The Civil Procedure Outline

Whether a federal court can hear this type of case

Rules and authorities

• U.S. Const. art. III, § 2 — The constitutional ceiling — federal judicial power extends to cases "arising under" federal law and controversies "between Citizens of different States." Federal courts are courts of limited jurisdiction: they need BOTH Article III authority AND a statutory grant
• 28 USC §1331 — Federal question jurisdiction — "all civil actions arising under the Constitution, laws, or treaties of the United States." No amount-in-controversy requirement
• 28 USC §1332 — Diversity jurisdiction — complete diversity (no plaintiff shares a state with any defendant) plus amount in controversy EXCEEDING $75,000 (exactly $75,000 fails)
  • Timing: Citizenship is measured when the complaint is filed. The statute demands complete diversity even though Article III would tolerate minimal diversity — always analyze both levels.
• 28 USC §1367 — Supplemental jurisdiction — with one anchor claim inside federal jurisdiction, the court has power over all related claims forming the same case or controversy. (a) = POWER, (b) = PLAINTIFF RESTRICTION in diversity cases, (c) = DISCRETION to decline, (d) = tolling protects the statute of limitations
• 28 USC §1338 — IP jurisdiction — patents, plant variety, and copyright are EXCLUSIVELY federal (state courts must dismiss); trademark is concurrent (either court system)
• 28 USC §§1441-1447 — Removal and remand — defendants (never plaintiffs) may remove a case that could have been filed in federal court, to the district embracing the state court
  • Timing: 30 days from receipt of the pleading that shows removability; all properly joined and served defendants must consent; diversity removals face a one-year cap (bad-faith exception) and the forum-defendant rule. Remand for procedural defects must be sought within 30 days; remand for lack of SMJ has no deadline.
• Rule 12(b)(1) — Motion to dismiss for lack of SMJ — but under 12(h)(3), SMJ can NEVER be waived: "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action"
  • Timing: Raisable at any time, by any party, or by the court itself — even on appeal. The sharpest contrast with personal jurisdiction and venue, which are waived if not raised in the first response.

Core concepts

• Complete diversity (the Strawbridge rule) — No plaintiff may share state citizenship with any defendant, measured at filing. Individuals: U.S. citizenship + domicile (residence with intent to remain indefinitely). Corporations: dual citizens of the state(s) of incorporation AND the principal place of business — the "nerve center" where high-level decisions are made (Hertz). LLCs and partnerships: citizens of EVERY member's state. Trap: a U.S. citizen domiciled abroad is "stateless" and destroys diversity entirely.
• Amount in controversy — Must EXCEED $75,000, exclusive of interest and costs. The plaintiff's good-faith pleading controls unless it is a legal certainty the claim is for less. Aggregation: one plaintiff vs. one defendant may stack even unrelated claims; multiple parties generally may not, except common undivided interests and the Exxon Mobil §1367 tag-along.
• Judicial exceptions to diversity — Federal courts refuse divorce, alimony, and child-custody cases (domestic relations exception) and will not probate wills or administer estates — even with perfect diversity. But the exceptions are narrow: a tort suit between spouses or a dispute over estate assets that doesn't probate the will can proceed.
• The well-pleaded complaint rule — Federal question jurisdiction is judged from the face of the plaintiff's properly pleaded claim — anticipated federal defenses don't count, even when everyone knows the federal issue will decide the case (Mottley: the railroad's federal-statute defense was the whole fight, and there was still no jurisdiction). Contrast Article III's much broader "federal ingredient" test (Osborn), which the statute does not extend to.
• Holmes creation test + the Grable exception — A case "arises under" the law that creates the cause of action — that answers the vast majority. For state-law claims with an embedded federal issue, Grable requires all four: the federal issue is (1) necessarily raised, (2) actually disputed, (3) substantial to the federal system, and (4) hearing it won't disturb the congressional federal-state balance. Grable (IRS notice procedures) qualified; Gunn (patent malpractice) did not.
• Supplemental jurisdiction — the five-step analysis — (1) Is joinder proper under the Rules? (2) Does at least one claim have original jurisdiction — the anchor? (3) Does each remaining claim share a common nucleus of operative fact with the anchor (§1367(a))? (4) In diversity-only cases, do the Four Gatekeepers of §1367(b) take it away — anchor solely diversity + claim BY a plaintiff + against a party joined under Rule 14/19/20/24 + inconsistent with §1332? All four met → dismissed. (5) Even with power, §1367(c) discretion — most commonly when all federal claims have been dismissed.
• The Original Plaintiff Takeaway — §1367(b) restricts only PLAINTIFFS in diversity cases: a plaintiff cannot use supplemental jurisdiction to sue a non-diverse third-party defendant, because they could have brought everyone into state court from the start. Defendants face no such restriction — impleader claims, counterclaims, and fourth-party claims by defending parties ride along under §1367(a) even without diversity or amount in controversy.
• Removal mechanics and traps — Only defendants remove, by notice (not motion), to the district embracing the state court. The forum-defendant rule bars diversity removal when any properly joined AND served defendant is a forum citizen — which some courts let defendants dodge by "snap removal" before service. Fraudulent joinder lets courts ignore a defendant joined with no possible claim against them, but the removing party's burden is very high. Orders remanding for lack of SMJ are unreviewable on appeal (§1447(d)).

Key cases

• Osborn v. Bank of the United States (1824) — Article III's "arising under" reaches any case with a federal ingredient — far broader than the §1331 statute
• Strawbridge v. Curtiss (1806) — The complete diversity rule: no plaintiff may share a state with any defendant
• Louisville & Nashville Railroad v. Mottley (1908) — Well-pleaded complaint rule — an anticipated federal defense does not create federal question jurisdiction
• United Mine Workers v. Gibbs (1966) — Claims sharing a common nucleus of operative fact form one constitutional case — the test §1367(a) codifies
• Gordon v. Steele (W.D. Pa. 1974) — Domicile factors for diversity — residence plus intent to remain indefinitely
• Owen Equipment & Erection Co. v. Kroger (1978) — A diversity plaintiff cannot reach a non-diverse third-party defendant — the rule behind §1367(b)
• Grable & Sons Metal Products, Inc. v. Darue Engineering (2005) — Four-part test for embedded federal issues in state-law claims
• Exxon Mobil Corp. v. Allapattah Services, Inc. (2005) — §1367 lets additional plaintiffs' claims tag along even below the amount in controversy
• Hertz Corp. v. Friend (2010) — A corporation's principal place of business is its "nerve center" — where high-level decisions are made
• Gunn v. Minton (2013) — Patent-malpractice claims fail Grable's substantiality prong — no federal jurisdiction
• Price v. CTB, Inc. (M.D. Ala. 2001) — Rule 14 impleader is proper only to pass through all or part of the defendant's own liability

Whether this court has power over this defendant

Rules and authorities

• 14th Amendment Due Process — Constitutional limit — exercising jurisdiction must satisfy "traditional notions of fair play and substantial justice" (International Shoe)
• State long-arm statutes — The state's authorization to reach out-of-state defendants — no statute, no PJ, even if constitutional. Two types: constitutional-limits statutes (27 states, incl. California — statute and due process merge into one question) and enumerated-act statutes (listed acts like transacting business or committing a tort in-state; check the statute separately, then due process)
  • Timing: Analyze the statute FIRST. An enumerated-act statute can be narrower than the Constitution: one sale into the state might satisfy due process yet fail a "regularly does or solicits business" element — then the case is dismissed even though jurisdiction would be constitutional.
• Rule 4(k) — Federal courts borrow the forum state's long-arm statute — federal-court PJ is coextensive with the state court next door. 4(k)(1)(B): 100-mile bulge for parties joined under Rules 14/19. 4(k)(2): federal-claim fallback when no single state has jurisdiction
• Rule 12(b)(2) — The vehicle for challenging PJ — motion to dismiss for lack of personal jurisdiction
  • Timing: Must be raised in your FIRST response (pre-answer motion or answer) or it is waived forever — Rule 12(h)(1). PJ waives together with venue, process, and service-of-process defenses (12(b)(2)-(5)). Subject matter jurisdiction, by contrast, is never waived.

Core concepts

• The two-step framework — Every PJ analysis asks two questions in order: (1) does the forum's long-arm statute authorize jurisdiction? (2) does exercising it satisfy 14th Amendment due process? In constitutional-limits states the questions merge; in enumerated-act states they are genuinely separate steps — and the statute can fail where the Constitution would allow.
• Three categories of PJ — Specific PJ: the court can hear THIS case because the claim arises from or relates to the defendant's forum contacts. General PJ: the court can hear ANY claim against a defendant "essentially at home" in the forum. Traditional bases bypass minimum-contacts analysis entirely: consent, tag service while present in the state, and in rem/quasi-in-rem (which, after Shaffer, still require minimum contacts).
• Step 1 — Purposeful availment (contacts) — The defendant must have deliberately created a connection with the forum — the constitutional floor. Counts: conducting business there, targeting ads at residents, ongoing contracts with residents, regularly shipping products in, interactive websites aimed at the state, intentional torts aimed at the state. Doesn't count: the plaintiff's unilateral acts bringing the product there, random or fortuitous contacts, passive websites, or the defendant merely knowing the plaintiff lives there. Key question: did the defendant reach out to the forum, or did the forum reach out to the defendant?
• Stream of commerce — argue all three — For products that travel a supply chain into the forum, there is NO majority rule (Asahi, McIntyre). Brennan's pure stream: regular, anticipated flow plus awareness is enough. O'Connor's stream-plus: foreseeability alone fails — need plus factors showing intent to serve the forum market (forum advertising, forum-specific design, service channels, a forum distributor). Stevens's middle ground: case-by-case on volume, value, and hazard. On an exam, apply all three and argue which should govern: regular flow of many products favors Brennan; an isolated untargeted sale favors O'Connor; ambiguous facts favor Stevens.
• Calder effects test (intentional torts) — For out-of-state intentional torts causing in-forum harm: (1) intentional conduct, (2) expressly aimed at the forum state, (3) causing harm the defendant knew would be suffered there. Express aiming means targeting the forum itself — not mere foreseeability, and not just knowing the plaintiff lives there (Walden). For internet posts, untargeted social media is not express aiming (Burdick); look for forum-heavy followings, state-specific hashtags, or ads targeted at forum residents.
• Step 2 — Relatedness (nexus) — The claim must connect to the defendant's forum contacts. Two routes: "arise from" (traditional but-for causation) or "relate to" (Ford's broader route — the defendant systematically serves the forum market for the very product that caused the harm, even if this particular unit was sold elsewhere). The limit: each plaintiff needs their own connection between claim and forum (Bristol-Myers — 592 non-resident mass-tort plaintiffs dismissed).
• Step 3 — Fairness (rarely decisive) — Five factors from World-Wide Volkswagen and Asahi: burden on the defendant, the forum state's interest, the plaintiff's interest in relief, the interstate system's efficiency, and shared substantive policies. Once contacts and relatedness exist there is a strong presumption of reasonableness — the defendant needs a "compelling case" of unfairness. Asahi is the only Supreme Court case where fairness defeated jurisdiction: foreign defendant vs. foreign plaintiff, minimal forum interest, extreme burden.
• General PJ — "essentially at home" — Post-Goodyear/Daimler, general jurisdiction is narrow: for corporations, the state of incorporation and principal place of business (plus the rare Perkins-style exceptional case, where a Philippine mining company ran its whole wartime operation from Ohio); for individuals, domicile. Substantial in-state business — even 10% of global sales (Daimler) — no longer creates general jurisdiction. The pre-2011 "continuous and systematic contacts" era is over.
• The waiver trap — PVPS — Personal jurisdiction, Venue, Process, Service (12(b)(2)-(5)) must ALL be raised in the first Rule 12 motion or the answer, whichever comes first — omit one and it is gone. A motion raising only 12(b)(6) on day 15 forfeits a 12(b)(2) motion on day 30. The alternative — defaulting and collaterally attacking the judgment where it's enforced — is almost never worth it: if you're wrong about PJ, the default stands and you never defended the merits.
• The doctrinal arc (memory aid) — Expansion, then contraction. Shoe (1945) creates minimum contacts → McGee says one related contact can suffice → Hanson demands purposeful availment → World-Wide Volkswagen says foreseeability isn't enough → Keeton, Calder, and Burger King expand through the '80s → then Nicastro, Goodyear/Daimler, and Walden tighten everything from 2011 on. Ford (2021) is the one modern case that broadened rather than narrowed.

