Civil Procedure Outline 2010

CIVIL PROCEDURE OUTLINE 2010 - Kang
SUBJECT MATTER JURISDICTION

Federal SMJ is the federal courts power and authority to hear a particular case. Federal courts are courts of limited jurisdiction,
with their judicial power granted from Article III of the U.S. Constitution. Article III sets the outer limits of the courts power. The
power of the federal courts is limited by statutes, specifically 1331 (federal question), 1332 (diversity), 1367 (supplemental), and
1441 (removal from state to federal).
FEDERAL QUESTION 28 U.S.C. 1331

ARISING UNDER
Question: Does the cause of action arise under federal law (federal statute, regulation, constitution, federal common law)?
Well-pleaded complaint rule: Court looks only at the complaint and considers only the claim itself (ignore everything else, including
arguments from the defendant) [Louisville & Nashville Railroad v. Mottley (1908)]
"Arises under if "a well-pleaded complaint establishes either that federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." [Franchise Tax Bd. of
Cal. v. Construction Laborers Vacation Trust for Southern Cal. (1983)]
Louisville & Nashville Railroad v. Mottley (1908, p.179): P sued for breach of contract (free lifetime travel passes) in federal court.
D countered that the passes were no longer valid b/c of a federal statute that prohibited the RR from renewing the passes. Court
ordered for dismissal due to lack of SMJ (no diversity and no FQ) b/c the original complaint did not arise under federal law.
NOTE: Supreme Courts arising under jurisdiction is broader than federal courts b/c they are governed by Article III in the
Constitution and 1257 authorizes SC to hear the case if they grant certiorari.
FEDERALIZING WARP
Cause of action is created by state law but there is a substantial federal interest, either the case turns on an interpretation of
federal law or implicates federal interests, federalizing the case to warrant federal question SMJ.
*There is no real coherence regarding which causes of actions compel a substantial federal question
CASES
Smith v. Kansas City Title & Trust Co. (1921, p.183): P alleged D bank as trustee had violated a state law allowing it to invest
only in legal securities. BUT the allegedly illegal securities were bonds issued by a federal agency under a federal law that P
claimed was unconstitutional. There was jurisdiction.
Grable & Sons Metal Prod. Inc. v. Darue Eng. & Mfg. (2005, p.183): Land sold on IRS lien for unpaid taxes and former owner
sued to recover claiming that notice of sale was inadequate. Proper FQ jurisdiction; FQ jurisdiction of a state-law claim doesnt
disturb any congressionally approved balance of federal and state judicial responsibilities. Presented a nearly pure issue of
law, one that could be settled once and for all and thereafter would govern numerous tax sale cases.
Empire Healthchoice Assur. Inc. v. McVeigh (2006, p.183): Insurer sued to recover benefits already paid. Federal statute
authorized insurers suit to recoup medical benefits BUT there was no FQ jurisdiction b/c the action was triggered by the
settlement of a personal-injury action and the issue was what was payable to insurer.
Fink and Tushnet Test to determine if there is a substantial federal issue:
What is the national interest of disposing of the case as a whole (with federal fact-finding) in the federal courts, compared to the
interest of disposing of it in the state courts? How likely is it that the national interest will be in fact implicated? How likely is it that
the Supreme Court will use its limited resources to decide the federal issue where the record is made in the state court?
DECLARATORY JUDGMENT ACT (28 U.S.C. 2201-02): empowers federal district court to hear certain cases in which a potential D
doesnt seek a coercive remedy by a declaration of rights.
Switching the P and D b/c what would come up as a defense now becomes the cause of action b/c youre asking the court
for a declaration that say that your use of something (license, patent, etc.) is legal under federal law.
E.g. patent holder sues for declaration that the infringer is infringer the holders rights
Impact of a final judgment or relief
No declaration that youre immune, by virtue of federal law, from a nonfederal claim that the other party may have.

DIVERSITY JURISDICTION 28 U.S.C. 1332
Federal court has original jurisdiction over cases where the claim exceeds $75,000 and is between (1) citizens of different States; (2)
citizens of a State and citizens/subjects of a foreign state; (3) citizens of different States and in which citizens/subjects of a foreign
state are additional parties; and (4) a foreign state as a plaintiff and citizens of a State or of different States.
CITIZENSHIP
*Complete Diversity Rule: each Plaintiff must be diverse from each Defendant [Strawbridge v. Curtiss]
Measure diversity of citizenship at the time the complaint is filed and then again when parties are joined to the suit
U.S. CITIZENS
State citizenship test: A U.S. citizen is a citizen of a state in which they are (1) DOMICILED/RESIDENCE (can only have ONE domicile),
and (2) INTEND TO REMAIN IN THE STATE INDEFINITELY. (Hawkins v. Master Farms, Inc.)
*State citizenship doesnt change unless BOTH requirements are fulfilled.
Choctaw Indians: domicile = physical presence and intent to remain
Hawkins v. Masters Farms, Inc. (D. Kan. 2003, p.6): P resided in KS but had ties to MO. Court held P was KS citizen b/c he resided
(physical presence) in KS and showed intent to remain there (lived with wife, had his personal belongings in KS, and contributed to
household costs). Floating intention to move to MO and drivers license was insufficient to overcome his residence in KS.
**Can be a USC and not have a domicile in the U.S. (Johnny Depp dilemma)
Redner v. Sanders (S.D. NY 2000, p. 190): P is a USC and resides in France; three Ds are all citizens of NY (two people and one
corporation). Dismissed for lack of SMJ b/c P is not a citizen of France but only resides there. P then claimed that he was a citizen of
CA but there was not enough evidence to prove (license to practice law, law office he visits four times/year since living abroad, CA
drivers license, solicitation of possible employment, and affidavit that he has not given up intent to return to CA). Also, there was
no discussion of Ps relationship to France for the court to accurately gauge Ps intent.
FOREIGN CITIZENS
1988 deeming amendment: LPR is deemed a citizen of the State in which they are domiciled (applies only when suit is against a USC)
*Cant be a citizen of a U.S. state unless also a USC or an LPR
Saadeh v. Farouki (D.C. Cir. 1997, p.197): P (Greece) and D (LPR/Jordan and resided in MD). The deeming amendment only
applies when the suit is against one U.S. citizen and a foreign citizen, so there is no SMJ when the suit is against two foreign citizens,
even if one is an LPR, because (1) the intention of the amendment was to decrease the number of cases in federal court, not to allow
the federal court to have jurisdiction over a type of case it didnt have before; and (2) under Article III 2, there is no jurisdiction over
foreign v. foreign and a literal reading of the amendment risks unconstitutionality
CORPORATIONS 28 U.S.C. 1332(c)

State citizenship is: (1) the state of incorporation, and (2) your principal place of business. (Can be citizens of multiple states)
There can only be ONE principle place of business
1) Nerve center where the decisions are made, headquarters
2) Muscle center where the corporation does more stuff than anywhere else
3) Mixture
a) If corporations activity is far flung (substantial operations in multiple states), then usually use the nerve center
b) If all the activity is in one state, then usually use the muscle center
*Partnerships: citizenship of all the partners/members
AMOUNT IN CONTROVERSY
1)
2)
3)
4)
Must exceed $75,000

Plaintiffs $ claim governs unless it is clear to a legal certainty that they cant recover more than $75,000 [St. Paul Mercury
v. Red Cab]
Aggregation: add multiple claims to meet amount in controversy requirement
a. Can aggregate claims if its one plaintiff vs. one defendant
b. Cant aggregate separate claims from separate individuals
c. Multiple Ps with the same claim (common undivided interest) CAN aggregate claims to meet AIC [number of
parties is irrelevant because any person could be liable for the full amount of damages]
Compulsory counterclaims: can be heard as long as the original claim meets AIC
2

SUPPLEMENTAL JURISDICTION 28 U.S.C. 1367
1367(a)applies to federal question jurisdiction cases
Gives supplemental jurisdiction when a claim is so related that they form part of the same case or controversy as to the claim that
arises under federal law
STANDARD: Share a common nucleus of operative facts with the claim that invoked jurisdiction (same real world event) *United
Mine Workers v. Gibbs (1966)]
1367(b)applies only to diversity cases that would destroy diversity (blades w/ 3 cups)
1) Claims made by the original plaintiff against parties joined under Rules 14, 19, 20, 24
2) Claims made by plaintiffs proposed to be joined under Rule 19
3) Somebody seeking to intervene as a plaintiff under Rule 24
1367(c)courts discretion to deny supplemental jurisdiction
Claim raises a novel or complex issue of state law
Claim substantially predominates over the claim or claims over which the district court has original jurisdiction
District court has dismissed all claims over which it has original jurisdiction
Compelling reasons for declining jurisdiction (exceptional circumstances)
In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (N.D. Ill. 2007, p. 207): P filed suit under the Truth in Lending
Act (TILA) against Ameriquest for misleading and improper disclosure of her right to cancel her mortgage. She also filed two state
fraud claims. Court found a loose factual connection btwn claims (so long as the facts are common and operative) is sufficient for
same case or controversy. To determine if claims are connected by common core of operative facts (Gibbs), court can compare
the facts necessary to prove both claims. There was supplemental jurisdiction and the court chose not to exercise their discretion
(1367(c)) even though there was a novel issue of law for the court (the state statute had never been applied to this situation),
stating that they might get some precedent before this case is decided in federal court.
Szendrey-Ramos v. First Bancorp (D.P.R. 2007, p.209): P filed Title VII (violation of federal employment law) suit and several state
law claims associated with being fired (wrongful discharge, violations of the P.R. constitution, and defamation and tortious
interference with contracts). Court declined to exercise supplemental jurisdiction over the P.R. law claims b/c they raised novel or
complex issues re P.R. professional ethics, which was a novel issue for P.R. courts.
Unintended consequences:
Complete diversity required to maintain SMJ1367 DOES NOT overrule Strawbridges complete diversity rule (1367(b))
o Exxon Mobil Corp. v. Allapattah Services, Inc. (2005): the court interpreted 1367 to allow such smaller claims
that dont meet the amount in controversy requirement under the basic diversity statute, so long as the name
party satisfied the amount in controversy requirement
o General Rule:
"If the court has original jurisdiction over a single claim in the complaint, it has original jurisdiction over a
'civil action' within the meaning of 1367(a)."
o Exception:
Incomplete diversity "destroys original jurisdiction with respect to all claims"
Exclusion: A failure to complete diversity, unlike the failure of some claims to meet the requisite amount
in controversy, contaminates every claim in the action.
AIC aggregation rules: as long as one party meets the AIC requirement, the other claims that do not can still be heard in
federal court
What happens if a TPD is joined and the P doesnt make a claim against the third party D, but they destroy complete diversity?
CA-->NY
Rule 14 NY impleads CA; P doesn't make a claim against CA
CA TPD makes a claim against P and P counterclaims to CA TPD
Complete diversity is not destroyed. If TPD makes a claim against P, and P then makes a counterclaim against TPD, then there could
be argument that ancillary jurisdiction may allow the case to be heard in federal court b/c the counterclaim isnt to the original D
3

REMOVAL 28 U.S.C. 1441, 1446, 1447
Qualifications of removal are based on status of case AT TIME REMOVAL IS SOUGHT (exception see Catepillar)
*Removal does NOT waive objection to personal jurisdiction
ONLY UP: Remove from State to Federal court (doesnt go the other way) if federal court had original jurisdiction over the claim.
STRAIGHT UP: Can only be removed to federal court embracing the state court where the case was originally filed
Ds only:
1441: removable if the case invokes SMJ (meets diversity or federal question). Defendant can remove if the case could have
originally been brought in federal court.
(a) Federal court must have had original jurisdiction over the case
(b) LOCAL DEFENDANT RULE: a diversity case, even though there was federal original jurisdiction, cant be removed if there is
an in-state defendant.
(c) If separate and independent claim is joined to a set of claims that are non-removable, the whole set of claims can be
removed, giving temporary jurisdiction over the claims that really dont have any grounds for jurisdiction so that jurisdiction
can be sorted out later (i.e. dismissal of claims lacking SMJ)
(d) Foreign state party can remove to federal court
1446: Procedure
(a) File notice of removal in district court where state court is located
(b) 30 days to file for removal after the receipt of service; one year limit to remove case based on diversity
Must remove within 30 days from service of the document that first made the case removable (not from
knowledge or courtesy copyMurphy Bros. v. Mitchetti Pip Stringing, Inc.)
Circuits are split when it is more than one D as to whether the time period starts 30 days from the serving of the
first D or from the particular D who initiates removal
If multiple Ds, all Ds must agree to removal
1447: Remand to state court
(c) 30 days to remand on the basis of any defect other than SMJ after filing of motion to remove; remand available any time
before final judgment for lack of SMJ
(e) Court has discretion to allow joinders that will destroy SMJ
Caterpillar, Inc. v. Lewis (1996, p.215): Federal jurisdiction based on diversity can be sustained even if complete diversity doesnt
exist at the time of removal, as long as complete diversity exists at the time the district court enters judgment. District courts error
in failing to remand case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at
the time the judgment is entered. D prematurely filled for removal b/c there wasnt complete diversity and also local defendant rule
applied, BUT at the time of judgment, there was proper SMJ.
CHALLENGING FEDERAL SMJ

Rule 12(b)(1)
Rule 12(h)(3): court can bring up question of SMJ sua sponte (on the courts own motion) and dismiss the case

