1

Adam Midkiff
Civil Procedure Outline
Table of Contents
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.

Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Personal Jurisdiction Analysis . . . . . . . . . . . . . . . . . . . 5
Notice . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Service of Process . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 6
SMJ . . . 7
Venue . . . . . . . .. . . . .13
Choice of Law Erie... 16
Preclusion .19
Attacking Jurisdictional Defects ..22
Amendments ..23

I.

Personal Jurisdiction
A. Definition: The power of a court to adjudicate over a person. Personal
Jurisdiction comes in the types listed below.
1. In Personam: Jurisdiction exercised over the defendant
themselves. Once a judgement has been rendered, the
defendant owes a debt to plaintiff. Any various amount of
property owned by defendant can be used to fulfill the debt.
2. Pure-In-Rem: Involving a dispute over Ownership of the
property, the jurisdictional predicate is the property. The suit
purports to determine the ownership interest as to every person
in the world.
3. Quasi-In-Rem (2 types)
i. Related: The action is commenced against property that is
related to the claim, typically related to the ownership of
the property. This is a suit simply between the parties. [So
unlike Pure-In-Rem, it does not bind everyone in the
world to the decision].
ii. Unrelated: The action is brought against property that is
unrelated to the claims but done simply to bring the suit.
Done when there is no way of getting in-personam. Simply
a work around.
B. Long-Arm Statutes
1. The framework of due process requires that a state legislature
grants P.J. to the full extent of due process. P.J. does not
automatically extend to what is constitutionally allowed. A state
legislature must allow the courts to exercise jurisdiction up to
the amount allowed by due process.
C. Full-Faith and Credit: The valid judgements of one state, are entitled
to enforcement in the courts of other states.

1. In effect, if a defendant only has $20,000 of a $30,000 judgement

in State A, then plaintiff can ask State B, where defendant has a
small property, and have State B auction it off for the remaining
money. Only happens if State A had valid jurisdiction over
defendant.
D. Spectrum of Contacts from Intl Shoe
1. Requirement of Minimum contacts with the forum states
such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.
2. There are two separate distinctions here: Contact and Fairness.
Be sure to have both of them.
3. The table below examines the test for minimum contacts. It
examines both:
i. level activity of the defendant in forum; and
ii. whether the claim asserted against the defendant is
related to the defendants activities in the forum.
4. Below Chart represents the various levels
Continuous and
Systematic

Isolated

Contacts related to the

cause of action

Box 1: P.J

Box 4: Sometimes P.J.

Contacts are unrelated to

the cause of action

Box 3:

Examples: (WWVW;
Box 2: No P.J.

Sometimes P.J.

5. Box 1 and 2 represent straightforward answers.

6. Box 3: This is generally considered General In Personam
Jurisdiction. Of course; The contacts must rise to this level of
general jurisdiction by having a high level of interactions.
[Reviewed Below].
7. Box 4: Isolated contact and related actions.
8. Sometimes there are no contacts, and these situations result in
no Personal Jurisdiction (See Denckla).
E. McGee v. Intl Life Ins. Co.

1. The single contact of the Texas Insurance company with McGee

and his life insurance was enough to provide minimum contacts
for personal jurisdiction.
F. Hanson v. Denckla
1. Court found a trustee (in Delaware) who was looking over a
womans trust from Penn, but had lived in Florida for some time,
to not be subject to P.J. in Florida. The bank never Purposefully
availed itself to the courts on Florida. The woman moved
unilaterally and bank did not have say in that decision.
G. Unrelated Quasi-in-rem (Shaffer v. Heitner)
1. When the property is unrelated to the injury, the minimum
contacts and fairness standard from Intl Shoe and its progeny
must be shown.
H. Fairness Standard (WWVW and after)
1. Only after determining that Minimum Contacts have been met,
must the court consider the fairness of having the case. Even if a
case is overwhelmingly fair, there cannot be P.J. if there are not
minimum contacts.
2. Five Factors to determine fairness
i. The burden on the defendant
ii. The forum states interest in adjudicating the dispute
iii. The plaintiffs interest in obtaining convenient and
effective relief
iv. The interstate judicial systems interest in obtaining the
most efficient resolution of controversies
v. The shared interest of the several states in furthering
fundamental substantive social policies.
3. Seems that threshold is that of not being unreasonable.
4. Asahi on fairness.
i. In the case the opinion of the court found the assertion of
P.J. over Asahi to be unfair.
a. Litigation thousands of miles away was sever
hardship
b. The only issue was between the two foreign
companies. No major interest for Cali to decide

c. Seems prongs 4 and 5 are not met either, we dont

want American courts to decide disputes between
foreign companies.
I. Calder effects-test
1. A defendant can establish minimum contacts by intentionally
causing an effect in the forum state, without actually entering
the state. [Seems to relate only to tortious claims like libel].
2. Walden: Clarified that Calder required one knew or should have
known that his words would have a devastating impact through
libel, furthermore he had some more contacts related to his
authorship.
J. Stream of Commerce Theory (Asahi and McIntyre)
1. Asahi (There was no Majority, Oconnor had 4 votes; Brennan
had 4 votes; Stevens wrote alone)
i. OConnor View (4): No Minimum Contacts here. Simply
putting a product into the stream of commerce is not
enough. Purposeful availment requires additional conduct
to induct intent or purpose to serve the market in the
forum state. Examples:
a. designing the product for the forum state market,
b. advertising in the forum,
c. establishing channels for giving advice to
customers in the forum
d. Marketing through a distributor who agrees to
serve as the sales agent in that forum.
ii. Brennan Theory (4): There were contacts here
a. As long as a defendant places a product in the
stream of commerce and is aware that the final
product is being marketed in a forum, the chance of
a suit there isnt surprising to defendant. Litigation
wouldnt impose a burden for which there was no
benefit.
iii. Justice Stevens: Thought that the obvious unfairness of
the case meant the contacts need not be examined
(contrary to the two step WWVW approach)

II.

