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Attack p. 1

1. Subject matter jurisdiction Article III

State court: general jurisdiction (Lacks)
Fed: Federal question 1331
o Cause of action must arise under the Constitution or federal laws (Mottley) 1331
Holmes creation test which law created the cause of action? (Harms)
Cant just anticipate a federal defense (Mottley, Osborne)
Cant be a contracts question (Harms)
o Exslusive Certain cases are always federal question cases, founded on a federal statute:
copyright, U.S. is a party, etc.
o Concurrent FELA
Doesnt require minimum amount in controversy
Fed: Diversity of citizenship 1332
o Complete diversity on day of institution Strawbridge
Interpleader Act 1335, FR 22
Class actions with 100 or more people and > $5m at stake requires only minimal
diversity 1332(c)(2)
o Minimum diversity
Mass disaster act 1332(c)(11)
o How to determine citizenship (on the date suit is filed)
People domicile
Corporations (1) where its incorporated; (2) principal place of business (case?)
Nerve center test: where executive decisions are made (use this: Hertz)
Muscle test: principle place of business
Total activities test: combination
Unincorporated associations: cumulate all states of members of board
Representative actions
Children, incompetents, and estates citizenship of represented party
Class actions citizenship of representative
o Amount in controversy
Over $75k exclusive of interests and costs
can aggregate damages over several claim against one
Mult. s cant aggregate against unless joint claims/class action
s cant aggregate against mult. s unless joint claims
Fed: Supplemental jurisdiction 1367
o State claims can be appended to federal claims in federal court only if:
Theyre under the same case and controversy 1367(a)
Common nucleus of operative fact (Gibbs)
It is efficient to try the claims together 1367(c)
The state claim cant be novel or complex and cant be predominate over the federal
claim 1367(c)
o In diversity cases 1367(b)
Cant be brought in if:
Under 1332 (diversity)
Claim by original
Falls under FR 14, 19, 20, 24 party (rule under which party was originally
brought in) AND

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Destroys diversity
2 against original MAY come up without amount in controversy (Allapattah)
As long as its the bringing in a party under 14, its fine
o Pendent jurisdiction: when appends claim lacking indep. basis for federal SMJ to a claim w/
o Ancillary jurisdiction: either or injects a claim lacking indep. fed. SMJ via joinder from the
same T&O as original claim that does have SMJ
Federal subject matter jurisdiction cannot be waived FR 12(h)(1)
Court may decline supplemental jurisdiction for any reason (its not a right), including inter alia novel
issue of state law, state question predominates, or original claims are dismissed
2. Personal jurisdiction (so long as no one waived PJ)
Only question will be whether youre in the right court
Traditional bases
o Physical presence (Pennoyer)
Burnham if you have physical presence, you dont need minimum contacts
Brennans concurrence in Burnham doesnt apply when youre not voluntarily in the
o Domicile residence/physical presence with intent to remain
o Agency FR 4(e)(2) (Szukhent)
o Express consent: explicit or implicit (Hess), agreed to in a forum clause (Carnival Cruise)
o Doing business domicile for corporations
Cant be obtained by fraud
Specific jurisdiction
o State long-arm FR 4(k)(1)(A)
Is it constitutional? 5th Am.
o Minimum contacts continuous and systematic (Shoe)
Cause of action arises out of the contacts plus one of the following
Purposeful availment, reasonably expect to be hailed into court (Shoe)
Volitional, cognitive, purposeful contacts cant just exist due to s action
Single contact with substantial connection, purposefully directed (McGee)
Stream of commerce (WWVW) expect product will be brought into forum state
Stream of commerce, plus: acts purposefully directed at state (Asahi)
o Required to meet the higher standard for foreign corporations
Effects test if fair play is satisfied (Calder, Kulko, Keeton)
o Basically a way to get someone when minimum contacts/purposeful
availment doesnt
Foreseeability alone is not enough, but is evidence (Woodson, WWVW)
Contact is not random/fortuitous (BK) or unilateral act of 3rd party (Hanson)
o Fair play and substantial justice (Shoe)
must show contacts; must show lack of fair play (Burger King)
Look to the foreseeability of being haled into court (WWVW)
Relevant factors (Woodson):
s burden
Forums interest
Ability to obtain relief
Systems interest in efficiency
Substantive social policies
o Jurisdiction based on property (Pennington)

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In rem: requires dispute be based on property and the property is present in state
Quasi in rem: minimum contacts (Shaffer) and the property is present in state
Depends on state long-arm
Remedy limited to value of property attached
o Jurisdiction based on consent
Expressed (Contract: Burger King, Carnival Cruise)
Implied (Hess)
Result of failing to obey the rules of the court (Insurance Corp. of Ireland)
Failing to move to dismiss
General jurisdiction (mention it even if you dont need it) when no long arm or cause of action doesnt
arise from contacts, need both:
o Continuous and systematic association (BK, Helicopteros)
o Ongoing and substantial relationship (Perkins)
Purchases arent enough where cause of action isnt related (Helicol)
Continuous and systematic
Continuous and systematic
Isolated and Sporadic
Isolated and Sporadic

Arises out of
Doesnt arise
Arises out of
Doesnt arise

PJ (Shoe, McGee, Burger King)

PJ if very cont/syst (Perkins)
PJ sometimes (Hess, Gray, WWVW, Asahi)
No PJ (Helicopteros, Hanson, Kulko)

Technological jurisdiction
o Zippo test:
Passive: website does little more than provide information, rarely ground for jurisdiction
Active: where the website is a venue for conducting business with certain residents,
jurisdiction is almost always proper
Interactive: middle ground, information exchange but no commerce or possibly no
knowledge of location of exchangers, courts are divided about whether this established
jurisdiction (some require cause of action arise from these contacts, some require
additional action in state, etc.)
Must be challenged in the pleading or it is waived FRCP 12(b)(2)
If isnt subject to personal jurisdiction in any state but have contacts with the country as a whole,
service of summons of waiver of service established personal jurisdiction FR 4(k)(2)
3. Notice and opportunity to be heard
Notice was reasonably calculated under the circumstances to give actual notice (Mullane)
o Mullane standard
Personal service is best
Direct mail is acceptable where an accurate address is known
Where conditions dont permit direct notice, publication
If publication is not substantially less likely to bring actual notice
Notice to a class must be reasonable certain to reach most members
o About service, not whether notice was actually received
Opportunity to be heard
o gets an opportunity for a hearing to dispute pre-judgment attachment (Fuentes, Doehr)
Exceptions (Fuentes)
To secure a government/public interest
Special need for prompt action
State controls the seizure
o If court attached property without opportunity to be heard, it looked into: (Doehr)
Risk of erroneous deprivation

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Interest of
Government interests
Immunity for people coming into the state for a running trial (Duffield)
Notice by fraud doesnt count (Wyman)
4. Methodology of process
Proper service
o Cannot be attained by fraud (Tickle, Wyman)
o who enters a state voluntarily to defend against a charge is not immune to other civil service if
he entered the state voluntarily before the original charge (Sivnitsky)
Federal rules of service of process: need one
o Service under the law of the forum state FR 4(e)(1)
o Service under the law where process is served FR 4(e)(1)
o Personal service on the individual FR 4(e)(2)(a)
o Leaving a copy at a residence with someone of suitable age & discretion FR 4(e)(2)(b)
o Substituted service only where there is a high likelihood the service will be passed on FR
4(e)(2)(c) (Szhukent)
o Improper service must be asserted in the answer or it is waived
o FR 12(b)(4): improper process (constitutional)
o FR 12(b)(5): improper service (statutory)
5. Venue
Three questions to ask:
o Is venue proper under 1391
o Can move to transfer under 1404(a)
o Can assert forum non conveniens
Proper venue in a federal court 1391
o (a) Federal question or diversity and question cases:
Residence of if all reside in one state
Where a substantial part of the events giving rise to the claim occurred
If first two fail, where any can be found
o (b) Solely diversity cases:
Where resides
Where a substantial part of the events giving rise to the claim occurred
If first two fail, where is subject to personal jurisdiction
o (c) Corporate reside, for venue purposes, where its subject to personal jurisdiction (case?)
o Special rules
Aliens may be sued in any district
Where is a U.S. agent & no real property involved, default is where resides
Where is a foreign state, see 1391(f)
o Local actions: in cases involving injury to land, should be brought where land is situated, but
other state courts can hear the case so long as they apply the law of the state where the land is
o Transitory actions: where problems of personal jurisdiction prohibit local action, must be
brought where resides (Reasor-Hill)
Transfer venue 1404(a)
o May only transfer to jurisdiction where suit could have originally been brought at time of
commencement (Hoffman)
Must have subject matter jurisdiction, personal jurisdiction, good service of process, and
proper venue

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o Convenience of parties and witnesses
o In the interest of justice
o Transferee court applies law of transferor court (Van Dusen)
Dismissal for forum non conveniens (Piper Aircraft)
o Used where transfer isnt possible
Cant transfer between states
Cant transfer federal to state
Cant transfer to a foreign country
o An alternative forum exists (Gilbert)
o Alternative forum has overpowering interest (Piper Airplane)
o Court may require to consent to adjudication in alternative forum or hold the case in abeyance
to decide the issue later, after discovery
6. Removal 1441
State to federal court only
o Same district/division where state court was located
Only if action could have originally been brought in federal court (SMJ, etc.)
Party seeking removal must be an original
o Anyone can remove on federal question grounds
o Only can remove on diversity grounds if you arent a resident of the original forum (Merrel
o All s must consent
FELA cases cant be removed
Waived if has taken substantial defensive action
7. Waiver
Rule 12(h)(3): SMJ can never be waived
Waived if not raised in pre-answer motion or in the answer (Rule 12(h)(1)):
o PJ
o Notice
o Process
o Venue
Attack p. 2
1. Erie stuff
Prevailing laws
o RDA 1652 diversity, fed. Courts apply state law
o 10th Am. powers not delegated to fed. Courts are reserved to the states
o REA 2072 SC has power to prescribe general rules of practice and procedure cant
abridge/modify/enlarge substantive right
o Supremacy clause Article VI
Aims (Guaranty)
o Prevent inequitable administration of law
o Discourage forum shopping
State vs. federal law in federal courts
o Is this a diversity case?
No federal question, apply federal law
Yes continue
o It is a state substantive right? Vs. procedural issue (Erie)
Always apply state substantive right
Brandeis in Erie, because Constitution doesnt give federal courts the power to
crate substantive federal common law

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SoL (Ragan, Walker)

o Outcome determinative? (Guaranty)
No apply federal law
Yes continue
o Countervailing federal interest? (Byrd)
Yes are they Constitutional/federal statutes?
To control a federal law must be:
o Applicable (deals with the issue at hand) (Shady Grove)
o Valid
o Constitutional
No continue
o Are the laws in question in direct conflict? (Hanna)
If federal rule doesnt conflict with state law, apply state law
If the federal law covers the state law Supremacy clause
Is the federal law valid? (Cant abridge/modify/enlarge substantive right)
o If yes, apply federal rule
o If no, state law
State law cannot be applied unless the federal law it conflicts with is beyond federal
powers (Shady Grove)
Ascertaining state law
o Federal court sitting in diversity must apply choice of law/conflict of law rules of the state
State law travels with transfer (Van Deusen)
o DC may reinterpret state law (Mason):
DC may behave as state supreme court if last case is outdated and direction of state law
indicates change
Federal common law
o If the subject matter is of federal interest interest in nation-wide uniformity
The validity of federal bonds (Clearfield Trust)
Admiralty (except those areas bound by statute)
International relations
Defense contracting (Boyle)
Where Congress writes a statute that doesnt cover the entirety of a subject (maybe
missing a jurisdiction provision, or a statute of limitations, etc.)
Look to analogous federal statutes
Assimilated federal crimes act federal court incorporates the criminal law of the state in
which the crime occurs
Double penalize if it crosses state borders
o If there is a statute governing the issue, apply the legislation (Mobil)
o If its a state-law based claim, no federal common law (Miree)
Federal law in state courts (inverse Erie)
o Supremacy clause federal law controls in state courts on a federal claim
Apply with care (Dice)
FELA apply FRCP (Dice)
Even if procedural (Brown)
2. Pleading FRCP 8
Fact pleading code standard
o Statement of facts constituting a cause of action or right to relief (Gillispie)
What, where, who, relationship, etc.

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Old system, most follow notice pleading

Notice pleading
o Grounds for jurisdiction
o Short and plain statement of facts 8(a)(2)
o Claim shows entitled to/demand for relief
Ad damnum clause - default judgment shall not exceed this amount unless in the interest
of justice 54(c) (Bail)
o Complaint construed in light most favorable to pleader (Garcia)
Unless it appears beyond a doubt that the pleader cant prove any facts to support his
claim for relief (Conley)
Plausibility (Twombly, FRCP 12(b)(6)) heightened from Conley
Motions attaching the pleadings 12(b)(1-5, 7)
Answer 8(b)
o Admission
o General denial
o Qualified denial
o Specific denial
o Denial of knowledge or information
o Denial based on information
o Good faith
o Affirmative defenses
Special pleading FRCP 9
o Must state circumstances of fraud/mistake 9(b)
o Conditions precedent: deny generally 9(c)
o Special damages 9(g)
Unexpected damages must be specified (Ziervogel)
Heightened pleading (Tellabs)
o Accept allegations as true
o Consider sources
o Must be at least as compelling as any competing force (Ginsburgs opinion in tellabs)
Scalia wants to be more compelling than
Amended/supplemental pleading rules FRCP 15
o May amend once before answer 15(a)
o With courts leave (liberally granted)
o If evidence is objected to, should freely permit amendments 15(b)(1)
o If evidence is tried by express/implied consent, may amend after judgment 15(b)(2)
o New events supplemental pleading allowed 15(d)
o When amendment relates back to date of original pleading 15(c)
New claims
Law allowed relation back 15(c)(1)
New claim arose from same T&O as original pleading 15(c)(2)
New parties 15(c)(1)(C) (more rare)
Same T&O
Must have notice within 4 months
Should party have known but for mistake of identity hed be a (Krupski)
To relate back the added claim must have been time-viable on the day the action was
instituted. You cant relate back something that was already dead on arrival. Test may
ask a relation back question when you are really facing a claim that was time-barred
when instituted

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Sanctions 11
o In signing the pleadings, lawyer is certifying the paper is not being presented for an
improper/frivolous pupose
o Safe harbor provisions 21 days to amend the offending document before sanctions
o Dont apply to discovery or disclosure 37
o Joinder of claims FRCP 18(a)
Federal court, can join any other claim against
State court, anything realy but some insist T&O relationship
o Permissive joinder of parties (same for joinder of s or s, need both) FRCP 20
Need PJ and cant destroy diversity in a diversity suit
Same transaction and occurrence or series
Common question of law or fact will arise
Where claims (s) or liabilities () aride from same T&O as long as there is a CQ
of law/fact
o Required joinder of parties (need one) FRCP 19
Need PJ and cant destroy diversity in a diversity suit
Cannot otherwise get relief, or 19(a)(1)(A)
Party claims interest relating to subject AND disposing action in absence 19(a)(1)(B)
Impairs ability to protect interests
Leaves existing party with substantial risk
Court can order joinder of parties
o Where joinder is not feasible (destroy diversity or unable to get PJ over new party) 19(b)
Will judgment prejudice absent/existing parties?
Would judgment be adequate?
If dismissed for nonjoinder, will have relief?
Counterclaims - asserts claim back against FRCP 13
o Requires sufficient jurisdiction
o Compulsory (need both)
Arises of out same transaction and occurrence
If same CNOF or T&O, likely the same case/controversy for 1367
Doesnt require additional parties that dont have jurisdiction
Can still be brought without diversity or amount in controversy under
supplemental jurisdiction
o Permissive any claim
o Co-party (need one) 13(g)
Arises out of same transaction and occurrence
Related to property involved in original action
Cross-claims ( v or v ) 13(g)
o Same T&O
o All permissive
o 1367 even if no diversity or amount in controversy under supplemental
Impleader (adding a 3rd party) FRCP 14
o Need PJ
o or defended a counterclaim alleges nonparty is liable for all or part
T&O standard
o 3 party s potential defenses 14(a)(2)
Must assert rule 12

