
b) Judicial review of admin. decisions limited to basis of ruling.
C. Surveying Discovery: Procedures and Methods
Rule 26 - Discovery
1. Rule 26(a)(1) Required Disclosures
a. Parties must meet early in suit
b. Within 14 days, parties must offer names of witnesses and
descriptions of documents that the disclosing party may use to
support its claims or defenses, as well as calculations of damages,
copies of insurance agreements.
c. Parties request more info. via depositions, interrogatories, etc.
2. Rule 26(f) Pre-trial meeting
a. Need for parties to meet each other, submit lists of disclosure.
3. Rule 26(a)(1)(E) Exemptions from Discovery
a. Large cases mean judge monitors more closely, disclosure exempt.
b. Small cases may be exempt from disclosure.
4. Rule 26(d) Timing and Sequence
a. Discovery may not take place until meeting required by Rule 26
1. Asking questions: Interrogatories and depositions
a) Rule 33: Interrogatories (propounder/recipient) are cheaper,
but may not yield details, must ask permission for more than 25,
and non-parties need not answer; still must be under oath.

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Rule 34 - Production of Documents; Entry on Land
1. Party can request production of any document within scope of Rule 26(b).
2. Permits inspection of land and objects, documents
3. Records, documents are usually the backbone of a case.
4. Party (Rule 34) v. Non-Party(Rule45(a)(1)(C) subpoena)
5. No limits on volume of documents requested
6. Overbroad v. overly narrow requests (parties construe narrowly)
Rule 35 - Physical and Mental Examination of the parties
1. Requires special application to the court and showing of good cause.
b) Rule 30: Depositions with lawyers, in offices, answer all
unprivileged questions, need permission for more than 20 non-
party deps., written depositions (Rule 31)
2. Rule 36: Requests for Admission
a) Party may request an admission in writing of any matters
within the scope of Rule 26(b)(1) - disclosures.
D. Discovery and Privacy
Rule 26(c) - Protective Orders
1. good cause standard that
2. movant has, in good faith, conferred or tried to confer with other party,
3. either party or person from whom discovery is sought
4. protection from annoyance, embarrassment, oppression, undue burden.
5. Protective order with respect to:
a. Disclosure or discovery not be had.
b. Depositions can be sealed after filing
c. and thereafter opened only by the courts.

Penalties for Non-Compliance in Discovery

Rule 26(g)
1. Suggests attorneys’ fees will be appropriate sanction in most instances.
Rule 37: Failure to cooperate in discovery
1. Courts may compel discovery (after parties’ motion under Rule 37(a)(2).
2. Courts may institute penalties of awards, fees, sanctions, dismissal,
default judgment.
3. Parties must attempt to confer with other party before filing Rule 37.
1. Stalnaker v. Kmart Corp. (D. Kan. 1996)
a) P - sexual harassment, hostile work environ. against Kmart.
b) D: sexual histories of deposed employees not relevant to case.
c) Protective orders prohibiting certain discovery or limiting
scope of discovery to certain matters in Rule 26(c)(1) and (4).
d) Burden of proof is with party trying to obtain protective order.
2. Schlagenhauf v. Holder (U.S. 1964)
a) Greyhound/driver case.
b) Rule 35 Applies to all parties, which should include D.
c) “Good cause” and “in controversy” aspects not shown
d) Movant must show that each element to be examined is in
controversy and there is good cause to make such an examination.
Expert
E. Information
Discovery in an Adversary System
1. Rule 26(a)(2): Requires information about experts who may testify and
about basis for testimony, requirement that adversary receive “a written
report prepared and signed by witness…containing a complete statement12
of all opinions to be expressed and reasons…” (90 days pre-trial)
2. Rule 26(b)(4): A party may discover facts known or opinions held by an
expert who has been retained…by other party in anticipation of litigation
only as provided in Rule 35(b) or upon a showing of exceptional
circumstances that info cannot be obtained otherwise. (non-testifying)
 1. Hickman v. Taylor (U.S. 1947)
a) Tugboat sank. Motion to compel discovery of notes interviews
by D’s attorney of men on other boats.
b) Work-product not discoverable
2. Thompson v. The Haskell Co. (M.D. Fla. 1994)
a) P alleged that as a result of sexual harassment by employee of
D, P was reduced to depression and employment was terminated
when she did not acquiesce to employee’s advances.
b) P seeks to block from discovery psychologists’ documents.
c) Rule: not discoverable through any other manner.
3. Chiquita Int’l. Ltd. v. M/V Bolero Reefer (S.D.N.Y. (1994))
a) P alleges that D engaged to transport 154,660 boxes of bananas
from Ecuador to Germany. Some boxes not delivered.
b) Attempt to compel discovery under Rule 37.
c) Rule 26(b)(4)(b) no discovery of “facts known or opinions
held” by a non-testifying expert and so anticipates that such an
expert may make his or her own investigation. Only by showing
exceptional circumstances that info cannot be obtained otherwise.
d) Info not exempt from discovery merely because conveyed to
non-testifying expert. Could be obtained through other means.
F. Controlling Abuse of Discovery
Controlling Discovery
1. Rule 26(b)(1): Discovery of anything relevant to “claims and defenses.”
Discovery of any matters “relevant to the subject matter” can be ordered
by the court.
2. Rule 26(b)(2): limitations: court may place limit number of requests,
excessive duplication, excessively burdensome.
3. Rule 26(g): Signing
a. Attorneys have to sign disclosures, discovery requests, responses, or
objections, signifying that
i. They are not interposed for improper purpose
ii. They are not unreasonable or unduly burdensome
iii. They are consistent with rules and warranted by law or a
good faith argument for extension, modification, or reversal.
1. Thompson v. Department of H.U.D. (Dist. Md. Ct. 2001)
a) Ps are class representatives of Afr. Am. residents of
Baltimore’s public housing developments.
b) Motion by Ps to compel local Ds to provide responsive answers
to Rules 33 and 34 discovery requests.
c) Focus on burden/benefit factors of Rule 26(b)(2).
d) Requests are too broad and need to be narrowed by a good faith
analysis of which requests will be furthered by discovery sought.
2. Poole v. Textron, Inc. (D. Md. 2000)
a) P sued D for alleged defects in a golf cart, leading to injury.