2. McIntyre (No majority: Kennedy with 3 others rejecting; Breyer

with 1 other concurring in rejection; Ginsburg dissent accepting
jurisdiction with 2 others.)
i. Kennedy (4): No contacts. Placing goods into stream of
commerce is itself not sufficient. PJ possible only where
the defendant can be said to have targeted the forum. It is
not enough that defendant may predict that its goods will
reach the forum state.
ii. Breyer (2): No contacts. There was no regular flow of
products from McIntyre into New Jersey. For some reason
doesnt believe that a single isolated sale, even if done in
an effort this way, is sufficient [Ignoring McGee].
Essentially a flow is more than the first few machines. So
first couple of machines do not establish contact.
iii. Ginsburg (3): P.J. Contacts sufficient. If a manufacturer
sales finished products to a forum nation, and can control
where the machines end up, such as in new jersey, then
that is sufficient contact.
K. Agency for Receipt of Service of Process
1. One can explicitly authorize an agent to receive process in a
forum state
2. Laws can be passed that appoint an agent [implicitly] (Hess v.
Pawloski)
L. General Jurisdiction
1. Such continuous and systematic ties with a forum that the
defendant is Essentially at home in the forum.
i. Examples: A persons place of domicile
ii. A corporations place of incorporation
iii. A corporations principal place of business.
Personal Jurisdiction Analysis
A. Statutory
1. Determine whether a state statute actually allows Jurisdiction.
2. Examine if in personam the long-arm statute carefully
B. Constitutionality
1. In-Personam cases

III.

i. Run through the Intl Shoe analysis for pretty much

everything
ii. Traditional Bases service of process in person in the
forum, consent, or residence.
a. Remember Burnham split
b. Unrelated quasi in rem requires the intl shoe tests
iii. Nonresidents and non traditional
a. First Use WWVW as guide for minimum contacts.
i. Purposeful availment
ii. Foreseeability of being subject to suit in the
forum
b. Then do fairness test mentioned in WWVW and
elaborated on in Asahi
2. In-Rem
i. Use Shaffer to start the Intl shoe test here.
a. Having property here generally satisfies the test of
minimum contacts.
3. Quasi-In-Rem
i. Still use Shaffer and thus Intl Shoe test
ii. Much like In-rem if the proceeding is related to the
ownership of an item
iii. Furthermore if the issue is unrelated, when the property
attached caused the injury of the plaintiff there are
probably minimum contacts.
Notice
A. Definition: A defendant must be given adequate notice under Due
Process
B. Constitutional Standard (Focus on Method)
1. Mullane Standard: Notice must be reasonably certain to reach
most of those interested in objecting.
2. Dusenbery: A defendant need not actually receive notice, notice
only needs to be reasonably calculated to succeed.
3. Greene v. Lindsay: Notice posted to the premises of a tenant who
is being evicted is not proper. Not reasonably calculated to
succeed because the papers could be torn down by other people.

IV.

4. Notice can be received, but if the method poor, still be

unconstitutional.
Service of Process (Rule4)
A. Who

1. The plaintiff is responsible serve the summons and complaint.

Any non-party who is at least 18 years old may serve.

B. Time Limit

1. 120 days from filing the complaint in federal court.

2. If there is good cause why the plaintiff did not make a timely
service the court must extend the time for service for an
appropriate period.
3. If service not made in time limit the case is dismissed without
prejudice.
C. Methods

1. In the U.S.
i. Leave the summons and complaint at the defendants
usual place of abode with a person of suitable age and
discretion who resides there
ii. Deliver the summons and complaint to an agent
appointed by defendant or authorized by law to receive

2. Outside the U.S.

i. Use any manner which is reasonably calculated to give

notice. Follow agreement with foreign nation.

3. On corporations in the U.S.

i. Deliver to an officer, managing agent, general agent, or an

agent appointed or authorized by law.

4. Corporations outside the U.S.

i. Any methods.

D. Waiver of Service:

1. A plaintiff can send a waiver with a copy of the complaint, two

copies of waiver, and prepaid means of returning the form. Must
give defendant 30 days after the request was sent to return the
waiver.

2. If waived, defendant gets more time to answer the complaint

i. An incentive

3. Failure to waive service incurs the costs of service of process

onto the defendant .
V.

