If court at any point notices a defect in SMJ, it must kick lawsuit out of federal court


Requirement #1: Constitutional limit (Article III §2)
o Federal law must be an “ingredient” of the case (Osborn)
! This is pretty broad…as long as federal law is somehow in dispute in the
case, it can constitutionally be heard by federal court
Requirement #2: Statutory limit (§1331)
o Option #1: Existence of federal question must appear on the face of the plaintiff’s
well-pleaded complaint (Mottley)
! FQJ is valid if federal statute allows party to bring suit
• Weird clarification: if federal statute creates a cause of action but
does not allow a party to bring suit under federal law (i.e. statute
authorizes parties to bring suit against each other using “local
customs”) there is no FQJ
o Option #2: Smith/Grable exception to Mottley’s “well-pleaded complaint” rule
! Step #1: Plaintiff’s state-law claim turns on a question of federal law
• When it appears from Plaintiff’s pleadings that Plaintiff’s right to
relief depends upon proving a proposition of federal law, federal
courts have jurisdiction over a state-law cause of action (Smith)
! Step #2: Factors (Grable)
• Federal law issue is a “pure issue of law” (rather than “factbound”)
• FQJ in this case will not upset state/federal court balance
o If allowing this would sweep too many into federal courts,
then deny
• There is a significant federal interest in having case heard in
federal court (i.e. federal government wants federal interests to be
treated fairly)
• Congressional intent: if Congress seems conspicuously silent,
choosing to not confer federal jurisdiction, then FQJ is invalid
(Empire HealthChoice)
Declaratory judgment (§2201(a))
o Exception to the well-pleaded complaint rule
o Greiner Imaginary Lawsuit Rule
! If there would have been federal SMJ in imagined lawsuit (the lawsuit that
the requested declaratory judgment is seeking to prevent), then there is
federal SMJ over the declaratory judgment
o Important statute: allows potential D to become the P (and master of complaint)


Irrelevant: constitutional limit (Article III §2)
o If any defendant is diverse from any plaintiff, then DJ is valid
Relevant: statutory limit (§1332)
o Requirement #2: Amount in controversy: must exceed $75,000

Requirement #1: domicile – complete diversity – domicile of all plaintiffs must be
diverse from all defendants (Strawbridge)
o Determining individual’s domicile
! Start with state of birth
! Domicile only changes when a person takes up residence in a different
domicile AND intends to remain there
o Corporate domicile
! State of incorporation AND state of “nerve center”
o Unincorporated association (i.e. union) domicile
! Every state where any member is a resident
o Alien domicile
! Think of them as being resident of a “52nd state”
Requirement #2: amount in controversy must exceed $75,000
o Plaintiff’s claim accepted in good faith
! May only be dismissed if it appears to a “legal certainty” that plaintiff
cannot recover over $75,000
o Aggregating claims
! Single P v. Single D: all claims aggregated (regardless of relatedness)
! Single P v. Multiple Ds: no aggregation – must meet requirement for each
defendant separately
! Multiple Ps v. Single D: one plaintiff must have $75,000 claim – then
other plaintiffs seeking to enforce a single right may join regardless of
amount of their individual claims
! Multiple Ps v. Multiple Ds: may not aggregate (for purposes of this class)


STEP 1: Requirements for federal courts to have the power to hear supplemental (statelaw) claims…on test, walk through these step-by-step
1. Identify federal anchoring claim
a. Analyze claim by claim and party by party…you only need original
jurisdiction (either §1331 FQJ or §1332 diversity) over one claim in the
complaint…this individual claim is a “civil action” for the purposes of §1367
2. Identify supplemental claim
a. Supplemental claims must form part of the same case or controversy as
anchoring claim (§1367(a))
b. Federal and state claims must emerge from a “common nucleus of operative
fact” (Gibbs)
i. Probably sufficient if it involves the same plaintiff or defendant
ii. Likely sufficient if it comes out of same transaction
iii. Outer limits are broad/undetermined
3. If anchoring claim is FQJ, then court may exercise jurisdiction on supplemental
claims and parties
4. If anchoring claim is diversity, limits on which supplemental claims and parties may
be attached (§1367(b))....if ALL OF THESE ARE MET, THEN NO
SUPPLEMENTAL JURISDICTION (otherwise, go ahead and add!)

Claim made by a plaintiff
Claim made by a plaintiff against a
person made a party pursuant to
FRCP 14 (TPP), 19 (didn’t study), 20
(permissive joinder) or 24

Claim by party seeking to intervene
as plaintiffs under FRCP 24
OR party proposed to be joined as
plaintiff under FRCP 19 (didn’t

NB: FRCP 23 (class actions) is not
one of these limiting rules…these
may be supplementally attached
b. “When exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of §1332” (this step is not
straightforward, Exxon) BIG QUESTION: DOES “INCONSISTENT”
i. If adding a claim that destroys complete diversity, the claim is
inconsistent with §1332 and will kill supplemental jurisdiction

ii. If adding claim that violates amount in controversy requirement, this is
not inconsistent with §1332 and can be added as supplemental (Exxon)

iii. If adding a claim that violates amount in controversy requirement
AND is a claim made by a plaintiff against a person made a party
pursuant to FRCP 14, 20, or 24…this is up for debate

1. Should it be allowed? Possible rationales in play…
2. If basis of Exxon is that §1367(b) codified a less stringent
diversity requirement for supplemental claims (i.e. only need to
meet complete diversity, not amount-in-controversy for these
claims)…then allow!
a. This would further efficiency aims (trying cases
together that involve same facts)

b. Potentially negative effects could be ameliorated if
court declines jurisdiction pursuant to 1367(c)
3. If basis of Exxon is narrower…only ruling that §1367 confers
supplemental jurisdiction to completely diverse claims not
specifically called out as impermissible…then don’t allow
a. This would further state court/federal court balance
concerns, stopping federal government from gobbling
up too many suits
b. This would also further fairness to defendant
concerns…prevent defendants from being dragged to
inconvenient forums on small claims
STEP 2: Discretion: federal courts may decline supplemental jurisdiction
o Statutory provisions allowing discretionary declining (§1367(c))…none are
automatic, these are FACTORS/OPTIONAL
(1) Supplemental claim deals with novel/complex state-law issue
(2) Supplemental claim “substantially predominates over” anchoring claim
(3) Anchoring claim has been dismissed before trial
• Greiner: court probably doesn’t mean this if the supplemental
claim would be barred by statute of limitations (because too much
time has passed while the federal suit was pending)
(4) “Exceptional circumstances” where there are “other compelling reasons”
• Gibbs offers some possible “compelling reasons”
o Economy
o Fairness to litigants
o Convenience to litigants
o Preventing jury confusion over a complex case
o How courts interpret supplemental claim discretion
! Executive Software (9th Circuit)
• To decline supplemental jurisdiction, court must evoke one of the
§1367(c) categories (see above)
• If choosing to decline for “exceptional circumstances,” court must
articulate which Gibbs factors apply
! 7 Circuit
• Courts can decline supplemental jurisdiction whenever they want
Probably irrelevant history (these were overruled by §1367)
• “Hangover” effect the demonstrates courts’ hesitance to add supplemental parties
o Gibbs: created supplemental SMJ as matter of common law (for claims)
o Owen: no SMJ in diversity suit when plaintiff adds party that destroys
o Aldinger: when Congress specifies certain defendants that may be brought
under statute, other defendants should not be attached via supplemental
o Finley: can never attach supplemental parties (clearly overruled by §1367)


Basic principles
o If a suit could have originally been brought in federal court, then in may be
removed from state court to federal court
! Well-pleaded complaint rule applies (removal only possible on plaintiff’s
claims, not on defendant’s possible defenses)
o Only defendants can remove
o Removal is automatic; federal court then decides whether to remand to state court
! Why?
• Fairness to parties: worries that state courts won’t decide fairly
(especially with out-of-state Ds removing for diversity)
• Judicial administration: don’t want state courts sending a bunch of
cases into federal court
o Removal is move from state court to sole geographically-relevant federal district
o If court or either party at any time realizes there is no federal SMJ, the case will
be remanded to state court
Applying removal
o Identify relevant events
! Removable event
! Removal
! Motion to remand to state court
o Then, ask these questions
! If P seeking to remand: Did plaintiff motion to remand within 30 days of
• If no, case stays in federal court
• If yes, court should remand if any of the following occur
o Case began in defendant’s home state court and the only
cause for federal SMJ is diversity
o Defendants did not unanimously agree to removal
o Defendant failed to remove case within 30 days of
removable event
o Defendant had consented to state-court jurisdiction (by,
say, filling an answer)
! If D seeking to remove: Has it been more than one year since the case
initiated and the defendant has just discovered diversity?
• No removal possible, unless plaintiff acted in bad faith


Generally, per 2010 exam, unlikely to plaintiff a stay on a lawsuit he filed
When concurrent litigation is ongoing in state courts, when can federal courts decline
Principles behind abstention doctrine
o Federalism
o State-court/federal-court balance
o Desire to not interfere with state governance/administrative systems

How far along each of the concurrent actions is h. tax. Order in which jurisdiction was obtained e.g. dismissal may be warranted i. federal) f. Scope of state-court litigation vi. Inconvenience of forum iii. Desirability of avoiding piecemeal litigation d. criminal. collateral order) . Chronological order in which jurisdiction was obtained ii. Inconvenience of federal forum c. Substantially the same parties litigating substantially the same issues at the same time as in another forum 2. Whether “the state” has assumed jurisdiction over property b. if a holistic consideration of the following factors is persuasive and clearly justified. Absence of other litigation in federal court v. Need not be identical b. ! Also: divorces (federal courts wont hear them. Source of governing law (state v. Lacy o “To determine whether a stay is appropriate in a particular case a court must conduct a two-part analysis” 1.• • ! E. parallel action in state courts? (2) If parallel action exists. education. Availability of removal j. Burford) Applying abstention doctrine: the Colorado River stay (abstention under “exceptional circumstances”) (1) Is there simultaneous. Substantial likelihood that the state litigation will dispose of all the claims presented in the federal case c. (Only if parallel test is met) consider factors that might demonstrate “exceptional circumstances” exist that allow federal district court to turn down jurisdiction a. “Vexatious or contrived” nature of federal claim 3. Existing participation by plaintiff in state-court action Applying Colorado River test: Clark v. Adequacy of state-court action to protect federal interests g. Availability of concurrent jurisdiction i. Truly concurrent litigation is in progress: Determine whether state-court and federal-court actions are actually parallel a. Note: judge’s decision is immediately appealable (Cohen. Avoiding piecemeal litigation iv. etc.

