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CIVIL PROCEDURE
PERSONAL JURISDICTION I. PERSONAL JURISDICTION- Territorial limits on judicial authority A. Full Faith and Credit Clause- every state must enforce the judgments of other states a. Exception- where the court that rendered the judgment lacked PJ over D B. Two types of Personal Jurisdiction: a. IN PERSONAM- jurisdiction against the person i. General- suits in which the contacts are unrelated to the claim-contacts must be continuous and systematic. Connection w/ state must be consequence of D’s own choice. 1. Pure form- Massive Contacts. So much contact that there’s jurisdiction for anything. (i.e. you live there) ii. Specific- if the contacts are related to the claim-can be casual and isolated 1. Pure form- 1 on 1 arising out of relationship. (i.e. only contact w/ state is shooting a gun, the reason for the suit) iii. Justifications for jurisdiction: 1. Quid pro quo- this for that; the amount of benefit you receive from the state. You’ve received a benefit, and therefore the state can take a burden from you (jurisdiction) a. More related to General Jurisdiction 2. Regulatory Authority- The state is regulating things that the state has a legitimate concern over, and this creates jurisdiction a. Deals more w/ Specific Jurisdiction 3. Convenience- If witnesses are there, case should be there. a. More related to General; not oft used to determine juris b. IN REM- jurisdiction against the property i. In Rem- Suit over property where the object is the defendant, and we bind any person who has interest in that property ii. Quasi In Rem I- Suit is a proceeding over the ownership of property. Only binds the named parties (similar to specific juris) iii. Quasi In Rem II- law suit has nothing to do with the property, instead the presence of the property is simply the basis upon which the court relies to assert jurisdiction (similar to general juris) C. Two Main Questions in Every Case a. Has a state authorized jurisdiction in this case? (Statutory) i. Long arm statutes- laws that give states authority to bring suits against people outside of its borders. Some positive legal authorization is required to establish juris over out of state D b. Does the Constitution permit the state to assert jurisdiction? (Constitutional Analysis) i. Apply International Shoe Test- is exercise of jurisdiction constitutional under the Due Process Clause of the 14th Amendment? (Minimum Contacts Test) II. CONSTITUTIONAL LIMITS ON PERSONAL JURISDICTION A. Traditional Bases of Jurisdiction: power, presence, domicile, consent 1. Power & Presence: Pennoyer v. Neff (1877) (a) Personal service of process within the forum (presence) is necessary and sufficient to establish PJ.

2 (b) Field: You need either 1) consent or 2) power to assert PJ w/o offending DP. 2. Consent: court may determine the personal liability of D by his ―voluntary appearance.‖ Can be express or implied. (a) Hess v. Palowski (1927)- EXPANSION! i. Adds to Pennoyer; If you can’t get personal service, PJ can still be obtained through implied consent (Nonresident motorist statute- consents to the appointment of a state official as an agent) 3. Domicile: the place where the person resides and intends to remain for the indefinite future. When you establish domicile, you establish a relationship with the forum. a. Milliken v. Meyer (1940): Relationship to state is not dissolved by mere absence from the state. B. EXPANSION of Personal Jurisdiction: Specific and General 1. Minimum Contacts Test: International Shoe Co. v. Washington (1945) (a) To get PJ over non-resident D, D must have “such minimum contacts with the forum so that exercise of jurisdiction does not violate traditional notions of fair play and substantial justice” (14th Amend) (2 parts: MC & fairness) (b) Corporations have a ―presence‖ in state when in-state activities are continuous & systematic, but power is limited to cases arising out of those contacts.
(c) First time we see that a state can assert jurisdiction over something not physically present in the borders

2. General Jurisdiction- If contacts are unrelated to the claim, the contacts must be continuous and systematic to have PJ. (a) Can be sued in this forum on a claim that arose anywhere in the world. Connection to state must be consequence of D’s own choice. (b) Helicopteros Nacionales de Colombia S.A. v. Hall (1984) i. Rule- casual & isolated contacts are not enough to establish PJ, when cause of action did not arise out of those contacts. ii. Case involving helicopter crash in Peru does not arise out of or relate to Texas but is very closely connected to Texas. iii. For forum to exercise PJ, D must have minimum contacts that do not violate fair play. 3. Specific Jurisdiction- If the contacts are related to the claim, you can get PJ even if the contacts are casual & isolated. (D sued for a claim that arose in the forum.) (a) McGee v. International Life Insurance Co. (1957) i. Court: Sufficient for Due Process that suit was based on a contact that had a substantial connection to the state ii. Solicitation/Relatedness/State’s interests (Bar/Bri) iii. Ask: What has D done to subject himself to jurisdiction? (b) Gray v. American Radiator & Standard Sanitary Corp. (1961) i. Valve made by Titan in OH is sold to American in PA for placement in water heater, and then sold in IL, where it injured Gray ii. AR has activity related to state but Titan does not iii. Jurisdiction is justified also for Titan because D realized there could be a consequence in the state (indirect connection) iv. Rule- Reasonable notice. D should be able to reasonably foresee potential litigation as part of due process. C. LIMITS Imposed 1. Hanson v. Denkla (1958) (a) Rule- To be a contact under Shoe, must result from D’s purposeful availment; D must purposefully avail himself from the privilege of conducting activities