Subject Matter Jurisdiction

A. General
1. Is the power of a court to hear a case given the nature of the
dispute.
2. Subject Matter Cannot be waived or agreed to by the parties,
unlike personal jurisdiction.
3. Objection to subject matter jurisdiction can be presented at any
time during the proceeding, including on appeal. The courts can
also take up the issue on their own, without being raised by the
parties.
B. Diversity of Citizenship: U.S. has judicial power over controversies
between Citizens of different States. Currently there are 2
requirements. (1) Complete Diversity and (2) Amount in Controversy
1. Complete Diversity (Strawbridge) [1332] There is no diversity
jurisdiction if any plaintiff is a citizen of the same state as any
defendant no matter how many parties are involved.
i. Constitutionally only minimal diversity is required, but
Congress has the power to set the standard and they
chose Complete Diversity.
2. Determining Party Citizenship: Domicile is determined at the
time the action is commenced.
i. U.S. Citizens: citizenship is based on their domicile.
Domicile is (1) permanent home with (2) intent to
remain there.
a. Change in Domicile: Occurs when one (1) takes
up residence in a different domicile and (2) has the
intention to remain there.
b. The intent to remain is based on facts and
circumstances, but mainly the party whose intent
to remain is in question has a lot of say in their own
intent. Obviously there are situations in which
reality trumps intention.
ii. Aliens [1332(a)(2)]: People who are citizens or subjects of
a foreign state.

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a. Permanent Residents: Treat like a citizen with

respect to domicile.
b. Temporary VISA folks: Treated as foreigners. Can
bring Diversity of Citizenship. (Mas case in which
Mr. Mas was a student, and not a domiciliary of
Louisiana because he was a student and did not
intend to remain there.)
c. There is no diversity jurisdiction in an action by
one alien against another, even if there are
Americans on their side of the suit. (H.K. Huilin
International Trade Co. Ltd. V. Kevin Multiline
Polymer Inc.)
iii. Representatives: People are sometimes appointed for
minors and such, when this is done we treat their
citizenship to be that of the person they are representing.
iv. Artificial Entities
a. Corporations: Either the state of incorporation or
the principal place of business
i. Incorporation: A corporation is a citizen of
each and every state in which it is
incorporated.
ii. Principal Place of Business: In Hertz v.
Friend, the court ruled that the principal
place of business refers only to the
corporations nerve center. There cannot be
more than one. A nerve center is the
Headquarters. The location where the
Officers direct control and coordinate.
b. Unincorporated Associations: Treated as an
amalgamation of their members. They take on the
citizenship of each member. So if 30 members in 30
states, then the association is a citizen of 30 states.
c. Insurers [1332(c)(1)]: They are treated as
corporations, but also as citizens of the state in
which the insured member of the suit is a citizen.

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3. Amount in Controversy[1332(s)] is the monetary value of a case

that must be exceeded to allow diversity jurisdiction.
i. Current Amount: $75,000
ii. The amount in controversy must be exceeded. $75,001
meets requirement but $75,000 does not.
a. Freeland: The amount was exactly $75,000
[100,000-25,000 = 75,000]. Case was dismissed.
iii. The amount is exclusive of interest and costs. Costs are
the expenses of litigation aside from attorney fees.
Interest means the interest that which is accrued because
of the delay in payment related to the suit.
a. Attorney fees can be included in the AIC if they are
recoverable
iv. Standard of Proof
a. The amount in controversy must be a number made
in good faith. You cant just go up there knowing
that you have a claim worth only $30 and claim
$75,001.
b. If AIC is challenged, then the party that is claiming
SMJ must only show that it is not a legal certainty
that the claim is less than $75,001.
v. Aggregation of Claims for AIC purposes
a. Individual Parties: Each individual can add up any
and all claims they have against the defendant.
b. Multiple Parties: Can only be aggregated when the
claims of the plaintiffs are common and indivisible
i. For example if P1 and P2 sue D for a car
accident. P1 sues $50k for personal injury.
P2 sues $30k for personal injury. Cannot be
aggregated these distinct personal injuries.
The injury to P1 is separate from the injury
to P2.
ii. Single Defendant suing P1 and P2 over a
battery that left him with $80k in dmg.
ALLOWED. Same injury/claim.
C. Federal Question Jurisdiction [1331]

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1. Intro: F.Q. Jurisdiction allows federal courts to exercise

jurisdiction over cases arising under the Constitution, laws, or
treaties of the United States. [Article III. 2.]
2. Constitutional Limit of F.Q. Jur.
i. Osborn v. Bank of the United States: As long as there is a
possibility that a federal ingredient might be injected
into the case there is F.Q. Jur. The court held that
Congress granted the federal courts jurisdiction in all
cases to which the bank was a party.
3. Statutory Limits of 1331
i. Well-Pleaded Complaint Rule: In assessing whether or not
there is F.Q. the court will examine the complaint and
ONLY look at the essential elements. If the essential
elements disclose F.Q. then SMJ, if not then no F.Q. and
no SMJ. [Mottley rule]
a. Do NOT look at the defenses, answers, or counter
claims.
b. Shorthand: Is the plaintiff attempting to vindicate
some right given by federal law? If yes, well pleaded
complaint test met.
ii. Declaratory Judgements and Well-Pleaded Complaint
a. To determine FQ in Declaratory Judgements, the
court looks at who the real plaintiff could have been
(either party in decl. judgement) and determine if
the claim of the plaintiff would have been a F.Q.
iii. In general: A suit arises under the law that creates the
cause of action. (Holmes Rule)
iv. Centrality of Federal Issue: IF a plaintiffs claim is
premised in (THE CAUSE OF ACTION ARISES UNDER)
state law, but has a federal ingredient that must be
reached in order to resolve the claim, then there is F.Q. for
SMJ.
a. Requirements of Centrality
i. The federal issue must be disputed by the
parties

