I.  Jurisdiction/Limits of Judicial Power

  1. Must tell court why they have power to hear your case; “no writ, no right, no remedy”; damnum absque injuria—suffering harm without legal remedy; must have a recognized cause of action for court to hear case
  2. Rule 8a1—short and plain statement of grounds for jurisdiction
  3. Subject Matter Jurisdiction; all states have at least one court of general jurisdiction, may have others with specific jurisdiction (probate, family, bankruptcy)
  4. Court has power to raise subject matter jurisdiction as an issue at any time during the case
  5. Federal Courts have limited jurisdiction (=can only hear cases that are specifically authorized by the statutes that set up the court)
  6. Fed Courts—take claims that “Arise under” the Constitution, laws, or treaties of the U.S.
  7. Fed Courts—diversity of citizenship among parties
  8. Gordon v. Steele—alleged malpractice in PA among all PA citizens; Plaintiff moves to Idaho for college and rents apartment; sues in Federal Court; Defendants move to dismiss for lack of diversity jurisdiction
  9. Test is residency plus indefiniteness, not permanency; motion to dismiss denied because Gordon had enough ties to Idaho and no plans to move back to PA
  10. 14th Amendment—citizen of the state in which you reside

II.  Service of Process

a.  After jurisdiction (subject matter and over the person) are established, Defendant must have fair notice of the proceedings for the court to have power over his/her person; even if court has power to hear the case, must also have power to bind Defendant to the judgment

b.  Greene v. Lindsey—eviction case already over in which Defendants notified by posting that they never got (per KY statute); after unknowingly losing that case, Ds sue sheriffs for violating 14th Amend (due process)

i.  For service of process to be valid, it must be reasonable to assume that Ds actually find out about it (in Greene, kids frequently pulled down posting and thus it wasn’t reasonable to assume that posting was enough in a public housing project)

ii.  Rule 4; 4c—summons will be served w/ copy of complaint; 4e2—to individual personally, leaving copies at dwelling place with some person of suitable age and discretion or delivering to an agent appointed by law to accept service

III.  Common Law Pleading

a.  Pleading: “perfection of the issue”; what’s the dispute (factual or legal)

IV.  Stating a Claim

a.  Code Pleading

i.  Gives you roadmap of how the litigation will go; includes facts of dispute spelled out; includes both the legal theory and the facts to back it up

ii.  People ex rel. Department of Transportation—accident caused when Defendant goes over dirt median on highway; Plaintiffs used Judicial Council form (checked boxed, not spelled out, basically said there was an accident but didn’t tie in why the city is to blame)

1.  Allegations in a complaint may be liberally construed but not so much that Defendant doesn’t have fair notice about what’s going on

b.  Notice Pleading

i.  Rule 8a2—a short and plain statement of the claim showing that pleader is entitled to relief

ii.  Modern; what takes place in Federal Courts and some state courts; much lower bar and more flexible than older systems of pleading (including code pleading); “I’m suing over Tuesday’s accident”; doesn’t have to specify what law or legal theory you’re suing under

iii.  Haddle v. Garrison—at will employee claims he testified against former employers who conspired with current boss (same company) to have him fired; suing under 42 U.S.C. 1985 (“injured in person or property”); Defendant files motion to dismiss for failure to state a claim of action upon which relief can be granted (12b6); Plaintiff fails until Supreme Court decides employment was “at the will of the parties” not at the will of others

1.  12b6 fails because “at will” employment counts as property, thus Plaintiff has a cause of action under 1985

2.  Rule 9—higher pleading standards for fraud, mistake; Malice, intent, knowledge, and other conditions of mind can be alleged generally

