2011-2012 Civil Procedure Eric Jordan

Prof. Goldsmith

INTRODUCTION
I. INTRODUCTION 7
A. Federal Civil Procedure
1. Definitions
B. Subject Matter Jurisdiction
1. Limited/General, Original/Appellate, Exclusive/Concurrent
C. Sources of Law
1. Federal Law = C,S,T,FRCP
2. State Law = S,C
D. American Court System Structure
E. Stages of a Lawsuit
1. PDPTPA
F. Article III
1. Art. III, Sec. 1- Supr. Ct, Congress can make federal courts
2. Art. III, Sec. 2- Federal court jurisdiction (Constitutional umbrella)
 9 areas including Fed. Q. and Diversity
 Supr. Ct. only has original juris. over Ambassadors and “U.S. is a party”

SUBJECT MATTER JURISDICTION

II. CONSTITUTIONAL OVERVIEW 8
A. 8 Important Takeaways
o Capron v. Van Noorden
 “you didn’t prove you had SMJ”
o Marbury v. Madison
 Can’t create original juris when Const. gives appellate
III. DIVERSITY JURISDICTION 9
A. Purpose- protect out-of-state Ds
B. 28 U.S.C. § 1332
1. Complete Diversity
 § 1332(a)(3) Exception
2. Amount in Controversy
3. Citizenship
 “U.S. citizen” = U.S. citizen + domicile
 Domicile- “present” with “intent to remain indefinitely”
 Citizenship of aliens
 Citizenship of corporations
4. Cases
o Gordon v. Steele
 Domicile incorrectly decided for this student
o Mas v. Perry
 Students domiciled in previous home, AIC established at outset
o Hertz Corp. v. Friend
 Hertz gets federal ct bcuz of corporation domicile
C. Rules vs. Standards
IV. FEDERAL QUESTION JURISDICTION 11
A. 28 U.S.C. § 1331
1. Art. III, Sec. 2: Constitutional grant of juris to federal cts
2. Evolution of Fed Q Jurisdiction (OMG)
 Non-frivolous
 Well-pleaded complaint from P

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  Important federal issue
o Smith Exception
o Holmes Test
3. Cases
o Louisville & Nashville Railroad Co. v. Mottley
 Can’t attempt fed Q juris through a potential defense
o Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing
 Fed juris over Darue’s state quiet title action
V. REMOVAL JURISDICTION 12
A. 28 U.S.C. § 1441
o Amitts v. Amoco
 Can’t remove if federal ct doesn’t have original juris
VI. SUBJECT MATTER JURISDICTION in the SUPREME COURT 13
o Mims v. Arrow Financial Services
 Cause of action for TCPA claims in federal court?
 No (accd to Goldsmith)

PERSONAL JURISDICTION
VII. HISTORICAL DEVELOPMENT 14
A. Personal Jurisdiction
1. In Personam – over the person, presence
2. In Rem – over attached property
3. Quasi In Rem – uses property to bring D to forum
B. Due Process Clause (14th Amend)
C. Full Faith and Credit Clause (Art. IV, Sec. 1)
D. Evolution of Personal Jurisdiction Determinants (PHS)
1. Questions to Ask for PJ
 Long-arm statute?
 “arise out of” or “relate to”?
o “But for” or “substantive elements”
E. Cases
o Pennoyer v. Neff
 Ct. had no juris to act on Neff’s property
o Hess v. Pawloski
 Implied consent driving between states
o International Shoe Co. v. Washington
 Salesmen had enough contacts to pay for unemployment
VIII. SPECIFIC JURISDICTION 15
A. Specific Jurisdiction
1. Minimum Contacts RED FLAGS for Min. Contact:
2. Reasonableness -no offices
B. Contracts -(not) initiating business transaction
1. Considerations
C. Choice of Law Clause
1. Doesn’t necessarily grant PJ like Choice of Forum clause
D. Cases
o World-Wide Volkswagen v. Woodson
 Not enough that it’s foreseeable that a car will enter the state
o Burger King v. Rudzewicz
 Factors are satisfied to give FL PJ over Rud
o Asahi Metal Industry Co. v. Superior Court (4-4-1)

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  Unreasonable = yes, Minimum Contacts = unsure
IX. GENERAL JURISDICTION 18
A. Domicile/Home (ppl)
B. Place of Incorporation (corp)
C. Principal Place of Business (corp)
D. Consent (both)
E. Presence/ Tag Juris/ Transcient Juris (ppl)
F. Continuous & Systematic Contacts (corp)
G. Cases
o Helicopteros Nacionales de Columbia, S.A. v. Hall
 Not enough G&S contacts for TX to have PJ over Peru
o Burnham v. Superior Court
 Burned by wife who got PJ on a tag
X. NOTICE 18
A. Service of Process
B. Rule 4: Summons
1. Rule 4(c): Service
2. Rule 4(e): Serving an Individual within a Judicial District of the U.S.
C. Cases
o Mullane v. Central Hanover Bank & Trust Co.
 “Reasonable” notice

DISCOVERY
XI. DISCOVERY 20
A. Overview
1. Purposes
B. Rule 26(b)(1): Discovery Scope and Limits
1. Rule 26(b)(5)(A): Privilege
2. Rule 26(b)(3):Trial Prep Docs: “substantial need” and “hardship”
3. Rule 30:Depositions
4. Rule 33: Interrogatories
5. Rule 34: Request for Documents
6. Rule 37: Compel Disclosure

VENUE
XII. STATUTORY VENUE 20
A. Overview
1. 28 U.S.C. § 1391: judicial district, residence of D, events/property of case, corp. special
residence
B. Cases
o Uffner v. La Reunion Francaise
 Puerto Rico is a proper venue
XIII. TRANSFER and FORUM NON CONVENIENS 21
A. Statutory Basis
1. 28 U.S.C. § 1404
2. 28 U.S.C. § 1406
3. Forum Non Conveniens
B. Cases
o MacMunn v. Eli Lilly
 1404 transfer allowed in DES case
o Piper Aircraft Company v. Reyno

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  1441, 1404, and FNC lead to Scotland
PLEADING
XIV. BASIC PLEADING 22
A. Rule 8: Pleading
1. Rule 8(a): Complaint Requirements
2. Rule 8(b): Defenses; Admission and Denials
3. Rule 8(c): Affirmative Defenses [Ingraham]
4. Rule 8(d): inconsistent pleading allowed
5. Rule 9(b): Heightened Pleading
6. Conley Rule (Notice Pleading)
7. Twombly-Iqbal (Plausible Pleading)
B. Twombly-Iqbal Today
C. Cases
o Dioguardi v. Durning
 ELL showed he was entitled to relief under some applicable law
o Doe v. Smith
 Doe gave enough facts to show she was entitled to relief
o Leatherman v. TCNICU
 Ct. not allowed to decide when to require heightened pleading
o Ashcraft v. Iqbal
 Iqbal failed to meet the high bar of pleading sufficient facts
XV. ADVANCED ISSUES 25
A. Responding to the Complaint
1. Answer
2. Rule 12 Motions
3. Rule 15: Amended and Supplemental Pleadings
4. Rule 55: Default Judgment
5. Rule 11: Care and Candor in Pleading (Hays, p41)
B. Cases
o Virgin Records America, Inc. v. Lacey
 Lacey’s entry of default led to default judgment
o Matos v. Nextran, Inc.
 Many motions
o Hunter v. Serv-Tech, Inc.
 Can’t “reserve” a PJ defense
o Reis Robotics USA, Inc. v. Concept Industries, Inc.
 Affirmative defenses are like pleadings (Rule 8(b)(1)(A))

JOINDER
XVI. BASIC JOINDER of CLAIMS and PARTIES 26
A. Joinder of Claims: Rule 13, Rule 18
B. Joinder of Parties: Rule 20
C. Joinder of Both: Rule 14
D. Cases
o Leiendecker v. Asian Women United of MN
 Non-tort claims weren’t ripe in C1
o Holbein v. Heritage Mutual Insurance Co.
 Each of the 4 Ps’ claims satisfied Rule 20(a)(1)
o Erkins v. Case Power & Equipment Co.
 Case can implead Fitzpatrick and Erkins for contribution
XVII. SUPPLEMENTAL JURISDICTION 28

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 A. 28 U.S.C. § 1367
B. Cases
o
United Mine Workers v. Gibbs
 “Same nucleus of operative fact” allows supp jur over state claim
o Owen Equipment & Erection Company v. Kroger
 No supp juis because statutory bar (complete diversity) not met
o *Finley v. United States
 Led to 1990 enaction of §1367
o *Clark v. Paul Gray, Inc.
 AIC required both Ps suing 1 D
o *Zahn v. International Paper Co.
 AIC required for each member of the class
o Exxon Mobil Corp. v. Allapattah Services
 AIC not required since there’s complete diversity
C. Comparison between GOE

CHOICE OF LAW
XVIII. THE ERIE DOCTRINE 31
A. Swift v. Taylor, Justice Story, federal general common law
B. Holmes’ View, Legal Positivism and Legal Realism
C. State Supreme Court Predictive Approach
D. Choice of Law
E. Post-Erie Federal Common Law
F. Cases
o Black & White Taxicab & Transfer Co. v. Brown & Yellow …
 B&Y’s contract is valid accd to federal general common law
o Erie R.R. Co. v. Tomkins
 No federal general common law, PA common law reigns and it says
Erie R.R. isn’t liable to trespassers
o Klaxon Co. v. Stentor Electric MFG Co.
 Fed ct is in DE, so DE choice of law rules apply
o United States v. Standard Oil Co. of California
 Congress, not a federal ct, should decide whether to allow the U.S. to
recover for injury to a soldier

ADJUDICATION WITHOUT or BEYOND THE JURY

XIX. SUMMARY JUDGMENT BASICS 33
A. Rule: Summary Judgment
B. Burden of Proof
1. Proof-of-the-Elements SJ
2. Disproof-of-an-Element Motion for SJ
3. Absence-of-Proof Motion for SJ
C. Cases
o Slaven v. City of Salem
 Brother having belt is immaterial
o Duplantis v. Shell Offshore, Inc.
 No question that Shell was not responsible for slippery board
XX. SECOND-GUESSING THE JURY 34
A. Pre- These Motions
B. Rule 50- JMOL
C. Rule 59- New Trial, Altering or Amending a Judgment

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 D. Rule 60- Relief from a Judgment or Order
FINALITY
XXI. CLAIM PRECLUSION (RES JUDICATA) 35
A. Rule
B. Definitions, Transactional vs. Same Evidence
C. Claim Preclusion for Non-Present Parties
D. Cases
o River Park, Inc. v. City of Highland Park
 P should have brought state claims in C1
o Taylor v. Sturgell
 No preclusion through virtual representation so Taylor is not barred
XXII. ISSUE PRECLUSION (COLLATERAL ESTOPPEL) 37
A. Rule
B. Goals
C. Cases
o Felger v. Nichols
 Felger is CE in trying the malpractice claim
o Panniel v. Diaz
 Diaz & RWJ won’t be CE bcuz of public policy
o Cambria v. Jeffrey
 C wins bcuz his contributory negl wasn’t necessary to C1
D. One bite at the apple
E. Non-Mutual Defense Collateral Estoppel
F. Non-Mutual Offensive Collateral Estoppel
G. Difference Between RJ and CE
H. Cases
o Blonder-Tongue Laboratories v. Univ. of Ill. Foundation
 Univ. of Ill. can’t relitigate the patent infringement issue
o Parklane Hosiery Co., Inc. v. Shore
 Parklane is CE bcuz ct already determined that the proxy statement
was false and misleading
XXIII. INTER-SYSTEM PRECLUSION 39
A. Rules, Full Faith and Credit
XXIV. CLASS ACTIONS 40
A. Rule 23 Requirements
B. Cases
o Hansberry v. Lee
 Hansberry/Burke are NOT precluded and C1 was NOT a class action
o Phillips Petroleum Co. v. Shutts
 In a class action in which everyone got notice, forum could exercise
juris over absent class members (Ps)

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SECTION ONE: INTRODUCTION
I. INTRODUCTION
A. Federal Civil Procedure

Procedure Substantive Law

-about the rules that govern inside the court -regulates behavior in the world: contracts, torts,
-where you go to resolve disputes and how you etc.
resolve them -what you can or cannot do out in the world
Civil Criminal
-for damages or injunctions -for jail time/ sentencing
Federal State
-courts of U.S. government -MA state court, NY state court, etc.
-fed procedures are the same in all fed cts -state procedures vary between states

B. Subject Matter Jurisdiction

1. SMJ = the power of a court to hear and decide a case

a) Limited/General
o Fed cts have limited SMJ (they only have power given to them by statute and Art III, Sec. 2
o For state trial cts, there’s typically general SMJ
b) Original/Appellate
o Most original juris is in trial ct
o Supreme Ct also has some original juris [Ambassador, U.S. is a party]
c) Exclusive/Concurrent
o Concurrent juris is when both state and fed cts have juris over a case

C. Sources of Law

1. Federal Law includes

o Constitution
o Congressional statutes
o Treaties (agreements between countries)
o Federal Laws of Civil Procedure (86 rules made by Supreme Ct to govern procedure of
district cts)
2. State Law includes
o State statutes
o Common law (judicial decisions)

D. American Court System Structure

U.S. Supreme Court

-created by Art. III, Sec. 1 of Constitution
-reviews 1-2% of cases presented to it
State Supreme Court Court of Appeals
Court of Appeals Federal District Court
-limited SMJ (only cases allowed by Art. III, Sec. 2
AND congressional statute 28 U.S.C.)
-11 circuits, plus DC, plus federal circuit
Trial Court Magistrates

E. Stages of a Lawsuit
Pleading  Discovery  Pretrial  Trial  Post-Trial  Appeal

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 F. Article III Art III, Sec. 2

1. ARTICLE III, SECTION 1

o Establishes Supreme Court and gives Congress power to create
other federal courts 28 U.S.C.
2. ARTICLE III, SECTION 2
a) Describes what the federal cts have juris over
o Subject Matter Jurisdiction
 Federal Question [Supreme Court has appellate jurisdiction]
-“all Cases, in Law and Equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made, under their Authority”
 (Foreign) Ambassadors [Supreme Court has original jurisdiction]
 Admiralty [appellate]
o Party Structure
 U.S. is a party [original]
 Between states [appellate]
 State and citizen of another state [appellate]
 Citizens of different states [appellate]
 Same-state citizens claiming land grants from different states [appellate]
 U.S. citizen v. alien [appellate]
b) States have concurrent jurisdiction over the above
c) Federal district courts have original jurisdiction over federal question (§1331) and diversity cases
(§1332)

SECTION TWO: SUBJECT MATTER JURISDICTION

II. CONSTITUTIONAL OVERVIEW

A. 9 Important Takeaways
1. Federal cts have limited SMJ
2. Federal cts must have affirmative Congressional authority (28 U.S.C.) and Constitutional authority
(Art. III)
3. Art. III defines the outer limits of federal jurisdictional power
4. Congress cannot extend beyond Art III, Sec 2
5. SMJ defects can be raised at any time
o Even by the P (Cabron)
o Even on appeal (Cabron)
o Even by court hearing the case (Marbury) – [“sua sponte” – on its own authority]

Case 1: Capron v. Van Noorden: Supreme Court, 1804 (S1)

1. Rule: 1) Federal cts have limited SMJ and 2) SMJ defects can be raised at any time
2. Background: Capron (?) sued in fed dist ct and Van Noorden (NC) won in jury verdict. Capron
appealed for writ of error because it wasn’t shown that the court had jurisdiction over the case because it
was unknown where Capron was from.
3. Holding: Case was dismissed (D’s victory revoked) because court didn’t know where P was from and
couldn’t prove they had subject matter jurisdiction (for example, if P was from NC then the fed dist ct
wouldn’t have SMJ because there would be no diversity).