3 with the forum state, thus invoking the benefits and protections of its law. Unilateral activity does not satisfy MC. (b) PA woman w/ trust fund in DE; moves to FL. After her death, is DE bank subject to FL jurisdiction? Holding: NO. Bank did not avail itself to FL. 2. World Wide Volkswagen Corp. v. Woodson (1980) (a) Did OK have jurisdiction over the regional distributor (only does business in NJ, CT, and NY), & over Seaway (only does business in NY)? Holding: NO. (b) Rule 1- Purposeful Availment. D must reach out and avail themselves to the forum. (Unilateral act by P is not purposeful availment.) (c) Rule 2- Foreseeability: Is it foreseeable that D will be sued in that forum? (NOT Is it foreseeable that the product will get to that forum?) (d) Compare to Gray i. Difference is Titan’s product was sold in IL. j. Titan was acting for benefit of Titan; Robinsons were not. 3. Asahi Metal Indus. v. Superior Court of CA (1987) (SPLIT: no law produced!) (a) Motorcycle accident in CA. Sued Taiwan tube manufacturer, who sought indemnification from the manufacturer of tube’s valve (Asahi). Asahi manufactures in Japan, sells assemblies many places including CA. Holding: CA cannot assert jurisdiction over Asahi (b) Purposeful Availment 1. O’Conner (Majority)- Awareness of the stream of commerce does not create minimum contacts; you also need actions purposefully directed (intent) to the particular state (ex- serving the market there, or advertising). ―substantial connection‖ 2. Brennan- It is a contact if I put the product into the stream of commerce and I reasonably anticipate that it will get to that state. (Makes sense, bc I’m making money off that state whether I distribute there directly or indirectly) (c) Reasonableness to see if there are minimum contacts 1. Convenience: consider burden on D and interests of forum state. 4. Defamation/Targeted Wrongdoing- Calder v. Jones (1984) (a) Shirley Jones files suit against the National Enquirer and Writer/Editor for a salacious article about her, published in places including CA, where she lives and center of her business. Holding: There is specific PJ. (b) PJ okay when the targeted harm is expressly aimed at the forum; knowing the victim would feel the effects in the forum; reasonably foresee that harm would be felt in that forum.
(c) An intentional connection gives the state a legitimate interest in asserting PJ; avoid it by not intentionally acting wrong.

5. Contract Disputes- Burger King v. Rudzewicz (1985) (a) Rule: 2 parts to Shoe test: MC and fairness. You must have a relevant contact before fairness is even considered. PJ is proper where there is a ―substantial connection‖ with that state. (b) Fairness: Little guy was not so ―gravely inconvenienced‖ to be at a ―severe disadvantage.” (The relative wealth of the parties was irrelevant.) 6. Property Based JurisdictionHarris v. Balk (1905) (a) Harris (NC) owed Balk (NC) $180. Balked owned Epstein (MD) $300. While Harris visiting MD, Epstein served him with a writ of attachment of the debt from Balk due Harris, thus acquiring quasi in rem jurisdiction over Balk. (b) SC: ―the obligation of the debtor to pay his debt clings to and accompanies him wherever he goes.‖ (QIR jurisdiction allowed Epstein to reach Balk in MD)

Convenience Suing at home. (d) Rule: All assertions of state court jurisdiction. (b) Rule: (transient service): presence of an individual in the forum state allowing for personal service is sufficient to establish PJ (if present. With MC (before): presence not necessary. If so. Transient Service.Burnham v. If not. McGee: contact upheld jurisdiction) 2. Receiving a piece of paper in a state does not make a contact. w/ PPB in AZ. Greyhound is a DE corp. D. Now: presence of property is not even sufficient! 7.Traditional (Pennoyer) is good! No need to look at MC! Jurisdiction is justified by power and tradition. He was a NJ resident but was in CA for business and was served at P’s house while visiting his children. 4 justices say that’s good enough for PJ. (2) Brennan.4 Shaffer v. don’t need MC). (c) The court split 4-4 on this issue:: (1) Scalia. Previous standard was Pennoyer (presence of person or property was sufficient and necessary). and that means we have to have continuous or systematic ties with the forum (b) Inconvenience to the D 1. Burden is on D to show that it’s so gravely inconvenient he is in a severe disadvantage (Burger King) (c) State’s Interest in protecting/providing a forum for its citizens (d) Plaintiff’s Interest (e) Legal system’s interest in efficiency (f) Interstate Interest in Shared Substantive Policies E. consent. 4 other justices say they need minimum contacts. over transactions that occurred in Oregon. Minimum Contacts (a) Is there a relevant contact between D and forum? (b) Is there purposeful availment? Does D reach out to the forum in some way? (c) Foreseeability? Is it foreseeable that D could be sued in forum? 3. Superior Court of California (1990) (a) P brought suit for divorce against her husband in CA state court. 2. CONSTITUTIONAL TEST OVERVIEW 1. Procedural Advantages Preference in American courts rather than abroad b/c of procedures . H: DE doesn’t have PJ over D (the statute was inconsistent with DP). presence.Traditional basis are out the window. domicile) that applies? If yes. Values and Bias Judges and juries have certain values and biases. then Jurisdiction will only be okay if we have general jurisdiction.. may be less expensive to sue where event happened 2. helps find juris (i. Fairness (a) Relatedness. is there is a traditional basis (power. Heitner (1977) (c) Heitner owned one share of Greyhound stock. although not a DE resident. including in rem and quasi in rem must be evaluated under MC Mere presence of property that is unrelated to the claim is not sufficient to assert in rem or quasi in rem jurisdiction. (e) This decision assures that minimum contacts test is the new standard. Why Litigants Care About Forum Choice 1. Possibly hometown sympathy could favor plaintiff 3.e. Every case must be assessed by Shoe. and presence itself is a minimum contact. less burdensome. First ask.does P’s claim arise from contact w/ the forum? 1. P sued in DE.