breach of contract. court must meet notice and opportunity-to-be-heard requirements QUASI-IN-REM JURISDICTION • • • Tests (two possible. and forum (Shaffer) ! Greiner doesn’t think court takes this test (which treats quasi-in-rem like International Shoe’s in personam test) seriously ! There are really never contacts between the seized property and the subject matter of the litigation ! Courts may be reserving this for potentially absurd situations (Shaffer’s DE statute that would have allowed quasi-in-rem suit in DE of any shareholder of a DE corporation) o Test #2: “tag” jurisdiction (Burnham) ! Courts generally apply a version of the Burnham rule for “tag” jurisdiction to property…if property in the geographic confines of the state.) o P asks court to attach D’s property that exists within the geography of the state ! State seizes and attaches D’s property ! Property need not be related to the lawsuit o P proves in suit that D owes him money o D’s seized property sold to satisfy the judgment Why would you use it: two scenarios o Scenario #1: difficult to serve process upon D o Scenario #2: difficult to obtain personal jurisdiction over D IN PERSONAM JURISDICTION – LAWSUIT STEPS & CHALLENGING IPJ . entering a lien. etc. this would require deeper analysis (Not a jurisdiction question. subject matter of the litigation. or publicizing in state title books (or if small enough actually putting it in vault) o If physical object. but keep in mind…) Remember for procedural due process. then court can exercise quasi-in-rem jurisdiction • Remember: Burnham is really an IPJ test…this is an analogy Steps in a quasi-in-rem action o P alleges D owes him some money (for tort.PERSONAL JURISDICTION CONSTITUTIONAL LIMITS • • “Full faith and credit” (Article IV) Due process clause (14th Amendment) IN REM JURISDICTION • • • Against property: court adjudicates ownership of piece of property against the entire world o Cases have odd names…“The Nautilus” or “In re #4 Privet Dr” Test: Court must validly exercise dominion over property (attach property) o Court will “seize” it by posting on the property. discuss both) o Test #1: minimum contacts among D’s property interest in seized property. must be within geographical jurisdiction of the state o If incorporeal.

from Scalia): traditionally. Full Faith and Credit clause prevents reexamination of merits IPJ – EXAM STEPS • • • • Scenario #1: P sues D in state of domicile o Yes: general jurisdiction o Remember for business: state of incorporation. D defaults on the merits D defaults (this is D’s best option if he is positive the original court doesn’t have IPJ) D defaults. Walmart in any state…not technically state of domicile but such a purposeful availment of the state that it basically counts) Scenario #1b: P tags D in state o Burnham’s probable rule (4-4-1 split…if I face this in test. and loses Action in original court Action in enforcing court Enters judgment for P Must enforce the original judgment. the tag has been the very basis of due process Scenario #2: D consents to IPJ (or effectively consents by responding to lawsuit without raising IPJ right away) o Yes: general jurisdiction Scenario #3: Non-consenting D not domiciled in forum state o Step #1: determine statutory limit ! State court: state statutory limits (long-arm statutes) • Most states: go to the limits of the Constitution (move on to constitutional analysis) • Other states: give specific situations were IPJ may be exercised against out-of-state Ps (fit lawsuit into this. if it finds that it does not. you should seize his property” ! D can challenge Defendant’s response to original suit D appears.• Steps in an IPJ lawsuit o Lawsuit 1: Plaintiff sues defendant in a court other than defendant’s home court o Lawsuit 2: P seeks to enforce Lawsuit 1 in D’s home court ! Plaintiff says “look. later tries to contest merits in enforcing court Dismisses claim Enters judgment for P Enters default judgment for P (unless lack of IPJ was clear on face of complaint) Enters default judgment for P Must enforce the original judgment Will only consider question of IPJ.” and ubiquitous presence (i.” court agrees that it lacks IPJ D makes “special appearance. D has waved objection to IPJ D makes “special appearance. the defendant owes me money as determined in Lawsuit 1. then federal court can exercise IPJ . state of “nerve center. also do a scenario #3 analysis) ! Rationale (for why tag suffices. defends on the merits. then move on to constitutional analysis) ! Federal court: federal statutory limits • Rule 4(k)(1)(A): “Piggy back” statute o If the court of the state in which federal court sits can exercise IPJ.e.” court upholds IPJ. it will not enforce Must enforce original judgment.

even though the D maintained a relationship with the contracting party after the move ! Takeaway: only minimum contact with the state where the contract initiated ! Once you have minimum contacts: other factors (analogize to these cases) • Purposeful availment (J.o Applies whenever Congress doesn’t otherwise authorize IPJ • Rule 4(k)(1)(C): express Congressional authorization o When a statute authorizes nationwide service of process... find federal statute explicitly authorizing IPJ o Then. personal jurisdiction may be established in any district. McIntyre) o Targeting the forum specifically (not mere stream of commerce) o Seeking the benefit/protection of the laws of the forum • Plaintiff’s interests (McGee) • State’s interests (McGee) o State has statute authorizing o Protect its residents • Foreseeability (World-Wide Volkswagen) • Tag in the state o NOTE: This may create general jurisdiction (unclear after Burnham’s 4-4-1 split) • Minimal weight (but do consider): . subject matter of litigation o Brennan: almost anything will meet this o Conservative judges: somewhat of a bar (see below) • Contract may be a minimum contact (McGee) o But see Hanson. where no minimum contact with the state that the contracting party moved to.e. perform your constitutional minimum contacts analysis with the US as a whole (i. pretend like the US is a single state for the purposes of IPJ tests) (Pyrenee) o Step #2: perform constitutional analysis ! Threshold requirement: Minimum contacts (International Shoe) • Contacts among defendant. never done it with state law causes of action o First. pretend like the US is a single state for the purposes of the IPJ tests) • Rule 4(k)(2): for federal claims outside state court jurisdiction o Only apply if 4(k)(1)(A) or 4(k)(1)(C) don’t apply/fail o Only for federal causes of action o Perform your constitutional minimum contacts analysis with the US as a whole (i. given the existence of sufficient national contacts (GoVideo) ! Congress has ever only done this with respect to federal causes of action.e. forum.

Show specific activity showing that defendant targeted forum state • Implication of this test is: target as broad an audience as possible. Defendant knew that plaintiff would feel brunt of harm in forum state. World-Wide Volkswagen) • Blame/domestic law (Kulko…allowing daughter to move to CA was not a purposeful availment of CA) Internet jurisdiction (tricky) • Example is Griffis • But Griffis is a mess…plaintiff must show 1. McIntyre would have met this Adages for when there is NO jurisdiction • Stream of commerce (J. that way you can only be brought under jurisdiction in your home court • How might you distinguish Griffis and Calder? o Where is the reputation located? o Where is the center of the industry in which the reputation matters? o In Calder. court may exercise IPJ o Narrow: need something more than effects…need express aiming o Narrowest interpretation (Griffis) ! 1: intentional tort ! 2: P felt brunt of harm in the forum state ! 3: D “expressly aimed” conduct at forum state o Narrow interpretation is likely right…otherwise J. Defendant expressly targeted forum state a. Defendant committed an intentional tort 2. all of the peripheral damage to reputation happens in CA because people who hold a conception of her reputation are in CA OUTDATED: HISTORICAL EVOLUTION OF IPJ • Now-outdated rule: territorialism and the traditional view (Pennoyer) .! ! o Efficiency o Needs of interstate judicial system o Convenience of parties/witnesses o Desire to provide a forum in which to litigate dispute • “Effects test” (Calder) o Broad interpretation: where effects of D’s act are felt. Forum state was “focal point of the plaintiff’s injury” (“brunt” of the injury felt there) 3. McIntyre) • Unilateral activity (Hanson. AND b.

and corporations o Kane (cars) ! States made requirement that drivers appoint someone to receive process in state in order to drive within the state boundaries. it cannot be too much of an inconvenience to plaintiff Challenges to the traditional view: cars. limiting the situations in which plaintiffs can bring action ! Prevents inconvenience to defendant ! Prevents courts from extending their reach too far ! Sovereignty among the states ! Protecting individual’s rights…to the extent that an individual can consent to submit himself to jurisdiction of a state o Piece of Pennoyer that is still good law: ! Due Process clause prevents courts from projecting power onto individuals outside of their boundaries ! What outside the boundaries means changes through subsequent cases o Pennoyer gives a territorial doctrine to personal jurisdiction…why? ! Power/sovereignty issue • States should not be able to exercise power within other states ! Fairness to the defendant • Defendant’s ability to consent to state’s jurisdiction • Tag within state gives notice • When tagged within state. they still have to be tagged within the state o Hess (cars) ! States decided that State X can gain personal jurisdiction over nonresidents by declaring that the use of a highway by a non-resident was the equivalent of the appointment of the registrar as agent on whom process could be served ! Courts are abandoning strict Pennoyer doctrine . defendant must be personally served within the state (the court’s jurisdictional limits) o Why require in-state service in order to exercise personal jurisdiction? ! Puts a burden on plaintiff. contracts. ! This is totally unworkable…if someone fails to appoint a receiver.• o In order to exercise personal jurisdiction.

Pick a district in which a “substantial part” of events/omissions/property leading to claim are located (there may be multiple valid venues) ONLY if neither of those routes applies (because event/omission/property is outside the US) (b)(3) 3.g. patent) • DOES NOT APPLY TO REMOVAL Also…defendant may waive right to challenge an “improper” venue • By declining to/failing to challenge venue • By signing a contract with a forum selection clause When IPJ/Venue relationship is tricky • Venue (yes) and IPJ (no) – J. Pick any district in which any defendant resides (there may be multiple valid venues) 2. McIntyre o Venue – because a substantial portion of events happened in NJ (§1391(b)(2)) . Walmart in any district) • For unincorporated associations o Reside = any district where subject to personal jurisdiction • Statutes may further restrict venue for certain types of claims (e. Residence of defendants (b)(1) a. assume venue is proper (should be the federal district embracing that state court) BASIC PRINCIPLES §1391 Two basic routes to venue…you can pick either one! 1. Only if all defendants reside in the same state b.e.VENUE • Does not apply to cases removed from state court! If a case is removed. Any location where any defendant is subject to personal jurisdiction Special rules to keep in mind • For individuals (US citizens and lawful permanent residents) o Reside = district in which she is domiciled • For aliens o Reside = everywhere • For corporations o Reside = any district where (if the district were its own state) the corporation would be subject to personal jurisdiction ! Reside = (probably any) district in state of incorporation ! Reside = the specific district in which “nerve center” is located ! Reside = the specific district with which corporation had significant contacts leading to particular claim ! (maybe) Reside = districts where corporation has a persistent/overwhelming presence (i. Location of substantial events/disputed property (b)(2) a.