PERSONAL JURISDICTION
A court cannot exercise power over a defendant if doing so would deprive any person of life, liberty, or property, without due
process of the law. Personal jurisdiction is about the ability of the court to exercise power over the defendant. There are three
grounds in which the government can assert power over the defendant: physical presence, contacts, and consent to jurisdiction.
LAW
Common law and due process clauses of the Constitution
th
th
14 Amendment for state courts and 5 Amendment for federal courts
MACHINE
1) States long-arm statute or federal courts long-arm statue: Rule 4(k)(1)(A)
a. Federal court only has personal jurisdiction if the state court in the forum also has personal jurisdiction
2) Constitutional analysis: Is personal jurisdiction constitutional? Does it violate due process rights?
a. Consent?
b. Physical presence in the forum state? (DOESNT APPLY TO CORPORATIONS)
c. No consentGeneral or specific jurisdiction? Does the cause of action arise out of or related to the defendants
contacts with the forum state?
i. Yesspecific jurisdiction
1. Purposefully availed minimum contacts
2. Fair play factors
ii. Nogeneral jurisdiction
1. Systematic and continuous contacts
iii. Ascertain the facts and analyze whether the facts satisfy the legal standard
3) Notice
4) Venue: localized jurisdiction in the state by district
LONG-ARM STATUTES
State long-arm statute gives power to the state and the federal long-arm statute gives power to the federal courts (4(k)(1)(A)). But
th
th
the Due process rights as an individual (14 and 5 Amendments) limits the reach of the state/federal long-arm statutes. The
constitutional analysis consists of determining whether the defendant has consented to jurisdiction or there is personal jurisdiction
through physical presence or contacts in the forum state.
FEDERAL LONG-ARM STATUTE

Rule 4(k)(1): serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant
(A): who is subject to the [personal] jurisdiction of a court of general [subject matter] jurisdiction in the state where the district is
located
Federal courts arms are only as long as the reach of the state courts in the forum state
(B): who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles
from whether the summons was issued [100-mile bulge rule]
(C): when authorized by federal statute
Rule 4(k)(2): For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal
jurisdiction over a defendant if:
(A): the defendant is not subject to jurisdiction in any states courts of general jurisdiction; AND
(B): exercising jurisdiction is consistent with the United States Constitution and laws
*Someone who doesnt have sufficient contacts in any state in the United States to establish personal jurisdiction but has contacts
to the Unites States and there is a federal question, then serving summons establishes personal jurisdiction
STATE LONG-ARM STATUE

Gibbons v. Brown (FL Dist. Ct. App. 1998, p.155): Car accident in Canada between Gibbons (TX) and Mrs. Brown (FL). Gibbons sued
Mr. Brown in FL in 1995. In 1997, Mrs. Brown sued Gibbons in FL, arguing that there was PJ over Gibbons b/c Gibbons brought the
first suit in FL. FLs long-arm statute is stricter than the federal long-arm statute, requiring more activities or contacts than the U.S.
Supreme court for PJ. Gibbons did not engage in substantial and not isolated activity within the state b/c the only activity was
the suit in FL over two years ago. Just b/c she brought a suit in FL doesnt mean that she can be sued anytime in FL.
5

CONSTITUTIONAL ANALYSIS
SPECIFIC JURISDICTION CASES
CASE
Pennoyer v.
Neff (p.61)
Milliken v.
Meyer
YEAR
1877
McGee v.
International
Life
Insurance
Company
(p.83)
Hanson v.
Denckla
(p.83)
Shaffer v.
Heitner
(p.86)
EFFECT ON PJ?
NOTES
In rem jurisdiction: power over a

persons property (exercised when
the person is not present in the
state)
Publication service is ok
In personam jurisdiction: power
over a person
Publication service not ok b/c
D is not physically present in
the state
If domiciled in a state, then you are
subject to personal jurisdiction in
that state. You can be served in
another state if you live in the
forum state and are away from your
residence for some purpose.
Minimum contacts (measured
through activities that show that
the corporation gained the
privileges and obligations of the
state) and fair play and substantial
justice
The state has power over people

and property inside its
boundaries. Cant serve someone
outside of the forum state if they
dont reside there.
1940
International
Shoe Co. v.
Washington
(p.75)
FACTS
No PJ over Ds who are physically absent
from the state or have not consented to the
courts jurisdiction. Personal service must
be served while the D is in the state and the
original default judgment in the first suit is
invalid and the sale of Neffs property was
invalid.
1945
1957
1958
1977
IS was subject to PJ in WA even though it

was a DE/MO corp and had no offices or
contracts in WA b/c IS had sufficient
contacts from customers, $$ from WA
customers, merchandise shipped to WA,
advertisements, interstate business, sales
people. IS purposefully availed themselves
of the benefits of conducting business in the
state
Franklin took out a life insurance policy from
D when he received a mail solicitation from
them. He paid his premiums by mail to their
office in TX. D never had an office or an
agent in CA. PJ established in CA b/c D
solicited business in CA through mail
(conducted economic/business activity) and
had a contract with a resident of CA. It
would also be a disadvantage for P to have
to litigate in TX.
Donner created a trust while living in PA. DE
bank was the trustee. She moved to FL and
continued to conduct business re her trust in
DE. There was no jurisdiction over the DE
bank in FL b/c they did not solicit business
sin the state (unilateral activity and no
purposeful availment) and they conducted
no business in FL (no minimum contacts).
Heitner filed shareholders derivative suit
against Greyhound (P owned one share).
Court held there was no PJ over the board
members in DE. Using IS model, their only
contacts were the stock in the company and
they were board members of a DE
corporation. There was no reason to expect
to be hailed to DE b/c they did not
purposefully avail themselves of the laws of
DE. There was also no consent to
jurisdiction in DE just b/c they accepted a
position as a board member.
Purposeful availment (quid pro

quo) through business conducted
by mail across state lines, which
means that D engaged in economic
activity in CA.
Contract must have substantial
contacts with the forum
State interests in providing
effective means of redress for
its residents when their
insurers refuse to pay
Unilateral business activity is not
purposeful availment
Contact must result from Ds
International Shoe standard

(minimum contacts) applied to all PJ
cases (regardless of whether in rem,
in personam, or quasi in rem).
The defendants contacts with

the forum must be such that
maintenance of the suit would
not offend traditional notions of
fair play and substantial justice.
Pennoyer established a doctrine
of presence in the forum state for
in personam jurisdiction, but if
the D is not physically present in
the forum state for proper
personal service, in personam
jurisdiction can still be found if
the D has minimum contacts
within the state.
1. Solicited the contract from
the forum
2. Relatedness: claim arises
from the contact
3. States interest in providing
justice for its people
Existence of a contract with a

resident of a state is NOT enough
to meet the minimum contacts
req. if you did not purposefully
avail yourself of the protections
of the state
No quasi in rem jurisdiction; cant

attach property to a claim that is
unrelated to the claim
State interests: DE doesnt have

strong interest in the corporations
incorporated in the state, just those
with property in the state
World-wide
Volkswagen
Corp. v.
Woodsen
(p.96)
Burger King
Corp. v.
Rudzewicz
(p.111)
1980
1985
Ps sued various Ds for a car crash in OK for

defective design. WWV conducts no
business in OK, no products are sold or
shipped to OK, no agent, and no
advertisements. The only contact was the
Ps car.
Financial benefits alone (w/o contacts)
is not enough to establish PJ, especially
b/c the person they sold the car to was
in another state
Ps signed a franchise agreement with BK

that included a choice of law clause (FL).
There was PJ in FL b/c P voluntarily accepted
a 20-year contract with BK and the
relationship with BK was not random,
fortuitous, or attenuated. The Michigan
office was not helpful, so their business
dealings were with headquarters in FL.
Fairness:
Burden on D to show that forum is so
gravely inconvenient that the D is at a severe
disadvantage to the P
Asahi (Japan) was joined to suit between
Zurcher and Cheng Shin (Taiwanese) for
defective tire valve. Z and CS settled,
leaving CS and A in the suit. A manufactures
the tire valves in Japan, selling some to CS
which was only 1.24% of income in 1981,
0.24% in 1982).
Asahi Metal
Industry Co.
v. Superior
Court (p.105)
1987
PURPOSEFUL AVAILMENT:
OConnor/Rehnquist/Powell/Scalia: mere
awareness that your products may end up in
the forum is not sufficient for PJ; must have
intent to serve forum. The acts of D must be
purposefully directed toward the forum, not
just placing your product in the stream of
commerce.
Brennan/White/Marshall/Blackmun:
Putting yourself into the stream of
commerce is purposeful availment b/c
regular and extensive sales of component
parts to a manufacturer it knew was making
regular sales of the final product to CA was
sufficient to establish minimum contacts in
CA (mere knowledge is enough)
Foreseeability that Ds conduct and

connection with the forum state
would make the D reasonably
anticipate being hailed into the
court
Fair play factors:
What is the burden on D?
What are the interests of the
forum state?
What is the interest of the
plaintiff in litigating the matter
in the state?
Does the allowance of
jurisdiction serve interstate
efficiency?
Does the allowance of
jurisdiction serve interstate
policy interests?
Purposeful availment of the
benefits and protections of a state
obtained through execution of a 20
year contract is grounds for PJ due
to long term business relationship
with FL.
Fair play factors from WWV
sometimes serve to establish the
reasonableness of jurisdiction upon
a lesser showing of minimum
contacts (required). If the burden
severely disadvantages D, then PJ
may not lie.
Fair play factors: Think about
special difficulties with international
litigation; if the burden is too high
and unfair, then no PJ even if there
are minimum contacts
Foreseeability isnt really a factor

in determining PJ
WWV clears this up and says
that there is no
foreseeability standard b/c
the question is whether it is
foreseeable for the D to be
hailed to the forum, not
whether the widget will end
up in the forum based on
their purposefully availed
contacts.
PJ cant be grounded in a contract

that was obtained through fraud,
undue influence or overweening
bargaining power
*Choice of law clause: FL law will
govern, but that doesnt mean
that FL is to be the forum
Foreseeability does no
independent work but is rather
reasonable expectation that youll
be hailed to forum through
*(4-4-1 decision)
Stream of commerce: justices are
split on how the product being
placed into the stream of
commerce constitutes purposeful
availment
No law, just two theories
(OConnor and Brennan)
*Gray v. American Radiator:
forum state does not exceed its
powers under the Due Process
Clause if it asserts personal
jurisdiction over a corporation
that delivers its products into the
stream of commerce with the
expectation that they will be
purchased by consumers in the
forum state
Stevens: shipping over 100,000 units

annually constitutes purposeful availment
7
Pavlovich v.
Superior
Court (p.117)
2002
FAIR PLAY (majority): PJ would be unfair b/c

two foreign parties and the transaction took
place in Taiwan. The burden on D is severe;
CA has no state interest; courts are wary of
injecting jurisdiction over international Ds.
P posted the source code of a program on
the internet that injured DVD CCA (CA/DE).
P didnt know who owned the specific
company his code would injure and his
activities were not expressly aimed at the
forum, nor was he benefiting from the
benefits of CA. Court held that there was no
PJ.
Effects test (Calder v. Jones): a

court can exercise jurisdiction over
the D based on the effects of their
conduct in that state (dont have to
step foot into the forum); actions
must be expressly aimed at forum
Knowledge that your conduct
may harm industries in the
forum is important to
determining whether there is
PJ, but the knowledge alone is
not grounds for PJ
Specific jurisdiction over a

nonresident when 1) D has
purposefully availed themselves
of the forum benefits; 2)
controversy is related to or arises
out of the Ds contacts with the
forum; and 3) the assertion of PJ
would comport with fair play and
substantial justice.
GENERAL JURISDICTION
A corporation can be sued on any claim in the state where they have substantial and sufficient contacts (every corporation has one
state, i.e. Microsoft and WA); usually the state of incorporation or the state of domicile has general jurisdiction
CASE
YEAR
FACTS
EFFECT ON PJ?
NOTES
Perkins v. Benguet
Consolidated Mining
Co. (p.123)
Heliocopteros
Nacionales de
Columbia, S.A. v. Hall
(p.124)
1952
1983
D conducted its business from Ohio

(Philippines corporation). The
breach of contract claim did not
arise from Ds contacts with Ohio,
so sought general jurisdiction.
Court held OH did have general
jurisdiction b/c D had continuous
and systematic contacts
(maintained an office where
personal and business affairs were
conducted; kept office files,
correspondence, salary checks
distributed, bank accounts,
meetings, supervision; president
personally served in OH).
H (Colombian) has contract with
TX/Peruvian company to supply
helicopters. One of their planes
crashed. Suit was brought in TX
state court. SC held that TX did not
have PJ. Continuous and
systematic contacts not established
with one trip to Houston by
President, checks drafted from a TX
bank, over $4 million worth of
purchases (helicopters that
constituted about 80% of fleet,
spare parts, and accessories), and
training in FW.
continuous and systematic

contacts contacts sufficiently
substantial and of a nature as to
permit the forum to have
general jurisdiction to hear a
case where the cause of action
arose from activities distinct
from Ds activities in the forum
Even when the cause of action

does not arise out of or relate to
the foreign corporations
activities in the forum State, due
process is not
*Jurisdiction by necessity b/c
unclear whether there was
another forum (such as the
Philippines) where suit could
have been brought
No continuous and systematic

contacts

PHYSICAL PRESENCE
Burnham v. Superior Court (1990, p.126): D (NJ) sued in CA on a claim that didnt arise in CA but served with process in CA.
All nine justices agreed that CA had general jurisdiction.
*4-4 split
Scalia/Rehnquist/Kennedy/White: If the D is voluntarily physically present in the forum and is served in the forum, then there
th
is PJ over D. Traditional basis exists along with the IS model and doesnt violate the Due Process Clause of the 14 Amendment.
Minimum contacts analysis is only a substitution for physical presence; service of process when you are present in the forum is
always grounds for jurisdiction. Pennoyer is alive.
Brennan/Marshall/Blackmun/OConnor: Must apply IS every time and the traditional basis are gone. Under IS model, there is
jurisdiction b/c he was availing himself of the health and safety guaranteed by the states police, fire, and emergency medical
services, free to travel on states roads and waterways, and enjoys the fruits of CA economy for three days (business trip and
visit children).
CONSENT
Consent to suit in a particular state also establishes jurisdiction in that state.
ELEMENTS OF CONSENT
Fair play factors? Balance of fairness and reasonability (p.137)
Bad faith?
Fraud or overreaching?
Notice of provision?
Explicit
Implied
Voluntary
**gold standard**
Implied in fact: don't explicitly verbalize consent, but actions clearly indicate consent
(consented by your actions)
Implied consent from presence in the forum and contacts in the forum
Coerced
A threat is an offer you wish you

never received: "your money or
your life"
Implied in law: imply consent by force of law, both notice and consent (e.g. boilerplate
language in a contract even if you don't read it-->constructive notice)
Manager/director position
Shaffer v. Heitner language-->statute that treats acceptance of directorship as
consent to jurisdiction in the state
o DE did pass a statute afterwards that if you accept a directorship position
in DE, then you consent to PJ in DE
Registration
Knowlton v. Allied Van Lines, Inc. (8th Cir): Appoint agent to receive service of
process and consent to that jurisdiction