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Must bring 13(a) claims

May bring 13(b) claims
Claim against original that is T&O related 14(a)(2)(D)
Additional parties under 14
o may assert claims against 3rd party under same T&O
Allows 3rd party to bring 13(b) and 13(g) claims
Must bring 13(a) claims
Original cannot sure 3rd party if it would kill diversity (Kroger)
Interpleader (when a 3rd party tries to get in) FRCP 22
o Stakeholder places property with court for interested parties to fight over (minimal diversity)
o When parties exposed to multiple liabilities, consolidate, even if
Claims arent related
Liability is denied
o Intervener 24
Does statute permit it? 1335
Is the interest claimed related to the subject of the action?
Permissive intervener where common question of law or fact
Class action
o SMJ 1332(c)
FQ: based on a federal claim
Diversity: any versus any AND aggregated over $5m
o Absent class members (Shutts)
Adequacy of representation
Notice to all class members (even absent ones)
Opportunity to opt out
o Certification (need all) FRCP 23
Class = definable group
is representative of class
Numerosity at least 40, no less than 25 23(a)(1)
Common question of law/fact 23(a)(2)
Typicality of claims 23(a)(3)
Adequacy of representation 23(a)(4)
o Classification 23(b)
Anti-prejudice (look to potential for inconsistent results) 23(b)(1)
Injunctive relief 23(b)(3)
Monetary damages must be incidental to injunctive relief (Walmart)
Non-natural class, monetary damages (damage class, mass torts) 23(b)(3)
Predominance common questions predominate over individual questions
Superiority class action is superior to other forms
Hybrid actions must meet b3 requirements
o Notice
Required for b1 and b2
For b3, best notice that is practicable 23(c)(2)(B) (Mullane)
Individual to members who can be reasonably identified
Judge may order notice for anything, not bound by Mullane standard
o Settlement
If binding to all members, must be fair/reasonable/accurate 23(e)(2)
For all b3 classes, must have opportunity to opt out
Any member may object 23(e)(5)

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o Attorneys requirement 23(g)(1)(A)

o 3 questions
Does res judicata apply so cause of action is barred from being relitigated?
If it doesnt, does collateral estoppel apply?
Who is to be subjected to res judicata/collateral estoppel?
o Res judicata/claim preclusion
Cant litigate any aspect of claim you have or could have litigate in same T&O
If it could have been joined, should be precluded (13(a, g), 14(a)
Valid judgment?
o Must have PJ over in original suit
o Defects in service/default judgments dont count
o Judgment entered without sufficient notice isnt valid (Jones)
Final judgment
Who is bound
Privy to party
Exceptions in which non-parties are bound (Taylor)
o Contract/waiver
o Certain substantive relationships
o Non-partys interest adequately represented in 1st suit
o Non-party assumed control over 1st suit
o Non-party colluded to avoid preclusion by litigating through a proxy
o Special statutory schemes (class actions, bankruptcy, on behalf of public)
o Collateral estoppel/issue preclusion
Different cause of action, different circumstances, same issue
Issue in1st trial is identical to issue in 2nd
Valid and final judgment
o Valid SMJ and PJ
Issue was actually litigated
Issue was necessary to 1st judgment
Who is bound
Not bound if not a party to 1st action
Summary judgment
o Case must be plausible to survive summary judgment motion
Look at evidence in light most favorable to pleader
Look only at admissible evidence
Look to material facts asserting a claim
o Deciding the motion
Moving party must been burden to show no genuine issue
Burden shift to opposing party to show issue remains
Must set out specific facts, cant rely on allegations/conclusions
o Summary judgment is likely if
Claim has no legal basis
Material demonstrates amazing defense
o In general, if there are any gaps in the information or something seems fishy, itll probably

Civ Pro Outline Miller


Table of Contents
Attack guide1
Millers checklist
1. Subject matter jurisdiction...13
a. In state courts.13
b. In federal courts.13
i. Diversity of citizenship..13
ii. Federal question.15
iii. Supplemental jurisdiction..18
2. Personal jurisdiction.20
a. Traditional bases20
b. Specific jurisdiction...21
c. General jurisdiction25
d. Internet and other technological contacts..26
e. Jurisdiction based on property...27
f. Jurisdiction based on physical presence29
g. Jurisdiction based on consent30
h. Reach of the federal courts jurisdiction31
3. Notice and opportunity31
4. Methodology of process...33
5. Venue...33
a. Transfer in federal courts...34
b. Forum non conveniens...35
6. Removal...36
7. Waiver..37
Additional information
1. Applicable law.37
a. State law in federal courts..37
b. Federal common law..43
c. Federal law in state courts..44
2. Pleading45
a. Complaint...45
b. Response....50
c. Amendment and supplemental...51
d. To deter frivolous pleading51
3. Joinder..............51
a. Joinder of claims51
b. Addition of claims by .52
c. Impleader...52
d. Interpleader52
e. Intervention52
4. Class actions.52
a. Overview/Operation...53
b. Jurisdiction.56
c. Settlement..57
d. Preclusivity57

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5. Res judicata and collateral estoppel57

a. Claim and defense preclusion57
b. Issue preclusion..60
c. Persons benefitted or bound...61
d. Intersystem preclusion...64

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Millers checklist
1. Subject matter jurisdiction
a. In state courts
FR 12
Lacks v. Lacks, 1976
State courts hear anything
Relevant facts/arguments
o A husband and wife were married and after 15 years of turbulent relations, the husband filed for
The divorce was granted by a New York state court and a final judgment on the matter
was rendered
o Two years later, the wife tried to appeal the matter based on lack of subject matter jurisdiction,
alleging her husband had not been a resident of New York for a full year
o The New York Court of Appeals denied the wifes attempt to argue lack of subject matter
jurisdiction, finding it was not at issue in the case because the case was decided in a state court of
general jurisdiction; therefore, the court was competent to entertain the action
o Issues related to the substantive elements of a cause for relief do not result in lack of subject
matter jurisdiction because to hold that they do would undermine the doctrine of res judicata

b. In federal courts
Article III 2: Federal courts are court of limited jurisdiction as laid out in Article III of the US Constitution;
therefore, in order to have federal question jurisdiction, the plaintiffs claim must arise under the Constitution,
treaties, or laws of the United States
Bases under Article III
o Federal question
o Diversity
o Alienage
o Admiralty
o Disputes between states


Diversity of citizenship

USC 28 1332: scope of diversity jurisdiction

Complete diversity of citizenship: everyone whos a must come from a different state than everyone
who is a

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o If even one is from the same place as one (even in actions that include multiple people on
wither side of the v), there is no diversity
Strawbridge v Curtiss, 1806 basic rule
o Note: Congress has not given the federal courts all the power it could give them under Article III
Limits by amount in controversy, by requiring complete diversity, and by outlining
specifically which types of cases get exclusive federal jurisdiction, among other things
(a): where controversy exceeds $75k AND is between different citizens
o (1) of different states
o (2): alienage citizen v. alien
An alien admitted to the U.S. for permanent residence is considered a citizen of the state
they live in for the purposes of domicile status and jurisdictional issues
DC shall not have jurisdiction of an action between citizens of a state and citizens of a
foreign state who is lawfully in the U.S. and is domiciled in the same state as the other
Alien v. alien, when both are domiciled in separate states, would both fall under federal
jurisdiction under this section and also not fall under federal jurisdiction under Article III
(b): If the ruling ends up coming out to less than $75k, the court may deny costs to the
(c): 1441
o Corp. is a citizen of the state where its incorporated or where its principal business is
Except in certain insurance situations
o Representatives of a decedent or infant will be from where the decedent or infant resides
o Hertz says where decisions are made
(d): class action rules
o Any one is form a different place as any one
o Federal courts can turn down this manifestation of jurisdiction under certain circumstances
o Mass-actions: not class actions, because the members dont agree to be one entity
28 USC 1359: if a party was made to join a lawsuit just to gain federal jurisdiction, there is not federal
28 USC 1369: Multiparty, multiforum jurisdiction
Aggregating claims under 1332(a):
Where a single plaintiff has multiple claims against a single defendant, you can aggregate the individual
claims, even if they have nothing to do with each to achieve the requisite amount in controversy
Where there are multiple parties (either multiple plaintiffs, or multiple defendants, or both) the rule is
exactly the reverse of the rule for a single plaintiff and single defendant; you cannot aggregate claims
unless the claims really are joint claims
Strawbridge v. Curtiss, 1806: complete diversity of citizenship
Corporations citizenship:
White v. Halstead Industries, 1990
Discerning a corporations principal place of business
o Nerve center test: locus of the decision-making authority
o Corporate activities test: location of production or service activities
o Total activities test: considers all circumstances
The Hertz Corp. v. Friend, 2010
SC ruled the Nerve Center test should be used
Was meant to create a bright line rule, but corporate structure is so complicated that its still a subject of

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Enbrandt v. Richards, 1992: domestic relations exception to diversity jurisdiction exists, but only for cases ado
with divorce, alimony, or child custody issues
1335: federal Interpleader
Mass disaster bill
Class actions


Federal question

USC 28 1331: grant of federal question jurisdiction

Mandatory original jurisdiction over civil actions arising under the Constitution of federal laws/treaties,
but not exclusive jurisdiction
Basically the same as Article III
Critical difference: arises under
o s cause of action that must arise under for 1331
o Osborn and Planters were decided with Article III, but Mottley was decided after 1331 was
passed, and they have very different outcomes
28 USC 1334: federal courts have exclusive jurisdiction over all cases arising from claims to do with title 11
28 USC 1337: federal courts have jurisdiction over claims arising from federal regulation of commerce or
trade protection
Title 15 15(a)
28 USC 1338: exclusive federal jurisdiction from specific federal statutes giving rise to claims
Unfair competition
Plant variety protection
28 USC 1343:
28 USC 1345: federal courts have jurisdiction over every claim brought by the United States
28 USC 1346: federal courts have jurisdiction over limited claims brought against the United States
Osborne v. Bank of the U.S., 1824
Relevant facts/arguments
o Bank brought suit on federal court to enjoin a state auditor in Ohio from collecting for a tax that
the Bank alleges in unconstitutional
o Tax collector believes the federal courts lacked subject matter jurisdiction
o Supreme Court held that the act chartering the Bank gave all suits brought by the Bank federal
o Pre-1331
o Bank of the U.S. v. Planters Bank of Georgia, 1824
Bank suing on state-created notes
SC held that there is a federal question, but because its not entirely sure that the case will
turn on that question, its not federal question jurisdiction
Louisville & Nashville R. v. Mottley, 1908

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An anticipated federal defense is not part of the plaintiffs cause of action and therefore, does not
provide federal question jurisdiction
Relevant facts/arguments
o Mottleys got lifetime passes for free travel after settling an injury claim
o Congress passed a statute barring free RR rides
RR Co. didnt renew lifetime passes for free travel
o Mottleys arguing that it violates the 5th amendment and due process rights because it deprives
them of their property rights, property they were awarded as damages for an injury
Procedural history
o DC RR filed for demurrer saying theres no claim because the statute wiped out a claim
o Circuit court overruled demurrer
o Supreme court
o DC didnt have SMJ because claim didnt arise out of federal law issues
Arose out of breach of contract
Statute was simply a defense, not an element of the charge
See a federal question, not entirely certain the case will turn on it more that theres a
federal defense than a federal action
o Well pleaded complaint rule: would the raise a federal issue if she only includes the details
necessary to the claim?
Allows the courts to asses jurisdiction before the case comes to court based solely on the
When you plead a cause of action, you dont plead defenses to the cause of action
o 1331: wants the suit to arise under federal laws, not the arguments/defense to arise under
federal laws
o Harms v. Eliscu, 1965
Holmes creation test: even if a claim is created by state law, a case may still arise under
federal law if the complaint must consider the application of a federal law (specifically,
the Copyright Act)
Harms does not meet this test, because no aspect of the suit required an interpretation of
copyright law
o Shoshone Mining Co. v. Rutter, 1900
The mere fact that something has its genesis as federal property does not mean that
actions involving that property for all time are federal question cases
o Smith v. Kansas City Title & Trust Co., 1921
Where s claim is that relief depends on the application of federal law (and that claim is
reasonable), there is federal subject matter jurisdiction
Discussing the constitutionality of federally issued papers of value (titles)

Merrel Dow Pharm. v. Thompson, 1986

A state law private action, which alleges a violation of a federal statute, arises under the laws of
the US only if Congress intended to provide a federal remedy for the statutory violation
Relevant facts/arguments
o (Thompson) allege that the violated the Federal Food, Drug, and Cosmetic Act
Bendectin drug to ease pregnancy
Alleging violated FDA standards in advertising the drug (not advertising the potential
danger), which is negligence per se

Civ Pro Outline Miller


Failure to give notice, misbranded drugs

s have multiple claims, only one of which is predicated on the notion that a federal
statute has been violated so theres a legitimate chance that the issue will never come
o filed to remove to federal court
alleging there is a federal question the violation of a federal statute creates the alleged
negligence, so the federal question is in the complaint
o filed motion to remand
Procedural history
o DC granted motion to remove, denied motion to remand, and granted s motion to dismiss
Forum non conveniens: common law doctrine where the courts say they may have
juridiction, but the case is better tried in another court
o CoA 6 cir. Reversed
Cause of action did not depend necessarily on federal law, so it didnt arise under federal
law, so it was improperly removed to federal court
Federal law doesnt imply a private right of action
o SC
o Affirmed CoA, no jurisdiction
o Case does not pose a federal question
Simply the presence of a federal issue in a state problem
o Congress didnt intend to create a private right of action in this law
Act in question created the FDA and gives it enforcement power, but didnt explicitly
mention any private rights of action (as in the anti-trust law)
o Holding: a complaint alleging a federal statute as an element of an Ohio tort action when
Congress has not said there is a private federal right of action is a state court issue
Under the supremacy clause of the Constitution, if Congress doesnt explicitly create a
private federal cause of action then they are effectively saying there is no private federal
cause of action under the federal law in question

Grable & Sons Metal Prod. V. Darue Engineering, 2005

When the federal question embedded in a state cause of action contains a very significant question
of federal law, this may warrant federal question jurisdiction
Relevant facts/arguments
o IRS seized Michigan property belonging to to cover their tax delinquency
IRS notified of sale of property by mail and did not respond within the required
amount of time (180 days)
o alleges (5 years later) that service under 26 USC 6335 requires personal service, so service
by mail isnt sufficient
alleges that the claim of title depends on the interpretation of the federal tax law
filed for removal
Procedural history
o DC granted removal and gave summary judgment for
o CoA affirmed
Jurisdictionally raised an issue of federal law and implicated federal interests
o SC
o Affirmed CoA