you could bring it to any forum (so long as no SMJ problems. it can transfer sua sponte HCOL and transfer (“Greiner Happy Court Rule”) o When. use HCOL rules of transferor state ! “Merely a change of courtroom” o If transferor was unhappy (lacked IPJ or had improper venue). use HCOL rules of transferee state ! Makes sense…plaintiff should not get benefit of HCOL rules of a state in which they improperly filed FORUM NON CONVENIENS • • Only for moving litigation to state court or foreign country’s court Factors for determining forum non conveniens (Gulf Oil Corp.) o Ease of access to evidence o Witnesses (compelling unwilling witnesses and ease of access for willing witnesses) o View of premises (ability to see property if necessary) o Judicial administration ! Ease ! Speed ! Expense ! Avoiding congestion ! Governing state or foreign law/judicial expertise (in diversity cases.. who will benefit from this suit…where the relatives of the deceased in a wrongful death action reside]) ! Where does plaintiff want to litigate? ! Where does defendant want to litigate? . I think) o Or. if court notices IPJ problem. best to have trial in the state of the law) o Local/community interest ! Not imposing jury duty on distant people ! Allowing people with an interest in the trial to see the trial o (Added by Piper. because federal court’s ability to have IPJ is dependent upon state-court ability to have IPJ (Federal Rule 4(k)(i)(2)) Venue (no) and IPJ (yes) o Wrong district in right state TRANSFERS WITHIN FEDERAL COURT SYSTEM • • When transfer is valid (“federal transfer statutes”) o Action may only be transferred to a court where the action might have been brought at time of filing (Hoffman) ! Only considers IPJ and venue (does not include whether it might have been brought because of statute of limitations or the law of the circuit) o Or if all parties consent.e..real party of interest [i. federal court (transferor) transfers to another district (transferee) o If transferor was happy (had IPJ and proper venue). in a diversity action.• o IPJ – no.

court should not really consider change in substantive law .• Limit on forum non conveniens o Change in substantive law when plaintiff will have NO REMEDY AT ALL in the alternate forum (Piper Aircraft) ! Otherwise.

EXPANDING THE LAWSUIT ADDING PARTIES/CLAIMS TO THE LITIGATION • • • Steps for determining if you can add a party or claim (walk through claim by claim) o Step #1: Do you meet the requirements of a FRCP that allows you to add the claim? ! Add a plaintiff (20) ! Add a defendant (20) ! Add third party (14) ! Crossclaim (13) ! Counterclaim (13) ! Add any other claim against a party already in the lawsuit (18) o Step #2: Does the court have SMJ over this claim? ! Option #1: FQJ • If claim’s basis is FQJ. two excavation contracts found to be same T/O) ! Close and logical relationship ! Same parties ! Same type of work ! Substantially same time period ! Interrelated contractually ! Same insurance policy covered both contracts ! Same evidence would be used in both cases . the case cannot be in federal court Frequent requirement: same “transaction or occurrence” o Same as “common nucleus of operative facts” test from supplemental jurisdiction o Basic test ! Logical relationship ! Separate trials would involve substantial duplication of evidence and time/effort o Factors (Heyward-Robinson. keeping Exxon in mind) o Step #3: IPJ o Step #4: Venue General requirements: o FRCP allowing addition of party o SMJ over the plaintiffs ! If adding a party destroys complete diversity. then yes ! Option #2: Diversity (tricky) • Amount in controversy—can aggregate claims by single P against single D o Valid: P sues D on $40k contract claim and unrelated $40k tort claim • Complete diversity ! Option #3: Supplemental jurisdiction (see above for more) • Common nucleus of operative fact • Claims by plaintiffs must not destroy complete diversity (see above for more.

e. although it could be messy.! • • • Impossibility of trying one claim without bringing in substantial evidence about the other Policy being furthered here: efficiency o Obviously more efficient for courts to dispose of related claims all in one suit o Joinder. FQJ or Diversity+AIC) Effect of failing to assert compulsory counterclaim: cannot raise issue in subsequent suit in federal court ADDING A PLAINTIFF (PERMISSIVE JOINDER – FRCP 20) • • • When another plaintiff wants to sue the same defendant(s) Requirements [20(a)(1)] o Same T/O o Common issue of law or fact (there is always a common issue of law or fact) Triggers a counterclaim from defendant(s) to added plaintiff o o Same T/O: compulsory [13(a)] o Not T/O: permissive [13(b)] ADDING A DEFENDANT (PERMISSIVE JOINDER – FRCP 20) . still furthers efficiency aims with 42 consolidation/separate trials requirement o Also enhances efficiency for parties. who no longer have to file separate lawsuits Policy also being furthered: fairness to parties o Counterclaims/crossclaims/third-party claims prevent party from having to pay one moment what they have the right to recover the next Another policy: preserve P’s right to choose his forum o Exception to this is compulsory counterclaim COUNTERCLAIM (FRCP 13) • • • • Same T/O: compulsory [13(a)] Not T/O: permissive [13(b)] Jurisdiction over counterclaims o Majority of circuits: permissive counterclaims require only a “logical relationship between counterclaim and main claim” o Some circuits: permissive counterclaims can only be added if they have an independent basis of federal jurisdiction (i.

you can’t add it [§1367(b)] Triggers counterclaim from other plaintiff o Same T/O: compulsory [13(a)] o Not T/O: permissive [13(b)] DEFENDANT ADDS DEFENDANT (THIRD-PARTY PRACTICE – FRCP 14) .• • • When plaintiff(s) want to sue another defendant Requirements [20(a)(2)] o Same T/O o Common issue of law or fact (there is always a common issue of law or fact) Triggers a counterclaim from new defendant o o Same T/O: compulsory [13(a)] o Not T/O: permissive [13(b)] DEFENDANT SUES EXISTING DEFENDANT (CROSSCLAIM – FRCP 13(g)) • • • • Requirement: same T/O or same property [13(g)] Always permissive Generally does NOT destroy diversity because §1367 applies only to claims by plaintiffs o Court could still decline supplemental jurisdiction under §1367(c) Triggers counterclaim from other defendant o o Same T/O: compulsory [13(a)] o Not T/O: permissive [13(b)] PLAINTIFF SUES EXISTING PLAINTIFF (CROSSCLAIM – FRCP 13(g)) • • • • Requirement: same T/O or same property [13(g)] Always permissive WARNING: if basis is diversity and this suit does not meet diversity requirements.

• • • • D1 (acting as “third-party plaintiff”) can add a “third-party defendant” [14(a)] Always permissive Requirement o TPD must be liable to TPP for all or part of the claim against it (“shifts liability”) ! Not technically a T/O requirement (TPDs are usually insurance companies) Triggers counterclaim from TPD [14(a)(2)(B)] o o o o o Same T/O: compulsory [13(a)] Not T/O: permissive [13(b)] Bonus permissive: against any other TPD [13(g)] Bonus permissive: against another party who would be liable for all or part of any claim against it [14(a)(5)] o Bonus permissive: against original P [14(a)(2)(D)] ! ! ! Requirement: same T/O as original P’s suit against TPP (aka D1) Triggers counterclaim from original P • o WARNING: if basis is diversity and this suit does not meet diversity requirements. this party must be diverse from . you can’t add it [§1367(b)] o Same T/O: compulsory [13(a)] o Not T/O: permissive [13(b)] PLAINTIFF (DEFENDING AGAINST CLAIM) ADDS TPD (FRCP 14) • • • Follow same rules as when D1 (acting as TPP) adds TPD [14(b)] Allowed when a claim is asserted against the P (P brings in TPD who would be liable for all or part of that claim against P) WARNING: if SMJ is diversity-based.

claims.e. on motion. or expense) [20(b)] o Related: court may sever any claim against a party (to prevent prejudice) [21] Court may. the court may ! Order a separate trial for one or more separate issues. to avoid prejudice. or to expedite and economize. or o Issue any other orders to avoid unnecessary cost or delay Separate trials [Rule 42(b)] o For convenience. Smuck. or third-party claims ! Separate trial order must preserve any federal right to a jury trial o Related: court may order protective measures (including separate trials) to protect a joined party from prejudice (also embarrassment. if D has counterclaim against P for breach of contract. any other claims may be brought in that direction o NO T/O requirement o i. crossclaims. then D can also join a claim against P for a completely unrelated tort action WARNING: any claims joined by P must have SMJ basis CLEANING UP A MESSY SITUATION • • • • Consolidation: if actions before the court involve a common question of law or fact. parents intervene in suit against school district] o Decision of whether to allow should achieve these (potentially conflicting) goals ! Efficiently resolve related issues in a single lawsuit ! Prevent single lawsuit from becoming fruitlessly complex o Requirements: applicant for intervention must have ! Interest (not a useful criterion) ! Applicant would be impeded in protecting his interest by the ongoing action ! Applicant’s interest not protected by others (burden is on the party opposing intervention to prove the adequacy of existing representation) • Adequate representation test (Natural Resources Defense Council) . counterclaims. or on its own. the court may [Rule 42(a)] o Join for hearing or trial any or all matters at issue in the actions o Consolidate the actions. delay. on motion or on its own. drop a party [21] INTERVENTION (FRCP 24) • • Intervention is never compulsory (Martin) Intervention of right [24(a).ADDING ANOTHER CLAIM AGAINST A PARTY ALREADY IN THE LAWSUIT (PERMISSIVE JOINDER – FRCP 18) • • Once an arrow is pointing in one direction. add a party [21] Misjoinder (including violations of diversity) is not grounds for dismissing an action o Court may.

the court must consider ! Whether intervention will unduly delay or prejudice the original parties’ suit . regulation. religion. court may permit intervention by party who ! Is given a conditional right to intervene by a federal statute ! OR has a claim or defense that shares with the main action a common question of law or fact o Government officers/agencies (both state and federal) can permissively intervene if a claim or defense is based upon a statute. though. etc. or national origin) Permissive intervention [24(b)] o On timely motion. sex. executive order. to claims presented in Government’s complaint o Permitted to intervene under test that representation of his interest “may be” inadequate ! Must be timely United States has an unconditional right to intervene in… o Actions challenging the constitutionality of congressionally enacted statutes o Suits seeking relief from denial of 14th Amendment equal protection (for race. o When deciding whether to grant a permissive intervention.• • o Existing party has demonstrated sufficient motivation to litigate vigorously o AND present all colorable contentions • Can representation by US ever be inadequate? Yes (Trbovich) o Intervener limited. color. administrative order.

apply law of forum state) ! Limitations periods are usually procedural (First and Second Restatement) • EXCEPTION: if the statute of limitations is so closely tied the cause of action that it is actually part of the cause of action o Substantive: ask – am I in a First Restatement state or a Second Restatement state? ! Then. then it is procedural (broader than in VCOL) ! Example of a tricky question: enforceability of forum selection clauses (probably procedural. • Policy analysis o Advantages ! Easy to apply o Disadvantages ! State with interest in regulating the conduct of corporations/citizens may lose the ability to regulate that conduct ! State loses some ability to prevent negligence within the state 2. applying MS law to tort where injury occurred in MS but other events happened in AL) ! Do not split up issues within the case ! Example (from 2010 test): AL company manufactures defective tires in TX. contributory/comparative negligence TWO APPROACHES TO HCOL 1. determining which state has most significant relationship to each issue o This will usually be the same as “where’s the blood?” but exceptions apply…look to §145 and §6 . “THE SECOND RESTATEMENT (INTEREST ANALYSIS) (RSC §145) • Step #1: Divide up the issues of a case (Babcock) o Different claims within a single case can be governed by laws of different states • Step #2: “Most significant relationship” test (§145) o Apply to each issue.HORIZONTAL CHOICE OF LAW WHEN ATTACKING AN HCOL PROBLEM ON EXAM • Ask – is question substantive or procedural? o Procedural: apply the law of the forum ! If you can argue it is procedural. FIRST RESTATMENT (VESTED RIGHTS APPROACH) (RFC §337) • Only step: “Where is the blood?” test o Apply the law of the state in which the last event necessary to complete the tort occurred o All issues are governed by the law of the state of the last event (Alabama RR. The substantive law used (if TX is a First Restatement state) is Mexico’s. Customer crashes in Mexico. use choice-of-law rules of the forum (see below) ! Examples of substantive tort law: respondeat superior. guest statutes.