Case 2: Marbury v. Madison: Supreme Court, 1803 (S3)

1. Rule: A court (e.g. Supreme Court) cannot exercise original jurisdiction (like granting a writ of
mandamus) when the Const. only gives it appellate jurisdiction.
2. Background: Pres. Adams intended to appoint Marbury to become a justice of the peace, but the then

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 Secr. of State didn’t deliver the commission. New Pres. Jefferson then told new Secr. of State Madison not
to deliver the commission. Under the Judiciary Act of 1783, Marshall asked the Supreme Court to issue a
writ of mandamus to force Madison to give him the commission.
3. Issue: Does the Supreme Court have the SMJ to issue the writ of mandamus in an original case?
4. Holding: No, the Supreme Court cannot grant the writ of mandamus because it only has appellate
jurisdiction to do that.

III. DIVERSITY JURISDICTION

1. PURPOSE
o To protect out-of-staters, make sure P (and especially D) get a fair trial
2. 28 U.S.C. §1332- DIVERSITY OR CITIZENSHIP; AMOUNT IN CONTROVERSY; COSTS
o 28 U.S.C. §1332(a), Fed cts have original juris in accordance with …
 Complete diversity
i. Required by §1332, not Art. III, Sec. 2 (Tashire)
i. no P from the same state as any D
ii. Ps can be from the same state and Ds can be from the same state
iii. No fed ct original SMJ for minimum diversity
iv. Complete diversity is required by §1332(a)(1) and (a)(2), not by Art. III, Sec. 2
v. Aliens can’t fall on both sides of the “v” unless its covered in §1332(a)(3)
vi. Examples:
o MA v. Fr = SMJ
o Fr v. MA = SMJ
o Fr & UK v. MA = SMJ
o Fr v. UK = no SMJ for diversity
o NY & MA v. NY & CT = no SMJ (minimal diversity)
o Fr v. UK & MA = no SMJ (minimum diversity cuz aliens on both
sides)
o NY & Fr v. MA & UK = SMJ (§1332(a)(3) exception allows SMJ)
o §1332(a)(3) = citizens of a different state + foreigners as
additional parties
 Amount in controversy
i. more than (not equal to) $75,000 for each claim or aggregate (by one P) against a D
ii. amount established at outset (doesn’t matter if they are eventually awarded less than
$75K
iii. if amount in controversy is made in good faith and there’s a possibility the P would
be granted it, then the court typically goes with it
iv. Each P’s claim in aggregate must exceed $75K
 Citizenship
i. “U.S. citizen” in §1332 = 1) U.S. citizen plus 2) domicile
a. Domicile:
i. Legal home (taxation, voting, etc.)
ii. Every person only has one domicile
iii. Minors assume their parent’s domicile until they establish a new one
iv. A person retains their domicile until they establish a new one
v. To change domicile, you have to be present in a place with an intent
to remain indefinitely
vi. Drifter (p49)- may be domiciled in current/drifting state if he’s there
on an open-ended basis
ii. American who moved to a foreign country: U.S. citizen, but NOT a citizen of a state
iii. For foreign citizens, we look at citizenship (nationality)
a. Exception: for an alien with a permanent residence in a state, look to their
domicile to determine citizenship
iv. Residence is your physical location/ home (not necessarily the same as domicile)
v. According to §1332(c), a corporation citizenship of the place

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 a. Place of incorporation AND
b. Principal place of business (PPB)
i. determined by headquarters (nerve center)
1. decided by Supreme Court in Hertz Corp. v. Friend, because
of administrative simplicity:
 HQ is easier to discern than place of “dominant
business activity”
o Minimize decision costs
o Promotes predictability
 HQ can help determine SMJ at the outset

Case 3: Gordon v. Steele: District Court of PA, 1974 (p42)

Header: This case examined domicile incorrectly, according to Goldsmith.
1. Rule: To change domicile, you have to be present in a place with an intent to remain indefinitely
2. Background: Gordon (student in ID) sues PA physicians in PA dist ct for malpractice. D claims lack of
SMJ because they believe Gordon is a PA citizen (license, family, address used by her ID college). Gordon
rebuts by saying she has an ID apartment, she’s not going back to PA, and she’ll find a man in ID.
3. Issue: When is a new domicile established? Specifically, is Gordon domiciled in PA or ID.
4. Holding: D’s motion to dismiss the case is denied because 1) Gordon has an apartment in ID and 2)
she’s a student so she should be emancipated from her parents’ domicile. Ct decides Gordon’s domicile is
ID. This ruling is WRONG because Gordon didn’t have an intent to remain indef, she just had an intent
not to return to PA.

Case 4: Mas v. Perry: 5th Circuit, 1974 (p51)

Header: Mrs. P (MS v. LA) & Mr. P (Fr) v. D (LA)
1. Rule: To change domicile, you have to be present in a place with an intent to remain indefinitely AND
amount in controversy is established at the outset of the case.
2. Background: Mr. and Mrs. Mas filed suit against Mr. Perry, their landlord who spied on them for
months. Mr. and Mrs. Mas each requested $100,000 in damages; Mr. Mas got 5K; Mrs. Mas got 10K.
Appellant (Perry, D) sought case dismissal for lack of (diversity) jurisdiction but was denied. Appellant
also sought dismissal because Mr. Mas received less than the required amount.
3. Holding: Appeals denied, Ps’ victory and awards affirmed. Court DID have SMJ because Mrs. Mas’
domicile was MS, not LA. Although she was a student in LA, she lacked the requisite intention to stay
there. Also, it wouldn’t make sense to give her Mr. Mas’ domicile (Fr) because an American woman
doesn’t have to change her citizenship because she marries an alien (§1489).

Case 5: Hertz Corp. v. Friend: Supreme Court, 2010 (p60)

Header:
1. Rule: A corporation is a citizen of the place 1) in which it is INCORPORATED and 2) where it has its
PRINCIPAL PLACE OF BUSINESS. PPB is determined by HEADQUARTERS.
2. Background: Friend and Nhieu, California citizens and Hertz employees, sought damages for violations
of CA’s wage and hour law. Hertz wanted to take it to federal court, claiming that the Ps and Ds were of
different states (Hertz claimed that its nerve center was in NJ). District Court of Northern District of Cali
applied Ninth Circuit precedent in saying that the “principal place of business” was where most business
activity occurred (in this case, CA), and if no state had more significant activity than another, then the
“nerve center” would be chosen. Accordingly, Hertz’s principal place of business was deemed to be CA
and remanded the case to state court. Hertz appealed. Ninth Circuit affirmed their earlier decision. Hertz
filed a petition for certiorari. Supreme Court granted it.
3. Issue: Where is Hertz’s PPB and does a fed ct have SMJ to hear the case?
4. Holding: Supr Ct decided PPB is based on HQ, not dominant business activity. Since Hertz’ HQ is in
NJ, that’s where their domicile is. Case is remanded because yes, a fed ct has SMJ over this case.

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 Rules (e.g. “do not exceed 55 mph”) Standards (e.g. “drive reasonably”)
*Goldsmith says rules are imperfect tools for
capturing underlying aims
1. outcome specified in advance 1. doesn’t specify the outcome in advance
2. determinate (more predictable) 2. not determinative/ less predictable
3. minimize decision costs (how much time and info
it takes for a decisionmaker to decide)
4. promote judicial restraint (easy to see if a judge is
violating a rule)
5. equal application of law
6. judicial armor against disapproval
7. over and under inclusive

IV. FEDERAL QUESTION JURISDICTION Art III, Sec. 2

A. 28 U.S.C. §1331
“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” Mottley Rule
2
1. ARTICLE III, SECTION 2 §1331
o Constitutional grant of federal question jurisdiction
o “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority”

2. Osborn v. Bank of the United States

o So long as a case involves a non-frivolous issue of federal law, whether raised in the original
complaint or in a defendant’s answer, a federal court may be authorized to hear it.

3. Mottley (1908)
a) RULE 1: Well-Pleaded Complaint [from P] Rule
o Court looks only to the P’s claim in determining whether a case arises under federal law
o Holmes Test is rule that a case “arises” under the law that creates the cause of action
 If federal law creates the cause of action that the P seeks to enforce, then the fed ct has
juris. If it’s a state law cause of action, then no fed ct SMJ
 Federal question juris may not be based on a counterclaim
 Benefits of Holmes Test
1st. Clear (enough) rule that covers most situations
2nd. Saved court time and litigation expenses
3rd. Court doesn’t have to wait for D’s answer to determine SMJ
o Narrower than Osborn

4. Grable (2005)
a) RULE 2: Important federal issue (even arising out of a state law claim)
b) Still based on P’s claim like in Mottley
o “Smith exception” to Holmes Test: a state-law claim can give rise to a federal-question
jurisdiction so long as it appears from the complaint that the right to relief depends upon the
construction or application of federal law
o Considerations
 importance of the federal issue,
 whether federal jurisdiction would disrupt the allocation of business between state and
federal courts,
 the impact on the federal courts’ docket, and
 evidence of congressional intent

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 Case 6: Louisville & Nashville Railroad Co. v. Mottley: Supreme Court, 1908 (p92)
Header:
1. Rule: Well-Pleaded Complaint Rule: the court looks only to the plaintiff’s claim in determining whether
a case arises under federal law (Rule 1)
2. Background: Mottleys sued in dist ct because L&N supposedly broke contract and violated 5 th Amend
when it stopped giving them annual passes. Mottleys anticipated D’s responses in order to incorporate a
fed issue in their claim.
3. Issue: Is this a federal law question, meaning that fed dist ct would have original juris over the case?
4. Holding: Fed dist ct has no juris here, because this is not a federal law question. A suit only “arises
under” the Constitution and laws of the U.S. when the P’s cause of action shows is based upon the
Const/laws. It’s not sufficient for a P to anticipate some Constitution-related defense to his cause of action.

Case 7: Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing: Supreme Court, 2005
(p108)
Header:
1. Rule: Fed ct can hear a case under state law if it’s an important fed issue that won’t shift the fed/st
balance (Rule 2)
2. Background: The IRS seized Grable’s property and eventually sold it to Darue. 26 U.S.C. §6335
requires that a written notice be personally given to a landowner before seizure, and Grable went to state
court to file quiet title because his letter was mailed, not delivered in person. Darue removed the case to
Federal District Court, which found that the case posed a significant federal law question. Summary
judgment to Darue because the delivery of the notice was fine. Court of Appeals confirmed, agreeing that
the title claim had a federal law question and that Darue won.
3. Issue: Does fed dist ct have juris over this case?
4. Holding: Yes, there is federal juris over Grable’s quiet title action. Reasoning: 1) Smith v. Kansas City
Title & Trust Co. decided a state law claim could give rise to a federal question juris when the right to relief
depended on fed law (in this case, whether or not Grable received notification in accordance with federal
law 26 U.S.C. §6335), 2) govt has strong interest in a delinquent tax case, and 3) this is rare enough that it
won’t upset the fed/st balance.

V. REMOVAL JURISDICTION (not really discussed in class)

 §1441: “Any civil action brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or (Ds), to the district court of the place where such
action is pending”
o If a case is removable, a D must remove it within 30 days of receiving the complaint
o Purpose is to allow Ds the same opportunity for a federal forum
o Jurisdiction is determined at date of filing, so if P dropped the federal law claim after case began
and only state law claims remained, fed. dist. ct. could decide to remand OR keep (p128)
o Exception: If one of the Ds is from the forum state, then the case can’t be removed for diversity
because the purpose of diversity isn’t being primed.

