Intro and Overview Material

Bringing a civil case in Federal court 1. The complaint a. Needs to state i. Grounds for SMJ ii. The claim for relief (legal theory of liability) iii. Demand for relief (damages) b. Liberal pleading method i. Courts will read rule 8a complaints liberally as to the factually allegation on the face of the complaint ii. Will not dismiss Ps claim unless there are no set of facts which would entitle the P to relief 2. Ds response to complaint: the answer a. Timing i. 20 days to respond from the time he is served with an answer or other response ii. If service is waived, 60 days from the date the request for waiver was mailed 1. 90 days if outside US 2. Strategy a. Gives D more time to research and file pre trial motions to dismiss on procedural grounds b. Contents i. Admit or deny allegations 1. Affirmative defenses a. Admit allegation but argue that D was legally justified to do it ii. Raise counterclaim 1

1. P then is allowed to file a reply c. Ds option to file pre-trial motions rule 12 i. 12(b) motion to dismiss 1. Lack of SMJ 2. Lack of PJ 3. Improper venue 4. Insufficiency of process a. Something wrong with the documents 5. Insufficiency of service of process a. Something wrong with how summons was actually served i. Ex done by someone under 18 6. Failure to state a claim upon which relief may be granted (demurrer) a. even if everything P says in the complaint is true, D still wins because P is not entitled to relief under the law b. Judge only looks at the complaint assuming all facts are true 7. Failure to join a necessary party under rule 19 ii. Timing 1. Generally if pre answer motion denied a. Must file an answer within ten days of that denial 2. Can be raised at any time (even on appeal) a. 12b1 lack of SMJ by parties or the court 3. Must be raised in Ds first responsive pleading or waived a. Plead them or lose them b. 12b2-5 i. Lack of PJ 2

ii. Improper venue iii. Insufficiency of process iv. Insufficiency of service of process 4. Must be raised before the end of the trial a. 12b6 and 7 i. Failure to state a claim upon which relief may be granted ii. Failure to join a necessary party under rule 19 iii. Dismissals with and without prejudice 1. If rule 12 dismissal is granted rule 12h allows judge to let P amend complaint to fix the problem (especially if it is procedural) a. Called a dismissal without prejudice aka can be refilled 2. Dismissal with prejudice P cannot refile the complaint d. Rule 12c motion for judgment on the pleadings i. Judgment is made based on the complaint AND the answer ii. Different from 12b6 b/c it takes into account the answer and any other pleadings e. Rule 12e motion for a more definite statement i. So D can figure out what allegation and claims are actually being made against him f. Rule 12f motion to strike improper material i. Such as redundancies, scandalous or immaterial allegation ii. Usually used by celebrities or corportations 1. Facts are immaterial to the actual legal contention but are attached for the purpose of public consumption and or coercing a settlement from a celebrity 3. Default Rule 55 3

a. Definition - D does nothing and simply fails to respond to the Ps complaint b. P must file a motion to obtain a default judgment. Must show i. No response from D ii. Damages are for a specific amount (if not, P, at a hearing, will have to prove how much) iii. Affidavit that the specific amount of damages is still actually owed iv. D is not incompetent or an infant c. Notifying D of default i. If D appeared in any way, must be notified at least 3 days before the default hearing d. Ds defenses i. If default has been granted - 60b can get default set aside 1. Must show mistake, inadvertence, or excusable neglect for failing to respond ii. If there is just an entry of default (no default judgment yet) 55c 1. Can have it set aside for good cause shown 2. It is a lower standard than 60b 4. Amendment of Pleadings rule 15 a. Parties can amend or supplement their pleadings in order to add or omit certain claims, parties, defenses, allegations, counterclaims etc b. Often necessary b/c at lawsuit proceeds, circumstances change c. Applies to all pleadings including 12b pre answer motions d. Timing i. If an amendment can relate back to the date of the original pleading, it can be allowed even if the SOL has run 1. If new claim relates back to original claim, the SOL will not preclude the late addition of the new claim 4

5. Lawyers responsibility in signing the pleadings rule 11 a. Requires attorneys to review and sign every motion, pleading or paper they file or submit in the case b. Pleading cannot be filed to harass, delay, or increase cost of litigation c. Pleading has evidentiary support or likely to d. Must be a non frivolous argument e. A party must notify the other of a potential rule 11 violation 21 days in advance i. Gives attorney time to correct the offending pleading before the court finds out about it Complex litigation 1. Multiple claims a. Joinder of claim rule 18 i. Very broad rule P may sue on any number of claims for relief against a particular D or group of Ds ii. Does not need to be related to the same transaction iii. Judges discretion 1. Can separate the claims into separate trials if there are many claims that arise out of different factual circumstances (diff witnesses, evidence) such that it will be too confusing or unfair to keep them together b. Counterclaims rule 13a and b i. Offensive claim by the D against an opposing party, the P ii. Compulsory 1. Claims made by D which arise from the same transaction or occurrence of the basis of Ps claim 2. D must raise compulsory counterclaims during the lawsuit or else he waives the right to seek redress on that issue iii. Permissive 5

1. Claims made by D that does not arise from the same transaction or occurrence 2. Up to the judges discretion whether or not he wants to allow the counterclaim c. Cross-claims i. Offensive claim against a co-party (D v D) ii. Must arise out of the same transaction or occurrence iii. Strategy 1. P will usually sue more than one D so that the Ds start cross claiming each other to blame the other parties d. Multiple claims and the three ring circus i. Each additional joined claim, counterclaim, or cross claim must satisfy the 3 rings or else they cannot be joined (even if rule 13 and 18 are satisfied) ii. Where problems can arise 1. Usually PJ and venue are not a problem b/c it is the same set of parties 2. SMJ is the tricky ring a. Each claim must have an independent basis for SMJ iii. Use of 1367 supplemental juris 1. Additional claims a. Yes b. In Fed Q case, can add state law claim 2. Counterclaims a. Compulsory i. Yes because arising under same case or controversy more broad than same transaction or occurance b. Permissive

i. Possibly because arising out of the same transaction or occurrence is more narrow, so even though it is not compulsory, it can arise out of the same case or controversy 3. Cross claims a. Yes all cross claims b/c by definition must be out of the same transaction or occurrence 2. Multiple Parties a. Joinder of parties rule 19 20 i. Permissive joinder 1. Parties can join together and sue as co-plaintiffs or parties may be joined together by P and sued as co-Ds a. Must be the same transaction or occurrence AND b. Raise one common question of law or fact to either all of the Ps or all of the Ds 2. At the judges discretion 3. With new parties, PJ and venue now become an issue ii. Required parties 1. Parties required to be involved for adjudication 2. Must be either a. Necessary to give complete relief to the existing parties b. Subjected to having their legal interest being impaired c. Their absence will create a substantial risk of double or inconsistent obligations 3. Subject to the 100-mile bulge service of process rule 4. What if a required doesnt meet the three rings? a. Rule 19b when joinder is not feasible i. Courts will weigh 7