14th constrains State Power. but nationwide jurisdiction was granted through 4(K)(2). Nationwide Jurisdiction 1.In General. Fed courts are subject to all the limits of the state court (state long arm statute and DP)  4(k)(1)(b). regardless of other parts of this rule  4K2. made by congress. FRCP basically makes the 14th amendment apply to federal courts. P could not sue in VA because there was not enough contact with the state. Rule 4K.the D is not subject to jurisdiction in any state’s courts of general jurisdiction.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. with not enough contact w/ a particular (OR ANY) state to assert jurisdiction there.Exercising jurisdiction is consistent with the United States Constitution and laws.Federal Claim Outside State-Court Jurisdiction. where GMAC is located. Choice of Law Forum applies ―conflict of laws‖ to determine what the applicable law should be Conflicting doctrines impact forum choice because no longer is there a clear set of rules for everywhere III. Long Arm Statutes 1. o This is a Small number of cases: Use 4k2 when it’s a Federal Claim. Provides for nationwide jurisdiction when conditions are met:  Must be a federal cause of action. and  4(k)(2)(b). Specify the scope of that state’s PJ authority C.fed courts can’t have jurisdiction over state borders. GMAC v.  For a claim that arises under federal law. PJ is only proper IF: 1. Raju (2003) a) India citizen registered Internet domain names to sell GMAT test prep materials. or  4(k)(1)(c). Jurisdiction is constitutional (use constitutional analysis above) B.5 4. Sued in VA.Who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located. o Backdoor application of 14th Amendment . so that courts are by and large constrained by state borders 3. allows you to serve process anywhere in the USA. 5th Amendment constrains Fed Power.  ONLY if D is not subject to any state court’s general jurisdiction. Serving a summons or filing a waiver of service establishes PJ over a D:  4(k)(1)(a). 4.Territorial Limits of Effective Service  4K1. 2. o EXCEPTION: a specific statute. However. . The case falls within the terms of a state statute (Long Arm). but enough contact w/ the nation as a whole that it wouldn’t be a violation of 5th amendment. STATUTORY LIMITS ON PERSONAL JURISDICTION A. and 2.When authorized by a federal statute. serving a summons or filing a waiver of service establishes PJ over a D if:  4(K)(2)(a).

6 b) In determining SJ. courts must consider (1) purposeful availment. (2) activities directed at the state. 173) . and (3) if PJ would be constitutionally reasonable. (p.

iii. or federal question. Serve D’s agent 4. Due Process right: the opportunity to be heard and be informed of a lawsuit a.Complaint. b. Ask. P might have to post a bond. Tust fund gave notice in a newspaper to 113 beneficiaries. Due Process a. Notice: crucial DP right: if you don’t know. How do we serve a human beings. (One exception: some FQ cases that are exclusive to fed courts. some on listener to make himself aware and some on speaker to make info available 1. Mechanics of Service of Process . If D does not return waiver form. D should get a hearing at some point.Process. Complaint starts the lawsuit. Allows you to mail the process and a waiver form to D with a SASE. Summons shows power of the state ii. most didn’t see it. Central Hanover Bank c. iv.Service. 2. Court: this did not satisfy the notice requirement of 14th amendment b. FRCP 4. c. Substituted service a. D must be given notice. PJ simply tells you that you can sue D in a particular state. Personal service: walk up and hand it to you. P must serve with process. Rule: Notice must be reasonably calculated under the circumstances. the summons itself . there was an easier way to serve D.the thing being served. Mere publication was not enough. Service of Process a. Mullane v. Central Hanover Bank (1950) a. Serve someone of suitable age and discretion who resides there 3. Service can be made by any nonparty who is at least 18. SMJ tells us which court to go to. Determining who has the bigger burden is highly contextual 2. Must be at D’s usual abode b. you can’t participate b. Subjective Awareness. says nothing about which court to go to once in that state. have limited SMJ) State courts have general SMJ: State courts can hear any kind of case. v. factors court looks at: i. it is exercised over the case. Process consists of 1) the summons and 2) a copy of the complaint. Only penalty to D: D may have to pay the cost of service. where’s the bang for the buck? B.7 NOTICE (from BAR/BRI): In addition to PJ. 3 alternatives under 4(e)(2) 1. (federal courts can only hear certain kinds of cases. Based in adversarial truth because the arguments should enable the jury to pick the best side and also participation helps draw people into the legal system so they are more likely to respect an outcome 1. II. b. Constitutional Test. A. 1. P must give an affidavit (sworn statement as to why he’s entitled to property back) ii. SMJ is not exercised over parties. Mullane v.delivery to the party . Constitutional Requirement A. c.) Two kinds of cases fed courts can here: diversity of citizenship. Opportunity to be heard. Must get an order form a court. Under the circumstances. Allows waiver of service by mail.comes with a tradeoff of responsibility.includes the right to present your side of the story. Must be served with the summons!! . i. Affidavit must state specific facts iii.more detailed information of the claims/parties. NOTICE I. Waiver of service under 4(d) a. Right to Participate.

Must be signed by clerk and sealed . Single best collateral attack is one that says you never received service . addresses of P’s attorney. or authorized by fed statute. o Requesting waiver.Serving an Individual w/in a Judicial District: follow state law in state where district court is located.4m.4i.follow international agreements.4g. if not available. Need a complaint to order a summons. Outside US.4n.4k. So if state law says you can just mail it. to the US Attorney General. Summons is a document of the court.Summons must be served with copy of the complaint o 4c2-3. use country’s laws.Waiving Service:**This is not service by mail.Issuance: summons must be filed w/ court. unless good cause .Serving someone if foreign country: Use rules from Hague Convention/International agreements or.Service o 4c1.Serving foreign/state/local gov't: o Foreign. then court can impose expenses needed to make service (D has a duty to avoid unnecessary expenses of service) o Time to Answer.4a: Contents of summons.Serving Corporations: follow state law or deliver summons to officer or agent.4e.request to waive service of summons by written request to def o Failure to waive. if you can’t deliver it personally. Or.4j. o Deliver a copy to someone appointed to receive process o You still have the option of serving according to the law of the state.anyone over 18 that is not party of the suit can serve (lawyer can serve). time limits.Proving Service. You can’t just leave it there.4f.Server has to sign an affidavit (sworn statement). hand deliver.deliver copy to CEO or follow state laws for serving type of def . or receipt. signed by the clerk.if def doesn’t return waiver w/in time limits. hand deliver.Jurisdiction over Property/Assets: .serve US and also the Officer o Officer Individually. because mail itself w/o acknowledgment does not provide service of process.Time limit: serve within 120 days after complaint is filed. use international law or country laws .4d. Summons is drafted by P. For outside state jurisdiction.Serving US/Agencies: o US.4c.deliver copy to district attorney (or assistant). It allows waiver of service by mail.def can’t be subject to any state jurisdiction and jurisdiction is consistent w/ Constitution (detailed above) . Rule 4. and to any agencies/officers involved o Agency/Officer in Official capacity. or deliver to an agent o Delivering a copy to the individual o Leave it at the house with another person of ―suitable age‖ who lives there.Serving Minors/Incompetents: follow state laws. or if out of country use country’s laws .names of court/parties.use US Code o State/Local. So.4b.serve US and officer o Allow reasonable time . then you can . and mail copy to all defendants OR if out of country. leave copy with someone at home. a default judgment can be entered against him.60 days to file answer after request for waiver sent (90 if out of country) This is a longer time than if they were just served . Sometimes done by US Marshal . or send copy to civil-process clerk.Territorial Limits: summons gives jurisdiction if def is subject to jurisdiction in that state.Summons (a call to court) .4h.8 - If D does not respond to summons.4l. you have to give it to someone else. or letter w/ receipt . .