Key cases

• Pennoyer v. Neff (1878) — The territorial baseline: jurisdiction required physical presence, consent, or in-state property
• International Shoe Co. v. Washington (1945) — Replaced strict territoriality with minimum contacts + fair play and substantial justice
• Perkins v. Benguet Consolidated Mining Co. (1952) — Exceptional general PJ where the company's entire operations temporarily ran from the forum
• McGee v. International Life Insurance Co. (1957) — A single contract can support specific PJ when the claim arises from it and jurisdiction is fair
• Hanson v. Denckla (1958) — Purposeful availment required — the plaintiff's unilateral acts cannot create the defendant's contact
• Shaffer v. Heitner (1977) — All assertions of jurisdiction — including in rem and quasi-in-rem — must satisfy minimum contacts
• World-Wide Volkswagen Corp. v. Woodson (1980) — Foreseeability that a product might reach the forum is not a contact; the defendant must target the forum
• Keeton v. Hustler Magazine, Inc. (1984) — Regular in-forum circulation is purposeful availment even where the plaintiff has no forum ties
• Calder v. Jones (1984) — Effects test: intentional conduct expressly aimed at the forum, causing harm known to be felt there
• Burger King Corp. v. Rudzewicz (1985) — A long-term contract with continuing forum obligations is purposeful availment without physical presence
• Asahi Metal Industry Co. v. Superior Court (1987) — Fractured on stream of commerce; the one case where fairness alone defeated jurisdiction
• Burnham v. Superior Court (1990) — Tag jurisdiction survives: personal service while physically present in the forum remains valid
• Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) — General PJ narrowed to where the corporation is "essentially at home"
• J. McIntyre Machinery, Ltd. v. Nicastro (2011) — Targeting the U.S. market as a whole did not target New Jersey; still no majority stream-of-commerce rule
• Daimler AG v. Bauman (2014) — "At home" means incorporation or principal place of business — substantial in-state sales are not enough
• Walden v. Fiore (2014) — The defendant's own conduct must connect to the forum; the plaintiff's residence alone is not a contact
• Burdick v. Superior Court (Cal. App. 2015) — An untargeted social media post is not expressly aimed at the forum under Calder
• Bristol-Myers Squibb Co. v. Superior Court (2017) — Each plaintiff's claim must relate to the defendant's forum contacts — no piggybacking in mass torts
• Ford Motor Co. v. Montana Eighth Judicial District Court (2021) — "Relate to" needs no strict causation where the defendant systematically serves the forum market for that product

Which federal district — and when the case belongs somewhere else entirely

Rules and authorities

• 28 USC §1391(b)(1) — Residence venue — any district where any defendant resides, IF all defendants reside in the same state. The plaintiff's residence is irrelevant
• 28 USC §1391(b)(2) — Events venue — any district where a substantial part of the events or omissions giving rise to the claim occurred (or where property at issue sits). Multiple districts can qualify
• 28 USC §1391(b)(3) — Fallback ONLY — if no district qualifies under (b)(1) or (b)(2) (typically events abroad), any district where any defendant is subject to personal jurisdiction
• 28 USC §1391(c)-(d) — Residence defined — individuals reside in their district of domicile; a corporation resides in every district where it would be subject to personal jurisdiction if that district were a state (general AND specific PJ both count, analyzed district by district); foreign defendants with no U.S. PJ may be sued in any district
• 28 USC §1406(a) — The CURE statute — when venue is improper: dismiss, or "in the interest of justice" transfer to any district where the case could have been brought. Courts almost always transfer. The NEW forum's law applies
• 28 USC §1404(a) — The CONVENIENCE statute — when venue is proper but another district is better: transfer (never dismiss) to a district where the case might have been brought, or to which all parties consent. The ORIGINAL forum's law follows the case
• Rule 12(b)(3) — Improper-venue defense
  • Timing: Must be raised in the first response (motion or answer) or it is waived — venue travels with the PVPS waive-together group, unlike SMJ.

Core concepts

• The three-circle check — A forum works only where subject matter jurisdiction, personal jurisdiction, AND venue all overlap. Venue is purely statutory (no constitutional dimension), analyzed at the district level rather than the state level, and aims at convenience rather than the defendant's liberty.
• The venue dance — (b)(1), (b)(2), (b)(3) in order — Always analyze all three subsections in order. (b)(1) needs one state containing a residence for every defendant — defendants in different states kill it. (b)(2) asks where the story happened. (b)(3) is reachable only when both fail. Corporate defendants make (b)(1) rich: a company "resides" everywhere it has general PJ (incorporation, principal place of business) plus every district where specific PJ exists for this case.
• "Substantial part" — the circuit split — Broad approach (First Circuit, Uffner): any event in the "entire historical predicate" counts — the yacht sinking in Puerto Rico made venue proper there even though the dispute was contract interpretation. Narrow approach (Eighth Circuit): the in-forum conduct must be the defendant's, related to the claim, AND actually in dispute — filtering out background facts. On ambiguous facts, argue both.
• §1406 vs. §1404 — fix what's wrong vs. find what's better — Venue improper → §1406: transfer nearly always beats dismissal (saves filing fees, service, and the statute of limitations), and the transferee forum's law applies — the plaintiff gets a fresh start in the first place they got it right. Venue proper but inconvenient → §1404: a discretionary balancing of private factors (plaintiff's choice — strong presumption, especially at home; witnesses, with non-party witnesses and subpoena power weighted most; access to proof) and public factors (which court knows the governing law, docket congestion, local interest in local controversies). Crucially, §1404 transfer keeps the ORIGINAL forum's law — a change of courtroom, not a change of law.
• Forum selection clauses — Advance agreement on where disputes will be litigated waives personal jurisdiction and venue objections (never SMJ) and gets great weight from courts (Stewart Organization v. Ricoh; Carnival Cruise Lines v. Shute — enforcing even a cruise-ticket clause). Under §1404(a), the clause supplies the "all parties have consented" route.
• Forum non conveniens — dismissal, not transfer — When the better forum is outside the current court system (a foreign country, or another state's courts), transfer is impossible — FNC lets the court dismiss so the plaintiff can refile there. Requirements: an adequate alternative forum (defendant amenable to process, meaningful remedy available) and private/public factors clearly favoring it. Courts often grant conditionally — the defendant must waive limitations defenses and consent to jurisdiction in the alternative forum. Review is only for abuse of discretion.
• The Piper Aircraft rules — An unfavorable change in law gets little weight — dismissal is proper even if the foreign forum's law is worse for the plaintiff, unless the alternative amounts to "no remedy at all" (Rasoulzadeh: no dismissal where refiling in Iran risked the plaintiffs' lives). Deference varies: a domestic plaintiff's home-forum choice gets a strong presumption; a foreign plaintiff's gets much less — which is why foreign-accident suits against U.S. manufacturers (Piper, Gonzalez v. Chrysler) are the doctrine's home turf.

Key cases

• Gulf Oil Corp. v. Gilbert (1947) — The private and public interest factors that govern both FNC and §1404 transfer analysis
• Van Dusen v. Barrack (1964) — After a §1404(a) transfer, the transferor forum's state law follows the case
• Piper Aircraft Co. v. Reyno (1981) — FNC dismissal is proper even when the foreign forum's law is less favorable, absent "no remedy at all"
• Rasoulzadeh v. Associated Press (S.D.N.Y. 1983) — No FNC dismissal where the alternative forum is inadequate — here, refiling in Iran endangered the plaintiffs
• Carnival Cruise Lines, Inc. v. Shute (1991) — Forum selection clauses are enforceable and get great weight, even in form contracts
• Uffner v. La Reunion Francaise (1st Cir. 2001) — Broad "substantial part" venue: any event in the claim's historical predicate counts, so venue can be proper in multiple districts
• Gonzalez v. Chrysler Corp. (5th Cir. 2002) — FNC dismissal of a Mexican accident suit — Mexico was the more convenient forum despite lower recovery
• MacMunn v. Eli Lilly Co. (D.D.C. 2008) — Modern application of the private and public interest transfer factors

Which law applies in federal court — state or federal

Rules and authorities

• Rules of Decision Act (28 USC §1652) — "The laws of the several states, except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." Erie's statutory foundation — and Hanna's key insight is that it governs only judge-made federal law, not statutes or Federal Rules
• Rules Enabling Act (28 USC §2072) — (a) The Supreme Court may prescribe general rules of practice and procedure; (b) such rules "shall not abridge, enlarge or modify any substantive right"; (c) conflicting laws are superseded. The source of the Federal Rules' strength: the Supreme Court has NEVER found a Federal Rule to violate §2072(b)
• Supremacy Clause (art. VI, ¶2) — Validly created federal law controls over conflicting state law — why federal statutes and Federal Rules win almost automatically, while mere federal judicial practices must earn their keep under Erie/York/Byrd