Case 8: Amitts v. Amoco: 5th Circuit, 1995 (p121)

Header:
1. Rule: Case can’t be removed to fed ct unless the ct has original juris to hear that case
2. Background: Appellees/Ps/Amitts filed in Texas state district cover to recover money damages for
injury to property caused by oil companies. Appellants/Ds/Amoco moved to fed. dist. ct. since Amitts
claimed Ds violated state AND fed. law. Amoco asked for a more definite statement (regarding the
charges) from Amitts. District Ct. denied Amoco’s request for a more definite statement, but Amitts
amended their complaint, removing ALL references to federal law, and the court still ruled in favor of
Amoco. Amoco appealed from 1) injunction to complete environmental study and 2) charge of $650K.
3. Issue: Did the federal court have jurisdiction to hear this case in the first place?
4. Holding: No, district court lacks SMJ (this wasn’t a federal question case). Amitts failed to specify
which federal law had been violated by Amoco

12
VI. SUBJECT MATTER JURISDICTION IN THE SUPREME COURT
Case 9: Mims v. Arrow Financial Services: Petition for Certiorari, 1974 (S145) (not given much attention in
class)
Header:
1. Rule: -
2. Background:
 Petitioner (who believes Arrow violated the TCPA with their excessive telemarketing) wants a writ of
certiorari
 Telephone Consumer Protection Act of 1991
o 47 U.S.C. §227(b)(3): Private right of action
 “A person or entity may if otherwise permitted by the laws of a court of a State, bring in
an appropriate court of that State” … various private actions (S157)
o 47 U.S.C. §227(f)(2): Exclusive jurisdiction of Federal Courts
 The district court of the United States … shall have exclusive jurisdiction over all civil
actions brought [by state attorneys general or designated state officials or agencies]
(S157)
 And remember 28 U.S.C. §1331 grants SMJ to federal district courts for federal question cases
 Mims sued Arrow in federal district court and the court dismissed the TCPA-related claims for lack of
SMJ. 11th Circuit affirmed. Both courts looked to the precedent of Nicholson (11th Cir. 1998) (S159)
3. Issue: Does fed question juris exist over a cause of action provided by TCPA?
4. Holding: N/A
*Goldsmith supports Respondent. He thinks that there’s no private right of action in federal court
because 1) the rule is that it must be specified for federal court to have jurisdiction and 2) the
section entitled “Private Right of Action” only references state jurisdiction.
5. Arguments:
Petitioner (03/30/11)  Respondent (05/27/11)  Petitioner (06/07/11)
Decision below is wrong, grant a
writ
1. Circuits are confused, recurring Landsman is a better vehicle, no R: No reason to wait
issue of national importance, ideal conflict between the decision below
vehicle and this Court’s decision in Tafflin,
Brill is different from this
2. Statutory Conflict, silent to fed
juris
3. “May” does not mean “must”

4. Conflicts with Brewer and Grable
5. Those differences in language
reveal that Congress did not intend
to grant exclusive state juris over
private rights of actions
6. Majority is wrong that §227(b)(3)
is superfluous unless state juris is
exclusive
R: Doesn’t conflict with Brewer or
Grable
R: The fact that fed court explicitly
got exclusive juris in §227(f)(2) and
not in §227(b)(3) means that fed.
juris is not intended in §227(b)(3),
no addressment of venue or service
of process here
R: State courts would have already
had juris
R: Conflicts with fundamental
principles of decisions in Brewer
and Grable
R: Special provisions (special venue
and service of process) aren’t needed
for ordinary actions and that’s why
they weren’t included.
R: Not superfluous

7. Legislative History, Sen. Hollings R: Congress could have changed the R: no reason to think Congress
lang. It purposely didn’t. endorsed either view of who gets
juris

13
SECTION THREE: PERSONAL JURISDICTION

VII. HISTORICAL DEVELOPMENT

A. Personal Jurisdiction- authority to require a D to appear in the forum and defend the action there
 power of a court over a D geographically
 Notice (did the D have enough knowledge about the charge)
IN PERSONAM IN REM JURISDICTION QUASI IN REM
JURISDICTION
-Jurisdiction over the “person” (can -No jurisdiction over the D personally, -Same as in rem, but it’s when
require D to personally appear and but over the D’s attached property you use the property as a way of
defend the case in the state where getting the D to come to the
suit was brought) forum state in order to serve
-Judgment against D can be -Satisfied through D’s attached property, them. This is based on the
satisfied from any assets the D such as real estate or bank accounts assumption that a person pays
owns (court can sell this to satisfy claim) attention to their property in
-Recognized across states, so an in -Not recognized across states another state.
personam judgment can be taken to
another state and enforced there to
get the D’s assets
-Plaintiffs prefer to establish in
personam jurisdiction

B. Due Process Clause (Amendment 14)

 “… nor shall any State deprive any person of life, liberty, or property, without due process of law”
C. Full Faith and Credit Clause (Article IV)
 “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State.” (i.e. a judgment in State 1 should be upheld by State 2)
D. Evolution of Personal Jurisdiction Determinants (see printed diagram)
a. Pennoyer  presence is necessary for a D to be brought under forum state’s personal juris
b. Hess  [implied] consent, not necessarily presence, is sufficient to give forum state personal juris
i. The change from “presence is sufficient” was due to the increase in interstate
transactions/ mobility. It wouldn’t be fair to force a P to go to D’s state to sue them for
something D committed in the forum state.
c. Shoe  Personal juris is based on the D’s contact with the forum state
i. Implied consent is a legal fiction (no one is having out-of-state entrants sign a waiver
when they enter a new state to consent to that state’s jurisdiction). Presence is also
inadequate because of the changing times and the increased mobility.
ii. Contact principle based on fairness/reasonableness (Due Process Clause)
iii. Benefits/Burden comparison also taken into consideration
d. Questions to ask to determine existence of personal jurisdiction
1. Does the long-arm statute authorize out-of-state service of process?
 Enumerated L/A (e.g., PJ only in a specific situation, like if D has an office in-state
or if D committed a tort in-state)
 Un-enumerated L/A (e.g., Ct. has PJ to the full extent permitted by the Constitution)
2. Does the cause of action arise out of or relate to the D’s contacts with the forum state?
 Look to “but for” or “substantive elements” test
 If yes, there’s specific jurisdiction
i. Minimum contact
ii. Reasonableness
 If no, there’s general jurisdiction

14
 Case 10: Pennoyer v. Neff: Supreme Court, 1878 (p148)
1. Rule: Person must be physically present in the forum state for that state to have juris over them.
2. Background: Mitchell sued Neff for legal fees around 1865. Neff wasn’t in Oregon, so Mitchell
provided notice by publication (he couldn’t have gone to CA to serve Neff because that’s inappropriate
expansion of state power). Neff didn’t respond, so Court issued default judgment for Mitchell. Mitchell
got a writ of execution to auction Neff’s land, Mitchell bought the land, was given a sheriff’s deed, and
then sold the land to Pennoyer. In 1874, Neff returned to Oregon and found Pennoyer on his land, sued
Pennoyer in fed court claiming that Pennoyer hadn’t acquired good title and the Oregon court never
acquired juris over Neff or his property. Neff won and Pennoyer appealed
3. Issue: Can a D be brought under the jurisdiction of a forum state when they are not present?
4. Holding: Neff gets his property back because the OR court had no jurisdiction over Neff in the first
place so the Mitchell v. Neff case was invalid. The Mitchell v. Neff case was supposedly in personam, but
it couldn’t have been because Neff wasn’t present and the notice wasn’t personal. It also couldn’t have
been in rem because the case was about a contract, not about property. It couldn’t have been quasi in rem
for the same reason, and also because the property wasn’t attached. The Court had no juris to act on Neff’s
property.

Case 11: Hess v. Pawloski: Supreme Court, 1927 (p159)

1. Rule: [Implied] consent, not necessarily presence, is sufficient to give forum state personal juris to
forum state
2. Background: Pawloski (MA) sued Hess (PA) in MA after auto accident. Hess wanted 12(b)(2) motion.
3. Issue: Can a person be brought under a forum state’s personal juris if they have no connection to that
state?
4. Holding: MA said that when you enter MA, you implicitly consent to its rules (upon entering the state,
the entrant consents to having a registrar act as an agent who can receive summons on his or her behalf).
By getting in an accident in MA, Hess placed himself under MA personal juris. The court DOES have
personal juris here.

Case 12: International Shoe Co. v. Washington: Supreme Court, 1945 (p162)
1. Rule: Personal juris is based on 1) the D’s contact with the forum state and 2) reasonableness factors
2. Background: International Shoe was sued by WA state to pay state unemployment compensation fund.
Shoe had 11-13 salesmen who lived, solicited, and displayed merchandise in WA, but Shoe didn’t do any
actual business there (they didn’t even give the salesmen full pairs of shoes to display). Notice was given
in person to salesmen and by certified mail to Shoe’s MO HQ.
3. Issue: Does WA have personal juris over Shoe, a company whose HQ is in MO and who has little
relationship with WA?
4. Holding: Shoe’s operation in WA established a sufficient minimum contact for WA to have personal
juris. Shoe received benefits from WA, so they also have an obligation to it.

VIII. SPECIFIC JURISDICTION

1. SPECIFIC JURISDICTION
a) D’s Minimum Contact with forum state
o WWVW: mere foreseeability is not enough, a D must purposefully avail him/herself to the
forum state
o Asahi: simply entering a stream of commerce is insufficient to establish minimum contact; D
must purposefully enter stream of commerce with intention of reaching forum state.
o Note the importance of intention in both of the above cases.
b) Reasonableness
o WWVW: four/five reasonableness factors
i. P’s interest in obtaining convenient and efficient relief
ii. Forum state’s interest in adjudicating
iii. Convenience to D
iv. Interstate judicial system’s interest in obtaining the most efficient resolution
v. *Shared interest in furthering social policies [unimportant to Goldsmith]

15
 2. CONTRACTS
a) Considerations in determining minimum contact for contractual relationships (from Burger King)
o Prior negotiations,
o contemplated future consequences,
o terms of the contract, and
o parties’ actual course of dealing must be evaluated in determining whether the D purposefully
established minimum contacts within the forum (p204).

3. CHOICE OF LAW CLAUSE

a) Determines which state’s laws will apply
b) Choice of Law clause doesn’t necessarily give personal juris to the state identified in the contract,
one needs a Choice of Forum clause for that.

Case 13: World-Wide Volkswagen v. Woodson: Supreme Court, 1980 (p183)

*WWV is petitioner
1. Rule: Mere foreseeability is not enough to establish minimum contact, D must purposefully avail
him/herself to forum state.
2. Background: In moving to Arizona, the Robinsons had a car accident in OK that led to burns. They
sued Seaway and World-Wide. World-Wide does no business with or in OK. District Ct in OK denied
petitioner’s motion for reconsideration (/in personam jurisdiction is fine). Petitioners sought a writ of
prohibition to deny District Ct from exercising in personam juris over them and Supr Ct of OK denied it
because it’s “reasonable to infer” that the petitioners derived income from OK. Adequate notice was given
(p184)
3. Issue: Whether, consistent with the Due Process Clause of the 14 th Amend, an OK court may exercise in
personam jurisdiction over corporate Ds, when the Ds’ only connection with OK is the fact that an
automobile sold in New York to New York residents became involved in an accident in OK.
4. Holding (White): World-Wide has insufficient contact in OK because they don’t do business there, so
OK doesn’t have personal juris. It’s not enough that it’s foreseeable that one of its cars would probably
make its way to OK; World-Wide did not purposefully avail itself to OK. Besides, any income that was
gained from OK was insignificant in establishing minimum contact.
5. Dissent (Brennan): There are other reasonableness factors to be considered – not just minimum
contact: the forum State has an interest in the litigation, the litigation is connected to the forum, and the
burden of defending isn’t unreasonable so Ds should respond in OK/ OK should have personal juris over
World-Wide. Also, World-Wide wasn’t unconnected to OK (their car was there) and there are
contacts/income from highways, service depts., etc.

Case 14: Burger King v. Rudzewicz: Supreme Court, 1985 (p202)

1. Rule: There are factors to determine minimum contacts in a contractual relationship.
2. Background: Michigan resident (Rud) breached franchise agreement against Burger King (FL corp.) by
failing to make payments and continuing to operate the franchise. BK sued for breach of contract and
copyright infringement. Franchisees commit to monthly payments and to submit to national organization’s
regulation and the BK contract has a long arm statute that extends juris over anyone who breaches it. In his
disagreement with partner MacShara, Rud negotiated with Miami headquarters. Court of Appeals said it
offended due process for Rud to be sued in FL
3. Issue: When can a contractual relationship give rise to personal jurisdiction in a distant forum?

Decision (Brennan, J.)- Ct of Appeals reversed and case remanded/ FL Dissent (Stevens, J.)- It’s unfair
has personal juris over Rud for Rud to be sued in FL

1. Rud established a substantial and continuing relationship with BK’s Miami

headquarters, 2. Rud received fair notice from the contract, and 3. Rud failed
to demonstrate how it would be unfair for trial to commence in FL.

16
-Rud caused foreseeable injuries to Burger King by not paying and by -Appellee (Rud) had no place of
continuing to use the BK trademark and confidential business info (p204) business in FL, had no employees
there, and didn’t have a license to
do business there (p206)
-Choice of Law clause: franchise agreement stated that it should be governed -Trial in FL severely impairs Rud’s
under Florida law (p205) ability to get Michigan witnesses
who may be essential to his case
-The agreement would be insufficient alone, but when combined with Rud’s (p207)
20-year relationship with BK, it reinforces his deliberate affiliation with the
forum state and the reasonable foreseeability of litigation there (p205)

Factors to consider in establishing minimum contacts:

1.Prior negotiations,
2. contemplated future consequences,
3. terms of the contract, and
4. parties’ actual course of dealing must be evaluated in determining whether
the D purposefully established minimum contacts within the forum (p204).
-Rud lacked fair notice that the
-Ct of Appeals said Rud had been duped by BK and lacked fair notice, but distant corp. which insulated itself
Rud was very involved in all negotiations and was an experienced account, so from direct dealings with him
he knew what was up (p205) would later seek juris over him in
FL (p206)

Case 15: Asahi Metal Industry Co. v. Superior Court: Supreme Court, 1987 (p212) - *4-4-1 split
1. Rule: Simply entering a stream of commerce is insufficient to establish minimum contact; D must
purposefully enter stream of commerce with intention of reaching forum state.
2. Background: Zurcher’s defective cycle caused crash, killing his wife. Zurcher sued Cheng Shin, the
Taiwanese manufacturer of the tube. Eventually settled and dismissed. Cheng Shin had an indemnity
action against Asahi. This all takes place in the Superior Court of CA. Asahi moved to quash Cheng
Shin’s service of summons bcuz trial in CA violated the 14 th Amend due process. Superior Court denied
motion to quash saying “Asahi obviously does business on an int’l scale” and it’s not unreasonable for
them to defend defect claims on an international scale (p213). Court of Appeal of CA disagreed and issued
peremptory writ of mandate commanding Superior Ct to quash because it was unreasonable to force Asahi
into CA just bcuz they could reasonably foresee their product in CA. Supreme Court of CA reversed the
writ because although Asahi didn’t personally do much in CA, it intentionally placed its products in the
stream of commerce and it knew some products were going to CA. This doesn’t violate the Due Process
Clause (p214).