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 b) P’s motion for sanctions raising instances of discovery abuse,
motion to compel production of documents, and motion to find
sufficiency of answers and objections to requests for admission.
c) Rule 37: Ct. shall require the party or deponent whose conduct
necessitated the motion…to pay the moving party…reasonable
expenses…including attorneys’ fees unless there was a lack of
good faith effort by the movant to first obtain the documents.
d) Rule 26(g)(3): court can award appropriate sanctions, fees.
VII. Resolution without Trial
Rule 55 - Default Judgments
1. After application of the P to the clerk (in cases in which sum is certain).
2. Or to the court
3. 55(c): setting aside a default judgment in showing of good cause.
Rule 41(b) - Involuntary Dismissal
1. Failure to prosecute
2. Will operate as an adjudication on the merits
Rule 60(b):
1. Allows the re-opening of the case after default judgment is entered.
2. Relief from judgment or order.

A. Default Judgment
1. Peralta v. Heights Medical Center (U.S. 1988)
a) Appellee sued Appellant to recover $5600 due under
appellant’s guarantee of a hospital debt of one of his employees.
b) Personal, but untimely service of return.
(1) Appellant did not appear or answer.
c) Default judgment for amount claimed, atty’s fees, costs.
d) Bill of review in TX courts to set aside default judgment and
obtain relief.
e) Rule 55 provides for default judgments against defendants who
do not respond.
f) 14th Amendment requires Due Process in seizure of property.
B. Failure to Prosecute: Involuntary Dismissal
Voluntary Dismissals
1. Rule 41(a)(1)(i) allows P to dismiss any time before D answers
2. Rule 41(a)(1)(ii) allows P to dismiss any time as long as both parties agree.
3. Rule 41(a)(2) after D answers, P can dismiss with permission of the Court.
f)