Siemer v. Learjet (5th 92): mere act of registering an agent wasnt consent
Carnival Cruise Lines, Inc. v. Shute (1991, p.135): forum selection clause in contract requiring passengers to consent to suit in FL;
court held that you can waive your constitutional protections and that minimum contacts are not necessary when there is consent
(through the waiver on the Ps ticket). Contract with forum selection clause was held valid b/c the ticket had a warning to read the
terms on the back where the clause was located. The clause was fair b/c CC didnt have a bad faith motive for including the clause,
their principal place of business is in FL (with much of their business in FL), and they didnt obtain consent through fraud or
overreaching. P also had the option of rejecting the contract.
*Ex ante boilerplate language is enforceable and a means of consent
In any contract you draft, you should include a forum selection/choice of law clause that is beneficial for your client
K CLAUSES:
Choice of law: dont tell you which court you have to file in, but only what substantive law governs
Consent-to-jurisdiction clauses: parties (or one of the parties) consent to suit in a particular place, thus waiving challenges to
personal jurisdiction; permits suit be brought in a specific place, but doesnt require it
Forum selection clause: limit forum to a single location
Arbitration clauses: disputes taken out of judicial system and in an arbitration procedure
9

NOTICE Rule 4
How do we serve an individual?
Rule 4(e)(1): federal court incorporates methods for serving process allowed by the state in which the federal court sits or the
state in which service is actually effected
Rule 4(e)(2): Personal service, substituted service (someone of suitable age who resides at Ds home), agent of the company
How do we serve a corporation?
Rule 4(h): serve an officer or a managing/general agent (someone w/ enough responsibility to be considered reliable for passing
along important documents)
Waiver of service by mail
Rule 4(d): D can waive service by return a form within a specified time period (30 days after request sent or 60 days if outside
U.S. judicial district)
Jurisdictional limitations: Court must have power over the defendant, flowing from the relationships based on contacts or Ds
consent, either through prelitigation agreement (Carnival) or waiver (when D appears but fails to challenge jurisdiction).
Rule 4(k)(1): if the factors for personal jurisdiction exist and the D is served in the forum, then jurisdiction is established
Rule (4(k)(1)(b)): party joined to litigation under Rule 14 or 19100-mile bulge in the personal jurisdictional reach of the
federal district court, even if the state didnt have PJ over the party originally
Rule 4(k)(2): when D isnt subject to jurisdiction in any state court and exercising jurisdiction is consistent with U.S. Constitution
Assume D has enough national contacts, but not enough contacts for PJ in a specific state
Mullane v. Central Hanover Bank & Trust (1950, p.141): "Notice reasonably calculated under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their objections." Compliance with
state notice statute isnt enough if it doesnt meet the constitutional notice requirements because its a deprivation of life, liberty or
property (5th and 14th Amendments and their right to sue). Court has power to hear the case in NY b/c the trust was established in
NY (jurisdiction).
STANDARD:
People are identifiable and you have access to their contact info: personal service
People are impossible to identify: constructive notice is ok
Notice is possible but burdensome: must make reasonable efforts to find the people (due diligence) using reasonable business
practices
Constructive notice (publication notice): notice through the newspaper, in most instances, is not good because it doesnt satisfy the
Mullane standard. However, Mullane does permit constructive notice if notice could not be provided by better means b/c identities
are not known.
Jones v. Flowers (2006): If P is aware that D did not receive notice, then you must take other measures. SC determined that the two
certified mail notices sent to Ps last known address by the state authorities prior to a tax sale was not sufficient notice. No
suggestions were given as to what additional steps the state should have taken in order to contact P.
CLASS ACTIONS
Rule 23(c)(2) requires individualized notice for some classes while other only receive appropriate notice b/c personal notice might
be overly burdensome [see CLASS ACTIONS]
COMPLICATION
Shutts: notice and opt out is sufficient, but is it also necessary?
Those who could not be reached were excluded from the class
It's only optional 23(c)(2)(A), but necessary? Is it necessary that those who cant be reached be kicked out of the class?
Mullane:
Those who could not be reached can be included in the class
"Notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections."
It is unclear what the courts would do if the group of people who could not be reached were actually included in the class b/c in
Shutts those people were excluded. In Mullane, the courts say that it is ok for those who could not be reached to be included in the
class. In Shutts, the notice and opt out option was sufficient notice, but the court doesn't say that excluding those who couldn't be
reached is necessary for notice standards to be satisfied.
10

WAIVER OR CHALLENGING PERSONAL JURISDICTION
COMMON LAW:
Some courts still follow this, but most states have adopted rules similar to federal rules.
Special appearance: defendant appears especially for the SOLE purpose of objecting to the courts personal jurisdiction. If the
defendant raises any issue other than personal jurisdiction, then they are considered to have WAIVED their objection [more
restrictive].
*NOTE: A D who stays away entirely from the forum doesnt waive their objection to PJ and can raise their objection collaterally
when the P comes to the Ds state to enforce their default judgment
FEDERAL LAWMOTION
Removing a case to federal court does NOT waive the right to object to personal jurisdiction. Once removed, the defendant can
challenge personal jurisdiction with a Rule 12(b)(2) motion. This objection can be included with other objections or defenses, BUT
the motion must be raised in Ds first response to the complaint (pre-answer motion or answer, if no pre-answer motion was filed).
What happens if objection to PJ is denied?-->D will have to litigate the case based on merits, and if they lose, can appeal based on
lack of PJ. If D wins on appeal, the case will have to be relitigated in a court that does have PJ over the D.
Challenge in the enforcing court
Full Faith and Credit Clause U.S. Constitution: states generally have to honor each others judgments
But the enforcing court entering judgment on a judgment can determine whether there was personal jurisdiction in the
original case. If there is PJ, then they enforce the other states judgment; if not, then they dont enforce the judgment.
Enforcing state doesnt have to have personal jurisdiction over the D in order to enforce the prior courts judgment. It just
has to be in a state where the D has property that can be sold in order to enforce the judgment.
*Default assumption: if the parties dont bring up any challenges to venue, PJ, etc. (except for SMJ), the court wont bring it up sua
sponte and it is considered waived (Rule 12(h))
11

VENUE 28 U.S. C. 1391
*Only applies to cases originating in federal court (not to state court cases or cases removed from state to federal court)
1391(a) diversity cases
If all Ds in same state, where any D resides
Substantial TorO occurred
If strike out on first two, wherever any D subject to PJ
1391(b) federal question cases
If all Ds in same state, where any D resides
Substantial TorO occurred
If strike out first two, wherever any D may be found
Found v. Subject to PJDifference?
Complicated because of Burnham, where physical presence in the forum establishes personal jurisdiction
RESIDE: (akin to domicile)
Individuals: similar to citizenship but localized to a specific district within the state
Corporations: dont confuse with 1332(c)
1391(c): corporation resides in any district in which it is subject to personal jurisdiction at the time of the action
More than one judicial district, corporation resides in the district which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate state
Aliens: 1391(d): can be sued anywhere, includes individuals and corporations
TRANSFER
Can transfer from one federal trial court to another [1404, 1406]
TRANSFEREE MUST BE A PROPER VENUE AND MUST HAVE PERSONAL JURISDICTION OVER THE DEFENDANT
1404 applies when the Transferor was a proper venue.
Transfer permitted for convenience of parties and witnesses and in interest of justice
Can transfer to any district or division where it might have been broughtmake sure there is SMJ, PJ, and venue in forum
The defendants waiver on issues of PJ and venue, after the case has begun, are insufficient to transfer if D moves to
transfer to a district where there was no PJ originally (Hoffman v. Blaski)
Cant take ex post consent to justify transfer b/c it would allow reverse forum shopping
Apply the laws of the first courts (Van Dusen v. Barrack (1964): held that even when a case is transferred to a federal court in
another state, it takes with it the substantive law and choice of law rules of the state where it was originally filed)
1406 applies when Transferor is an improper venue.
Court can dismiss or transfer to correct venue in the interest of justice
1631 Transferor lacks personal jurisdiction.
Court can transfer to the correct court and there is no discussion of statute of limitations
Whose law applies?
Transfer under 1404(a): law of the transferor court (origin court) to shut down gaming (Van Dusen v. Barrack)
Transfer under 1406(a) (improper venue): law of the destination court b/c thats where it should have been brought
Transfer under 1631 (no PJ): law of the destination court b/c youre acting like the case was originally filed in the destination
court
One court held differently in 1631 transfer (Ross v. Colorado Outward Bound School)
Forum non conveniens: law of the destination court, not the origin court
Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. (E.D. VA 1997, p.160): Sued a number of rubber thread corporations alleging
international conspiracy to fix prices. There is PJ over the foreign and domestic corporations, but uncertain whether venue is proper
for U.S. corps. Venue lies anywhere for foreign companies; 1391 trumps any special venue statues. Analyze PJ for U.S. Ds b/c
residence and events didnt apply. It is uncertain whether contacts are in the W.D. of Virginia rather than the E.D. of Virginia.
12

FORUM NON CONVENIENS (FNC)
MACHINE
1) Is there an alternative forum?
2) If there is an alternative forum, does the substantive law of the alternative forum make it so that there would be no remedy at
all?
3) If not, then balance the Gilbert factors and determine if the public and private factors cut in favor of FNC or not.
DOCTRINE
Court dismisses b/c the litigation would be far more appropriate in another court and transfer is impossible b/c the other court is in
a different judicial system (foreign) and therefore you cant transfer the case *Piper Aircraft v. Reno]
*applicable to both state and federal courts
Presumption in favor of Ps initial choice of forum, BUT when P is foreign and chooses a non-home forum, their choice is
given less deference
Substantive law: ordinarily dont care, but only if the alternative forum is so inadequate as to be no remedy at all
o Substantive law being less favorable isnt no remedy at all
o Change in substantive law isnt usually given much weight in the FNC inquiry
o Difference in damages amounts is not grounds to deny FNC (Gonzales v. Chrysler Corp.)
GILBERT INTEREST FACTORS (Gulf Oil Corp. v. Gilbert) balance
o Public factors:
Relative ease of access to sources of proof availability of compulsory process for attendance of unwilling,
and the cost of obtaining attendance of willing witnesses
Possibility of viewing the premises, if appropriate to the action
All other practical problems that make trial of a case easy, expeditious and inexpensive
o Private factors
Administrative difficulties flowing from court congestion
Local interest in having localized controversies decided at home
Interest in having the trial of a diversity case in a forum that is at home with the law that must govern the
action
Avoidance of unnecessary problems in conflict of laws, or in the application of foreign law
Unfairness of burdening citizens in an unrelated forum with jury duty
o Once case is dismissed for FNC, then burden is on P to re-file the case in the appropriate forum
Piper Aircraft v. Reyno (1981, p.164): Aircraft rash in Scottish highlands, resulting in the death of the Scottish passengers.
Negligence and S/L suits brought against U.S. aircraft and propeller manufacturers in CA court. Case removed to federal court based
on diversity, then transferred by Ds to M.D. of PA (where they conduct business). Ds then moved to dismiss on grounds of FNC.
Scotland not unfair alternative forum b/c negligence is still available, although S/L isnt. Private interest factors included that D
wouldnt be able to implead third-party defendants, fewer evidentiary problems if trial held in Scotland since a large proportion of
the relevant evidence is in Great Britain; Ds want to join Ds from Great Britain who could relieve their liability. Scotland also has a
very strong interest in litigating in Scotland b/c the accident occurred in their airspace, decedents were all Scottish, and all potential
Ps and Ds were either Scottish or English. American interest wasnt sufficient to justify the enormous commitment to judicial time
and resources.
Bhopal and the Crime of Union Carbide Leak of methyl isocyanate (toxic gas) that caused injury to an entire city. Suit was
originally brought in NY District Court and D (Union Carbide) moves to dismiss for FNC, calling it gratuitous denigration to call the
Indian legal system deficient. Motion was granted. Case was re-filed in India, where it took five years to settle and Ps received
$470 million (insurance payout).
13