Civ Pro Outline Miller


o Federal-question jurisdiction can exist in cases where the claim is over state law but implicates
federal issues
This case calls for federal jurisdiction because federal courts have a strong interest in
hearing cases that argue the meaning of federal tax provisions
Significance of the federal issue whats at stake is whether the IRS can run its
system by certified mail, or must it run its system by personal delivery
Whereas in Merrel Dow, there was only a tangential effect on federal law
o Grable makes in clear that Merrel Dows holding should be limited to the specific circumstances
of that case
o Empire Healthchoice Assurance, Inc. v. McVeigh, 2006
Fight between two private citizens
Financial aspects have no consequences on the federal government, its just a
question of who reimburses whom
Different from Grable in that Grable:
Complaint substantially focused on the action of a federal agency applying federal
Could be settled once and effect numerous federal tax cases going forward
federal interest in litigating in federal court


Supplemental jurisdiction

Pendent jurisdiction: when a adds a claim without federal jurisdiction to a claim that had federal jurisdiction
Pendent jurisdiction exists whenever there is a substantial federal claim and the relationship between it
and the asserted state claims permits the conclusion that the entire action before the court comprises one
Now called Supplemental Jurisdiction
Ancillary jurisdiction: when a or adds a claim without federal jurisdiction to a claim that has federal
jurisdiction by counterclaim, cross-claim, or third party complaint
28 USC 1367: supplemental jurisdiction
(a): case of controversy
o Including joinder/intervention
o If the DC has jurisdiction over one claim, it has jurisdiction over all related claims that are a part
of the same case
(b): In any civil action where jurisdiction is founded on diversity of citizenship or amount in
controversy, there is no federal jurisdiction over claims by s (or persons proposed to be joined to or
seeking to intervene with s) under FR 14, 19, 20, or 24, when exercising supplemental jurisdiction over
those claims would be inconsistent with 1332 (diversity and amount in controversy)
o FR 14: third party practice
o FR 19: required joinder
o FR 20: permissive joinder
o FR 24: intervention
o Ambit of supplemental jurisdiction is broader for federal question cases than for diversity cases
because of these limitations
(c): Federal courts can deny supplemental jurisdiction if the secondary claim arises out of state law, if
the secondary claim will predominate the court case, or if the primary claim giving rise to jurisdiction is
When the statute says , it really means the original
o Although thats not written in stone and theres no real answer for who is the

Civ Pro Outline Miller


United Mine Workers of America v. Gibbs, 1966

A claim over which the court did not have federal subject matter jurisdiction, which could not
have been brought in a federal court on its own, could be appended to a federal question, over
which the court did have jurisdiction, because the two claims came from a common nucleus of
operative fact
Relevant facts/arguments
o Gibbs, supervisor for a mine, working for the Tennessee Consolidated Coal Company, was
planning to use members of the Southern Labor Union (a rival to the United Mine Workers)
o UMW retaliated by violently attacking an SLU organizer and threatened Gibbs
o Caused Gibbs to lose his job and future job prospects
o Gibbs claims
The UMW engaged violated 303 of the Labor-Management Relations Act (federal labor
statute) in boycotting federal issue
The UMW engaged in tortuous interference with his employment relationship
Tennessee law tort action
Procedural history
o DC jury rules pro- with breach damages and punitive damages
Jurisdiction based on pendent jurisdiction
o On motion, TC held that federal claim under 303 was not cognizable, but should rather be
considered a state claim for interference with employment
Damages sustained only on state law claims
Essentially saying that the federal claim was substantial enough (or substantially federal
enough) to give the district court jurisdiction and, thus, supplemental jurisdiction over the
state law claims
o US CoA affirmed
o SC
o CoA ruling reversed, DC had proper jurisdiction
o Pendent jurisdiction exists when there is at least one claim arising under the Constitution or
federal laws, and the relationship between that claim and the parallel state claims is such that the
entire action can be considered as one case
Three part test:
A federal claim must have substance sufficient for subject matter jurisdiction
State and federal claims must arise from a common nucleus of operative fact
s claims are such that you would ordinarily be expected to tie them
o The state and federal claims must arise from a common nucleus of operative fact
o Just because one of the claims has federal jurisdiction doesnt mean it should be exercised
Pendent jurisdiction is up to the courts to enforce; not a right of the
If it can be justified that the claims should be separated, there should not be held to be
federal pendent jurisdiction
o State law claims can be tried in federal courts if one of the claims they bring presents a ground
for relief in a substantial claim based on federal law
o Dont need for the claims to be two distinct grounds for a single cause of action, only requires
related facts between the claims
o Aldinger v. Howard (1976):
US Supreme Court refused to apply pendant jurisdiction to an additional party with
respect to whom there was no independent basis of federal jurisdiction

Civ Pro Outline Miller


Distinguished this case from Gibbs because Gibbs involved adding additional claims and
this case involved the attempt to add additional parties over which there was no federal
o Owen Equipment & Erection Co., v. Kroger, 1978:
Kroger gets killed; administrator takes it to court
Kroger (Iowan) v. OPPD (Nebraskan) and Owen (Iowan)
Kroger v Owen has no diversity
Third party claim is ancillary to and rides the coat tails of the main claim
Court says no supplemental jurisdiction
Have to go beyond CNOF analysis in Gibbs
Must also check the statute governing the federal claim/posture of the nonfederal
claim to see if Congress negated the exercise of jurisdiction
o Finley v. US, 1989:
Court says you need two things to create jurisdiction
Constitution must have given the court the capacity to take the claim
And an act of congress must have supposed the court the capacity to take the

2. Personal jurisdiction
a. Traditional bases
Pennoyer v. Neff, SC, 1877
Physical presence establishing personal jurisdiction, quasi-in-rem attachment of property
Relevant facts/arguments
o Mitchell sues Neff in Oregon state court for not paying him as his attorney
Notice by publication in local Oregon newspaper
Neff was not in the state, so judgment is entered upon his default for $300 in 2/1866
o In 3/1866 Neff is awarded land in Oregon by the government
Mitchell asks for a writ of execution on the judgment Sheriff auctions Neffs land to
pay for the judgment and Mitchell buys it and gives it to Pennoyer
Pennoyer chills there for 10 years
o Neff comes back and wants his land sues Pennoyer in Oregon federal court
Procedural history
o Circuit Court of Oregon rules the original judgment is void because the service by publication
was improper
o Supreme Court affirms the vacation of the original judgment but for different reasons
must be a resident of a state or appear in the state or have property in the state for a
court to have personal jurisdiction
For judgment to be rendered against property or for property to be attached to another
matter it has to be attached at service of process
o In personam court renders judgment on a person that the court has personal jurisdiction over
o In rem dispute is over the property and the property is present
o Quasi-in-rem dispute is not over the property but property is attached, recovery is limited to the
value of the property within the state

Civ Pro Outline Miller


Shaffer applies the Shoe minimum contacts test to quasi-in-rem and effectively overrules
this stuff

Hess v. Pawloski, SC, 1927

Implied consent establishing personal jurisdiction; out of state drivers consent by driving on roads
Relevant facts/arguments
o Hess hit Pawloski in their cars on a public road in Massachusetts
Hess is from Pennsylvania
o Pawloski serves the DMV in MA and notifies Hess by mail
o Does the MA law violate due process?
Mass. Statute: if you choose to drive on the main roads of a state, you are giving them
implied consent to appoint an agent to represent you in service of court should you get
into an accident
o The MA law does not violate due process
o Opens implied consent as a traditional basis of personal jurisdiction
If youre using the states roads (and police, etc.), you avail yourself of the benefits of the
state and, thus, are subject to jurisdiction
o Expands Pennoyer
International Shoe Co. v. Washington, SC, 1945
Minimum contacts (and fair play and substantial justice) establishing personal jurisdiction in the
absence of traditional bases
Relevant facts/arguments
o Int. Shoe is a Delaware corp. with its principal place of business in Missouri
Employs 11-13 salesmen in Washington who send customers offer to Missouri where it
is accepted and filled
Int. Shoe isnt paying their Washington state taxes
o Washington send notice to the one of the salesmen and by mail to the corporation in Missouri
Int. Shoe is arguing that service was improper, they arent doing business in Washington,
and the salesman served is not an agent for service for the corporation
o Whether Int. Shoe is subject to Washington state taxes and jurisdiction
o Due process requires that, if a is not present in the state, he must have minimum contacts to not
offend fair play and substantial justice
Here, purposeful availment because the enjoying the benefits of doing business in the
Business contacts here were systematic and continuous
o Notice to the agent is valid because all thats required is that notice be reasonably assured to
reach the corp.
o Int. Shoe is subject to taxation and to suit to collect the taxes in Washington
o After this case, all the states made long-arms

b. Specific jurisdiction

Civ Pro Outline Miller


Gray v. American Radiator & Std. Sanitary Corp., SC of IL, 1961

Lowers the standards for minimum contacts under Shoe, requiring only that it be proved that the
corp. knew the product was sold in the forum state, court here is determining application and
constitutionality of state long-arms
Relevant facts/arguments
o Grays water heater explodes and injures her
She sues Titan Valve Manufacturing Co.
Titan files a cross-claim against AR, who buys the valve and sells a completed heater
Titan and AR are outside IL
Procedural history
o In the Circuit Court, Titan moved to dismiss on jurisdiction grounds
Motion granted, appealed
Constitutional issue SC of IL
o Tort arose from acts committed outside the state, but its enough that the resulting harm occurred
in the state
o Shoe test: minimum contacts
Its enough that the connection to the state in substantial enough for the corp. to know
that their product is being sold in the forum state and that theyre getting the benefits of
selling in the state
o s associations are sufficient to establish jurisdiction
o Clear example of the stream of commerce theory: customer bought the product in IL, so business
was getting benefits of sales in IL, so theyre liable for injury in IL
As opposed to WWVW, where the stream of commerce is more muddled
McGee v. International Life Insurance Co., SC, 1957
Expands minimum contacts to include isolated/sporadic but purposeful contacts where the cause
of action arises out of those contacts
Relevant facts/arguments
o Franklin, who lives in CA, takes out an insurance policy from Empire Mutual Insurance, Co.,
and AZ corp.
Int. Life in TX buys out Empire
Franklin dies and McGee wants to collect but Int. Life refuses
Procedural history
o McGee files suit in CA state court under their insurance long-arm
She wins the case and tries to enforce the judgment in TX
TX court refused to enforce the judgment because the exercise of jurisdiction violated the
14th Am. because Int. Life doesnt have minimum contacts
o CA exercise of jurisdiction was proper
o Suit was based on a contract that had substantial connection to CA
Isolated, purposeful contacts suit arises out of that contact sufficient for jurisdiction
o Expands minimum contacts to include isolated contacts if they are substantial, purposefully
directed, and the suit arises from that contact
Hanson v. Denkla, SC, 1958
Contacts were not cognitive, volitional or purposeful, so no minimum contacts

Civ Pro Outline Miller


Relevant facts/arguments
o Mrs. Donner, resident of PA, establishes a trust DE with a DE bank as trustee
Later, she moves to FL and leaves her estate to daughters and appoints granddaughters as
beneficiaries of the trust
Most of the trust goes to the beneficiaries and the rest to the estate
Mrs. Donner dies
Procedural history
o Daughters bring action in FL appointment of granddaughters as beneficiaries is void so the
daughters should get all the money
Granddaughters say the FL court has no jurisdiction over the DE trustee
FL court finds it has jurisdiction (this is when the DE action is brought)
FL court rules that the trust was invalid and the daughters get the money
o Granddaughters bring action in DE to confirm the appointment of the trustee
DE court held the trust and appointment of beneficiaries was valid
o DE bank as trustee doesnt qualify under minimum contacts in FL, so the FL court had no
jurisdiction, so its fine that DE refused to apply the FL ruling
And the cause of action didnt arise out of act or transaction in FL
o DE banks contacts were not cognitive, volitional or purposeful, so there is no minimum contacts

World-Wide Volkswagen Corp. v. Woodson, DC, 1980

Foreseeability alone is not enough to establish personal jurisdiction, in this case the stream of
commerce ended in NY, not in OK
Relevant facts/arguments
o Robsinsons buy an Audi in NY
They want to move to AZ
On the way, in OK, they get into a crash and the car explodes and severely burns a ton of
Sue manufacturer, the importer, the regional distributor, and the retail dealer in OK state
Retail dealer is from NY and theyre still technically from NY (domicile doesnt
vest until you arrive and intend to stay) so they cant remove to federal court
o Audi people are arguing that theyve never done business in OK so theres no jurisdiction
Filed a write of prohibition with the SC to restrain a DC judge from exercising in
personam jurisdiction
o Can an OK court exercise in personam jurisdiction over a non-resident when the only connection
is the fact that someone they sold a product to outside the forum state brought the product into
the forum state?
o Cars are designed to be mobile, so its foreseeable that the car would end up in OK
Mere foreseeability is not enough for personal jurisdiction
o Stream of commerce stops at the sale, which is in NY, so here is too far-removed for it to
constitute jurisdiction
o OK long-arm statute is unconstitutional because it only considers where the tort occurs and
doesnt consider any purposeful availment or contacts

Civ Pro Outline Miller


o Consumers unilateral act bringing the product into the forum state is not a sufficient basis for
minimum contacts to establish personal jurisdiction
Keeton v. Hustler Magazine, SC, 1984
Relevant facts/arguments
o Keeton, resident of NY, brought defamation suit against Hustler, based in OH, in NH federal
court because the statute of limitations hadnt run out there
Keeton says theres jurisdiction in NH because Hustler sells a ton of magazines there
o NH has jurisdiction because minimum contacts is satisfied
o NY long-arm doesnt allow defamation cases
Kulko v. Superior Court, SC, 1978
Effects test limited to wrongful action itself
Relevant facts/arguments
o Suit in CA for modification of a NY courts decree
Husband bought a plane ticket for his kid to visit mom in CA
Wife is arguing that CA has jurisdiction under their long-arm because the husband
bought the plane ticket
o Children valves, so long-arm doesnt apply the same way
Buying a plane ticket for another person doesnt count as purposeful availment
o Calder action purposefully directed at state w/ effects
Burger King v. Rudzewicz, SC, 1985
You can contract into a continuing relationship that would satisfy minimum contacts
Relevant facts/arguments
o BK is a FL corp.
o Franchisees contract license their trademarks for use in a Michigan franchise
Contract called for monthly payments which they didnt make breach
Contract also specified FL law
o BK sued in FL federal court under diversity jurisdiction
Franchisees claim the case didnt arise in FL so DC lacked personal jurisdiction
o Contract shouldnt say FL law, should just choose a forum
o Adhesion contracts are fine, even if theres an inequality of bargaining power
o Substantial and continuing relationship minimum contacts
o Federal court applying state long-arm FR 12(b)(2)
Asahi Metal Industry Co. v. Superior Court, SC, 1987
Stream of commerce plus (required for foreign corporations being sued in the US) requires that
purposeful availment of the benefits of business in the forum state, and reasonable awareness of
the product entering the forum state
Relevant facts/arguments
o Zurcher is riding his Honda motorcycle with his girlfriend
Rear tire suddenly exploded which cause an accident, injuring Zurcher and killing his gf

Civ Pro Outline Miller


Zurcher sues Cheng Shin Rubber Industrial Co., Ltd.