13

ii. The federal issue must be Substantial and

implicate a substantial federal interest.
b. Grable: (1)Does a state law claim necessarily raise
a stated federal issue, (2) is it actually disputed and
(3)substantial, and (4) will it be entertained
without disturbing any congressionally approved
balance of federal and state judicial responsibility.
c. Empire: The case didnt implicate how federal
government/law would operate and the case was
triggered by a personal injury action launched in
state court. Empires claim was fact bound and
situation specific. NO F.Q.
d. Gunn: The malpractice suit was a state law claim,
and even though the case that is in question for
malpractice was one for federal patent law, there is
no FQ. The claim did raise a federal question that
was necessary. The issue is actually disputed.
However, it was not substantial to the claim of
malpractice. This is because even if the court found
that a different argument would have brought a
different result, the federal system would not have
been effected. It follows that the fourth req. is not
met because federal system should not effect the
states right to maintain standards of its
professionals.
D. Supplemental Jurisdiction [1367]
1. Definition: This type of jurisdiction occurs when an additional
claim to a suit already brought in federal court does not have
independent jurisdiction, but is brought in federal court along
with the claim that has original jurisdiction.
i. Only relevant if the additional claim does not have
diversity, alienage, or FQ for SMJ.
2. Constitutionality of Supp. [Gibbs Test]
i. Common Nucleus of Operative Fact (CNOF): If the claims
arise from a common nucleus of operative fact then there
is power to hear the case.

14

a. Claims arising out of the same transaction or

occurrence are always CNOF.
3. Statutory Supplemental Jurisdiction
i. 1367(a) Grants supplmenetal jurisdiction in the broad
terms meant to codify the Gibbs Test.
ii. 1367(b) Lays out the circumstances in which Supp. Jur.
Is not proper in diversity cases. Must meet a checklist of 3
items to deny supplemental jurisdiction
a. The claim must be founded on diversity and solely
diversity
b. The additional claim must be brought under
Federal rules in one of the following circumstances:
i. Claims by plaintiffs against persons made
parties under rules 14,, 19, 20, or 24
ii. Claims by persons proposed to be joined as
plaintiffs under rule 19.
iii. Claims by persons seeking to intervene as
plaintiffs under rule 24.
c. The exercise of jurisdiction over this case would be
inconsistent with the jurisdictional requirements of
1332 (violates complete diversity)
iii. 1367(c): Even if there is jurisdiction under 1367(a) or
(b), the court has discretion to not hear the claim in
consideration of special factors including but not limited
to:
a. The additional claim raises novel or complex issues
of state law
b. The additional claim substantially predominates
over the claim that invoked federal SMJ
c. The court has dismissed all claims over which it
has original jurisdiction
iv. Animating values of Gibbs: there were values similar to
1367(c) put forth by the court in order to establish
discretion of the courts. There is jurisdictional split on if
they matter. The animating claims are: considerations of
judicial economy, convenience, fairness to litigants. Most

15

courts dont allow them to be considered without at least

one factor of 1367(c).
v. Exxon Mobil Case
a. This case has really ruined my day. Seems like if
there is a breakdown in complete diversity as a
result of Supp. Jur. The case must be dismissed.
E. Removal Jurisdiction
1. Definition: This type of jurisdiction allows the Defendant who
has been sued in state court to remove a case to the federal
courts. Effectively allows the defendant to overrule the plaintiffs
choice of forum.
i. This is not a constitutional right but rather a statutory
law, so entire analysis is Statue based on 1441, 1446,
1447.
2. Grant of Jur rules
i. 1441(a) The provision of jurisdiction and venue for
removal cases. Any civil action brought in a state court
which the district courts of the United States have
original jurisdiction may be removed by the defendant to
the district court and division in the same place that the
case was brought in state court
a. For example: case brought in court of common pleas
in Cleveland over a federal employment act case,
the defendant can remove to the federal district
court for the northern district of Ohio.
ii. 1441(b) provides provisions for removal of Diversity of
Citizenship cases.
a. If an action has been brought in state court, and at
least 1 defendant is from that state, the case cannot
be removed
iii. 1441(c) IF a claim includes a federal law claim and a
state law claim and is removed from a state court, then a
court must examine if the state claim is constitutional
(either under original or supplmenetal jur.) to be heard. If
not the federal court the case is removed to must severe
the state claims and remand them back to State court.

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VI.

iv.
3. Some Procedural Rules
i. 1446(b)(2)(A) All Defendants must agree to the removal
of the case.
a. Plaintiffs cannot remove.
ii. 1446(b)(1) Defendants of 30 days from service of
process to file notice of removal.
iii. 1446(b)(2)(B) The 30 day to remove requirement runs
from the last-served defendant.
a. If D-1 is served on Sept 1. And does not remove, but
D-2 is served on Nov. 5, then D-2 can remove witin
30 days with D-1s consent.
iv. 1446(c)(1) If case is invoking 1332 then a case cannot
be removed more than 1 year after the commencement of
the action.
a. Remember defendants only have 30 days after it
becomes removable to remove. This just covers
instances in which a non-diverse party would be
dropped from the case etc.
Venue
A. Generally: Venue is the determination of where an action can be
brought
B. 1391(b) provides two basis of venue
1. Venue based upon residence of defendants: A judicial district in
which any defendant resides, if all defendants are residents of
the state in which the district is located.
i. Real Persons
a. Residence is the same as domicile here.
b. The defendants must reside in the same state. Even
if they are in Ohio for example and one is in north
district and the other is in south district, the action
is properly brought in either.
ii. Business Corporations and Associations
a. Venue is proper in any DISTRICT in which the
corporation is subject to Personal Jurisdiction. Not