PLEADING Rules 7-9
COMPLAINT
Rule 8(a): A pleading that states a claim for relief must contain (1) [an allegation of jurisdiction]; (2) a short and plain statement of
the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief sought, which may include relief
in the alternative or different types of relief.
Bell v. Novick Transfer Co. (MD 1955, p.17) Ps complaint was sufficient under the requirements of Rule 8s short and plain
statement criteria, even though it was not sufficient under Maryland practice. The complaint alleged an accident occurred due to
Ds negligence, but failed to allege specific acts of negligence. If D needs more information, they need to obtain it through
interrogatories or other discovery practices.
GENEROUS STANDARD:
Conley v. Gibson (1957): The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he
bases his claim. To the contrary, all the Rules require is a short and plain statement of the claim that will give the defendant fair
notice of what the plaintiffs claim is and the grounds upon which it rests. If conceivable, then sufficient and survives 12(b)(6).
complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.
Haddle v. Garrison (S.D. GA 1998, p.340): Ps claim that four Ds interfered with his at will employment survived 12(b)(6) motion b/c
it may give rise to a claim for damages under the Civil Rights Act of 1871 (at will employment is considered property to be protected)
PLAUSIBILITY STANDARD
Bell Atlantic v. Twombly (2007, p.359): overrules Conley and states that a pleading requires enough facts to state a claim of relief
that is plausible on its face (not just possible or conceivable). The claim must raise a reasonable expectation that discovery will
likely result in evidence that the Ds did engage in the alleged acts (conspiracy). Court found that the parallel behavior was not
plausible b/c it was more likely that explained by lawful, unchoreographed free market behavior (competition).
A recitation of the elements of a cause of action is not enough. Facts are needed to prove or tend to prove the cause of action.
Conclusory statements are not enough.
Iqbal v. Ashcroft (2009, FRCP 418): three step analysis
1) Strike out legal conclusions/conclusory statements
2) Factual allegations are assumed as true (P is not lying about the facts)
3) Plausibility evaluation based on the factual allegations the facts must be such that the court can draw a reasonable
inference that the D is liable for the alleged misconduct
Applying Twombly, the factual allegations that FBI detained thousands of Arab Muslim men as part of 9/11 investigation and the
policy of holding those detainees in highly restrictive conditions, if taken as fact, would lead to the conclusion that Ds purposefully
designated detainees of high interest based on race, religion, or national origin. BUT there are other more likely explanations, so the
factual allegations arent enough b/c its more likely that the policy adversely affected Arab Muslim men b/c were at war with the
Middle East. Court dismissed the case for failure to state a claim.
DISSENT:
The majority incorrectly applies Twombly to the case. Twombly doesnt require a court at the motion-to-dismiss stage to consider
whether the factual allegations are probably true. Rather, a court must take the allegations as true, no matter how skeptical the
court may be (exception for obviously false allegations). The complaint alleged that Ashcroft and Mueller knew of and condoned the
discriminatory policy their subordinates carried out, and that they affirmatively acted to create the policy. Both admitted they are
liable for their subordinates conduct.
There is no clear standard regarding pleadings. Conley held that the only grounds for dismissal of a complaint were if it was beyond
doubt that P could not prove the allegations asserted. Twombly, a federal antitrust case, overruled Conleys pleadings standard,
requiring the claims be plausible. Iqbal further heightened the Rule 8 pleading standard by requiring the factual allegations asserted
be plausible, relying on our common sense and experiences. Iqbal also clarified that Twombly doesnt apply to only antitrust cases,
but all Rule 8 pleadings. Decision of whether pleading is sufficient has nothing to do with discovery (Twombly policy). It will likely
not apply to standard slip and fall cases, but may detrimentally affect employment discrimination cases, etc.
14

SANCTIONS
Bridges v. Diesel Service, Inc. (E.D. PA 1994, p.13): Ps claim under the ADA alleging D dismissed him from job b/c of a disability was
dismissed b/c P didnt file a charge with the Equal Employment Opportunity Commission (EEOC) until after commencement of the
suit, which was a required step before filing suit. No sanctions (Rule 11) were imposed b/c P learned their lesson and no deterrence
was necessary.
OPTIONAL PRE-ANSWER MOTION

Rule 12(b) motions fire one, fire all b/c it might end up being waived
12(h): when claims are waived
12(b)(2)-(5) are waived if not made in the pre-answer, answer, or amendment (Rule 12(g)(2))
12(b)(6) can be stated in any pleading, Rule 12(c), or at trial
ANSWER
Response to the allegations in the complaint must:
Admit / Deny / Dont know = denial / Silence = admission Rule 8(b)
When denying, make sure denial is specific (Zielinski v. Philadelphia Piers, Inc.)
Affirmative defenses: Admit, but [DEFENSE] Rule 8(c)
Launch claims:
Counterclaim: D makes claims against P (Rule 13); compulsory counterclaims are waived if not in the answer
Cross-claim: D1 sues D2 b/c they are the one who caused the injury (Rule 13)
Impleader: Add a third party defendant (Rule 14)
Zielinski v. Philadelphia Piers, Inc. (E.D. Pa. 1956, p.393): D made a general denial in their answer (Rule 8(b)) rather than a specific
denial, resulting in P suing the wrong D (PPI wasnt the actual employer of the driver who injured P). Ds general denial could have
denied employment, but P probably thought the denial was of the negligence and carelessly managed allegations. At trial, P found
out that PPI was not Johnsons real employer. Court granted motion to find that PPI owned and operated the lift (even though they
didnt) and Johnson was an employee of PPI. Fair b/c SOL had run and both PPI and Carload Contractors were represented by the
same insurance company (no harm, no foul). The doctrine of equitable estoppel is applied to prevent a party from taking advantage
of the statute of limitations where the P has been misled by conduct of such party and they are estopped from taking advantage of a
document of record where the misleading conduct occurred after the recording.
AMENDMENTS Rule 15
Courts are pretty flexible when it comes to amending complaints, so long as there isnt great injustice on either side.
15(a): *t+he court should freely give leave *to amend+ when justice so requires.
15(b): deals with amendments during/after trial to reflect the introduction of evidence that is not within the scope of the pleadings
15(c): deals with amendments that are interposed after the statute of limitations on the new claim has run
th
Beeck v. Aquaslide n Dive Corp. (8 Cir. 1977, p.403): P injured on a slide that was later determined to not be manufactured by
Aquaslide. Using the information from three insurer investigations, D admitted to manufacturing the slide in the answer. SOL
expired and 6.5 months later, D moved to amend the complaint after an on-side investigation. Court allowed amendment and
severed the trial (Rule 42(a)), and determined that D didnt manufacture the slide. Aquaslide was slightly blameworthy b/c they
should have conducted an onsite visit earlier instead of relying on insurance reports and were on notice to Aguaslides, but they
would be unduly prejudiced. D didnt act in bad faith and the slight prejudice to P was not enough to deny the amendment. P can
sue the counterfeit manufacturer for fraud (but the damages arent as high as products liability).
REPLY (if there is a counterclaim)

Mandatory for counterclaims if in the answer, the counterclaim is clearly designated or labeled as a counterclaim (Rule 7(a))
JUDGMENT ON THE PLEADINGS Rule 12(c)

STANDARD: used when there is an affirmative defense that would end Ps claim, such as statute of limitations
MATERIALS: Look at both pleadings (complaint and answer)
* 12(d): move for a motion under Rule 12(b)(6) or 12(c), the court will just consider it as a summary judgment b/c youre looking a
documents other than the pleadings (Rule 56)
15

DISCOVERY Rules 26-37
* Formal discovery not the only means of gaining information. Can uncover facts through independent factual investigation (legwork,
telephone calls, informal interviews, examination of public records, online searches, etc.)
STANDARD: Rule 26(b)(1): allows the parties, without court approval, to seek discovery regarding any nonprivileged matter that is
relevant to the partys claim or defense. If a party shows good cause the court may grant even broader discovery of any matter
relevant to the subject matter involved in the action.
TIMING: Before trial
Districts courts have a lot of power at the discovery stage b/c you cant appeal a discovery order with a higher court. You have to
wait for a final judgment on the case in order to appeal any issues with discovery, whether information is irrelevant, etc.
RELEVANCE
Information is relevant if the information tends to prove or disprove something the governing substantive law says matters. If it
doesnt matter, the law of evidence will prevent that information from being presented at trial (inadmissible).
Is the evidence probative of the allegation that is material to the legal claim?
Probative: Does evidence wiggle the mind? Does it make allegation more likely or less likely?
Material: Is allegation material to the legal claim under the substantive law?
Davis v. Precoat Metals (N.D. Ill. 2002, p.417): Request for all discrimination complaints to the company from its Chicago plant
employees from 1998 to Feb. 2002 that were based on race and national origin discrimination were relevant to Ps claim for
employment discrimination based on race and was not privileged. The information could emphasize a history/pattern of race and
national origin discrimination. The request wasnt overly broad b/c the request was focused on issues related to Ps claim.
Steffan v. Cheney (D.C. Cir. 1990, p.419): Questions regarding whether P was engaged in homosexual conduct during or after his
tenure as a midshipman was not relevant to his claim that he was constructively discharged and challenged the constitutionality of
the regulations that provided for the discharge of homosexuals. Also, b/c the district court is reviewing administrative law, the
relevance is further limited b/c the board just indicated he was discharged b/c he stated he was gay, not anything about his conduct.
TOOLS OF DISCOVERY Rules 26-37

DISCOVERY
TOOL
RULE
NOTES
TIMELINE
Rule 16(b) requires that the judge hold a
scheduling conference to discuss how discovery
and pretrial will proceed within 90 days after Ds
appearance or 120 days after service
Rule 26(f)(1) requires the parties meet ASAP (w/o
the judge) and at least 21 days before a
scheduling conference
Rule 26(a)(1)(C) requires the parties to exchange
disclosure lists at the Rule 26(f)(1) meeting or
within 14 days after it (at least 7 days before the
scheduling conference and at least 4 months
after the complaint is served on the D)
*timeline is different for expert testimony and
pretrial disclosures required by Rules 26(a)(2) and
(3)
Rule 30(a)(2)(A)(i): Without permission, the total
number of depositions taken by one side cant
exceed ten, no deposition may exceed a day of
seven hours, and no person may be deposed a
second time without the permission of the court
or the other side
Initial required
disclosure
Rule 26(a)
Must provide even if the opposing party doesnt ask for

it (people, names of witnesses, damages, etc.)
Rule 26(a)(1) requires exchange of information that the
disclosing party may use to support claims or defenses
Rule 26(a)(2) requires disclosure of the identities of
expert witnesses along with their written report and CV
Rule 26(a)(3) requires disclosure of the list of witnesses
and documents or exhibits it intends to produce at trial
Written and oral

depositions
Rule 30-31
In person/cross examination; can depose parties and

non-parties (through subpoena) where they are pulled
in for a series of questions to be answered under oath.
There can be objections to particular questions (Rule
30(d)). Can bring a lawyer. Expensive.
Written
interrogatories
Rule 33
Written questions that you can only serve to parties;

other side must sign under oath. Objections (Rule
16
Document
production
From party:
Rule 34
From nonparty: Rule
34,
45(a)(1)(C)
Physical and
mental
Examinations
Admissions
Rule 35
Rule 36
33(b))
Advantages:
Cheaper for the interrogator
Identify persons, things, documents, and digital
information that is not on the other partys
disclosure list but might be useful to your
argument
Drawbacks:
Cant follow up to evasive or unsatisfactory
answers
Limit of 25 questions unless judge grants
additional interrogatories but must be consistent
with Rule 26(b)(2).
From party:
Producing documents, electronically stored
information, and tangible things, or entering onto land,
for inspection and other purposes
Includes any tangible item, land, and
electronically stored information (email message
on a hard drive, backup tape), photograph,
videotape, and documents
34(b)(2)(E)(i): A party must produce documents
as they are kept in the usual course of business or
must organize and label them to correspond to
the categories in the request.
Rule 45(a)(1(A)(iii): requesting documents, etc. from
nonparties through a subpoena
Production of documents and things; good cause
requirement
Useful as a quasi-pleading device for admission of small
facts that arent really at issue and takes an issue out of
controversy and eliminates undisputed issues. Silence
is taken as an admission.
SANCTIONS (Rule 37(c)(2)) for not answering
Ensuring Compliance
Rule 37 imposes punishments from awards of expenses to dismissals of an entire case or the entry of a default judgment
37(d) and (f) authorize some sanctions on the occurrence of misbehavior
37(b) other sanctions cannot be sought until after the court orders a party to comply with discovery request
Rule 26(g) authorizes attorney fees to be an appropriate sanction for most violations of its obligations
Can go to the judge to file a motion to compel discovery
Involuntary dismissal (Rule 41(b)): if P misbehaves during discovery, you can sanction P by dismissing the case
17

LIMITS TO DISCOVERY
PRIVILEGE
Privileges typically protect information from certain sources; not meant to block the underlying facts
th
Self-incrimination in criminal cases (constitutionally protected by the 5 Amendment)cant ask a D if they committed a crime
Attorney-client: protects communication between lawyers and clients concerning the matters the lawyer is handling for the
client
o Courts have refused to hold that every employee of a large corporation is a client for lawyer-client privilege
o Upjohn Co. v. United States (1981): held that the attorney-client privilege extended beyond the control group (top
management) in corporations
Doctor-patient
Spousal (protecting communications between spouses)
Any privilege can be waived
Failing to assert, or by taking some action inconsistent with claiming the privilege (disclosing information to a third party; filing a
cause of action, such as intentional infliction of emotional distress that opens the door to psychological history)
privilege log: list of documents removed from production based on a claim of privilege must be compiled on a privilege log
and provided to the party requesting the documents; should provide sufficient information about the documents so that the
other party can assess the privilege claim of the documents
Butler v. Rigsby (LA 1998, p.30): P was hit by a car driven by D; P sued for negligence in federal court based on diversity jurisdiction.
D wanted information from two hospitals that were not parties in the suit but treated the Ps. Court held that listing of the total # of
patients referred to hospitals by Ps attorneys was relevant b/c it could show a pattern of channeling clients to the hospital and
could be a reason for the hospitals bias. The information was also no privileged. The computer printout of hospitals current
patients was privilege and the identity of patients was not relevant.
WORK PRODUCT PROTECTION

Rule 26(b)(3): work product in anticipation of trial is not discoverable unless discoverable under Rule 26(b)(1) or party shows
substantial need for the materials and cant obtain it w/o undue hardship
Includes work product from any agent (not just attorneys)
Protects documents and tangible things that are prepared in anticipation of litigation or for trial (memoranda, briefs,
communications, and other writing prepared by counsel for own use in clients case); attorneys mental impressions,
conclusions, opinions or legal theories
Doesnt protect underlying facts, just the work product that may contain the facts
If court orders work product discovery, then the court must protect mental impressions, conclusions, opinions, or legal theories
(Rule 26(b)(3)(B))
An individual can obtain a copy of their own written statement (way to get around work product protection)
Hickman v. Taylor (1947, p.442): Statements of the crew members that D obtained prior to suit (in preparation) were relevant to
contextualizing the tug boat accident. They were not under attorney-client privilege b/c privilege doesnt extend to information
which an attorney secures from a witness while acting for his client in anticipation of litigation, not does the privilege concern the
work product. D claimed work product protection even though the documents were relevant and not privileged. If work product
was available, it would undermine the adversarial process of litigation
True privilege is absolute unless it is waived. Work product is qualified privilege. All written materials obtained or prepared by an
adversarys counsel with an eye toward litigation are not necessarily free from discovery in all cases:
Discovery proper if relevant and non-privileged facts are hidden in an attorneys files and production of these facts is
essential to the preparation of ones case or help locate the existence or location of relevant facts
Witness is no longer available
18