1. Extent of prejudice to the parties w/o the required party 2. The extent the prejudice could be lessened by other measures 3. Whether judgment would be adequate w/o required party 4. Whether there would be an adequate remedy w/o the required party, such as another jurisdiction ii. Court must decide whether to terminate the lawsuit or carry on without the party b. Impleader/third party practice rule 14 i. A claim against an outsider to the suit, who may be liable to the existing D, if the existing D is deemed liable to the P 1. Ex Galves lends car to employee who then crashes into Dean a. Dean sues Galves and Galves impleads employee b. Galves becomes D/third party party P and employee becomes third party D ii. Third party P must have derivative liability against third party D 1. Galves liability would derive from employees actions iii. 3 rings relaxed 1. PJ a. Rule 4K1B 100 mile bulge PJ can be found for third party D if within 100 miles of the fed courthouse i. Even if long arm statute does not allow PJ outside state borders 2. SMJ a. No need for independent SMJ b/c supplemental jurisdiction will apply 8

i. Would obviously arise out of same case or controversy 3. Venue a. No independent proper venue determination for third party D c. Intervention rule 24 i. An outsider who wants in the lawsuit either as a P or D ii. Different from impleader b/c outsider is taking the action to come into the lawsuit iii. Intervention of Right 24a 1. Party must be allowed to intervene b/c their interests in the action may be harmed if not allowed to intervene iv. Permissive intervention 24b 1. Allowed if interveners interest involve at least one common question of law or fact to those interests being litigated in the existing suit 2. Court has discretion to allow or disallow a. Usually disallowed if intervention would cause delay or prejudice or delay to the original parties v. All 3 rings must be satisfied including independent basis for SMJ 1. Supplemental juris not available in diversity cases if they would destroy diversity d. Interpleader Rule 22 and 1335 i. Rule 22 1. Initiated by an owner of a property who (or rights to funds) owes all or part of that property to two or more parties, but not sure which one 2. He can force the parties to litigate their interests 3. This provides protection to the holder so that he does not end up owing the whole property to multiple people a. Protects from having to pay twice 9

4. Holder of property called the stakeholder, and the people seeking the property claimants 5. Must satisfy 3 rings ii. Statutory interpleader 1335 1. Much easier to obtain 2. 3 rings relaxed a. PJ i. Nationwide service of process ii. Can be served anywhere in US and that will establish PJ 1. The presence debate from burnam is still a problem iii. Fed court jurisdiction extends to the nations borders instead of state borders b. SMJ i. Only minimal diversity required 1. Only one claimant needs to be from another state than one other claimant ii. Amount in controversy lowered to $500 3. Only situation where rule interpleader will be possible and statutory interpleader wont a. Diversity cases where all of the claimants are from the same state iii. Class Actions rule 23 1. Brought by a class of representatives on behalf of a whole class of similarly situated individuals 2. Prerequisites CANT a. Commonality 10

i. Questions of law and fact concerning the class have to be common issues among all class members b. Adequacy i. Class representatives have to fairly and adequately represent the interests of each of the class members and have legal counsel who can competently and professionally handle the class c. Numerosity i. The class has to be too numerous for practicable joinder. No magic number but 30 probably isnt enough where 100 probably is d. Typicality i. The named reps have to have claims or defenses that are typical of the class as a whole 3. Even when prerequisites met, must fall under of three types of class action a. Prejudice i. Risk of inconsistent decisions, incompatible standards of conduct, or impairment of interests ii. Ex 20,000 claimants. First 1000 sue and recover but then all the money run outs so other 19000 get nothing b. Injunction or declaratory judgment/equitable relief i. When class is seeking the D to do, or not to do something to the class as a whole 1. Equitable relief, not money damages ii. Ex discrimination suits company has to stop discriminating against all female employees, most just some c. Money damages - requires i. A common question predominates the action 11

1. Ex securities fraud ii. A class action is deemed to be a superior method to other joinder methods 4. Notice requirements to class members a. Prejudice and Injunction or declaratory judgment i. Publication in newspaper b. Money damages i. Individually, by mail, or by notification ii. More strict b/c only these members can opt out and sue on their own 1. Important for these members to receive special individual notice so they can opt out 2. If they dont opt out, are bound by the class action judgment 5. Settlement a. Judge must approve any settlement of a class action lawsuit to make sure that attorneys didnt sell out just to collect their fees 6. Three rings a. Must be satisfied just like any other action b. Special diversity amendment. Diversity exits if i. Any member of the class is diverse from the D AND ii. Amount in controversy is over $5 million in the aggregate Discovery 1. Pretrial conference Rule 16 a. Held several times throughout the lawsuit to ID the issue for trial and avoid wasting time during the trial on trivial or irrelevant issues b. Timing 12

i. 1st conference should be held as soon as practical but either 1. 90 days after D first appears or 2. 120 days after complaint is served 3. Whichever comes first ii. Final pretrial conference 1. Court issues a :pretrial order that serves a controlling road map for what is about to happen at trial 2. Mandatory Discovery Rule 26 a. Rule 26f i. The initial meeting between the parties ii. Timing 1. At least 21 days before the rule 16 conference b. Each party required to provide certain initial disclosures i. Initial disclosures 1. Identity of persons with knowledge of facts 2. Relevant documents 3. Computation of damages 4. Any insurance that supports their claim or defense ii. Timing 1. At or within 14 days after the rule 26f initial meeting iii. Disclosure of witnesses 1. expert a. At least 90 days before trial or within 30 days after disclosure of experts by one side 2. Normal witnesses and trial exhibits a. At least 30 days before trial 13

3. Opposing party has 14 days to object to testimony or exhibits 3. Depositions Rules 27, 30-32 a. Definition formal oral question and answer session of parties or witnesses conducted under oath with a court reporter writing down all that is said for use in developing the case and for possible use at trial b. Uses i. Impeach a witness (changing their story) ii. Witness is dead or far away c. When should it be scheduled? i. Anytime after rule 26f meeting ii. Should do it later in the process after interrogatories taken and documents produced (more info to ask deponent) d. When should notice of the depo be provided e. Who can be deposed and what materials are accessible f. What is the efficacy of a depo 4. Interrogatories rule 33 a. Written question to which the other party must respond to in writing b. Limited to submitting 25 c. Cheap but usually crafted by opposing attorney who does not give up much info 5. Requests for admissions rule 36 a. Written admissions or denials by a party of various assertions made by the other party b. Used to narrow down what issues actually have to be proved c. Admission requests not answered on time by the other party are deemed admitted 6. Requests for production of documents rule 34 a. Allows one party to view the other partys documents, records, computer tapes, etc b. Useful for discovering the foundations of their claims or defenses early on 14