Cheng Shin files a cross-claim against Asahi, seeking indemnification
Zurchers case gets settled, left with Asahi and CS

o What can establish minimum contacts for a foreign corporation whose products are sold in the
US without ignoring fair play and substantial justice?
o Stream of commerce plus even though the valves made it into CA, its not enough to establish
personal jurisdiction because there was no purposeful availment of the benefits of CA business
OConnor: No proof that the company was aware that their product would enter CA and
no sate interest
Brennan: dont need the plus
o FR 14(a): if doesnt sue 1 but does sue 2, 2 can sue 1 for indemnification
o FR 14(k)(1)(a): federal courts apply state long-arm for PJ
o Court is going to assert a higher standard to establish minimum contacts for foreign corporations

J. McIntyre Machinery Ltd. v. Nicastro, SC, 2011

Stream of commerce plus requires not only that they foresaw the product ending up in the forum
state, but also that they purposefully directed business to the forum state
Relevant facts/arguments
o Nicastro injured his hand in NJ using a machine made by McIntyre in England
Brings products liability suit in NJ state court
o McIntyre products sold in NJ through a third party U.S. distributor
o Whether NJ courts can exercise jurisdiction over a foreign corp. when the company never
targeted business operations at NJ
o NJ does not have jurisdiction because McIntyre didnt direct action towards the forum state
o Stream of commerce plus analysis products ended up in NJ, and its possible they foresaw that,
but the company didnt direct any business actions towards the state
Single sale minimum contacts
o Focuses on the forum-by-forum analysis, states are sovereign, so business action must be
directed at the state
o Kenney: no purposeful direction
o Breyer (controlling): no stream of commerce to NJ
Single sale isnt enough, so we need a plus (doesnt say what a plus is, but you need it)
Secondary opinions
o Ginsburg, dissenting
Targeting the U.S. in general should constitute purposeful availment
o Clarifies Asahi

c. General jurisdiction
Perkins v. Benguet Consolidated Mining Co., SC, 1952
General jurisdiction is established when there is ongoing and systematic contacts within the state
Relevant facts/arguments
o Minimy company issue in the Philippines

Civ Pro Outline Miller


o Philippine corp. being sued by Perkins, who isnt from OH, in an OH state court on causes of
action arising in Philippines
o Whether the business done by the mining company in Ohio was sufficient to establish a cause of
action in Ohio without violating due process
o General jurisdiction cause of action doesnt have to arise in the forum for jurisdiction to be
When no long-arm applies and cause of action doesnt arise from the contacts, but there
is an ongoing
o Enough that the company has an ongoing and substantial relationship with the state
o Specific jurisdiction has to be related to the cause of action, where general jurisdiction requires
that suit be brought where a company is domiciled, essentially

Helicopteros Nacionales De Colombia, S.A. v. Hall, SC, 1984

If there isnt, both, sufficient contacts and a cause of action arising from whatever contacts exist,
and the corp. isnt based in the forum, there is no jurisdiction
Relevant facts/arguments
o Helicol is a Columbian corp. that sells helicopters
Helicopter they sold in TX crashed in Peru
Only other time the corp. was in TX was for a training session
4 U.S. citizens were killed their representatives bring an action in TX state court
o Contacts were not continuous and systematic so the TX court does not have jurisdiction
Cause of action doesnt have to arise from contacts within the state, as long as there are
sufficient contacts to prove in personam jurisdiction
But in this case there isnt in personam jurisdiction and the cause of action doesnt
arise from contacts in TX
Purchases and business trips are not enough to establish minimum contacts for
jurisdiction when the cause of action does not relate to those purchases/trips
o Brennan: sliding scale including relating to jurisdiction

d. Internet and other technological contacts

Zippo MFG Co. v. Zippo Dot Com, Inc., 1997
The court articulated the sliding scale test under which the likelihood that personal jurisdiction can
be constitutionally exercised is directly proportional to the nature and quality of commercial activity that
an entity conducts over the Internet
o Active Websites: Where the defendant conducts business over the internet with residents of a
particular forum, jurisdiction is almost always proper
o Passive Websites: Where websites do little more than provide information to those who are
interested are rarely grounds for the assertion of personal jurisdiction
o Interactive Websites: These websites are considered a middle ground in that they permit a user to
exchange information with a host computer.
Some courts have found that an interactive website alone is enough to establish minimum
contacts; others require additional non-internet activity in the forum, regardless of
whether the activity is related to the underlying claim.

Civ Pro Outline Miller


Finally, some courts have required additional conduct in the forum that is related to the
plaintiffs cause of action.

Pebble Beach Co. v. Caddy, US CoA 9th Cir., 2006

Minimum contacts requirement of purposeful availment applied to internet-based claims and
trademark infringement cases
Relevant facts/arguments
o sued under federal statute prohibit trademark infringement, saying that s domain name
and knowledge of s golf resort (and their similarity) is sufficient to satisfy the requirement that
the was aiming business as the forum state
o Can a court assume minimum contacts under PJ are satisfied when a trademark is infringed but
business is not purposefully directed at the forum state?
Procedural history
o DC - moved to dismiss and DC granted for lack of personal jurisdiction
o Dismissal affirmed, no personal jurisdiction
o Three part test for minimum contacts, all three required
purposefully availed himself of the privileges of business within the state
Or purposefully directed activities at the forum state
Cause of action arises out of contacts within the state
Jurisdiction is reasonable
o First prong fails here

e. Jurisdiction based on power over property

Pennington v. Fourth National Bank, SC, 1917
Even if party doesnt reside in forum state, quasi-in-rem jurisdiction can be still applied to both
tangible/permanent and intangible/non-permanent property
Relevant facts/arguments
o Pennington didnt reside in forum state
o In-state bank account attached prior to litigation
claims confiscation of bank account violates due process because hes not a resident of
the forum state
Procedural history
o Cir. Court of Hamilton County rules for
o CoA affirms for
o SC of Ohio affirms for
filed writ of cert SC
o Affirms for
o Even though Pennington didnt reside in forum state, in-state property, including a bank account,
can still be attached without violating due process
o Quasi-in-rem jurisdiction applies to both tangible/permanent and intangible/non-permanent
property (applies to bank accounts)

Civ Pro Outline Miller


Harris v. Balk, DC, 1905

Relevant facts/arguments
o Harris (NC) ---$180---> Balk (NC)
o Balk (NC) ---$344---> Epstein (MD)
Procedural history
o Epstein sues Balk in MD court and attaches Harris
MD court ruled pro-Epstein, and forces Harris to pay Epstein
o Balk sues Harris in NC court
NC court says Harris owes Balk money, still
MD court had no jurisdiction to attach the debt
o DC reversed NC ruling
o Debt is always with the debtor
Debtors debt can serve as property for QIR
o Post-Pennoyer, pre-Shaffer
Shaffer v. Heitner, SC, 1977
Quasi-in-rem jurisdiction requires that the property be present in the state AND that minimum
contacts is satisfied; Shoe test should be applied to ALL issues on jurisdiction
Relevant facts/arguments
o Heitner is a Greyhound Corp. stock holder, nonresident of DE
Suing on behalf of the stockholders
o Greyhound is incorporated in DE, based in AZ
Shaffer is companys representative
o Greyhound was held liable in an antitrust suit in Oregon stocks were sequestered and frozen
Heitner is suing because his stocks were frozen
Sequestration violated due process, no jurisdiction over property
Int. Shoe: no sufficient contacts in Delaware
Procedural history
o Court of chancery (court of equity dealing with issues not covered in the common law):
sequestration did not violate due process
o Delaware SC: affirmed
Delaware law says situs of ownership of stock is Delaware
o DSC: reversed, doesnt follow Shoe
o Court rejects jurisdiction in Delaware, saying previous courts based jurisdiction only on the situs
of the property (stocks) and didnt consider minimum contacts
o Rule: All assertions of personal jurisdiction must be evaluated according to the Shoe minimum
contacts standard
So, even in quasi-in-rem attachments, minimum contacts, fair play and substantial justice
are still required
Connecticut v. Doehr, 1991
No prejudgment attachment without a hearing
Relevent facts/arguments

Civ Pro Outline Miller


o DiGiovanni submitted an application to the Connecticut Superior Court to attach $75,000 of

Doehrs property in conjunction with an unrelated civil action for assault and battery against
o Connecticut law allowed pre-judgment attachment without prior notice or an opportunity to be
heard and ordered the attachment of the property
The statute required only the plaintiffs signature on a probable cause finding
o Doehr only received notice from the state after the property had been attached, along with a
complaint for assault and battery
o The US Supreme Court found the statute authorizing pre-judgment attachment to be an
unconstitutional violation of due process
You cannot immobilize property based on an unrelated tort action where the plaintiff has
no interest in the property
Where the risk of erroneous attachment and the harm to aggrieved party outweigh the
interests of the party seeking attachment, the property cannot be attached without notice
and a hearing
o 3-part balancing test developed in Mathews v. Eldridge:
(1) Consideration of the private interest that will be affected by the prejudgment measure;
(2) An examination of the risk of erroneous deprivation; and
(3) Principle attention to the interest of the party seeking the prejudgment remedy, with
due regard for any ancillary interest the government may have in providing the procedure
or forgoing the added burden of providing greater protections
o Doehr represents a doctrinal shift
After Doehr, it is considered a violation of due process to attach property without prior
notice or a hearing, unless there are extraordinary circumstances

f. Jurisdiction based on physical presence

Burnham v. Superior Court, SC, 1990
Jurisdiction based on in-state service only requires that the be in the state at the time of service,
doesnt require minimum contacts
Relevant facts/arguments
o Couple got separated, wife moved to California
Agreed to irreconcilable differences in NY
o Husband (Burnham) files for desertion in NJ, wife files in CA
California: community property state (all assets coming into the marriage are divided
NJ: equitable distribution state (where the blame is places makes a difference between
how property is divided)
o Burnham was served when visiting his kids in California
o Burnham moved to quash the service no personal jurisdiction because no minimum contacts
Shoe standard: No continuous and systematic contacts in California, so he can only be
subjected to judgment related to causes of actions arising within the state
Shaffer: state lacks jurisdiction unless cause of actions arises out of activities in the state
o Whether due process is violated when California holds jurisdiction over someone who doesnt
live within the state, but was served within the state when there for activities unrelated to the suit

Civ Pro Outline Miller


Procedural history
o Superior Ct denied the motion to quash the service
o Cal Ct of App also denied it
Enough that he was served in the state for in personam jurisdiction
o SC of Cal also denied it
o Judgment affirmed, motion to quash denied
o Courts have jurisdiction over people present in the state regardless of whether they live there or
minimum contacts
o Int. Shoe and Shaffer are about jurisdiction over a who is absent; in this case the was served
in the state so he was not absent
Minimum contacts was created to stand in for a lack of physical presence
The tradition has created an expectation that when you enter into a state you can be
served there

g. Jurisdiction based on consent

Consent can be given in a few ways:
o In a contract: Burger King or Carnival Cruise
o Agency: Hess
A result of failing to obey the rules of the court
o Insurance Corp. of Ireland
Failing to move to dismiss
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, SC, 1982
When a party refuses to comply with a court's order, the court may deem that refusal to be a
waiver of the right to contest that point and assume that the information requested would prove
whatever the opposing party is claiming
Relevant facts/arguments
o CBG was incorporated in DE but based in Republic of Guinea
Mechanical failure filed insurance claim
Insurers refused to pay
o CBG sued in PA federal court
Insurance companies said no PJ
CBG tried to use discovery to establish PJ
Procedural history
o PA DC asked insurance companies to hand over information pursuant to CBGs discovery
request to prove PJ
Companies refused
DC held they have PJ because of the insurance companies business contacts in PA
o SC upheld that insurance companies were subject to PJ, but for different reasons
o PJ can be waived: by submitting to the jurisdiction of the court to challenge jurisdiction, the is
agreeing to abide by the courts determination of jurisdiction
Courts determination may include fact-finding, such as requiring certain information be
handed over

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o Insurance companies refusal to hand over requested information supports presumption that the
refusal is an admission of the merit of the assertion of personal jurisdiction

Carnival Cruise Lines v. Shute, 1991

Forum selection clause is essentially consent to jurisdiction
Relevant facts/arguments
o The Shutes purchased tickets on a Carnival Cruise through a travel agent in the state of
The travel agent forwarded their payment to Carnivals headquarters in Florida
o The ticket included a provision that stated that all disputes would be litigated in Florida
o During the cruise, off the coast of Mexico, Mrs. Shute was injured on the deck of the ship
The Shutes filed suit in a federal district court in Washington
o The Supreme Court enforced the forum selection clause, holding the cruise line had a special
interest in limiting the for a in which it potentially could be subject to suit
The clause was desirable because it dispelled any confusion over where suits arising from
the contract could be brought
Passengers benefit from the clause because without it, fares would have to be increased to
support the litigious few

h. Reach of the federal courts jurisdiction

FR 4(k)(1)
FR 4(k)(2)
FR 12(b)
FR 12(h)

3. Notice and opportunity

a. Notice
FR 4
(d): waiving service
o You can request that the receiver of the service waive future service
o If they dont waive, a court can impose the costs of service on them, including mail costs and
legal expenses
o Waiving service doesnt waive objection to jurisdiction
(e): personal delivery on natural persons
o Unless federal law says otherwise, you can serve a person
According to state law
By personal delivery
(e)(2)(B): service on a person residing in a defendants dwelling by leaving at the
persons main residence with a competent adult
Substituted service to a surrogate not directly appointed
(e)(2)(C): delivery to an agent authorized by appointment (appointed by law, or

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Hess: delink the notice function from the process function process goes to
DMV, notice is when the registrar moves it onto Pennsylvania
(h): serving a corporation, partnership, or association
o A corp. must be served according to state law
o By delivery to a managing or general agent authorized by appointment to receive such
summonses AND mail to each defendant
(f): serving an individual in a foreign country

Mullane v. Central Hannover Bank, 1950

The Constitution requires that notice be reasonably calculated under the circumstances to give
actual notice if you know the name and address of a beneficiary, you must do better than
publication in a newspaper
Relevant facts/arguments
o Common trust fund small parties that pool their trusts together under one manager
o Trust fund included provisions for judicial accounting every so often the bank will show the
court their books and discuss the choices they made to get a public official to check off on whats
been going on
The first notice the bank gives was mailed to all the beneficiaries whose address was
known at the time at the establishment of the pooled trust
Second notice of application was published in a New York newspaper
o Mullane is court appointed as a special guardian for all those people who are not appearing but
have an interest in the income of the trust
Mullane objects to notice and the statutory provisions of that notice
o Once New Yorks power to create the common trust is acknowledged, it must have the power to
administer the trust
o Dont have to actually get the notice to everyone being represented, because theyre being
represented, as long as most of them get notice
This is why mail is fine, because maybe a few letters will drop through the cracks but
most of them will be delivered
You can be bound by a judgment even if you never got notice of it
o Doesnt say publication is always unconstitutional must be reasonably calculated under the
circumstances to give actual notice (reasonably certain to reach those interested)
o Wuchter v Pizzuti, 1928
Mere notice unaccompanied by any formality is not enough
Statutes concerning notice must require the person bringing the suit to serve those parties
involved in a way reasonably expected to reach them
o Jones v. Flowers: Saying you tried isnt enough, actual notice required before seizure
National Equipment v. Szukent, 1964
Relevant facts/arguments
o bought the farm equipment under a lease by
The contract for the loan included a provision that appointed one Florence Weinberg as
agent for service of process
o filed saying the s never paid anything
Served Weinberg, and she and the both sent a letter to the s about the service