• • o Step #2a: Take into account (§145) ! Place of injury ! Place of conduct leading to injury ! Domicile of parties ! Place where parties’ relationship is centered o Step #2b: And apply these HCOL principles (§6) ! Needs of interstate/international systems • Where would case be efficiently litigated • Where are witnesses/parties/evidence? ! State interest (this is very difficult to measure. see Babcock and Neumeier) • States want their citizens to win • States have interest in regulating conduct that occurs within their borders ! Protection of party’s justified expectations ! Predictability/certainty/uniformity of result ! Ease of determination/application of law Policy analysis o Advantages ! Allows states to regulate conduct that may lead to injuries o Disadvantages ! Creates a difficult-to-understand patchwork of laws • Could create a patchwork system that functions to enforce incompatible laws that create situation no one would vote for (Greiner’s workers’ comp hypo) ! Prevents states from controlling the levels of allowable risk within the state ! Inefficient: extremely complicated ! Usually the “where’s the blood” test ends up applying anyway Example: Babcock o When NY driver injures NY passenger while driving a NY car in Ontario o NY law applies to negligence claims o But wrongful conduct claim would be governed by Ontario law (because Ontario has strong enough interest in preventing wrongful conduct within the province) .

make common law o Separation of powers ! Courts would be essentially making up the law. apply federal law §1652. State laws as rules of decision o The laws of the several states…shall be regarded as rules of decision in civil actions [in federal courts] ! In Swift the “laws of several states” was interpreted to mean only the statutes of states…federal courts were to apply a transcendental “general law” in all other circumstances (this has since been overturned) ERIE RATIONALES • • • • • Metaphysical justification o There is no general federal common law o Law is created by people/constituencies…it is not “natural” ! Law is created by a sovereign ! It doesn’t matter how states choose to make law (i.VERTICAL CHOICE OF LAW – ERIE DOCTRINE WHAT IS “LAW”? • • Fundamental question: how do we determine whether we apply state law or federal law in diversity cases? o Attempt to draw line between substantive law and procedural law ! If substantive. not Congress. which is a violation of the constitutional role ! Courts making law encroaches on Congress’s law-making power o Equal protection ! Taxicab case highlighted this: there were different remedies available for in-state and out-of-state plaintiffs ! Irrational/unfair to give different litigants access to different substantive law systems within a single state Common law o Need for vertical harmony (only one system of substantive law within a state) Common-sense justification . judge-made or statutory) ! All state law (decisional/common law and statutory law) is equally the “law” of the state Statutory limit justification (§1652) o “Laws of the several states” means everything the state has chosen to be law: statutes. state common law. Constitutional limit: three different rationales o Federalism ! “Congress has no power to declare substantive rules of common law applicable in a state” • Possible criticism: because Congress has the power to regulate railroads under the Commerce Clause. apply state law ! If procedural. etc.e. why don’t they have power to create railroad-related tort law? • Possible criticism: courts.

apply state law o Then. unless screamingly obvious.o Federal courts just aren’t equipped to make wide-ranging common law ERIE TESTS • • • • • Basic goal of each: apply state “substantive” law and federal “procedural” law o Try to apply the state substantive law (as per Erie) o Try to apply the federal procedural law (as per FRCP) Dividing line between substance and procedure is really tricky On exam. use federal law ! How to determine if “valid” and applicable? . apply the following TEST 1: YORK (OUTCOME-DETERMINATIVE) • • • • Ask whether difference between federal law or state law would be outcome determinative o If at the moment you are deciding the issue. see which rationale applies (see below) Oftentimes it’s easy (when binary) o Statute of limitations Sometimes it’s not easy…what is “outcome”? o Class certification…whether an individual is able to represent a class or can only represent themselves o Degree/amount of damages SEE WHICH RATIONALE APPLIES: depends on what you think Erie was based upon o If based upon Federalism ! This test applies if Congress is overstepping its role and interfering with state common law o If based upon Separation of Powers ! This test only applies if the court is somehow “inventing” Federal law for purposes of this case o If a prudential/commonsense concern ! Only applies if the court is somehow “inventing” Federal common law o If Equal Protection concern ! Only applies if parties are non-diverse (Multi-colored taxicab case) TEST 2: MAJORITY IN HANNA + STEWART (SCALIA VERSION) • Part 1 o 1A) Look for a valid and applicable constitutional provision or federal statute ! If there is one of these. this distinction does no good o Screamingly obvious: paper size limits (procedure) o Screamingly obvious: time limit for filing a response (procedure) o Screamingly obvious: negligence test (substance) Statute of limitations (from York) o Use state SOL rules when doing so would effect the outcome of the case o Somewhat easy because there is no federal SOL (just multi-factor tests) On exam. applying either federal law or state law would create different outcomes (generally meaning a binary yes/no dismissal).

look to find some sort of constitutional basis that allows Congress to pass it (note: won’t construe statute narrowly. use “twin aims of Erie” test (prevent forum shopping and prevent inequitable administration of laws) ! Almost all issues that make it here will promote forum shopping. so watch out Rationale: federalism o Only really makes sense if you believe states should be the regulators of conduct o Rationale is much weaker now that federal government has huge powers TEST 4: GINSBURG IN SHADY GROVE (GINSBURG’S HANNA MAJORITY) • • Important precedent: Walker – interpret narrowly (when FRCP violates REA. look for FRCP ! FRCP must be valid and applicable in accordance with the Rules Enabling Act (must not expand. “Does it really regulate procedure?” o Invalid if it alters the rules of decision by which the court will adjudicate rights o Valid if it governs only the manner and means by which the litigants’ rights are enforced o DO NOT LOOK TO STATE STATUTE o Note: it should be super difficult for any FRCP to not apply under this test Part 2 o If no applicable constitutional provision. it’s automatically valid If federal statute. use the state law o If only a litigator would care about the distinction. law change primary human conduct (i. or modify a state substantive right) • Test: look to the FRCP in question and ask. abridge. you will use state law Rationale: efficiency (ease of judicial administration) o Allows courts to just make threshold determination that FRCP is valid ! FRCP will then be valid vis-à-vis every state’s laws o Prevents federal courts from having to guess how the state’s courts will interpret the statute • • • • TEST 3: HARLAN’S CONCURRENCE IN HANNA • • Ask: would using federal.If constitutional provision. Article 1§8 (necessary and proper clause) o 1B) If no constitutional provision or federal statute. as such. lie and say the FRCP doesn’t apply) Part 1 . rather than state. federal statute. would one of the parties change its pre-litigation conduct to gain an advantage)? o If yes. per Stewart) o Possible costitutional bases: Article 3§2 (power to create federal courts).e. then apply the federal law ! Note: a savvy business might change its behavior based upon things the average person wouldn’t change their behavior on. or FRCP…you must decide if you are going to make up federal common law or apply state law ! To decide.

try to construe it narrowly to avoid direct collision) o Possible constitutional bases: Article 3§2 (power to create federal courts). twin aims of Erie) Rationale o Federalism…need to preserve state laws o Fairness…wouldn’t be fair to allow a sneak-attack federal rule to make party liable . Article 1§8 (necessary and proper clause) o 1B) If no constitutional provision or federal statute. apply accommodation of interests approach to whatever you have. look to find some sort of constitutional basis that allows Congress to pass it (if it conflicts with state substantive law. FRCP. the accommodation of interests approach would also apply to federal common law [forum non conveniens]…on test.• • o 1A) Look for a valid and applicable constitutional provision or federal statute ! If there is one of these. be it statute. look for FRCP (NB: per 2010 exam. use federal law ! How to determine if “valid” and applicable? • If constitutional provision. or modify a state substantive right) • Test: interpret with sensitivity to substantive state policies/interests…if there is a conflict between state law and FRCP. apply state law Part 2 (see Scalia test. it’s automatically valid • If federal statute. or federal common law) ! FRCP must be valid and applicable in accordance with the Rules Enabling Act (must not expand. try to find a way to narrowly interpret FRCP • If you succeed in narrowly construing. abridge.

if proven. figure out whether complaint is sufficient) ! Cross out all conclusory allegations and formulaic recitations • This is difficult ! Assume the truth of the factual allegations in the complaint ! Decide: do the remaining statements nudge the complaint across the line from possible to plausible? • This requires you to look very carefully at what the substantive law requires o Problem: court is essentially overruling FRCP 8 and the Forms (particularly Form 11) o Problem: direct contradiction of Swierkiewicz holding on pleading in discrimination cases ! Swierkiewicz: pleading only needs to give respondent fair notice of what the petitioner’s claims are. exchange of information ! Wait to see if trial is warranted until after discovery o Problems ! In certain cases.INITIAL PLEADINGS AND MOTIONS PLEADING STANDARDS • • • Code pleading o Must put in complaint facts that. essentially. but courts call it notice pleading o How to apply (i.g. and then state a claim upon which relief could be granted Case Preliminary facts Swierkiewicz • P forced out • P replaced by person of different national origin • P has more experience Ultimate fact (aka formulaic recitation of elements of cause of action? Aka legal conclusion?) • National origin discrimination . the grounds upon which they rest. would be sufficient to grant relief o Justifications ! Allows court to decide if complaint is legally viable ! Court will be able to use the complaint itself to determine whether it can be dismissed ! Enable the opposing party to adequately respond Notice pleading o This is what federal courts had before Twombly/Iqbal o Point of complaint is merely to put defendant on notice as to ! Nature of the claim ! General facts/legal theory ! Not too many details necessary o Justifications ! Permit discovery.e. discovery process is extremely expensive and timeconsuming ! Discovery can tie up key decision-makers (e. John Ashcroft) “Plausibility” standard (Twiqbal) o This is code pleading.