7. Request for physical and mental examination of persons rule 35 a. Have to show that the other partys mental or physical condition has been put in controversy and there is good cause for taking the requested exam b. Has to be approved by judge (only discovery request needing judge approval) 8. The scope of discovery rule 26b a. Very broad anything relevant to the claim or defense of any party provided that it is reasonably calculated to lead to the discovery of admissible evidence b. Does not need to be admissible to be discoverable c. Limitations i. Privileged material 1. Sacred and solemn confidential communications a. husbands cant testify against wives b. Attorney-client privilege i. Protects communications between attorney and client from the beginning of the relationship to beyond the end of representation ii. Cannot disclose any info, unless it pertains to future or ongoing crimes, fraud, or torts ii. Attorney work product 1. Written mental impressions of an attorney regarding the case a. Witness statements, attorneys opinions, mental impressions, legal strategies iii. Protective order 1. Protects information that may annoy, embarrass, oppress, or cause undue burden or expense on a party. 9. E-discovery 10. Enforcement of discovery provisions rule 37 15

a. Sanctions can include attorneys fees, strike portions form the pleadings, disallow evidence, and in the most serious cases, obtain a dismissal or render judgment against the violating party b. The exclusive provision for handling violations i. Rule 11 no longer applies Summary Judgment rule 56 1. Rule 56 v rule 12b6 a. SJ where a trial is not necessary b/c only legal issues are in dispute and so the judge can deice it as a matter of law i. Cannot be a genuine issue of material fact ii. Any disputed facts will cause SJ to fail 1. Credibility of witnesses is for a jury to decide b. How they are different i. SJ is based on admissible evidence from depos, affidavits, hearing transcripts etc ii. 12b6 is only based on whether there is a legal issue that can be redressed assuming the allegations in the complaint are true 2. When both parties think the issue can be decided as a matter of law for them a. First SJ motion is just a motion for SJ b. Second motion by other party is a cross-motion for SJ c. No trial b/c both sides agree on the facts, just not the law Alternative Dispute Resolution 1. Courts can impose ADR but usually it is contracted by parties 2. Mediation a. Mediatory acts as a facilitator to help the parties negotiate a settlement b. Works best when parties have an ongoing relationship they would like to maintain c. Mediator does not succeed unless the parties reach an agreement 16

i. Successful mediation ends in a resolution by the parties consent 3. Arbitration a. Arbitrator acts as a quasi-judge over the dispute b. Offers a binding resolution to the issue i. Only an offer, the resolution is only binding if agreed to ii. Parties do not agree to an outcome, but only to give the power to come to that outcome to the arbitrator c. Offers the benefit of avoiding the whims of a jury Taking the case away from the jury rule 50 1. Judgment as a matter of law directed verdict rule 50a a. Motion by D for judge to rule in favor of his client b. Timing i. After Ps case in chief and before D brings any witnesses ii. After Ds case, both parties may move c. To be granted, case has to be very one sided i. Motion asserts that a jury should not be allowed to render a verdict b/c based on the evidence, they could only come out one way ii. Amount of proof to deny motion substantial evidence some evidence that jury could find for the other side d. Appeal standard i. De novo e. Policy against i. Judges want to show appreciation for the jurys time effort and patience ii. Judges dont like to short circuit the process iii. If motion is granted and then case reversed on appeal, there would have to be another trial b/c there is no verdict from the jury 17

f. Comparison to SJ and 12b6 i. Similar in that they attack the opponents case as being deficient ii. Different in their timing 1. 12b6 early on after complaint is filed 2. SJ after discovery but before trial 3. 50a in the middle of trial or close to the end of trial 2. Renewed motion for judgment as a matter of law JNOV rule 50b a. Motion brought after the jurys verdict i. Within 10 days after verdict b. Amount of proof i. Losing party failed to produce substantial evidence 1. Substantial = > .01% c. granted if the judge think the jury got it wrong d. there must be a 50a motion at the end of Ds case in order for there to be a 50b e. appeal standard i. De novo - appellate court looks only at the legal findings 3. Motion for a new trial rule 59 a. Less radical than judgment as a matter of law b. Not asking for a verdict, only to restart the process i. Usually granted when some part of the trial was tainted 1. Incorrect jury instructions 2. critical new evidence not available at trial 3. bribe or threat of a judge c. Amount of proof against the great weight of evidence i. Between 0 and 50 percent 18

d. Appeal standard i. Abuse of discretion 1. Judge allowed some discretion and got it very wrong e. Must be brought within 10 days after verdict The appeals process 1. Standards of review a. Legal decisions i. De novo for both bench and jury trials b. Factual decisions i. jury trial 1. Clearly erroneous ii. Bench trial 1. Lack of evidence c. Discretionary rules i. Abuse of discretion for both bench and jury Former Adjudication 1. Claim preclusion res judica a. Bars party from bringing a cause of action that has already been decided on its merits (or should have been raised compulsory counterclaim) b. Reasoning dont want to allow people to bring the same cause of action over and over again c. Tests i. Transactional test (broad) (majority of courts use) 1. Looks at time, space, origin, and motivation of the key set of events 2. Ask whether the cases form a convenient trial unit and whether the cases treatment as a unit confirms to the parties expectations 19

3. same transaction/occurrence ii. Primary rights test (narrow) 1. Looks at whether each claim uses the same evidence, has the same facts to prove, and includes the same legal elements to prove. 2. If recovery based on different legal theories, may not be precluded d. Illustration i. I run over Galves in my car causing him personal injury and property damage to his lunch pail ii. He sues for personal injuries and wins iii. He sues again for property damage to his lunch pail 1. Under transactional test, claim would be precluded because it arose out of the same transaction or occurrence (me running him over) 2. Under Primary rights test, claim would not be precluded because the elements of property damage and personal injury are different 2. Issue preclusion a. Prohibits the re-litigation of factual or legal issues that were previously adjudicated in a previous lawsuit i. Issue had to have been actually litigated and essential to the judgment in the prior action in order to be precluded in a later lawsuit b. Much narrower than claim preclusion b/c it applies only to discrete issues actually litigated, instead of what claims that were, or could have been decided in a previous suit c. Key elements i. Issue to be precluded must be identical to the issue litigated in 1st lawsuit ii. Issue must have been essential to the 1st lawsuit iii. Issue must have been a final judgment on the merits iv. The party against whom the issue is used was a party to the first lawsuit

