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Requiremen (1) Subject-matter jurisdiction to hear the case; (2) personal jurisdiction
ts over the defendant; (3) proper venue to hear the claim.
Elements of (1) Is the power to hear the case granted in Article III §2; and if so (2) is
SMJ there statutory authority for jurisdiction?

A. State courts
Notes 1. State constitution or statute defines
2. Generally very broad

B. Federal Courts
1. U.S. Const. Article III, section 2.
a. Outer limits of judicial authority
b. Congress can limit the exercise
2. Congressionally authorized
a. Federal Question Title 28 USC, §1331
b. Diversity of Citizenship, Title 28 §1332

A. US Const Article III, section 2
1. All cases arising under federal law
     c !"

B. Federal Question Title 28 §1331
1. The district courts shall have original jurisdiction of all civil
actions   #
 the Constitution, laws, or treaties of the
United States.
2. $  #" ! a suit arises under the law that creates
the cause of action. American Well Works v. Layne

%   & ' 

A. US Const Article III §2
1. Between citizens of different states

B. Diversity of Citizenship Title 28 §1332

1. Amount in controversy exceeds 75,000
2. Complete diversity ³across the v´ of citizenship
Personal (1) Domicile in state, (2) consent, (3) physical presence, (4) minimum
Jurisdiction contacts.
CLAIM PRECLUSION a.k.a. ³Res judicata´
()  (1) Final judgment; (2) ³on the merits´; (3) same claims; and (4) same
$Final judgment must be entered in the trial court.

*  ') +

$Based on validity of plaintiff¶s claim rather than procedural grounds

,Preclusion turns on whether the plaintiff had the full p p to
litigate the merits of the first action.

cSpectrum of cases
-Full trial followed by verdict-----------dismissals for procedural
.Toughest cases fall between the extremes
/Rule 12(b)(6) treated as on the merits unless specifies without
0Default judgments on the merits

1. Plaintiff is entitled to full day in court and should not lose the
right to a hearing on the substance of his grievance because of
procedural errors.

) )
$Transaction or occurrence
-See rules for joinder
.Party who has asserted a right to relief arising out of a
particular transaction or occurrence must join all claims he has a
 #' to assert arising from it, or the omitted claims will be barred

,Preclusion turns on the  to join the claim in the original action,
not whether the claim was actually asserted.

cPrecludes p that could have been joined, not parties.

$Claim preclusion does not turn the —  of permissive joinder into a

1# ,
$Merger applies when a claimant wins a judgment, and then all
possible grounds for the cause of action are merged into the ruling.

,Bar applies when a claimant loses a judgment, and is therefore

barred from raising the same cause of action again.

1  ) #
$|  interest in not litigating same claim twice
,| interest in having an end to litigation
cScarcity of judicial resources
(Promote stability after final judgment
Preventing inconsistent results
2SCOTUS list on judicial decisions
2. bars vexatious litigation
3. frees courts to resolve other disputes.

1  $#  
$Potential preclusion of claims not originally known
,Forecloses relitigation of claims when wrong decision


$Affirmative defense that court will not raise unilaterally
1. Explicit or
2. Implicit, failure to raise or prior conduct
ISSUE PRECLUSION a.k.a. Collateral Estoppel
()  (1) Same issue; (2) actually litigated and decided; and (3) was ³necessary
to the court¶s judgment.´

c ( 
$Same parties


c ( 
$New parties not involved in original litigation

,Preventing unfairness and waste of judicial resources that flows
from allowing repeated litigation against new unrelated defendants.

c(3)Bernhard v. Bank of America National Trust, (Cal.1942)

In Bernhard, Mrs. Bernhard claimed that certain funds held by
the executor of an estate belonged to the estate itself. Bernhard
challenged the executor¶s claim in a probate proceeding and the court
found for the executor. Bernhard then sued the bank that had been
holding the funds and paid them to the executor, alleging again that
the funds were assets of the estate. The bank pleaded collateral
estoppel, arguing that Bernhard had already adjudicated the right to
the funds in the earlier proceeding and lost, and should be precluded
from relitigating the issue. The court decided that the party should not
have a chance to relitigate by simply switching adversaries.
-Defensive non-mutual collateral estoppel

%(3)Blonder-Tongue Laboratories v. Uni. Of Illinois

Foundation, 402 U.S. 313 (1971).
In Blonder-Tongue, the Univ. of Illinois Foundation sued one
defendant for infringing a patent but lost on the ground that its patent
was invalid. It then ³switched adversaries,´ bringing suit against
another defendant for infringement of the same patent. The SCOTUS
approved the use of non-mutual collateral estoppel and prevented the
Foundation from litigating the issue of the patent¶s validity. The court
emphasized that preclusion was only appropriate if there had been a
³full and fair opportunity´ to litigate the issue in the first action.
-Defensive non-mutual collateral estoppel

+  #  

-Strong incentive to litigate issue in first suit
.Procedural opportunities to litigate issue originally
/Prior inconsistent judgments
0Danger of ³wait and see´ plaintiffs

$Minimize redundant litigation
Rule In diversity jurisdiction cases, federal courts must apply the law that
would be applied by the courts of the state in which they sit.