SUPERIOR COURT CT. OF APPEALS SUPREME CT. OF CA U.S. SUPREME COURT

Asahi can be joined No, it can’t Yes, it can No, CA doesn’t have PJ

3. Holding: Minimum contact is not established (Asahi has no offices, does no business, doesn’t advertise,
and doesn’t control distribution system in/to CA) so CA doesn’t have personal juris and the case is
remanded. Also, it doesn’t constitute “fair play and substantial justice” / would not be reasonable, in
accordance with Due Process Clause. It’s unreasonable because burden on D is severe, P’s interest in CA
is slight, CA’s interest in this litigation is low (Japanese company sells product and ships to Taiwanese
company), and one should take great care in extending juris over international bodies.
4. Dissent: Brennan says Asahi entered the stream of commerce, knew its product was going to CA, and
benefitted from it economically, so it is fair for CA to have personal juris over Asahi. Stevens says that it
doesn’t even matter if minimum contacts were established because all the justices agreed that CA jurs here
was unreasonable.

MAJORITY (O’CONNOR) = 4 DISSENT (BRENNAN) = 4 DISSENT (STEVENS) = 1

-no minimum contacts -minimum contacts satisfied -no reason to discuss minimum
-unreasonable -unreasonable contacts because it’s unreasonable

17
IX. GENERAL JURISDICTION
A. Domicile/Home- Milliken
B. Place of Incorporation
C. Principal Place of Business (HQ)- Perkins
D. Consent
E. Presence- Burnham
F. Continuous & Systematic Contacts- Helicopteros

Case 16: Helicopteros Nacionales de Colombia, S.A. v. Hall: Supreme Court, 1984 (p245)
Header: General Jurisdiction Continuous and Systematic Contacts
1. Rule: When the c/a does not arise out of/ relate to the forum state, D must have “continuous and
systematic” contacts with the forum state. ALSO, if the parties don’t raise specific juris then they waive it.
2. Background: 4 Americans were killed when Helicol’s helicopter crashed in Peru. The Americans were
working for a Peruvian company in Peru. Hall et. al. brought a wrongful death case in a TX District Ct.
*Ps only focused on general juris, but they could have gotten specific juris if they focused on the
pilot training in Texas.
3. Holding (Blackmun): There’s no general jurisdiction over Helicopteros in Texas because its contacts
with Texas weren’t “continuous and systematic.”
-Helicol’s activities in Texas: CEO went for negotiations, helicopters bought from there, pilots
trained there, and payments received from Texas bank.
-Perkins: contact was continuous and systematic because Filipino Pres. had office in Ohio
-Rosenburg: no general juris because the regular purchases with the NY wholesaler weren’t c&s
3. Dissent (Brennan): There ARE sufficient minimum contacts.

Case 17: Burnham v. Superior Court: Supreme Court, 1990 (p279)

Header: Tag Jurisdiction/ Transient Jurisdiction/ Jurisdiction based on Presence
1. Rule: If you’re tagged, then you’re under personal jurisdiction (because presence always establishes PJ)
2. Background: Mr. Burnham visited his children in CA and was served by his (ex)wife on the visit. He
then returned home to NJ and moved to quash the service of process due to his lack of “minimum contacts”
in CA.
3. Issue: Do we still look to contacts when D is present in forum and gets served?
-Burnham believes that apart from having continuous and systematic contact with the forum
(general juris), the c/a would have to arise from or relate to contact with the forum (specific juris)
for there to be PJ over him, and he argues that he doesn’t meet minimum contacts in CA.
4. Holding (Scalia): Shaffer 1) was limited to quasi-in-rem and dealt with out-of-state Ds and 2) Shaffer
didn’t override Pennoyer so presence still establishes PJ (just as presence as always established PJ)
-Shaffer doesn’t say that ALL present/in-personam cases need to satisfy the “minimum contacts”
of Shoe, but that quasi-in-rem specifically needs to satisfy Shoe, because by its nature, it violates
the Due Process Clause and is unfair without the minimum contacts.
-In Shaffer, PJ wasn’t allowed over Ds who had been brought into DE quasi-in-rem-style because
their stocks were frozen.
5. Concurring in Judgment, but Dissent (White): common sense says tag/transcient juris is OK
6. Concurring in Judgment, but Dissent (Brennan): tag/transcient juris is fair under Due Process Clause
7. Concurring in Judgment, but Dissent (Stevens): concerned with unnecessarily broad reach of other
opinions

X. NOTICE
1. SERVICE OF PROCESS
a) Service on the D must be both constitutionally sufficient and authorized by a statute or rule of the
court system in which the case is filed.
b) You cannot just use any method you like as long as it meets due process standards.

2. FEDERAL RULES OF CIVIL PROCEDURE, RULE 4: SUMMONS

18
 a) Rule 4(c) - SERVICE
o 4(c)(1)- the complaint and a summons must be served together on the D
 They must be served after the complaint is filed
 Court must dismiss an action if service is not made on the D within 120 days after filing
(Rule 4(m))
o 4(c)(2)- “Any person who is at least 18 years old and not a party may serve a summons and
complaint.”
 Plaintiff does not serve the summons
b) Rule 4(e) – SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE U.S.
o 4(e)(1)- follow service rules of the venue
 Process server may follow the rules for service of process of the state where the federal
court sits or of the state in which service of process is made.
o 4(e)(2)- process server may …
 4(e)(2)(a)- deliver copy of the summons and the complaint to the D personally (“in-hand
service”)
 4(e)(2)(b)- leave a copy of each at the D’s “dwelling or usual place of abode with
someone of suitable age and discretion who resides there”
-A visitor probably doesn’t count
 4(e)(2)(c)- deliver a copy of each to an agent of the D authorized by appointment or by
law to receive service of process

Case 18: Mullane v. Central Hanover Bank & Trust Co.: Supreme Court, 1950 (p321)

1. Rule: Notice must be of such nature as reasonably to convey the required information, and it must afford
a reasonable time for those interested to make their appearance.

Process which is a mere gesture is not due process. The means employed in process of service must be
such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.

The best method of notice should be used in accordance with actual delivery/notice and the cost of
accomplishing it.

2. Background: The Bank was required by the New York Banking Law §100-c(12) [requiring notice by
publication at least once a week for four successive weeks in a newspaper chosen by court, but without the
interested parties named] to provide notice of the account settlement procedure to those with an interest in
the fund. This was important because if a bank approved the accounts of a common trust fund, anyone with
an interest in the trust would be barred from suing the Bank for mismanagement. Thus, the accounting
could deprive a beneficiary of property - his/her right to sue the Bank for misfeasance. Hence, DP Clause
(14th Amend) requires adequate notice to those with an interest in the common trust fund.
-113 trusts and a gross capital of nearly $3 million.
-NY Court of Appeals overruled objections that that §100-c(12) conflicted with 14th Amend.
3. Holding: Judgment reversed and case remanded, because the notice of judicial settlement of accounts
required by the New York Banking Law §100-c(12) is incompatible with the requirements of the 14th
Amend. Specific types of notification for different groups:
o Personal service (by mail) for known beneficiaries for whom the bank had addresses in its files.
o The bank had already mailed people when they first joined the common trust (p323), so it
wouldn’t be a burden to notify by mail.
o Notice by publication for those whose identification and location would impose a heavy burden on
the bank. That burden negates the need for personal service.
o The best method of notice must be used, so notice by publication wasn’t sufficient for people
whose information was in the files because notice by mail would be more effective and wouldn’t
be too costly
o Not necessary in this case that every single person receive notification, because the individual
interests were shared by other beneficiaries, and any beneficiaries acting would be acting to the
benefit of all.

19
SCTION FOUR: DISCOVERY

XI. DISCOVERY
A. OVERVIEW
1. PURPOSES
a) Fact-finding
b) Preventing surprises at trial
c) Minimizing trials (since discovery leads to a lot of settling and summary judgments)
o As a general matter judge=law and juries=fact, so if there’s no dispute about facts, there’s no
reason for a case to continue to a jury
o If there’s a dispute about facts, then there cannot be a summary judgment
B. RULE 26(B)(1): DISCOVERY SCOPE AND LIMITS
1. Includes evidence both admissible and inadmissible at trial
2. The info sought just has to appear to reasonable lead to admissible evidence
3. Rule 26(b)(5)(a): Privilege
a) you have to make a specific claim that something is privileged info
b) A privilege protects against 1) admission at trial AND 2) discovery
c) Privileged Information = a communication made in confidence during the course and furtherance
of a protected relationship (lawyer-client, doctor-patient, etc.)
o Attorney-client privileges can only be invoked for communications giving legal advice
o Privilege applies to the communication itself, not the facts.
4. Rule 26(b)(3): Trial Preparation: Materials
a) (A) Ordinarily, a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative
b) (ii) discoverer must show “substantial need for the materials to prepare its case” and that it
“cannot, without undue harship, obtain [the] substantial equivalent [of the work product] by other
means.”
**A lawyer could still get to those facts via deposition
5. Rule 30: Depositions
a) Some depositions are just for discovery; but ones that are used in trial are hearsay
b) Lawyers have to give notice for a deposition (e.g. subpoena)
6. Rule 33: Interrogatories
a) Can only go to parties (unlike depositions)
b) Up to 25
c) Relatively inexpensive, but less effective than depositions because they’re drafted by lawyers who
try to make them unhelpful
7. Rule 34: Request for Documents
8. Rule 37: Compel Disclosure

SECTION FIVE: VENUE

XII. STATUTORY VENUE

1. OVERVIEW
a) Court must have SMJ, PJ, and venue over parties/claims
o Venue and PJ can be waived
b) Venue is based on convenience of parties and on the Ds contacts with the forum (like PJ)
c) More than one venue may be proper
d) 28 U.S.C. § 1391 provides for venue in
o (1) a judicial district where any D resides, if all Ds reside in the same State, and
 Domicile of D(s)

20
 o (2) a judicial distinct in which a substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of property that is the subject of the action, is situated
 Events/property of case
o (3) says there’s venue in a judicial district that has PJ over D if NO other venue can be
determined by (1) or (2)
 Corporation “resides” in the place where it would be subject to PJ

Case 19: Uffner v. La Reunion Francaise: 1st Circuit, 2001 (p365)

Header: -
1. Rule: As long as what happened in the forum was an important part of the “sequence of events” or
“historical predicates” giving rise to the case, venue is proper in that forum. ALSO, a court cannot raise
issues of PJ – the only the parties can.
2. Background: Appellant, Daniel Uffner, a resident of the Virgin Islands, obtained an insurance policy for
his yacht. The yacht caught fire and sank in Puerto Rican waters. Uffner filed a claim with Appellees
through his insurance broker demanding payment for the loss. Uffner’s claim was denied because of the
absence of a “current out-of-water survey.” Uffner then sued and claimed damages for a bad-faith denial of
an insurance claim. Appellees filed motions to dismiss based on 1) lack of SMJ, 2) failure to state a claim
upon which relief can be granted, and 3) improper venue. District court dismissed Uffner’s complaint
because of no personal juris and improper venue.
3. Issue: What determines a “substantial” venue (§1391(2))?
4. Holding: Judgment of district court reversed and case remanded, because
 Puerto Rico is a proper venue because the ship sank there and that’s the event that started the
whole case
 Puerto Rico wouldn’t be a burden to Ds/Appellees because they already said they’d travel to the
Caribbean.
 No forum-selection cause in the contract

XIII. TRANSFER AND FORUM NON CONVENIENS (FNC)

1. STATUTORY BASIS
Cases Filed in the Wrong Venue Cases Filed in the Correct Venue

Motions to Transfer 28 U.S.C. §1406 28 U.S.C. §1404

28 U.S.C. §1406 and Federal Rule Forum non conveniens (a common
Motions to Dismiss
12(b)(3) law doctrine)

*Court can transfer a case even when it lacks personal jurisdiction over the defendant.

a) 28 U.S.C. § 1404 TRANSFER FACTORS (from Gulf Oil Corp. v. Gilbert)

o Private Interest Factors
 P’s choice of forum
 D’s choice of forum
 whether the claim arose elsewhere
 convenience of the parties
 convenience of the witness(es)
 ease of access to sources of proof
o Public Interest Factors
 transferee’s familiarity with the governing laws
 relative congestion of the potential transferee and transferor courts
 local interest in deciding local controversies at home

b) 28 U.S.C. § 1406
o Transfer (instead of dismissal) when it is in the “interests of justice” (avoiding time and
expense of re-filing).

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 c) FORUM NON CONVENIENS (FNC)
o Like in §1404 transfers, court analyzes public and private interests like in Gilbert’s
o Court’s are more reluctant to grant FNC dismissal than a §1404 transfer
o Dismissal Locations
 Federal court  abroad
 State court  1) abroad or 2) diff state court in same state
o Goldsmith’s 5-step process (as exhibited in his Piper analysis)
1. Alternate Available Forum? (must be a forum with SMJ and PJ)
2. Presumption in favor of P’s choice of forum; weakened for aliens
3. Change in substantive law is irrelevant …
a. Because America’s courts are almost always preferable (we have
generous discovery and substantive law)
4. … unless there would be no remedy at all elsewhere
5. Balance public and private factors (reviewed for abuse of discretion)

Case 20: MacMunn v. Eli Lilly: D.C. Superior Court, 1990 (p378)
1. Rule: In granting §1404 transfers, consider public and private interest factors.
2. Background: Ps mother took DES and P got malformations, infertility, mental pain, medical expenses,
etc. Ps complained in DC Superior Court and Ds filed motion to transfer to District of MA.
3. Holding: District of MA is appropriate venue/ §1404 transfer allowed.