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v. Issue must have had a full and fair opportunity to be heard in the first lawsuit d. Offensive issue preclusion i. When a new P wants to use the Ds previous loss to a successful P in the first action in order to prevail against D in a second action ii. Judge will look at the difficulty of joining a new P to the original lawsuit and to what degree the second suit would create inconsistent judgments 1. Judges are reluctant to allow e. Defensive issue preclusion i. Used when a D wins in the original lawsuit and the same P tries to find a different D to sue ii. That second new D can use the original Ds victory to estop Ps current action on a certain issue iii. Judges usually allow 1. This encourages Ps to join as many Ds as possible in the first suit a. Promotes judicial economy Personal Jurisdiction 1. Definition: the power of the court over the defendant and the courts ability to enter a valid binding judgment on the parties 2. Limitations on a courts personal jurisdiction arises from two sources a. State statute long arm statute b. US Constitution 14th amendment, 5th amendment i. Due process 1. Must have contacts that are fair and reasonable 2. Appropriate notice must be given 3. Three types of personal jurisdiction a. In personam 21

i. Power over the defendants person, such that the Ds assets may be seized to satisfy any judgment against him/her b. In rem i. Power over a thing, located in the forum state which is owned by the defendant, where the property is the subject of the lawsuit c. Quasi in rem i. The thing is owned by the defendant in the forum state, but the lawsuit is not a dispute over the property, the property is used to get jurisdiction. Not about the property, more like a vessel to get the property 4. Traditional Test Pennoyer v Neff a. Presence i. Served while physically present within the state b. Domicile i. Defendants permanent fixed home is in the state and has a subjective intent to remain there for the indefinite future ii. For corporations domicile may be 1. The state of incorporation 2. The state of principle place of business c. In rem d. Quasi in rem e. Consent i. Voluntarily submit to the courts jurisdiction

Modern Test Minimum Contacts due process 14th amendment fair play and substantial justice must satisfy both Minimum contacts and Fairness

5. International Shoe - Minimum contacts is a vessel to get to fairness 22

a. In personam absorbed into minimum contacts 6. Shaffer In rem and quasi in rem absorbed into minimum contacts 7. Minimum Contacts

Specific Jurisdiction - relatedness between Ds contacts and the subject of the lawsuit. The causes of action arises from the in-state activity a. Purposeful availment to the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law i. Voluntarily and knowingly connect with state ii. Foreseeable to get sued in the state iii. Cases 1. Mcgee voluntary - D purposefully had business in the state even though they operated from another state. Mailed contracts and collected premiums. D benefited from states laws, collected money from resident in the state. Purposeful availment 2. Hanson v Denckla not voluntary - Ps Unilateral action brought D business into the state. P created trust in one state then years later moved to another. Only did minimal trust admin while in new state. D did no business there, had no offices, no advertising. No purposeful availment a. World-Wide P made unilateral move by taking car to other state where D did no business. 3. World Wide not foreseeable General foreseeability that Ds car may make it to another state not enough. Must be foreseeable to be brought to court there. 4. Burger King voluntary and foreseeable - Franchise contract with out of state Co. created jurisdiction. Ds voluntarily made long term contract (20 years) with P in Florida. Voluntary - Benefitted from a Fl corps resources. Foreseeable - Contract not a one shot deal but a negotiated agreement intended to last a long time.

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b. Stream of commerce - Where a company puts its product into the stream of commerce such that it is foreseeable that the product will end up in the forum state through the direct marketing chain i. 4-4 split - is awareness that product will enter stream of commerce enough? ii. Asahi - To get support of all justices must satisfy awareness plus other considerations (marketing, product specialization, providing advice w/in forum state) c. Effects test Intentional torts - Pavlovich i. Knowledge alone of where harm will occur is insufficient to find jurisdiction ii. Sliding scale analysis for internet sites 1. D does business over the internet. Contracts with others from foreign jurisdictions to sell grounds for PJ 2. D operates an interactive website where users can exchange info with a host computer PJ depends on level of activity and commercial nature 3. D only posts information that is accessible to users from foreign jurisdictions not grounds for PJ iii. Ds knowledge that his software may have harmed a certain industry in Ca not sufficient enough to find PJ General Jurisdiction systematic & continuous - frequency of Ds contacts with the forum. Unrelated claim can be brought against D with general jurisdiction. 8. Perkins Substantial contacts - While no mining properties in Ohio, Ds president, who was in Ohio, directed many of its companies activities from Ohio (cut salary checks, held business meetings, had 2 company bank accounts, directors meetings held) General jurisdiction found 9. Helicopteros Not enough substantial contacts Foreign company bought helicopters from Texas, sent pilots to train in Texas, and received money from Texan bank. a. Purchases, even at regular intervals not substantial enough b. Training sessions too brief 10. Burnam Minimum contacts apply to presence through service? 24

a. D served in Ca when he was there for only 3 days on business and to see his kids b. PJ found c. 4-4 split presence automatically creates PJ (scalia) vs minimum contacts test (brennan) d. Argue for minimum contacts to get all 8 i. Burnam subjected himself to benefits of CA (emergency services, used CA roads, kids in CA) 11. Fairness/Reasonableness Once minimum contacts are found, these other considerations can either raise or lower the bar of required minimum contacts for fair play and substantial justice a. Convenience i. Of the forum to D ii. Burger King Florida forum was not gravely difficult and inconvenient because D had been to Florida before iii. Asahi More convenient to be brought in Taiwan where the 2 parties are from. Heavy burden on D to litigate overseas. b. Forum states interest i. Mcgee CA had a strong interest to protect its citizens from out of state companies ii. Asahi CA did not have an interest in the case because it was between 2 foreign corps c. Other considerations i. Ps interest in obtaining convenient and effective relief 1. Pavlovich P had at least 2 other forums in which to pursue their lawsuit ii. Interstate judicial systems interest in obtaining the most efficient resolution of controversies iii. Shared interests of the states in furthering fundamental substantive social policies 25

12. Other ways to get Personal Jurisdiction a. Consent - Carnival i. Forum selection clause for a particular forum ii. Exception 1. If the clause itself lacks fundamental fairness due to a bad faith choice of forum to discourage litigation a. Carnival had forum where their principal place of business was and where many cruises depart and return iii. Pros 1. Predictability 2. Efficiency 3. Cost saving b. In hand service i. Exceptions 1. Fraud tricking someone to enter jurisdiction then serving them c. Waiver i. If D does not raise a 12(b)(2) in the first responsible pleading, D waives right to challenge PJ 13. Attacking Personal Jurisdiction a. Collateral Attack i. In a collateral attack, the defendant just does not show up to court to litigate the claim and files no answer to the complaint. The judge will enter a default judgment pursuant to Rule 55 ii. Strategy 1. Benefit: no need to go in to litigate the original claim 2. Downfall: if the original claim is found to be with valid personal jurisdiction, then there is no way to challenge the merits of that claim b. Direct Attack / Special Appearance i. In a special appearance, the defendant appears in court for the sole purpose of litigating the issue of personal jurisdiction ii. If defendant appears but does not contest personal jurisdiction in a special appearance, defendant has consented to personal jurisdiction and may not contest it later 26