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o Can a party to a contract appoint an agent of service for the other party if the second party does
not know the agent and if there is no qualifying language forcing the agent to notify the second
party of any service?
Procedural history
o DC quashed service the lease agreement didnt include a provision stating that Weinberg had
to notify the s by mail of service (even though she did), so the appointment was void
o Court of App. affirmed
o Weinberg is a valid agent for service to the s, and she complied with her obligations under the
contract and under law
o Federal and NY law do not require an express promise by the agent to send notice of any service
Notice was actually sent, so the service was legit
o Pre-NY long arm

4. Methodology of process
a. Immunity from process and etiquette of service
Sivnitsky v. Duffield, 1952
Relevant facts/arguments
o Svnktsy killed two kids in a car accident in WV arrested and found guilty on criminal charges
While in jail awaiting trial, S was served in a tort action
o S argues court has no jurisdiction because he was a non-resident and in jail when he was served
o All that matters for the purposes of physical presence for jurisdiction is that he was voluntarily
there at the time of the first arrest/confinement
Wyman v. Newhouse, 1937
Relevant facts/arguments
o Telegram sent to husband saying wife is leaving the country and wants to see him one more time
o He comes to Florida, shows up and is served
Procedural history
o TC: complaint dismissed
o Affirmed
o Service procured fraudulently no due process

5. Venue
28 USC 1391: venue
A civil action may be brought in
o A judicial district in which any resides if all s are residents of that state
o A judicial district in which a substantial part of the events giving rise to the claim occurred, or a
substantial part of the property that is the subject of the action is located

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o A judicial district in which any is subject to personal jurisdiction

Default proposition
o Domicile
o s residence is any district in which the is subject to the courts personal jurisdiction
o s residence is the judicial district is wherever they have their principal place of business
o with no residency in the U.S. can be sued in any district
Corporations reside where they have minimum contacts to subject them to jurisdiction
o Governs all civil actions, without regard to whether its local or transitory
o There may be instances in which the federal courts are closed to an action, but you can always
separate the actions or just bring them in state courts
o Statute is infiltrating the venue concept with a personal jurisdiction concept
Venue is absorbed these days by identification with personal jurisdiction concepts
28 USC 1397: interpleader venue wherever one of the s resides
28 USC 1400: patents and copyrights claims, venue is any place where the or his agent may be found
28 USC 1404: change of venue
DC may transfer a civil action to another district in the interest of convenience and justice
28 USC 1406: cure or waiver of defects
DC shall dismiss or transfer a case if it finds the case is in the wrong division
28 USC 1407: multidistrict litigation
Reasor-Hill Corp. v. Harrison, 1952
Local action doctrine is too narrow, venue is proper
Relevant facts/arguments
o Planters v. Barton
Planters wants to be paid for spraying insecticide on Bartons crops
Barton is saying the insecticide damaged his crop
Reasor-Hill manufactured the insecticide
o Harrison lower court judge
o Court has proper venue
o Historical precedent: no jurisdiction, no proper venue
Transitory case: could have happened anywhere
Local case: involves a particular piece of land
E. Livingston v. Thomas Jefferson, 1811 a suit for wrongful entry on land on Louisiana
cannot be heard in Virginia
1391 essentially throws out this case
o Historical precedent is ridiculous and outdated wouldnt allow for any recovery at all for an
obvious tort
Issue here is how this would be enforced out of state full faith and credit clause has a
public policy exception
But because theres no option elsewhere, theyre going to allow it in the interest of justice
o Really, jurisdiction by necessity
o Livingston v. Jefferson:
Land action in LA
VA had no power to hear transfer
1404 is based on convenience of parties/witnesses and the interest of justice

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Can only be to another district or division where it could have originally been

a. Transfer in federal courts

Hoffman v. Blaski, 1960
1404(a), the transfer of venue provision, must be read literally; you can only transfer in the
federal system to a court that would have had original subject matter jurisdiction, original
personal jurisdiction, and original venue
Relevant facts/arguments
o Blaski brings a patent infringement suit against Howell in DC in TX
Howell moves to transfer venue to IL
o Hoffman is the DC judge
Procedural history
o Blaski brought suit in a TX DC
o Howell moved to transfer to DC in IL under 1404(a)
Blaski objected because they couldnt have brought suit there; couldnt be served there,
had no minimum contacts there; courts lacked venue
o DC in TX granted motion to transfer to IL in the interest of justice and convenience for both
o Blaski moved in the CoA for a writ of mandamus vacating the order denied
o Blaski moved in the DC of IL to retransfer the case to TX denied, and he appeals
o CoA Blaski petitions again for a writ of mandamus
o SC
o Case could not have been heard originally in IL because there was no personal jurisdiction over
Transfer denied even if consents to PJ in new district

b. Forum non conveniens

Piper Aircraft Co. v. Reyno, 1981
Relevant facts/arguments
o Piper plane with Hartzell propellers crashed in Scotland
Piper and Hartzell are companies located in the UK
o Action commenced in California Reyno is appointed as representative for the decedents
Procedural history
o Reyno brought wrongful death actions in Superior Court in CA
Suit was removed to DC for Cent. CA
Piper moved to transfer to DC of PA
Hartzell moved to dismiss or, in the alternative, transfer to DC of PA
o DC transferred case to DC of PA
Hartzell and Piper moved to dismiss again on grounds forum non conveniens
DC granted motions to dismiss Gilbert balancing test
o 3rd Cir. CoA reversed and remanded for trial
DC abused discretion in conducting Gilbert analysis

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Dismissal is never appropriate where the law of the alternative forum is less favorable to

o SC
o CoA ruling reversed
o CoA erred in holding that may defeat a motion to dismiss on grounds of forum non conveniens
simply by showing that the law applied in the alternative forum is less favorable to the
Its not that the favorability of law should never be considered in forum non conveniens
analysis if the remedy of another forum is clearly inadequate and doesnt fully award
justice to the then it can be considered
o CoA erred in rejecting DCs Gilbert analysis
DC distinction between resident s and foreign s is justified
o Gulf Oil Corp. v. Gilbert, 1947
Gilbert test: in deciding whether to grant a motion on the grounds of forum non
conveniens, courts must consider all elements factoring into the choice of forum,
including, inter alia:
Private interest issues
o Location/accessibility of witnesses
o Location/accessibility of evidence
o Possible hardships for the
o Availability of adequate, alternative forums for the
o Application/enforceability of law
Public policy questions
o Expeditious use of judicial resources
o Political conditions of the forum
o Jury duty when the community has no relation to the litigation
o After Piper, CA courts barred litigation brought by non-Americans unless the case arose out of
events in the U.S. to prevent cases like Piper

6. Removal
28 USC 1441: Removal of civil actions
If federal courts could have jurisdiction, a may remove to the federal court associated with the state
court where the action was originally brought
(a): State court actions may be removed to federal court if the federal courts have original jurisdiction
o You can only remove to the federal district court for the district/division above where the case
was originally brought
(b): If none of the parties involved are citizens of the state in which the claim is brought, a can remove
o If the is being tried in his home state, he cant remove
(c): If you have a Constitutional 1331 claim and a claim not within original or supplemental jurisdiction,
you have to kick the jurisdictionally insufficient stuff out and bring it separately in state court
(e): you can remove under 1369
o (e)(5): an action removed under 1441(e)(5) is considered an action removed until 1369
(f): A federal court may hear a case even if the state court the case was removed from lacked jurisdiction
28 USC 1445: non-removable actions
FELA cases - is RR and is worker
Workers comp cases

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Civil actions under the Violence Against Women Act of 1994

28 USC 1446: procedure for removal
28 USC 1453: removal of class actions
Rules of removal
Only a can remove
o Shamrock Oil & Gas Corp. v. Sheets, 1941 only the original
Only can remove that which could originate in a federal court
o You cant remove unless you have a federal question arising under
o You cant remove unless you have complete diversity of citizenship
o Before you get to the removal question, you must determine the original subject matter
Removal is vertical wherever the state court is lodged, you remove it to the federal court covering that
Motions for removal are done in a federal court

7. Waiver
Cant waive SMJ
The rest need to be raised in a pre-answer motion or in the answer or they are waived

Additional information
6. Applicable law
Article VI The Supremacy Clause of the United States Constitution
28 USC 1652 State Laws as Rules of Decision (The Rules of Decision Act)
28 USC 2072 Rules of Procedure and Evidence; Power to Prescribe (The Rules Enabling Act)

a. State law in federal courts

28 USC 1652: laws of the states are applicable as law in civil actions in parallel federal courts, in cases where
they apply
Swift v. Tyson, 1842
Federal courts were not bound by state common law that was judicially developed and not codified in a
state statute
1652 depends on the meaning of laws of several states
o Should federal courts follow state statutes and state court decisions?
In this case, whether it should be governed by NY contract law or by the new common law
o Court said act only makes federal courts follow state statutes, not state court decisions
Erie R. Co. v. Tompkins, 1938
In a diversity action, a federal court should apply the substantive law of the forum state
Relevant facts/arguments
o Tompkins was walking on a path parallel to the Erie RR and was truck by a protruding object,
severing his right arm

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o Tompkins lawyers sued in federal court

Swift rule: absent state statutory law, federal courts apply general law
o RR petitioned for cert for the SC
Arguing Swift v. Tyson was misapplied wont say overrule Swift
Duty of care owed by the RR is mandated by state law
o PA law Tompkins is a trespasser, RR only owes him a duty to avoid wanton negligence
o Majority rule in other states RR owes duty of ordinary care to traveler on parallel footpath
Procedural history
o DC in NY applied general law, ruled for Tompkins $30k
o CoA affirmed
The question of liability is one of common law, so the issue of applicable state law
doesnt need to be decided
o SC
o CoA reversed
o Swift v. Tyson held that federal courts (where everyone is there under diversity) are free to use
independent judgment to determine what the common law of the state is or should be
Introduced discrimination diversity jurisdiction was made to get rid of discrimination
Made it really confusing
The SC wants to abandon the doctrine as it applies to general federal common law
o Rule: unless the case is governed by federal law or the Constitution, state law is the applicable
There is no general federal common law, except in matters covered by the Constitution or
acts of Congress
Nothing giving the courts the power to create substantive law for diversity cases
Congress doesnt even really have that power, and cant give the courts that
Rules of Decision Act, Article 1 8
If this was in a state that didnt have any applicable law, the court can apply common
law, so essentially their opinion
o Rule: in a diversity action, a federal court applies the substantive law of the forum state
Generally, substantive law is the system of rules, rights and duties that run between
people and institutions in the forum state
o Twin aims:
Avoid forum-shopping
Avoid inequitable administration of the law
o Bernhardt v. Polygraphic Co. of America, 1956:

Guaranty Trust Co. v. York, 1945

Outcome determinative issues are resolved using state law
Relevant facts/arguments
o York brought suit in federal court under diversity jurisdiction alleging fraud
o NY state statute of limitations had passed so York brought suit in NY federal court
Procedural history
o Circuit Court of Appeals suit was brought on the equity side of a federal district court, so the
court didnt have to apply state statute of limitations
o SC

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o Reversed
o Erie, in overruling Swift, overruled the idea that federal courts had the power to choose what
reason and law they applied to each case independent of state law
o When no recovery exists in state law because of a SOL, federal court must follow the SOL in
that state
Doesnt matter whether statute in question is substantive or procedural, as long as the
outcome wouldnt be difference
o General rule: if the state law is outcome determinative then the federal court should adopt state

Ragan v. Merchants Transfer & Warehouse Co., 1949

If substanive, use state law; SoL is substantive
Relevant facts/arguments
o filed diversity complaint in September, but marshal didnt serve the until December, which
was after the SOL had run
o SC held that Rule 3 was not intended to govern questions concerning the rolling of SOLs so state
law should determine in diversity when the statute begins running
o Reinforced Guaranty, outcome determinative consideration
Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 1958
Balancing test before state/federal laws
Relevant facts/arguments
o Byrd, NC citizen, sued Blue Ridge, a SC corp. for injuries due to negligence
Byrd was injured working for a contractor connecting power lines in an area where Blue
Ridge is the power authority
o Blue Ridge saying that Byrd was essentially working for them, so theyre protected from liability
under SC Workmans Compensation Act
Procedural history
o DC for diversity jurisdiction judgment for Byrd
o CoA reversed and directed for Blue Ridge
o SC
o CoA reversed
o Erie: federal courts in diversity cases must respect the state-created rights and obligations of the
Federal courts must follow state courts where state rules bear substantially on the federal
case so there doesnt develop a huge difference between the way litigation would come
out in federal and state courts
o Outcome isnt the only consideration: judge/jury
In this case, federal court should not follow state rules
Federal courts requirements for judge/jury decisions is laid out in the 7th Am., which
overrules state choice
Herron v. Southern Pacific Co., 1931: state statutes cannot alter the essential
character or function of a federal court

Civ Pro Outline Miller


Stoner v. NY Life Ins. Co.: court held that federal court in this case should follow
the state rule defining the evidence sufficient to raise a jury question, but the state
rule in this case did not nullify the function of the federal judge to control a jury
o Rule: In instances where a state law/statute would overrule or nullify the function of federal
courts or elements within the federal courts, the federal court shouldnt follow state law. But in
instances where the state law/statute would NOT affect the outcome of the case or the
function/proceedings in/of the federal courts, the federal courts should conform to state law.
o Balancing test rather than saying Byrd has Const. right to jury trial
State interest
In this case, its procedural, not very important
Federal interest
Significant, since influence, if not the command of 7th amendment upholds jury
Likelihood of outcome determination
Not inevitable based on judge/jury decision

Hanna v. Plumer, 1965

Twin aims of Erie, FRCP cant be violated by state law, if state/federal laws collide federal law
Relevant facts/arguments
Procedural history
o In a diversity action FR 4(e)(2) governs the manner of process where it conflicts with state law
Like Byrd, Hanna holds that if there is a federal interest, Federal Rule trumps State Rule
o To control, a Federal Rule must be
(1) Applicable on point and in direct conflict with state rule
(2) Valid doesnt violate USC 2072, Rules Enabling Act
REA: act of Congress giving the judicial branch the power to declare the FRCP
Cannot abridge, enlarge or modify substantive right
(3) Constitutional none found un-Constitutional so far
o Conflict with federal practice, see if outcome-determinative by twin-aims of Erie
Walker v. Armco Steel Corp., 1980
Relevant facts/arguments
o Carpenter hammering nail into a wall, manufactured the nail
Nail shatters
alleges was negligent in nail design and manufacture
o from OK
o is a foreign corp.
o State and federal law disagree on when the statute of limitations begins on a claim
State law deems SOL tolled at service of summons on the
Action can commence upon filing if is served within 60 days, but he wasnt
FRCP Rule 3 says in federal court an action is commenced at filing of the complaint
Procedural history
o DC in W. OK dismissed complaint for statute of limitations
o CoA affirmed

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o SC
o Affirmed
o Guaranty case, court focused on whether or not applying state law would substantially effect the
outcome of the case
Guaranty led to Ragan
Ragan is exactly the same as this case
o Ragan does not overrule Hanna
In Hanna, court specified that federal and state law must be in direct conflict
Hanna only applicable if the federal rule is broad enough so as to cover the state
law and create a contradiction
FRCP in this case was not meant to govern the statute of limitations so it is not broad
enough to cover the state law
2072(b): shall not enlarge of modify any substantive right
OK statute was intended for exactly that, so it rules