17

the entire state where Personal Jurisdiction, just

the area of the district.
b. If A CORPORATION [unicorporated do not apply
here] is subject to Personal Jurisdiction in a State,
but does not have sufficient contacts to be subject to
PJ in a specific jurisdiction, then the corporation
resides in the district in which it has the most
significant contacts
2. Venue based upon the Events
i. A judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred or a
substantial part of property that is the subject of the
action is situatied.
a. What is Substantial? [Bates v. C&S]: The event
need not be the most substantial, only needs to be
or was at some point a substantial part of the
events.
i. The sending of one single letter that was
forwarded to another district in order to
collect a debt was substantial step, It is very
important to the process of collecting of debts
that the postal service is allowed to forward
it.
C. Transfer of Venue: The action of moving a case from one court within
a system to a court within the same system. Basic reasoning for this is
that the place initially selected is technically a proper venue in all
respects, but appears to be a poor place in which to adjudicate. A judge
has discretion in transfer, there is no right to a transfer. Judges use the
Gulf Oil factors to determine.
1. Gulf Oil Factors to determine if transfer is appropriate
i. Private Factors:
a. Evidence location
b. Witness location
c. Enforcement of judgement
d. Inconvenience on defendant
e. Interest of plaintiff

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f. Presumption in favor of plaintiffs choice

ii. Public Factors:
a. Interest of Forums
i. Localized controversies decided at home
ii. Familiarity with the law to be applied
2. 1404(a) Must be used to transfer a case brought in a venue
that was initially proper
3. 1406(a) Must be used to transfer a case brought in a venue
that was incorrect
4. Goldlawr case: allowed the courts to cure a defect for PJ via a
1406 transfer. So if a case has neither PJ or Venue and you
want to bring it in a new proper jurisdiction use `1406.
5. You can use the logic of Goldlawr to apply to 1404 as well.
6. Hoffman: You must transfer to a district with both PJ and
Proper Venue.
7. Only way transfer to an improper district (either PJ or venue
defect) is to have ALL parties consent..
8. Van Dusen: Under only 1404 cases, the venue that a case is
transferred to must use the choice of law rules that the original
federal court would have used
9. 1407 Multi District Litigation: Allows a panel of seven
federal judges appointed by the Chief Justice to sit and litigate
pre-trial proceedings. Allows for the centralization of related
litigation in the federal courts to a single district in order to take
care of discovery and other pretrial things such as settlement
and dispositive motions in a single place. After pretrial, the
cases are remanded to their original courts.
D. Forum Non Conveniens: A common law procedure in which a case
brought in a court in one system is more convenient to be heard in the
court(venue) of a different judicial system. The case is dismissed and
allowed to proceed in the more convenient judicial system.
1. Piper Aircraft Co. v. Reyno: The wonderful case that is one of
the Caust favorites. Plane Crash happened in Scotland, all
passengers and Pilot are from U.K. Air Company that operates
flight is from U.K. The Manufacturer of plane is from
Pennsylvania. The Propeller manufacturer is from Ohio.

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VII.

i. Long story short the case ends up in Pennsylvania court,

and the trial court dismissed under Forum Non
Conveniens. The Appeals Court said it should be heard.
Ultimately Supreme Court says that the case should be
dismissed for Forum Non Conveniens. Court applied the
analysis of Private and Public Factors that must be looked
at to determine if Forum Non Conveniens is apro pro.
ii. Public Interest Factors:
a. Administrative difficulties of keeping the case
b. Local interest in having localized controversies
decided at home
c. The desire to have a case tried in a forum well
versed in the law that will apply
d. Avoiding undue problems with conflict of laws or in
application of foreign law
e. Unfairness of burdening citizens with jury duty in a
case unrelated to the forum
iii. Private Interests
a. Relative ease of access to evidence
b. Ability to compel attendance of witnesses at trial
through subpoena
c. Expense of obtaining attendance of willing
witnesses.
iv. [random factors caust throws in]
a. Inconvenience on Defendant
b. Interest of plaintiff
c. Adequacy of relief in alternative forum
d. Availability of compelte relief in forum
Choice of Law [Erie Doctrine]
A. What is it? This is the decision of what law is applicable when a suit is
in federal court. Essentially when does a federal court apply state law?
1. Vertical Choice of Law (What Erie is Concered with): The
question is whether the federal court should apply a state law at
all.
2. Horizontal Choice of Law: The choice of which law to apply is
between equal political entities ( such as state courts).

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B. Swift Old case that held [Prior to Erie was precedent] the language
in the Rules of Decision Act that said laws of several states,
pertained only to state statutes and common law of local concern. So
federal courts deciding issues of state common law were free to apply
their own conception of general common law.
1. Based on notions that there is only one true common law, and
judges rulings would eventually discover that one true
approach. Thus common law was not law.
2. Result of this ruling: The courts of a state and the federal courts
sitting in the same exact place may be applying widly different
laws.
i. Created incentive for forum shopping. [Black & White
Taxi Cab where the plaintiff reincorporated their entire
business in Tennessee to create diversity, and gain access
to federal court, with the other party, because they were
both originally corporations of Kentucky.]
C. Erie The case that came to overrule Swift and bring good case law
still in use today.
1. Rules:
i. 10th amendment requires that state law must govern on
matters of general common law.
ii. Introduced policy of litigant equality: governing law
should not differ depending upon whether the case is in
federal or state court.
D. Guaranty Trust v. York
1. Outcome Determinative test: The outcome of litigation in the
federal court should be the same as in the state court
E. Triple Play Cases

1. Ragan: The statute of limitations expired after the plaintiff filed

the case but before the defendant was served with process. State
law tolled from the date on which defendant was served with
process, and federal rule 3 provided that toll ran from the date
on which the complaint was filed.
i. Holding: The application of state law meant the case
would be dismissed, so this was a substantive law because
it was outcome determinate, thus state law was applied.

