Professional Documents
Culture Documents
Claim Preclusion
o Same claim
Could have raised issue in #1
Should have raised issue in #1
If Same transaction (majority rule)
If same evidence (minority rule)
o Same parties
Due process! (Can’t bind people to results if not given chance to litigate)
Exceptions:
see Taylor (in supplement)
if in contract
traditional representation
o ie guardians, trustees
if people controlled trust…eg
special statute passed by legislation
o Final judgment “on the merits”
But barred if your claim sucks
FRCP 41(b) – tells what is preclusive (if in federal ct)
Special failure to prosecute
12(b)(6) motions – Failure to state a claim on which relief can be granted
Issue Preclusion
o Same issue (in legal and factual sense)
Includes burden of proof
o Actually litigated and decided
No alternative path (evidence supports outcome)
o Essential for the judgment
Don’t preclude alternative holdings (may change if affirmed on appeal)
For example if judge says I feel this way for 2 reasons…each issue may not be
enough on own to preclude, so judge may not weigh issue as carefully
o Same parties—mutuality, same as claim preclusion
o Same party (only 1 person carried over from 1 claim to another)
Make sure the “victim” of preclusion in case #2 was a party in case #1
Check fairness factors (did newcomer “wait and see” result
Prior inconsistent judgments (if party won once, hard to preclude if second outcome
went other way)
Differences in procedures, remedies, incentives
Erie
o REA (Rules Enabling Act)
Courts can write procedural rules, just don’t enact substantive law (ie tort law, this
should be left to common law or statutes)
Create FRCP
“arguably procedural” test
If it is procedural then it is a valid rule
o RDA (Rules Decision Act)
Unless federal law that says otherwise
If controlling federal law then follow it
If not then do unguided Erie
Bound up w/ substantive rights
Outcome determinative
o Guaranty Trust sense (crude test)
o Hannah sense (More refined test)
Twin aims of Erie
Federal interests at stake
Subject Matter Jurisdiction
o Not waivable
o Court has to dismiss if not in the proper court
o Fed court has jurisdiction if:
In constitution
Congress has given permission in a statute
Fed jurisdiction is always concurrent with state jurisdiction, unless congress passes a
law saying claim is only in federal court
o 3 pieces of federal jurisdiction
Foot in the door
1331- federal questions
o Must satisfy the well-pleaded complaint rule (Mottley) and
Either
Holmes
o Satisfies the well-pleaded complaint rule
Grable
o Must satisfy the well-pleaded complaint rule +
grable
o Article III
1331 – Yes
Fed Ingredient – Other statutes
1332- diversity
o Nametags
Individuals
Where you are physically present with an intent to
remain, old domicile stays domicile until change it
Corporations
Place of incorporation and place of business (muscle-
nerve)
Partnerships
Citizenship of all its partners
*Time of filing rule-everyone keeps nametags at time of filing, ie
residency is based off where they originally were at time of
filing
o Diversity
Complete
No overlap between ∏ and ∆ (1332a)
Minimal
At least 1 person different from 1 side to other (Art III
and certain restrictions)
Alienage
Read 1332(a) carefully
Aliens are not diverse from each other
Last sentence of 1332(a) how to treat permanent
residents
Collusive or Fraudulent Joinder
Can’t add someone just to take advantage or avoid
diversity if not legitimate claim
Family Law and Probate exceptions
Excluded from diversity jurisdiction
Ie divorce, probate, wills etc…
o Amount in Controversy
Greater than 75k
Rules for aggregation (find page in book w/ rules)
Supplemental Jurisdiction 1367
o Common Nucleus of Operative facts – Broad test (1367a)
o Exception – purpose is to prevent manipulation by ∏’s (1367b)
Read carefully
o Discretion to decline (1367c)
If state claims dominate
Narrow
Have to keep claims under 1331 or 1332
Removal
o 1441- what claims are eligible for removal
(a) ∆ has options to remove
(b) except a ∆ at home in diversity
o 1446 + 1447
w/I 30 days for notice of removal, then 30 days to remand
Personal Jurisdiction
o Waivable
o Subject to collateral attack (under Pennoyer)
o Service of Process
Rule 4
Mullane/ due process
o Venue
1391
(a) where ∆ lives
(b) substantial part of acts + omissions
(c) last resort
Specific (On exam make sure you talk about (LA Statute, PA, Claim and
Contacts related, reasonableness) (Make sure you say O’Connor would say…x
but under Brennan…this would be outcome, give answers based on different
principles)
o Long-arm statute (Rule 4k)
What would a state court do? (what does st LA statute say?)