Core concepts

• Threshold — is this an Erie problem at all? — Three requirements: (1) a federal court exercising diversity or supplemental jurisdiction (not federal question), (2) a conflict between federal procedure and state law, (3) an issue in the gray area that could be seen as substance OR procedure. Substance is easy — state law always governs in diversity (duty of care, damages, defenses). The doctrine exists for the gray zone.
• The four-column chart — source of the federal law decides the test — Column 1, U.S. Constitution: always wins (Supremacy Clause) — e.g., the Seventh Amendment jury right. Column 2, federal statute: wins if "rationally capable of being classified as procedural" — an extremely low bar; procedural statutes virtually always control. Column 3, Federal Rule: wins if rationally procedural AND a rule of practice and procedure under §2072(a) AND any effect on substantive rights is merely incidental — Federal Rules have never lost at the Supreme Court (Rule 3's filing-commences rule beat a state service-commences rule in Hanna). Column 4, federal common law or judicial practice: the only column where state law has a real chance — apply the Twin Aims and Byrd tests. Federal law gets progressively weaker from Column 1 to Column 4.
• Whose state law? Erie guesses and certification — A federal court applies the choice-of-law rules of the state where it sits (Klaxon) to pick which state's substantive law governs. When that state's law is unclear, the court predicts what the state supreme court would do TODAY — it is not bound by intermediate appellate decisions and may even depart from aged state supreme court precedent it believes would be overruled. Alternatively it can certify the question to the state supreme court, though delay and expense make that rare.
• York — the outcome-determinative era — Guaranty Trust v. York (state statute of limitations vs. federal laches) asked whether the choice "significantly affects the result of the litigation" — if yes, state law. The test proved to be "an unchecked engine of destruction for the federal rules": nearly everything affects outcomes, so federal courts became "ventriloquist dummies required to mouth state law."
• Byrd — three tiers with balancing — Tier 1: does the state law define or create state rights and obligations (truly substantive)? → state law. Tier 2: is the procedure so "bound up" with the state-created right that the right can't be had without it? → state law (if the state says nothing about its importance, presume NOT bound up). Tier 3: for mere "form and mode," balance how outcome-determinative the choice is against the strength of the federal interest — in Byrd itself, the federal practice of jury fact-finding won because it operates "under the influence, if not the command, of the Seventh Amendment." A federal interest must approach constitutional magnitude to overcome an outcome-determinative conflict.
• Hanna — the modern two-track system — Track 1: a federal statute or Federal Rule on point gets the easy Supremacy Clause analysis (Columns 2-3) — no balancing, no outcome test. Track 2: a bare federal judicial practice faces the Twin Aims: would applying federal law (1) encourage forum shopping, or (2) produce inequitable administration of the laws — a substantive litigation advantage for one side? Either yes → state law. York, Byrd, and Hanna all remain good law; Hanna just sorted them into the right lanes.
• Why Erie exists — Swift and the taxicab — Under Swift v. Tyson (1842), federal courts ignored state common law in favor of a "general common law" — a supposedly transcendental body of law courts would eventually converge on. Instead it produced parallel legal systems, forum shopping, and citizenship discrimination — perfected in Black & White Taxicab (1928), where a Kentucky company reincorporated in Tennessee solely to manufacture diversity and enforce a monopoly contract Kentucky courts would have voided. Holmes's dissent supplied the answer Erie adopted: law "does not exist without some definite authority behind it," and that authority is the state — legislature and courts alike.
• Erie itself — Harry Tompkins lost his right arm to a passing Erie Railroad train while walking a well-worn footpath in Pennsylvania. Pennsylvania law called him a trespasser (willful/wanton duty only — he loses); federal general common law required reasonable care (he wins). His lawyers sued in federal court in New York and won $30,000. The Supreme Court took the case to bury Swift: the First Congress meant state common law to count, Swift's goals had failed, and — Brandeis's constitutional holding — "There is no federal general common law." Tompkins, on remand, lost everything. Reed's concurrence preserved the other half of the system: federal courts still make their own procedure.

Key cases

• Swift v. Tyson (1842) — Federal courts need not follow state "general common law" — the doctrine Erie overruled
• Black & White Taxicab Co. v. Brown & Yellow Taxicab Co. (1928) — Swift's mischief perfected: reincorporating solely to manufacture diversity and escape state law
• Erie Railroad Co. v. Tompkins (1938) — "There is no federal general common law" — federal courts in diversity apply state substantive law, including state court decisions
• Klaxon Co. v. Stentor Electric Manufacturing Co. (1941) — Federal courts apply the choice-of-law rules of the state where they sit
• Guaranty Trust Co. v. York (1945) — Outcome-determinative test: if the choice of law significantly affects the result, apply state law
• Byrd v. Blue Ridge Rural Electric Cooperative (1958) — Three-tier analysis — strong federal interests can overcome outcome-determinative state procedure
• Hanna v. Plumer (1965) — Federal Rules valid under the REA control automatically; bare judicial practices face the Twin Aims of Erie

Investigating the claim and choosing the right court

Rules and authorities

• Rule 11 — Signing pleadings — certification of good faith basis
  • Timing: Applies to: every pleading, motion, and paper filed with the court. Does NOT apply to: discovery (Rule 37 governs instead) or oral arguments. Continuing duty — violation can occur by later advocating a position.
• 28 USC §1331 — Federal question jurisdiction
• 28 USC §1332 — Diversity jurisdiction ($75K+ amount in controversy)
• 28 USC §1367 — Supplemental jurisdiction
• 28 USC §1391 — Venue — proper district for filing

Core concepts

• Rule 11 "Stop and Think" — Before signing/filing, attorney must conduct inquiry reasonable under the circumstances. Objective negligence standard — good faith is no defense. Must certify: (1) no improper purpose, (2) legal contentions warranted or nonfrivolous argument for change, (3) factual contentions have evidentiary support, (4) denials warranted on evidence.
• Rule 11(a) — Signature Requirement — At least one attorney of record must sign every pleading, motion, and paper. Court must strike unsigned paper unless promptly corrected.
• Rule 11 Sanctions — Two pathways: (1) Motion by opposing party with 21-day safe harbor to withdraw (11(c)(2)), (2) Sua sponte by court with no safe harbor — cannot award attorney's fees, reserved for conduct "akin to contempt" (11(c)(3)). Cannot impose monetary sanctions on represented party for bad legal arguments (11(c)(5)) — that's the lawyer's responsibility. Sanctions must be "sufficient to deter" — no more (11(c)(4)).
• Pre-Filing Investigation Standard — Amount of investigation depends on time available and probability more investigation will turn up important evidence (Szabo Food Service). National objective standard — no locality rule. If you lack expertise, must associate with a specialist or "bone up on the relevant law at every step."
• Nonfrivolous Argument for Change — 11(b)(2) — Sources: circuit splits, Supreme Court dicta, dissenting opinions, law review articles, scholarly commentary, trends in other jurisdictions. En banc review exists as a legitimate mechanism for changing circuit law — arguing against controlling precedent is non-frivolous. Losing does NOT equal Rule 11 violation.

Key cases

• Erie Railroad Co. v. Tompkins (1938) — Federal courts sitting in diversity must apply state substantive law
• International Shoe Co. v. Washington (1945) — Personal jurisdiction requires minimum contacts with the forum state
• World-Wide Volkswagen Corp. v. Woodson (1980) — Foreseeability alone insufficient — defendant must purposefully avail itself of the forum
• Hays v. Sony Corp. — Attorney sanctioned $14,895 for filing claim based on abolished law with no pre-filing investigation. Objective negligence standard.
• Hunter v. Earthgrains — Sanctions vacated — arguing against controlling precedent was non-frivolous because circuit split existed and Supreme Court authority supported the position. Losing ≠ Rule 11 violation.
• Blue v. U.S. Dept. of Army — Rule 11 must not chill advocacy for legal change — "If arguing against precedent were forbidden, the parties who brought Brown v. Board of Education might have been thought to have engaged in sanctionable conduct for pursuing claims in the face of Plessy v. Ferguson."
• Wright v. Universal Maritime Service Corp. (1998) — Supreme Court validated Hunter's legal theory after she filed but before sanctions were imposed — demonstrates arguing against controlling precedent can be vindicated.

Commencing the action and notifying the defendant

Rules and authorities

• Rule 3 — Commencement of action — filing the complaint
• Rule 4 — Summons — issuance and service of process
  • Timing: Must serve within 90 days of filing complaint (Rule 4(m)). If not served in time, court must dismiss without prejudice OR order service within a specified time if plaintiff shows good cause.
• Rule 4(k) — Territorial limits of effective service
• Rule 5 — Service and filing of pleadings and papers

Key cases

• Mullane v. Central Hanover Bank & Trust Co. (1950) — Notice must be reasonably calculated to inform interested parties — due process standard for service

Complaint, answer, and early dispositive motions

Rules and authorities

• Rule 7 — Pleadings allowed — types of pleadings (complaint, answer, reply to counterclaim, etc.)
• Rule 8(a) — Complaint: (1) jurisdiction statement, (2) short/plain statement of claim, (3) demand for relief
• Rule 8(b) — Answer: admit, deny, or lack of knowledge (functions as denial). Failure to deny = admission
  • Timing: Must file within 21 days after service of summons/complaint. Exception: 60 days if defendant timely returns waiver of service (Rule 12(a)(1)).
• Rule 8(c) — Affirmative defenses — must be pleaded or waived (statute of limitations, comparative negligence, etc.)
• Rule 8(d) — Pleading flexibility — alternative, hypothetical, and inconsistent claims permitted
• Rule 8(e) — Construction — pleadings "must be construed so as to do justice"
• Rule 9(b) — Heightened pleading for fraud — must allege when, where, and how with specificity
  • Timing: Applies ONLY to fraud and mistake claims. Courts cannot extend heightened pleading to other categories (Leatherman v. Tarrant County). Malice, intent, and knowledge may still be alleged generally.
• Rule 10 — Form of pleadings — caption (10(a)), numbered paragraphs, separate counts (10(b))
• Rule 12 — Defenses and objections — pre-answer motions to dismiss
  • Timing: Must file BEFORE the answer (or include in the answer). 12(b)(2)-(5) waived if not in first Rule 12 motion or answer. 12(b)(6) and 12(b)(7) can be raised through trial. 12(b)(1) subject matter jurisdiction can be raised at ANY time, even on appeal.
• Rule 12(e) — More Definite Statement — when complaint is "hopelessly vague" and defendant cannot reasonably prepare a response. Rarely granted.
• Rule 12(f) — Motion to Strike — remove inflammatory, improper, or irrelevant material from a pleading. Not a substitute for 12(b)(6).
• Rule 15 — Amended and supplemental pleadings
  • Timing: As of right (15(a)(1)): ONE TIME within 21 days after serving, or 21 days after a responsive pleading or Rule 12 motion — whichever is earlier. After that: need opposing party's written consent or court leave. During/after trial: Rule 15(b) allows amendment for issues tried by consent.
• Rule 55 — Default and default judgment — failure to respond within 21 days
  • Timing: Entry of default (55(a)): when defendant fails to plead or otherwise defend within 21 days. Default judgment (55(b)): only AFTER entry of default. Setting aside: entry of default requires "good cause" (lower bar); default judgment requires meeting Rule 60(b) (higher bar).