Stewart Organization, Inc. v. Ricoh Corp. , 1988

1404 trumps state forum selection
Relevant facts/arguments
o Agreement between and specifying NYC as forum for disputes
o brought case in DC Alabama
Alleged breached dealership contract, fraud, antirust, breach of warranty
o moved to transfer to NY and to dismiss for improper venue
Procedural history
o DC denied the motions by the , saying Alabama doesnt care about forum selection clauses
o CoA reversed DC, saying venue in a diversity case is governed by federal law and federal law
recognized forum selection clauses
Remanded to NYC court
o Forum selection clause is effective; remanded to DC to decide if transfer is ok, following this
o When the federal law in question is a congressional statute, must determine:
Whether the statute is broad enough to control over the state law
Whether the statute is valid (not unconstitutional)
o The federal law in this case does cover the state law, so the forum selection clause is valid
The rule here is 1404(a)
It is valid
o Hanna plus
Gasparini v. Center for Humanities, Inc., 1996
No conflict so use state law
Relevant facts/arguments
o Laws at issue
NY law says the appellate courts can review jury verdicts and order a new trial if the
ruling/award isnt enough or is too much
7th Am. says jury ruling is final
o let use his photos for a film if they returned the original slides afterwards; lost the slides

Civ Pro Outline Miller


Procedural history
o DC SDNY (diversity) jury awarded $1500/photo = $450k
moved for new trial for excessiveness
DC denied motion
o CoA vacated judgment on jury verdict, applying NY state law saying the verdict was excessive
o State law can take effect, and is not in discord with the federal law, if it is only applied in
instances of a jurys abuse of discretion
o Vacate CoA judgment, remand to DC to reconsider if ruling deviates materially from other state
o To determine if an award is excessive under NY state law
Deviates materially standard
Guaranty outcome determination test: will the choice substantially change the outcome
of the case
o Erie precludes substantially larger recovery in federal court when state court has procedures to
limit recovery to reasonable levels
DC should do the state standard of materially deviate, and federal appellate court should
do the federal standard of shock the conscience

Shady Grove Orthopedic Associates v. Allstate Ins. Co., 2010

States cant limit right to class actions under 23
Relevant facts/arguments
o Laws in discord
NY law prohibits class actions from suing for penalties or statutory minimum damages
FRCP 23 does not
o Ms. Galvez was in an accident and got care from SG
Allstate was Galvezs insurance
Allstate didnt pay the claim on time and refused to pay interest
SG brought class action for itself and all other denied interest seeking unpaid
statutory interest
o brought suit in EDNY as a class action the class is everyone whos getting screwed in the
same fashion
saying interest = penalty, so u cant sue under NY law
Procedural history
o DC dismissed for lack of jurisdiction
Statutory interest is a penalty, and NY law doesnt allow class actions in suits seeking
penalties; Also, amount being sought ($500) is less than required for amount in
controversy for federal court
o CoA affirmed
NY law is substantive under Erie test and FRCP 23 does not conflict with it directly so
NY law is the law applied
o SC
o Framework
Does FRCP 23 answer the question in the dispute Yes
If so, it governs unless its unconstitutional It governs
Dont look to the Erie doctrine unless the federal rule is inapplicable or invalid
o Question is whether SG may bring this suit as a class action

Civ Pro Outline Miller


FRCP 23 says for a class action you need

(a) Numerosity, commonality, adequacy of representation, etc.
(b) Must fit into a category specified in the rule
FRCP 23 deals with the issue at hand
This rule conflicts directly with the applicable state law
State law cannot be applied unless the federal law it conflicts with is beyond
federal powers
o Rules Enabling Act allows courts to bring rules of procedure and review them as long as they
dont add to or limit any rights
o The substantive/procedural nature of the state law doesnt matter, only that of the federal law
o Stevens: FRCP will not trump if so intertwined with state right that it functions to define the
scope of a right
Controlling law

Mason v. Am. Emery Wheel Works, 1957

Relevant facts/arguments
o Mason, a citizen of Mississippi was injured in Mississippi by a defective emery wheel
o The emery wheel was manufactured by The American Emery Wheel Works, a Rhode Island
Procedural history
o DC - motion to dismiss granted
Mississippi state law privity rule
o CoA
o CoA reversed
o Mississippi SC would approve of shifting the outdated privity law

b. Federal common law

If the subject matter is of national importance interest in nation-wide uniformity

o The validity of federal bonds (Clearfield Trust)
o Admiralty (except those areas bound by statute)
o IR
o Pollution of international waterways but then they took it back
Havent seen much federal common law created since the Rehnquist court now theyre
very conservative
Exception: Semtek case on preclusion
o Where Congress writes a statute that doesnt cover the entirety of a subject (maybe missing a
jurisdiction provision, or a statute of limitations, etc.)
Court used to apply the most analogous statute of limitations from the state laws where
they are sitting problem is that each state has a different SOL and the point of federal
common law is uniformity
Recently (and more commonly in modern times), courts will turn towards uniformity and
look to analogous federal statutes
o Assimilated federal crimes act federal court incorporates the criminal law of the state in which
the crime occurs
Double penalize if it crosses state borders

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o Federal common law is automatically federal subject matter jurisdiction

o It is not controlled by Erie
o It can be reversed by Congress
Clearfield Trust Co. v. U.S., 1943
Relevant facts/arguments
o The US mailed a check
The check was not received by the intended person and was instead, stolen and cashed at
a JC Penney store
JC Penney then endorsed the check to Clearfield Trust, which accepted the check
o Federal officials did not inform any of the parties involved that the check was stolen until 8
months after it learned this information
The US sued Clearfield based on the fact that it guarantied prior endorsements
o Federal court may use/create federal common law where a substantial federal issue is at stake
o In the absence of an applicable act of Congress, it is for the federal courts to fashion the
governing rule of law according to their own standards
Look to federal governments interest in deciding the case: Federal court has interest in
deciding what to do with federal treasury suits
Erie does not apply because federal currency is governed by federal law and application
of state law would subject the rights and duties of the US to exceptional uncertainty
Miree v. DeKalb County, 1977
Where state claim and no federal interest, apply state law
Relevant facts/arguments
o Crash of a Lear Jet
o argued that the federal courts should create federal common law because air transportation is a
matter of national importance and effect
o The Supreme Court granted certiorari on s breach of contract claim
o Held that state law should govern because the application of federal common law would promote
no federal interests even approaching the magnitude of those found in Clearfield Trust
o Even though the U.S. is a party, contract claim is state, and air transportation is not a national
Boyle v. United Technologies Corp., 1988
Federal interest for uniformity, federal law
Relevant facts/arguments
o Boyle, a US Marine was killed during a training exercise when his helicopter crashed
Boyle survived the impact of the crash but drowned because he was unable to escape the
o Boyles father brought suit against the corporation that built the helicopter for the US
Procedural history
o Jury found pro-

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o SC found that state law which holds government contractors liable for design defects in military
equipment does, in some circumstances, present a significant conflict with federal policy and
must be displaced
o Defense contractor immunity needs uniformity use federal common law

c. Federal law in state courts

Admiralty you can bring a maritime tort law case in a state court except where federal statute
explicitly requires it be brought in federal court
FELA early workers comp statutes

Dice v. Akron, Canton and Youngstown R. Co., 1952

Federal law controls in state court on a federal claim; cant eliminate right to trial by jury
Relevant facts/arguments
o Dice was a RR fireman and injured when an engine jumped the tracks
Sued alleging negligence for damages under Federal Employers Liability Act
o denied negligence and asserted they had settled
said he was induced to accept the settlement money by lies saying it was back wages,
so its not a valid settlement
Procedural history
o TC jury found for
Judge entered judgment ignoring jurys award
o CoA reversed judges ignorance federal law controls so jury verdict must stand
o SC of OH reversed CoA
Man of ordinary intelligence who can read is held to the release he signed in the fake
settlement even if he was induced by lies
Ohio law leaves it to the judge to decide this stuff, so listen to the TC judge
o SC
o Reversed
o FELA federal question to be decided by federal, not state, law
o Inverse Erie: All fed law controls in state court on a federal claim (act like a federal court)
o Bailey v. Central Vermont R. Co.: right to trial by jury is fundamental, especially when dealing
with the FELA
o Brown v. Western Ry. of Alabama, 1949: inverse Erie
When face with a federal claim, state should adopt federal rules of civil procedure if the
federal rule opposes the state rule
In this case, construe complaint in light most favorable to pleader
Georgia, until recently, construed pleading against the pleader
Court saying state courts must use federal standards in an FELA complaint
American Elec. Power Co., Inc., v. Connecticut Et Al., 2011
Relevant facts/arguments
o States are the s, power companies are the s
o s arguing that the emissions contribute to global warming, which violates federal common law
by substantially interfering with public rights
Asking to cap power companys CO2 emissions and then reduce them every year

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Procedural history
o DC dismissed not claims, just political questions
o CoA 2nd Cir, reversed claim exists under federal common law of nuisance
o SC
o Reversed and remanded
o Clean Air Act and the EPA the act creates displace the s claims
o Illinois v. Milwaukee, 1972: air and water have interstate effects so there is a federal common
o U.S. v. Kimbell Foods, Inc., 1979: Unless there is a need for a federal rule, courts adopt state law
until Congress says otherwise
Here, Congress said otherwise
o Mobil Oil Corp. v. Higginbotham, 1978: the test for whether congressional legislation displaces
federal common law is whether the legislation covers the same issue

7. Pleading
a. Complaint
(a) General rules of pleading claims for relief
o (1) Statement of SMJ
o (2) The claim short and plain statement of claim showing entitlement to relief
Dont need facts sufficient to constitute cause of action (Dioguardi)
o (3) Demand for relief
(b): answer can be denials or affirmative defenses, must be short and plain
(c): list of affirmative defenses
o (2) Pleadings can set forth claims or defenses in the alternative one is not insufficient if another
(f) Pleading construed for justice in light most favorable to
FRCP 9 Pleading special matters (exceptions to FR 8)
(b) Alleging fraud, mistake, or frame of mind
o Denny v. Carey, 1976: notice pleading, must show circumstances proving fraud
(c) Conditions precedent sufficient to aver generally that al conditions precedent have been performed
or occurred; denials need to be made specifically
(g) Special damages have to be specifically stated
o Conditions must be pleaded or evidence must establish the condition as inevitable/necessary as a
result of injuries
o 54(c): you get what you prove, whether or not it was stated
FRCP 11: lawyer signs papers, professional responsibility, sanctions
FRCP 15:
o (1): Amendment once as a matter of course (21 days, or 21 after response)
o (2): Other partys written consent or when justice so requires (discretion)
o (1): Upon objection to evidence, judge may allow amending to include

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o (2): If no objection, it is treated as if raised in pleadings can amend after

o (A): Relation back OK if specifically provided by stat lim law (diversity)
o (B): Arising out of conduct/T&O in original pleading wider than T&O
Erie issue if state has no relation back
o (C): New party + 15(c)(1)(B) satisfied + 120 days + notice + mistaken party

Private Securities Litigation Reform Act (PSLRA), 1995

Really heightened pleading standard (beyond 9(b)) for securities fraud
Allege each statement and how it was misleading and why
o Must show facts on which belief formed giving strong rise to inference of malice
No discovery until motions to dismiss decided makes fraud really hard to prove
Tellabs v. Makor Issues, 2007:
o PLSRA need facts (intent)
o To determine if a complaint alleges a strong inference under PLSRA, court must look to all the
facts, consider competing facts
Must be cogent at least as compelling as any opposing inference of non-fraudulent
NY Field Code, 1848: model for states that adopted code pleading
Code pleading requires s to state factual support for all elements of a each cause of action
Gillispie v. Goodyear Stores, 1963
Relevant facts/arguments
o s allege s maliciously trespassed on s home and by threatening language and physical force
assaulted the , humiliated her, seized her, and confined her to a public jail
o NC Code then was required to make a plain and concise statement of the facts constituting a
case of action
o Dismissed
o The allegations were insufficient complaint makes legal conclusions of assault and trespass but
provides no facts upon which those conclusions are predicated
What, when, where, who did what, relationships, etc.
o When a complaint alleges is indebted to , but doesnt show for what, its demurrable
Shives v. Sample: You cant just say something happened and it was negligence
negligence is a legal result of certain facts, so you have to allege facts
o Robinson v. Board of County Commissioners, 1971: alleged s falsely and maliciously and
without just cause arrested him and detained and imprisoned him when the s knew that the
prosecution was false, groundless, and without probably cause he was acquitted at trial
Court held this claim stated facts sufficient to constitute a cause of action
None of the Federal Rules require "facts"
"facts" has acquired too many different meaning from different types of courts
simply requires "statement"
12(b)(6) -- motion to dismiss
"failure to state a claim upon which relief can be granted"

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12(b)(6) is relief mechanism for failure to state proper 8(a)(2) claim

Conley v. Gibson, 1957: a complaint should not be dismissed for failure to state a claim unless it appears
beyond a doubt that the can prove no facts in support of his claim which would entitle him to relief
FRCP doesnt require extreme detail in facts, only a short statement of the claim to give the fair notice
of what the grounds of the claim are
o Assume truth and ask whether legally sufficient to state a claim
12(b)(6) only valid when no set of facts will bear out claim
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 1993: federal court may not apply
more stringent pleading standards in civil rights cases
Swiekiewicz v. Sorema: allegation for discrimination based on national original and age
Dismissed didnt allege circumstances to support an inference of discrimination
Flexible evidentiary standard, not rigid pleading requirement
Discrimination cases need only show short and plain statement of claim showing entitlement to relief,
not specific facts
Bell Atlantic Corp. v. Twombly, 2007
Plausibility standard to survive 12(b)(6)
Relevant facts/arguments
o (Twombly) filed a class action against the alleging a violation of the Sherman Antitrust Act
through efforts to inhibit the growth of local phone companies and to eliminate competition
amongst themselves where any one was dominant
Complaint alleges that the defendants maintained their regional monopolies by
1) Agreeing not to compete with each other and
2) Agreeing to prevent Competitive Local Exchange Carriers (CLECs) from
competing successfully
Procedural history
o DC dismissed for failure to state a claim upon which relief can be granted
Parallel business conduct alone doesnt state a claim under the Sherman Act must also
allege selfish conduct as an explanation for s parallel behavior
o CoA reversed, saying the DC used the wrong standard
Plus factors are not required to be pleaded to permit an antitrust claim based on parallel
o SC reversed CoA
o The Conley standard isnt enough for antitrust claims must prove a plausible set of facts to
support a claim
o Sherman act prohibits antitrust action based on contract or conspiracy courts have to look to
whether the antitrust behavior was independent action or from an agreement, tacit or expressed
Parallel behavior is circumstantial evidence, and falls short of conclusively establishing
an agreement
o s obligation to state a claim upon which grounds for relief exist requires more than just legal
conclusions requires enough factual matter to suggest an agreement was made
o Rule: Plausibility standard to survive 12(b)(6): Proper standard for pleading an antitrust
conspiracy through allegations of parallel conduct is enough facts to state a claim of relief that is
plausible on its face
o Erickson v. Pardus, 2007: FRCP 8(a)(2) required only a short statement of the claim showing the
pleader is entitled to relief; specific facts arent necessary

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Reversed the TC and CoA holdings which said that the prisoner (), in alleging that he
was denied proper treatment for Hep C, failed to plead that he had suffered substantial
Declines to follow Twombly under 8(a) in a negligence case for pro se
Pro se status is a big deal
Not necessarily overruled by Iqbal