Bulge rule
Joined under rule 14 or 19 (think bulge rule and 1367b
Served w/I 100 miles of court house
Close by (even if across state lines)
Last Resort
o Purposeful Availment
Under McGee even very little contact if arises out of that
business is enough
WWVW- mere foreseeability is not enough
Asahi-
Brennan: awareness is enough
O’Connor: intentionally directing or aiming
BK – as long as you get a little PA you get the chance to argue
reasonableness (AKA BK Co-varying test), reasonableness can
make up for low PA
Effects Test
Developed for defamation cases (intentional torts)
Sliding Scale Test
Meant for internet cases
o Claim and contacts must be related
o Exercise of jurisdiction must be reasonable
General
o Long-arm statute
o Purposeful Availment
o Reasonableness
o General jurisdiction over you where you reside
o Tag Jurisdiction – Burnham
o In Rem (state has gen jx over claims arising from property in state)
Bigger Outline:
CIVIL PROCEDURE
HENDRICKS LIKES CONCLUSIONS. DON’T GIVE WISHY WASHY ANSWERS.
PERSONAL JURISDICTION – minimum contacts, traditional notions of fair play and substantial
justice. (Shoe)
0. Long arm statute
a. Federal court - rule 4k
a. State court - whatever state statute
1. Purposeful availment – contrast O’Connor and Brennan approaches
minimum contacts as modified in Hanson, and WWVW, and Asahi
To require more than just contacts
1. Purposeful availment (minimum contacts)
a. O'Connor
1. rejects awareness is sufficient
2. Aiming
3. Purposeful Directing
b. Asahi
c. BK co-varying test - example of level of business contacts that might be considered
(Brennan)
d. Sliding scale test – for electronic contacts with forum
e. Effects test – usually defamation cases
f. Brennen - Awareness
2. Relatedness
In order for it to be related, the contacts with the state have to be related to the cause of action.
Shaffer – LAS did not match with best argument.
3. Reasonableness
a. Asahi - not reasonable
b. Consider all factors
i. Burden on def
ii. State's interests
iii. Plaintiff's interest
iv. System's interest in efficiency
4. Claim jurisdiction over the person
a. Serve process according to the statute
b. Sufficient under Mullane - notice reasonably calculated
SPECIFIC JURISDICTION
GENERAL JURISDICTION
How diff then specific? Take out relatedness.
Coastal Video Communications Corp. v. Staywell Corp (E.D. Va. 1999)
There was no specific jurisdiction because of l.a.s., but general was found possible, need more discovery.
Court says - show us there is enough business to hold them to general jurisdiction
Personal jurisdiction is 4 step analysis for conduct related to the forum
General jurisdiction is when there are enough contacts with the state to be able to be involved with suit for
anything.
Burnham v. Superior Court (1990) Scalia, with Rehnquist, Kennedy, and White
There is no opinion that is law in this case.
Divorce case – NJ and CA. Husband served with petition for divorce while he was in CA on business and
to visit his kids.
The 14th amendment does not prohibit California courts jurisdiction over a nonresident who was
personally served with process while temporarily in that State, in a suit unrelated to his activities in the
State.
Scalia – narrow reading of Shoe, left Pennoyer undisturbed when person in state, tradition, tradition,
tradition; physical presence is enough for jurisdiction.