Core concepts

• Pleading Standards Evolution — Common Law (hypertechnical) → Code Pleading (facts) → Notice Pleading (1938, give notice) → Plausibility Pleading (2007-2009, plausible facts). Conley's "no set of facts" standard retired by Twombly.
• Twombly-Iqbal Two-Step Analysis — Step 1: Identify and discard conclusory allegations — "threadbare recitals of elements" get no presumption of truth. Step 2: Assess whether remaining well-pleaded facts plausibly state a claim. More than possible/conceivable, less than probable. Context-specific using "judicial experience and common sense."
• Competing Inferences Problem — When facts equally support innocent and guilty explanations, plaintiff must plead something more to make liability more plausible than the alternative. Parallel conduct equally consistent with conspiracy or lawful behavior = insufficient (Twombly).
• The Catch-22 Problem — Plaintiffs need discovery to plead plausibly, but can't get discovery until they survive a motion to dismiss. Information asymmetry favors defendants who control the facts. Discovery doesn't begin until after 12(b)(6) is resolved.
• Rule 12(b) Defenses — (1) Lack of subject matter jurisdiction, (2) Lack of personal jurisdiction, (3) Improper venue, (4) Insufficient process, (5) Insufficient service, (6) Failure to state a claim, (7) Failure to join party under Rule 19.
• The Waiver Trap — Rule 12(g)(2): Must consolidate ALL available Rule 12 defenses in one motion. WAIVABLE (12(h)(1)): 12(b)(2)-(5), 12(e), 12(f) — waived if not in first motion or answer. CAN RAISE LATER (12(h)(2)): 12(b)(6), 12(b)(7) — through trial. NEVER WAIVED (12(h)(3)): 12(b)(1) subject matter jurisdiction — can be raised at any time, even on appeal. "Reserving rights" in motion does NOT prevent waiver (Hunter v. Serv-Tech).
• Rule 12(d) — Conversion to Summary Judgment — If court considers matters outside the pleadings on a 12(b)(6) or 12(c) motion, the motion converts to a Rule 56 summary judgment motion. All parties must be given reasonable opportunity to present pertinent material.
• Affirmative Defenses vs. Denials — "Never went on property" = denial (contradicts allegation). "Had permission" = affirmative defense (admits entry, asserts additional fact). Key test: if defendant bears burden of proof → affirmative defense. Must be pleaded or waived — can't "lie behind a log" (Ingraham v. United States). Vague laundry-list defenses ("laches, waiver, estoppel...") may be stricken as too general (Reis Robotics).
• Amendments — Rule 15(a) — As of right: one amendment within 21 days after serving or 21 days after responsive pleading/Rule 12 motion. Otherwise: need consent or court leave — "freely give when justice so requires." Foman v. Davis factors: undue delay, bad faith, repeated failure to cure, undue prejudice, futility. Focus on prejudice (preparation prejudice, not merits) — Beeck v. Aqua Slide.
• Relation Back — Rule 15(c) — Allows amendments after statute of limitations by "relating back" to original filing date. 15(c)(1)(A): state law may be more generous — one-way ratchet favoring amending party. Same party/new claim (15(c)(1)(B)): must arise from same transaction/occurrence. New defendant (15(c)(1)(C)): must have received notice within 90 days (Rule 4(m)) and known action would have been brought against it "but for mistake in identity." "Mistake" = about WHO you meant to sue (misnomer, wrong entity), NOT discovering a new wrongdoer.
• Default Judgment — Rule 55 — Step 1: Entry of default by clerk when defendant fails to respond within 21 days. Step 2: Default judgment by clerk (limited) or court. Setting aside (55(c)): different standards — entry of default = "good cause" (lower), default judgment = Rule 60(b) requirements (higher).

Key cases

• Conley v. Gibson (1957) — Notice pleading era — complaint sufficient unless "beyond doubt plaintiff can prove no set of facts." Low threshold, retired by Twombly.
• Bell Atlantic Corp. v. Twombly (2007) — Must plead facts making claim "plausible on its face." Parallel conduct equally consistent with conspiracy or lawful behavior is insufficient.
• Ashcroft v. Iqbal (2009) — Applies Twombly plausibility to ALL civil actions, not just antitrust. Two-step: discard conclusory allegations, then assess plausibility.
• Dioguardi v. Durning (2d Cir. 1944) — Pro se barely comprehensible complaint sufficient under notice pleading — court identifies applicable law from alleged facts.
• Swanson v. Citibank (7th Cir. 2010) — Plausibility ≠ probability. Ask "could this have happened," not "did it happen." Posner dissent favored strict reading.
• Leatherman v. Tarrant County (1993) — Courts cannot extend heightened pleading beyond categories listed in Rule 9(b).
• Krupski v. Costa Crociere (2010) — "Mistake" inquiry focuses on what defendant knew, not plaintiff's diligence. Shared counsel = notice.
• Foman v. Davis (1962) — Standard for denying leave to amend: undue delay, bad faith, repeated failure to cure, undue prejudice, futility.
• Beeck v. Aqua Slide 'N' Dive — Liberal standard for granting leave to amend. Focus on prejudice (preparation prejudice, not merits) and futility.
• Bonerb v. Richard J. Caron Foundation — New claims related to original facts can relate back — defendant already on notice to preserve evidence.
• Reis Robotics USA v. Concept Industries — Motion to strike insufficient affirmative defenses: defenses that are really denials, vague laundry-list defenses too general, "reserving right to add defenses" not allowed.
• Hunter v. Serv-Tech, Inc. — Filed 12(b)(5) motion, then tried to raise 12(b)(2) later — waived. "Reserving rights" in motion does not prevent waiver.
• Matos v. Nextran — Illustrates Rules 12(e) and 12(f): complaint incorporated paragraphs by reference without separating claims; references to "illegal conduct" stricken as inflammatory.

Procedural branches

• Case May End Here (Rule 12(b)(6), Rule 12(c), Rule 55) — Defendant moves to dismiss for failure to state a claim, lack of jurisdiction, or default. Dismissal under 12(b)(6) is usually with leave to amend.

Adding claims, parties, and third-party defendants

Rules and authorities

• Rule 13(a) — Compulsory counterclaims — arises from the same transaction or occurrence as the opposing party's claim and needs no party beyond the court's reach
  • Timing: Must be raised in the answer or it is WAIVED permanently. Even if the first case settled (not adjudicated), a later lawsuit may still be barred (King v. Blanton — equitable waiver). Supplemental jurisdiction is automatic — same transaction means common nucleus.
• Rule 13(b) — Permissive counterclaims — any claim that isn't compulsory, related or not. Needs its own independent basis for subject matter jurisdiction
• Rule 13(g)-(h) — Crossclaims against a co-party — same transaction/occurrence or property at issue; always permissive, never waived. 13(h) adds new parties to a counterclaim or crossclaim via Rules 19 or 20
• Rule 14 — Impleader — a defending party brings in someone who is or may be liable to THEM for all or part of the judgment (contribution/indemnity pass-through). See the §1367 five-step in the Subject Matter Jurisdiction section
  • Timing: Within 14 days of the answer as of right; afterward, by leave of court weighing timeliness, complication, delay, and prejudice.
• Rule 18 — Joinder of claims — extremely broad: a party with any valid claim, counterclaim, crossclaim, or third-party claim may pile on as many claims as it has against that opponent, related or not. The limit is never Rule 18 — it's subject matter jurisdiction
• Rule 19 — Required joinder — when the case can't fairly proceed without an absentee; typically raised by a Rule 12(b)(7) motion to dismiss for failure to join a required party
• Rule 20 — Permissive party joinder — multiple plaintiffs or defendants if the claims arise from the same transaction, occurrence, or series AND share at least one common question of law or fact. Defendants may move to sever (20(b)); courts may order separate trials (Rule 42(b))
• Rule 22 — Interpleader — a stakeholder facing multiple claimants to one fund forces them all into a single suit to avoid double liability. Rule 22 requires normal SMJ, PJ, and venue; statutory interpleader (28 USC §§1335, 1397, 2361) is far easier to satisfy
• Rule 23 — Class actions — representative litigation binding absent members; requires numerosity, commonality, typicality, and adequate representation
• Rule 24 — Intervention — an absentee forces their way IN: of right under 24(a)(2) when their interest would be impaired and no existing party adequately represents it; permissive under 24(b) on a common question, if it won't unduly delay or prejudice the original parties

