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Article III Limited Federal Power

1) 1331 - Federal Question arising under federal law
a. Well-pleaded complaint rule (Louisville & Nashville Railroad v. Mottley)
b. Easy federal law creates cause of action
c. Hard federalizing warp
2) 1332 Diversity Jurisdiction
a. Citizens of different states at time of filing (Smith v. Kennedy)
i. Person physical presence + intent to remain (Hawkins v. Masters Farm, Inc.)
ii. Foreign citizens: 1988 deeming amendment only applies to suits against a USC (LPR is deemed a citizen of the
state in which they are domiciled) (Saadeh v. Faouki)
iii. Corporation
1. State of incorporation +
2. Principal place of business
a. Nerve
b. Muscle
c. Mixed
iv. Partnership citizenship of each partner
v. Complete diversity necessary (Strawbridge v. Curtiss)
b. Amount in Controversy must exceed $75K
i. Standard deference unless legal certainty (St. Paul Mercury)
ii. Aggregation rules
3) 1367 - Supplemental Jurisdiction
a. 1367(a) Grants SJ to all claims of same case or controversy
i. Common nucleus of operative fact (United Mine Workers v. Gibbs)
b. 1367(b) has 3 cuts for diversity cases
i. Claims by original plaintiffs against parties joined through
1. Rule 14 impleader
2. Rule 19 compulsory joinder
3. Rule 20 permissive joinder
4. Rule 24 - intervention
ii. Claims by plaintiffs joined under Rule 19
iii. Claims by plaintiffs intervening through Rule 24
c. 1367(c) lists discretionary factors to deny SJ
i. Novel or complex issue of state law
ii. State law claims predominate
iii. All claims with original SMJ dismissed
iv. Other compelling reasons
4) 1441, 1446, 1447 Removal
a. Defendant may remove a case to the district in which the action is pending (1441(a))
i. 1391 no longer applies for venue
b. Any Federal Question claim is removable without regard to citizenship (1441(b))
i. Diversity jurisdiction claims are not removable if brought into defendants home state (Local Defendant rule)
c. If a 1331 claim is joined with a non-removable claim, entire case may be removed or the state claims may be
remanded (1441(c))
d. Foreign state may remove (1441(d))
e. Procedural (1446)
i. 1 year time limit for diversity case
f. Post-Removal Procedure (1447)
i. 1447(e) - if joinder of defendants destroys SMJ, may deny joinder or permit and remand to state court