V.  Constraints Imposed by Pleading

a.  Rule 8e2—you can plead different theories that contradict each other (“there was no contract, and even if there was a contract that’s not what it said”)

b.  Business Guides v. Chromatic Communications Enterprises—Plaintiff plants incorrect “seeds” in guides to catch copyright infringement; law firm signs name alleging 10 were found; neither Plaintiff nor attorneys did much to verify this and in the end almost all of the 10 were correct information, not seeds; got sanctioned and case dismissed with prejudice, Plaintiff to pay D’s fees/costs

i.  Rule 11—signature on pleadings/motions/etc. is a certification that this isn’t frivolous; you have reason to believe this is true/will be proven true; you have done a reasonable inquiry to come to this honest belief; standard is “objective reasonableness”

c.  Olsen v. Pratt & Whitney Aircraft—Olsen alleges fraud; was eligible for voluntary retirement program; was encouraged not to sign up because his job was secure; trusted this and didn’t sign up; was terminated within a year; court holds that he can amend complaint but as-is it doesn’t satisfy heightened pleading requirements for fraud (Rule 9b)

i.  Per 9b, Olsen needed to detail the statements….that the plaintiff contends are fraudulent, identify the speaker, state where and when the statements…were made and explain why the statements….are fraudulent

  1. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit—Plaintiffs suing on grounds cops are ill-trained and regularly violating 4th Amendment; this is a suit brought against a municipality under 42 U.S.C. 1983 (suit may be brought against persons acting “under color of law” for violations of constitutional rights), which per common law has higher pleading standard than FRCP 8a because there is freedom from liability if the official reasonably thought their actions were constitutional; court holds FRCP trumps common law
  2. Freedom from liability is not the same thing as immunity from suit
  3. Expressio unius—when authors of FRCP made Rule 9 (heightened standards for fraud) and didn’t mention this as another exception, that means they didn’t want it as an exception

VI.  Prayer of Relief

  1. Damages
  2. In theory, money damages put you back in the position you would have been if the wrong hadn’t occurred)

ii.  United States v. Hatahley—gov’t kills Indians’ horses, resulting in depletion of other herds; Plaintiffs demanded monetary value of lost animals, plus money for pain and suffering; lower court let Plaintiff’s attorney go nuts and demand lots without individuating damages; appeals court holds assessment of damages far too subjective; remanded for new trial (as to damages only) and lower judge to recuse himself

1.  Reasonable efforts to mitigate required; this will be held against you even if you aren’t able to do it (Indians didn’t have the resources to mitigate the damages but still should have, per Court)

iii.  Honda Motor Co. v. Oberg—Oregon state constitution forbids judicial review of jury’s punitive damages assessments unless there’s a clear indication of no evidence leading to those damages; Oberg given almost $1 mil in compensatory damages and $5 mil in punitive damages; Honda argues Oregon state constitution violates 14th Amend (due process—excessive and no room for judicial review); U.S. Supreme Court holds Oregon needs to follow common law tradition of correcting over-eager juries

1.  Punitive damages—not about what Plaintiff deserves to get, but what Defendant deserves to pay

  1. BMW of North America v. Gore—per 14th Amend (due process) State can’t impose “grossly excessive” punitive damages; BMW repainted “new” vehicles; court awarded $4000 per car to reflect deprecation of value and $4 mil damages; this was a cosmetic flaw, not hurting the health of the consumers; Supreme Court holds this is an attempt to change BMW’s nationwide practices and thus not within the power of the state court

b.  Equitable Remedies and Fee Reimbursement

i.  Sigma Chemical Co. v. Harris—non-compete/confidentiality agreement

1.  When deciding permanent injunctive relief, the court weighs “the hardship on plaintiff if relief is denied as opposed to the hardship to defendant if it is granted”

VII.  Responsive Pleading

a.  Pre-Answer Motion—raised extremely early in litigation, may object to jurisdiction, venue, and service of process; may raise questions relating to the failure to join necessary and indispensable parties

i.  See 10.28.02 notes for info on pre-answer motions, answers, denials, and replies

b.  Answer—if a Pre-Answer Motion isn’t successful, D must respond to facts of complaint; a response to the allegations of the complaint and an assertion of any additional information or affirmative claims the Defendant may have against the Plaintiff

i.  Rule 8b—D must deny any allegations he disputes

ii.  Rule 8c—if you don’t raise an affirmative defense in your answer, you’ve waived your right to later

iii.  Rule 8d—any allegation not denied is deemed admitted

  1. Allocating the Elements
  2. Who has the burden of pleading (alleging the element of claim or defense) and who has the burden of production (who has to produce evidence at trial to demonstrate the proposition at stake)