Core concepts

• Every joinder problem asks three questions — (1) Does a Federal Rule authorize the joinder — 18 (claims), 20 (parties), 13 (counter/crossclaims), 14 (impleader), 19 (required parties), 24 (intervention), 22 (interpleader), 23 (class actions)? (2) Is there subject matter jurisdiction over the joined claim — independent (diversity or federal question) or supplemental under §1367(a), watching the §1367(b) trap? (3) Even if joinder is proper, should the court sever or order separate trials (Rules 42(b), 20(b), 14(a)(4))?
• Compulsory vs. permissive counterclaims — Compulsory (13(a)): arises from the same transaction/occurrence — assert it or lose it forever, and supplemental jurisdiction rides along automatically. Permissive (13(b)): any unrelated claim — bring it now or later, but it needs its own independent SMJ. Counterclaim relief can exceed or differ from the plaintiff's demand (13(c)). Exceptions to compulsion: the claim is already pending elsewhere, or the opposing party sued by attachment without personal jurisdiction.
• Crossclaims — permissive, but the door opens once — A crossclaim against a co-party must arise from the same transaction/occurrence (or property at issue) — but is never required; a co-party can always sue separately. Once one crossclaim satisfies 13(g), Rule 18 lets that party add even unrelated claims against the same co-party. Crossclaims are defendants' claims, so §1367(b) doesn't block their supplemental jurisdiction.
• Rule 19 — the three-step analysis — Step 1, required? A person is required if the court can't accord complete relief without them (protects plaintiff), OR their absence impairs their own claimed interest (protects absentee), OR existing parties risk double or inconsistent obligations (protects defendant). Step 2, feasible? Joinder must survive personal jurisdiction, subject matter jurisdiction, and venue — if feasible, the court MUST join them. Step 3, if not feasible (classically, joining the absentee destroys diversity): the Rule 19(b) equity-and-good-conscience factors — prejudice, ability to lessen it, adequacy of judgment without the absentee, and whether the plaintiff has another remedy — decide between proceeding without them and dismissal. Joint tortfeasors are NOT required parties: the plaintiff may sue one and skip the other (Temple v. Synthes).
• Intervention — Rule 24 — Intervention of right (24(a)(2)) requires a timely motion, an interest in the subject matter, impairment of that interest if the case proceeds without the movant, and inadequate representation by existing parties — a test that deliberately mirrors Rule 19(a)'s impairment prong. Permissive intervention (24(b)) needs only a common question of law or fact, filtered through delay and prejudice. The policy tension: efficiency and protecting absentees vs. keeping litigation manageable and letting parties control their own suit (Michaels Stores v. Castle Ridge Plaza works through both routes).
• Rule 22 vs. statutory interpleader — Rule interpleader plays by normal rules: complete diversity or federal question, ordinary personal jurisdiction, §1391 venue — the Rule cannot expand jurisdiction. Statutory interpleader (§§1335, 1397, 2361) gives the stakeholder superpowers: minimal diversity between any two claimants plus a $500 stake deposited with the court, NATIONWIDE service of process, venue wherever any claimant resides, and the power to enjoin competing suits in other courts.
• Joinder meets §1367(b) — the two take-aways — In diversity-only cases, supplemental jurisdiction is taken away from (1) original plaintiffs' claims against parties joined under Rules 14, 19, 20, or 24, and (2) claims by plaintiffs newly joined under Rules 19 or 24 — whenever the claim would break complete diversity or the amount in controversy. Defendants are almost never blocked: impleader claims, counterclaims, and crossclaims ride §1367(a) freely. And if the anchor includes a federal question, §1367(b) never applies at all. Full five-step analysis in the Subject Matter Jurisdiction section.

Key cases

• Hansberry v. Lee (1940) — Due process requires adequate representation for class members to be bound by judgment
• Temple v. Synthes Corp. (1990) — Joint tortfeasors are permissive, not required, parties — the plaintiff may sue one without the other
• Torrington Co. v. Yost (D.S.C. 1991) — Required-party analysis runs separately for each absentee, with the §1367(b) overlay checked per claim
• Michaels Stores, Inc. v. Castle Ridge Plaza (D.N.J. 1998) — Analyzes both intervention of right and permissive intervention for a non-party lessee
• Wal-Mart Stores, Inc. v. Dukes (2011) — Class must share common questions that generate common answers — individualized inquiries defeat commonality
• King v. Blanton (N.C. App. 2012) — Equitable waiver of compulsory counterclaims — even if first case settled (not adjudicated), may still bar later lawsuit

Exchanging information and evidence between the parties

Rules and authorities

• Rule 1 — "Just, speedy, and inexpensive determination of every action" — foundational purpose underlying all discovery rules
• Rule 26 — Duty to disclose; general discovery provisions; scope and proportionality
  • Timing: Rule 26(f) conference ("Meet and Confer"): required at least 21 days before Rule 16(b) scheduling conference. Initial disclosures: within 14 days after 26(f) conference. Discovery cannot begin until AFTER the 26(f) conference (Rule 26(d)). Expert disclosures: at least 90 days before trial; rebuttal within 30 days (26(a)(2)(D)). Pretrial disclosures: at least 30 days before trial (26(a)(3)).
• Rule 26(b)(3) — Work product doctrine — materials prepared in anticipation of litigation
  • Timing: Applies only to documents/tangible things prepared "in anticipation of litigation." Does NOT protect underlying facts — only the attorney's compilation and analysis. Any person can obtain their OWN prior statement without any special showing (26(b)(3)(C)).
• Rule 26(b)(4) — Expert discovery — testifying vs. consulting experts
  • Timing: Testifying experts (26(a)(2)(B)): must disclose identity of ANY witness who may present expert testimony. Can be deposed only AFTER report is provided (26(b)(4)(A)). Summary disclosure (26(a)(2)(C)) for non-retained experts (treating physicians, employee experts). Consulting/non-testifying experts (26(b)(4)(D)): discovery ordinarily PROHIBITED except in exceptional circumstances. Draft expert reports protected as work product (26(b)(4)(B)).
• Rule 26(c) — Protective orders — good cause required, must meet and confer first
• Rule 26(g) — Discovery's Rule 11 — must sign and certify all discovery papers
  • Timing: Applies ONLY to discovery papers (requests, responses, objections, disclosures). Regular Rule 11 does NOT apply to discovery — Rule 26(g) is the parallel enforcement mechanism. Certifies: completeness, consistency with rules, no improper purpose, not unreasonable or unduly burdensome.
• Rule 30 — Depositions by oral examination (10 max, 1 day/7 hours each)
  • Timing: Can depose parties AND nonparties (nonparties via Rule 45 subpoena). Leave required if: more than 10 depositions per side, deponent already deposed, or before Rule 26(d) discovery period. 30(b)(6) organizational depositions: name entity, describe matters, entity designates witness. Deponent has 30 days to review transcript and note changes (30(e)).
• Rule 33 — Interrogatories to parties (25 max, 30-day response, under oath)
  • Timing: Parties ONLY — cannot send to nonparties. 30-day response period. Corporate parties must furnish ALL info available to the organization including employees/agents/lawyers (33(b)(1)(B)). Contention interrogatories allowed but court may defer answer until after other discovery. Business records option (33(d)). "Continuing interrogatories" preamble invalid — cannot impose supplementation beyond Rule 26(e).
• Rule 34 — Production of documents, ESI, and tangible things
  • Timing: Parties only via Rule 34. Nonparties only via Rule 45 subpoena. No numerical limit. 30-day response period. Must describe items with reasonable particularity (34(b)). Must specify form for ESI production.
• Rule 35 — Physical and mental examinations (court order + good cause required)
  • Timing: Parties ONLY — cannot compel nonparty exams. Requires court order showing good cause AND that the physical/mental condition is genuinely in controversy. Examiner's report must be provided on request; requesting party waives privilege on same condition.
• Rule 36 — Requests for admission (deemed admitted if no response in 30 days)
  • Timing: Parties ONLY. If no response within 30 days — matter is CONCLUSIVELY established for the pending action (automatic, no motion needed). Cannot object solely because request presents a genuine issue for trial (36(a)(6)). Best used AFTER other discovery to authenticate documents and narrow issues for trial.
• Rule 37 — Failure to make disclosures or cooperate; sanctions
  • Timing: Motion to compel (37(a)): anytime during discovery, must meet and confer first. Self-executing exclusion (37(c)(1)): applies automatically when party fails to disclose — no motion needed. ESI spoliation (37(e)): applies when ESI lost because party failed to take reasonable preservation steps — severe sanctions (adverse inference, dismissal) require intentional destruction.
• Rule 45 — Subpoenas — compelling nonparty testimony and document production
  • Timing: Only mechanism for compelling nonparty cooperation. 100-mile rule (45(c)): compliance within 100 miles of nonparty's residence or workplace. Must tender 1 day's attendance fees and mileage when serving (45(b)). Contempt for failure to comply without adequate excuse (45(g)).

Core concepts

• Scope — Three-Part Test — All three must be met: (1) Not privileged, (2) Relevant to claim/defense, (3) Proportional to needs of case. Discoverable ≠ admissible. Six proportionality factors (2015 amendment): importance of issues, amount in controversy, parties' access to info, resources, importance of discovery in resolving issues, burden vs. benefit.
• Privileges — Discovery "Full Stop" — Privileged info = discovery ends. Relevance and proportionality do not override valid privilege. Types: attorney-client, spousal, doctor-patient, psychotherapist (Jaffee v. Redmond), 5th Amendment, clergy-penitent. Privilege protects communications, not underlying facts. Must affirmatively assert + provide privilege log (Rule 26(b)(5)(A)).
• Work Product Doctrine — Two tiers: Fact/ordinary work product (qualified — can overcome with substantial need + no equivalent (26(b)(3)(A))). Opinion work product (near-absolute — mental impressions, conclusions, legal theories virtually never discoverable (26(b)(3)(B))). "Anticipation of litigation" is the biggest battleground: specific claim test (narrowest, Coastal States Gas), primary purpose (majority), ad hoc/totality (broadest, In re Sealed Case).
• Expert Discovery Categories — Testifying experts (26(a)(2)(B)): broad mandatory disclosure with written report, can be deposed after report. Draft reports protected as work product. Consulting/non-testifying experts (26(b)(4)(D)): discovery ordinarily prohibited. "Consulted but not retained" experts: rule is silent — Advisory Committee says omission is intentional (protected), but alternative reading leaves them vulnerable to discovery. Fact witness experts: only facts/opinions acquired in anticipation of litigation are protected.
• ESI / E-Discovery — No duty to produce from sources not reasonably accessible due to undue burden/cost (26(b)(2)(B)). Litigation holds (Zubulake IV & V): once litigation reasonably anticipated, must suspend routine destruction and counsel must oversee compliance. Predictive coding/TAR widely accepted. Attorney must understand e-discovery or associate with specialists (Waskul v. Washtenaw County).
• Deposition Objection Rules — Form objections (compound, ambiguous, leading) must be made at deposition or permanently waived (32(d)(3)(B)). Substantive objections (relevance, hearsay) preserved until trial (32(d)(3)(A)). Objections must be concise, non-argumentative, non-suggestive (30(d)(1)). Counsel may instruct not to answer only for: (1) privilege, (2) court limitation, or (3) Rule 30(d)(3) motion to terminate. Answering after privilege objection effectively waives the privilege.
• Spoliation — Destruction or alteration of evidence, or failure to preserve. Three elements: (1) obligation to preserve, (2) culpable state of mind, (3) relevance to claims/defenses. Common law spoliation: negligence can trigger sanctions. Rule 37(e) for ESI: severe sanctions (adverse inference, dismissal) require showing of intentional destruction.
• Sanctions Framework — Rule 37(a): motion to compel (must meet and confer first). Rule 37(b)(2)(A) graduated sanctions for violating court order: (i) establish facts, (ii) prohibit evidence, (iii) strike pleadings, (iv) stay proceedings, (v) dismiss action, (vi) default judgment, (vii) contempt. Rule 37(c)(1): self-executing exclusion for failure to disclose (no motion needed). Boilerplate/general objections increasingly disfavored — may be stricken or sanctioned.
• Strategic Sequencing — Initial disclosures → Interrogatories (identify/locate) → Document requests (collect evidence) → Depositions (armed with documents, key witnesses last) → Requests for admissions (narrow issues for trial). Zweifach detailed sequence: (1) required disclosures, (2) depose secondary witnesses, (3) initial document requests, (4) interrogatories, (5) depose adverse party, (6) follow-up requests to admit, (7) depose experts, (8) contention interrogatories, (9) final "clean up" requests.
• De Bene Esse vs. Discovery Deposition — Discovery deposition: open-ended questioning for preview and impeachment — witness expected to testify live at trial. De bene esse deposition: substitute for live testimony when witness will be unavailable (illness, distance) — more guarded questioning because it IS the trial testimony.
• Initial Disclosures Scope — Narrower than general discovery: only what disclosing party may use to support its OWN claims/defenses. NOT required to disclose witnesses whose testimony damages your case. NOT impeachment-only witnesses. Three ways to delay/avoid: (1) stipulation, (2) object during 26(f) conference, (3) move for court order. Self-help non-disclosure is NOT authorized.