1) States long-arm statute or federal courts long-arm statue: Rule 4(k)(1)(A)
a. Federal court only has personal jurisdiction if the state court in the forum also has personal jurisdiction
b. 100-mile bulge rule: Rule 4(k)(1)(B)
2) Constitutional analysis: Is personal jurisdiction constitutional? Does it violate due process rights?
a. Consent?
i. Carnival Cruise: boilerplate language forum selection clause is enforceable and consent to PJ
b. Physical presence in the forum state? (DOESNT APPLY TO CORPORATIONS)
i. Burnham: tag jurisdiction
c. No consentGeneral or specific jurisdiction? Does the cause of action arise out of or related to the defendants
contacts with the forum state?
i. Yesspecific jurisdiction
1. Are the minimum contacts purposefully availed?
a. International Shoe: minimum contacts and traditional notions of fair play and substantial
b. McGee: purposeful availment, relatedness, and states interest in providing justice for its
c. Hanson: unilateral business activity is not purposeful availment
d. Shaffer: International Shoe applies to quasi in rem and individuals (not just corporations)
e. Burger King: foreseeability is the reasonable expectation that youll be hailed to the forum
through purposefully availed contacts
f. Pavlovich: effects test; actions must be expressly aimed at the forum and knowledge that
your conduct may harm industries in the forum helps but not enough to establish PJ
2. If there are purposefully availed minimum contacts, do they violate the traditional notions of fair play
and substantial justice?
a. World-wide Volkswagen: fair play factors and foreseeability isnt an independent factor in
PJ analysis
i. Burden on P
ii. State interests
iii. Ps interest in litigating in forum
iv. Serve interstate efficiency?
v. Serve interstate substantive social policy interests?
b. Asahi: stream of commerce (split opinion) and fair play factors find a high burden on D, then
no PJ even if there are minimum contacts (foreign defendants)
ii. Nogeneral jurisdiction
1. Systematic and continuous contacts
a. Perkins: ran business from Ohio (Philippines corporation)
b. Heliocopteros: conducting business, one contract, and one trip not systematic and
continuous contacts
iii. Ascertain the contacts and analyze whether the facts satisfy the legal standard
3) Notice (Rule 4)
a. Is it constitutional under the Mullane and Shutts standard?
4) Venue: localized jurisdiction in the state by district (1367)
a. Differs based on whether federal question or diversity
b. Apply laws of the first court (unless jurisdiction or venue improper)
c. Transfer (1404, 1406, 1653)
i. Permitted for convenience of parties and witnesses and in interest of justice
ii. where it might have been brought (make sure there is SMJ, PJ, vanue)
d. Forum non conveniens
i. Is there an alternative forum?
ii. If there is an alternative forum, does the substantive law of the alternative forum make it so that there would
be no remedy at all?
iii. If not, then balance the Gilbert factors and determine if the public and private factors cut in favor of FNC
1. Public factors
a. Relative ease of access to sources of proof availability of compulsory process for attendance
of unwilling, and the cost of obtaining attendance of willing witnesses
b. Possibility of viewing the premises, if appropriate to the action
c. All other practical problems that make trial of a case easy, expeditious and inexpensive


Private factors
a. Administrative difficulties flowing from court congestion
b. Local interest in having localized controversies decided at home
c. Interest in having the trial of a diversity case in a forum that is at home with the law that
must govern the action
d. Avoidance of unnecessary problems in conflict of laws, or in the application of foreign law
e. Unfairness of burdening citizens in an unrelated forum with jury duty

1) Complaint: Rule 8(a)
a. Plausibility standard (Twombly and Iqbal)
i. Strike out legal conclusions/conclusory statements
ii. Assume factual allegations are true
iii. Plausibility evaluations based on the factual allegations the facts must be such that the court can draw a
reasonable inference that the D is liable for the alleged misconduct
2) Optional pre-answer motion
a. 12(b) motions
i. Note: PJ is waived if a pre-answer motion is filed and PJ is not brought up
3) Answer
a. Admit/deny/dont know = denial/silence = admission (Rule 8(b))
i. Specific denials (Zielinski v. Philadelphia Piers, Inc.)
b. Affirmative defenses (Rule 8(c))
c. Launch claims
i. Counterclaim (Rule 13)
ii. Cross-claim (Rule 13)
iii. Impleader (Rule 14)
4) Amendments: Rule 15
a. when justice so requires (15(a))
5) Reply: Rule 7(a)
a. Mandatory if there is a clearly designated counterclaim in the answer
6) Judgment on the pleadings: Rule 12(c)
a. Used when there is an affirmative defense that would end Ps claim (i.e. statute of limitations)

Permissive claims:
Rule 18: a single P can join any and all claims they have against a single D (plaintiff autonomy, so you dont have to join claims)
Rule 42(b): allows the judge to sever claims for trial convenience (like P brought different suits)
Compulsory claims: No FRCP, but there could be claim preclusion, which acts as a compulsory joinder of claims rule
Compulsory counterclaims (a): arises out of the transaction or occurrence
o Same transaction or occurrence test
Are the issues of fact and law raised by the claim and counterclaim largely the same?
Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim rule?
Will substantially the same evidence support or refute plaintiffs claim as well as defendants counterclaim?
Is there any logical relationship between the claim and the counterclaim (causal relationship)?
Logical relationship if same aggregate of operative facts upon which the claim rests activiates
additional legal rights, otherwise dormant, in the defendant (Revere Copper & Brass, Inc. v. Aetna
Casualty & Surety Co.)
Permissive counterclaims (b): not required b/c doesnt arise out of the same transaction or occurrence
Cross-claim: against coparty; same transaction or occurrence, not derivative liability standard (Rule 13(g))