Must also mail a copy to each D. D must pay expenses to track himself down. If D does not agree to waive service. 4. Serving corporations: To a managing or general agent or any agent authorized by appointment or law to receive service of process. 7.c) You can borrow state law for serving summons where district court is located or where service is made. You have 120 days to serve the defendant. P can request to waive service to avoid expense. 9. 2.b. 8. party or attorneys who have entered to participate in unrelated judicial proceedings (to encourage people to attend the proceeding) Requirements for Service of Process (Fed Rules of Civil Procedure Rule 4) To bring a complaint against/sue someone: 1. Rule 4(c)(2). 6. Rule 4(c)(2)(a. Rule 4(c)(1). Rule 4(2)(b). 3.if authorized by fed statute.9 o Federal law. Rule 4(m) The complaint must be accompanied by a summons. Anyone at least 18 and not a party can serve the summons. File a complaint with the court.seize assets following state law.usually similar to FRCP Immunity from service o Many states allow people immunity from process when they enter the jurisdiction for reasons such as witness. Get the summons from the clerk. . 5. State service of process. Leave the service with someone of suitable age and discretion at the D’s home. Notice must be given o State law.

They have PJ. Piper Aircraft Co.CORPORATIONS  Corporations are deemed to reside in all districts where they have PJ. Plane rash in Scotland. OR  If there’s no other district. Federal: in which district can D be sued? 28 USC 1391 o 1391A. d. Forum Non Conveniens a. State and Federal Venue Statutes a. v. then in a judicial district in which a single D may be found (this is narrower than in A)  Seems backward that the more broad option is in diversity. witnesses) before deciding to dismiss the case. manufactured in US.determines where a P can bring a suit. the only forum that can hear that case is where the land is located. Effect: just as P looks for best laws. concerned with ―convenience of trial. Court dismissed the suit because the action was ―local‖ and could only be brought in Louisiana. then in a judicial district where any D is subject to PJ at the time of the filing o 1391B. Rule: weigh public (nature of the claim) and private interests (convenience. Other Notes: i. Venue. venue will not make a difference because they’re in the same places as PJ. Litigation in US is dismissed b/c center of gravity is Scotland. Focuses on convenience b.it will probably never be refiled because it would be too difficult and expensive. b. Usually.10 VENUE: allocated judicial authority within jurisdiction. P may lay venue…  #1 and #2 are same as above. which is any state where it has minimum contacts d. use the law of the new forum c. where the land was located. 1391 only applies if an action is FILED in fed court—no application to cases removed from State court ii.if the case is moved outside the US. Practical Effect. No reason why congress did this o 1391C. Key Exception is the Burnham case. but may not have venue III. The Local Action Rule a.‖ I. When title to land is involved.For DIVERSITY actions. cost. Allows courts the discretion to dismiss an action that would be more appropriately litigated in another forum even though the proper jurisdiction and venue requirements were met in the first forum b. State: intra-jurisdictional: where within a state the suit can be brought? c. OR  If there’s no other district. . D can also to do the same thing: when the case is dismissed and re-filed. Livingston v.For FEDERAL QUESTIONS. It allocates judicial authority within a judicial system. We do not use A3 or B3 very often… coming up with a hypo is challenging iii. ii. P may lay venue:  District where all the D’s reside  District where a substantial part of the relevant events occurred or where a substantial part of the property that gave rise to the action is located. II. where we’re more concerned about forum shopping. Jefferson i. where someone is served in a state where they don’t reside. Reyno (1981) i.

De Novo/Plenary Review. There must also be a more appropriate forum. P transfers back to PA ii. they will wipe out everything d. iii. c.Low Deference to P’s choice. and it if you are correct. Case is just moved to a new location ii. 28 USC 1404 i. Rule: Laws of the transferor court should apply regardless of who initiates the transfer. Provides for transfer from one federal district court to another as an alternative to outright dismissal ii. Must move case from one federal court to another v. Ferens et ux. 28 USC 1406 i.after the case they can review. all it would do is keep P from transferring but they can still forum shop. Facts: P from PA lost hand on combine harvester. Law. Appellate Review. 28 USC 1407 i. If the court decided the other way. IV. but they will apply the law of the new forum e. Actions pending in different districts can be transferred to a single district for coordinated/consolidated pretrial purposes . John Deere Co. Files suit in MI because of longer statute of limitations. Moves to another court in the same system: Federal. V. where D can submit to PJ in the alternate forum) b. Low Burden. Applies when the venue/jurisdiction are lacking in the original forum. Can only transfer to a district where P could have originally filed suit (Different from FNC. Easier to acquire transfer iv. Key Factors: i. (1990) i.not dismissal. Transfer a.11 iii. Transfer.Must apply Same Law that was used in the transferor court iii. The possibility of an unfavorable change in law by granting a motion to dimiss under forum non conveniens should not by itself bar dismissal. 1404 does not bring with it a change of law. Court can either dismiss the case or transfer it to the proper forum.