21

It was inappropriate for different outcome in federal

court.
2. Cohen: At issue is a shareholder derivative suit. The state law
required that a plaintiff in this type of case post a bond. Federal
Rule 23.1 does not require such a bond.
i. Holding: Not posting bond would clearly have a
substantial effect on the outcome of litigation as the case
would get dismissed. Must follow state law and pay the
bond.
3. Woods: Here Mississippi had a closing door statute, which
required that out of state corporations must register with the
state before doing business there. If you dont register you cant
sue.
i. Holding: The court held that it must apply the state law,
since if it did the suit would be dismissed, thus outcomedeterminative.
F. Byrd v. Blue Ridge: Here an employee was injured while working for
a contractor. He sued Blue Ridge, the power plant that his contractor
was doing the work for. Question was is Byrd an employee of Blue
Ridge.
1. Issue: State law dictated that a Judge and not a jury decide his
employee status. Federal law dictated that a jury decide such
issues.
2. Rule of Byrd : When determining if a state law should be

applied, if it is a rule that is bound up with the rights and

obligations then STATE LAW MUST BE APPLIED.
i. Examples: requirements of a claim or a defense. Prima
facie cases.
ii. If the law is merely a mode and manner then go on to

the outcome determinative test.

a. Moving beyond that you must determine if there is
a policy interest of the federal system in applying
this federal law.
G. Hanna v. Plumer: The federal rules for substituted service of process
were in conflict with that of the Massachusetts rules for service of

22

process. In Massachusetts service on a representative of a decedent

had to be done personally, and not through substitution.
1. Hanna Part 1: Went consistent with Byrd in that it applied the
outcome determination test to state rules of form and mode.
Furthermore in analyzing if a problem is Outcome determanitve
we are guided by the Twin Aims of Erie.
i. Twin Aims of Erie: 1) discouragement of forum
shopping and 2) avoidance of the inequitable
administration of the laws.
a. Forum Shopping:
i. If this were the holding, the court would have
decided that no plaintiff would forum shop
based on personal service of process.
2. Hanna Part 2: The court ruled that the above analysis is
Irrelevant, and the appropriate test for a Federal Rule of Civil
Procedure requires a Rules Enabling Act Analysis.

i. REA Analysis of Federal Rules: A Federal Rule must

be both Applicable and Valid
a. Applicable: Simply if the rule is pertinent to the
case
b. Validity: See discussion of Shady Grove case. But
in general Hanna held that if FRCP was passed it
was presumptively valid. The complex review of the
law through the advisory committee, standing
committee, the court, and Congress ensures it is
valid.

H. Walker v. Armco: Issue: Should a federal court follow state law, or

Rule 3 FRCP when determining when an action is commenced for the
purpose of tolling the state statute of limitations.
I. Klaxon: Simple rule, A federal court in diversity must apply the choice
of law rules of the state in which that federal court sits.
J. Shady Grove: There was some controversy here

1. On Pertinence . 5 justices with scalia refused to take a look at

state law, but that was because he found Rule 23 to not be
ambiguous. He still said that courts should interpret ambiguous

23

federal directives narrowly, to avoid different outcomes in federal

and state court. Stevens concurred so this was majority
2. On validity.
i. (4) Scalia looked to Sibbach. The validity is based solely
on if the rule really regulates procedure.
ii. (1) Stevens concurrence said validity requires court to
consider state law. It was kinda dumb
iii. (4) Ginsberg dissent didnt really talk about it?
VIII. Preclusion

A. Claim Preclusion: basic requirement of 3 things.

1. Both case 1 and case 2 must have been brought by the same
claimant against the same defendant.
i. Remember that a claimant doesnt have to be the plaintiff.
A defendant can bring claims against the plaintiff,
making themselves a claimant.
2. Case 1 must have ended in a valid final judgement on the merits
i. Valid: The court that ruled had SMJ and PJ
ii. Final Judgement: Means that the trial court has ended
the litigation on the merits and there is nothing to do but
execute the judgement.
a. Even if the trial is being appealed, preclusive effect
still applies while pending.
iii. On the Merits: Means the opportunity for the merits to be
decided
a. Things based on merits: 1) Case is tried then
decided. 2) summary judgement 3) default
judgement (probably)
b. Things not on the merits: 1) lack of jurisdiction.
2)improper venue 3) failure to join a party
3. Case 1 and Case 2 must be based on the same claim
i. What is the same claim?
a. Typically anything arising out of the Same
transaction or occurrence. (CNOF).
ii. Claims are personal to the holder. Bobs claim for personal
injury in a car crash is not the same as Jills claim for
personal injury in the same car crash.

