Joinder Attack Sheet:

 Am I trying to bring in a claim or a person?

o Is it permissive or compulsory?
 If compulsory, I will probably be able to get supplemental jurisdiction since
they probably meet the requirement of “so related.”
o Am I trying to bring in a 3rd party, another P or D?
o Is this person necessary?
 If so, it may stop supplemental jurisdiction.
 What cases?
 Remember:
o If you have multiple claims for Ps & Ds, analyze them separately so you don’t get
confused.
o Joinder does not need to be for all claims – can be only for 1 issue.
o WARNING: be careful w/ Div. Jurisdiction – cannot aggregate all claims together
still diff. parties.
ATTACK SHEET FOR PJ
 Who are the parties?
 Where are they located?
 What is the relationship?
 First see if there is consent or waiver (12(b)(2)). Any forum-selection clauses? (think:
Carnival v. Shute)
 Has PJ been properly asserted?
o Proper service? (unlikely to be tested)
o Look to statutory analysis.
 PART 1: STATUTORY ANALYSIS- for each non-resident D: is PJ over each D on each
claim authorized by statute?
o Is there a state statute that allows PJ?
 State-long arm statute
 (On exam, she will give us a long-arm statute).
 Sometimes, the state’s long arm statute and the constitutional limit of
the forum’s power are the same. Ex. California
 Rule 4k(1)(A), which is the federal version of the long arm statute, which will
often send you back to the state long-arm statute under 4(k)(1)(A).
 Here, analysis will usually be the same as state long-arm analysis.
 FRCP 4K1(A)(1) Serving a summons or filing a waiver of service
establishes PJ over a D (This is the one used most):
o (A) who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located;
o (B) who is a party joined under Rule 14 or 19 and is served
within a judicial district of the United States and not more than
100 miles from where the summons was issued; or
o (C) when authorized by a federal statute.
 FRCP 4(k)(2)- if D is not subject to PJ in any state, but PJ is
reasonable in U.S. Federal Claim Outside State-Court Jurisdiction.
For a claim that arises under federal law, serving a summons or filing a
waiver of service establishes personal jurisdiction over a defendant if:
o (A) the defendant is not subject to jurisdiction in any state’s
courts of general jurisdiction; and
o (B) exercising jurisdiction is consistent with the United States
Constitution and laws.
o (C)- when federal statute establishes PJ
o (2) The jurisdiction of a federal ct is usually the same as that of
state court in the state I which the federal court is located.
o If yes, continue with constitutional analysis.
o If no, stop analysis.
 PART 2: CONSTITUTIONAL ANALYSIS- since statutory authorization exists, is
assertion over PJ over each nonresident D constitutional (International Shoe, etc.)?
 SIMPLE ANALYSIS:
 D’s contact with forum: limited to claims arising from D’s contacts with the forum
state.
 Relatedness of Contact with forum, not P: depends on the quality and nature of the
contacts with the state, can be a single contact but NOT contacts that are casual or
isolated
o Claim related to the contacts, sequence of events and is it connected in some
way to the contacts w/ the forum
 Reasonableness—if time

o INTRO: State that: Due process requires traditional notions of fair play and
substantial justice.
o What are the minimum contacts? (International Shoe)
 For the contacts, look at:
 Nature of D’s contacts with forum
 D’s relation to the forum?
 Look to the direction of the arrows. Are the contacts
unilateral? Are they known?
 Number of Contacts
 Type of Contact
 D’s deliberate action in forum
 AND relatedness of claim to D’s contacts
 Conclude: yes or no that there is a relatedness.
o Now…is it specific or general?
 It may help to Draw a diagram of the contacts.

GENERAL VS SPECIFIC JURISDICTION

 We are looking at whether the claims are related to D’s contacts with the forum state.
 GENERAL jurisdiction (only 4 cases)
 The claim is not related to the forum.
 If there is no specific jurisdiction, then maybe you could look for general PJ.
 Straight forward rule: The D has to be home or essentially at home:
continuous and systematic does NOT apply here..
o Simple analysis.
o Cases: Helicopteros, Perkins, and Goodyear, Daimler

 SPECIFIC jurisdiction  High relatedness of claim to contact with forum claim

arises out of contact. Usually the D has to have purposeful availment.
 REMEMBER:
  Foreseeability alone is never enough to be a sufficient benchmark
for PJ (WWV).
 D who deliberately chooses to take advantage of the “benefits and
protections of that laws of the state” will be subject to suit there
 Miscellaneous contacts are not minimum contacts, Contacts that
spawned the lawsuit that are crucial to the analysis