based on citizenship of ALL members 1. then it’s not your home 3. Rose v. Federal courts.citizenship and residency are different between diversity and venue iv. P is a limited partnership. Standing to Sue. Keep in mind.12 SUBJECT MATTER JURISDICTION I. Unincorporated Associations. Rationale/Complete Diversity Requirement i. given by Congress i. 28 USC 1332 (Diversity Statute) For Diversity Jurisdiction: a. Limited Partnership. Probate – refuse to hear b. Arkoma Associates (1990) a.limited SMJ (and some exclusive jurisdiction. Court decides . Facts: Rose joined Reds and MLB as Ds.courts of general/plenary SMJ: can hear cases on any type of claim b. II. Rule: citizenship of every partner in a limited partnership is considered when determining diversity. Amount in Question must be MORE than $75. Time Frame. Exceptions to Diversity Jurisdiction a. Rose filed to remand to state courts. State courts. 2. Giamatti (1989) a. 3 Section 2. D was from LA. 2.Carden v. Has jurisdiction only over categories in Art. there must be complete diversity. ii. 1 partner (LA). b. Diversity Jurisdiction a. We have lower courts because there’s not enough ability for one supreme court to police all of the state courts c. No need to move to federal court 4. Where you live and play to stay indefinitely. Article 3 is Madisonian compromise— creates a Supreme Court. Rule. Parties Must Be Diverse b. Complete Diversity.Citizenship is determined at the time the suit is filed ii. If there is at least 1 D from the same state as 1 P. then the nondiverse D protects the interests of all the D’s. Then. Giamatti filed for removal.where you will return 2. Citizen of 2: place incorporated & PPB (place decisions made) 2. Can only have 1 domicile. Curtiss (1806) 1.Standing rules require that a party asserting legal right be the appropriate person to enforce that right.Where the interest is joint. Courts can address issues of SMJ sua sponte.on its own motion d.antitrust).000 3.28 USC 1332(c)(1) 1. Even if you live somewhere for an extended time but know you’ll leave. Determining Citizenship/Joinder Issues i. Domestic Relations – fed courts traditionally refused to hear cases dealing w/ domestic relations even if diversity and amount in controversy have been met b. Corporations.Strawbridge v. your citizenship doesn’t change until you get a new domicile iii. Introduction a. When you leave a place. 1st congress creates lower federal courts. Congress has the option to change.Citizenship is their place of Domicile 1. Natural Citizens. iii. but allows Congress to create lower federal courts if it wants.

2. Multiparty. Keeps diversity.claims between citizens of different states must have an amount in controversy that exceeds $75. Diversity Jurisdiction and Complex i. Citizens of different states.cannot add up 4.each D responsible for amount of damage they caused .gives diversity jurisdiction over controversies between: 1. Alienage Jurisdiction i. c. Claims of separate plaintiffs seeking similar relief against D.000.no diversity 5. Rule: Parties fraudulently joined should not be used in determining diversity. Amount in Controversy i. 28 USC 1332(a). which made it irrelevant for states to dismiss non-diverse parties because a case that is not removable when filed can’t become removable through dismissal. d. Single P asserts more than one claim against a single D add them up (claims do not need to be related) 2. Notes: 1. The fraudulent joinder doctrine is a direct response to the frustration of the Involuntary Dismissal doctrine. the federal courts have to decide.unless D can show that to a legal certainty that the claim could not exceed $75. and citizens of a state or different states ii. Aggregation of Claims 1.13 they’re not going to count the non-diverse defendant’s because Rose doesn’t really have any grievance against them. iii.no jurisdiction 4.Yes jurisdiction iii. Liability a.cannot add up 3. Instead. Multiforum Trial Jurisdiction Act 1. in which citizens of foreign state are additional parties 3. Citizens of a state and citizens of a foreign state 2.000 ii. Reasons 1. Americans living Abroad are precluded from suing in diversity 3. c. A foreign state as plaintiff. then the amount in controversy must be taken at face value. b. Aliens that have a permanent US residence are treated as a citizen of the US state that where they reside 2. To mitigate local bias against foreigners by allowing foreigners to remove to federal courts To compel aliens to litigate in state courts would be an affront to the sovereign nations from which they come. Legal certainty test. Several. and alien is on the other. 28 USC 1332. Separate P’s can unite when they have a common and undivided interest. Fed court should disregard nominal or formal parties and determine jurisdiction only on citizenship of real parties to the controversy. Suit in which alien and citizen are on one side. Suit in which citizens of different states are on both sides along with aliens on each side.add them up e. Suits between 2 aliens. Single claim against multiple D.