Defenses… • 12(b) How to Present Defenses. If pleading does not require responsive pleading. The following defenses may be asserted by motion (not pleading): (1) Lack of SMJ (2) Lack of personal jurisdiction (3) Improper venue (4) Insufficient process (5) Insufficient service of process (6) Failure to state a claim upon which relief can be granted (7) Failure to join a party under Rule 19 o A motion asserting any of these defenses must be made before pleading/answer. After pleadings are closed—but early enough not to delay trial o This allows defendant to file a post-answer motion for dismissal o Essentially a post-answer 12(b)(6) 12(f) o Allows court sua sponte and plaintiff by motion to strike insufficient defense or any irrelevant materials from a pleading ANSWERS • FRCP 8(b) (Denials) .Bell Atlantic v. Twombly Iqbal State slip & fall case • • • • • • • Parallel conduct Plus factors Muslim men Harsh (unnecessary) detention Existence of the puddle Company knows about puddle Company does not clean up puddle • Agreement • Discrimination • Negligence MOTION TO DISMISS FRCP 12. any defense may be asserted at trial. o 12(b)(6) is correspondent to 8(a)(2) o 8(a)(2) requires plaintiff plead “a short and plain statement of the claim showing that the pleader is entitled to relief” o Twombly and Iqbal are emphasizing the “showing…entitle[ment] to relief” element of FRCP 8(a)(2) • Policy justifications for motion to dismiss o Efficiency (don’t need to waste time on trial when we know outcome) o Problem: finding right balance ! Too loose of restrictions: may allow too many non-meritorious cases to go to trial ! Too rigid of restrictions: may prevent meritorious cases from reaching trial OTHER MOTIONS ATTACKING THE PLEADINGS • • 12 (c) Motion for Judgment on the Pleadings.

otherwise it’s a balance) 1.o Defendants often add all-inclusive paragraph denying all averments unless otherwise admitted o FRCP discourages general denials o Denials must be made in good faith o General denials must deny everything in the complaint o Courts may treat denials or “lack of knowledge” denials as admittances if not made in good faith PRELIMINARY INJUNCTIONS • • What is a preliminary injunction? o Movant asks the court for relief before movant proves entitlement for relief o Timing: early in the case. Irreparable harm o Cannot be remedied by getting money later on o Remember: we think almost anything can be remedied by getting money later on o Classic instances of irreparable harm ! Government cannot be sued (sovereign immunity) so no future damages would be possible (Thane-Coat) ! Damage to present business (Thane-Coat) ! Lost future business (very difficult to prove/quantify…sometimes considered irreparable because it will not be provable at future suit) (Thane-Coat) ! Damage to reputation (courts may be skeptical about this) (ALK. Balance of the Equities o Who would be harmed more? ! Balance harm to D if preliminary injunction issues AGAINST harm to P is preliminary injunction does not issue o FDA drug trial case (Amgen): world would be harmed more by granting the injunction 4. generally before full discovery Requirements (in 5th circuit you must meet ALL of these. movie theatre case) 3. Likelihood of success on the merits o Merits of the underlying fact pattern o Also…unlikely to succeed if movant ! Lacks SMJ on nonmovant ! Lack PJ on nonmovant ! Lack venue on nonmovant ! Uses wrong HCOL on nonmovant 2. Public interest o Example – FDA drug trial case (Amgen): granting preliminary injunction would make drug makers afraid to make new drugs .

even if they are more stringent than the constitutional floor Notice must be reasonably calculated to actually reach interested parties (Mullane) o If P knows the identity and address of an interested party.) Number of days between giving notice and court appearance date o Must not be too quick…War Eagle found 7 days’ notice insufficient Content of notice o Theoretically must give fair notice of proceedings (but really aren’t comprehensible to lay people) o Must inform defendant of appearance info and legal rights (Aguchak) PROCEDURAL DUE PROCESS – PROPERTY INTERESTS • • • Giving people an opportunity to protect their property rights o “Old” property rights: real estate. including the function involved and the fiscal and administrative burdens that the additional/”new” procedural requirements would entail o Doehr suggests 4th prong: interest of party seeking prejudgment remedy Grounding constitutional protections o 14th Amendment due process clause (for state-law claims) .PROCEDURAL DUE PROCESS ADEQUATE NOTICE • • • • Constitution establishes a floor for notice and opportunity to be heard o Statutes laying out notice procedures must be above that floor o Plaintiffs must follow statutes. P must mail notice to that interested party (Mullane) o Eviction notices in public housing must be made by mail (not posted on tenant’s doors (Greene v. P must attempt notice via regular mail (Jones v. and the probably value of additional/“new” procedural safeguards o Government interest. etc. wage garnishment ! We think they are important because they allow us to be functioning citizens in society ! Need more than merely P filing to deprive D of property (Doehr) o “New” property rights: government benefits ! Also required to allow us to function in society ! Must give welfare recipient some kind of hearing before terminating benefits (Goldberg) Three-part test: Hearing required BEFORE the deprivation of a property (or “property”) interest by looking to: (Mathews test) o Private interest that will be affected by the official action o Risk of erroneous deprivation of that interest through the current procedures. Flowers) o Changing social circumstances matter (email. Lindsey) o Last known address is good enough when defendant failed to stop after traffic accident (Dobkin v. certified mail. Chapman) o What if original attempt at notice fails? You may be required to take additional steps ! If notice via certified mail fails.

more likely to use less process General note: remember the Turner v. appeal process) Look to Mathews test when determining what is required Policies being reinforced with due process requirements o Search for truth (giving people representation may help this) o Convincing the public of the rule of law (this is important for process) . Rogers court’s faith in forums to solve due process concerns PROCEDURAL DUE PROCESS – LIBERTY INTERESTS • • • • • Presumption is that no lawyer will be provided unless there is a physical deprivation (Lassiter) States may be required some sort of representation (but may not be lawyer) (Vitek) o This is rare. welfare) • Less urgent need. more process needed (Goldberg.o 5th Amendment due process clause (for federal-law claims) Factors affecting due process NEW PROPERTY Amount of need • Greater need. for transfer of prisoners to mental institutions) o Hearing o Opportunity for state to produce evidence o Opportunity for defendant to produce evidence o Independent decision maker o Written explanation of decision o Some representation provided to defendant (not necessarily a lawyer) o (Not required: jury. disability) BOTH OLD PROPERTY Nature of proof • Documentary: less process needed (Shaumyan) • Medical: less process needed (Mathews) Decision maker Posting a bond (Doehr plurality) • Makes P think more about filing in the first place • Protects D in case P erroneously deprives him of property State’s interest in protecting monopoly on legitimate use of force…may lead to insistence upon having more process (Doehr) Information available to decision maker Hearing from D • If D has opportunity to make a written argument before deprivation: hearing less necessary Burden of proof When seizure is effected Burden of going forward to “real” adjudication • If greater burden. however Irreducible minimum when due process is required (Vitek. less process needed (Mathews.

if rebutted. If movant would not have burden on an issue at trial (defendant or plaintiff-fightingaffirmative-defense filing for summary judgment) a. which. “produce sufficient evidence”: depositions. If nonmovant meets that burden. How would you do this as a lawyer? Pretend you are the nonmovant’s lawyer. If movant would have burden (of persuasion) on an issue at trial (plaintiff or defendant-with-affirmative-defense filing for summary judgment) a.SUMMARY JUDGMENT • • FRCP 56: Summary judgment Policy justifications for summary judgment o Efficiency (don’t need to waste time on trial when we know outcome) o Problem: finding right balance ! Too loose of restrictions: may allow too many non-meritorious cases to go to trial ! Too rigid of restrictions: may prevent meritorious cases from reaching trial BURDEN SHIFTING – GENERAL SCHEME • • • Burden of production or persuasion (don’t say “burden of proof”) o Tells us who loses an issue if there is no evidence on that issue Rules for summary judgment (from Brennan’s dissent in Celotex) 1. and demonstrate to the court that even making nonmovant’s best case. Nonmovant must produce sufficient evidence to create a genuine issue of material fact c. burden (of persuasion) shifts to movant to convince court that nonmovant’s evidence is insufficient (with additional evidence or legal argument as to why nonmovant’s evidence does not create genuine issue of material fact) 2. Option 1 i. Option 2 i. facts must be viewed in light most favorable to nonmoving party ONLY IF there is a genuine dispute as to those facts . if rebutted. Movant produces evidence to show that nonmovant lacks the evidence to prove its claim…producing an analysis that is sufficient. documents b. If movant meets that burden. to compel reasonable trier of fact to find in the movant’s failure 1. same procedure as 1(b) and 1(c) b. affidavits. will compel a reasonable trier of fact to find in movant’s favor (burden of production) i. Nonmovant must then produce evidence sufficient to create a genuine issue of material fact (sufficient to allow a rational trier of fact to find in its favor) Evaluation of evidence at summary judgment o At summary judgment. Movant produces evidence that affirmatively disproves nonmovant’s claim…evidence that is sufficient. Movant must produce sufficient evidence. this would be insufficient to prove nonmovant’s claim ii. Then. the burden (of production) shifts to nonmovant. to compel reasonable trier of fact to find in the movant’s failure ii. if unrebutted.

Not selected c. Person who was selected is not a member of the class d. Applied b. P must prove prima facie case: P-member of class (failure to hire) a.! Genuine dispute means a rational trier of fact could find for the nonmoving party BURDEN SHIFTING – EMPLOYMENT DISCRIMINATION SCHEME (REEVES) • 1. Burden shifts to Defendant to produce evidence of legitimate. Burden shifts to P to prove by preponderance of the evidence that D’s “legitimate” reasons were not its true reasons Why this different (more P-friendly) framework? o Context of statute’s passage…there was a whole lot of discrimination o Need to force D’s to speak so that court knows what its fighting over . A little something else(?) 2. non-discriminatory reason 3.

make P reimburse D for a portion of his expenses .VOLUNTARY DISMISSAL • • FRCP 41(a) o P may voluntarily dismiss before D has filed response OR if all parties agree and few resources have been expended by court on lawsuit ! Dismissal will be without prejudice ! Generally leaves parties in the same position they were in before suit What happens when prolonged discovery has taken place? (McCants) o When to allow voluntary dismissal? ! Any time. UNLESS defendant will suffer clear legal prejudice (mere prospect of another lawsuit is not clear legal prejudice) ! General rule: any point before “trial” (When is trial? Some courts have held it is before submission of the case to jury/judge for decision) o How to grant voluntary dismissal ! If D has been put to considerable expense.

feels like an injunction. not in equity disputes) o Frozen in place as to where trial existed in 1790 Test: determining whether Seventh Amendment applies to case at hand o If its a common law cause of action that existed in 1790. older..e. obscenity.e. look directly to the kind of remedy that P seeks ! If P seeks equitable remedy. male SEVENTH AMENDMENT RIGHT TO JURY TRIAL (LAW/EQUITY) • • • • Note: Seventh Amendment does not apply to the states “Preserves” the right to a jury trial o Jury right to jury trial exists only on the historically “law” side (i. Injunction Exception to Seventh Amendment: public rights exception (Atlas Roofing) o When government sues to enforce statute-created rights (i. but it isn’t) b. negligence) ! Broader representation of community ! Judges are more isolated. there is no right to a jury trial o MUST be a public right at stake: Congress cannot eschew jury trial requirement by sending cases to a special tribunal (Granfinanciera. Analogize statutory action to 1790 law/equity actions a. but it isn’t) ii. Equitable remedies i. acts as a regulator). Examine remedy and determine whether it is legal or equitable (this is the more important and more heavily weighted inquiry) a. yes jury trial o If cause of action is newly statute-created post-1790. Legal remedies i. Divide the case by issue. Restitution (order to return money…feels like damages. no jury trial ! If P seeks legal remedy.ALLOCATION OF POWER: JUDGE VERSUS JURY WHAT ARE JUDGES GOOD AT? WHAT ARE JURIES GOOD AT? • • Judges are good at o Law o Documents (Markman) Juries are good at o Determining credibility o Applying/determining community standards (i. Ejectment (order to get off real property.e.. white. do TWO-PART historical analogue inquiry (Chauffers v. finding right to jury trial in bankruptcy actions) . and apply the test to each individual issue b. The existence of one equitable issue does not push the entire case into the equitable common (nor vice-versa) 2. Damages (compensatory and punitive) ii. Terry) 1. educated.