SUMMARY JUDGMENT Rule 56
STANDARD: Summary judgment: Court should grant summary judgment only when there is no genuine issues as to any material
fact (or genuine dispute as to any material fact). Facts are not disputed, rather the dispute is about law, or where the law is
clear but one party lacked evidence supporting a critical element of their case. Trial is pointless.
viewed in the light most favorable to the party opposing the motion
There can be partial summary judgment on subportion or subissue of the lawsuit
Specific evidence will generally be more compelling that general evidence (Bias v. Advantage International, Inc.)
TIMING: before trial, but after discovery
MATERIALS: pleadings and discovery materials
Default judgment (Rule 55): D fails to answer a complaint entirely or fails to defend
Dismissal (Rule 41(b)): P does not obey an order of the court during the proceedings
Voluntary dismissal (Rule 41(a)): P can seek if they think they will be better off starting the suit over
OLD STANDARD
Burden on the moving party to prove absence of GIMF
Adickes v. S. H. Kress Co. (1970): moving party has the burden of showing the absence of a genuine issue as to any material fact.
The material they submit must be viewed in the light most favorable to the opposing party. Moving party must show that the other
party will not prevail at trial. Kress had the burden of foreclosing the possibility that there was a policeman in the store and the
police man reached an understanding with the Kress employee that P not be served. Summary judgment improper.
NEW STANDARD
Moving party may meet its burden of persuasion by demonstrating that the nonmoving party failed to supply sufficient evidence of a
GIMF; burden shifts onto nonmoving party to show that there is GIMF (court draws inferences in the nonmovants favor). The
nonmoving party gets the advantage that the court must draw all justifiable inferences in its favor (Anderson v. Liberty Lobby), but
the nonmoving party has to do more than create a metaphysical doubt (Matsushita Electric).
Celotex Corp. v. Catrett (1986, p.529): Movant is not required to foreclose the possibility of GIMF, but rather show the lack of
evidence on the other side. Because its the Ps responsibility to bear the burden of proof to support her claim with evidence; if P
cant, then D can move for summary judgment and point out there is no evidence to support the claim (reactive stance).
Adickes means that the burden on the moving party may be discharged by showingthat is, pointing out to the District
Courtthat there is an absence of evidence to support the nonmoving partys case It is not saying that the burden is on the
moving party to produce evidence showing the absence of GIMF.
Adequate time to conduct effective discovery, which should have produced sufficient evidence to prove causation
Bias v. Advantage International, Inc. (1990, p.535): Summary judgment held valid b/c there was no GIMF re Biass insurability b/c
the family claimed he was not a drug user and the D produced two teammates from school who described specific instances where
he dealt and used cocaine. P bears the burden at trial to prove that Bias was insurable. Along with the two witnesses, D also
provided evidence that insurance companies ask about an applicants prior drug use at some point in the process. P offered
testimonies from parents and coach, along with prior drug tests, but none of the evidence contradicted Ds testimonies. P also failed
to refute Ds evidence re jumbo life insurance policies and drug use. Court concluded that Bias was a drug user and was not
insurable. The specific evidence provided by Ds trumps the general denials from P.
*Note: usually the jury determines the credibility of a witness rather than the judge. So in Bias, why was the judge allowed to
determine that the testimonies of two of Biass teammates were more credible than the testimonies of his parents and coach and
the drug tests? Plaintiffs never produced evidence that the credibility of the testimonies should be questioned.
th
Houchens v. American Home Assurance Co. (4 Cir. 1991, p.34): D filed for summary judgment on Ps claim to recover the
insurance policies for her husbands accidental death. P could not prove that her husband died and that his death was accidental.
D argues that husbands death could not be accidental (suicide or natural causes). Judge granted summary judgment for D b/c the
presumption of death does not mean a presumption of accidental death.
19

TRIAL Rule 50
JUDGE v. JURY?
Basic test is whether reasonable persons could differ; if they could, the court should defer to the jury on the ground that its
members are reasonable person whose verdict represent one of several reasonable views [Boeing Co. v. Shipman (5th Cir. 1969)]
A mere scintilla of evidence is insufficient to present a question for the jury
JUDGMENT AS A MATTER OF LAW (JMOL)

Judgment as a matter of law (JMOL)/Directed verdict (DV) (Rule 50(a)): during the trial stage, the case is taken away from the jury
and the judge makes a decision on the case as a matter of law.
Rule 50 does not grant the judge from making a JMOL motion on their own, BUT the judge can hold a sidebar and hint that they
will entertain pre-verdict motions.
STANDARD: a reasonable jury would not have legally sufficient evidentiary basis to find for that party on the issue
*same standard as Rule 56 (summary judgment)
When there is a direct conflict of evidence, then direct evidence generally will defeat circumstantial (but this is not always the
case). [e.g. DNA in criminal cases v. eye witness account]
TIMING: after all parties have been heard but before case goes to the jury
MATERIALS: pleadings, discovery, trial, and evidence
Reid v. San Pedro, Los Angeles & Salt Lake Railroad (Utah 1911, p.553): Court held that the trial court should have directed a verdict
for D b/c there was not enough evidence to decide a verdict b/c P failed to show by a preponderance of the evidence that the cow
entered through the open gate (railroad not liable) or the broken fence (railroad is liable).
Pennsylvania Railroad v. Chamberlain (1933, p.602): Action for negligence by train brakesman against the RR alleging that certain
rail cars collided, killing the brakesman based upon the testimony of one Bainbridge who heard the a loud bang but didnt see the
collision. There were three other employees who said that they did not see the crash. Court held that Ps evidence was all
circumstantial evidence (doesnt come through the direct exercise of your senses) and there was no conflict with direct evidence
(sensorial evidence, saw it, heard it, etc.). Therefore, any verdict for P would have rested upon mere speculation and conjecture.
When the facts give equal support to inconsistent inferences, a party has not sustained their burden; case dismissed.
RENEWED JUDGMENT AS A MATTER OF LAW (RJMOL)

RJMOL/Judgment notwithstanding the verdict (JNOV) (Rule 50(b)): post-trial; judge can make a decision after trial as matter of law
STANDARD: consider the evidence in the light most favorable to the non-moving party and only grant RJMOL where the evidence so
strongly points in the favor of the moving party that reasonable people could not arrive at a contrary verdict.
TIMING: Pre-verdict Rule 50 motion required for a post-verdict Rule 50(b) motion; after jury has returned a verdict
th
Norton v. Snapper Power Equipment (11 Cir. 1987, p.39): Judge granted RJMOL after the jury returned a verdict for the P b/c the
jury could not consider some evidence and there was insufficient evidence to show there was a design defect (failure to install a
th
dead man). The 11 Cir. found that the jury could have reasonably found the mower to be defective and found that the lack of a
quick-stop device caused the injuries to P, so granting RJMOL was in error.
20

NEW TRIAL Rule 59
STANDARD: Rule 59 allows for a new trial for any reason for which a new trial has heretofore been granted in an action at law in
th
federal court (7 Amendment connection)
gives power to the judge to order a new trial even if neither party does so
Allows judges to just reinstate jury verdict should they be overturned on appeal without having to go through another jury trial.
TIMING: you can move for both a JNOV and NT at the same time.
Rule 50(c): permits a party moving for a JNOV to make (and the court rule on) a conditional motion for a new trial (comes into play
only if the JNOV is later vacated or reversed)
Permits a losing party to make all its post-trial motions at once, which allows the trial judge to rule on them with the case still
fresh in mind and the appellate court to consider them all at once
BASIS FOR A NEW TRIAL
Flawed procedures: process leading up to the verdict has been flawed
Lawyer made an impermissible argument to the jury
Judge concluded that she erred in admitting a piece of evidence or gave the jury wrong instructions
Juror misbehaved during the trial
Ordering a new trial gives the judge an opportunity to correct themselves or otherwise fix the flawed process
Flawed verdicts: verdict is unjustifiable, even with a perfect trial
Verdict that splits the difference between two parties when the law says one or the other must take alltells the judge
that the jury either misunderstood or ignored the instructions
Verdict is against the weight of the evidence (similar to JMOL but no judgment is entered, just a new trial)
STANDARDS FOR GRANTING A NEW TRIAL FOR ABUSE OF DISCRETION (easier to harder spectrum)
th
13 juror, the judge: judge would have ruled differently, so grants a new trialNew trials easily granted
Miscarriage of justice: middle of the spectrum re ease of new trials (Lind v. Schenley court adopts this standard)
Directed verdictUsually never grants a new trial
Lind v. Schenley Industries (3d Cir. 1960, p.611): P alleged an oral contract with the employer that was never fulfilled. Jury found a
contract and awarded damages to P. Court granted JNOV and NT to D. P appealed, and the COA found that trial court had abused
their discretion by substituting their own judgment over the jurys; jury verdict reinstated. A jury verdict should only be set aside as
against the weight of the evidence upon finding the jury reached a seriously erroneous result.
Rule 52(a)(1): the court must find the fact specially and state its conclusions of law separately if an action is tried on the facts
without a jury or with an advisory jury
Spell out the steps of inferences by which it concluded decision (show your work); not required for juries
Rule 52(a)(6): finding of fact made by a trial judge can be set aside on appeal if it is clearly erroneous
clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed (Anderson v. Bessemer City)
If the trial judge provides erroneous instructions to the jury and the appellate court concludes that there is a likelihood that the error
affected the jurys verdict, the judgment will be set aside and a new trial will be ordered.
In a bench trial, the judges conclusions of law provide an analogous road map; if the judge gets the law wrong, he or she
will be subject to reversal on appeal
CONDITIONAL NEW TRIALS

Judge can grant a new trial limited to a particular issue (e.g. damages, etc.) but they have to be sure that whatever influenced the
jury to make the incorrect decision regarding damages didnt affect their decision on liability
Remittitur and Additur
Remittitur: judge orders a new trial unless the plaintiff agrees to accept reduced damages (P must get a choice; Hetzel v. Prince
William County (1998))
o Supreme court has blocked the attempt of lower courts to permit appeals from conditionally accepted verdictsP has
a choice: accept the remittitur or prepare for a new trial (Donovan v. Penn Shipping Co. (1977))
Additur: increase in damages
Constitutional?
th
o SC held that remittitur does not violate the 7 Amendment but additur does; many states permit additur and remittitur
21

APPEALS 28 U.S.C. 1291
NECESSARY CRITERIA
Final judgment rule: The court of appeals shall have jurisdiction of appeals from all final decisions of the district courts; there
must be a final judgment to appeal, no interlocutory appeals
o Appeals cant be used to correct strategic decisions made by counsel during the pretrial or trial stage
Interlocutory review: categories that permit going up to an appeal w/o final judgments
o 1292(a) and (b): injunctions or certified decisions
o FRCP 23(f) and 54(b): class action certification decisions and cases with multiple parties or claims and the court had
decided fewer than all the claims
Apex Hosiery Co. v. Leader (3d Cir. 1939, p.48): appeal of an order under Rule 34 for the discovery and production of documents
before the end of trial was not appealable b/c it was interlocutory and not a final judgment
STANDARDS OF REVIEW
De novo: do it all anew; conclusion of law
Abuse of discretion: court clearly abused their discretion in the ruling
Clearly erroneous: trial court clearly made an error in reasoning
22

RES JUDICATA
POSITIVE LAW must give the same RESPECT as Court #1 would have given itself
Court #1
Court #2
Basis for Preclusion (respect not optional)
State
State
FF & C clause (Art. IV 1; 28 U.S.C. 1738)
State
Federal
28 U.S.C. 1738
Federal
State
Supremacy Clause (Art. VI, cl. 2)
Federal
Federal
Federal common law; 28 U.S.C. 1963 (registration of district court judgments)
CLAIM PRECLUSION / RES JUDICATA / ESTOPPEL BY JUDGMENT

Can argue claim preclusion when there is the 1) same parties, 2) same claim, and 3) valid final judgment
A suit on part of the whole precludes a later suit on the whole again (Frier: only 2/4 claims went to trial but all the claims are
precluded in a subsequent suit).
Claim preclusion doesnt apply if the court rendering the first judgment lacks jurisdiction to hear the case
*Claim preclusion is always a defense
SAME PARTIES
CP operates only between those who were parties in the first and second lawsuit. One is not bound by a judgment in a litigation in
which he is not designated as a party or to which he has not been made a party by service of process (Hansberry v. Lee).
EXCEPTIONS:
Agreement by the parties to be bound by a prior action;
Preexisting substantive legal relationship (such as preceding and succeeding owners of property);
Parties in PRIVITY (e.g. buyer of property buys the result of litigation defining the nature of the owners rights; or
party not named in Suit #1 but so closely connected to the suit that its appropriate to treat them as if they were
named in Suit #1 b/c they have the same legal right)
Adequate representation by someone with the same interests who was a party (such as trustees, guardians, and other
fiduciaries); adequate for preclusion purposes only if, at a minimum:
The interests of the nonparty and her representative are aligned (Hansberry v. Lee),
Either the party understood herself to be acting in a representative capacity or the original court took care to protect
the interests of the nonparty,
Notice of the original suit to the persons alleged to have been represented.
A party assuming control over prior litigation;
Relitigating through a proxy; and
Special statutory schemes such as bankruptcy and probate proceedings, provided those proceedings comport with due process.
Searle Brothers v. Searle (Utah 1978, p.681): Property half owned by W was awarded to defendant in a divorce suit. Ps brought suit
against their mother for their property interests. Court held that there was not claim and issue preclusion b/c Ds sons who owned
the other half interest in the property were not adequately represented by their father in the divorce suit and W was not acting as a
rep/agent of the partnership (not in privity). Ps are asserting their own property right, so their interests arent mutual or successive.
Just b/c youre a biased, incentivized witness does not make you in privity with the party who litigated the first suit.
VIRTUAL REPRESENTATION used to determine future or contingent interests in property (e.g. all trust beneficiaries bound if a
sufficient number of them can be identified). Also used when someone not a party to a lawsuit so guides and controls it that a court
treats them as if they were a party
Taylor v. Sturgell (2008, FRCP 463): Herrick filed a suit to challenge the denial of his FOIA request b/c documents were subject to
trade secrets, privileged and confidential; he lost. Taylor made the same request, which was denied, and filed suit, also raising
additional issues that Herrick didnt raise (same claim). Court held that virtual representation is not an exception to the general rule
that same parties (or privity) are required for claim preclusion. Court determined that Herrick and Taylor were not in privity and
follows the default rule that the victim of preclusion must have had their day in court.
23