P sues for birth defects suffered as a result of meds moms took while preggo. Named representative brings suit on behalf of himself and others in similar situation 2. Smith. Federal Question Jurisdiction a. Joint. Holding: No FQ jurisdiction. violated an FDCA regulation. iii.14 b. iii. as long as it’s necessary that a Fed claim be brought up. Joint homeowners both sue for full damage) ii. Not enough that fed law issues are simply present. P claims the meds didn’t have warnings. Kansas City Title & Trust Co. d. 5th amendment was an anticipated defense and not the source. Congress passes a law: RR’s cannot honor free passes. b. The case comes out the other way bc the Constitution was not used as a defense. No amount in controversy requirement.000 4. Merrell Dow Pharmaceuticals v. Rule: Federal law must provide an essential element of plaintiff’s claim. Rule: Need to look to the source of the suit to determine if it arises out of federal law. Federal law must create the underlying cause of action. Well-pleaded complaint Rule: A suit arises under a FQ only when P’s complaint (looking at the claim itself) is based on fed laws or Constitution. Fed law is dependent on D using it as a defense. iii.must be common and undivided. This case fails the Mottley test because fiduciary duty is state law. Mottley (1908) i. c. federal law just authorizes the investment. In Mottley. “Arising Under” Jurisdiction. When brought in fed court on diversity.each D is responsible for full amount of injury. Basically. the underlying cause of action being enforced was a creature of state law. M’s sue. so the P had to bring it. FQ jurisdiction. Congress made changes in Class Actions b/c they were upset with how states were handling it III.Louisville & Nashville RR v. ii. iv. ALSO need a federal standard. Federal law must be sufficiently central to the claim asserted. It’s an essential part of P’s claim. ii. H: Yes.ex.we look to the main P for diversity 3. so RR stops honoring M’s passes. Compare the well-pleaded complaints: Mottley.the only way P can explain they were wronged is by talking about federal law. i. In this case. Opposite: If federal cause of action turning on state law: not enough for FQ jurisdiction. Multiple Party suits. Even though the case turned on federal law. (1920) i. Class Action Fairness Act 1. Each bears complete responsibility to P 2. Each class member’s claim must be above $75. not a defense. ii. Both parties have to share the same injury (not just same type. . it wasn’t necessary.we don’t need federal law to show that the P is being wronged. Shareholder Smith: the act of congress (Federal Farm Loan Act) allowing KCTT to invest in farm bonds is unconstitutional. RR defense: this violates DP. Mottley received lifetime passes in settlement with RR. Smith v. 28 USC 1331: The general Federal Question statute. Thompson (1986) i. iv.everyone is responsible for harm. Joint and Several. Federal law must be part of the claim. but burden is on P to bring all parties to the suit c.

just enhances P’s case.Here.a. Under Mottley. Declaratory Judgments i. but also ways to distinguish. Rule. Is a federal issue central to the cause of action? 2. Allows someone file a lawsuit simply to get a declaration of rights and liability.15 Holding: No FQ jurisdiction. so long as they are so closely related to the underlying dispute as to constitute a part of the same case or controversy (Pendent) i. If D sues first. fed law does not provide remedy. (Merrell seems overrule Smith.o.if the counterclaim is related to the claim against the party (arises out of same t/o). Would this interrupt the division of labor? (Would it open the floodgates?) f. and IRS grabbed his property and he defaulted in court. Facts: P didn’t pay taxes. Darue (2005) i. aka If someone who was set to be the D in a lawsuit is first to file for the Declaratory judgment. Holding: Yes. Not a fed c.(Revives Smith) It’s still possible to have FQ jurisdiction when the fed law is essential to a state cause of action iii. asking court to declare the rights of 2 parties.No. however. FQ. Is it a substantial federal issue? (Is there strong fed interest?) 3. This is not good enough for FQIdentify what the underlying coercive claim would be and evaluate FQ on that.Yes. 1. Congress had a choice when passing the act. is now on the plaintiff’s side. Supplemental Jurisdiction a. fed law is essential to P’s relief v. USC 1367: Federal courts can hear claims that invoke FQ jurisdiction. Grable & Sons Metal Products v. Under Smith. 2. You cannot get juris when D is claiming a federal defense. and said not enforceable by P in fed court by FDA. Rule: The use of a federal standard in a state law issue does not arise under federal law. the court will recognize this and still treat them as the D. ii. 1. Congress did not want P to have remedy. it must be asserted or it is waived . The Mottley rule (that the fed statute must be on the P side) does not apply to declaratory judgments. iii. IV.P or D can assert as many claims as he has against the other party. P has other ways of establishing deficient labeling than fed law. then something that is federal that would be used as a defense.Compulsory counterclaim. A kind of injunctive relief. Ancillary: D can assert a state law counterclaim or 3rd party claim with no diversity of citizenship in Fed court as long as there is no independent basis for jurisdiction JOINDER OF CLAIMS AND PARTIES UNDER THE FRCP  Rule 18 – Joining claims against one party o ―Kitchen sink rule‖. ii. Then brings an action saying judgment is not valid because he was not served properly based on Federal regulations on service. on paper they look like the P. iv.) e. ii. Grable Three-Prong Test: 1. they do not have to be related  Rule 13 – Counterclaims and cross-claims o Authorizes party to assert counterclaims against anyone who has asserted a claim against them o 13A. Not using fed law it is not fatal to the case: Not really essential. including individual claims or issues that do not.