D counterclaims for damages)…must o 1) temporarily enjoin D o 2) give D full jury trial o 3) grant P permanent injunction if appropriate Party can waive a jury right o Through contract or arbitration agreement o Can happen before trial or before dispute ever arises o Requires voluntary. most courts have “model instructions” that were approved in the prior case law (approved on appeal) Challenging an instruction o If you didn’t submit the instruction you think the court should have used. intentional. and knowing decision (this is loosely enforced) DURING TRIAL – WHO DECIDES AN ISSUE? (FACT/LAW) • Test: determining who decides an issue. you are generally unable to argue that instruction should have been used on appeal (Kennedy) .• • Jury trial must be demanded (FRCP 38 & 39) o Amendments to pleadings cannot revive a right to jury trial that has been waived ! Exception: if new claim involves events that occurred after the original filing o Courts do have discretion to permit jury trial despite a party’s failure to request in a timely manner (14 days after last pleading to the issue is served) ! What do courts consider in discretionary permissions? • Scheduling of court parties (Khalil) • Whether issues are best decided by a jury (Batteast) • Degree of prejudice faced by not having jury (Batteast) • Length of delay in requesting jury (Batteast) • Reason for requesting party’s tardiness in requesting (Batteast) o If jury trial right exists alongside equitable claims… ! If district court can schedule a case so that it can preserve a jury trial. of a given patent) ! Judges write down decisions (juries cannot do that) ! This increases certainty in the marketplace JURY INSTRUCTIONS • • Basic procedure o Parties submit proposed jury instructions to judge ! Judge picks the good ones and uses them o Alternatively. judge or jury (Markman) o Precedent ! Follow precedent o Interpretive skills of judge versus jury ! Writings are better suited to be determined by judge o Ensure uniformity in treatment (in Markman. it MUST schedule the case that way (Beacon Theatres) • Example (P claims for injunction.

by giving clear understanding of basis of decision o Make definite just what was decided.e. i. depending upon the judge’s particularities) ! Why? So judge may decide to allow plaintiff to put on more evidence in order to sufficiently prove his case o Why do we have this procedure? ! Sometimes one party accidentally fills in necessary evidence for the other side’s case ! Efficiency: limits situations in which there will need to be a retrial upon appeal . this requirement might possibly be read loosely. for purposes of preclusion and estoppel o Forces trial court be careful in ascertaining facts (better decisions) JAMOL (FRCP 50) • • • • A jury verdict is not final until a judge enters a judgment Rule 50 Judge must say no rational jury could find for the nonmovant in order to grant o If party moves before jury renders verdict: directed verdict o If party moves after jury renders verdict: JNOV (judgment non obstante veridcto) Procedure o Judges generally do not grant or deny Rule 50 JAMOL made before the jury verdict…only hear it and delay decision on the motion…then movant may renew motion after jury verdict ! Parties – especially defendants – should always make a JAMOL before verdict o If party fails to make a JMOL before verdict. Ross) Policy reasons o Aid appellate court. the court must give broadly appropriate instructions (Houlihan. whether based upon oral or other evidence.o If you don’t object to an instruction the court chooses. you are generally unable to challenge the court’s instruction on appeal o Even if a party submits no instructions. will not be set aside unless “clearly erroneous” o Judges should formulate conclusions BEFORE announcing decision (Roberts v.e. no reversal/remand/new trial unless its reasonably probable they changed outcome) (Kennedy) FINDINGS AND CONCLUSIONS IN NONJURY CASES • • Rule 52(a) o Judge must find facts specially and state his conclusions of law with clarity o Must be sufficient to indicate the bases of his decision o Findings of fact. then party cannot make a JMOL after verdict ! (NB: per 2011 exam. jury instructions are subject to a harmless error analysis (i. allowing a verbal motion for preclusion to count. notes case) o Upon appellate review.

trial court cannot grant JMOL or new trial past the deadlines to move (28 days)…complete rigidity ! Why so rigid? Don’t want to waste time…practicality and finality SETTING ASIDE JUDGMENT ON GROUNDS DISCOVERED AFTER IT WAS RENDERED (FRCP 60) • • • • • Rule 60(b) Applied very rarely Will not apply to allow a party to take advantage of post-judgment higher-court decision that would have entitled that party to win (Title) Policy justifications o Limited resources o Economic efficiency o Perception of fairness o Perception of finality DOES apply to o Mistake (1 year limit) . v.NEW TRIAL (FRCP 59) • • • • Aetna Casualty & Surety Co. Yeatts (1112) Rule 59: New Trial o Judge may grant a party’s motion for a new trial on the ground that the verdict is against the great weight of the evidence ! Or based upon false evidence ! Or will result in a miscarriage of justice o No need that jury’s finding be irrational o Greiner: no good rationale for this doctrine ! Best reason: if party can persuade judge post-verdict that he made an error that will be reversed on appeal. allows the parties to avoid appeal and go straight to new trial Conditional and partial new trials (Fisch v. you cannot ask for one on appeal o By Rule 6(b)(2). Manger) o Remittitur ! Universally accepted ! Court issues order denying D’s motion for a new trial on condition that P consent to specified reduction of jury award o Additur ! Unconstitutional in the federal courts per Seventh Amendment…but some state courts allow it ! Court issues order denying P’s motion for a new trial on condition that D consent to a specified increase in jury award o Court is supposed to set a reasonable number for reduction/increase in jury award o Policy justifications ! Avoids second trial ! Serves substantial justice Unitherm (Handout) o If you do not ask for a new trial before the trial judge.

DOD. notes case) • Intentional act • By an officer of the court • Directed at the court itself • Which in fact deceives the court ! Judgment can be set aside for perjury (Peacock.o Excusable neglect (1 year limit) ! Broad. can apply to movant’s negligent failure to meet filing deadline (Pioneer) ! Factors for deciding excusableness (Pioneer) • Danger of prejudice to nonmovant • Length of delay and its impact on proceedings • Reason for delay • Movant’s good faith o Newly discovered evidence (1 year limit) ! Must meet following factors to grant new trial (ACLU v. notes case) o Other reasons deemed appropriate (no time limit) ! Courts have found errors ostensibly falling in the categories “special” and therefore able to come in here (with no time bar) . notes case) • Newly discovered evidence is of facts that existed at time of prior decision • Movant was excusably ignorant of those facts despite using due diligence to learn about them • Newly discovered evidence is admissible and will probably change outcome • Newly discovered evidence is not merely cumulative of evidence already offered o Fraud (1 year limit) ! One test (Herring.

HARMLESS ERROR • If there is not reasonable probability that error in trial (i. improperly admitted evidence) caused a difference in verdict…then harmless error applies. and the error cannot be challenged on appeal (Kennedy) .e. improper jury instruction.

it may not be as just as it could be • Memories lapse • Loss of actual evidence • Opportunities to sustain truth by impeachment diminished ! Retrial produces anxiety o Con: areas of law must develop without appellate guidance (i. Class-action certification [Rule 23(f)] 5.APPELLATE JURISDICTION • • Note: in appellate jurisdiction context ONLY. “Final decision” [§1291] a. claim = set of facts + theory of relief Note: defects in appellate jurisdiction can be raised at any time. judgment on all claims of an entire case) b. Interlocutory decisions (double discretion) [1292(b)] 4. Mandamus (only in extraordinary cases. by court of party (like defects in SMJ) (Liberty Mutual) BASES OF APPELLATE JURISDICTION 1. Final judgment (i. Injunction [§1292(a)(1)] 3. Rule 54(b) (judgment on some but not all claims of a case) c. but disregard other frameworks) FINAL DECISION (GARDEN-VARIETY FINAL JUDGMENT) • • • • Final judgments of district courts (§1291) Appealable to court of appeals 30 day time limit (from issue of final decision by district court) Policy justifications for final order rule o Pros: efficiency (smoother/quicker trial operations) ! Most trial court rulings are correct. Collateral order “exception” (treated like a 1291 final decision) 2. making appeals inefficient ! Most incorrect trial rulings will not affect the final judgment o Con: potential inefficiencies ! Erroneous ruling can taint all following events ! Delayed appeals require more full retrials o Con: unfairness ! If retrial becomes required later.e. discovery) o Con: public’s “demand for justice” wants the highest authority to hear cases FINAL DECISION (RULE 54(b) JUDGMENT) • • In cases with multiple claims or involving multiple parties [FRCP 54(b)] o Default: courts should resolve all claims for relief at the same time ! *** (in appellate jurisdiction context) Claim = set of facts + theory of relief (Liberty Mutual) ! Note: District court does not issue a final order when it merely issues a declaratory judgment and does not rule on any of P’s theories of relief (Liberty Mutual) Exception: Court can determine there is no just reason for delay in issuing a ruling on one or more claims .e.