ii.  Gomez v. Toledo—Gomez a Puerto Rican cop who ratted out bad cops and was discharged as punishment; review board reinstated him with back pay; he sues that discharge violated procedural due process and caused embarrassment; sued under 42 U.S.C. 1983; Supreme Court holds that burden of pleading is on Defendant (Plaintiff doesn’t have to plead bad faith but just that the official’s conduct, under color of law, deprived him of a constitutional right; it is Defendant’s job to assert good faith as affirmative defense)

d.  Responding to the Complaint

i.  Layman v. Southwestern Bell Telephone Co.—Plaintiff sues over D “trespassing” on her land to install telephone wires; D answers with general denial; later claimed they had an easement from the former owner; court holds D loses because they mis-pleaded

1.  Rule 8c

  1. Zielinski v. Philadelphia Piers, Inc.—messy case involving forklift accident, sale of company and employees switched over without hardly noticing; in the end the wrong company was sued and the statute of limitations ran; court holds that the forklift will be considered “owned and operated” by (wrong) Defendant because they made a denial of Plaintiff’s complaint without specifying that they sold the forklift; by omitting that information, they made it unreasonable for Plaintiff to discover the right Defendant
  2. When a pleader intends in good faith to deny only a part of a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder

e.  Amendment

i.  Rule 15—Plaintiff may amend before Answer, after Answer needs court’s approval (or agreement from O/C) but leave shall be freely given when justice so requires; tension between court’s goal to get things right and not prejudice other side

ii.  Beeck v. Aquaslide ‘N’ Dive Corp.—Plaintiff injured on water slide; order placed to Aquaslide but it was actually another company’s slide; upon suit D’s insurance adjuster said it was D’s slide and thus D admitted in pleadings that it was D’s slide; SOL ran and then D’s president visited site and discovered it wasn’t his slide; motion for leave to amend answer to deny manufacturing the slide is granted; Rule 15

1.  burden is on non-moving party to prove why they’d be prejudiced if amendment allowed

iii.  Moore v. Baker—heart surgery leaves Plaintiff disabled; sues that Baker violated GA’s informed consent law on last day before SOL runs; D moves for SJ; P moves to amend complaint to add negligence; court holds that SOL has run on these new claims and they don’t come naturally out of the facts she already alleged

1.  SOL isn’t in effect per Rule 15(c) IF the amendment relates back to the original filing—“whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading”

  1. Bonerb v. Richard J. Caron—another case with statute running and Plaintiff wanting to amend and pick different legal theory; differs from Moore v. Baker because that case was almost over (SJ) and this one is still in discovery phase; court allows amendment/new theory because it arises out of the same facts
  2. If the litigant has been advised at the outset of the general facts from which the belatedly asserted claim arises, the amendment will relate back even though the statute of limitations may have run in the interim

VIII.  Modern Discovery

a.  We don’t want surprises in trial

b.  Rule 26a—specifies what you need to take over

c.  Rule 26b1—parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party

i.  to be legally relevant it will inform the fact-finder about some element of the cause of action that they have to prove or defend against; information requesting is information that is probative of some element or likely to lead to admissible evidence that is probative

d.  Blank v. Sullivan & Cromwell—law firm accused of discriminating hiring practices against women; in discovery phase, Plaintiff asks for information on women partners; court allows this on basis that it is indicative of patterns and practice of discrimination

  1. Steffan v. Cheney—Plaintiff discharged from military for admitting that he was gay; in discovery phase, Plaintiff pleads 5th at depo to not answer questions about homosexual acts; court decides this isn’t relevant discovery because the case isn’t about Plaintiff being thrown out for engaging in homosexual acts but for admitting that he was gay

IX.  Information Gathered in Anticipation of Trial

a.  See notes from 11.04.02

  1. Attorney Work Product
  2. Court doesn’t want to limit the way attorneys work (they’d write down fewer things if they feared discovery); Rule 26b3—information gathered in preparation for trial only discoverable if requesting party has substantial need and can’t get the information by other means without undue hardship

ii.  Hickman v. Taylor—in preparation for litigation attorney did lots of interviews and took notes; requested in discovery; attorney said it was privileged; Supreme Court says not privileged but still not discoverable because information was put out in other answers and court doesn’t want to turn attorney into a witness; Plaintiff can do his own interviews of those witnesses