Ashcroft v. Iqbal, 2009

Twombly isnt limited to antitrust cases; pleading (even generally) requires backup by facts
Relevant facts/arguments
o Iqbal Pakistani Muslim in a post-9/11 USA
Claiming A/M contravened the 1st and 5th amendments in designating him a high interest
prisoner on account of his race/religion/national origin
o Ashcroft Attorney General
o Mueller Director of the FBI
Procedural history
o DC A/M raised qualified immunity and moved to dismiss because complaint didnt state a
sufficient claim
Motion to dismiss denied
o CoA A/M brought an interlocutory appeal (collateral order doctrine)
Didnt discuss jurisdiction
Denied motion to dismiss
Affirmed DCs decision
o Pleadings are insufficient, CoA reversed and remanded
o Twombly decision put forth the elements a must plead to state a claim on unconstitutional
discriminations against officials entitled to qualified immunity:
Where claim is discrimination in contravention of the 1st and 5th amendments, must
plead that s acted with discriminatory purpose
Must prove make a decision/took action because of the adverse effects on a group, not
in spite of
Here, must prove s implemented the questioned detention policies for the
purpose of discriminating, not for an investigative reason
Requires more than just knowledge of subordinates discriminatory purpose
o To survive a motion to dismiss, complaint must contain sufficient factual matter to state a claim
to relief that is plausible (allows court to raw reasonable inference that is liable)
Court must accept as true all allegations of fact, not legal conclusions
Complaint here doesnt state a plausible claim for relief
Doesnt prove that he was labeled a person of high interest because of his
race/religion/national origin
o Also, Twombly isnt limited to decisions about antitrust stuff
Rule 9(b) isnt just for fraud anymore also states of mind
o Collateral-order doctrine DC orders are reviewable before final judgment if the DC determines
claims of right separable from rights asserted in the action, too important to be denied review and
independent enough to not require waiting for a final judgment to appeal
Mitchell v. Forsyth, 1985: Qualified immunity defense is one of the answers that can be
appealed before final judgment on the claim because, if denied, it forces the to bear
discovery and is distinct from the claim

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Ziervogel v. Royal Packaging, 1949

Unpleaded special damages are excluded
Relevant facts/arguments
o hit by car operated by
Alleges a few injuries, brought up more in trial
o Must include all claims for relief in the complaint
o May allege general damages generally, however when trying to recover things which are not
foreseeable you have to give more notice
General damages foreseeable
Specific damages not foreseeable
o Blood pressure not inevitable result; unpleaded special damages excluded 49(a-b) can get
around with special verdict (jury questions)
Bail v. Cunningham, 1971
Relevant facts/arguments
o tried to increase damages on day of trial
Procedural history
o DC jury gave damages in excess even of those asked
o Trial day amendment denied, but high verdict upheld under 54(c)
Conscious decision by the jury to award damages in excess of the ad damnum clause

b. Response
3 parts
Denials and acceptances of allegations (8(b))
Affirmative defenses (8(c)(1))
o Must be raised during the answer or lost except rule 15
o Twiqbal standard applies to all claims for relief including counter/cross/implead
Not sure about affirmative defenses/denials
o Showing connotes details
8(b) doesnt use the word showing
8(c) affirmatively state
Defenses and Challenges to the Validity of a Complaint Made by the Defendant in a Pre-Answer Motion or in
the Answer
Rule 12(b)(1): Lack of jurisdiction over the subject matter of the action
Rule 12(b)(2): Lack of jurisdiction over the person
Rule 12(b)(3): Improper venue
Rule 12(b)(4): Insufficiency of process
Rule 12(b)(5): Insufficiency of service of process
Rule 12(b)(6): Failure to state a claim upon which relief can be granted
Rule 12(b)(7): Failure to join a necessary party under Rule 19

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Rule 12(e): Motion for a more definite statement

Rule 12(f): Motion to strike

c. Amendment & supplemental pleadings

FRCP 15 amendment
(a) Time frame, right
o (1) Amend pleadings once within 21 days of service
o (2) Amendments post 21-day limit only with opposing partys consent or courts leave/order
Used to be automatic, now more strict but fairly liberal
(b) Amendment during and after trial
o (1) If a party objects that evidence is not within the issues raised, court may permit pleading to
be amended
Merit-based discretion
(c) If a party is allowed amendments, but amended claim is barred by SoL, relation back
o Fiction of amendment as if claim had been brought within initial claim period
o (1) if the SoL law allows it
In FQ, federal standard
In diversity, state standard
If the state doesnt allow relation back
o (2) same T&O
(d): supplemental pleadings allowed if reasonable and just to add transactions/occurrences/facts since
the original pleading was filed
o No new cause of actions
Worthington v. Wilson, 1993: Injured while being arrested. Amended complaint sought to substitute specific
officers for unknown officers. Because Worthingtons failure to name Wilson and Wall was due to lack of
knowledge as to their identity, and not a mistake in their names, Worthington was prevented from availing
himself of the relation back doctrine of Rule 15(c).
Krupski v. Costa Crociere, 2010: Cruise ship injury. Amendment relates back if the new defendant knew that it
was the proper party to be sued and was not named because of a mistake of the plaintiff, even though the
plaintiff was aware of the new defendant before filing the original complaint.
Generally, amendments to pleadings will be allowed unless they will prejudice the other side.

d. To deter frivolous pleadings

FRCP 11 misconduct
(a) Any paper presented shall be signed by at least one attorney
(b) By presenting a paper, you certify that you know/believe that it isnt being presented for an improper
purpose, the claims/defenses are warranted by law or non-frivolous argument, and the facts have
evidentiary support
(c) Sanctions
o 21 days to correct motion before sanctions

8. Joinder
9 "Parts"
Basic Joinder

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o Joinder of Claims
o Permissive Joinder of Parties
o Compulsory Joinder of Parties
Joinder by Addition (not in original lawsuit, added to additional lawsuit)
o Counterclaims
o Crossclaims
o Third-Party Claim
Other types of Joinder
o Intervention
o Interpleader
o Class Action

a. Joinder of claims
FRCP 18:
may join any claims against the (regardless of T&O)
Some states follow the heightened requirement of having claims be transactionally related
FRCP 42(b): a court can separate claims in the interest of avoiding prejudice
Permissive Joinder
FRCP 20(a)
(1) Joinder of s mult. s want to sue
o Arises out of same T&O or series AND
o Common question of law/fact to all s
(2) Joinder of s wants to sue mult. s
o Arises out of same T&O AND
o Common question of law/fact to all s
Compulsory Joinder
(a) Anti-prejudice procedure
(b) Provision if person mandatory under (a) not available for jurisdictional reasons gives judge

b. Addition of claims by
(a) Compulsory counter claims must arise out of same T&O that is the subject matter of the opposing
partys claim
(b) Permissive counterclaims dont have to be transactionally related
o Any claim against an opposing party
o If, in a diversity action, a compulsory counterclaim lacks diversity of citizenship or amount in
controversy, it can still be brought under supplemental jurisdiction
(g) Cross-claims claim against a co-party (usually to limit/remove liability)
o sArising out of the same T&O as the original action or a counterclaim
o Never compulsory
o Supplemental jurisdiction applies
FRCP 14: when a may bring a 3rd party

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(a) Starts a new case

o Personal jurisdiction is still necessary

c. Impleader (3rd party claims)

FR 14

d. Interpleader
FR 22
USC 1335: over $500 if there are two or more adverse claimants of diverse citizenship or who are members of
a federal class action
May be brought in the judicial district where one or more claimants reside (1397)
Must have personal jurisdiction over the claimant

e. Intervention
FR 24

9. Class actions
Policy Considerations
Pros: Enables litigation; serves efficiency & economy of courts & defendants by consolidating into 1
Cons: Magnifies & strengthens unmeritorious claims; magnifies pressure on D to settle -> judicial

a. Overview/Operation
FR 23(a):
Numerosity (over 40 is good, 25-40 is questionable)
o So that joinder of all members is impractical
Commonality common question of law/fact
Typicality representative of typical class claim
Adequacy of representation
o Judgment shouldnt bind parties who havent had their day in court
o Ensures quality of representation
FR 23(b):
o (1) Avoid risk of prejudice
Mandatory class action to avoid differences in decisions between individual cases (Ortiz)
o (2) acted in a way that applies to the class generally, seeking an injunction
Notice is not essential (Wetzel v. Liberty Mutual Ins., 1975)
o (3) Monetary damages (superiority & commonality) many more limitations than the previous 2
Not a natural class

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Must be truly cost effective way to adjudicate a mass phenomenon class action must be
superior to other methods of adjudicating the controversy (Castano)
Super commonality requirement common question must predominate the action
Opt out right
o Hybrid cases
o Mullane standard for actual notice to people you can reasonably identify
o Court can give whatever notice it wants to
For monetary options, must include possibility of opting out
o Notification of settlements
Class must be certified by a judge
o Look to the feasibility of trying the case as a class or otherwise and then look to the feasibility of
o s must submit a plan to the judge for notice
Judge acts as somewhat of a fiduciary for the class in managing the action
Settlement has to be approved by a judge
Have to establish jurisdiction (SMJ and PJ) as well as certification
o See 1332
o Also, for removal see 1453
FR 23(c):
Certification order by court defining the class claims, issues, or defenses
o Class definition should be precise and objective and not depend on subjective criteria of the
merits of the case or require factual inquiry to determine who is a member (Copper Antitrust
Litigation, 2000)
(2) Notice that is practicable under the circumstances (possibly individual notice to those who can be
o Adequacy AND notice to absentees
o Special requirement for 23(b)(3)
Court must direct class members best notice practicable under the circumstances
(Mullane said notice reasonably calculated, this is more cautious)
o In some cases, you cant identify each individually to send individualized notice, and even when
you can its a huge cost/energy burden
o Has to tell you things (Shutz)
Court will remove from the class anyone who requests to be excluded (only 23(b)(3)
FR 23(e): Settlement

Federal SMJ over any class action with amount in controversy over $5m aggregated
Minimal diversity based on citizenship of representatives only (Supreme Tribe of Ben-Hur)
At least 100 class members
Primary s are states/state officials/government entities
Securities Act or Securities Exchange Act
Relating to internal affairs/governance of a corp. under law of a state where its

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DC may decline SMJ where >1/3 and <2/3 class members are citizens where the action was originally
filed (with additional considerations listed)
DC SHALL decline SMJ where >2/3 class members and primary s are citizens of the state where the
action was filed OR all of the following
o > 2.3 class members are citizens and
o At least 1 significant is a citizen and
o Principal injuries are in the state and
o No other class actions for similar allegations for the preceeding 3 years

Gerstein v. Pugh, 1975: if the class representatives individual interest will expire before a ruling can be made
on class certification, the class may still be certified
Califano v. Yamasaki, 1979: for the commonality requirement, the key question is whether differences in the
factual background of each claim will affect the outcome
Donaldson v. Microsoft, 2001: individualized injuries may defeat commonality
Marisol v. Guiliani, 1997: typicality is found when each class members claim arises from the same course of
events and each member makes similar legal arguments to prove liability
Phillips Petroleum Co. v. Shutts, 1985
Class action on behalf of oil and gas property owners in 10 different states
o Kansas courts certified the class
o Kansas court had applied Kansas interest law to all the members of the class
Dont have to apply the Shoe standard to absent class members
Three due process elements in Rule 23:
o Absent class members are entitled to adequate representation
o Absentees must get actual notice of the suit according to Mullane
o Specifically for money actions, absentees must have the right to opt out
Standard choice of law decision
o Law to be applied had to have a nexus with the case and with the parties in the case
o In a multi-state class action, the court must apply the law of all the states involved
o 23(b)(3)
Miller argued for Phillips
o Saying 14th am belies the s who have a state foreclosure of their claim
o SC established procedural requirements that serve as surrogates for personal jurisdiction
Dont need personal jurisdiction over each member of the class
o Created a monster by asking the court to apply Kansas interest rates to people from everywhere
There cant be predominance if you have to apply every different states laws
Also (b)(3) requires manageability, and thats not manageable
But still, created a monster
Amchem Products, Inc. v. Windsor, 1997
Class action to get global settlement of current and future asbestos claims
o Never was supposed to be litigated
o DC certified the class
SC said adequacy requirement hadnt been met
o The members of the proposed class had diverse medical conditions
o Some wanted payment now for their illnesses and some wanted a fund to cover screenings, etc.
Dies on 23(b)(3) predominance

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Shaw v. Toshiba America Info. Systems, 2000

Class action alleging manufacture of faulty computer disks
Court approved a settlement of $2.1bill.
o Clause saying if not exhausted, the rest should go to charity
Walmart v. Dukes, 2011
Relevant facts
o DC certified class
Women who were or are employed by Walmart
Discrimination claim
Seeking injunction and backpay
Procedural history
o CoA 9th affirmed class certification under 23(b)(2)
Employment discrimination claim
Claim for monetary relief doesnt predominate over claim for injunctive relief
o As opposed to CoA 6th in Coleman v. GM, 2002, which said that damages claims always
predominate over injunctive relief claims
Issue/Form of relief being sought
o Asking for an injunction and some money
o Reversed
o Monetary relief claim was not incidental to injunction claim, so 23(b)(2) doesnt apply
Even if it does, theres a commonality requirements, which they dont meet
But its a hybrid (b)(2)/(b)(3)
(b)(3) elements require procedural safeguards beyond what was given
o Commonality issue: requires s demonstrate that the member suffered the same injury
Not a violation of the same law
Look to common answers, not common questions
General Telephone Co. v. Falcon, 1982: employee claiming he was denied a promotion
on account of race tried to get class certification for all applicants denied promotions/jobs
No commonality: there is a gap between the individuals claim of discriminatory
employment decisions and the existence of a class of people who have suffered
the same injury
Bridge gap if the employer used a biased testing procedure to evaluate people and
with significant proof that an employers discrimination manifested in the same
general fashion across the class
o General Telephone Co. v. Falcon, 1982: employee claiming he was denied a promotion on
account of race tried to get class certification for all applicants denied promotions/jobs
No commonality: there is a gap between the individuals claim of discriminatory
employment decisions and the existence of a class of people who have suffered the same
Bridge gap if the employer used a biased testing procedure to evaluate people and with
significant proof that an employers discrimination manifested in the same general
fashion across the class
AT&T v. Concepcion, 2011
Relevant facts
o Concepcion bought AT&T cell agreement in 2002

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Arbitration clause individual capacity, no class actions

Filed claim for ad fraud and complaint was consolidated by the DC in California
Procedural history
o AT&T moved to compel arbitration under the contract
C denied motion
CoA affirmed contract was unconscionable
o Reversed
o USC 2: arbitration clauses are enforceable except if grounds exist in law for the revocation of
the contract
California law says class action arbitration waivers are unconscionable and unenforceable
Federal Arbitration Act preempts this state contracts statute enforce the clause
Secondary opinions
o Thomas, concurring: Would reverse because the FAA covers this specific issue and the
California law doesnt

b. Jurisdiction
See 1332(d)
Based on federal question, really no problems with SMJ
Based on diversity, two questions
Where do you look to determine diversity
o CAFA, 2005: minimal diversity
Where do you look to determine amount requirement
Class Action Fairness Act, 2005:
Minimal diversity
o Must exceed $5m
o Any is a citizen from a different state than any
Unless more than 2/3 of the s and 1 are citizens where the action is filed
1453: removal of class actions
Basically 1446 except you have more than 1 year
Exxon Mobil v. Allapattah, Inc., 2005
1367 doesnt withhold supplemental jurisdiction over the claims of the s certified as class action
members under Rule 23
SC held that when the complaint includes at least one claim that satisfied amount in controversy, and
there are no other relevant jurisdictional defects, there is federal jurisdiction

c. Settlement
See 23(e)

d. Preclusivity

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Judgment in a class action is binding on all members who do not opt out