Discovery tools

• Initial Disclosures — Rule 26(a)(1) — automatic exchange within 14 days after 26(f) conference. Witnesses, documents, damages, insurance. Narrower scope: only what disclosing party may use to support its own claims/defenses.
• Interrogatories — Rule 33 — written questions to parties only (max 25). 30-day response under oath. Good for identifying witnesses/facts/documents. Business records option (33(d)). Contention interrogatories allowed.
• Depositions — Rules 30/31 — parties and nonparties. 10 per side, 1 day/7 hours. Oral exam under oath, no judge present. 30(b)(6) organizational depositions — entity designates witness for named topics.
• Document Requests — Rule 34 — documents, ESI, tangible things in possession, custody, or control. No numerical limit. 30-day response. Nonparties via Rule 45 subpoena only.
• Physical/Mental Exams — Rule 35 — parties only, requires court order + good cause + condition in controversy (Schlagenhauf v. Holder). Examiner's report must be provided; requesting waives privilege on same condition.
• Requests for Admission — Rule 36 — parties only. Deemed admitted if no response within 30 days — conclusively established for pending action. Used after other discovery to authenticate documents and narrow issues for trial.

Key cases

• Hickman v. Taylor (1947) — Foundation of work product doctrine — if attorneys must hand over everything, they stop writing things down, harming clients and justice.
• Zubulake v. UBS Warburg LLC (2003) — Litigation hold duties — once litigation reasonably anticipated, must suspend routine document destruction and counsel must oversee compliance.
• Schlagenhauf v. Holder (1964) — Rule 35 physical/mental exams require good cause and condition genuinely in controversy — not routine.
• Chudasama v. Mazda Motor Corp. — Resolve 12(b)(6) and narrow issues before compelling broad discovery. Default judgment sanctions excessive — graduated sanctions required.
• Gaylord v. Homemakers — Informal pre-filing investigation permissible. Rule 4.2 no-contact rule not violated when no lawsuit yet filed. Ethics violations do NOT trigger exclusionary rule — ethics rules govern lawyer discipline, not evidence admissibility.

Voluntary dismissal, involuntary dismissal, and summary judgment

Rules and authorities

• Rule 41(a) — Voluntary dismissal — by notice (before answer/MSJ), by stipulation, or by court order
  • Timing: By notice (self-executing): ONLY before defendant serves answer or MSJ — a 12(b)(6) motion does NOT cut off this right (Bath & Kitchen). By stipulation: anytime, signed by all parties. By court order: required AFTER answer/MSJ. Two-dismissal rule: second dismissal of same claim by notice or stipulation = on the merits (court-ordered dismissal does NOT count toward this rule). Defendant can block dismissal under 41(a)(2) if defendant has counterclaim that cannot independently proceed.
• Rule 41(b) — Involuntary dismissal — failure to prosecute, failure to comply with Rules
  • Timing: Can be raised anytime by defendant or court. Generally operates as adjudication ON THE MERITS. Exceptions (NOT on the merits): court order says otherwise, lack of jurisdiction, improper venue, failure to join necessary party.
• Rule 56 — Summary judgment — no genuine dispute of material fact
  • Timing: Can be filed anytime until 30 days after close of discovery (56(b)). If facts unavailable, court may defer and allow time for discovery (56(d)). Court can grant SJ sua sponte or for non-movant (56(f)). Evidence must be admissible — affidavits require personal knowledge, admissible facts, competent affiant (56(c)(4)). Bad faith affidavits → sanctions including contempt (56(h)).

Core concepts

• Summary Judgment Standard — Court SHALL grant if (1) no genuine dispute as to any material fact AND (2) movant entitled to judgment as a matter of law. "Material" facts determined by substantive law (Anderson). Court must not resolve disputes, weigh evidence, assess credibility, or make factual determinations.
• Movant's Burden — If movant has burden of proof at trial → must show no genuine dispute on each element. If non-movant has burden → can show non-movant lacks evidence on at least one dispositive element (Celotex "show me" motion).
• Non-Movant's Burden — Once burden shifts: must go beyond pleadings — designate specific facts showing genuine dispute. Cannot rely solely on pleading allegations, "naked assertions," or hopes of cross-examination (Slaven v. City of Salem). Self-serving declarations are not dismissed simply because they are self-serving (Haley v. Amazon).
• Burden of Production vs. Persuasion — At SJ, court asks about burden of production (is there enough evidence for a rational factfinder to find for non-movant?), NOT burden of persuasion (which side's evidence is more convincing). Court does not weigh evidence or assess credibility — that is for trial.
• SJ / JMOL / RJMOL Relationship — Same standard (reasonable jury test) applied at three stages: Summary Judgment = before trial on written evidence. JMOL (Rule 50(a)) = during trial on presented evidence. Renewed JMOL (Rule 50(b)) = after verdict. Standard of review on appeal: de novo for all three.
• Strategic Timing — When to Use Each Motion — Rule 41(a) Voluntary Dismissal: Plaintiff wants out — case is weaker than thought, want to refile elsewhere, or informal settlement reached. Rule 56 Summary Judgment: After discovery closes, before trial — "Facts are undisputed. Just apply the law. We don't need a trial." Rule 41(b) Involuntary Dismissal: Defendant moves to dismiss — plaintiff failing to prosecute or violating court orders.
• Voluntary vs. Involuntary Dismissal — Voluntary (41(a)): Plaintiff wants out. First dismissal = without prejudice (by right — can refile). Second dismissal on SAME claim = with prejudice ("two dismissal rule" — CASE OVER, cannot refile). Involuntary (41(b)): Defendant moves to dismiss — plaintiff failing to prosecute or violating orders. Treated as judgment ON THE MERITS (cannot refile). Exceptions: court order says otherwise, lack of jurisdiction, improper venue, failure to join necessary party.

Key cases

• Celotex Corp. v. Catrett (1986) — When non-movant bears trial burden, movant can prevail by showing non-movant lacks evidence on a dispositive element — the "show me" motion.
• Anderson v. Liberty Lobby, Inc. (1986) — "Material" facts identified by substantive law. Only disputes affecting outcome under governing law are material.
• Matsushita Electric v. Zenith Radio (1986) — Non-movant must show more than "some metaphysical doubt" about material facts.
• Palucki v. Sears — "Fair chance of verdict?" test — if non-movant's evidence gives a fair chance of a verdict, summary judgment is inappropriate.
• Lopez-Gonzalez v. Municipality of Comerio — "A federal court is not a parking lot for stagnant cases." Involuntary dismissal for failure to prosecute.

Procedural branches

• Case May End Here (Rule 41, Rule 56) — Voluntary/involuntary dismissal or court grants summary judgment on all claims — no trial needed

Final preparation, jury selection, and presentation of evidence

Rules and authorities

• Rule 16 — Pretrial conferences; scheduling; management
  • Timing: Scheduling order issued early in the case. Rule 16(a) purposes: expediting disposition, establishing control, discouraging waste, improving trial quality, facilitating settlement. Modification of scheduling order requires "good cause" showing diligence, not just consent. Rule 16(f): sanctions for failure to appear, being unprepared, or disobeying orders.
• Rule 16(e) — Final pretrial order — supersedes the pleadings, modified only for "manifest injustice"
  • Timing: Issued after the final pretrial conference. From this point, the pretrial order — not the pleadings — controls the case. Issues NOT in the final pretrial order may be excluded at trial. Four-factor test for modification (Davey v. Lockheed): (1) prejudice/surprise, (2) ability to cure, (3) disruption to orderly trial, (4) bad faith.
• Rule 38 — Right to a jury trial — demand (waivable, must request)
  • Timing: Must demand no later than 14 days after service of the last pleading directed to the issue. If not demanded, the right is WAIVED. Rule 38(a) preserves the right — Rule 2 merged law/equity but 38(a) ensures the merger expanded (not contracted) jury rights.
• Rule 39 — Trial by jury or by the court
• Rule 47 — Selecting jurors (voir dire)
• Rule 49 — Special verdicts (jury answers specific factual questions, judge applies the law) and general verdicts with interrogatories (verdict plus specific answers, checked for consistency)
  • Timing: If a general verdict conflicts with the interrogatory answers, the court may send the jury back to reconsider, enter judgment per the answers, or order a new trial — the one thing it may not do is enter judgment on the inconsistent general verdict.
• Rule 50(a) — Judgment as a matter of law (JMOL / directed verdict) — must specify issue, law, and facts
  • Timing: Can move ONLY after opposing party has been fully heard on the issue (usually after plaintiff rests). Multiple motions permitted — after plaintiff rests, after defendant rests, etc. Each motion preserves those specific issues for Rule 50(b) after verdict. CRITICAL: must make 50(a) to preserve right to file 50(b) on those same issues.
• Rule 51 — Instructions to the jury — parties submit proposed instructions, objections on record