Case 21: Piper Aircraft Company v. Reyno: Supreme Court, 1981 (p385)
1. Rule: 1. The possibility of an unfavorable change in law for the P does not bar dismissal on the grounds
of FNC AND 2. Gilbert considerations apply in § 1404 transfers AND FNC dismissals
2. Background: Aircraft in crashed in Scotland and Scottish passengers were killed. Aircraft (PA),
propellers (OH), plane registered in Great Brit, Scottish air taxi service, wreckage in Engl. Reyno
(administratrix) filed action against Piper and Hartzell in the US because the laws would be favorable to her
than in Scotland. CA state ct  § 1441 removal to CA fed ct for diversity  § 1404 transfer to PA fed ct
 FNC to Scotland.
3. Issue: U.S. Ct of Appeals said 1) Dist Ct abused its discretion in using Gilbert analysis (because the
private and public interests in this case are insuff to move to Scotland) and 2) dismissal is never appropriate
where the law of the alternative forum is less favorable to the P.
4. Holding: Judgment of Court of Appeals is reversed because
 FNC dismissal may not be barred solely because of the possibility of an unfavorable change in law
 Gilbert’s public and private interests test show that dismissal to Scotland is valid

SECTION SIX: PLEADING

XIV. BASIC PLEADINGS

1. PLEADING (RULE 8(A))
a) Pleading: a paper containing factual assertions (allegations) that support jurisdiction and legal
claims in a civil lawsuit
b) Pleadings are about allegations, claims, and defenses; motions are requests to the court for
something
c) A complaint (P’s first pleading) in federal court must contain
1) a statement of SMJ
2) a short and plain statement of a claim showing that the pleader is entitled to relief under any
applicable law
3) and a demand for the relief sought (prayer)
d) Purpose

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 o Giving notice
o Stating facts
o Narrowing issues for litigation
o Reducing frivolous and costly cases
e) Rules 7-11 deal with pleading
o Rule 8(b) Defenses; Admission and Denials
 Short and plain statement for each claim (“admitted” and “denied” work)
o Rule 8(c) Avoidances and Affirmative Defenses
 List of 18 that should be stated in pleading if they are to be brought
o Rule 8(d)- a party can plead inconsistently (the jury just can’t find for both claims) (p424).
f) Rule 9(b) Heightened Pleading
o for fraud, mistake, false/misleading statements, and conditions of mind
o requires more specific factual detail
g) Conley Rule (Notice Pleading)- there should be SOME facts
o The Rules just require “a short and plain statement of the claim” that will give the D fair
notice of what the P’s claim is and the grounds upon which it rests
o This is a very relaxed requirement
 Don’t dismiss for 12(b)(6) unless it appears undoubtedly that P can prove no set of facts
in support of P’s claim
h) Twombly-Iqbal Plausible Pleading Rule
o Are the allegations well-pleaded? (based in sufficient facts, not legal conclusions or “bare-
bone recitations of the elements of the claim”)
o Are the well-pleaded allegations plausible? [and not just possible]
o This requirement was really strict, so judges don’t follow it completely

2. Twombly-Iqbal
a) Iqbal doesn’t mean what it says in practice
b) It’s pretty disfavored by courts now because it’s too strict
o 1st Problem: Not very consistent with Rule 12(b)(6)’s requirement of inferring things in favor
of Ps
o 2nd Problem: How can the necessary facts be included in the complaint before discovery?
o 3rd Problem: More unpredictability in civil rights cases because judges are being asked to fill
in information from their own experiences

3. GOLDSMITH’S BOTTOM LINE:

a) You have to plead SOME facts in your claim. Rule 8(a)(2) requires it. Conley makes it seem like
you don’t have to plead any facts/ that legal conclusions are sufficient. That’s wrong, and that’s
why Conley was overruled.
b) Doe v. Smith shows an accurate example of how courts typically evaluate a pleading.

Case 22: Dioguardi v. Durning: 2nd Circuit, 1944 (p417)

1. Rule: Conley Rule: a short and plain statement of a claim showing theat the pleader is entitled to relief
under any applicable law (whether or not that law has been identified in the complaint) is sufficient to
satisfy Rule 8(a).
2. Background: Italian immigrant Dioguardi filed a complaint (without a lawyer) against the Collector of
Customs to get paid for his confiscated tonics. It was dismissed because if failed to state a sufficient cause
of action. He amended and it was dismissed again, so then he appealed. Dioguardi had paid $5000 for the
imported tonics and then they were sold at public auction (and some “disappeared”).
3. Issue: Did Dioguardi’s complaint sufficiently state a cause of action?
4. Holding: Yes, Dioguardi stated numerous potential causes of action, so the judgment is reversed and
action is remanded, because
 All that’s needed is a short and plain statement showing that he’s entitled to relief

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Case 23: Doe v. Smith: 7th Circuit, 2005 (p426)
Header: This is what federal courts generally do
1. Rule: You just have to give enough facts to show that you’re entitled to relief AND
A P in a federal court is not required to plead factual allegations respecting each and every element of a
theory of liability under an applicable law (“elements-pleading” or “pleading a prima facie claim).
2. Background: Smith secretly recorded sex with Doe, then published it at school. P claims interception of
info (18 U.S.C. §2520), eavesdropping, intentional infliction of emotional distress, invasion of privacy, and
battery. Doe brought case in district court because of potential federal question juris. District ct dismissed
suit because D’s complaint doesn’t allege that the recording was an “interception” within the meaning of
§2510(4) (p429)
3. Holding (Easterbrook): Judgment reversed and case remanded because Doe’s complaint was
sufficient, because
 A complaint suffices if any facts consistent with its allegations, and showing entitlement to
prevail, could be established by affidavit or testimony at a trial.

Case 23*: Leatherman v. TCNICU: Supreme Court, 1993 (p435)

1. Rule: Courts lack the authority to require heightened pleading on their own initiative by judicial
interpretation.
2. Background: TCNICU= Tarrant County Narcotics Intelligence and Coordination Unit. P alleges that
members of the SWAT team killed her dogs, and assaulted and abused Ps. P sued municipality, stating that
it had approved a “custom and policy” of inadequate training. District ct found that P didn’t give
specificity about inadequate training. Then, it applied the heightened pleading standard and dismissed the
complaint for failure to state a claim. Ct of Appeals affirmed. Respondents (Ds) say that to establish
municipal liability under § 1983, a P must do more than plead a single nature of misconduct, and this
requirement is consistent with P’s Rule 11 obligation to make a reasonable pre-filing inquiry into the facts
– it’s not really a heightened pleading standard.
3. Holding (Rehnquist): Judgment reversed and remanded, because
 This IS a heightened pleading standard, despite respondents’ argument otherwise (noted above)
 Expressio uniso: Rule 9(b) says which matters require heightened pleading, and complaints
alleging municipal liability under § 1983 are not included (p437).
 Adding specificity requirements should occur via amendments to the Federal Rules, not judicial
interpretation. This isn’t a decision for the courts to make (p438).

Case 24: Ashcraft v. Iqbal: Supreme Court, 2009 (p443)

1. Rule: Twombly-Iqbal Plausible Pleading Rule: enough facts should be given to state a claim to relief
that is plausible on its face.
2. Background: Iqbal is a Muslim from Pakistan detained for 9/11 attack investigation. Sued Attorney
Gen. Ashcroft and FBI Director Mueller for illegal detention, violations of 1 st and 5th Amends and
conditions of confinement. Iqbal had to sue them specifically because govt officials can’t be held liable for
the unconstitutional conduct of their subordinates via vicarious liability. Iqbal’s constitutional claims
against petitioners (Ashcroft et al) rest solely on their ostensible “policy of holding post-September-11th
detainees once they were categorized as “of high interest.” District court denied petitioner’s motion to
dismiss and accepts Iqbal’s complaint via Conley. Ct of Appeals says Twombly doesn’t apply to this
complaint (because the claim is straightforward) and that this complaint is fine (p444)
3. Holding (Kennedy): Iqbal’s complaint fails to plead sufficient facts to state a claim for purposeful and
unlawful discrimination against petitioners because
 Iqbal’s allegations are just a formulaic recitation of the elements
 Iqbal doesn’t include facts to plausibly show that Ashcroft purposefully adopted a policy of
stereotyping

Case 24*: Twombly (p442)

*The facts of this case are really tricky

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XV. ADVANCED ISSUES
1. RESPONDING TO THE COMPLAINT
a) Answer (response to complaint)
o Can include admissions, denials, Rule 12(b) defenses, affirmative defenses, counterclaims,
and crossclaims
b) Motion (request to court for something)
o Rule 12 motions
 12(b) = motions to dismiss
1st. SMJ
2nd. PJ
3rd. Improper venue
4th. Insufficient process
5th. Insufficient service of process
6th. Failure to state a claim upon which relief can be granted
a. Must assume as true the well-pleaded allegations of the complaint
7th. Failure to join a party under Rule 19
 12(e) = more definite statement
 12(f) = strike allegations
 12(g)(2) = omnibus motion rule
1st. A D is not required to file a pre-answer motion under Rule 12, but if she does,
she has to make ALL available Rule 12 defenses and motions at that time or the
door is closed to them (except for SMJ).
 12(h)(1) = waiver trap
1st. If a D omits the Rule 12(b)(2)-(5) defenses from her pre-answer motion or from
her answer, whichever she files first, she waives the omitted defense
c) Rule 15: Amended and Supplemental Pleadings
o Rule 15(a)(1): party can amend its pleading 1) within 21 days of serving it, or 2) if the
pleading is one to which a responsive pleading is required
o Rule 15(a)(2): In all other cases, a party may only amend with 1) opposing party’s written
consent or 2) court’s leave
o Rule 15(b): Amendments During and After Trial
d) Doing nothing.
o Reasons for doing nothing:
 Never knew about the case (no actual notice)
 Have no money; insolvent
 Thought that court has no PJ in the forum where being sued
o Potential consequence: Default Judgment (Rule 55)
 For no response within 21 days of summons, a D is subject to an entry of default
 Entry of default can lead to a default judgment
 A default judgment admits the facts stated in the complaint, but a default judgment
neither admits that the facts are sufficient to establish a D’s liability nor the amount of
damages or other remedies.
1st. Courts view defaults with disfavor because they prefer cases to be decided on the
merits
 An “appearance” with the court (filing a paper with name and address) is not enough to
prevent a default
e) Care and Candor in Pleading
o Rule 11 (I got my eyes on you, so do right)
 defines a form of legal malpractice based on an objective negligence standard
 Before presenting a paper to the court, the presenter must make a reasonable inquiry into
the law and the evidence contained therein
1st. Reasonableness based on cost and time
2nd. It just matters that everything be correct at the time presented (Rule 11(b))

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 Case 25: Virgin Records America, Inc. v. Lacey: S.D. Alaska, 2007 (p463)*
1. Rule: Entry of default can lead to default judgment AND courts “view defaults with disfavor”
2. Background: Virgin Records et al filed a complaint for copyright infringement and a process server left
copies of the complaint + summons at Lacey’s house and with her son. Lacey hasn’t responded in 3mo.
Upon motion by Ps, an Entry of Default was mailed to Lacey and she didn’t respond again. Now, Ps seek
an entry of default judgment. Ps sought statutory damages, costs and attorney’s fees, and an injunction
3. Holding: Issue of default granted and requested damages approved, because
 Lacey’s lack of response legally means that she has legally admitted the facts in the complaint (and
those facts are sufficient to establish a claim for relief because they are detailed and well-pleaded)
 Ps are only requesting the minimum amount ($750 per infringement), §504(c)(1) forbids granting a
lesser award, and holding a hearing would serve no purpose here
 Ps have proven that unless enjoined, Lacey will continue her copyright infringement and hurt Ps

Case 26: Matos v. Nextran, Inc.: D.V.I., 2009 (p473)*

1. Rule: -
2. Background: Matos was driving a truck that rolled over, so he’s suing the truck manufacturer and
asserting six causes of action: negligence, warranty breaches, strict liability, AND loss of consortium and
punitive damages. Nextran moves to dismiss via 12(b)(6), 12(f) [strike allegation], and 12(e) [more def
statement].
3. Holding: Some motions granted and some denied

Case 27: Hunter v. Serv-Tech, Inc.: E.D. La., 2009 (p483)

1. Rule: Omnibus Motion Rule (12(g)(2)) and Waiver Trap (12(h)(1))
2. Background: Offshore filed a motion to dismiss for insufficiency of service of process, and in that
motion, it mentions that it doesn’t submit to the juris of the Court. Offshore later moved to dismiss for lack
of PJ, and Hunter says Offshore waived that right by not including a PJ motion in its earlier pre-answer
motion to dismiss. Offshore says it didn’t waive the PJ motion to dismiss because it was in the
“reservation” language of the pre-answer motion.
3. Holding: Offshore’s motion to dismiss for lack of personal jurisdiction is denied, because
 all Rule 12(b) motions made prior to answering must be consolidated
 Informing a court that you “reserve” a PJ defense for argument on a later motion is not sufficient to
prevent waiver of the omitted defense
 purpose of the Rule 12(g)(2) is judicial efficiency, and allowing reservations would go against that

Case 28: Reis Robotics USA, Inc. v. Concept Industries, Inc.: N.D. Ill., 2006 (p490)*
1. Rule: Affirmative defenses are just like pleadings and must set forth a short and plain statement of its
defense to each claim [Rule 8(b)(1)(A)].
2. Background: Reis filed a complaint against Concept, and Concept’s answer has a slew of affirmative
defenses and counterclaims.
3. Holding: Some affirmative defenses struck down because they weren’t plead with specificity.

SECTION SEVEN: JOINDER

XVI. BASIC JOINDER OF CLAIMS AND PARTIES
1. JOINDER OF CLAIMS- RULES 18, 13(A-B), 13(G), 13(H)
a) You cannot join a party if the court doesn’t have PJ over him/her (unless he/she consents)
b) Rule 18- 18 problems
o allows a P suing a D to join ANY claims she has against the D (even if they’re unrelated).
o also allows any other party, once she has properly made another party an adversary under
some other joinder rule, to add unrelated claims.