Brennan, Marshall, Blackmun, O'connor concur
Brennan - presence in the state is reasonable because Shoe
Dealing with transient jurisdiction
Tag jurisdiction
Scalia tells you - Shoe minim contacts test applying to personal jurisdiction is foolish
Saying Shoe was only a few deviations from Pennoyer
Hendricks SAYS TAKE THIS WITH A GRAIN OF SALT
NOTICE
Service of Process
Rule 4
Rule 4(k)
Rule 4k applies when in federal court (federal long arm statute)
Rule 4(k)(1)(A) – says look at the state requirements; go to a federal court where state ct would have jur
4 k 1 b - who is party to rule 14, 19 and is served within 100 miles from the court house
Form of tag jurisdiction - this is called the "bulge rule"
When supplemental jurisdiction is asserted over third-party defendants and indispensable parties, service
may be effectuated by the 100-mile bulge rule, if such parties cannot be served within the state in which
the federal court sits. The rule allows service on such added parties anywhere within 100 miles of the
federal courthouse in which the action is pending.
Venue
Venue is another way of trying to get a case into a convenient location
Not a constitutional issue, it's a statute issue
28 U.S.C. § 1391
a) founded only on diversity
b) where jurisdiction is not founded solely on diversity
Holmes test - he thought that if federal law creates cause Action then it should be in fed ct
Friendly test
Case should be in fed court if it called for the construction of federal Law.
DIVERSITY JURISDICTION
28 U.S.C. § 1332
a) more than $75,000
an alien admitted to the US for perm. Residence shall be deemed a citizen of the State in which such alien
is domiciled.
c) corporation is a citizen of any State by which it has been incorporated and of the State where it has its
principal place of business…
Domicile
Individuals – only can have one domicile - present domicile and intent to remain indefinitely.
Corporations
Two tests:
1. Nerve - where execs are
2. Muscle - where everyday activities are
There is only one principle place of business. (diff than personal jurisdiction that says can be subject
in multiple places).
Policy concerns
Bias
Caseload
Federal interests
Amount in controversy
Aggregation rules
SUPPLEMENTAL JURISDICTION
28 U.S.C. § 1367
shares a common nucleus of operative facts
REMOVAL
28 U.S.C. § 1441, 1446, 1447
REMOVAL TO FEDERAL COURT
1441 a - if the Pl could have filed it in fed court to begin with, then def. has that choice too
1441 b - A def who is at home (like home state) being sued in diversity cannot remove
Paula can file in her home state and still invoke diversity jurisdiction
all defendant's have to join in notice of removal and all have to be able to remove
One def who is at home destroys removal for everyone
1446 - procedure for removal
1446 a - as soon as def files notice of removal with federal court, the case is in federal court
The federal court then decides whether the removal was proper.
State court finds out later from federal court.
1446 b - deadlines - 30 days after def is served with complaint
Caveat - provision for cases that become removable later on
The def. has another 30 days to decide.
One year removal if the diversity change (like if they settle with a party, or raise damages)
1447 - tells district court what to do after removal
Plaintiff has 30 days to complaint about it after def files for removal.
1447 c - subj matter jur is critical
Required by article 3, 1331, and 1332
One kind of federal statute you can discuss if they are valid on exam -rules enabling act - possibility that
substantive things could be snuck into the rules of civil procedure; section 2072 says can't be substantive
TEST: IS IT PROCEDURAL OR SUBSTANTIVE?
"arguably procedural" = it is okay
The SC has never found a rule to be substantive in the FRCP
Rules enabling act - constitution gives congress power to create judicial system; therefore make rules
Murkey part of Erie - dissent - line between sub and proc law, and no one doubts federal power to
make procedure. Even under Erie, the federal courts get to make their own procedures.
Un-guided Erie choice - making a choice whether to follow a specific state process without having
guidance from federal law.
How to interpret a statute:
1. Direct evidence of congressional intent
2. Policy
a. Twin aims of Erie (hana):
i. Forum shopping
ii. Inconsistencies/unfair outcomes
1. Outcome determinative test of York.
b. Bound up with substantive rights - meaning state law should apply if…..
i. Part of the right you have
RULE 82
Hanna says that when there is a valid federal law, we need to follow it
It is difficult to say this is "outcome determinative" permitting the wife to receive service rather than the
husband. This is not sufficiently substantial to raise the kind of equal protection problems Erie raised.