24

B. Issue Preclusion: applies only to preclude relitigation of an issue that

the parties actually did litigate and the court determined in the first
case. Requirements:
1. Case 1 ended in a valid final judgment on the merits. [Quality of
Judgement].
i. Use same analysis as the ones from Claim Preclusion but
modified to Caust
a. Of quality: Summary Judgements. Final Trial
Court Judgements.
b. Not quality: Default Judgement, General judgment
2. The same issue was actually litigated and determined in case 1
i. Was the issue actually litigated?
a. It was litigated if the case went to trial and final
judgement was asserted, or there is a summary
judgement.
b. Default judgements can have claim preclusion
effects, but not issue preclusive effects
ii. Was the issue Determined?
a. Similar to above really
iii. Same issue?
a. Just examine if they are closely related I guess???
3. The issue was essential to the judgement in case 1. [Caust
words: Necessarily Decided].
i. In order to have preclusion, an issue must have been
necessary to deciding Case 1.
ii. Rios case: All that mattered was that davis was negligent,
and under contributory negligence, he cant recover from
Rios. No preclusion.
iii. Alternative Determinations: Two views
a. View One: If there are two issues which either one
would be sufficient then both are essential
b. View two: If two issues either of which would be
sufficient then neither are essential.
4. Evergreens Doctrine: Ask two questions when deciding if an
issue is precluded

25

i. did the parties who were actually litigating the issue

consider the issue to be important.
ii. At the time of the issues consideration in first suit was it
foreseeable it would be usable in the second suit?
C. Who Can be Bound?
1. Nonparty that agrees to be bound. (Test Case People)
2. Nonparty is bound by a pre-existing legal relationship
i. Privity.
3. Nonparty is bound when adequately represented by one who was
a party in case 1.
i. Litigation by or against fiduciaries.
ii. Class action suits [
4. Nonparty controlled the litigation in Case 1 [See: Montana v.
United States where the a contractor sued montana over a tax.
The contractor had been hired by the United States to build a
damn. U.S. controlled almost every factor of the case even urging
the contractor to file it. After contractor lost case 1, the U.S.
tried to sue montana, but was precluded because they were
sufficiently involved in the prior litigation]
5. Nonparty litigates through a proxy
i. Like Cromwell v. Sac.
a. Smith litigated on behalf of Cromwell, then
Cromwell tried to sue in second case on his own and
was precluded.
6. Nonparty may be bound under special statutory schemes
i. Not important.
D. Taylor v. Sturgell and Virtual Representation
1. Virtual representation which is a nonparty to case 1 being
bound if she asserted a legal position in Case 2 that had been
asserted by a party in Case 1.
2. Twas rejected in Taylor.
3. V.R. violates due process. Not a thing.
E. Mutuality of Preclusion
1. Traditionally only parties who were parties (bound by) of Case 1
could be the ones who use preclusion
F. NONMUTUALITY PRECLUSION

26

1. This is concerned with By whom preclusion can be asserted.

i. Not the opposite.
ii. New modern exceptions. Listed below.
G. Nonmutual Defensive Issue Preclusion
1. Bernhard and Blonder-Tonugue (the more important of the two)
allowed a defendant to nonmutually preclude an issue as a
defendant. Asserted that a Litigant is afforded ONE full and fair
opportunity to litigate an issue.
2. Main Idea: In general a defendant in Case 2 can use claim
preclusion when the plaintiff was afforded a full and fair
opportunity to litigate the issue in Case 1.
H. Nonmutual Offensive Issue Preclusion
1. Occurs when plaintiff in case 2 was not a party in case 1, but the
defendant was a party in case 1 and had a full and fair
opportunity to litigate the issue in case 1.
2. This was adopted by the Supreme Court in Parklane. Came with
several safeguards
3. Factors to be considered from Parklane:
i. Would allowing preclusion in this context promote judicial
economy
a. Did the parties employ a wait and see strategy?
i. If yes no claim preclusion
b. Could the plaintiffs have joined the same action?
i. If no, the allow preclusion
ii. If yes, we need some proof of collusion to wait
and see.
ii. Is the use of preclusion in the same suit foreseeable?
a. As long as you know that there are foreseeable
effects on future litigation, we can preclude. Also
look at if the issue was litigated vigorously
iii. Are there inconsistent findings on the issue in prior
litigation?
iv. Are there procedural opportunities unavailable in the
first action that could readily cause a different result.
a. Things such as a new witness that has been
determined in the second suit or another thing so

27

IX.

important to the defense that preclusion would not

be allowed.
v. 2This is a multi-factor weighing test. The federal courts
assume in favor of a claim preclusion.
Attacking Jurisdictional Defects
A. Direct Challenge: Takes place in the proceeding, itself.
B. Collateral attack: Takes place in different proceeding, raising
preclusion questions.
C. Direct Challenges to PJ and SMJ
1. Direct challenges to SMJ in federal court allowed at any point in
the proceeding
i. Best practice is as part of the answer Rule 12(b)(1)
ii. Can be raised later Rule(h)(3)
iii. And it can be raised by any part, even the plaintiff or by
the court 12(h)(3)
iv. It can be raised, for the first time on appeal!
a. Generally for other issues you cannot raise issues
on appeal that you did not raise at the trial level.
So this is a key thing to remember.
2. Direct challenges to PJ are more limited
i. Need to have special appearance provision Rule 12(b)
(2); not available in all states, but most do have it.
ii. Otherwise, just showing up in the court would make the
party amenable to suit giving that court PJ.
iii. Need to be raised in timely fashion, typically in answer
Rule 12(h)(1).
iv. Must be raised by the affected party.
v. Cannot be subject of an appeal unless it was raised at
trial level.
D. Collateral Challenges to PJ and SMJ
1. Collateral Challenge to PJ only permitted if party did not appear
in prior proceeding (default judgement).
i. Pennoyer v. Neff: The judgement in the first suit was
brought and decided on a default judgement. Neff got his
property back because he wasnt there for first suit. If Neff
was determined to have been amenable to suit and