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 o Rule 42(b)- separate trials for claims
 authorizes the trial judge to order separate trials for convenience, to avoid prejudice, or to
expedite and economize (like when joined claims are totally unrelated)
o Rule 21: sever
 “The court may at any time, on just terms, add or drop a party. The court may also sever
any claims against a party.”
o Claim preclusion: bars a party who has sued a D once on a set of facts from doing so again
c) Rule 13- unlucky, you just got cross/counter-claimed!
o options for D
o Rule 13(a)(1)- Compulsory Counterclaim
 D MUST assert counterclaims that arise out of the same transaction/occurrence as the
claim against them or they waive that claim
o Rule 13(b)- Unrelated Counterclaim
 D may assert a counterclaim against an opposing party (since they’re already in court)
o Rule 13(g)- Crossclaim (vs. a co-party)
 May be made if claim arises out of the same transaction/occurrence of the main claim OR
 The claim relates to property with that initial subject matter

From Same Transaction or Not from Same Transaction or

Occurrence Occurrence
Claims Mandatory Permitted
Counterclaims Mandatory (Rule 13(a)) Permitted (Rule 13(b))
Crossclaims (Rule 13(g)) Permitted Not Permitted*
3rd-Party Claims Permitted (as long as the 3rd party is Not Permitted*
possibly liable to compensate the
defendant for the original claim)

*Once a party has properly made another party an adversary under these initial rules, they can add unrelated claims
under Rule 18. (i.e. as long as I have one crossclaim against you that comes from the same transaction or
occurrence, I can add any unrelated crossclaims I have against you)

2. JOINDER OF PARTIES- RULE 20 (AND 19, 22-24, WHICH I DON’T HAVE TO KNOW)
a) Rule 20- 20 Bs
o Rule 20(a)(1)- P adds same transaction/occurrence
 allows Ps to join as co-Ps in a single action if 1) their claims arise out of the same
transaction or occurrence (or series of them) and 2) involve a common question of law or
fact.
o Rule 20(a)(2)- Ds sued together under similar claims
 allows Ds to be sued together if the claims against them meet the same two criteria.
o Rule 22- interpleader
o Rule 23- class actions
o Rule 24- intervention (someone joins himself to a case because he thinks his interests are
involved and he wants to represent them)
Rule 14(a)(3): P may assert against 3P D any claim arising out of the main t/o.
3. JOINDER OF BOTH- Rule 14(a)(2)(d): 3P D may assert against P any claim arising out of the main t/o.
a) Rule 14- look out - you just got impleaded!
o D can implead a new party to a suit if the new party is or may be liable to the D for all or part
of any judgment the P recovers from the D (e.g. contribution and indemnification).
 D here is a “third-party P” and the impleaded party is a new D
o D can’t implead an alternative target for the P or seek damages the D herself may have
suffered
o Not for same transaction/occurrence generally, but still related to the primary P v D case
o An implead isn’t a crossclaim, because a crossclaim is for a D already being sued by the P
o Impleading is typically done by D, but P can use Rule 14 if someone brings a claim against P.

27
 Case 29: Leiendecker v. Asian Women United of MN: Minn. App., 2007 (p609)
1. Rule: Rule 13(a)(1)- Compulsory Counterclaim AND Ripeness
2. Background: Old board of AWUM wanted to fire P so P hired a new board and the new board and old
board sued each other (Case 1). When the old board sued, it filed a third-party complaint (in which P was a
D). District Court declared the old board to be the properly governing party, took two women off the
board, and invalidated the resolution to fire P.AWUM fired P anyway. In 2005, P sued AWUM with tort
and non-tort claims and AWUM moved for dismissal (Case 2), which the district court granted. P
appealed.
3. Holding: P’s claims should be allowed because her tort claims aren’t subject to Minnesota statute rule
13.01 and her non-tort claims weren’t “ripe” when she answered respondents’ third-party complaint.
*If this case were in federal court, then P would be banned under Rule 13(a)(1), but in Minnesota
the rules were different.

Case 30: Holbein v. Heritage Mutual Insurance Co.: E.D. Wis., 1985 (p599)
1. Rule: Rule 20(a)(1) allows Ps to join as co-Ps in a single action if 1) their claims arise out of the same
transaction or occurrence (or series of them) and 2) involve a common question of law or fact.
2. Background: 4 Ps, 3 claims each, claims about D making material misrepresentations during interviews
and not telling them that their employment would be subject to a probationary period. D wants to sever the
action into four diff lawsuits (one/P) pursuant to Rule 20(a) and Rule 21 because 1) the claims don’t arise
out of the same transaction/occurrence, 2) there’s no shared question of law or fact, and 3) joining these
claims and parties doesn’t add efficiency.
3. Holding: The motion to sever the Ps’ claims is denied because,
 The claims arise out of the same transaction or occurrence
 The claims involve a common question of law or facts (similar interview situations, similar material
misrepresentations, similar damages, etc.)
 Keeping things as they are (joined) conserves resources.

Case 31: Erkins v. Case Power & Equipment Co.: D.N.J., 1995 (p622)
1. Rule: Rule 14(a) allows a D to implead a new party to a suit if the new party is or may be liable to the D
for all or part of any judgment the P recovers from the D (e.g. contribution).
2. Background: A nursing home in Princeton hired Fitzpatrick to remove an underground fuel tank.
Fitzpatrick  ECRACOM O’Bierne (boss of decedent P). P died when riding in the bucket of a
backhoe. P sues backhoe manufacturer Case for negligence, not Fitzpatrick or ECRACOM. Case seeks
contribution from Fitzpatrick and ECRACOM, claiming that their negligence was a contributing factor in
the accident, so Case files a third-party complaint to implead Fitzpatrick and ECRACOM.
3. Holding: Case’s third-party complaint is granted, because
 A joint tortfeasor can recover contribution from another tortfeasor
 D’s motion is timely
 Joinder of the proposed third-parties will facilitate resolution of the main liability issues without
creating complications
 Delay caused by impleading won’t be much
 The third-party claims involve related issues that should be handled in a single lawsuit
 The joinder of Fitzpatrick and ECRACOM presents no potential for prejudice to P.

XVII. SUPPLEMENTAL JURISDICTION *Check each claim for same case

or controversy.
1. § 1367
a) [Broad] If fed court has jurisdiction over one claim in the original case, then it can hear all other
claims are a part of the same case or controversy (like “same nucleus of operative fact”- Gibbs).
o Support for suppl juris grant in Art. III, Sec. 2: power over cases arising under this
Constitution …
o A case can be made of numerous, related claims
b) [Limiting] Bars juris over claims by P through Rules 14, 19, 20, or 24 (even if (a) allows it) when
original SMJ is based on § 1332

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 c) [Discretion] Court can decline to give supplemental juris; there are four 4 reasons:
o Novel/complex issue of state law
o Supplemental claim predominates original claims
o All original jurisdiction claims are dismissed
o Catchall

Case 32: United Mine Workers v. Gibbs: Supreme Court, 1966 (p715)
1. Rule: Federal court that has juris over one of the P’s claims may hear other claims that arise out of the
“same nucleus of operative fact.”
2. Background: Gibbs brought federal (secondary boycott) and state claims (interference in contract)
against the UMW. Fed claim ultimately failed and only the state claim remained.
3. Issue: Can the federal court exert supplemental jurisdiction over the state law claim?
4. Holding: Yes, because
 Constitution allows one case to be heard, and multiple related claims can constitute one case
 the state claim was related to an important (although dismissed) federal claim
 federal courts are particularly appropriate for pre-emption principles, like that which concerned the
state claim

Applying § 1367 to Gibbs

(a) Satisfied because the original claim had correct SMJ
(b) No need to address because this isn’t a diversity (§ 1332) case
(c) Only if the court deems it necessary

Case 33: Owen Equipment & Erection Company v. Kroger: Supreme Court, 1978 (p727)
1. Rule: “Common nucleus” claim isn’t sufficient, the court must have constitutional AND statutory
permission to hear claims (it’s a foundational rule that federal juris requires both)
2. Background: Mr. Kroger was electrocuted when he got close to a crane that touched a power line, so
Mrs. Kroger sued OPPD (power district) for negligence in federal court (diversity). OPPD impleaded
Owen (who owned and operated the crane). Kroger joined Owen as a D. OPPD then had its motion for SJ
granted against Kroger, so the only claim left was Kroger v. Owen (no longer diversity)
3. Issue: Can the court hear a state claim (alone) in the non-diversity case?
4. Holding: No, no supplemental juris will be given to Kroger v. Owen because there’s no complete
diversity
 Congress specifically requires complete diversity and both of these parties are from Nebraska

-This case is distinguished from Gibbs because Gibbs was a federal question case and this one is based on diversity.
-OPPD was allowed to sue Owen via Rule 14, because before § 1367, even though there is no subject matter
jurisdiction over OPPD v. Owen (minimal diversity there), the court allowed it because the defendant was already
being hauled into court so it seemed fair to let him implead another party. This is a policy justification, and not a
legal one.

1. Constitution (satisfied, because Kroger v. Owen arises from the same common nucleus as the Kroger v. OPPD
case)
2. Statutory (not satisfied, because complete diversity is required)

Applying § 1367 to Kroger A v. B (§1332), and B v. C (Rule 14 impleading)

(a) Satisfied because there’s original jurisdiction over A v. B, and B v. C arises out of the same common nucleus of
operative fact
(b) No issue here, because § 1367 (b) deals with claims by the plaintiff. We did need to look to (b) though because
A v. B deals with § 1332.
(c) Only if the court deems it necessary

29
Finley v. United States, U.S. Supreme Court, 1989 (p735)*
1. Rule: Before juris is granted over a pendent or ancillary claim, there should be evidence that the relevant statute
granted juris over it.
2. Background: Fatal crash into power line. Finley brought a federal claim against the U.S.(-ish) and a state claim
against the electric company.
3. Holding: the federal district court could not exercise pendent juris over a related state law claim against a private
party in a case against the U.S. under the Federal Tort Claims Act, because the Court found no evidence in the
FTCA that Congress intended to authorize juris over such additional claims.

Clark v. Paul Gray, Inc., U.S. Supreme Court, 1939 (p741)*

-If two Ps sued one D, they each had to sue for more than $75,000.

Zahn v. International Paper Co., U.S. Supreme Court, 1973 (p742)*

-Each member of the class must meet in the amount-in-controversy requirement./ “any P without the jurisdictional amount
must be dismissed from the case, even though others allege jurisdictionally sufficient claims”

Case 34: Exxon Mobil Corp. v. Allapattah Services: U.S. Supreme Court, 2005 (p743)
1. Rule: [§ 1367 overruled Clark and Zahn] authorized supplemental juris over all claims by DIVERSE PARTIES
arising out of the same Art II case or controversy, subject only to the § 1367(b) exceptions
2. Background: 10,000 Exxon dealers sued Exxon for its overcharging scheme under § 1332, but some of the Ps
didn’t meet the amount-in-controversy requirement.
3. Issue: Can a federal court hear a diversity case where some Ps don’t meet the $75K requirement?
4. Holding (Kennedy): There must be complete diversity, but all claims don’t have to meet the amount-in-
controversy requirement for supplemental jurisdiction to be given. This particular case, however, doesn’t need to be
in federal court because it doesn’t uphold the purpose of diversity.
 There’s original SMJ between the Representative P and the D
 The set-up is cool under § 1367(a)
 The set-up is cool under § 1367(b) because (b) only excludes joinder claims made by a P
 Efficiency- Congress wants courts to dispose of actions in one case if possible

Starkist

P (80K) + P(<75K) + P(<75K) v. D

*All Ps are diverse
-This case would have been thrown out before § 1367, but allowed after Exxon

HYPOTHETICAL:

P (AR, <75K)
v. D (TX)
P (TX, >75K)

-This case would not be allowed after Exxon

HYPOTHETICAL: *If this case just had the top three plaintiffs then it
would be allowed in federal court after Exxon, but
P (MA, >75K) this case would be thrown out because of §
P (MA, <75K) v. D(NY) 1367(c)(2).
P (MA, <75K)
20 more Ps like the above

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SECTION EIGHT: CHOICE OF LAW
XVIII. THE ERIE DOCTRINE
1. Swift v. Taylor
a) Rules of Decision Act (RDA, 1789) (28 U.S.C. § 1652) (§ 34 of Federal Judiciary Act) says that federal
courts should apply state law in cases that don’t involve federal law (i.e. federal law for federal issues and
state law for state issues
b) In Swift v. Tyson, Justice Story concluded that the RDA required federal courts to apply ONLY state
statutory law, not state common law.
c) Story: fed ct in a diversity case doesn’t have to use one particular state’s common law, but all common law
[general common law]
2. Holmes’ Views: There is NO general federal common law
a) Legal Positivism – law, all law, is grounded in a sovereign source
b) Legal Realism – courts are authoritative lawmakers
c) Unconstitutionality of general common law
o There is ONLY state law and federal law; there is no such thing as general common law.
o When judges do “general common law,” they’re MAKING law and nothing in the Constitution gives
courts that power.
o 10th Amendment is being violated with the idea of federal general common law.
d) Swift v. Taylor is wrong and the state (and not general common law) should determine the rules to be applied
o Fallacy that the parties are entitled to an independent judgment on matters of general law.
o The extent of common law to be used should be determined by the state (p869).
o Competent evaluations show that Justice Story was probably wrong in the way he construed the RDA.
3. State Supreme Court Predictive Approach (Erie Guess)
a) When the meaning of applicable state law is unclear, the federal court asks what rule the state’s highest court
would apply today, even if older cases have applied a different rule
b) This applies to federal courts, not state courts (which apply legal precedents)
4. Choice of Law
a) State courts use choice of law rules to determine which state’s substantive law to apply to a claim.
b) Federal courts must apply the choice of law rules of the state in which it sits to determine which state’s law
to apply to a diversity case (diversity, federal Q, supp juris) (Klaxon)
c) “Vertical uniformity and horizontal chaos”
d) Horizontal Forum Shopping
o Forum shopping didn’t exist much under Pennoyer because not many many forums had PJ over a
person. PJ (and therefore forum shopping) was expanded with Shoe.
o In a § 1404 transfer, the original choice of law rules apply
5. Post-Erie Federal Common Law
a) Federal general common law doesn’t exist after Erie, but federal specific common law does
b) Interpretive lawmaking
o The courts are interpreting a federal statute when Congress makes an ambiguous statute.
c) Delegated lawmaking
o REA (§ 2072- Rules Enabling Act) provides an example of Congress delegating to the Supreme Court
 This isn’t federal common law, but an example of delegated lawmaking
o Sherman Act (anti-trust law) is another example
d) Preemptive lawmaking (like in Standard Oil)
o structure of Constitution preempts state law
o should courts create rule of decision?
e) *This federal common law stuff still complies with Erie because Erie says that unless something is governed
by federal law (Constitution, treaties, etc.), state law applies. The three above forms of federal common law
are all rooted in federal law, so courts can apply it over state law (Supremacy Clause).