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 a) Possible abuses of 41(c) when significant procedural matters
have been decided.
b) Often in voluntary dismissal cases, P required to pay D’s fees.
2. Involuntary Dismissals
a) Question of how lax a plaintiff must be before a judge should
enter a dismissal for failure of the plaintiff to prosecute.
b) Some states deal with such Ps by setting firm statutory limits in
addition to allowing for judicial discretion.
C. Summary Judgment
Rule 56 - Making and granting motions for summary judgment
1. 56(c) Motions are to be granted when the record shows that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.
2. 56(e) Do statements have to be sworn to in first person, set out
affirmatively?
1. Law responds to summary judgments only were there are not
assessments of credibility, only in analyzing whether there is no
disputed material fact and that moving party is entitled to judgment
as a matter of law.
a. Diff. from 12(b)(6): facts v. allegations, before/after disc.
2. Celotex Corp. v. Catrett (U.S. 1986)
a. 9/80: Respondent started lawsuit alleging death of her husband
resulted from exposure to products with asbestos.
b. P needed to show that product was defective/dangerous,
exposure to product, causation of problems by product.
c. Rule 56 motion for summary judgment: “failure to produce
evidence that Pet.’s product was prox. cause of injuries
alleged.”
d. Motion for summary judgment granted because of lack of
evidence submitted by respondent.
3. Bias v. Advantage International, Inc. (1990)
a. P, parents directed D to get $1 mill. life insurance policy for P.
b. P appeals granting summary judgment to D at District Ct. level.
c. Because the Estate’s generalized evidence that Bias
was not a drug user did not contradict the more
specific testimony of teammates who knew Bias
well and had seen him use cocaine on particular
occasions, the Dist. Ct. determined that there was
no genuine issue that Bias was a drug user.
D. Judicial Management of Litigation
1. Sanders v. Union Pacific Railroad Co. (9th cir. 1998)
a) P’s counsel failed to comply with almost all of the
requirements of the pretrial order (after pretrial conference).
15
 b) Rule 16(b) allows judges to schedule motions, pleadings,
amendments, discovery, modifications, conferences, trial, etc.
c) Court did not abuse its discretion because of counsel’s
misconduct and flagrant disobedience of judges’ orders.
2. McKey v. Fairbairn (D.C. Cir. 1965)
a) Littlejohn brought suit to recover damages from landlord and
agent for injuries from slipping and falling on wet floor.
b) Trial judge did not abuse “justifiably large discretion” in
refusing to permit P to change theory during the trial.
VIII. Trial
A. Limits of Rational Inference
1. Reid v. San Pedro, Los Angeles & Salt Lake Railroad (Utah 1911)
a) Alleged in first cause of action that Appellant’s railroad passes
through lands in St. Lake City privately owned and that Appellant
carelessly and negligently allowed fence to be broken. Cow may
have gone through gate (P’s fault).
b) Where undisputed evidence of plaintiff from which existence
of essential fact is sought to be inferred, points with equal force to
two things, one of which renders the defendant and the other not,
the plaintiff must fail.
B. Procedural Control of Rational Proof
1. Burdens
a) Burden of persuasion: on the preponderance of evidence
(1) More likely than not.
(2) In even-handed cases, verdict will go against the party
who has the burden of persuasion (usually P).

Rule 50 - Judgment as a matter of law (j.m.l)

1. 50(a): no legally sufficient evidentiary basis for a reasonable jury to find for
that party on that issue.
2. Because there is no longer really a “directed” verdict, j.m.l has been
substituted.
3. Also, motion for renewed judgment as a matter of law possible.
Rule 59 - Grant of New Trials on Motion
1. 59(d): On court’s initiative
2. Especially when process is flawed: evidence, instructions, misbehavior of juror,
b) Burden of Production
(1) Needs to produce evidence, documents
(2) If P fails to do this, P loses, even if the thing happened
for which P did not produce evidence.
(3) Reid- evidence of sagging fence is sufficient to meet
burden of production for negligence.
(4) Defenses oftentimes bear own burdens of production.

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 C. Controlling Juries before Verdict
1. Pennsylvania Railroad v. Chamberlain (S.Ct. 1933)
a) Braking after coming over “hump” on way to track.
b) For P: Foreman from far away saw convoy approaching
decedent’s convoy at an angle, then heard a crash.
c) For D: 19 eye-witnesses never saw crash, although they were
all nearer to the site.
d) If there are several inferences deducible from facts which
appear, equally consistent with those facts, P has not maintained
the proposition upon which alone he would be entitled to recover.
D. Controlling Juries after Verdict
1. Lind v. Shenley Industries (3d Cir. 1960)
a) P sales manager for D liquor company
b) Alleged oral promises for raise and a share of commissions.
c) D moved for j.n.o.v., granted by judge
(1) In the alternative, a new trial granted.
d) Rule 50(c): Conditional new trial if j.n.o.v. reversed, vacated.
e) Rule 50: renewed judgment as a matter of law.
2. Peterson v. Wilson (5th Cir. 1998)
a) P claims property interest in employment at TSU damaged
through improper firing.
b) P filed suit in Dist. Ct. under §§ 1983 and 1988, 1st, 5th, 14th
Amendments. Judgment for P.
c) Ct. granted new trial based on verdict and jurors’ comments
after returning the verdict.
d) Ct. never grant new trial b/c it would have ruled another way.
e) Ct. can grant if it is against the great weight of evidence, but
not based on ex parte meeting evidence.
IX. Personal Jurisdiction
A. Specific Jurisdiction
1. Generally
a) Based on two constitutional provisions – the full faith and
credit clause (which requires each state to recognize and enforce
judgment of another state) AND the Due Process clause which
states that no state will deprive a citizen of life liberty or property
without Due Process of Law.
2. Jurisdiction Vocabulary
a) Jurisdiction: Power to render a judgment against a defendant
b) In personam jurisdiction: jurisdiction over the person
(1) Due process requires that in order to exercise
jurisdiction over a person, reasonable methods must be
employed to give the person notice of the action and afford
him a reasonable opportunity to be heard