SAME CLAIM / LITIGATION UNIT
Restatement (1) Same evidence/facts test: same claim if the evidence necessary to sustain a second verdict would sustain the
first, based on a common core of operative facts
Restatement (2) Transaction test: all claims arising from a single transaction (whether the facts are related in time, space, origin,
and motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties
expectations or business understandings or usage); must be litigated in a single lawsuit or be barred from being raised in subsequent
litigation
*Federal government follows TRANSACTION TEST; states vary
Rush v. City of Maple Heights (OH, p.43) CP on suing for property and personal injury in two separate claims arising from a
motorcycle accident although precedent (Vasu v. Kohlers, Inc.) in OH allowed for separation of claims for property damage and
personal injury
Concurrence: Vasu rule is obiter dicta (no power of law). Vasu allowed separate suits from insurer and victim for injuries.
th
Frier v. City of Vandalia (7 Cir., p.668) IL adopts the R(1) standard and Court determines CP b/c the same facts are necessary for
the replevin action and the due process claim: replevin statute requires a P to show that the property was taken w/o lawful process,
so if there was lawful process, P would have no replevin claim; facts are the same (P owns the cars and city didnt offer a hearing;
same conduct by the city (towing and detaining cars). P could have joined the claims in the first suit so waived.
Concurrence: Case will be dismissed on summary judgment, but no CP (not the same claim b/c different evidence). There was
adequate post-deprivation process b/c there was notice and easily could reclaim property. In a procedural due process action,
the legality or reasonableness of seizure is irrelevant (not for replevin action), just adequacy of procedures for seizure.
VALID FINAL JUDGMENT ON THE MERITS

VALID Think PJ and SMJDid Court #1 have jurisdiction to hear the claim?
FINAL
Federal courts: as soon as the District Courts issue judgment, there is preclusive effect even though an appeal is possible
California state court: after sufficient time has passed for an appeal
APPEALS
Effect of an appeal on a judgments status:
Usual rule: judgment is final even though an appeal is pending
Few states: pendency of an appeal voids a judgment
What should be done if a judgment is given claim-preclusion effect and then reversed on appeal?
Some courts solve the problem by postponing the decision on claim preclusion until the appeal is resolved
Rule 60(b)(5): file a motion to relieve party or representative of final judgment b/c judgment has been satisfied, released or
discharged; based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable
ON THE MERITS
Preclusive effects should only attach to judgments on the meritsbut what does that mean?
12(b)(1-5 and 7) are not on the merits
12(c) pleadings, summary judgment, directed verdict, jury verdict, JNOV are all on the merits
12(b)(6) is generally considered dismissal on the merits of the claim (Federated Department Stores v. Moitie), depending on
whether the dismissal was with prejudice or leave to amend (not on the merits).
Federated Department Stores v. Moitie (1981): if original claim arose under federal law and federal court dismissed with prejudice,
then the state courts (if P sought to bring a related claim under state law in state court) would be required to bar the claim.
*Rule 41(b) is not a claim preclusion rule. It just means that a judgment on those grounds is with prejudice. Federal common law
tells us that with prejudice means on the merits. [see Semtek]
th
Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (6 Cir. 1990; p.690): Suit 1 (state) D sued Gargallo for collection and Gargallo
counterclaimed a federal securities law violation (exclusive federal jurisdiction). Court dismissed on Ohio Civil Rule 37 for refusal to
comply with discovery requests and court orders. Suit 2 (federal) Gargallo filed suit against ML for federal securities law violations;
ML asserted claim preclusion. Court held that you would apply Ohio res judicata law to determine whether a final judgment from a
court that didnt have SMJ is valid (Marrese v. American Academy of Orthopedic Surgeons). Ohio law doesnt give preclusive effect
to judgments made where there was no SMJ.
24

ISSUE PRECLUSION / COLLATERAL ESTOPPEL / ESTOPPEL BY VERDICT
When 1) an issue of fact or law is 2) actually litigated and determined and 3) valid final judgment is essential to the judgment, the
determination is 4) conclusive in a subsequent action between the parties, whether on the same or a different claim.
*Can be used offensively or defensively
*NOTE: civil and criminal proceedings have different burdens of proof, so a civil judgment on an issue may not have a preclusive
effect on a criminal judgment.
SAME ISSUE
Substantive identity-->kind of close isn't enough; must be the same issue
Procedural identity-->burdens of proof different for different claims (civil and criminal claims)
Problems
Issue is usually the subcomponent/element of a claim (causation in a negligence claim is an issue)
Findings of fact
Conclusions of law
AN ISSUE ACTUALLY LITIGATED AND DETERMINED

Judgment
Default judgments
Judgment on the merits
Actually litigated and determined

Generally no
*In Gargallo v. Merrill, Lynch, P would not
be precluded on the basis of issue preclusion
b/c the claims were not actually litigated.
Maybe
Final judgment with multiple sufficient

causes
Litigated but generally not determined; see

Illinois Central v. Parks (below)
Complications?
Yes, if bad conduct (punishment), such
as Rule 37 dismissal (In re Daily) for
dragging on a case for years
Doesnt necessarily mean that it was
actually litigated (such as 12(b)(6)
motions)
Jury black box; burden on the party
pleading estoppel to prove the judgment
turned on the fact/issue in question
Illinois Central Gulf Railroad v. Parks (Ind. 1979; p.696): Train hit a car; wife sued for personal injuries (won) and husband sued for
loss of consortium (lost). Husband then sued for his personal injuries and RR argued issue preclusion. Black box for denying
damages to husband (contributory negligence or evidence showed no damages). Court held that if a judgment could have been
based on two findings, the party pleading estoppel has the burden of proving the judgment turned on the fact in question or that
finding will be open to contention. Issue of whether J was contributory negligent was litigated but not actually determined.
No CP b/c he is a separate individual from his wife and has a separate cause of action and Indiana has a narrower claim
preclusion definition (same facts and evidence test).
AN ISSUE ESSENTIAL TO THE JUDGMENT

Rule 52(a) requires a judge to set forth findings of fact and conclusions of law in non-jury trials (bench trial, this is very clear)
SIMPLE DETERMINATION OF ESSENTIAL
Strike out issue (of fact or law) in suit #1
Is the result the same w/o this issue? Does the same party still prevail?
MULTIPLE, SUFFICIENT GROUNDS FOR JUDGMENTdepends on the jurisdiction
Restatement of Judgments: both alternative grounds should be precluded in subsequent litigation
Restatement (Second) of Judgments 27 comment i: neither determination is binding unless affirmed on appeal
Effect of an APPEAL: 27 comment o-->less incentive to appeal those grounds you believed were wrongly decided
Multiple, sufficient grounds and the appellate court upholds both of these determinations as sufficient, and accordingly affirms
the judgment, the judgment is conclusive as to both determinations.
Court upholds one determination as sufficient but not the other (or refuses to consider whether or not the other is sufficient),
and accordingly affirms the judgment, the judgment is conclusive as to the first determination
E.g. special verdict (Acme ladder); severed trial to determine manufacture and D wins negligence claimno incentive to appeal
manufacturing decision if incorrect b/c they won the case
25

BETWEEN WHICH PARTIES (MUTUALITY)
The VICTIM OF PRECLUSION must have had their day in court and the opportunity to litigate their issue. Otherwise, preclusion is
not applicable. (Hansberry v. Lee, 1940)
Mutuality (same parties in suit 1 and 2) is not a requirement for IP to apply but there are jurisdictional differences about how
relaxed the mutuality requirement is.
R(1): mutuality is required
Defensive issue preclusion: less efficiency b/c
Offensive issue preclusion: more efficiency b/c preclusion couldnt be applied to those who werent the same party
R(2): mutuality is not required
DEFENSIVE ISSUE PRECLUSION: when D seeks to stop P from asserting a claim the P previously litigated and lost against another D
Promotes judicial economy b/c it precludes a P from relitigating identical issues by merely changing adversaries and provides an
incentive for P to join all potential Ds in the first suit (Blonder-Tongue)
OFFENSIVE ISSUE PRECLUSION: when the P seeks to foreclose the D from litigating an issue the D has previously litigated
unsuccessfully.
Court uses their discretion in allowing offensive issue preclusion and considers:
Whether you could have joined in Suit 1? (Are you playing me?)
Fair to D?
Are there procedural opportunities that were lacking in Suit 1 that could result in a different outcome?
Plaintiff autonomy cant force people to sue
Creates an incentive for wait and see in the hopes for a favorable judgment by another P (nothing to lose in not intervening)
Unfair to D b/c if D is sued for small or nominal damages, they may have little incentive to defend vigorously, particularly when
future suits are not foreseeable or if the judgment relied on is inconsistent with one or more previous judgments
GENERAL RULE: In cases where a plaintiff could have easily joined in the earlier action or where the application of issue
preclusion would be unfair to the defendant, a trial judge should not allow the use of offensive issue preclusion
Parklane Hosiery Co. v. Shore (1978, p.703): In Suit 1, SEC sued Parklane Hosiery for false and misleading proxy statement; judgment
for SEC. In Suit 2, Shore sued Parklane Hosiery for pretty much the same claim as in Suit 1. Court determined that a litigant who was
not a party to Suit 1 could use offensive issue preclusion to prevent PH from relitigating the issue of whether their proxy was false.
Shore couldnt join suit 1 (SEC suit) and it isnt unfair b/c D had an incentive to fully litigate in Suit 1, not inconsistent with previous
decision, and no procedural opportunities are now available that will cause a different result.
State Farm Fire & Casualty Co. v. Century Home Components (Or. 1976, p.710): Fire that caused substantial property damage to Ps
property that was stored in Ds shed.
Suit #1: Pacific N.W. Bell v. Century Home. Jury verdict for D. On appeal, the court reversed the judgment; remanded for a new
trial. On retrial, the court found for P (w/o jury). Court of appeals affirmed.
Suit #2: Sylwester v. Century Home (filed while Suit #1 appeal was pending). Jury verdict for D. No appeal.
Suit #3: Hesse v. Century Home. Jury verdict for P. Affirmed on appeal.
Court held that there was no issue preclusion b/c the prior determinations were inconsistent and it would be unfair to preclude Ds
from relitigating the issue of liability. Its unfair to preclude the D when they have won on prior occasions.
NOTES
United States v. Mendoza: Court held that the U.S. could not be subjected to nonmutual-issue preclusion. Another party cant use
the issues from a prior suit decided in the other partys favor in their suit
Comparative negligence claims:
If judgment apportions liability to both P and D, then a person who was involved in the accident but not a party to the first suit
can sue and the apportionment of fault from first suit is bindingboth parties had a fair opportunity to litigate the issue
Joint and several liabilitystates law re joint and several liability will determine if the passenger can sue and recover in full or
the portion of damages for which the driver was liable from only one driver (when two were found comparatively negligent)
26

JOINDER AND CLASS ACTIONS
JOINDER OF CLAIMS
*Make sure to do a jurisdiction analysis in joinder
BY PLAINTIFF
Permissive claims:
Rule 18: a single P can join any and all claims they have against a single D (plaintiff autonomy, so you dont have to join claims)
Rule 42(b): allows the judge to sever claims for trial convenience (like P brought different suits)
Compulsory claims: No FRCP, but there could be claim preclusion, which acts as a compulsory joinder of claims rule
BY DEFENDANT Rule 13
-
Compulsory counterclaims (a): arises out of the transaction or occurrence that is the subject matter of Ps claim AND does
not require adding another party over whom the court doesnt have jurisdiction. Must be brought at the risk of waiving claim
Permissive counterclaims (b): A pleading may state as a counterclaim against an opposing party any claim that is not
compulsory (doesnt arise out of the same transaction or occurrence)
th
Plant v. Blazer Financial Services (5 Cir. 1979, p.741): Court held that debt collection counterclaim to a Truth in Lending Act (TILA)
claim was compulsory counterclaim b/c the claims and rights of the parties, coupled with the common factual basis of the claims
demonstrates a logical relationship. TILA claims are not one of exclusive federal jurisdiction, so it was intended they could be heard
along with debt claims in state court, Congress would have made a statute if the intent was to stop debt claims from being heard
with TILA claims b/c it might obstruct goals of TILA, and the claims have a logical relationship (contract and breach of contract).
*Other jurisdictions have ruled that debt collection counterclaims are permissive counterclaims b/c different determinations are
th
required, different evidence needed, and not logically related (Whigham v. Beneficial Finance Co. of Fayetteville (4 Cir. 1979).
SAME TRANSACTION OR OCCURRENCE TEST:
Are the issues of fact and law raised by the claim and counterclaim largely the same?
Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim rule?
Will substantially the same evidence support or refute plaintiffs claim as well as defendants counterclaim?
Is there any logical relationship between the claim and the counterclaim (causal relationship)?
o Logical relationship if CC arises from same aggregate of operative facts upon which the claim rests activates additional
legal rights, otherwise dormant, in the defendant (Revere Copper & Brass, Inc. v. Aetna Casualty & Surety Co.)
Relationship between supplemental jurisdiction 1367 (same case or controversy) and Rule 13 joinder rules (same TorO)?
There will always be supplemental jurisdiction over a compulsory counterclaim; permissive counterclaims must have their own
jurisdictional basis
case or controversy might be broader than same transaction or occurrence
o Allows a small subset of permissive counterclaims to be covered by supplemental jurisdiction
o 1367(b) provides narrower supplemental jurisdictions based on diversity but only for plaintiffs
Defendants can make counterclaims, which are governed by Rule 13. If the view is that same transaction or
occurrence is considered to be narrower than 1367s same case or controversy, then in order for the
counterclaim to be compulsory and part of the suit, it would already meet the requirements for 1367.
Great Lakes Rubber Corp. v. Herbert Cooper Co. (3d Cir. 1961, p.747): P sued D on several unfair competition claims later
determined as not arising under federal law; D counterclaimed with an antitrust claim. Ps claims dismissed for lack of SMJ and Ds
counterclaims remained. P then counterclaimed with original claims; compulsory counterclaims b/c the same facts and law.
CROSS-CLAIM Rule 13(g)