R.D.A.   4
The laws of the several states, except where the Constitution or
treaties of the United States or Acts of Congress otherwise require or
provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply. Title 28 U.S.C.

'  '  5#   6-//.5

4' '  4  

Swift problems

$ In a diversity jurisdiction case, justice Story concluded that the

phrase ³the laws of the several states´ in the RDA referred only to the
# of the state, not to
judicial decisions interpreting general principles of common law. Swift
v. Tyson, 41 U.S. at 14-16 (1842).

-Role of federal judge is to pp    p p——p  

    pp    p— p
  — p  

.Swift rests on the philosophic premise that a court, specifically

a state court, does not )8 law, but merely  or declares the
law, and so its decisions simply constitute evidence of what the
law is, which another court is free to reject in favor of better
evidence to be found elsewhere.

/Natural law approach, ³   p  p   p—

 p  ´ Swift v. Tyson, 41 U.S. at 19.

,Problems with Swift

-The law could be one thing in Rome and another thing in

Athens. (    p p     
p   .

.Created potential for manipulation of substantive law by

plaintiffs who invoked diversity jurisdiction.
In Black & White Taxicab Co. v. Brown Yellow Taxicab, 276
U.S. 518 (1928), the Brown Taxicab company reincorporated
itself in a different state to create diversity between the
potential parties so they would be able to invoke the more
favorable law of the new state.

/ Legal realism: there is no one true law because it is right.

( ,# % 

Tompkins lost an arm when hit by a projection from an Erie
Railroad train while walking on a pathway along the tracks. His injury
was quite likely the result of negligence; however, there was no
evidence that the railroad¶s employees had acted  p  p
in creating the danger, which was the standard for recovery under
Pennsylvania law. The federal district court, relying on Swift, followed
federal decisions instead of Pennsylvania decisions, and allowed
recovery under the more relaxed standard.


]    p   p   p——p  

In diversity cases federal courts must apply the law that
would be applied by the courts of the state in which they sit.


-Swift, failed to achieve its goal of leading to a uniform common
law throughout the nation.

.Out-of-state plaintiffs had more options than in-state plaintiffs in

choice of law.

/It was unconstitutional for federal judges to make law in areas

in which the federal government has no delegated powers.


-In diversity cases federal courts must apply the law that would
be applied by the courts of the state in which they sit.

.Swift overruled, legal realism takes over

/Rather than create ³general common law,´ the job of federal

courts in diversity cases is to  state common law.

0In broad areas where the law is largely judge-made, such as

contracts, torts probate, and property, state law reigns supreme
because ³there can be no other law,´ Hanna v. Plumer, 380 U.S.
460, 472 (1965).
$  #  :4

$Proper Regard
Federal court construing state law should give p   
to decisions of trial and intermediate appellate courts, but that its job
is to apply the law as announced, or as it p  p  , by the
state¶s highest court. Commissioner v. Bosch, 387 U.S. 456, 465
Types of (1) Federal Constitutional provision and State Law; (2) Federal Statute
Conflict with and State Law; (3) Federal Rule and State Law; (4) Federal Judicial
State Law Practice and State Law.

$³Supreme Law of the land´ U.S. Const. Article VI, par. 2

,Federal Constitution will be applied


$³Supreme Law of the land´ if valid

-Congress has the constitutional authority to enact statutes
governing procedure in the federal courts if: Ò    

.³Arguably procedural´ test

$Federal Rule of Civil Procedure applies if valid

,Valid if ³rationally capable of classification´ as procedural; and

cDoes not ³abridge, enlarge, or modify´ a substantive right. REA

$Apply state rule if difference could prove ³outcome-determinative´

I. Funnel of Jurisdiction
A. Subject-Matter Jurisdiction
1. Federal Question 28 USC 1331
2. Diversity 28 USC 1332
B. Personal
II. Overview of the Civil Process
III. The Values of Process

IV. Filing a Complaint

V. Ethical Responsibilities
VI. Amendments
VII. Service of Process
VIII. Joinder of Parties and Claims
IX. Third-Party Complaints and Impleader

X. Defensive Responses to a Complaint

XI. The Ideology of Advocacy
XII. Defensive Responses
XIII. Rule 26 Automatic Disclosure
XIV. Introduction to Discovery and Depositons
XV. Requests for Production of Documents

XVI. Attorney-client and Work-Product Privilege

XVII. Motions to Compel, Protective Orders and Sanctions
XVIII. Summary Judgment
XIX. Claim and Issue Preclusion
XX. Choice of Law
XXI. Intervention and Class Actions