iii. Strategy 1. Positives: if you lose your 12(b)(2), you can still argue the case on the merits 2. Negatives: harder to make the inconvenience argument if you actually appear Long Arm Statute 1. Rule 4(k) Jurisdiction in Federal Court - Federal Long Arm Statute 2. 4(k)(1) - Serving a summons or filing a waiver of service establishes PJ over a D (A) Who is subject to the jurisdiction of a court of general jurisdiction in the state where the district is located i. Essentially, incorporates the local state long arm statute as a constraint on federal court jurisdiction (B) Who is a party joined under Rule 14 or 19 and is served within a judicial district of the U.S. and not more than 100 miles from where the summons was issued, or (C) When authorized by a federal statute 3. 4(k)(2) For a claim that arises under federal law, serving a summons or filing a waiver of service establishes PJ over D if (A) The D is not subject to jurisdiction in any state's courts of general jurisdiction, AND (B) Exercising jurisdiction is consistent with the US Constitution and laws i. This exception closes a gap in the law when a D is a nonresident of the US and has contacts with the US sufficient for PJ under the 5th Amendment Due Process clause, but has insufficient contacts with any single state to support jurisdiction under state long arm legislation Notice and Service of Process Notice Requirements Constitutional requirement - due process 1. Notice a. Reasonable method of giving actual notice b. Mullane Trust company must use the best practical means to notify their beneficiaries of a suit. Those whose addresses are known or are easily obtained should be notified by mail where those who cannot be reasonably found can be notified by publication 2. Opportunity to be heard a. Reasonable time to make an appearance Statutory/rule requirement Rule 4 3. Process/Summons 4a a. 4a requirements of a summons i. Name of the parties and court ii. Be directed to the defendant iii. State name and address of Ps atty or if unrepresented of the P iv. State time within which D must appear and defend 27

v. Notify D that a failure to appear and defend will result in a default judgment against D for the relief demanded in the complaint vi. Signed by the clerk AND vii. Bear the courts seal b. Failure to comply with one of these results in a 12b4 insufficiency of process 4. Service a. Kept separate from personal jurisdiction D can still challenge PJ and Venue if served b. Summons with a copy of the complaint c. Failure to comply will bring about a 12b5 insufficiency of service of process (what you did or did not do with the summons) d. Who can serve i. Over 18, not incompetent, and a non party ii. If requested, by a marshal or someone specially appointed by the court e. Waiving service 4d i. Defendant has a duty to avoid unnecessary costs of service and waive service ii. D only waives objections to 12b4 and 12b5 iii. Who can waive 1. Individual within a judicial district of US 2. Individual in a foreign country 3. Corp, partnership or association iv. Notice and request of service requires 1. Must be in writing 2. Addressed to a. Individual D or b. For Corps, an officer, a managing or general agent, or any other agent authorized to receive service 3. Court name where complaint filed 4. Include copy of complaint, two copies of a waiver form, and prepaid means for returning form 5. Inform D of consequences of waiving and not waiving service 6. Date request sent 7. D has 30 days after request sent to return waiver if in US (60 if outside US) a. Must be by first class mail or other reliable means v. Failure to waive 1. If D within the US fails to waive without good cause a. Will incur later expenses of service b. Expenses (atty fees) related to collecting service expenses vi. Time to answer after a waiver 1. 60 days in US 2. 90 days outside vii. Results of filing a waiver 1. Proof of service not required f. Time limit for service 4m i. Must be served within 120 days after complaint filed 28

g. h.

i.

j.

k.

l.

1. Or else dismissed by court or by 12b5 ii. Court can extend time for service if there is good cause 1. Doesnt apply to foreign Ds Proof of service 4l i. Unless service waived, proof of service required in the form of servers affidavit Serving an Individual in the US 4e i. Service laws to apply 1. State law where person is served 2. State law where court is located 3. General a. Serve D personally OR b. Substituted service i. Leave a copy at Ds dwelling with someone of suitable age and discretion who lives there OR ii. Deliver to authorized agent Serving an Individual in a Foreign Country 4(f) i. By any internationally agreed means of service that is reasonably calculated to give notice ii. If there is no internationally agreed means, a method that is reasonably calculated to give notice 1. As prescribed by the foreign countrys law for service 2. As the foreign country directs in response to a letter of request 3. Unless prohibited by the foreign countrys law: a. Personal delivery b. Using a form of mail that requires a signed receipt iii. By other means not prohibited by international agreement, as the court orders Serving a Minor/Incompetent Person 4(g) i. Follow the service requirements of the state in which service is made ii. Foreign D: 1. Follow the service requirements of the country in which service is made 2. As the foreign country directs in response to a letter of request 3. Any other means not prohibited by international agreements, as the court orders Serving a Corporation/Partnership/Association 4(h) i. In the U.S. 1. Follow the service requirements of the state in which the federal court is located or where service is made OR 2. Deliver a copy to an officer or managing agent and if so required by statute, mail a copy to the D ii. Foreign 1. Any means for serving a foreign individual, except personal delivery Serving the U.S. & its Agencies/Corporations/Officers/Employees 4(i) i. United States 29

1. Deliver a copy to the US Attorney for the district where the action is brought OR send a copy by registered mail to the civil process clerk at the US attorneys office 2. Send a copy by registered mail to the US Attorney General in WA DC ii. Agency, Corporation or Officer/Employee Sued in Official Capacity 1. Must serve the US, AND 2. Send a copy by registered mail to the agency, corporation or officer/employee iii. Officer/Employee Sued Individually 1. Must serve the US, AND 2. Serve the employee as an individual, foreign individual, or incompetent person m. Serving a Foreign/State/Local Government 4(j) i. Foreign State 1. Must be served in accordance with USC 1608 n. State or Local Government i. Deliver a copy to CEO, or ii. Follow states law for service on such a D Venue 1. Statutory law that dictates which area within the state is proper 2. Federal courts call districts, state courts called counties 3. Acts as a further localizing instrument 4. 1391 Only in federal court and to actions that originally brought in fed court a. (A) When jurisdiction is founded on diversity venue can only be brought in i. (1) Districts where D resides, if all Ds reside in the same state ii. (2) Where substantial part of the events or omissions occurred or substantial part of property that is the subject of the action iii. (3) If no 1 or 2, where any D is subject to PJ when action commenced 1. In CA, if PJ found there, then all 4 districts proper b. (B) Jurisdiction not founded on diversity i. Same as (1) and (2) above ii. (3) if no 1 or 2, where D can be found 1. Served with process c. (C) Corporations i. Residence is where PJ can be found 1. Only for the district where PJ is found (unlike PJ analysis for A3 or B3) d. (D) Aliens i. May be sued in any district 1. Although PJ still needs to be found, so most likely available venue will be where incident occurred 5. State Venue Statutes a. Removal i. Cases beginning in state court and removed to fed court are not subject to fed venue requirements 30