10. Res judicata and collateral estoppel

A. Res judica/Claim preclusion
o Preclusions of matters never litigated (true res judicata)
Should have been advanced in the earlier suit
Claim has been decided and cant be relitigated
Well learn what a claim is later
o Res judicata as an affirmative defense:
FR 7: pleading
FR 8: general rules of please
(c): affirmative defenses; res judicata
Looking outside of the complaint, so for summary judgment look at FR 56
o Three elements required
Judgment must be final, valid, and on the merits
Parties in subsequent action must be identical to the first (distinction from issue
Claim in subsequent action must involve matters included in the first action
B. Collateral estoppel/Issue preclusion
o Issue is a part of a claim
o Preclusion of matters that have actually been decided (collateral estoppel)
Forecloses relitigation of the same issue
o Court will direct a verdict on the issue if it is collaterally estopped
o Broader reach than claim preclusion, tougher requirements

a. Claim and defense preclusion

Black letter rule of claim preclusion: valid final judgment is entitled to recognition if it is on the merits and the
same parties are involved in both lawsuits
1. When is a judgment valid and so entitled to recognition?
A condition/requirement of validity for claim preclusion purposes is that there must be
proper personal jurisdiction
A judgment will not be recognized, it will not have res judicata effect, if the rendering
court lacked PJ
Service of process is not a defect that robs a judgment of validity, however lack of
constitutional notice will deprive a judgment of validity
If youve had adequate notice of the lawsuit, then the judgment is valid and final
RSJ: Recognition may be withheld in cases of a default judgment, in cases where there is a
manifest abuse of authority, when the judgment substantially infringes the authority of
another tribunal, or the rendering court lacked capacity to make an informed determination
and principles of fairness tilt in favor of challenge
If A sues B in state court for breach of contract in state court. A wins. A then sues B
in federal court on the antitrust claim arising out of the same transaction; jurisdiction
is exclusive to federal courts. Is the antitrust claim barred? No, because the state court

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couldnt have rendered judgment on the antitrust claim because it lacked subject
matter jurisdiction.
If a court lacks subject matter jurisdiction over a claim, judgment by that court on a
different claim arising from the same transaction doesnt bar the claim that they
didnt have SMJ over from being tried in another court.
If a court renders a judgment on a claim that they dont have SMJ over, the judgment
may still be valid.
2. When is a judgment final and so entitled to recognition?
Modern rule says judgments on appeal are not final
Interlocutory orders are not final
Preliminary injunctions are not final
On the merits no longer required: you dont need a full trial for a judgment to be final
Only 3-5% of cases go to federal court
3. Who is bound by a valid and final judgment?
Same parties or those in privity with them
Privity a set of legal relationships recognized to equate parties that are not the actually
same as legally the same
4. What is barred by a valid and final judgment?
What is a claim for res judicata purposes?
Relation between pleading rules and res judicata
Code pleading: you can combine multiple claims in one lawsuit
Rush v. City of Maple Heights, 1958
Relevant facts
o Rush was injured in a motorcycle accident
Procedural history
o Sued in Cleveland municipal court for damages to property
Found negligent in maintaining its streets poorly, and negligence was a proximate
cause of s injuries
Affirmed by Ohio CoA and Ohio SC
o Sued in Court of common pleas of Cuyahoga County for injuries to person in the same
Issue of negligence was barred by res judicata from municipal court actions trial only
on the issue of damages to person
o Reversed, final judgment for
o Majority rule: a may bring one action to enforce his rights
Mobile & Ohio Rd. Co. v. Matthews, 1906
Injuries to person and property are two results from the same wrongful act
o They can be two claims in one suit for different damages, but not two suits
One tort = one action
o Test for determining the scope of claim preclusion in federal courts:
Claim = factual transaction (regardless of the number of forms of relief being sought)
RSJ: look at
Whether facts are related in time, space, origin, or motivation
Whether they form a convenient trial unit
Whether treating them as one claim conforms to customary business usage
o Transitional case, so not quite using the modern language of CNOF

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o Defining claim:
Form of action
One wrongful act
In federal court: its the transaction
Jones v. Morris Plan Bank of Portsmouth, 1937
Relevant facts
o Conditional sales contract for a car
Owed $482/12 installments
The whole amount becomes due in the event of nonpayment
o Jones suing for damages for the conversion of his car
Procedural history
o sued in civil court for payment of May and June installments
Didnt sue for the full amount
didnt show up, judgment was against him
paid the two months installments
o sued in civil court for the July installment
filed res adjudicata, took nonsuit
o took possession of the car
o sued to recover damages for the loss of his car
When the sued for May and June, the entire installment became due upon nonpayment, o the judgment precludes further action for the full amount because they should
have brought it with the first claims
o Entire amount of the contract due when didnt pay two installments
Judgment of the court below reversed and remanded to redetermine damages for one
cause of action
o If a transaction is represented by one contract, it cant be split into separate actions
Contract here is indivisible
To determine whether a demand is single: indentify fact necessary to maintain the action
I the same evidence supports both actions, they should be two claims under one
cause of action

b. Issue preclusion
Issue preclusion has a broader reach and tougher requirements than claim preclusion
Basic requirements
Same issue
o What is the issue?
A sues B for trespass, alleging B entered As field and removed trees. B says he owns the
field under a deed from A. Court holds Bs deed is invalid, A wins.
The court saying that B doesnt have the deed, is that the same as the court saying
(for the purposes of a later case) that B doesnt have adverse possession?
If we allow collateral estoppel to preclude the adverse possession claim, then
were pushing it to claim preclusion. So when you categorize an issue for

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collateral estoppel purposes, youre narrowing the scope and only looking at the
single issue.
A and B are in a car accident. A sues in state X. State X doesnt have a compulsory
counterclaim rules, but does require to raise s contributory negligence as an
affirmative defense and, if proved, it is a complete bar to s recovery.
B doesnt plead contributory negligence. B is found to be negligent. B later sues
A for his own personal injuries and alleges As negligence. Is the issue precluded
on the question of As contributory negligence? No, because there was no finding
of As negligence that was necessary to the judgment. It was not actually litigated
or decided.
o Determining the issue
The reasonableness of requiring a party to produce all available evidence
The foreseeability that the issue would later arise
The effect of the passage of time
The applicable legal standard
Actually litigated
o Often, not always, goes hand in hand with the requirement that an issue be necessary or essential
to a judgment
Actually decided
Necessary or essential to the judgment
Same parties or their privies
o Mutuality a party or its privies are bound by a judgment only if they also would benefit from
the judgment
o Examples of nonparties who are treated as parties:
Successor in interest
Fiduciary and trustee
Class members
o Car and taxi collide. Pippa (car driver) sues Drake (taxi driver). Drake wins on the issue of
negligence. Pippa then sues Charles (owner of the taxi). Is Charles issue precluded by Pippas
judgment with Drake?
Indemnification anomaly rule: master and servant are not in privity, but the employer
could invoke workers prior victory when a later suit by the same party raised the
identical issue

Southern Pacific RR Co. v. U.S., 1897:

A right, question, or fact as a ground for recovery cant be disputed in a subsequent suit between the
same parties or their privies
o Even if the second suit is for another cause of action

c. Persons benefitted or bound

Bernhard v. Bank of America Nat. Trust & Savings Assn, 1942
Relevant facts
o Bernhard: estate beneficiary
o Cook: estate administrator
o Bernhard sued Cook and lost court said the account was a gift and Cook having it was not
o Cook then resigned as administrator and Bernhard became administrator of the estate

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Bernhard then sued the bank saying they breached their fiduciary responsibility when it
gave the account to Cook
Issue/Form of relief being sought
o Should the bank be able to issue preclude Bernhard on the issue of whether handing the account
over was a gift or wrongful, when the bank was not in mutuality with the prior litigation?
o Affirmed
o Res judicata use to only be available when there is privity and mutuality of estoppel
Privity: only parties to the former action may be bound by it
Mutuality: if one taking advantage of the earlier adjudication would have been bound by
the decision rendered
o Criteria for who may assert res judicata against whom res judicata may be asserted
Cant assert a plea of res judicata against a party unless he was bound by the earlier
Party asserting res judicata does NOT have to have been a party or a party in privy to the
earlier litigation
Abandonment of mutuality requirement
o Determining the validity of a plea of res judicata:
Was the issue previously decided identical to the one presented in this action?
Was there a final judgment on the merits?
Was the party against whom the plea of res judicata is asserted a party or a party in
privity with a party of the prior adjudication?
o In this case:
It would be unjust to permit one who has had his day in court to reopen identical issues
by merely switching adversaries
Issue as to the ownership of the money is identical with the issue raised
The order of the previous court was final
Must determine only whether the is the present action was a party or party in privity to
the first action
brought current action as administratrix of estate represents the same persons
and interests as the earlier litigation
o Under traditional rules of mutuality, court should not allow banks issue preclusion defense
o Doctrine that emerges: non-mutual defensive issue preclusion
A sues B, A loses, A sues C for same issue, C is not in mutuality
Lets a party who would not be bound by a prior judgment to use that judgment defensive
to bar a repeat from trying to get relief from what is regarded as the same issue
Repeat party is always the , new party is always the , is always raising issue
preclusion as an affirmative defense
Federal court recognizes the non-mutual defensive issue preclusion
Blonder-Tongue (patent case)
Somewhat different from the Bernhard rule, because the court recognized there
may be some unfairness in allowing a new to bar a repeat
Makes the doctrine discretionary TC has to give repeat opportunity to show
she didnt have a full and fair opportunity to litigate in the first law suit, so the
court can deny this affirmative defense in the interest of justice

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Parklane Hoisery Co. v. Shore, 1979

Relevant facts
o Shore brought stockholders class action against Parklane in federal DC for issuing false and
misleading information about a merger
Seeking damages, rescission of the merger, and recovery of costs
o Parklane saying this case is barred by res judicata for a previous action brought by the SEC
against Parklane for the same stuff
DC denied the motion, saying it would deny Shore 7th Am. right to jury trial
CoA reversed non-mutual offensive issue preclusion is available in federal court
CoA again
o CoA affirmed
o Threshold: whether Shore is precluded from relitigating facts resolved adversely in an earlier
case with another party
Offensive use of collateral estoppel: seeks to foreclose from litigating an issue the
previously litigated unsuccessfully
Present case
Doesnt promote judicial economy
Defensive use: seeks to foreclose from asserting a claim the previously litigated and
lost against another
Promotes judicial economy
o Trial courts have discretion to determine whether a case of offensive use of collateral estoppel is
allowed or where its unfair to the
Rule: in cases where a could have easily joined the earlier action to this one or it would
be unfair to the for any reason, trial judge should not allow offensive collateral estoppel
In this case, offensive collateral estoppel is okay Shore could not have joined the SEC
o Does using collateral estoppel in this case violate Shores 7th Am. right to a jury trial? No.
If an issue common to both claims was determined by a judge, relitigation may be
foreclosed by collateral estoppel
o Non-mutual offensive issue preclusion
A sues B, A wins. C sues B, C seeks to estop B on the issue decided in As favor earlier.
Under traditional rule of mutuality, a who lost was allowed to defend on all issues
against a new
After this case: conditional approval, discretionary
Virtual representation: when a party who did not appear in a lawsuit and was not
legally represented in a lawsuit was barred from issue and claim preclusion
Taylor v. Sturgell, 2008
Court rejected notion of virtual representation for claim preclusion (not for issue preclusion)
Relevant facts
o Taylor sued under Freedom of Information Act seeking documents for a vintage airplane thing
o Herrick gas previously filed an unsuccessful suit seeking the same documents
No legal relationship, but were friends
Procedural history
o DC granted summary judgment
Applied 8th Cir. 7-factor test
REQUIRED: identity of interests between nonparty and party to the prior
judgment (plus one of the following):

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Close relationship between present party and party to the allegedly preclusive
Participation in the prior litigation
Present partys acquiescence to the preclusive effect of the prior judgment
Present partys deliberate maneuvering to avoid preclusive effect of prior
Adequate representation of the present party by a party to the prior suit
A suit raising a public law question (not a private law issue)
Alternatively, the 4th Cir. precludes a nonparty only when the court has given tacit
approval to a party to act for and be accountable to the non-partys
o Cir. Court for DC 5-factor test:
First two are necessary but not sufficient
Identity of interests
Adequate representation
Plus at least one of:
Close relationship between present party and prior party
Substantial participation in the first case
Tactical maneuvering to avoid preclusion by the present party
Necessary conditions met
Issue/Form of relief being sought
o Scope of preclusion based on virtual representation
o SC CoA for DC ruling vacated, remanded
o Exceptions to the rule against non-party preclusion
Nonparty may agree to be bound by prior judgment
If interests are represented adequately (class actions, suits by guardians, etc.)
Nonparty has assumed control over a lawsuit
Nonparty who has colluded to avoid the preclusive effect of a judgment by litigating
through a proxy may be bound
Special statutory schemes brought on behalf of the public at large (bankruptcy, etc.)
o Virtual representation is not an exception to the rule against nonparty preclusion not persuasive
so shouldnt be included
o Representation is adequate for nonparty preclusion only if one of two circumstances exist:
The court used special procedures to protect nonparties interests
An understanding by the concerned parties existed that the first suit was brought in a
representative capacity
o Taylor didnt agree to be bound by Herricks litigation, they didnt have any legal relationship,
Taylor didnt control Herricks suit, and the prior suit didnt limit relitigation
Also, Taylor was not represented in Herricks suit
Preclusion cannot be justified unless the party to this suit brought it as an agent to a
prior party who is bound by the prior judgment
Taylor is not Herricks representative
o Remand to determine whether Taylor is acting as Herricks agent
Preclusion is only appropriate is the agents conduct is subject to control of the party
bound by the prior judgment
Claim preclusion is an affirmative defense Taylor doesnt have to prove he isnt
Herricks agent, the other party has to prove Taylor is Herricks agent

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d. Intersystem preclusion
Federal-State, State-Federal, State-State
Semtek International Inc. v. Lockheed Martin Corp., 2001
Relevant facts
o Semtek sued Lockheed in CA state court, alleging breach of contract and other torts
Lockheed removed to DC for diversity
Procedural history
o DC of CA dismissed for statute of limitations
9th Cir. affirmed
o Semtek brought suit in Cir. Court in Maryland, not time barred
Dismissed for res judicata
Maryland Court of Special Appeals affirmed dismissal by CA federal court barred
Maryland complaint
o SC
o Maryland Court of Special Appeals reversed
o Original connotation of an on the merit adjudication is one that actually deals with the substance
of a particular claim
Judgment on the merits no longer is necessarily entitled to a claim-preclusive effect
If so, it would violate Erie
o Adjudication on the merits = dismissal in CA federal courts barred refilling of the same claim in
Not sufficient for a claim-preclusive effect in other courts
o Federal common law governs the claim-preclusive effect of a dismissal by a federal court in a
diversity action
Federal court should adopt the law of the state courts in the State where the federal
diversity action sits
Maryland Court of Special Appeals erred in holding that dismissal in CA precluded the
action in Maryland courts