1173) ! Disclosure orders adverse to attorney-client privilege ! Order disqualifying party’s attorney ! Ruling on party’s immunity from civil process ! Ruling on whether venue contract required case to be filed in foreign country ! Ruling on party’s claim of immunity from suit under settlement agreement ! Order imposing sanctions for discovery violations INJUCTIONS . making P wait until final judgment on ALL claims to appeal ! Delay is almost always in D’s favor (strategic incentive—settlement becomes less valuable as time passes) ! D can also hope to avoid discovery costs on that dismissed claim COLLATERAL ORDER “EXCEPTION” • • • Functions like a §1291 final order for procedural purposes Test: four elements must be satisfied o Order must be unable to appealed later o Order must have no bearing on the merits of the case o Court must definitively rule on the order at issue o Must not be a discretionary issue of the collateral order (i. so he can immediately appeal and keep his case together (reducing costs) o D will want judge to NOT issue 54(b) judgment on that claim.• o Claims must not be so interrelated that they should only be appealed as a single unit (Curtiss-Wright) ! Why? Avoid piecemeal appeals o Claims must be truly separable (Curtiss-Wright) o Court must make an express determination that there is no reason for delay and expressly enter a final judgment on the individual claim(s) (Sears) ! Why? Alert adversely affected party that appeal clock is ticking ! 30 day deadline to appeal that claim Scenario: D dismisses one of P’s two claims by 12(b)(6) o P will want judge to issue 54(b) judgment on that claim.e. it would be actually impossible for the plaintiff to buy a bond ! Colorado River stay • Why? Because once state court case comes to judgment. Nixon) o Non-examples (when court denied a collateral order appeal) (p. P will be unable to appeal because of claim preclusion ! Criminal contempt order for failure to obey court order (US v. you cannot appeal the amount of a security bond) Apples to court decisions that finally determine claimed rights and are not an ingredient of the cause of action (Cohen) o Examples ! Requirement to post security bond (Cohen) • Why? After final judgment is entered on the merits of the case.

and states in writing when granting the order that the order: ! Involves a controlling issue of law ! There are substantial grounds for differences of opinion ! And immediate appeal of the order would advance the ultimate resolution of the case o Once above requirements are met: Court of Appeals has discretionary review ! Rules triggered • Party must apply for appeal within 10 days of order • Application for appeal of motion ordinarily will not stay proceedings ! When will Court of Appeals deny discretionary review (Atlantic City Electric Co.. court denies review of district court’s rejection of a discovery interrogatory)? • Efficiency o Prevent too much litigating of similar issues o Adversely affected party will have opportunity to appeal if an adverse final judgment is issued against them o Ultimate disposition of the case would be delayed (rather than advanced) by allowing appeal • No major fairness concerns o D retains right to raise this defense if appellate court later determines district court was in error Called “double discretion” because both trial and appellate judge has discretion CLASS CERTIFICATION GRANTS OR DENIALS • Immediately appealable [Rule 23(f)] WRIT OF MANDAMUS • • • Supervisory order from court of appeals ordering district court to fulfill its legal obligation (do something/stop doing something the court of appeals wants the trial court to do/stop doing) Three-part test (Cheney) o Person asking for mandamus must be about to suffer some harm that couldn’t be undone later (i.e.• Always immediately appealable: all injunctive orders made/denied/modified by district courts [§1292(a)(1)] INTERLOCUTORY DECISIONS (DOUBLE DISCRETION) • • Discretionary review: other motions (strict requirements) [§1292(b)] o District judge has made an ordinarily non-appealable order. no other adequate means to attain the relief sought) o Right to relief must be clear and indisputable (movant bears this burden) o Issuing court must be satisfied that the writ is appropriate under the circumstances Examples: o Denial of request for jury trial o Judge improperly appoints a master to hear a difficult case (La Buy) o Order to district court to order restitution (Amy Unknown) .

• Policy o Pros: both efficiency and fairness rationales ! Prevent practicing posing severe threats to the proper functioning of the judicial process ! Prevent usurpation of judicial power ! Prevent clear abuse of judicial process o Cons: awkward…technically a lawsuit against the district court judge .

Same “claim” • Yes: if based upon common nucleus of operative fact. through inheritance) ! Example: debt-holder #1 collects on debt and then sells the right to collect on debt to debt-holder #2…debt-holder #2 is claim precluded from collecting on the debt 3. Final judgment “on the merits” . Same party • Yes: substantial control (Gonzalez) o Power to call the shots over litigation decisions in Lawsuit #1 o Examples ! Insurer in #2 who assumed insured’s defense in #1 ! Sole shareholder in #2 whose company sued in #1 o Non-examples ! Party in #2 retains same attorney as party in #1 ! Party in #2 financed litigation in #1 ! Party in #2 testified as a nonparty witness in #1 • Yes: virtual representation (Gonzalez) o Threshold requirements: same identity of interests o If same identity of interests. no matter how diverse or prolific the claims themselves might be (Gonzalez) • This is determined “pragmatically” (RSJ §24) o Convenient for trying together o Conforms to parties’ expectations or business usage o Remember: each bond and coupon (also debt.e. one-by-one) 1. generally) is a separate “claim” ! Why? We want to promote the market for bonds and coupons 2.PRECLUSION CLAIM PRECLUSION • • P required to assert (in the complaint) all matters arising out of the same incident (and against the same party) in one lawsuit o Operates even if P only asks for declaratory judgment and doesn’t assert a theory of relief o Only operates against Ps Three elements required for claim preclusion (write each down and walk through them. it becomes a balancing of the equities test…factors: ! Actual or constructive notice of the earlier litigation? ! Party in Lawsuit #2 gave actual or implied consent to be bound by results of Lawsuit #1? ! Party in Lawsuit #2 is closely linked to party in Lawsuit #1 by business or familial relationship? • Yes: privity o Person acquires an interest in some sort of property that has already been the subject of a lawsuit (i.

that the precise question was raised and determined in former suit (Russell. bank will be claim precluded from future attempt to collect entire balance o If court can find a way to say acceleration clause hasn’t been triggered. Actually litigated • NO: Unchallenged defense . P must sue on entire amount due or will be claim precluded (Jones v. claim preclusion will not prevent a second lawsuit Policies o Efficiency o Fairness ! Prevent harassment of D ! Prevent P from fishing for sympathetic jury ! Prevent inconsistent results o Finality • • • • ISSUE PRECLUSION (AKA COLLATERAL ESTOPPEL) • • • Runs against both Ps and Ds Order of Lawsuit #1 and Lawsuit #2 determined by when judgment is entered. car installment payments) ! When entire balance becomes due and bank successfully sues for one month’s payment. then both claim and issue preclusion attach. even if claim or issue is still on appeal • Yes: settlement • Yes: dismissal for non-compliance with discovery procedures • No: dismissal for lack of SMJ. misjoinder • No: voluntary dismissal without prejudice • Less preclusive: if court says ruling is “without prejudice” Acceleration clauses o If acceleration clause has been triggered. not when litigation was initiated Required elements (3 or 4 depending on where you are) 1. IPJ. they might (Aiglon) Continuing/renewed conduct o If conduct that is subject of Lawsuit #1 continues after judgment. Same “issue” • Must be CERTAIN.“On the merits” is deceptive…really it’s shorthand for saying something happened in Lawsuit #1 such that we don’t want to deal again with that claim (aka transaction or occurrence/common nucleus of operative fact) • Yes: dismissed via summary judgment. goes to final judgment and someone wins or loses) o When case goes to judgment in a trial court. Morris Plan Bank. no issue preclusion when unclear from Lawsuit #1 which of patent’s two processes was basis of decision) • Note: we manipulate this requirement to further the policy decisions of our choosing 2. either upon the face of the record or shown by extrinsic evidence. venue.e. JMOL • Yes: final judgment is entered (i.

) ! Why? Court may not carefully consider alternate/additional grounds (fairness concern) ! Why? Would discourage appeals. 2d Cir.) 4. Lawsuit #2 civil) o Not issue precluded (RSJ §85) o Though will be issue if D has evidentiary hearing to attempt to suppress the admission (Allen) • Policy pro: fairness to parties (doesn’t make sense for party to mount full defense when sued for small amount of money or in inconvenient forum). then issue preclusion does not attach to that finding ! Good indicator a finding wasn’t necessary to the decision: it cannot be appealed (Rios.) o No grounds issue precluded (RSJ. fails to encourage people to raise issues) 3.o P is not issue precluded from fighting that defense in a subsequent suit…the issue was not “actually litigated” (Cromwell) • MAYBE: Default judgment o RFJ: default judgment triggers issue preclusion o RSJ: default judgment does not trigger issue preclusion (because not actually litigated) o Penalty default judgment (for deliberate refusal to participate in discovery) triggered issue preclusion (In Re Bush) ! Justification: party had “substantially participated” and “had full and fair opportunity to defend on the merits” • NO: Issue in the pleadings o Not issue precluded (though Vestal thinks it should be to advance efficiency goal) • MAYBE: Guilty plea (Lawsuit #1 criminal. because of likelihood that one ground would be effectively upheld when appellate court only reviews one ground (efficiency concern) o Primary issue is issue precluded (6th Cir. 9th Cir. some don’t (Greiner: don’t get too cute on this) • Best way of analyzing (Rios) o If judgment in Lawsuit #1 could have been reaching without a finding. winning party cannot appeal finding that it was contributorily negligent) • Judgments supported by multiple independent grounds – circuit split o All grounds are issue precluded (RFJ. Necessary to the decision • Multiple ways of looking at this…some overlap. efficiency (encourages compromises/settlements because not every issue will have to be battled over due to its future preclusive effect) • Policy con: efficiency (requires more trials. o Lawsuit #2: P2>D1 . Same party??? • Offensive nonmutual collateral estoppel (ONMCE) o Lawsuit #1: P1>D1. P1 wins.

e. whether or not D wins in Lawsuit #1 o EXCEPTION to the general rule…when federal judges may choose to allow ONMCE (Parklane Hosiery) ! P2 could not have easily joined Lawsuit #1 ! AND allowing ONMCE would not be unfair to D…situations where it would be unfair: • D lacked opportunity/incentive to fight Lawsuit #1 vigorously • Lawsuit #1’s judgment against D inconsistent with other judgments in favor of D • Lawsuit #2 would allow D procedural opportunities unavailable in Lawsuit #1 o Is there a Seventh Amendment problem if Lawsuit #1 is equity and Lawsuit #2 is law? ! No. P1 loses.! P2 invoking issue preclusion to prevent D from defending against issue is ONMCE. o Lawsuit #2: P1>D2 ! D2 invoking issue preclusion to prevent P from attempting to relitigate issue that P previously lost is DNMCE. lacked fair opportunity to challenge issue in Lawsuit #1 or Lawsuit #1 court just plain messed up) o Rationale for allowing lots of DNMCE: gives P incentive to join all Ds in first action (efficiency rationale) • State rules: o Some allow neither ONMCE not DNMCE o Some allow both ONMCE and DNMCE o Some allow only DNMCE 5. Maybe (??? From 2011 exam): due process concerns that tip the balance INTERSYSTEM PRECLUSION • Bedrock o §1738: judicial proceedings of state court shall have same full faith in credit in subsequent courts (state and federal) as they would in the rendering state court o Article IV §1: Full Faith and Credit clause . • Defensive nonmutual collateral estoppel (DNMCE) o Lawsuit #1: P1>D1. • ONMCE is generally NOT allowed in federal system (judges have discretion. because there is no further fact-finding function for jury to perform (Parklane Hosiery) • DNMCE is generally allowed in the federal system o Court retains discretion to allow or not allow (Blonder-Tongue) ! If P should probably have opportunity to challenge the validity of Lawsuit #1 (i. though) o Rationale: allowing ONMCE may increase litigation by giving P2 an incentive to stay out of Lawsuit #1 because doing so leaves open the possibility of winning a subsequent suit.