1. venue is appropriate in the district encompassing the state court b. possible venue rules i. cause of action or part of it occurred ii. D resides most common iii. Where D is doing business iv. Where D has an office, agent, or representative v. P resides vi. P does business 6. Forum Non Conveniens a. When jurisdiction and venue are proper, judge can use discretion to decline to exercise jurisdiction because the forum is very inconvenient i. Transfers to another sovereign court system 1. Foreign country, federal court to state court, one state court to another state court b. D has to ask for transfer of venue c. Can only be moved to a venue that is proper i. Judge will usually require D to waive SOL, PJ and venue defenses d. Court can grant FNC without first deciding if it has SMJ or PJ e. Must meet basic due process f. Economic viability of lawsuit in other court not considered i. P wanted to sue in US because higher damages ii. D attempted to FNC to mexico where damages were capped iii. Legal fees would cost more than the maximum recovery in Mexico iv. Court held it would not say Mexico is an inadequate forum because it did not make economic sense to sue in Mexico g. Factors considered i. Private 1. Ease of access to evidence 2. Witnesses ability to appear 3. Cost of witness to attend trial 4. Ability to view place where facts occurred 5. Practical considerations such as costs, logistics ii. Public factors 1. Court too congested 2. Local interest in adjudicating local case 3. Familiarity with applicable law 4. Avoiding problems in conflicts of law, or application of foreign law 31

5. Unfair burden jury 7. Federal transfer statutes a. Always must transfer to a proper court b. 1404 i. Transfer from a proper district court to a proper district court ii. Can be raised by P or D iii. Reasons for transfer 1. Convenience of parties and witnesses iv. upon motion, consent or stipulation of the parties, any action, suit or proceedingmay be transferred, in the discretion of the court to any other division in the same district 1. judge has more discretion than in a FNC v. apply public and private factors from FNC vi. Apply the law (or conflict of law) where the case was transferred from c. 1406 i. From district in which venue is improper to a proper district court venue d. 1631 i. From district where jurisdiction is lack to proper venue ii. The action shall proceed as if it had been filed in the court to which it is transferred Subject Matter Jurisdiction 1. Source a. Constitutional i. Article III 1. Created SC but left option of lower Fed courts to legislature a. A result of the fear of too much federal power 32

2. Limits lower Fed courts jurisdictions to those named in the section a. However, congress must authorize to assume jurisdiction b. Statutory i. Concurrent jurisdiction w/ state court 1331 fed Q, 1332 diversity ii. Exclusive jurisdiction for Fed 2. Federal Question a. Exclusive jurisdiction under article III i. Bankruptcy ii. Patent and copyright iii. Actions against foreign consuls iv. Admiralty and maritime v. Antitrust vi. SEC act of 1934 vii. When US is a party 1. Sovereign immunity prevents US from being sued without its consent b. Concurrent jurisdiction i. Actions arising under Constitution, federal statutes, and US treaties c. Well pleaded complaint i. P must begin complaint with a short and plain statement of the grounds for the courts jurisdiction (court will look to the Constitution, statutes giving jurisdiction and case law interpreting both) ii. Claim has to arise under a statute, the Constitution, or a treaty of the US d. Difference between 1331, 1332, and Article III i. Article III much more broad 1. Encompasses all federal issues arising under federal law 2. Can be in the Ps complaint or Ds answer 33

ii. 1331 and 1332 much more narrow 1. Federal issue must be addressed in Ps well pleaded complaint a. Good to decide if there is a Fed Q first so that money and time is not wasted litigating waiting for a fed Q to arise 2. Cannot be an issue that P thinks D will use in their answer 3. Louisville and Nashville railroad v motley a. P seeking specific performance on breach of contract claim b. Thinks new federal statute will make free railroad pass illegal c. Not federal question because the Federal Q was a defense by D d. SC would be able to hear Mottley because fits under the Art. III def of arising under e. Federalizing cases i. Broader interpretation of arising under ii. Courts take state law claims that have important federal law interests and make them federal questions f. Challenging SMJ i. SMJ cannot be waived 1. It is so fundamental that court can raise SMJ issue on their own Sua Sponte ii. Collateral attack by defaulting 1. Courts split iii. 12B1 Lack of SMJ (attack the claim) 1. No federal claim, therefore no federal jurisdiction 2. If dismissed, P can refile suit in state court because the judgment establishes only the lack of federal jurisdiction, leaving state court open iv. 12B6 failure to state a claim arising under federal law (attack the jurisdiction) 34

1. No jurisdiction because no claim arising under federal law 2. If any arguable basis for a federal claim, grant this over 12B1 v. 12B2 PJ 1. If dismissed, former adjudication precludes P form refilling in state court in the same state because courts decision that PJ is lacking will bind the state court 3. Diversity Jurisdiction 1332 a. Reasons for diversity i. To provide a neutral forum for citizens of different states ii. To allow cases that have nation scope and implication to be heard in a notional court iii. Arguments for abolishing diversity 1. 20-25% of federal case load and fed courts already back up 2. No longer serves a vital function b/c there is not much state prejudice anymore b. Complete vs minimal diversity i. Minimal diversity allowed under article III 1. P only has to be diverse from 1 D ii. Complete under 1332 1. Any P cannot have the same domicile of any D c. Timing i. Diversity determined at the filing of the action ii. 1359 no jurisdiction when a person has collusively or improperly been made a party or joined in order to invoke federal jurisdiction 1. Cant assign a claim to someone else to create diversity d. 2 requirements i. Original jurisdiction between, AND 35

1. Citizens of different states (CA v NV) 2. Citizens of a state and citizens or subjects of a foreign state (51st mythical state all seen as the same) (CA v. Mexico) 3. Citizens of different states and in which citizens or subjects of a foreign state are additional parties (CA and Mex v NV and Canada) a. Minority say no diversity because 51st st v 51st state 4. Foreign state as P and a citizen of a state or of different states ii. Amount in controversy EXCEEDS $75,000 (75,000.01) 1. Amount is exclusive of costs and interest a. Costs do not include attorneys fees but to include expert witnesses, filing fees, copying fees b. Interest included if it is pertaining to a loan i. Interest not included when there is a breach, someone waits a year to file, and then wants interest accrued over that year 2. Purpose a. To keep smaller diversity cases out of federal court b. Discriminating against the poor? i. No, poor people can have large claims too 3. Timing a. Computed on the date of the filing of the action 4. Valuing nonmonetary claims a. Injunctions, equitable relief estimated either from Ps point of view or Ds point of view b. Usually from Ps point of view 5. Must be a good faith estimate by P that it is over 75k a. In order to reject Ps good faith estimate it must be a legal certainty that P cannot recover more than 75k 36