not easier) but they’re linked b/c there’s an expectation that the 2 parties can resolve their full dispute. same facts and evidence ii. Gibbs (1966) 1. claiming NYCE has a monopoly (FQ). under (13A) should have supplemental jurisdiction. The test is ―same transaction or occurrence‖ aka logically related.unrelated claims are permitted but not required 13G – Crossclaim. not just claims. Additional Parties i.Permissive Counterclaim. Owen Equipment & Erection Co. v. Facts: P: UMW violated federal law. c. The theft and anti-trust cases did not have a common nucleus (no same witnesses. Court let his other state claim in as well. United Mine Workers of America v. 4. as long as they share a common nucleus of operative facts. Allows D’s to battle it out for who gets what stake of the claim  must be able to join all parties under Rule 19 for it to be successful. 3. Compulsory counterclaims.allows parties to assert ―cross-claims‖ against non-adverse parties (such as co-defs). Not diverse. Rule: Pendent Jurisdiction allows court to assert jurisdiction over the whole case when part is state and part is fed court. it’s idea of setting a common dispute 4. as this was with one federal and one state claim that are different. Kroger (1978) . NYCE counterclaims that Odd Lot is stealing info (not FQ).(1) Protect the fed court mission of hearing fed claimscourts don’t want to discourage parties from adjudicating fed claims in fed court. 2. Article 3 gives court jurisdiction over cases. and a case can arise under fed law even if it has state elements.if the party can’t be joined.16 13B. but only if those claims are related to the original action Rule 20 – Joinder of parties o Parties may be joined as P or D if claims by or against the joined parties arise out of the same transaction or occurrence or are linked by common question of fact or law (just a loose common connection) Rule 14 – Impleader o Allows any party defending a claim to ―implead‖ a 3 rd party def who may be liable for indemnity on that claim Rule 19 – Required Joinder of Parties o Authorizes court to order the joinder of any party needed for just adjudication o 19B. Reasoning.common nucleus. court can stop the lawsuit  as a practical matter if you couldn’t bring a party into court it would subject the other party to substantial risk of obligation or impair or impede ability of that party to protect oneself. so Gibbs used FQ to get in fed court on the labor law claim. Rule: Ancillary Jurisdiction allows federal court to assert jurisdiction over a non-federal claim when the 2 claims arise out of same transaction or occurrence. 3. 2. (2) Efficiency. A ―case‖ isn’t just evidence. New York Cotton Exchange (1926) 1. Moore v. Rule 24 – Intervener o Person interjects himself into the lawsuit w/out request by pl or def (crashing the party) Rule 23 – Class actions o Asserting the claims of similarly situated parties Rule 22 – Interpleadero the same property held by P. o o       b. Facts: Odd Lot sues in an antitrust case. The Origins of Supplemental Jurisdiction: Pendent/Ancillary Claims i.

Scalia: Can add pendant claims. Star-Kist Foods (2005) i. Covers claims by persons proposed to be Plaintiffs under 19 or 24 iv. Exxon Mobil v. but not all the class members met the minimum amount ii. (The anchor claim met the minimum amount in controversy to get into federal court. H: Fed cannot hear. Rule: When other elements of jurisdiction are present and at least 1 P in the action satisfies the amount in controversy. United States 1. a. If the 2 claims are so related that they form the same case or controversy. When supp juris over such claims would be inconsistent w/ §1332 – trying to help P in Kroger if she hadn’t chosen the forum.) iii.17 1. 24. Rule: P cannot add non-diverse parties to a diversity suit. even if they don’t meet the minimum amount. (They did. or 3. Kroger amends complaint to include Owen. Congress Responds to Finley: Supplemental Jurisdiction-28 USC 1367 i. Only applies to diversity jurisdiction 2. Finley v. Power Co. Power Co. Facts: Airplane crash at San Diego airport.) iii.) d. in diversity. 20. b. impleads Owen (crane owner) under Rule 14(a). After trial beings: Owen is actually from IA. Is there jurisdiction over state claims & parties in fed question case? 2. it would have been different bc D’s can implead non-diverse 3rd parities and stay in Fed Court (because D didn’t choose fed forum). Suit was filed in fed court for diversity. they would pass a statute. stayed. Facts: Exxon dealers file a class action suit against Exxon for a scheme where they were overcharged for fuel. Allapattah Services Rosario Ortega v. ii. ii. Even though P had no choice of forum. Default Rule: 1367A 1. It would be inconsistent with the notion of supplemental jurisdiction to require that all claims in the complaint have to stand as indivisible actions . (Does not distinguish between diversity and FQ jurisdiction. if she filed in state court e. they have supplemental jurisdiction over all claims and additional parties. Not constitutional problem. not FRCP problem. Wife sues Power Co. Embraced Gibbs. overruled Finley. If Power Co. Fed claim against FAAmust sue in fed court (by law). Problem occurred when Kroger added Owen to complaint: Court doesn’t want to allow P to add in a non-diverse party b/c then Ps can abuse the diversity rule. If it was a federal question. and there is no diversity. 4. 2. go back to default) 1. drops out of the suit. Carve Out Exceptions: 1367B (otherwise. CANNOT add pendant parties. they could have. 1367 authorizes supplemental jurisdiction over the claims of the other P’s in the same case. If Congress wanted to. But first case was based on diversity. Facts: Kroger (IA) walks near crane near power line and gets electrocuted. Covers claims by Ps against parties joined under R 14. 3. 19. Congress: must have complete diversity under 1332. codifies Kroger. State claims against San Diego and Electric Co.

Guaranteed. then P can remand under 1447 vii. The Structure of Removal i. all D’s must agree to remove. You can.1441B says D has to be properly joined and served. ii. Diversity Cases. Claim is always removable when it arises under federal law.it’s automatically removed 1.1441B 1. v. D has to be the one to remove. iv. Subject Matter Jurisdiction i. iv.Limited. For SMJ. V.28 USC 1446 i. Unanimity rule: If more than one D. D has 30 days after service of a removable claim to remove the action. Make an appearance in the state for the sole purpose of arguing lack of personal jurisdiction. Almost any case that could have been brought in federal court can be removed to federal court. D cannot remove on grounds of Diversity jurisdiction if D is sued in his own state court.some courts allow this. v. Post Allapatah. Challenging Forum Selection a. Motion to remand must be made within 30 days of notice of removal VI. as determined by P’s complaint even removed by D in home state. All D’s must agree to remove.If D has home field advantage. you cannot add additional plaintiffs under 1367 if doing so would destroy complete diversity. no need to sue in fed court. iii. Reason. It’s the judge’s responsibility to determine if it exists (even if no one raises the issue) iii.1441B 1. Procedure for Removal. Only removable if none of the parties are home-state defendants. b.you can collaterally attack even if you contested the first judgment b. Special Appearance 1. SMJ is determined first iv. add additional plaintiffs if the additional plaintiffs do not meet the amount in controversy. Only in FQ cases: Removal of entire case if the removable federal claims are ―separate and independent‖ from any non-federal claims vi. Federal Question. Removal is allowed only if P could have chosen to bring action in Fed Court initially but didn’t. Glitch. Usually. ii. it is NOT removable) 2. Personal Jurisdiction i. Collateral Attack . Remand 28 USC 1447 1. D could try to remove before being served. ii. however.28 USC 1441 a. Collateral Attacks are available (like PJ). Must be within a year of the original filing (Fed Question has no time limit) viii. 12H3. D can remove to federal court in a different state. others do. D must file notice of removal in district court of the district and division where the action would be pending. vi. (if there is a home state D.Lack of SMJ can be raised at any time ii. 1. v. iii. If it shouldn’t have been removed. 28 USC 1441C 1. Only D can remove.18 iv. The minute the notice is filed. Removal Jurisdiction.