federal agency given same preclusive effect it would be given in federal court) ! Bonus requirement: agency must look like a court (i.• Answering an intersystem preclusion problem: identify both source and content of law o On “at least as much”…be sure to point out ! Definitely determined: rendering state law sets the floor ! Undetermined: whether subsequent court can give more preclusive effect that rendering court would Rendering Court State A Federal (Diversity) in State A Federal (FQJ) Subsequent Court State B Source: State A (FFCC/§1783) Content: “at least as much” preclusive effect as State A would give (point out “at least”/”exactly” possibility) Source: Federal common law Content: “at least as much” preclusive effect as court of State A (point out “at least”/”exactly”)…exception when using state law conflicts with federal interests (probably never) Justification: vertical uniformity (Semtek) We don’t actually know…probably: Source: Federal common law Content: Uniform federal rules (don’t look to state law at all). not requiring discovery or cross-examination) ! Exception: statute authorizing agency says no preclusive effect to its adjudications ! Exception: statute authorizing cause of action in Lawsuit #2 says you don’t give preclusive effect to state agency decisions (Title VII. follow Parklane Hosiery and Blonder-Tongue’s rules • • Federal in State B Source: State A (§1783) Content: “at least as much” preclusive effect as State A would give (point out “at least”/”exactly” possibility) We don’t actually know…probably: Source: Federal common law Content: “at least as much” preclusive effect as court of State A (point out “at least”/”exactly”) Justification: vertical uniformity (Semtek) Source: Federal common law Content: Uniform federal rules (don’t look to state law at all). University of TN) o Rendering court wouldn’t have had jurisdiction to hear claim in Lawsuit #2…see Marrese. below o Federal statute is basis of Lawsuit #2 (same “claim” as in Lawsuit #1) ! Generally claim precluded (Migra. subsequent court will probably follow the “mere change of courtrooms” rule and pretend that Lawsuit #1 happened in the state of original filing Tricky situations: o Agency adjudication is “Lawsuit #1” ! Source: common law ! Content: same effect as the system within which it operates (so State A agency given same preclusive effect as it would be given in State A court.e. no special exception for §1983…must follow rendering state’s claim preclusion rules) . follow Parklane Hosiery and BlonderTongue’s rules If valid transfer in Lawsuit #1. it must provide what basically amounts to procedural due process requirements [see Vitek]) (RSJ §83.

then claim precluded) • Warning: issue preclusion may still attach o Hypothetical ! State law: “you shall not monopolize” ! Federal law with exclusive federal jurisdiction: “you shall not monopolize” ! Lawsuit #1 (in state court under state law): judgment against P ! Lawsuit #2 (in federal court under federal law): P will be issue precluded from raising issue of D’s monopolization o A 41(b) dismissal only has claim preclusive effect in that specific court (Semtek) o What happens if we have both FQJ and Diversity in one case? Not determined. then no preclusion (this will almost always be met because most states don’t preclude claims outside their jurisdiction [like exclusive federal jurisdiction claims]) o If rendering state would bar Lawsuit #2. then court must determine whether relevant statute contains implied or explicit exception to §1783 (if no exception.! Exception: statute grants exclusive federal jurisdiction • Lawsuit #2 is in federal court under a law where federal courts have exclusive jurisdiction (Marrese) • Rule o If rendering state would allow Lawsuit #2. this will require you to infer from past precedents .

courts may need to go into the merits on these…they are not mere pleading standards 1.e. you can stack a single plaintiff’s claims to meet the amountin-controversy requirement Where do you file? o Must be able to get IPJ over defendants o Want to be able to apply a favorable substantive state law ! i. you want to apply state law with no cap on punitive damages CLASS CERTIFICATION – PREREQUISITES [FRCP 23(a)] According to Walmart. you are good to go o If diversity ! Complete diversity requirement applies only to named plaintiffs (i. class representatives) (Ben-Hur) ! Amount-in-controversy only needs to be met by ONE completely diverse plaintiff (ExxonMobil) • And. Commonality [23(a)(2)] • Must be at least one single common question of law or fact (Walmart) o Note. Numerosity [23(a)(1)] • So that joinder would be impracticable • More than 40: yes • Less than 22: no (join using Rule 20) • 22-40: depends upon size of individual claims and geographic dispersion 2.CLASS ACTIONS BEFORE FILING • • • Need at least one claim that meets amount-in-controversy requirement AND all named plaintiffs must be completely diverse SMJ o If FQJ. having substantially different substantive state laws in play may produce problems here (Philips Petroleum) • Walmart sets super high bar o Same injury (suffering violation of same law is not same injury) o Must have common contention that is capable of classwide resolution • .e.

notes case) o Claims arise from same courts of events o AND all members make similar legal arguments to provide the defendant’s liability • Also bleeds back into the representativeness inquiry • Policies in play here: o Fairness ! Commonality: need to ensure absent parties are adequately protected ! Typicality: need to ensure absent parties are adequately protected ! Representativeness: make sure parties are not bound to a decision in a lawsuit guided by someone with no stake in their interests o Efficiency ! Commonality: resolve like issues together ! Representativeness: make sure judgment stands…inadequate rep may leave judgment vulnerable to collateral attack CLASS CERTIFICATION – TYPES [FRCP 23(b)] Once 23(a) prerequisites are met and one of these 23(b) types is met…court MUST certify (no discretion) (Shady Grove) 1. Representativeness [23(a)(4)] • Will fairly and adequately protect the interests of the class • Financial resources of class representative probably matter • Conflicts of interest within class may make representatives inadequate (Amchem. Limited fund [23(b)(1)(B)] • Prosecuting separate actions by individual class members would create a risk of adjudications that would not support the interests of the class as a whole • Example: suing a bankrupt asbestos manufacturer (if you don’t do a class actions. the first people to sue will up all the money. Typicality [23(a)(3)] • Requirements (Marisol.! Determination of common contention’s truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke • In an employment discrimination case. limited insurance policy • . asbestos settlement) o Class members who have incentive to want money NOW need their representatives/lawyers o And class members who have incentive to want money LATER need their representatives/lawyers 4. see injunctive/declaratory) 2. leaving injured people with no relieve). Common ground (never used. how might a class prove commonality? o Option 1: Employer used biased evaluation/testing procedure o Option 2: Significant proof that employer had a general policy of discrimination ! Broad discretion that creates discriminatory effects does not meet this requirement (Walmart) 3.

Monetary relief [23(b)(3)] • Additional prerequisites o Predominance (basically a more stringent commonality requirement) ! Common questions must predominate over individual questions ! Differences of the state law being applied might torpedo predominance (Philips Petroleum) o Superiority: class action is best way to adjudicate…key factors ! Class members’ interest in individually controlling the case ! Whether individual litigation has already been begun by class members ! Desirability of concentrating action in a particular forum ! Difficulties of managing a class action • Size • Number of interveners and participants • Practicability of notice • NOT a mandatory class o Notice requirement: best possible under circumstances to all class members o Class members have opportunity to opt out • DUE PROCESS (AND HCOL) CONCERNS • • • Due process: forum state may exercise IPJ over absent monetary class members WITHOUT MEETING MINIMUM CONTACTS…so long as these requirements are met (Philips Petroleum) o Notice (standard. “reasonably calculated”) o Opportunity to be heard/participate (in person or through counsel) o Opportunity to opt out o Adequate class representative No such due process requirement has been articulated for other class types HCOL (both FFCC and due process concerns) (Philips Petroleum. but courts usually give it 4. forum state can use its own laws if… ! Has significant contact OR significant aggregation of contacts to the claims ! Such that the contacts create state interests . Injunctive/declaratory relief [23(b)(2)] • Basically not allowed to have any monetary relief too o Any monetary relief would need to be incidental and the exact same for every class member (Walmart) ! Why should monetary relief not be allowed? Asking for some (but a small enough amount that it wouldn’t make it a 23(b)(3) class) money could risk claim preclusion for all the class members (Walmart) • Injunctive/declaratory relief must be the same for all members (Walmart) • MANDATORY class (no one allowed to opt out) o No notice requirement.MANDATORY class (no one allowed to opt out) o No notice requirement. but courts usually give it 3. KS court cannot apply its own law when the vast majority of claims have no relationship to KS) o Rule: when multiple state’s laws could apply.

must give opportunity to opt out o Class members can object to the settlement ! Attorney represents that person in order to object to the settlement o Settlement must be approved by the court ! On objection from class member or on its own.! ! Such that the use of forum state law is not arbitrary and unfair IMPORTANT: parties should expect that forum state law could control when making primary conduct decisions SETTLEMENT OF CLASS ACTIONS • • Even if class action filed for the sole purpose of settling. still must meet 23(a) prerequisites and one of the 23(b) types (Amchem) Settling a class action o Notice of settlement must be given to class members (for ALL 23(b) types) ! Why? Fairness: ensure members are getting a good deal o For monetary [23(b)(3)] classes. court can refuse to agree to the settlement • This forces further negotiations to find a settlement that protects the interests of the class .

g.ACCESS TO JUSTICE Turner v. despite the fact that physical liberty is at stake What do we need to provide pro se litigants (safeguards)? 1. An opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e. you create more procedures and make things more complicated (Powell’s concurrence in Vitek) • Maybe: More fair in the aggregate to not appoint lawyers and reform the way that court procedures work in order to make them more friendly to pro se litigants • ABA’s “civil Gideon” proposal: right to counsel in any adversarial hearing (administrative or civil) where basic human needs are at stake (food. those triggered by his responses to the form) 4. An express finding by the court that the defendant has the ability to pay Greiner: what’s the solution? • If you give people lawyers. critical family issues) Why might we appoint lawyers? • Change the outcome o Legal aid orgs • Uphold belief in the legitimacy of the system Number of cases in a typical state in family law where one of the parties is appearing without a lawyer: 80% In order to have enough attorneys to take care of the expressed civil needs in the state of NY: would have to multiply budget by 182 Simplifying the system • Forms Turner was the first case where SCOTUS explicitly recognized that the choice about how to structure the system and whether to provide a lawyer are the same choice (you can get away with not providing a lawyer if you change the proceding) Role of cost of law school . The use of a form (or equivalent) to elicit relevant financial information 3. susbsistence/income. Rogers (Handout) Civil contempt – due process Note: no right to counsel here.. Notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding 2. shelter.