Core concepts

• Seventh Amendment — Two Clauses — (1) Right to Jury Trial Clause: preserves jury right for "suits at common law" where value in controversy exceeds $20. (2) Reexamination Clause: no fact tried by a jury shall be otherwise reexamined in any court except according to rules of the common law. Federal courts only — NOT incorporated to states through 14th Amendment. Does not apply to criminal cases (6th Amendment covers those).
• Law vs. Equity — Law (jury): assumpsit, trespass, ejectment, trover, mandamus, habeas corpus. Equity (judge): injunctions, specific performance, accounting, class actions, interpleader. Key test: seeking money damages = law = jury right. No adequate legal remedy = equity = judge decides. Labels don't control — "incidental legal issues" argument rejected (Dairy Queen). Legal claims go to jury first; judge bound by jury findings on common issues.
• JMOL — Evidence Spectrum — Too little evidence → JMOL against the burden-bearer (directed verdict). Reasonable dispute → jury decides. Overwhelming evidence → JMOL for the burden-bearer. The court draws every rational inference for the non-moving party and must not weigh evidence or judge credibility; it considers all of the non-movant's evidence plus the movant's uncontradicted, unimpeached evidence. The motion must specify the issue and the law and facts entitling the movant to judgment. The core standard: no rational factfinder could find for the party on this evidence — and incredible testimony alone can't manufacture a genuine dispute (Chamberlain).
• Rule 16 Case Management — Rule 16(c): attorney must have authority to act on all matters; parties must be available for settlement discussions. Authority to discuss ≠ obligation to agree. Rule 16 is informational, not coercive — cannot "club the parties into submission" (J.F. Edwards). Standing orders cannot exceed Rule 16's authority (Rule 83).
• Dispositive Motions — Strategic Sequence — Before/during pleadings: Rule 41(a) voluntary dismissal (1st = without prejudice, 2nd = with prejudice). After discovery closes: Rule 56 Summary Judgment — "Facts undisputed, no trial needed." During trial after opposing evidence: Rule 50(a) JMOL — "No rational jury could find for them. End it now." MUST FILE THIS or lose the right to file 50(b) after verdict! After jury verdict: Rule 50(b) Renewed JMOL (28 days, must mirror prior 50(a)) AND/OR Rule 59 New Trial — "Something went wrong, redo the trial."
• Controlling the jury — instructions, verdict forms, impeachment — Three levers. Instructions (Rule 51): parties submit proposed instructions and must object on the record to preserve error. Verdict forms (Rule 49): a special verdict or interrogatories reveal exactly what the jury decided — which matters later for issue preclusion, where a general verdict leaves you unable to prove what was necessarily determined. Impeachment (FRE 606(b)): after the verdict, jurors generally cannot testify about deliberations — see Post-Trial Motions for the exceptions.

Key cases

• Dairy Queen, Inc. v. Wood (1962) — Labels don't control jury rights. Contract debt claim is "undeniably legal" regardless of how pleaded. Legal claims go to jury first; judge bound by jury findings on common issues.
• Beacon Theatres, Inc. v. Westover (1959) — Right to jury trial on legal issues cannot be defeated by characterizing them as incidental to equitable claims.
• Pennsylvania RR v. Chamberlain — Incredible testimony alone cannot create a genuine factual dispute sufficient to defeat JMOL.
• J.F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp. (7th Cir. 1976) — Rule 16 pretrial is informational, not coercive — cannot "club the parties into submission." Standing orders cannot exceed Rule 16's authority.
• Davey v. Lockheed Martin Corp. (10th Cir. 2002) — Four-factor test for modifying pretrial order: (1) prejudice/surprise, (2) ability to cure, (3) disruption to orderly trial, (4) bad faith.

Challenging the verdict or seeking a new trial

Rules and authorities

• Rule 50(b) — Renewed JMOL (formerly JNOV) — within 28 days after judgment
  • Timing: Must file within 28 days after entry of judgment. PREREQUISITE: must have made Rule 50(a) motion on the SAME grounds during trial — cannot file 50(b) without prior 50(a). Cannot appeal denial of 50(a) without first filing 50(b). If granted on appeal, appellate court can reinstate the jury verdict. Standard of review: de novo.
• Rule 50(c) — Combined JMOL + new trial motions — conditional ruling on new trial
  • Timing: Expressly allows filing JMOL and new trial motions together. If JMOL is granted, court must CONDITIONALLY rule on new trial motion too. This prevents needing a remand if the appellate court reverses JMOL — the conditional new trial ruling is already in place. Safe practice: always move for JMOL before verdict, then after adverse verdict renew JMOL AND move for new trial in the alternative.
• Rule 59 — New trial; altering or amending a judgment — within 28 days
  • Timing: Must file within 28 days after entry of judgment. Unlike SJ/JMOL, judge MAY weigh evidence and assess credibility. Does NOT require a prior motion during trial (unlike Rule 50(b)). Can be combined with a Rule 50(b) motion. Court may also grant new trial on its own initiative within 28 days (Rule 59(d)). A timely Rule 59 motion TOLLS the 30-day appeal deadline.
• Rule 59(a)(1) — Partial new trial — retry some issues while preserving others
  • Timing: Allows new trial "on all or SOME of the issues." The issue to be retried must be "so distinct and separable from the others that a trial of it alone may be had without injustice." Example: if damages are interlinked with liability, must retry both. If liability was bifurcated and decided separately, can retry damages only.
• Rule 61 — Harmless error — no new trial unless error affected substantial rights
  • Timing: Applies at the new trial stage. A process error (bad evidentiary ruling, improper argument, juror misconduct, instruction error) does NOT warrant a new trial unless it "affected any party's substantial rights." Standards: error "highly probably," "to a substantial degree," or "more probably than not" tainted the verdict. Cumulative evidence or errors with no real impact on the verdict = harmless.
• FRE 606(b) — No-impeachment rule — jurors cannot testify about deliberations
  • Timing: General rule: jurors CANNOT testify about deliberations or their mental processes. Three exceptions — jurors MAY testify about: (1) extraneous prejudicial information improperly brought to jury's attention, (2) outside influence improperly brought to bear on a juror, (3) error in entering the verdict form. Court applies OBJECTIVE test: would the information affect a typical juror? Cannot inquire into subjective effect on particular jurors. Additional exception: 6th Amendment requires an exception when a juror makes a clear statement relying on racial stereotypes or animus.
• Rule 60(b) — Relief from a judgment or order — extraordinary circumstances
  • Timing: Must file within "reasonable time." For grounds (1)-(3) — mistake, new evidence, fraud — no more than 1 year after judgment. Ground (6) catch-all — no fixed deadline but requires extraordinary circumstances. Rule 60(b) is a "last resort" — do not use as substitute for appeal. Does NOT affect finality of judgment or suspend its operation.

Core concepts

• Rule 50(b) Prerequisite — Must have made Rule 50(a) motion on the same grounds during trial — cannot make 50(b) without prior 50(a). Purpose: gives opposing party chance to cure, respects 7th Amendment Reexamination Clause, prevents sandbagging. Cannot appeal denial of 50(a) without filing 50(b).
• JMOL vs. New Trial — Key Distinction — JMOL: "reasonable jury" standard, does NOT weigh evidence, does NOT assess credibility, resolves doubts against movant, zero-sum (opponent wins). New Trial: "weight of evidence" standard, judge MAY weigh evidence, MAY assess credibility, not zero-sum (new jury decides). A verdict can survive JMOL (legally sufficient evidence) yet still be clearly wrong enough for a new trial.
• Four Scenarios — When Does Judge Act? — A: Judge agrees with verdict → no JMOL, no new trial. B: Judge would decide differently but verdict not clearly wrong → no JMOL, no new trial. C: Verdict clearly wrong but not unreasonable → no JMOL, YES new trial. D: Verdict unreasonable → YES JMOL, YES new trial. Key: judge cannot grant new trial "simply because the court would have come to a different conclusion than the jury."
• Remittitur vs. Additur — Remittitur: court compels plaintiff to accept a reduced verdict or face a new trial. Applied when verdict "shocks the judicial conscience." Constitutional in federal courts — remitted amount was "part" of original jury verdict. Additur (judge increases verdict): UNCONSTITUTIONAL in federal courts — violates 7th Amendment because the add-on was never found by a jury. Some states (NJ, MA) allow additur. Federal remedy for inadequate verdict: new trial only. The plaintiff's choice is accept the reduction or retry — and if liability and damages are inextricably intertwined, the new trial covers BOTH (Trivedi v. Cooper: $700,000 remitted to $50,000).
• New Trial for Process Errors — Three Questions — Every process error must pass three tests: (1) Did an error actually occur? (erroneous evidentiary ruling, improper argument, juror misconduct, bad instruction) (2) Was the error prejudicial? (Rule 61 harmless error filter — must affect substantial rights) (3) Was the error timely objected to? (Rule 46: must state grounds; Rule 51(c)-(d): must object to jury instructions as provided). All three must be satisfied.
• Impeachment of Verdict — FRE 606(b) — Jurors cannot testify about deliberations. Exceptions: extraneous prejudicial information, outside influence, verdict form error. Court uses objective test (typical juror standard). Key distinctions: jury misunderstood instruction = internal (inadmissible); jury consulted dictionary = extraneous (admissible); jury speculated about insurance = internal; jurors used drugs/alcohol = internal; racial stereotype remarks = admissible (6th Amendment exception). Wilson v. Vermont Castings draws the line: a juror sharing life experience during deliberations is internal (protected), while conducting an outside investigation or consulting materials not in evidence is extraneous (challengeable) — and even then, no new trial unless the misconduct prejudiced the issue the complaining party lost.
• Relief from Judgment — Rule 60(b) — Six grounds: (1) mistake/inadvertence/excusable neglect, (2) newly discovered evidence, (3) fraud by opposing party, (4) judgment is void, (5) judgment satisfied/released, (6) any other reason — catch-all requiring extraordinary circumstances. Must file within reasonable time. Not a substitute for appeal. Must show meritorious claim or defense if seeking to relitigate. Grounds (1)-(3) carry a hard one-year limit; (4)-(6) need only a reasonable time. The misconduct ground requires misconduct by the OPPOSING PARTY: a bribed judge qualifies (fraud on the court); a witness who lied on the stand or concealed another witness does not.
• Strategic Timing — When to Use Each Post-Trial Motion — Rule 50(b) Renewed JMOL: "Jury got it wrong — rule for me instead." Evidence was so one-sided the jury shouldn't have ruled that way. Must file within 28 days and must mirror prior 50(a) motion. Rule 59 New Trial: "Something went wrong — we need to redo the trial." Verdict against weight of evidence, legal errors at trial, bad jury instructions, juror misconduct, newly discovered evidence, grossly excessive or inadequate damages. Rule 60 Relief from Judgment: Exceptional circumstances after judgment is entered — not about the verdict being wrong, but about getting relief from the judgment itself (mistake, fraud, void judgment). Different from 50(b) — last resort, not substitute for appeal.
• Credibility verdicts are nearly bulletproof — A jury's credibility determinations survive both JMOL and new-trial motions in all but extreme cases — courts are deeply reluctant to disturb verdicts that turn on whom the jury believed (the Piesco principle, applied in Trivedi v. Cooper). Trivedi is also the waiver cautionary tale: no Rule 50(a) motion on a claim during trial means no Rule 50(b) attack on that claim after the verdict.