Underlying disagreement with justice Harlan's concurrence
2 aspects that are imp
1. He proposes an alternative test for distinguishing substantive from procedural - whether the rule
regulates primary conduct (inside courtroom vs outside)
Erie would be primary condct because it is telling def's how to avoid liability
Things that tell the court how to operate - like service of process rule should be considered just
procedural
3 phases of Erie
1. York - state staute of limitations prevailed
2. Byrd and Hanna - upheld federal practices
3. May have started in 1996 with Gasperini
1. Instead of following state prcatice or federal, compromise to accommodate interests of
both.
2. State practice conflicted with the 7th amendment. They cut down jury verduct. Federal
courts cannot do that.
3. The compromise said that the trial judge could adjust the damages if excessive. There was
history in common law, so it wouldn't violate the 7th amendment.
Claim preclusion - (res judicata - "the thing has already been decided") prevents you from re-trying a
case that has already been tried; blocks whole claims - new claims from same incident you already
litigated. Plaintiff sues one of the drivers under the tort theory of negligence. Claim perclusion prevents
another negligence suit being filed. Also prevents a new legal theory - like I.I. E.D.
Elements: 1. same claim, 2. same parties, 3. final judgment 4. on the merits
Issue preclusion - (collateral estoppel) - exists for the sake of efficiency; prevents one party from
disputing particular issues, doesn't get to argue the same point again (like if employee was an employee
or a contractor)
Same issue
Actually litigated and decided in prveious case (have actual judgment)
Has to have been essential to the judgment
Same party (at least one of them has to be the same - the one stuck with the judg)
CLAIM PRECLUSION
ARTICLE IV §1
Full faith and credit clause
28 U.S.C. §1738
Full faith and credit.
SAME CLAIM
SAME PARTIES
SEARLE BROS. V. SEARLE (UTAH 1978)
Parents divorced, sons brining action against Mom to get property back which they claim is theirs.
Whether the sons are precluded from bringing this suit that arose from ther parents divorce proceedings?
No
4 tests:
1. Was the issue decided in the prior adjudication identical with the ones presented in the action in
question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a part or in privity with a party to the prior
adjudication?
4. Was the issue in the first case competently, fully, and fairly litigated?
Issue 2 - the divorce was a final judg on the merits
Issue 3- not parties in the first action
In privity - person in interest with another that he represents the same legal right.
In the divorce, father was action individually as father, not as a rep of the partnership.
The right to intervene as party in the prior suit does not bind the party in the subsequent suit where
he failed to so intervene.
Claim preclusion
Due process clause is the limiting factor of the preclusion doctrine
2. Same parties
1. in privity; - classic example is landowner, land issues get passed down to new owner
2. Control - like a group with many members
3. Final judgment
Some states say that while the appeal is pending, the judgment is not final
Some states say the opposite and then deal with the problems that arise if it gets reversed.
4. On the merits
Semtek
Claim 1
Cal. Fed ct
Diversity
CA subst. law
Fed procedure
Claim 2
Md. State court
Md. Substantive law
Md. Procedure
This court's first job is to interpret the dismissal from CA. The "footnote" on the dismissal needs to be
examined to see if it contained CA law or federal law.
It doesn't matter if the second suit was filed in state or federal court
They are still going to use MD law
The issue the court is stuck on is the details regarding the dismissal.
ISSUE PRECLUSION
Same issue
Actually litigated and decided
Essential to the jmt
Same party
COLLATERAL ESTOPPEL
OFFENSIVE – when Plaintiff seeks to foreclose the def. from litigating an issue the def. has
previously litigated unsuccessfully in an action with another party.
DEFENSIVE – when Def seeks to prevent a plaintiff from asserting a claim the plaintiff has
previously litigated and lost against another defendant.
SAME ISSUE
ACTUALLY LITIGATED AND DETERMINED
Parklane is where thr SC said offensive estoppel is okay, but you have to use the factors set forth.
Preclusion of re-litigating questions of fact - like negligence
Not pure matters of law - like interpreting law
Narrower
Easier to re-litigate a question of law than it is a question of fact