 You need the right of contacts between D’s contacts and the forum.
 Voluntary, direct, and purposefully availing.
o WWV- overall, we got the rule of purposeful availment.
 Notion of reasonableness to subject d to the forum of that court,
fairness to the D?
 What gets priority? The relatedness of claims/purposeful
availment OR the reasonableness/fairness?
 What we think gets the priority is the purposeful availment,
but some courts place more of a priority on
reasonableness/fairness.
o Keeton (1980s)
o Burger King (1980s)
o Asahi (1980s)
o Nicastro (2011)
o (Binion- not a SC decision; an illustration of a common fact pattern for
contacts over internet).
 Two SC cases following Binion:
 Calder (1980)
 Walden (2014)
o Case about relatedness: Bristol Meyers
 Here is where all the other cases come in.
o Ex. the effects test (basically the same thing as purposeful availment)
 Calder v. Jones; Walden v. Fiore
 This test is used and is an application of the minimum
contacts/purposeful availment standard. It is NOT separate
standard.
 You can use this test to decide when conduct is within or outside
of the forum.
 AND The contacts must be relating to the claim. This is just as important as the
contacts between the D’s contacts and the forum.
  Ex. Bristol-Myers Squibb
 (if time) reasonableness.
 Ex. Asahi,
 This is case-by-case analysis.
 Only use this reasonableness analysis if 1. It is close on the contacts and
relatedness analysis OR 2. You have extra time to discuss.
o The analysis consists of:
 Burden on the D (foreseeability?)
 P’s interests.
 Forum’s interests.

 Tag jurisdiction. Burnham.

 Some people say it is kind of like a general PJ.
 Also about fairness, foreseeability.
 Once you establish general or specific PJ, conclude with the phrase there are sufficient
minimum contacts.
 Say “proper” or “not proper” when establishing the jurisdiction.
 Next: do a quick analysis on ‘traditional notions of fair play and substantial justice.’”

Remember:
 The claim has to relate to the cause of action.
 PJ can be linked with joinder, especially if there’s general PJ where you can attach
yourself into the suit.

ATTACK SHEET: SUBJECT MATTER JURISDICTION (SMJ)

 Analyze claim by claim
 Including counterclaims, crossclaims, etc.
 But remember, removal operates on actions, not claim.
 If action removed, see also § 1441(c)
 Look for §1331 or §1332 jurisdiction over each claim.
 Special rules when original jurisdiction is §1332
 §1367(b) caveats
 §1441(b)(2) home-state D rule
 For leftover claims, consider:
 §1367(a), (b)(where applicable), or (c)
Supplemental Jurisdiction Attack Sheet:
 §1367(a): determine whether “extra” claims are arise out if same/related transaction as
claims over which there is § 1331 or §1332 jurisdiction.
 §1367(b): use ONLY if all claims are §1332 claims; take it slow.
 §1367(c): allows ct to choose not to exercise supplemental jurisdiction—but ct must
explain decision.

 1367(a): GRANTETH
1. 1367(a) provides a statutory grant of supplemental jurisdiction (“SJ”).
2. Original jurisdiction?  Is there original jurisdiction over the action, such as 1331
or 1332? 
a. If there is no basis for original jurisdiction, then SJ is not possible at all.
3. Same constitutional case?  Courts have understood 1367(a) to use the Gibbs test
of “common nucleus of operative fact” (“CNOF”).  Is there a CNOF between
original-jurisdiction claims and supplemental claims?  If not, then SJ is not
possible at all. 
a. Note: it is not entirely clear whether CNOF means the same thing as
“transaction or occurrence” (“T&O”). It would appear that if T&O is
satisfied, then CNOF is as well. But CNOF may be somewhat broader
than T&O.
4. “Yes” to questions 1 and 2?  If so, then 1367(a) provides a statutory grant of SJ
over any additional claims and the joinder or intervention of additional parties.
That means you can add additional claims by existing parties AND/OR claims
by additional parties, or both.
5. Always remember and never forget: Remember that 1367(a) grants SJ, but that
the grant of SJ may be taken away by 1367(b), and that the court may decline to
exercise SJ under 1367(c).