Key cases

• Neely v. Martin K. Eby Construction Co. (1967) — Appellate court can grant RJMOL and reinstate jury verdict rather than ordering new trial.
• Piesco v. Koch (2d Cir. 1993) — Courts rarely disturb verdicts resting on the jury's credibility determinations
• Trivedi v. Cooper (S.D.N.Y. 1996) — No 50(a) motion on a claim waives 50(b); remittitur of an excessive verdict, with a full new trial where liability and damages are intertwined
• Wilson v. Vermont Castings (M.D. Pa. 1997) — Juror life experience is internal to deliberations; outside investigation is extraneous — and prejudice on the lost issue is required

Seeking review of the trial court's decision by a higher court

Rules and authorities

• 28 USC §1291 — Final judgment rule — only final decisions (resolving all claims of all parties) are appealable
  • Timing: Applies ONLY to "final decisions" — must resolve ALL claims of ALL parties. Partial summary judgment on liability alone is NOT final and NOT appealable (Liberty Mutual v. Wetzel). If any claim or party remains unresolved, no appeal under §1291.
• 28 USC §1292 — Interlocutory appeals — immediate appeal of certain non-final orders (injunctions, etc.)
  • Timing: Available for: orders granting/refusing/modifying injunctions. Permissive interlocutory appeal: district court certifies controlling question of law + appellate court agrees to hear it. Collateral order doctrine (Cohen v. Beneficial Industrial Loan): must be (1) conclusive, (2) separate from merits, (3) effectively unreviewable later.
• Rule 54 — Judgment; costs — defines "final judgment"
• Fed. R. App. P. 4 — Notice of appeal — strict 30-day deadline after entry of judgment
  • Timing: STRICT 30-day deadline — jurisdictional, cannot be waived or extended (with very narrow exceptions). Clock starts from entry of judgment. Missing this deadline = no appeal, period.

Core concepts

• Exceptions to Finality — Interlocutory appeals (§1292): orders involving injunctions. Collateral Order Doctrine (Cohen): must be (1) conclusive (fully resolves the disputed question), (2) resolves important question completely separate from merits, (3) effectively unreviewable on appeal from final judgment. Writ of Mandamus: extraordinary remedy for clear abuse of discretion. Permissive Interlocutory Appeal: district court certifies controlling question of law.
• Standards of Appellate Review — Legal conclusions: de novo (fresh look). Factual findings: clear error (deferential). Jury verdicts: substantial evidence. Discretionary rulings: abuse of discretion. The standard determines how much deference the appellate court gives the trial court.
• Appellate Court Options — Affirm, reverse, remand (send back for further proceedings), or modify the judgment.

Key cases

• Liberty Mutual Insurance Co. v. Wetzel (1976) — Partial summary judgment on liability alone is not a final decision appealable under §1291.
• Cohen v. Beneficial Industrial Loan Corp. — Established the collateral order doctrine — narrow exception allowing appeal of orders that are conclusive, separate from the merits, and effectively unreviewable later.

How final judgments prevent re-litigation of claims and issues

Rules and authorities

• U.S. Const. art. IV, §1 + 28 USC §1738 — Full faith and credit — the second court applies the FIRST court's preclusion law. State-to-state runs on the Constitution; state-to-federal runs on §1738. When the first judgment came from a federal court sitting in diversity, federal common law borrows the forum state's preclusion rules (Semtek); after a federal question case, federal preclusion law applies
• Rule 41(b) — Involuntary dismissals generally operate as adjudication on the merits (with exceptions for jurisdiction, venue, and failure to join)
• Rule 12(b)(6) — Dismissal with prejudice for failure to state a claim = on the merits (preclusive)
  • Timing: Solid rule in federal court; some states are less clear — flag the ambiguity when state preclusion law controls. Dismissals for lack of SMJ (12(b)(1)), lack of PJ (12(b)(2)), improper venue (12(b)(3)), or failure to join (12(b)(7)) are NOT on the merits and NOT preclusive.
• Rule 13(a) — Counterclaim preclusion is RULE preclusion, not claim preclusion — different people have different claims. An unraised compulsory counterclaim is barred by 13(a) (or, at common law, only when it would undermine the first judgment). Apply the counterclaim rules of the court where Case 1 was filed

Core concepts

• The order of analysis — Run the doctrines in sequence: (1) claim preclusion — is the entire claim barred? (2) rule preclusion — even if not, was it a compulsory counterclaim that had to be raised in Case 1? (3) issue preclusion — if the claim survives, are specific issues inside it already decided?
• Claim preclusion — the seven-step checklist — (1) Two cases? (2) Which law controls — always Case 1's preclusion law. (3) Same claim, litigated or could have been? (4) Same parties or privity? (5) Final judgment — final when the trial court enters it; no need to await appeal (if Case 1 is later reversed, reopen Case 2 under Rule 60(b)(5)). (6) On the merits? (7) Policy — efficiency, finality, consistency, closure, protecting the winner from harassment. If the plaintiff won Case 1, the claim merges into the judgment; if they lost, the judgment bars it.
• "Same claim" — the transactional test and its rivals — Federal law and the state majority use the transactional test (Restatement (Second) of Judgments §24, endorsed in Lucky Brand Dungarees v. Marcel Fashions (2020)): different legal theories are one claim if they arise from the same transaction or connected series. Its six factors: time, space, origin, motivation, trial unit, and the parties' expectations. Minority state tests: same evidence (would the proof sustaining suit two have sustained suit one?) and primary rights (each type of injury — bodily, property, lost profits — is its own claim; Carter v. Hinkle). Preclusive reach runs transactional > same evidence > primary rights, so which test the first forum uses can decide everything.
• "On the merits" really means "the case is over" — Preclusive: trial verdicts, summary judgment (always, everywhere), 12(b)(6) dismissals with prejudice, and — by majority rule — default judgments, statute-of-limitations dismissals, and sanctions dismissals. Not preclusive: dismissals for lack of jurisdiction, improper venue, or failure to join — housekeeping endings that never reached the substance. A judgment must also be valid: a court that lacked jurisdiction or gave no notice produced nothing to preclude with.
• Nonparty preclusion — everyone gets their own day in court — A person not made a party is not bound (Martin v. Wilks; Hansberry v. Lee) — if you see a different party in Case 2, the default answer is NO preclusion, and privity must be argued, not assumed. Marriage is not privity. Taylor v. Sturgell (2008) unanimously rejected "virtual representation" and confined nonparty preclusion to six exceptions: agreement to be bound, pre-existing legal relationships (successive property owners), adequate representation with safeguards (class actions, trustees, guardians), assumption of control over the first litigation, proxy litigation for a bound party, and special statutory schemes (probate, bankruptcy). Adequate representation demands, at minimum, aligned interests plus representative capacity or court protection — and sometimes notice.
• Exceptions to claim preclusion — Restatement §26(1) — Even with every element met, no preclusion where: the parties agreed the claims could be split; the first court reserved the plaintiff's right to a second action; the first court lacked jurisdiction to hear the omitted claim; a statutory or constitutional scheme would be undermined; the wrong is continuing or recurrent; or an extraordinary reason (like restraints on personal liberty) demands an exception.
• Issue preclusion — the elements — An issue actually litigated, necessarily determined, and essential to a valid final judgment binds the loser in later cases. Identical issue includes the burden of proof: an issue proven under a HIGHER or equal burden in Case 1 transfers; one decided under a lower burden does not (a preponderance finding can't stand in for beyond-a-reasonable-doubt). Actually litigated excludes defaults, consent judgments, stipulations, and admissions — nothing was contested. General verdicts create a proof problem: if you can't tell what the jury decided, nothing specific was necessarily determined. And essential means the finding drove the judgment — a finding the winner had no reason to appeal is the factual equivalent of dicta, and binding anyone to it would be unfair.
• Nonmutual issue preclusion — Blonder-Tongue and Parklane — A stranger to Case 1 may wield its findings against the Case 1 loser — never the reverse (due process forbids binding someone who never litigated). Defensive use (a new defendant shields itself with the plaintiff's prior loss) was accepted in Blonder-Tongue (1971). Offensive use (a new plaintiff attacks with the defendant's prior loss) survives Parklane Hosiery v. Shore (1979) only if fair: no wait-and-see plaintiff who could easily have joined Case 1, a full incentive to litigate in Case 1 (stakes not trivial), no inconsistent prior judgments, and no procedural opportunities in Case 2 that were unavailable in Case 1.
• Full and fair opportunity — the fairness backstop — Before applying issue preclusion, ask whether the Case 1 loser truly had a fair shot: lesser procedures or a limited-jurisdiction forum, trivially small stakes, a heavier burden of persuasion, changed circumstances, new evidence, or an unavailable appeal all cut against preclusion. Quasi-judicial proceedings (arbitrations, administrative and disciplinary hearings) CAN have preclusive effect, but only to the extent real litigation opportunity was afforded — and often only partially (a disciplinary finding of inadequate representation can establish breach in a later malpractice suit without touching causation or damages).

Key cases

• Hansberry v. Lee (1940) — One is not bound by a judgment in personam in litigation where they were not a party
• Carter v. Hinkle (Va. 1949) — The minority primary-rights test: each type of injury from one accident is a separate claim
• Blonder-Tongue Laboratories v. University of Illinois Foundation (1971) — Defensive nonmutual issue preclusion accepted — mutuality abandoned
• Parklane Hosiery Co. v. Shore (1979) — Offensive nonmutual issue preclusion allowed at the trial court's discretion, with fairness limits
• Frier v. City of Vandalia (7th Cir. 1985) — Replevin then §1983 over the same towing is one claim — same transaction, precluded
• Martin v. Wilks (1989) — A person not duly summoned may rest assured the judgment will not affect their legal rights
• River Park, Inc. v. City of Highland Park (Ill. 1998) — Adopting the transactional test: relabeled theories over the same operative facts are one claim
• Semtek International, Inc. v. Lockheed Martin Corp. (2001) — A federal diversity judgment's preclusive effect borrows the forum state's preclusion law
• Taylor v. Sturgell (2008) — Virtual representation rejected — nonparty preclusion is limited to six recognized exceptions
• Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc. (2020) — Endorses the transactional test: claims are the same when they share a common nucleus of operative facts

Collecting on the judgment after all appeals are exhausted

Rules and authorities

• Rule 69 — Execution — proceedings to enforce a money judgment
• Rule 70 — Enforcing a judgment for a specific act