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Case 35: Black &White Taxicab & Transfer Co. v. Brown & Yellow …: Supreme Court, 1928 (p865)
1. Rule: In fed ct diversity cases, the court doesn’t have to use any one state’s common law, but can look at general
common law (based on Justice Story in Swift v. Taylor).
2. Background: B&Y (initially KY, then TN) had a contract with L & N Railroad to allow B&Y to solicit to L & N’s
passengers and have an assigned plot on which to park its taxis. B&W began to solicit business and park in B&Y’s
places, so B&Y decided to sue to enjoin B&W from interfering in B&Y’s contract. B&Y changed its incorporation
to Tennessee so that it could sue B&W in federal court under diversity (because KY courts held that type of contract
invalid). B&W thought the change of incorporation was a fraudulent (accd to 28 U.S.C. § 1359) scheme to get into
the federal court. Dist Ct believes that B&W violated the contract and found for B&Y; Circuit Court of Appeals
affirmed. Supreme Court granted writ of certiorari.
3. Holding (Butler, with dissent from Holmes): Dist ct was correct: Brown’s contract was valid and the injunction
against Black is granted.
 When the KY Ct of Appeals holds the contract invalid, it goes against general common law
 In determining general /common law, fed cts are free to “exercise their own independent judgment” and look to
numerous sources of common law (and at least 17 states agree that the contract is valid)

Case 36: Erie R.R. Co. v. Tompkins: Supreme Court, 1938 (p874)
1. Rule: Overrules Swfit; in non-federal law cases, a federal court must apply state law rather than taking its own
view of what the applicable rule should be.
2. Background: Tompkins (PA citizen) was walking along a common footpath and was hit by an Erie train (NY).
Tompkins says he was a licensee and accuses Erie of negligence in federal court of NY. Erie says Tompkins was a
trespasser, and under PA law (as determined by its highest court), Erie has no liability to Tompkins. Tompkins said
there was no statute confirming that and since there was no statute, general common law should determine Erie’s
liability. Trial judge awarded Tompkins $30K and Circuit Court of Appeals affirmed because this was a question of
general – not local – law and thus, fed cts could exercise their indep judgment. Supreme Court granted certiorari to
consider whether the fed ct was free to disregard PA common law (p875).
3. Holding (Brandeis, relying heavily on Holmes): Judgment reversed and remanded because the authority is in the
state (PA), not federal general common law.
 Justice Story’s interpretation of the RDA was wrong
 Fallacy that the parties are entitled to an independent judgment on matters of general law.
 “The unconstitutionality of the course pursued”
o Prevents uniformity (p876)
o Impossible to determine line of demarcation between general law and local (state-specific) law
o Equal protection of the law was impossible because different courts/districts decide differently and people
would find ways to get into different courts (like change domicile or incorporation)
 There is no federal general common law
 Legal Positivism argument
 Legal Realism argument

Case 37: Klaxon Co. v. Stentor Electric MFG Co.: U.S. Supreme Ct., 1941 (p888)
1. Rule: Federal courts in a diversity case should apply the choice of law rule of the state in which the federal court
sits / Federal court doesn’t get to decide which state’s laws to use.
2. Background: In 1918, Stentor (NY) entered into a contract with Klaxon (DE) and Klaxon was to do its best to
further the manufacture and sale of certain patented objects. In 1919, Stentor was dissolved, and in 1929, it sued
Klaxon for failing to do its best like in the agreement. This is a CONTRACT ACTION. Suit was in DE district
court. In 1939, Stentor was awarded $100K and then moved to correct the judgment to add 6% interest rate for the
years 1929-1939 as allowed in NY Civil Practice Act. Contract was executed in NY, assets were transferred there,
and Klaxon began performance there. Dist ct decided to allow the NY interest rate and Circ Court of Appeals
confirmed.
3. Issue: Does the federal court have to apply the state’s choice of law rule or can it decide on its own? Will NY’s or
DE’s choice of law rules apply?
4. Holding: Reversed and remanded
 The conflict of law rules to be applied in a Delaware federal court should conform to Delaware state courts.
 Delaware is free to choose which laws should govern via “choice of law” rules.
 States have a right to pursue local policies different from other states.

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 Case 38: United States v. Standard Oil Co. of California: U.S. Supreme Ct., 1944 (p893)
1. Background: After solider was injured by Standard Oil Co’s truck, the United States wants to recover for loss of
Etzel’s service (via indemnification).
2. Holding: Standard Oil Co. of Cali is not liable for the injuries inflicted upon the government, because
 The U.S.-soldier relationship is federal in character and should be handled by Congress (the decider of federal
law)
 Allowing state law to determine this federal issue would be wrong:
o Lead to a lack of uniformity
o This isn’t a state/local matter so it’s not for states to decide
o Intrusion on Congressional field
o Contrary to standard practice
 Congress has had the opportunity to act on this topic of recovery and didn’t act, so because of the separation of
powers, this court doesn’t want to make federal common law here.

*This case would have to be decided federally, not in state court, but since Congress has repeatedly not acted on this, a court
shouldn’t make the decision (p899).

SECTION NINE: ADJUDICATION WITHOUT OR BEYOND THE JURY

XIX. SUMMARY JUDGMENT BASICS
1. Summary Judgment
a) Rule 56
b) “Genuine dispute of material fact”
c) Either party can move for SJ, even simultaneously
d) There can be partial SJ (SJ for specific claims instead of all claims)
e) Checklist
o What’s the rule of substantive law?
o Which facts are material to applying that rule of law?
o What’s the proper record/what evidence can the court consider?
 Only admissible evidence is allowed/ in the record
 The pleading alone is never admissible because it hasn’t been sworn in like an affidavit
o Has the moving party shown there’s no genuine dispute of material fact?
o Has the non-moving party shown that there IS a genuine issue of dispute fact?
o What is the proper disposition of the motion?

Motion Seeking Decision as a Matter of Law

12(b)(6) FAILURE 12(c) 56 50(a)(1) after P’s 50(a)(1) after P’s
TO STATE A CLAIM JUDGMENT ON THE SUMMARY JUDGMENT case and D’s case
PLEADINGS JUDGMENT AS A JUDGMENT AS A
MATTER OF LAW MATTER OF LAW
Facts in Facts in complaint Undisputed facts in Facts in record Facts in full trial
complaint and answer movant’s and non- after P’s case record
movant’s materials
-any time after
pleading
Factual Record for Decision

2. Burden of Proof
a) If the movant would have the burden of proof at trial (/is the P),
o Proof-of-the-Elements SJ
 Show that the facts necessary for each element of its claim or defense are not generally disputed

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 b) If the movant would NOT have the burden of proof of trial (/is the D),
o Disproof-of-an-Element Motion for SJ
 Disprove an element of the opposing party’s claim
o Absence-of-Proof Motion for SJ
 Show that there’s no proof to claim one of the claims of opposing party
 This is easier than Disproof

Case 39: Slaven v. City of Salem: Mass., 1982 (p991)

1. Rule: Substantive law determines which facts are material
2. Background: Woman sues Salem for negligence after her brother hangs himself with his belt in prison. Superior
Court granted D’s motion for summary judgment and P appealed.
3. Holding: Affirm/ summary judgment for D, because
 Jailers have the same duty as innkeepers, but they’re not liable “where he neither knows nor should know of the
unreasonable risk, or of the illness or injury.”
 There was no evidence that anyone knew Joseph was suicidal, and whether or not he was wearing a belt is
immaterial absent evidence that his jailors knew/should have known of his suicidal tendency.
 The P doesn’t allege any facts to counter the officers’ allegations.
o P’s lawyer could have done stuff to create a genuine dispute of material fact (like deposition), but didn’t

Case 40: Duplanits v. Shell Offshore, Inc.: 5th Circuit, 1991 (p1006)
1. Rule: Absence of Proof: the moving party (when the D) need not produce evidence negating the existence of a
material fact, but need only point out the absence of evidence supporting the nonmoving party’s case.
2. Background: Ps claim negligence against Shell because P slipped on a grease-covered board when attempting to
do what the Grace crane operator asked. Dist Ct granted D’s motion for summary judgment.
3. Holding: Affirm/ summary judgment for D, because
 If anyone was responsible for the board, it was Grace/Booker crane company, not Shell.
 Duplantis admitted that he knew whether the crane cover was.
 “The moving party need not produce evidence negating the existence of a material fact, but need only point out
the absence of evidence supporting the nonmoving party’s case.”
 The letter from “expert witness” Robert fails under Rule 56(c)(4) because it is unsworn, it is not in the form of an
affidavit, and it gives no indication that Robert is qualified to render opinions on such matters.

XX. SECOND-GUESSING THE JURY (WAYS TO ATTACK A JUDGMENT)

1. Before these rules come into play …
a) A 12(b) motion asks whether a complaint should proceed to discovery or be stopped.
b) After 12(b) motions are discovery.
c) The next big issue after that is summary judgment. A summary judgment motion (Rule 56) determines
whether a case should go to trial. No point to go if there’s no genuine issue of material fact.

2. Rule 50- Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling
a) After the P’s case in chief, the D can make a motion for a JMOL (Rule 50). Granted after party pleads its
case and judge determines that the party hasn’t presented evidence on which a reasonable jury could find for
it.
o In granting a JMOL motion, a judge pretty much says there’s nothing for a jury to decide.
b) Rule 50(a) can be made after P’s case or after D’s case.
o similar to summary judgment motion because P asserts that D didn’t prove that there’s a genuine dispute
of material fact
c) Notes
o If the judge rejects the JMOL motion, he submits to the jury and gives them jury instructions to tell the
jury the law. Each party submits their proposal for what jury instructions should be. Then the jury
determines the facts and applies the law to the facts.

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 o Types of Verdicts
 Rule 49- Special Verdict
1st. When judge asks the jury specific factual questions. The point is to make sure that the jury is
acting rationally.
 General Verdict
1st. Most verdicts are general verdicts. They’re harder to overturn than special verdicts.
d) Rule 50(b) - Renewed Judgment as a Matter of Law (RJMOL)
o After the jury renders a verdict, the judge can still direct a verdict.
o A Rule 50(a) motion is a prerequisite for a Rule 50(b) motion.
e) Recap of Ordering
o JMOL (Rule 50(a)) can be issued after the P presents his/her case
o JMOL (Rule 50(a)) can be issued after the D presents his/her case
o RJMOL (Rule 50(b)) can be issued after the jury’s verdict
f) Advantages to waiting until after the jury’s ruling to approve JMOL/RJMOL:
o In 99% of cases, the jury would probably reach the same conclusion that the judge would have, and it
looks better for the jury to make the decision.
o If the judge makes the JMOL and the losing party appeals then there has to be a whole new trial because
they can’t fall back on the jury verdict.
o *The RJMOL is a bit of a slap in the face to the jury.

3. Rule 59- New Trial; Altering or Amending a Judgment

a) This motion for a new trial is about correcting a material error that infects the outcome of the case (e.g.
wrong jury instructions, important information arising after the trial, new law is enacted during the trial that
would be material to the holding of the case, etc.).
b) It does not grant judgment to another party; it just says you have to start the trial over from scratch.
c) Motion must be filed within 28 days after the entry of judgment.

4. Rule 60- Relief from a Judgment or Order

a) covers basically the same things that could be brought under Rule 59, but it can be brought for a longer
period of time (one year)

SECTION TEN: FINALITY

XXI. CLAIM PRECLUSION (RES JUDICATA)- has to be raised by a party, judges can’t do it sua sponte (of its own accord)
1. If C2 involves
a) the same parties as in C1 (or their privies), and
b) the same cause of action as in C1 [i.e., the claim in C2 arises from the same transaction or occurrence as
the claim in C1], and if
c) the judgment in C1 was final, valid, and on the merits,
then
d) all legal claims that were raised in C1, or that could have been raised in C1, are
e) precluded from relitigation in C2.

2. Clarifications of the Rule

“Same evidence” Test
Same claim if the evidence needed to
sustain the second suit would have
sustained the first.
-leads to less preclusion
-since different claims usually need
different evidence, they won’t be
precluded from relitigation
“Transactional” Test (used by Rule)
Same claim if they arise out of the same “group of
operative fact” or arise out of the same underlying
transaction or occurrence.
-more preclusion
-it supports efficiency because it incentivizes combining
all your claims in one case (the first case)
-this supports judicial and monetary resources

35
 -The two tests usually lead to the same result, but not always. Use the “transactional test.”

a) Purpose is finality of decision and protection from harassment (Glannon).

b) “Final” Judgment
o Judgment issued from trial court (final even if it’s on appeal)
c) “Valid” Judgment
o Typically refers to cases in which a default judgment was issued because D didn’t receive notice or
when the court didn’t have personal jurisdiction.
d) “On the merits”
o When a claimant has had an opportunity to litigate her claim and a court has addressed the merits of the
case in some respect. Includes most “opportunities” other than dismissals for lack of PJ, SMJ, and
venue. Some courts allow relitigation after 12(b)(6) dismissal, but many don’t cuz P could have
amended the complaint (and if the amendments didn’t work then P just doesn’t have a claim).

3. Claim Preclusion for Non-Present Parties

a) “It is a principle of general application in Anglo-American jurisprudence that one is not bound by a
judgment in personam in a litigation in which he is not designated as a party or to which he has not been
made a party by service of process” [Hansberry v. Lee].
b) IMPORTANT: You won’t be barred (precluded) if you weren’t represented.
c) No Preclusion Exception for “Virtual Representation,” because
o a litigant is not bound by a judgment to which she was not a party
o allowing “virtual representation” would be a circumvented way for courts to create class action suits at
will; it would skip the procedural requirements of class actions
o it would be more of a standard than a rule so it would have to be examined case-by-case, making it
open-ended, freewheeling, expensive and inefficient.
d) Exception: Class Actions (see Hansberry v. Lee)

Case 41: River Park, Inc. v. City of Highland Park: Ill., 1998 (p1186)
1. Rule: “Transactional test” used over the “same evidence” test: same clam if they arise out of the same
2. Background: Ps wanted to build a country club on a plot of land, but D also wanted that land, so D rejected P’s
engineering plans long enough for the bank to foreclose on the property and allow the D to come in and purchase it.
P sued in District Court on violation of due process, but the suit was ultimately dismissed with prejudice. P then went
to state ct with new claims. Trial ct tossed the case bcuz of res judicata, and the appellate court reversed saying res
judicata didn’t apply here

C1: A v. B -[Federal court], federal due process claim

-A’s case is dismissed with prejudice (so A can’t refile)
C2: A v. B -[State court], new claims

3. Holding (McMorrow): All three requirements for res judicata are satisfied according to the transactional test, so
P’s complaint is dismissed.
-In this case, same evidence test would not lead to preclusion, but transactional test would.