Rule 13(g): cross claim is not a third-party claim or an impleader, but it can include a claim that the coparty is or may be liable to the
cross-claimant for all or part of the claim (cross-claim between the Ds)
STANDARD: same transaction or occurrence as the subject matter of original suit (not derivative liability standard)
27

JOINDER OF PARTIES
*When adding parties, you also add claims.
BY PLAINTIFFS Rule 20
Rule 20: sue multiple defendants from the same transaction or occurrence, or series of transaction or occurrences, and have to
have a common question of law or fact
BY DEFENDANTS IMPLEADER Rule 14

Rule 14(a) allows a D to assert a claim against anyone not a party to the original action if that third partys liability is in some way
dependent upon the outcome of the original action (secondary liability to the original D) (Barab v. Menford). A third party can only
be impleaded if the claim is not a separate or independent claim.
is or may be liable to it for all or part of the claim against it (REIMBURSEMENT)
Cant implead if him not me and trying to remove fault from yourself
Can implead if clear joint tortfeasors w/ right of contribution (reimbursement) b/c the D, if could liable, could then sue third
party D (joint tortfeasor) for contribution or indemnification agreement
o State law determines whether there is derivative liability, allowing for right of contribution, in order for them to be
proper impleader (found in tort law or contractual indemnification agreement that grants reimbursement)
Federal courts have discretion in determining the propriety of a third party complaint, and in making its determination, a court
may consider the burden upon the litigation, as well as the merit of the complaint and the efficiency in adding TPD
Advantages for D:
o Gives D a way of joining anyone else who might help them foot all or part of the damages
o Gives D a way of delaying the case and making litigation more expensive for the P by adding another party
Rule 14(b): When a claim is asserted against a P, the P may bring in a third party if this rule would allow a D to do so
Price v. CTB, Inc. (M.D. Ala. 2001, p.755): P sued Latco (builds chicken houses) for state law claims. Latco impleaded ITW (nail
manufacturer). AL law doesnt allow right of contribution for joint tortfeasor, but Latco could get reimbursed through implied
contractual indemnity. Court holds that impleader is proper (can get reimbursement).
GROUNDS FOR OBJECTING IMPLEADER
Substantive law doesnt allow an action for indemnity or contribution
Allowing impleader will unjustifiably increase delay or expense
JURISDICTION
Personal jurisdiction: in most circumstances, the TPD will have been involved in the transaction or occurrence that led to the
original claim, so minimum contacts are established (specific jurisdiction) if in the state where the TorO occurred
o Rule 4(k)(1)(B): 100-mile bulge rule give extra reach for people joined under Rule 14 or 19 (pinky reach)
Subject matter jurisdiction: supplemental jurisdiction 1367 (same case or controversy)
Larson v. American Family Mutual Insurance Co. (CO 2007, p.26) Case remanded to state court b/c complete diversity was
destroyed when the P amended the complaint to join a former attorney as defendant. It would waste judicial resources to have two
separate suits b/c the same evidence would be presented and the claims arose out of the same series of transactions or occurrences
(allegation of collusion between insurance company and attorney made it so that P could not file his claim against the insurance
company) and there was a common question of fact/law (failure to disclose they were in negotiations with each other).
th
Kroger v. Omaha Public Power District (8 Cir. 1975, p.762): P filed sued for wrongful death by electrocution. Omaha impleaded
Owen Equipment. P amended complaint to add Owen as a D. Omaha granted summary judgment b/c they were just the electricity
supplier and Owen actually owned the equipment that caused injury. Two years later, Owens principal place of business was
revealed to be Iowa, destroying diversity. Court refused to grant Owens motion to dismiss (fairness grounds and Zielinski reasoning)
even though SMJ was not waived. Court of Appeals held that supplemental jurisdiction extended to Ps claim against Owen.
Owen Equipment & Erection Co. v. Kroger (1978, p.766): SC held that there was no supplemental jurisdiction b/c complete diversity
is required between each P and each D.
28 U.S.C. 1359: A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been
improperly or collusively made or joined to invoke the jurisdiction of such court.
28

COMPULSORY JOINDER Rule 19
Third parties who are necessary to the litigation (not looking to intervene), without whom the case would be dismissed. Ds
motivation is to dismiss the case.
EXAMPLES where parties are necessary to a suit involving:
An obligation on which two or more persons are, originally or by assignment, either joint obliges or joint obligors, but not all
joint obliges or joint obligors are joined as parties
Ownership of, or interests in, real or personal property in which some persons claiming an interest (for example, joint
owners, lessees, mortgagees, mortgagors, lienors, and holders of equity of redemption) are not included as parties
Representative parties in which either the representative or some of the parties being represented are not included
Claims to a limited fund or pool of assets, such that potential claimants who are not parties will find the funds depleted
when their cases are heard
MACHINE
1) Required?
19(a)(1)(A): in that persons absence, the court cannot accord complete relief among existing parties
19(a)(1)(B)(i): person claims an interest related to subject of suit and impair and impede the persons ability to protect
the interest
19(a)(1)(B)(ii): person claims an interest related to subject of suit and leaves an existing party subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest
2) Joinability? Is there jurisdiction?
Is there PJ over the party?
Is there SMJ over the party? Usually there is SMJ b/c of supplemental jurisdiction.
3) Indispensible? Are you REALLY required?
19(b): when a joinder is not feasible and the person is required , the court must determine whether, in equity and good
conscience, the action should proceed among the existing parties or should be dismissed
Extent a judgment rendered in the persons absence might prejudice that person or existing parties;
The extent to which any prejudice could be lessened or avoided by (A) protective provisions in the judgment
(B) shaping the relief; or (C) other measures
Whether a judgment rendered in the persons absence would be adequate
Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder
Temple v. Synthes Corp. (1990, p.771): P sued D (manufacturer of plate and screw device) used by a doctor (sued separately in
state court). D tried to dismiss the case for failure to join the doctor and hospital in the suit (12(b)(7)). SC held that while joining the
doctor and hospital to case would promote judicial economy, it was not required under Rule 19 b/c they were a permissive party.
The doctor and hospital were not required b/c the P could get all the damages relief from Synthes and Synthes could then sue the
doctor and hospital if found to be joint tortfeasors, they can protect their interests in state court and no res judicata, and there is no
possibility of inconsistent judgments b/c monetary judgment that they could get reimbursed for from contribution suit.
th
Heizbergs Diamond Shops v. Valley West Des Moines Shopping Center (8 Cir. 1977, p.774): Court held the compulsory joinder was
not necessary b/c there was no PJ over Lords and they were not indispensible to the suit. Not having Lords in the suit didnt
prejudice Lords and the inconsistent judgments that might result were a direct result of VWs conduct in executing two inconsistent
leases for full line jewelry stores. Absence of Lords would also not prevent P from getting full relief b/c they can get it from VW, but
Lords is required b/c failure to join would impede their ability to protect their interests.
INTERVENTION Rule 24
Can intervene if given an unconditional right to intervene by federal statute or claims an interest relating to the property or
transaction that is the subject of the action (may impair or impede the movants ability to protect its interest)
29

CLASS ACTIONS Rule 23
CLASS CERTIFICATION (TANC)
Rule 23(a) Requirements
1) 23(a)(1): Numerosity is established if the class representative can show that enough persons are in the class to make joining
them as individuals impractical (typically consist of at least hundreds of persons)
2) 23(a)(2): Commonality is jargon for the idea that the class should be a classthat it should consist of persons who share
characteristics that matter in terms of the substantive law involved-->common question of law or fact
Some differences are ok, but as long as there is a common question of law or fact that is the central issue
3) 23(a)(3): Typicality is the requirement that class representatives stand, in significant respects, in the same shoes as the
average class member (same incentives and motivations as the average class member)-->claims or defenses of the
representative parties are typical
4) 23(a)(4): Adequacy has been measured in several ways-->fairly and adequately protect the interests of the class (both the
class rep and the lawyer) VERTICAL PRIVITY
Class representative must have 1) common interests with unnamed members of the class and 2) representative
will vigorously prosecute the interests of the class through qualified counsel (Senter v. General Motors, Corp).
Lawyer should have no conflicts, qualified, and equipped with sufficient support and resources to handle the case
What is the difference between commonality and typicality?
Commonality: comparison of each class member against the others. Take the extremes (range) and then see if there is
something relevant (fact or law) that is common to each of the members
Typicality: is this one class representative somehow typical of the distribution of the class. Does one represent the entire class
(nothing that makes it gives the representative a different motivation or incentive). There can be differences, but the
differences can't make it so that the representative becomes atypical of the class.
Substantive law provides range of commonality (e.g. discrimination gives the common range of those who are discriminated against)
Rule 23(b) Classification
23(b)(1): larger version of Rule 19
(A) Stop incompatible judgments and assure that similarly situated parties are treated alike
(B) Practically dispositive of interests of parties not in suit, or impair or impede ability to protect interests (prevent breaking
the bank)
23(b)(2): provides for class actions where the party opposing the class has acted or refused to act on grounds that apply generally
to the class.
Intent of the drafters is that this applies to civil rights claims
Primary relief must be injunctive or declaratory relief; can get small amount of $ for attorney fees
23(b)(3): comprises all class actions not captured in 23(b)(1) or 23(b)(2); in particular it includes all claims in which the plaintiffs are
seeking monetary damages (both damages and injunction)
small claims lawsuits in which many persons allege small amounts of damage
mass tort (airplane crash, hotel fire, exposure of hundreds of thousands of workers to asbestos fibers)
Advantages:
o Plaintiffs: increased bargaining power from aggregation and prospect of a single overwhelming damage judgment
o Defendants: consolidation of suits that would have been brought even without the class action, efficiency, and the
possibility of global settlement
Factors:
o (A) the class members' interests in individually controlling the prosecution or defense of separate actions;
o (B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
o (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
o (D) the likely difficulties in managing a class action
Requirements
o Superior commonality: questions of law or fact common to the members of the class must predominate over any
questions affecting only individual members; and
o Superior method: class action must be superior to other available methods for the fair and efficient adjudication of
the controversy, and
o Notice must be given to all members who can be identified through reasonable effort and each member has the
option to be excluded from the class (Rule 23(c)(2)(B)) at the plaintiffs expense
30

Communities for Equity v. Michigan High School Athletic Assn. (W.D. Mich. 1999, p.803): Gender discrimination against female
sports programs. Ps class was all present and future female students enrolled in MHSAA member schools who participate in
interscholastic athletics or who are deterred from participating in interscholastic athletics because of Ds discriminatory conduct and
who are adversely affected by that conduct. Court granted class certification as a 23(b)(2) class.
Numerosity: thousands of female high school athletes and would-be athletes
Commonality: overarching question of whether D violated Title IX, Equal Protection Claus of the Fourteenth Amendment, etc.
Typicality: alleged harms are suffered by all the members of P and class representative (broad-based attacks on discrimination if
there was proof of an underlying policy of discrimination)
Helped that Ps were an association
Adequacy of representation: counsel is experienced in litigation, and Title IX litigation specifically
What about those in the class who like the status quo? OK b/c their interests are adequately represented by the Ds and the class
is limited to only those who are adversely affected by the discrimination
Achieving relief might come at the expense of others (financial constraints that prevent equality). Courts should defer
consideration of sub-issues until the relief stage
th
Heaven v. Trust Company Bank (11 Cir. 1997, p.811): Requirements for certification were met (numerosity, commonality,
typicality, adequacy). Class could not be classified. Not a (b)(2) class b/c they were seeking monetary damages. Not a (b)(3) class
because D would make counterclaims to particular Ps for debt collection, so counterclaim Ds would have to present individual
defenses (separate factual determinations), interests of some of the class members in controlling their own case would be
compromised, exposure as counterclaim Ds could exceed the amount they might recover for statutory penalties as class members,
and statutory claims asserted by the class would be against interests of the individual class members. Doesnt satisfy 23(b)(3)(D).
CHALLENGE OF ADEQUACY OF REPRESENTATION
Satisfaction of state laws does not mean that the federal laws are satisfied.
*Virtual representation connection: the class couldnt have adequately represented someone whose interests are against those of
the class (diametrically opposed) and therefore violates the Fourteenth Amendment Due Process rights
Hansberry v. Lee (1940, p.816): IL supreme court said that suit 1 was a class action and the Hansberrys were adequately represented
(got their day in court). SC held that the class did not adequately represent the interests of the Hansberrys. (*Note that SC cant
say that it wasnt a class action b/c they have to look to IL state law re class certifications b/c IL Supreme Court is the ultimate
authority of IL state law; SC can only ask whether the state law violates the federal law.) Inadequate representation by a class
violates the Fourteenth Amendment Due Process Clause. There was no intent by the parties to be a class action, just individuals,
and there was a sufficient group of people who did not want the racially restrictive covenant to be enforced. No IP on the
Hansberrys b/c they must have their day in court.
Gonzales v. Cassidy (5th Cir. 1973): An unnamed member of a class was not precluded from bringing a later action even though an
earlier class action had failed. The named plaintiff in the earlier action had succeeded in securing relief for himself; at that point, the
second court ruled, he had become an inadequate representative of the class by failing to appeal. Failure of the plaintiff in the
second action to intervene in the first action for the purpose of appealing was held not to be fatal to his argument that the first
decision should not bind him
APPEAL
Rule 23(f) allows appeal of class action certification ruling within 14 days of the decision
31