b. If ultimate recovery is less than 75k, court does not lose jurisdiction. Court may deny Ps costs or make P pay for Ds costs (attorneys fees not included) 6. Aggregating claims a. Single P i. can aggregate all related or unrelated claims against a D 1. 30k claim + 60k claim = 90k OK ii. Can aggregate all claims against multiple Ds IF they are jointly liable 1. Narrowly construed usually for joint owners of property b. Multiple Ps i. cannot aggregate separate and distinct claims against D 1. P1 30k and P2 80k P2 OK P1 nope ii. Can aggregate claims against D only if they have a common undivided interest 1. Joint owners of land c. Class action i. Claims of class members aggregated and must exceed $5 million even if no one claim is over 75k d. Counterclaims i. Compulsory 1. If Ps claim over 75k, counterclaim of any amount will be heard ii. Permissive 1. If Ps claim over 75k Ds counterclaim must be over 75k

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2. If not over 75k, courts split on whether counterclaim can aggregate to meet amount in controversy e. District of Columbia Puerto Rico, and US territories are included as States f. Citizenship is determined by residence plus subjective intent to remain for the indefinite future i. US citizens domiciled abroad cannot sue in fed court ii. Domicile is your last previous domicile until it is affirmatively changed 1. Ex someone previously domiciled in CA traveling around Europe in a van (no new established domicile) is still domiciled in CA iii. Corporations/insurers 1. Corporations have two domiciles a. State incorporated in b. Principle place of business i. Brain test HQs ii. Muscle where manufacturing goes on and where most employees are iii. Nerve Where the most contact with the public 2. Insurers have potentially 3 domiciles a. State incorporated in b. Principle place of business c. State where the insured is a citizen (if insurance co is not a direct party) iv. Legal representatives of 1. estate of a decedent a. Where decedent was a citizen 2. Infant or incompetent 38

a. Citizen of state of infant or incompetent v. Associations, unions, or partnerships 1. Have no single domicile 2. Must consider the domicile of every member in the group vi. Matters regarding divorce and wills 1. Excepted even if over 75k and from different states vii. Class action 1. Only citizenship of the class representatives used g. Permanent resident alien 2 domiciles i. considered a citizen in the state in which he/she is domiciled AND ii. An alien (51st state) iii. Sadeh 1. Perm resident alien v alien not allowed for diversity 2. Unconstitutional b/c not a power granted under article III or 1332 3. Amendment only created to destroy diversity between PRM on a state and a citizen of the same state a. Meant to limit/contract diversity b. No need for a neutral forum because both parties living in the same state iv. Where there is no diversity 1. Permanent resident alien v any alien 2. Permanent resident alien from CA v CA citizen v. Minority view Singh 1. Allowed PRA v alien and US citizen h. 1359

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i. Court will not hear a case where a party has assigned rights or acted collusively to create diversity jurisdiction 1. But apparently it is ok to do this to destroy diversity Supplemental Jurisdiction 1. The means to support SMJ for additional claims to diversity or federal question claims in Federal court 2. Broadens federal jurisdiction to cover actions that would normally not be able to be brought in federal court 3. Purpose a. To promote judicial economy and consistency of decision i. Removes obstacles to have all related controversies decided in one proceeding 4. The statute a. A additional claims must be the same case or controversy under article III of the original claim. Include joinder or intervention of additional parties i. Derived from a common set of facts ii. Would ordinarily be tried as one case b. B diversity court will not exercise jurisdiction if based on diversity, and the state claim or party destroys diversity i. Claims by P against parties joined under 14, 19, 20, or 34 ii. Claims by persons proposed to be joined as Ps under rule 19 iii. Claims by persons seeking to intervene as Ps under rule 24 c. C- Court can decline to exercise supplemental jurisdiction if (broad discretion by judge) i. Claim raises a novel or complex issue of state law 1. No previous law 2. New area that should be left to be developed by state court ii. The state claim predominates over fed claim 40

1. Tail cant wag the dog iii. The district court has dismissed all claims over which it has original jurisdiction 1. Courts will consider the amount of time invested in the case by the court iv. For any other compelling reasons 1. Deference to the rights of states to decide issues involving state law 2. How the fed govt effectively protects dederal prerogatives without engendering needless conflict with state judicial systems d. D opens a 30 day window of time to file state claim in state court when the claim has been dismissed (either as not arising under same case or controversy of dismissed b/c fed claim dismissed) i. Time period can be longer if state statute says so 5. Method a. Start with A b. If Diversity, look at B, then to C c. If no diversity skip to C 6. SOL a. P bring action in fed court with supplemental state claim b. state SOL runs and fed claim is dismissed and court refuses to exercise jurisdiction over remaining state claim c. courts sometimes have saving statutes that give P a limited time to refile in state court i. others look to 1367D 7. Judges discretionary power a. Appeal for a judges decision based on 1367C must be under abuse of discretion Removal Jurisdiction 1. 1441 removal generally 41

a. A can remove to where P could have originally sued in federal court i. Concurrent jurisdiction ii. Must remove to the district court in which the fed court lies 1. Ex P files in sacramento county state court, D can removed to Eastern District b. B i. If a diversity claim, D cannot remove if D is a citizen of the forum state (home state prohibition) 1. No need to protect D from state discrimination ii. If a fed Q, no home state prohibition c. C For a Fed Q, if one or more state claims (non removable) are joined, the entire case can be removed or in the judges discretion, the claims which state law predominates will be remanded i. Unnecessary? 1. If the claim arises out of the same case or controversy then it is covered by supplemental jurisdiction 1367 ii. Unconstitutional? 1. Not a power granted by article III (3 categories, federal Q, diversity, or same case or controversy) 2. 1446 procedure for removal a. A D must (if multiple Ds, all Ds must remove together) i. File removal in appropriate district court 1. Short and plain statement pursuant to rule 11(signature) of the grounds for removal, together with a copy of all process, pleadings and ourder served upon D in such action b. B Notice of removal must be filed within 30 days of D being served OR 30 after the case has become removable i. For diversity cases, cannot remove 1 year after the filing of the suit 42