Permissive joinder (Rule 20): same transaction or occurrence, or series of transaction or occurrences; common question of law
or fact
Impleader (Rule 14): is or may be liable to it for all or part of the claim against it
Compulsory joinder (Rule 19):
1) Required?
19(a)(1)(A): in that persons absence, the court cannot accord complete relief among existing parties
19(a)(1)(B)(i): person claims an interest related to subject of suit and impair and impede the persons ability to
protect the interest
19(a)(1)(B)(ii): person claims an interest related to subject of suit and leaves an existing party subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest
2) Joinability? Is there jurisdiction?
Is there PJ over the party?
Is there SMJ over the party? Usually there is SMJ b/c of supplemental jurisdiction.
3) Indispensible? Are you REALLY required?
19(b): when a joinder is not feasible and the person is required , the court must determine whether, in equity
and good conscience, the action should proceed among the existing parties or should be dismissed
Extent a judgment rendered in the persons absence might prejudice that person or existing parties;
The extent to which any prejudice could be lessened or avoided by (A) protective provisions in the
judgment (B) shaping the relief; or (C) other measures
Whether a judgment rendered in the persons absence would be adequate
Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder


Rule 23(a) Requirements
1) 23(a)(1): Numerosity joining people as individuals impractical (typically consist of at least hundreds of persons)
2) 23(a)(2): Commonality common question of law or fact
Some differences are ok, but as long as there is a common question of law or fact that is the central issue
3) 23(a)(3): Typicality class representatives stand in the same shoes as the average class member (same incentives and
motivations as the average class member)-->claims or defenses of the representative parties are typical
4) 23(a)(4): Adequacy fairly and adequately protect the interests of the class (both the class rep and the lawyer)
Class representative must have 1) common interests with unnamed members of the class and 2) representative
will vigorously prosecute the interests of the class through qualified counsel (Senter v. General Motors, Corp).
Lawyer should have no conflicts, qualified, and equipped with sufficient support and resources to handle the case
Rule 23(b) Classification
23(b)(1): larger version of Rule 19 to 1) stop incompatible judgments or 2) prevent breaking the bank
23(b)(2): provides for class actions where the party opposing the class has acted or refused to act on grounds that apply generally
to the class.
Civil rights claims
Primary relief must be injunctive or declaratory relief; can get small amount of $ for attorney fees
23(b)(3): comprises all class actions not captured in 23(b)(1) or 23(b)(2); in particular it includes all claims in which the plaintiffs are
seeking monetary damages (both damages and injunction)
small claims or mass torts
o (A) the class members' interests in individually controlling the prosecution or defense of separate actions;
o (B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
o (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
o (D) the likely difficulties in managing a class action
o Superior commonality: common questions of law or fact must predominate
o Superior method: class action must be superior method for the fair and efficient adjudication of the controversy
o Notice: mandatory for all identifiable class members; must include opt out option (Rule 23(c)(2)(B))
Satisfaction of state laws does not mean that the federal laws are satisfied.
*Virtual representation connection: the class couldnt have adequately represented someone whose interests are against
those of the class (diametrically opposed) and therefore violates the Fourteenth Amendment Due Process rights (Hansberry
v. Lee)
1) Subject matter jurisdiction
1331: SMJ not a problem b/c there is arising under jurisdiction
1332: Diversity jurisdiction and class actions
CITIZENSHIP: Only the citizenship of the class representative matters in determining citizenship of the P
(Supreme Tribe of Ben-Hur v. Cauble (1921))
Smaller claims that dont meet the amount in controversy requirement under 1332 allowed so long
as the class representative satisfied the amount in controversy requirement (Exxon Mobil Corp. v.
Allapattah Services, Inc.)
2) Personal jurisdiction
3) Notice
Shutts: individual notice and opt out option was sufficient; those who couldnt be reached were excluded from class
23(c)(2)(B): Mandatory individual notice and opt out for (b)(3) classes
P bears the cost of notice, even if expensive; and requires individual notice to all identifiable class members
23(c)(2)(A): Optional notice to (b)(1) and (b)(2) classes
(b)(2) classes: no notice b/c consequences the same (change in policy/practice)
23(d)(1)(B): allows court to order appropriate notice to come or all members of a class
23(e)(1): notice optional
4) Venue