JURISDICTION
SUBJECT MATTER JURISDICTION
1331: SMJ not a problem b/c there is arising under jurisdiction
1332: Diversity jurisdiction and class actions
CITIZENSHIP: Only the citizenship of the class representative matters in determining citizenship of the P (Supreme Tribe of
Ben-Hur v. Cauble (1921))
AMOUNT IN CONTROVERSY:
o Smaller claims that dont meet the amount in controversy requirement under 1332 allowed so long as the class
representative satisfied the amount in controversy requirement (Exxon Mobil Corp. v. Allapattah Services, Inc.)
PERSONAL JURISDICTION
Phillips Petroleum v. Shutts (1985, p.822): Ps filed suit in KS but most of the class members didnt live in KS. There were 28,100
class members, 1,500 were excluded b/c notice couldnt be delivered and 3,400 opted out of the class. Court held that KS had
proper jurisdiction over the absent class plaintiffs but was not proper in only applying KS state law to all Ps (must follow the
constitutional limitations in applying a particular state law to an out of state P). The class action P is in a different position from an
out of state D b/c the D must defend themselves in the forum, may be forced to participate in extended and costly discovery and
comply with remedy. Class action P has their interests protected by the judge (during certification) and the class representative.
They are almost never subject to counterclaims or cross-claims, or liability for fees or costs and an adverse judgment will not
typically bind an absent Ps claim. Court also said that notice was sufficient b/c it described the action and the Ps rights and
provided for an opt-out option.
NOTICE TO PLAINTIFFS [see NOTICE]
23(c)(2)(B): Mandatory individual notice and opt out for (b)(3) classes
P bears the cost of notice, even if expensive; and requires individual notice to all identifiable class members
23(c)(2)(A): Optional notice to (b)(1) and (b)(2) classes
(b)(2) classes: no notice if individual P sues b/c the consequences are the same (change in policy/practice); might not want
to put burden on civil rights litigants to provide notice to all the class members in a civil rights case
23(d)(1)(B): allows court to order appropriate notice to come or all members of a class
23(e)(1): notice optional
SETTLEMENT OF CLASS ACTIONS Rule 23(e)(1)

Notes:
Motion to certify class action and settlement agreement can be filed at the same time, so that once the class action is
certified, the settlement agreement is also reviewed.
Deep anxiety about notice and adequacy of representation
Res judicata at bargain basement prices, especially for those who didnt even know there was a class action
32

ERIE DOCTRINE
ONLY APPLIES TO FEDERAL COURTS SITTING IN DIVERSITY
POSITIVE LAW
QUESTION: Whose law applies? Federal courts sitting in diversity (for state law claims) must apply state law b/c of the RDA.
RULES OF DECISION ACT (28 U.S.C. 1652): requires that federal courts apply state law in appropriate cases, when it applies
RULES ENABLING ACT (28 U.S.C. 2072): empowers the Supreme Court to prescribe general rules of practice and procedure and
rules of evidence for cases in the district courts so long as the rules dont abridge, enlarge, or modify any substantive right.
Rules v. statutes: Rules have the power of statues, but can only deal with practice and procedure; Statutes can deal with any
topic that the Constitution allows Congress to deal with.
Swift v. Tyson (1841): NY precedent cases (common law) were not law under the Rules of Decision Act so federal courts sitting in
diversity only had to apply state written law and were free to exercise independent judgment as to what the common law of the
state is or should be.
Brown & White Taxi v. Brown & Yellow Taxi (p.226): P reincorporated in another state to invoke diversity b/c federal courts
might enforce a contract that wouldnt be enforceable under state law (follows Swift reasoning).
MACHINE
What is the result if state law applies? What is the result if federal law applies?
Identify the difference between the state and federal outcomes? Is there a collision?
If there is a collision, federal law is almost always supreme, BUT there may be an internal surrender provision in federal
law, in which instance, the state law would be applied rather than the federal law.
o U.S. Constitution? Supreme law of the land, so apply the Constitution (Supremacy Clause)
o Statute? If constitutional, then the federal statute is valid and would apply
o FRCP? Consistent with REA and the constitution? Then FRCP applies
o Federal common law/practice: Federal courts have embedded in the federal law an internal surrender provision
that would apply in certain circumstances, such as when there is a collision between state and federal common
law/practice.
Guaranty Trust Outcome determination
Byrd Federal interests
Hanna Twin aims of Erie
ERIE NO FEDERAL COMMON LAW

Erie Railroad v. Tompkins (1938, p.225): overruled Swift v. Tyson and federal courts in diversity must apply state substantive law;
law in the RDA means both the written law and the state common law. There is no general federal common law.
Statutory arguments: law professor says laws include common law in a law review article
Policy arguments: Increases forum shopping and discrimination b/c it was helping non-citizens take advantage of the citizen.
They could arbitrage in a way that the citizen couldnt (non-citizen has vertical flexibility between state and federal court but the
citizen doesnt b/c if there is no diversity, then no federal court and cant remove to federal court b/c of local defendant rule).
There was no uniformity between the state and federal courts.
Constitutional arguments: Federal courts arent conferred the power to create state substantive common law b/c federal
government is a government of limited power and they received power from the states when the Constitution was ratified. Just
because the federal courts werent granted the power to make up federal common law doesnt mean that there isnt a federal
common law (Congress has power under the Commerce Clause).
Concurrence: Federal courts still have the power over procedure (but no one doubts federal power over procedure).
FEDERAL COMMON LAW EXISTS!
Areas where the federal courts have exclusive jurisdiction (admiralty and maritime, bankruptcy, securities, etc.)
Textile Workers v. Lincoln Mills: Taft-Hartley Act gave federal courts jurisdiction to hear labor-management disputes
Res judicata
Substantive v. procedural?
Hanna says FRCP are the procedural rules that must be used in federal courts (the Erie rule has never been invoked to void a
Federal Rule which covers the point in dispute)
33

OUTCOME DETERMINATION
Guaranty Trust Co. v. York (1945, p.233): Issue was whether NY statute of limitations applied to a suit for alleging misrepresentation
and breach of trust. If state law applied, then the suit would be barred b/c it ran the statute of limitations. If federal law and the
court used equity, then it might not bar the suit. Court held that NY state law applied and the suit was barred. Whether the
difference is procedural or substantive is immaterial, the real question is whether the differences in law between state and federal
significantly affects the result of litigation with different outcomes. In this case, the statute of limitations difference was outcome
determinative, so therefore they used state law.
Intent of Erie was to insure in all cases where a federal court is sitting in diversity, the outcome in the federal court should be
substantially the same, so far as legal rules determine the outcome of litigation, as it would be if tried in state court.
The predictable outcome for an outcome determination test is that state law would always win:
Case
Burlington North R. v. Woods

(1987)
Steward Org. v. Ricoh (1988)
Gasperini v. Center for Humanities, Inc.

(1996)
Practice at
Issue
Is defendant who stays damage

Is forum selection clause enforceable?
judgment but loses appeal liable for
10 percent penalty?
Must federal circuit court decide if

damages exceed "reasonable
compensation"?
State
Practice
Yes: AL statute (frivolous or not and

is mandatory)
No: AL case law

State law: forum selection clause in a contract is
not enforceable
Yes: NY statute requiring such review by

state appellate courts
Federal
Practice
Fed. R. App. Proc. 38 (discretionary

award of extra costs for frivolous
appeal)
Federal law: FRAP 38: "If a court of
appeals shall determine that an
appeal is frivolous, it may award
just damages and single or double
costs to the appellee." (frivolous
and discretionary)
28 U.S.C. 1404
Federal law: transfer 1404(a) motion to transfer
on the basis of forum selection clause is possible
(not mandatory; allows transfers in the interest of
justice to districts where the case may have been
brought)
Reexamination clause of Seventh

Amendment
Held:
Federal practice - no penalty
Federal practice - ignore state case law, give

substantial weight to clause
Modify federal practice - by allowing

district courts to examine verdicts for
excessiveness
Explanation
"[T]he Rule's discretionary mode of

operation unmistakably conflicts
with the mandatory provision of
Alabama's affirmance penalty
statute."
"[Sec. 1404] is intended to place discretion in the

district court to adjudicate motions for transfer
according to an 'individualized, case-by-case
consideration of convenience and fairness'" and
trumps state's blanket rule.
Unlike Byrd where, "the Court faced a

one-or-the-other choice: trial by jury
according to the federal practice[, here]
the principal state and federal interests
can be accommodated" by district court
review.
Collision
between
state and
federal law?
Yes; FRAP 38 directly collides with

state law; thus FRAP 38 controls
(Hanna)
Yes; 1404 directly collides with the state law re

forum selection clauses; thus 1404 controls
FEDERAL INTERESTS
Byrd v. Blue Ridge Electric Cooperative (1958, p.237): Byrd was hired as an independent contractor and was injured on the job. D
wanted to classify him as a statutory employee, and would therefore be barred because of workers compensation. Under SC law,
the judge would decide the issue of Byrds employment classification and in federal court the jury would decide. Court decided not
to follow state law even though the outcome may differ because of the strong public policy interest in maintaining the judge-jury
relationship established under the Seventh Amendment. Therefore, federal law applied.
QUESTIONS:
(1) Is the state practice bound up with the definition of the rights and obligations of the parties?; If so state law governs.
(2) Even if it isnt part of the substantive rights and obligations, would its application determine the outcome of the case?
(3) If so, are there affirmative countervailing considerations of federal judicial administration present?
34

TWIN AIMS OF ERIE
1) Discouragement of forum shopping
2) Avoidance of inequitable administration of the law: patterns of federal practice that regularly result in different applications of
what is nominally the same substantive law, such as federal courts pre-Erie willingness to enter injunctions in situations where state
courts would not
Hanna v. Plumer (1965, p. 240): MA law provided that suits required personal service of process on defendant served as executor of
an estate. Process was instead served under Rule 4(e)(2)(B), which allowed for the summons and complaint to be left with a
competent adult at the residence of any D. D was served following the FRCP. Court held that FRCP governs when in federal court,
even if sitting in diversity. Procedural determinations are always going to be outcome determinative b/c states and federal courts
have different procedures, but the court rejects outcome determination because outcome determination must be measured in light
of the twin aims of Erie. Federal courts sitting in diversity must apply federal procedural laws and state substantive law (FRCP is
sacred and should be used so long as no rule violates the Constitution or the REA). Outcome determination is important, but that
doesnt mean that you dont apply the FRCP. Congress was given this power, valid and controls. Immunizes FRCP.
SEMTEK MARRIAGE OF RES JUDICATA AND ERIE

Semtek Intl. Inc. v. Lockhead Martin Corp. (2001, p.248): P filed suit in CA state court for breach of contract and various torts; case
removed to federal court based on diversity and then dismissed b/c it was barred by CAs two year statute of limitations (on the
merits and with prejudice). Case was refilled in MD state court, which has a three year statute of limitations. Case was dismissed
b/c of claim preclusion. SC held there was no preclusive effect to the dismissal from CA federal court b/c CA law would preclude.
Res judicata: Full Faith and Credit Clause (Article IV 1) and 1738 dont apply b/c the first court was federal. MD state court
must respect the CA federal courts judgment because of the Supremacy Clause (Article VI, cl. 2).
Erie: No federal law on point. Rule 41(b) is not a claim preclusion rule, it just means that a dismissal without cause (except for
lack of jurisdiction, improper venue, or failure to join a party under Rule 19) is a dismissal with prejudice. Must then look to
state preclusion law to determine what dismissal with prejudice means and whether a dismissal with prejudice is given claim
preclusive effect. In this case, according to state claim preclusive law, the dismissal with prejudice barred filing the same claim in
the CA district court and would not be given preclusive effect. Dupasseur still applies to diversity cases.
Take away: When a federal court is sitting in diversity, federal res judicata law applies. Federal res judicata law makes you apply
state res judicata law UNLESS there is a countervailing federal interest (Byrd).
*Semtek clarifies that Guaranty Trust, Byrd, and Hanna are all still considered good law re: Erie Doctrine.
Dupasseur v. Rochereau (1875): Held that the res judicata effect of a federal diversity judgment is such as would belong to
judgments of the State courts rendered under similar circumstances, and may not be accorded any higher sanctity or effect.
COMPLICATIONS
Complications arise when federal courts try to predict what a state court will do in a particular situation, especially when there is no
precedent on point.
Salve Regina College v. Russell (1991): federal court of appeals required to review de novo district courts determination of
state law. Federal courts are then trying to predict what state courts would decide in the same situation
Pierce v. Cook & Co. (10th Cir. 1975): there were two cases, one in federal court and the other in state, arising out of one
collision. There were two different results from the federal and state courts. Ps moved to vacate the federal appellate decision
(SJ for D) under Rule 60(b). In setting aside the judgment, the court of appeals emphasized that there were divergent results
from a common vehicular accident and the Ps had been forced into the federal courts and received substantially different
results in the federal courts than they would have in the state courts (violation of Erie).
DeWeerth v. Baldinger (2d Cir. 1994): Rejected Rule 60(b) attempt to reopen final federal judgment b/c Erie doesnt allow the
proposition that a plaintiff is entitled to reopen a federal court case that was closed for several years in order to gain the benefit
of a newly announced decision of a state court, a forum in which she specifically declined to litigate her claim
Certification: the federal court asks the state supreme court for an answer to a question about state law
o Problems b/c many states dont have a certification procedure, and when available, the results are unsatisfactory
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CIVIL PROCEDURE OUTLINE 2010 - Kang

SUBJECT MATTER JURISDICTION

FEDERAL QUESTION 28 U.S.C. 1331