28

original court had PJ, then he lost the first proceeding as

a result of a valid judgement; therefore, the decision had
preclusive effect.
ii. Appearance in which PJ is contested is preclusive
Baldwin v. Iowa State Traveling Mens Association
a. If you appeared and lost, it is preclusive.
iii. Apearance in which PJ is not contested is also preclusive
failure to contest amounts to waiver
a. You had the opportunity to contest it, but chose not
to. Too bad, waived your right and it is preclusive.
2. Collateral Challenge to SMJ is more complicated. Courts use
multi-faceted analysis suggested in the restatements. No one
factor is dispositive.
i. A party generally can collaterally challenge SMJ if it
defaulted in the first proceeding, and the court did not
address the matter explicitly or implicitly
ii. A party generally may not collaterally challenge SMJ if it
appeared in the first proceeding
a. No attack when the party had contested SMJ in the
first proceeding Durfee v. Duke
b. No attack when the party had not contested SMJ in
the first proceeding Des Moines
iii. Collateral Challengers are however sometimes permitted,
even if the party appeared in the first proceeding under
unusual circumstances:
a. Lack of SMJ was clear, such that exercise of SMJ
was a manifest abuse of authority
i. Way of policing the court that has screwed up
royally
b. Exercie of SMJ resulted in substantial
infringement of the authority of another tribunal or
agency of government
c. First tribunal lacked the capability to determine
whether it had SMJ or where procedural fairness
requires the ability to collaterally attack.

29

X.

E. Collateral Challenges arent usually the best idea, the limit you to
argue all you want. You cannot argue the merits, just the jurisdiction.
Amendments
A. Beeck v. Aquaslide and Dive
1. Amendments can be made, even after the statute of limitations,
and rule 15(a) allows them to be freely given as long as no:
i. Bad faith,
ii. undue delay;
iii. or prejudice against other party.

Appendix 1: Catchphrase Bank

Topic

Word

Meaning

Amount in Controversy

good-faith assertion

If you allege that the

amount in controversy
has been conceded in
good faith then that is
enough

Amount in Controversy

pennies are the most

Even though we often

neglected piece of U.S.

ignore one cent, in AIC it

currency

cannot be ignored
because it can be the
difference in exceeding
the $75,000 minimum.

Claim Preclusion

Merger

The claim in Case 1 was

won by the claimant, thus
the claim is merged with
judgement. If same claim
brought up in Case 2 it
has already been merged

Claim Preclusion

Barred

Claim preclusion when

the claimant lost. He is

30

barred from proceeding

with case 2.
Erie Doctrine

Law of several states

Rules of Decision act

language.

Supplemental

Common Nucleus of

The requirement that a

Jurisdiction

Operative Fact

claim must meet to gain

supp. Jurisdiction.

Appendix 2: Rules of Venue Transfer (Applicability of Case law rules)

Transfer

Is original

Is the court

Hoffman:

Goldwar: A

Van Dusen:

Statute

Court

being

You must

court

The

Proper?

transferred

transfer to

without PJ

receiving

to Proper?

a court

or improper

court must

with PJ and venue can

apply the

Proper

transfer to

choice of

Venue

Proper PJ

law rules of

and Venue

the original
court

1404(a)

Proper

Proper

Venue

Venue and

Yes

Yes

Yes

Yes

Yes

NO

PJ
1406(a)

Improper

Proper

Venue

Venue and
PJ

31

Appendix 3: Personal Jurisdiction Flowchart

32

Appendix 4: Erie Doctrine Flowchart

Is there a pertinent
federal constitutional
provision?

YES

NO
Is there a pertinent
federal statute or
treaty provision?

YES

NO

Is statute/treaty
constitutional
(did congress
have authority

YES

NO

Is there an arguably
pertinent Federal
Rule?

YES

NO

Apply the REA

analysis. 1) is the rule
pertinent? 2) Is the
rule valid?

YES

NO
Apply State
Law

This must be a Judge

Made Rule. Apply
RDA analysis.

Apply
federal
law

NO
Is the state law
bound up with the
rights and
obligations of the

NO

Yes

Is there a good reason

not to apply state law?
(like judge v. jury resp. or
respons. of
trial/appellate courts

YES

Since this is a mere form and mode of

enforcing laws, examine Twin Aims., would
ignoring state law lead to 1) Forum
Shopping or 2) Inequitable administration of

No

YES

33

Appendix 2: Supplemental Jurisdiction

Does the
additional claim
have original
Jurisdiction?

YES

Supp.
Jurisdiction
Irrelevant

NO
Are the original
and additional
claims derived
out of CNOF?

NO
No Power to
Hear Claim(NO
Supp. Jur.)

Yes

[1367(b)] Step 1:
Is the claim
founded on
diversity

No

YES

Did Plaintiff or someone who is on

the plaintiffs side of litigation bring
additional claim against a party
brought into suit under any of the
following rules: 14, 19,20,24, 19?

NO

YES
Would Exercising
Supp. Jur. Be
inconsistent with
requirements of

NO

YES
Supp. Jurisdiction
NOT PROPER
A Court has discretion to exercise supplemental jurisdiction.
Consider following factors of additional claim:
1) Novel or complex issues of state law
2) Additional Claim predominates the federal claim
3) The court dismissed all claims over which the federal court
has original jurisdiction.

Supp. Jur.
Proper,
Continue on to
(c).

34