 1367(b): TAKETH AWAY

o 1367(b) takes away supplemental juris. in various joinder scenarios
involving supplemental claims by PLAINTIFFS when premised solely on
diversity juris.
1. Remember, 1367(b) does not  create supplemental jurisdiction.   Instead, it
operates to take away SJ that would otherwise have been ok under 1367(a).
2. What is the basis for original jurisdiction? If original jurisdiction is
based solely on §1332, then move on to question 3.
a. But if original jurisdiction for the CNOF is premised (solely or
alternatively) on §1331, then move on to analysis under 1367(c) and (d).
3. Next, if original jurisdiction is premised solely  under 1332, then ask whether
applying SJ over any supplemental claims would be inconsistent w/ 1332. For
ex., would one or more of the supplemental claims fail to satisfy the amount in
controversy or not be complete diversity?  
a. If it is inconsistent, move on to question 4. 
 b. But if applying SJ over supplemental claim would not violate §1332, then
1367(b) does not take away SJ.
4. Next, if exercising SJ over any supplemental  claims would be inconsistent with
1332, then ask whether any the supplemental claims fall under one of the
joinder scenarios in 1367(b). Note that these are all claims asserted by
plaintiffs! These would be claims:
a. If claim by plaintiffs against persons made parties under FRCP 14, 19, or
24.  no Suppl. Jurisdiction.
b. If claim was proposed by persons to be joined as plaintiffs under FRCP
19.  no Suppl. Jurisdiction.
c. If claim by persons seeking to intervene as plaintiffs under FRCP 24. 
no Suppl. Jurisdiction.
d. (There IS suppl. Juris. over claims by Ps for FRCP 20. Allapattah.)
5. Finally,  determine whether SJ is barred.  If original jurisdiction was premised
solely on 1332 diversity (Q2), and SJ would be inconsistent with 1332 (Q3), and
the claim falls into one of the listed plaintiff-claim scenarios (Q4), then 1367
prohibits SJ over that claim.
 1367(c): PUNTETH
1. Even if SJ is granted by 1367(a), and even if SJ is not taken away by 1367(b),
the court has discretion under 1367(c) to “punt,” i.e., to decline to exercise SJ,
if:
1. The supplemental claim raises a novel or complex issue of State law [the thinking
being that state courts might be better equipped to decide new or difficult state-law
issues  decline],
2. The supplemental claim substantially predominates over the claim or claims over
which the district court has original jurisdiction [is the supplemental claim the main
issue?  decline],
3. The district court has dismissed all claims over which it has original jurisdiction
[perhaps less of a need for a federal forum now?  decline], or
4. In exceptional circumstances, there are other compelling reasons for declining
jurisdiction [catch-all, other good reasons?].
1. Ex. ct has spent considerable amount of time in dealing with this claim 
decline.
Attacking Erie Problems:
NOTES about the ERIE analysis:
 You need to be able to explain which case directly governs.
 *When conducting Erie analysis, consider each issue independently
 Don’t assume just b/c an FRCP you will apply Hanna, must first determine 1) is FRCP
directly in conflict with state law?
 Remember:
o The Rules of Decision Act, Swift, and Erie deal with substantive law.
o The Rules of Enabling Act and Hanna deal with FRCPs.

1) Are the claims in federal court on diversity or supplemental-jurisdiction grounds (i.e.,

under § 1332 or § 1367)? If yes, continue.
2) Is there a conflict/choice between state and federal law? (Erie). If yes, go to 3. If no,
apply both state and federal rule.
a. If it is a substantive issue and no controlling federal statute  apply state law
(Erie)
b. When Erie is not obviously substantive, use more analysis.
c. Fed cts look to the highest court ruling in that state on that issue and use that.
d. Say this: “federal courts must apply state-substantive legal rules when
adjudicating state law claims (Rules of Decision Act and Erie).
3) Is there a direct conflict squarely covered by Supreme Court precedent? If yes, apply
precedent. (Walker)
4) If there is a direct conflict, look at whether conflict is b/w FRCP and state rule (Hanna)
a. If yes to 4—there is a direct conflict, is it valid under rules enabling act? Assess
under REA. (Hanna)?
 Validity of FRCP under REA:
 Overall: does the FRCP abridge, enlarge, or modify a substantive
right? (Rules Enabling Act)
 Step 1: is a substantive right involved?
o Harlan standard- ask whether the rule substantially affects
primary decisions respecting human conduct. (i.e. attaches
legal consequences to actions that occur outside the court
system).
o Ely- substantive rights to achieve policy objective.
o Neither one of these is “the” right approach.
 You can look at both of these.
 Step 2: if you meet step 1  does the FRCP reduce the right’s
scope, expand the right’s scope, or change the right’s scope?
 Tip: although no FRCP has ever been held to violate the REA, a
good analysis will be prepared to address the validity of the FRCP
provision at issue in a question.
b. If No to 4- no FRCP conflict, would applying the federal rule conflict with twin
aims of Erie/outcome determinative (Erie, Hanna, Guaranty Trust).

i. Guaranty Trust held: Outcome-determinativeness test  if the

outcome would be different if federal law was applied rather than state,
apply STATE law.

1. BUT use this along with the twin aims of Erie:

a. Prevent forum shopping
b. Avoiding inequitable distribution of the law.
2. Guaranty Trust focus on equitable rights. Erie applies to
equitable rights.
a. Thus, if it is a matter of substance and it could significantly
affect the result of litigation for a federal court, then apply
Erie  it is substantive and Erie applies.
i. Thus, in Ragan, under FRCP 3, STATE law is
applied b/c it deals with when an action is
commenced and determines the statute of
limitations, which goes by the state rules.
ii. Even if applying federal law would conflict with twin aims and encourage
forum shopping (i.e. it is outcome-determinitive), there might still be
reasons to apply federal law. Thus, ALSO LOOK TO whether there are
affirmative countervailing considerations? Are they bound up? [strong
federal interests in constitution?] (Byrd)