17
c) In rem jurisdiction: jurisdiction over the property/things
(1) In rem jurisdiction can be obtained if non-resident owns
property within state and property is attached pre-judgment
d) Quasi in rem jurisdiction: property to obtain in personam juris.
(1) Had attached land before suit began in Pennoyer, would
have established quasi in rem jurisdiction; wouldn’t have
needed (pure) in personam jurisdiction
(2) Quasi in rem jurisdiction changed in Shaffer v. Heitner:
suit must arise from property seized.
e) Special appearance: D appears b/f the court to challenge the
court’s personal jurisdiction over her w/o subjecting herself to the
personal jurisdiction of the court
(1) Need to file a 12(b)(2) motion first, or you’ve waived
your personal jurisdiction

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 3. Pennoyer v. Neff (U.S. 1880)
a) P failed to pay Mitchell’s fee, who sued in OR state court
b) P was a non-resident who did not appear; judgment entered for
Mitchell after constructive service summons of publication.
c) After judgment, P purchased 300 acres from federal gov’t, was
ordered seized by sheriff, sold to D, received sheriff’s deed.
d) For a state court, service of process and jurisdiction only
occurs when a non-resident is served within the borders of that
state. Attachment would have had to occur at the beginning of suit.
e) Notice – Give D opportunity to respond, fulfill Due Process.
f) Power – Whether state has exercised power it has, or whether
it is acting outside its scope of power.
g) Consent – By action/explicit authorization
4. Milliken v. Meyer
a) D did not appear in WY, although he was a citizen
b) Was served in CO according to statutory scheme.
c) “The authority of a state over one of its citizens is not
terminated by the mere fact of his absence from the state.”
5. International Shoe Co. v. Washington (U.S. 1945)
a) Statute in Washington for a comprehensive scheme of
unemployment compensation
b) Assessment of required contributions given to sales solicitor in
Washington, copy mailed to appellant at address in St. Louis.
c) Appellant has sales reps., models, pays commission,
occasionally rents space in WA.
d) Within the limitations of due process, a corporation can by its
activities make itself amenable to actions brought against it there.
The International Shoe Doctrine
Due process requires only that D, if he is not present within the territory, maintain
certain minimum contacts with the state such that the suit does not offend “traditional
notions of fair play and substantial justice.”
6. McGee v. International Life Insurance Co. (U.S.
a) Non-payment of insurance policy in Cal.
b) Nationalization of commerce leads to decrease in burden on
company in defending itself in other jurisdictions.
c) Interests of plaintiff in not going elsewhere to prosecute suit.
d) Interest of state in jurisdiction over matters pertaining to it.
7. Hanson v. Denckla (U.S. 1958)
a) Whether FL or DE cts. had jurisdiction over trust assets of a
woman who set up trust in DE but moved to FL several years later.
b) The unilateral activity of P who claims some relationship with
a nonresident D cannot satisfy the requirement of minimum
contacts with the forum State.

19
 c) D must have “purposely availed itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.”
d) Similar to Worldwide Volkswagen v. Woodson.
8. Shaffer v. Heitner (U.S.
a) Directors of Greyhound, seizure of shares of Greyhound.
b) The seizure of property cannot create in rem jurisdiction if the
subject of the suit is not that property. (Application of Int’l Shoe).
The International Shoe Spectrum
G
|
Casual or Continuous|
NoIsolatedSingle But Limited|Substantial or
ContactsContactsAct Acts|Pervasive
|
|
nonospecific specific|general jurisdiction
jurisdictionjurisdictionjurisdiction jurisdiction|
|
E.g.:E.g.:E.g:|
Worldwide VWMcGee v. Int’l Ins.Co.Burger King|
Hanson