Case 42: Taylor v. Sturgell: U.S. Supreme Ct., 2008 (p1200)

1. Rule: Virtual Representation rejected.
2. Background: Petitioner Brent Taylor filed a lawsuit under the Freedom on Information Act seeking certain
documents from the Federal Aviation Admin. Herrick, Taylor’s friend, had previously brought an unsuccessful suit
seeking the same records. The district ct. decided that Taylor was claim precluded because Herrick was his “virtual
representative.” This was based on the fact that Taylor is represented by Herrick’s lawyer, Herrick gave Taylor docs
from his discovery, the men are “close associates” belonging to the same organization, etc.
3. Holding: No preclusion against Taylor. Ct. disapproves of the doctrine of preclusion by “virtual representation”
and holds that the judgment against Herrick does not bar Taylor from maintaining this suit, because
 a litigant is not bound by a judgment to which she was not a party (p1203)
 allowing “virtual representation” would be a circumvented way for courts to create class action suits at will

36
  an all-things-considered balancing approach to non-party preclusion would be expensive and inefficient, and
a standard requiring case-by-case analysis
 5 of the 6 exceptions to the rule against nonparty preclusion aren’t satisfied, and for the sixth (exception #5)
Taylor is not Herrick’s legal representative

XXII. ISSUE PRECLUSION (COLLATERAL ESTOPPEL)

1. If C2 involves
a) an issue of fact or law that was
b) actually litigated in C1 and
c) necessary to judgment in C1
d) in a judgment that was final, valid, and on the merits,
then
e) the determination in C1 is conclusive in C2
f) between the same parties or their privies [MUTUALITY requirement- litigated issues against each other]
g) even if C2 involves a different claim

*Court doesn’t HAVE to grant issue preclusion [Panniel v. Diaz].

2. Goals of Collateral Estoppel

a) Minimize the number of lawsuits
b) Give people a strong incentive to try and win in C1

Case 43: Felger v. Nichols: MD Ct. of Appeals, 1977 (p1219)

1. Rule: Issue Preclusion AND Rule 13(a) (compulsory counterclaim)
2. Background: Nichols, a lawyer, sued Felger in a MD district court for unpaid legal fees. Felger’s defense was that
Nichols’ services were inadequately performed. Nichols won the suit. Felger then sued Nichols for malpractice in
regards to the same legal services. Nichols moved for summary judgment saying that Felger was collaterally
estopped from by the judgment in the first case.
3. Holding: Affirmed; Felger is collaterally estopped/ issue precluded, because
-Felger is trying to relitigate an issue that was actually litigated and necessary to a judgment that was final, valid, and
on the merits.
*Felger’s claim was a mandatory counterclaim that should have been brought in C1 under Rule 13(a), but MD law
didn’t allow Felger to bring it, so unfortunately, Felger couldn’t have brought his claim at all.

Case 44: Panniel v. Diaz: NJ, 2004 (p1225)

1. Rule: Even when the five factors for issue preclusion are satisfied, a court can deny it if granting it would have a
negative impact on the public, it wasn’t sufficiently clear that the issue would arise in a later case, or the party sought
to be precluded didn’t obtain a full or fair trial in the initial action (p1230).
2. Background: Panniel, P, had an accident with Diaz (driving an ambulance for hospital, RWJ). She had injuries to
her foot that led to the amputation of her toes.
C1: P v. NJM (Insurance) -went through arbitration, P wins, causation
was found between accident and toe loss
C2: P v. Diaz & RWJ [NJM] -tort action, P requests a motion for partial summary judgment
invoking collateral estoppel on the accidentinjury issue
3. Holding: Although all of the factors for issue preclusion were satisfied, P’s motion for partial summary judgment
is denied, because
1. There are exceptions to granting issue preclusion; a court doesn’t HAVE to grant issue preclusion.
2. Sufficient countervailing interests: undesirable effects for the auto insurance industry leading to more
discovery, more adversity, and more formality in the PIP arbitration process (a process that was intended to be
quick).

37
 3. Unfair to grant issue preclusion here: RWJ and Diaz were neither aware of evidence in the arbitration, nor of
the arbitration itself.
*It’s strange that the court used this public interest route instead of saying that privity didn’t exist.

Case 45: Cambria v. Jeffrey: Mass., 1940 (p1238)

1. Rule: Issue Preclusion: claim is only precluded in C2 if it was necessary to the judgment in C1.
2. Background: Jeffrey and Cambria were in a car collision. Jeffrey sued in district court.
C1: J v. C -J sues C for negligence and C pleads contributory negligence. Both parties were
negligent so C wins the case.
C2: C v. J -C sues J for negligence in injuring C’s car. Jury finds for C, but judge sets it
aside because in C1, Cambria plead contributory negligence. Accordingly, judge
enters verdict for J (judgment notwithstanding the verdict).

3. Holding: Jury’s verdict reinstated, because the fact that C was contributorily negligent was not necessary to the
judgment in C1; the fact that J was contributorily negligent is what was necessary in C1.

Hypothetical on pg. 1240, #6

C1: J (not negl.) v. C (negl.) -J wins in negligence suit.

C2: C v. J

-Both findings of negligence were necessary to C1, so C would be precluded from C2.

Hypothetical on pg. 1240, #8

C1: F v. B -B attempted claims that there was no contract and that if there was
a contract, it was invalid, but both of those claims were thrown out. B won the
case on his claim that the contract was conditioned on stake money that F didn’t
put up.
C2: F v. B -B brings the same claim, but different tournament

-Is B precluded from arguing the defenses that 1) there was no contract and 2) if there was a contract, it was illegal?
-No, because those claims weren’t essential to the judgment in C1.

CRUCIAL POINT: One bite at the apple.

-A party that brings, fairly and fully litigates, and loses an issue in C1 is precluded from bringing it in C2 because it had its one
bite at the apple.

3. Non-Mutual Defensive Collateral Estoppel

a) :Occurs when a D seeks to prevent a P from asserting a claim that the P previously litigated and lost against
another D.”
o Uh-uh, don’t pull that shit on me. You already tried and lost that claim with a different D, so let it go.
b) Allowed in federal courts and most state courts
c) More of a rule

4. Non-Mutual Offensive Collateral Estoppel

a) “Occurs when the P seeks to foreclose the D from litigating an issue the D has previously litigated
unsuccessfully in another action with another party.”
o I’ma make this claim, so don’t try to stop my offense by bringing up the same issue that you already
tried and lost. I gets my bite at the apple!

38
 b) Allowed in federal courts (but with discretion) and most state courts
c) More of a standard, because there are four factors to consider (below)
d) Not allowed where:
o P could have easily joined in the earlier action
 We want to prevent wait and see scheming.
o The application of offensive estoppel would be unfair to a D. Things to consider before granting CE:
 Losing party in the prior action did not have a full procedural opportunity to litigate the issue
 Losing party in the prior action did not have a the adequate incentive to litigate aggressively
 The result in the prior action was questionable (invalid, not final, not on the merits)
 Or when D is a new party and never received a bite of the apple.

5. Differences Between RJ and CE

a) RJ requires the same parties; non-mutual CE does not
b) RJ does not require the barred claim to be actually raised and necessarily decided in C1; CE does
c) RJ can be used on defensively; CE can be both defensive and offensive

Case 46: Blonder-Tongue Laboratories v. Univ. of Ill. Foundation: U.S. Supreme Ct., 1971 (p1242)
1. Rule: Non-mutual collateral estoppel
2. Background:
C1: Univ. of Ill. v. Random Lab -Patent infringement, jury decides patent is invalid
-Univ. of Ill. lost
C2: Univ. of Ill. v. Blonder-Tongue -Suit for patent infringement again. Blonder-Tongue
asserts issue preclusion to prevent Univ. of Ill. from
claiming that the patent is valid.
3. Holding: Use of non-mutual (defensive) issue preclusion approved. Univ. of Ill. already had its bite at the apple.

Case 47: Parklane Hosiery Co., Inc. v. Shore: U.S. Supreme Ct., 1979 (p1246)
1. Rule: Non-mutual offensive collateral estoppel is appropriate in some scenarios and federal cts should use their
discretion (p1251 lists factors to consider). Also, wait-and-see scheming should not be allowed (Stewart).
2. Background:
 Case #1- SEC v. Parklane (SEC wants injunction bcuz Parklane’s proxy statement was false and misleading). Courts
rule for SEC and say proxy statement WAS false and misleading.
 Case #2- Shore v. Parklane (Shore seeks damages on ppl who lost money relying on Parkland’s proxy statement.
Shore wants partial summary judgment, saying Parkland is collaterally estopped from relitigating the factual issue of
whether the proxy was false and misleading).
o Dist ct said Parklane wasn’t estopped bcuz that would take their 7th Amend right to trial
o Ct of Appeals says Parklane is estopped bcuz the factual issue had already been litigated
3. Holding: Affirmed; offensive collateral estoppel against Parklane is allowed here because,
none of the considerations that would justify a refusal to allow the use of offensive collateral estoppel is present in
this case. Since the petitioners received a full and fair opportunity to litigate their claims in the SEC action, the
contemporary law of collateral estoppel leads inescapably to the conclusion that the petitioners are estopped from
relitigating the question of whether the proxy statement was materially false and misleading.

XXIII. INTER-SYSTEM PRECLUSION

1. As a general rule, American courts give the same preclusive effect to a judgment that the rendering (initial) court
would give it. C2 must give the same effect to a judgment in C1 that C1 would give it.
a) This is whether the judgment is “right” or “wrong.”
2. Rendering court’s (the state court’s) preclusion laws apply:
a) State court to state court = governed by Full Faith and Credit Clause (Art. IV, Sec. 1)
b) State court to federal court = 28 U.S.C. § 1738 (full faith and credit statute)
3. Federal preclusion laws apply unless C1 was based on diversity (then it goes to state of rendering court):
a) Federal court to state court
b) Federal court to federal court

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 C1 (MA): A v. B -MA is a “same evidence” state
-C1 and C2 have different causes of action
C2 (MA): A v. B -Result: MA preclusion rules apply in C2

C1 (MA): A v. B -NY has “transaction” test

-C2 has different evidence, but same transaction
C2 (NY): A v. B -MA preclusion rules apply (because you use the rules of the rendering
court).
-Since MA uses the same evidence test and there’s different evidence
between the two cases, A can bring the same claim in C2 in NY.

XXIV. CLASS ACTIONS

o Requirements (accd to Rule 23)
 The class is so numerous that joinder of all members is impracticable
 Questions of law or fact common to the class
 Claims/defenses of the representative parties are typical of the class
 Representative parties will fairly and adequately protect the interests of the class
o Necessary Procedures
 Designation as a class
 Express identification of the class in the pleadings and the ultimate judgment
 (Perhaps) Approval of the designation by a court

Case 48: Hansberry v. Lee: U.S. Supreme Ct., 1940 (p675)

1. Rule: There are requirements for a class action to be valid.
2. Background: Hanberry covenant said, “No Black people in the neighborhood.” Under Illinois law, for a covenant
to be effective and run with the land, 95% of the owners in the subdivision have to agree to it.

C1: Mrs. Burke v. Kleinman -Mrs. Burke stipulated that 95% of the neighborhood
approved the racially restrictive covenant.
-Court validated the 95% approval and Burke won.

C2: Lee v. Hansberry & Mr. Burke -Illinois Supreme Court says issue preclusion applies
to all the members of the neighborhood because C1
was a class action, so the defendants are precluded.

3. Holding (Stone, J.): Decision of Illinois Supreme Court is reversed. Hansberry/Burke are NOT precluded and C1
was NOT a class action.
 The Ps in Burke were not representing Burke/Hansberry here. Those who sought benefit from the covenant
are different from those who sought to resist it.
 Also, Burke v. Kleinman wasn’t really a class action (none of the 500 other parties were present, nor had
they received notice, nor were they named as parties to the suit, nor had they received any process).

-In Phillips Petroleum Co. v. Shutts (1985), the Supreme Court ruled that “a forum State may exercise jurisdiction over the
claim of an absent class-action P, even though that P may not possess the minimum contacts with the forum which would
support personal jurisdiction over a D.”

The class action in Phillips, however, was a Rule 23(b)(3) damages class action in which each class member received
notice with an opportunity to opt out of the class. The Court has not clarified whether due process is also satisfied for
Rule 23(b)(1&2) class actions (which don’t have opt-out clauses).

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Case 49: Ingraham v. United States: 5th Cir., 1987 (p497)
1. Rule: Affirmative defenses have to be pleaded in a timely manner or else they’re waived AND if a D omits an
affirmative defense from its answer, D should be allowed to add it to his/her complaint as long as it gives P sufficient
notice to prepare for it (p499)
2. Background: Ingraham and Bonds were Ps who won million-dollar medical malpractice suits under the Federal
Tort Claim Act. In appeal, the government attempted to impose $500K limit on receivable damages (per a Texas
act), but it hadn’t filed any pleading asserting this limitation prior to the judgments.
3. Holding: The Texas statutory limit is an affirmative defense and it has been waived by the U.S. because it didn’t
assert the defense in a timely manner.
 The defense is affirmative because it’s an “avoidance” within 8(c)’s “any other matter constituting an avoidance
or affirmative defense” (p497)
 and Judge Clark who wrote the FRCP said “statutory limitations” was a defense which needed to be set forth
with the greatest particularity (p498)
 Affirmative defenses have to be filed in a timely manner so as to give notice and not surprise people

Case 50: Hays v. Sony Corp. of America: 7th Cir., 1988 (p513)
1. Rule: Rule 11 is an objective standard and one must conduct a reasonable inquiry before pleading.
2. Background: Ps sued Sony for common law and statutory copyright infringement after Sony modified the school’s
manual and returned it to the school. Sony didn’t charge the school for the manual and didn’t publish or sell it
anywhere else.
3. Holding: The award of Rule 11 sanctions (~$15K) against Mr. Guyon (P’s attorney) is affirmed because Mr.
Guyon acted frivolously.
 Common law copyright was abolished in January 1978 (and it doesn’t matter that some of the manual may have
been written before then) (p514)
 His requests for relief are frivolous
o Ps can’t obtain an “accounting for profits” because Sony made no profits
o Ps can’t obtain “actual damages” because Ps hadn’t made money for the manual and there’s no evidence that
Sony killed their market
o Ps can’t obtain “punitive damages” because they’re not recoverable in federal copyright suits
 Guyon did not conduct a reasonable inquiry (he didn’t even ask Sony if they had sold the manual).

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