Res Judicata Refer to Chart on Respect for Judgments




Valid Final Judgment on the merits

a. Valid SMJ/PJ ok (Gargallo v. Merrill Lynch, Pierce, Fenner & Smith)
b. Final
i. Some States - after State Supreme Court denies cert or time passes for review
ii. Federal (Rest 2 ) after trial court judgment, regardless of pending appeal
c. Judgment on the Merits
i. Any decision after 12(b)(6) motion denied
1. Judgment on Pleadings, Summary Judgment, JMOL, RJMOL, Jury Verdict
ii. For federal, 12(b)(6) dismissal with prejudice is on the merits (Federated Department Stores v. Moitie)
Same Claim
a. Rest (2 ) All Federal and most states Transaction Test - broad
i. Transaction or series of transactions
ii. Matters related in time, space, origin, and motivation, whether they can be tried conveniently, conform to
b. Rest (1 ) Some states Same evidence test narrow
i. Same evidence, causes of action are identical when based upon a common core of operative facts
Same Parties (or in Privity)
a. Privity - Interests so linked to represent the same legal right
b. Exceptions to same party
i. Six exceptions in Taylor v. Sturgell




Valid Final Judgment on the merits

a. See Claim Preclusion
Same Issue of Law or Fact
a. Can be subset of issue
Actually Litigated and Determined
a. Jury verdicts are opaque (jury blackbox)
Essential to the Judgment
a. Easy strike out issue from suit 1 and see if outcome would be the same. If yes, not essential.
b. Difficult Multiple Sufficient Grounds
i. May not have analyzed each reason closely
ii. Special jury verdict may or may not be essential
iii. Bench trial should be clear
iv. Rest 2 No preclusion unless specially affirmed on appeal
v. Rest 1 All precluded
Mutuality Complication relaxing of mutuality reqs for same parties
a. Nonmutual Defensive IP generally ok
i. Encourages P to sue all Ds at once (Blonder-Tongue)
b. Nonmutual Offensive IP
i. Rest 1 mutuality required
1. No incentive for Ps to wait and see
ii. Rest 2 Mutuality abandoned, varies by jurisdiction
1. Encourages wait and see, so courts use discretion whether to allow
2. State Farm v. Century Home

What is the result if state law applies? What is the result if federal law applies?
Identify the difference between the state and federal outcomes? Is there a collision?
If there is a collision, federal law is almost always supreme, BUT there may be an internal surrender provision in federal
law, in which instance, the state law would be applied rather than the federal law.
o U.S. Constitution? Supreme law of the land, so apply the Constitution (Supremacy Clause
o Statute? If constitutional, then the federal statute is valid and would apply
o FRCP? Consistent with REA and the constitution? Then FRCP applies
o Federal common law/practice: Federal courts have embedded in the federal law an internal surrender provision
that would apply in certain circumstances, such as when there is a collision between state and federal common
Guaranty Trust Outcome determination
Byrd Federal interests
Hanna Twin aims of Erie and immunizes the FRCP
Discourage forum shopping
Avoid inequitable administration of the law

Semtek: when a federal court is sitting in diversity, federal res judicata law applies. Federal res judicata law makes you apply state
res judicata law UNLESS there is a countervailing federal interest (Byrd)
Rule 41(b) is not a claim preclusion law; dismissal w/o cause is a dismissal with prejudice