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B. Specific Jurisdiction: The Modern Cases
1. World-Wide Volkswagen Corp. v. Woodson (U.S. 1980)
a) Ps in car crash in Oklahoma, sued regional distributor, retailer,
manufacturer, importer. Regional distributor (WWVW) and
retailer claimed lack of specific jurisdiction (Seaway) because of
lack of minimum contacts. WWVW and Seaway only did business
in New York area, surrounding states.
b) Forum State does not exceed its powers under Due Process
Clause if it asserts personal jurisdiction over a corporation that
delivers its products into stream of commerce with expectation
that they will be purchased by consumers in the forum state.
c) Fair play and substantial justice are measured by:
d) P’s interest in obtaining convenient and effective relief
e) Forum State’s interest in adjudicating the dispute
f) P’s interest in choosing a forum
g) Interest in maintaining the most efficient system
h) Joint interest in furthering fundamental social policies.
i) Burden on D to defend suit.
j) Foreseeab. of being called to ct. for claim related to activity.
k) Dissent : Mobile nature increased range of specific jurisdiction.
2. Asahi Metal Industry Co. v. Superior Ct. (U.S. 1987)
a) Impleader action (cross-claim) by Cheng Suin (Taiwanese tire
manufacturer) against Asahi (valve). Asahi aware that parts were
ending up in Cal. Is this sufficient for “minimum contacts?”
b) Due Process Clause requires more than that D was aware of its
product’s entry into the forum State through the stream of
commerce in order for the state to exert jurisdiction over D.
c) Lack of majority opinion (O’Connor) means that there is room
for argument over the actual rule.
3. Burger King Corp. v. Rudzewicz (U.S. 1985)
a) D fell behind on franchise payments.
b) P sued in Florida federal district court.
c) Fair warning requirement is satisfied if D has purposefully
directed his activities at residents of forum and litigation results
from alleged injuries that arise out of or relate to those activities.
4. Pavlovich v. Superior Ct. (2002)
a) Real party in interest is DVD Copy Control Assoc., Inc.
b) Pet.: resident of Texas, posted anti-encryption technology on
website; encryption tech. owned by DVD CCA
c) Effects test: jurisdiction could be established based on the
effects of conduct in forum state. Because Pet. Did not have any
contact with Cal., conduct business there, he cannot be found to
have “purposely availed” himself of business opportunities there.
C. General Jurisdiction
1. Coastal Video Communs. Corp. v. Staywell Corp. (E.D. Va. 1999)
21
 a) P sought declaration that handbook produced by P does not
infringe on copyrighted material contained in Krames’, D’s
handbook of similar name.
b) Only when the continuous corporate operation within a state is
though so substantial and of such a nature as to justify suit against
it on causes of action arising from dealings entirely distinct from
those activities may a court assert general jurisdiction.
c) Because there is no specific jurisdiction (D did not distribute
pamphlet in VA), discovery allowed into general jurisdiction.
2. Burnham v. Superior Court (U.S. 1990)
a) Transient or “tag” jurisdiction.
b) Service of process for divorce while in Cal. on other business.
c) 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 of traditional notions
of fair play and substantial justice.
D. Consent as a Substitute for Power
1. National Equipment Rental v. Szukhent
a) Ds rented farm equipment from Ps in NY
b) Ds designated woman in NYC for accepting service of process.
c) Such service is constitutional.
d) E.g. of “real consent” rather than consent implied by contacts.
2. Carnival Cruise Lines, Inc. v. Shute (U.S. 1991)
a) Cruise ticket that has Florida law forum clause on ticket.
b) No bad faith motive, legitimate interest in having forum in
Florida although there is no bargaining parity.
E. Constitutional Requirement of Notice
1. Mullane v. Central Hanover Bank & Trust Co. (U.S. 1950)
a) Trusts: assets deposited by a first party (settler) with second
party (trustee) for the benefit of third parties (beneficiaries).
b) Notification of parties for settlement through newspaper.
c) Ds had addresses of Ps, could meet with them.
d) Notice must be “reasonably calculated” to contact person.
e) Process that is a mere gesture is not due process.
F. Venue
1. Different from jurisdiction (authorized by 28 U.S.C. § 1391)
a) In diversity jurisdiction, venue appropriate where:
(1) Judicial district where any D resides, if all Ds reside in
the same state
(2) Judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a
substantial part of the property that is the subject of the
action is situated.

22
 (3) Judicial district in which any D is subject to personal
jurisdiction at the time of the action is commenced, if there
is no district where the action may otherwise be brought.
b) In non-diversity jurisdiction cases, venue appropriate where:
(1) Same as (a)(1)
(2) Same as (a)(2)
(3) Judicial district in which any D may be found, if there
is no district in which the action may otherwise be brought.
2. Contrast with personal jurisdiction: under p.j., suit can be brought
anywhere in state where jurisdiction exists.

23