1. Ex case becomes removable 11 months and 20 days after filing a. D can remove over the next 10 days but cannot afterwards ii. If multiple Ds courts split on whether 30 days from service of first D or 30 days from service of the particular D who seeks removal 3. 1447 procedure after removal a. If the case was improperly removed, the fed court should remand it to the state court. Remand is required whenever the court determines that removal was improper, unless final judgment has been entered i. Caterpillar jurisdictional defect at the time of removal (not complete diversity). Defect cured at the time of final judgment (complete diversity). Judges disregarded defect in favor or judicial economy, finality, and efficiency b. If the ground for the motion to remand is something other than lack of SMJ (eg a defect in removal procedure), the motion must be made within 30 days after the notice of removal is filed c. Remanding and attorneys fees i. If case is remanded, court has the discretion to award attorneys fees to the party seeking the remand (party who incorrectly sought removal must pay) Erie Doctrine choice of law 1. Some basics a. Always apply the procedural law of the forum i. in CA state court, state procedural law ii. in CA fed court, fed procedural law b. Fed Q in fed court apply fed substantive law c. State claim in state court apply state substantive law 2. ONLY APPLY ERIE IN DIVERSITY ACTIONS IN FEDERAL COURT a. Can also be applied for supplemental state claims under a federal question in federal court 3. Substantive vs procedural 43

a. Substantive i. Laws that have to do with peoples rights and responsibilities, legal duties, and remedies ii. SOL is substantive iii. Conflicts of law are substantive b. Procedural i. Laws that have to do with the operation of the courts, the conduct of litigation, and rules of civ pro 4. Rules of decision act 1652 a. Requires that federal courts apply, as the decisional law in federal diversity cases, the substantive state law where the federal court sits 5. Rules enabling act a. Authorizes the federal judiciary to put into action federal rules of civil procedure provided that those rules do no abridge, enlarge, or modify any substantive state rights 6. Before Erie a. Swift v. Tyson i. Held that laws in the rules of decision act did not extend to state judge made case law ii. Would be bound by case law only on peculiar local matters but not one more general topics 7. Erie a. Overruled swift i. Said it was unconstitutional ii. Did not say that Swift violated any clause but that the Constitution lacked a clause conferring upon congress or the federal courts a power to declare that substantive rules of fed common law apply in a state iii. Constitution preserves the autonomy of the states, and supplanting their law with federal common law is allowed only when detailed in the constitution 44

b. Must apply the substantive law of the state (state common law as well as state statutes) but still apply procedural law of the forum c. Federal common law still exits, but only for federal question cases d. Test i. Avoid forum shopping 1. Choosing a federal or state court to get federal or state law to apply if one would produce better law and thus a better result for your client than another court ii. Avoid the inequitable administration of the law 1. Justice and applicable law should be applied consistently a. Out of state citizen suing in state citizen should not have the benefit of choosing between two laws (state and fed) where a dispute between two in state citizens only have access to state substantive law (if it is not a fed Q) 8. Determining what is substantive and what is procedural a. Guaranty trust v York i. Outcome determinative test (modified test in Byrd is what is used) 1. Will application of federal law instead of the state law change the outcome of the case? 2. If so, then the law is substantive ii. Effect on forum shopping 1. Removes incentive to go to fed court because you will not get a difference in the ultimate outcome of the case 2. Removed citizenship bias before, in state litigants were stuck with state statutes, where out of state litigants could chose between state and federal law by deciding to sue in either state or fed court iii. Problem with the test 1. Overly broad 2. Any law can be construed to be outcome determinative 45

3. Parties may purposefully miss deadlines so they can argue that the law is outcome determinative b. Byrd i. Modified outcome determinative test ii. Test 1. Are the state laws rights and obligations bound up with the state law in question; AND a. How important the state rule is and how powerful the state policy is with respect to making sure the state rule is followed 2. Balance that bound up state interest with the interests of the federal court a. Federal interest in applying federal law in this case i. In Byrd, the interest of preserving the 7th amendment and essential character of federal court to allow juries to decide factual issues c. Hanna i. Test 1. If state law issue conflicts with a federal law, check whether a. The rule was created under the Rules enabling act i. As opposed to purely decisional 1. Ie not the result of an interpretation of positive law found in the constitution, act of congress, or a federal rule 2. If it is under the Rules enabling act, apply the federal rule unless a. Rule is unconstitutional or i. No FRCP is ii. Possible if he gives us a new FRCP on the exam b. Rule violates the Rules Enabling Act 46

i. It would have to abridge, enlarge, or modify a state substantive right 9. Erie flowchart a. Does Erie apply? i. Only in Federal diversity cases b. Is the rule clearly substantive or clearly procedural? i. If substantive, apply state law ii. If procedural, apply federal law iii. If perhaps either, go on c. Can the conflict be harmonized by interpreting narrowly or broadly? i. If unavoidable, go on d. Check the source of federal law i. Federal practice common law 1. Erie, York, Byrd 2. Apply Erie twin aims and Byrd modified outcome determinative test ii. FRCP 1. Hanna 2. Federal rule governs unless it violates the rules enabling act or the constitution iii. Federal statute 1. Federal rule govern if it appears that congress meant it to be remotely procedural iv. Constitution 1. Supremacy clause 2. Federal rule governs Conflicts of Law 47

1. Generally a. Used to decide which substantive law to apply b. Horizontal analysis of substantive laws between states or countries c. Klaxon i. Federal court applies the state conflict of law principles of the state where it sits 2. Lex Fori a. Apply the law of the forum b. Reasoning: If there is personal jurisdiction over D and it is fair, then so should applying the forums substantive laws c. Advantages i. Predictability 1. Apply states own law ii. Ease of administration 1. No dispute over conflict of law provisions iii. No law manipulation 1. Attorneys cannot argue for other laws to apply d. Disadvantages i. Allows complete forum shopping for substantive law 3. Multilateralism i. Apply a specific rule that identifies a determinative contact to decide which law should apply 1. Can be where domicile is etc 2. Can be the place of the wrong lex loci ii. Reasoning: meant to do away with forum shopping

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1. If accident happened in CA, P would supposedly get the same substantive law if he filed in CA court or Minn court iii. Advantages 1. Creates uniform results 2. Predictable iv. The problem 1. Assumes that every state/country applies the same conflict of law principals 2. Not very realistic, system breaks down if CA applies multilateralism and Minn applies lex fori v. Applying foreign law 1. Possible problems a. Can it be applied correctly? 2. Support for applying foreign laws a. Comity i. Apply foreign law in order to pay respect to their jurisdiction and sovereignty 1. We apply Italian law because that is where the tort took place, so Italian law should govern Italian affairs b. Vested rights i. Means that the situs of the action happens in a state/country and therefore any legal remedy for that wrong is tied to the country from where it emanated 4. Unilateralism/most significant relationship a. Discretionary decision making that tailors to the needs of each particular case i. Encourages judges to look beyond domicile or site of the event and consider a broader range of contacts in order to make the choice of law decision 49

1. Similar to establishing min contacts for PJ b. Problems i. No predictability, consistency, and is open to manipulation by crafty attorneys 5. Harmonization a. Focuses on commonalities rather than on differences b. Looks to see if there is an interstate or international rule on point c. Most unrealistic approach because it expects everyone to hold hands and be friends

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