you cannot argue the case on the merits. defendant can argue that the judgment is invalid because of no jurisdiction.Later in Outline . Motions to dismiss. c. If you lose.19 1. After a suit is completed. You’re putting all eggs in one basket.

ii. 2 Legal Texts give Guidance i.rights and remedies (how you act in the world. ii. Tyson (1842) i. Go with federal law. Gives more power to P. iv. unless controlled by Constitution/treaty/act of Congress II. Erie is substantive. Tompkins (1938) i. Limits Federal Power: Powers not delegated should be reserved for states. Rationale. iii. state law applies unless a statue says otherwise b. Diverse litigants should not have different rights than non-diverse litigants.20 THE LAW APPLIED IN FEDERAL COURT I. except where the constitution or treaties of the US or Act of Congress otherwise require or provide. Introduction a. v. shall be regarded as rules of decision in civil actions in the courts of the US. Common law is law. Swift v.) ii. SUBSTANTIVE v. Story: If legislature passes a statute. use state law. Both statutory and judicial decisions constitute law 2. 10th Amendment of Constitution 1. but the interpretation of the courts of common law is not state law because it’s just the judge’s opinion and shouldn’t be binding on federal courts. Basically. but their own federal procedural law a. Ends vertical forum shopping (state to fed): No need for D to remove to federal court because the law applied will be the same. Creates Forum Shopping problem: 1. vision of law changes 1. the federal court was not bound by the state court’s interpretation of the common law.Equality. P sues RR in NY fed court for negligence. Required federal courts to apply state substantive law. Procedural. Go with State law. State law is the default. The federal court should follow state judicial decisions. When federal power isn’t explicit. Substantive. Creates the federal courts 2. PROCEDURAL law 1. then that’s law. and what you do to fix a wrong). The laws of the several states. (PA state law makes P contributorily negligent. Creates horizontal forum shopping (state to state): P can choose between state laws 2. Facts: PA citizen was injured in PA by NY train. Rule: In matters of common law. No ―general‖ common law b. Fed has to follow state over something things but they don’t have to follow over general law. The Origins of the Debate: Swift and Erie a. i. The state is the default sovereign. Rule: Swift is overruled. Erie R. Co. in cases where they apply a.how did railroad have to behave toward Tompkins b. v.how a case will be brought in court/how it will be litigated. By 1938. (Why: Rules of Decision – . iii. §34 of Judiciary Act of 1789/ 28 USC 1652 (Rules of Decision Act) 1. 3.

If the differences affect the outcome of litigation: substantial. Here. 2072A.SC shall have power to prescribe general rules of practice and procedure and rules of evidence for cases in US district courts and courts of appeals b. Byrd v. Rule (Brennan). Rule (Frankfurter): Use OUTCOME DETERMINATION TEST to find out if a law is substantive or procedural. rulemaking process is an ongoing evaluation: 28 USC 20712074 iii. Strong federal interest? YES.21 statute law of the several states and their unwritten or common law…shall be regarded as the rules of decision) III. of New York v. Facts: Federal Workman Comp Act.Balance regulatory interests of states with need for judicial independence in federal courts. Holding: State SOL. 2. Plumer (1965) 1. Blue Ridge: workman applies. but sometimes federal courts should be able to do things their way. Strong state regulatory interest? NO. The outcome derivative test is unclear: judge and jury could theoretically rule the same. so go with state law. Byrd: not an employee. Relationship between REA and RDA: No longer an absence of federal rules. Outcome Determination i. Balance state substantive rights (smaller pebble) with federal courts autonomy (bigger pebble). 3. (Claims would be barred under state law by state StatuteOLimitations) P says SOL is procedural (federal SOL: laches: equity suits can never be untimely). Identify a substantive rule by uniformity and forum shopping. Rules Enabling Act of 1934 (REA). fed court. b. no workman comp.Such rules shall not abridge. 2. Hanna v. Today. Fiduciary duty suit. Outcome uniformity and forum shopping are just factors 4. In state court. the jury. is it going to impend on the way a fed court works?) a. 2072B. enlarge. Analyzing State and Federal Interests i. Determining the Procedural Law Applicable in Federal Courts a. Congress delegated power to Supreme Court to establish FRCP a. Issue of service of process. the case should come out the same. state wasn’t conferring a right. Fed courts shouldn’t step on state toes. H: the jury (so fed law).28 USC 2072 1. .) b. (If the fed court has to apply the state rule. Blue Ridge Rural Electric Cooperative (1958) 1. The Impact of the FRCP ii. or modify any substantive right…(allowed if it modifies procedural right) 2.FEDERALISM. York (1945) 1. the ability of a jury trial under 7th amendment. Guaranty Trust Co. (Statutory backing!) 3. (The test leads to excess conformity. Does Rule 4 crowd out state law? (Is R4 unconstitutional?) Outcome determinative test is over-inclusive (because anything can determine the outcome). 3. judge would decide. must follow it. If federal statute.

Here. D tries to change venue under 1404 or dismiss under 1406.) b. If the difference would affect P’s choice of forum. enlarge or modify any substantive right. b. Majority (Marshall): Federal law evaluates the FS clause. Clause in K: disputes must be resolved in NY. Question to ask: If the fed judge ignores this state law. apply state law (usually). (This is the new Outcome Determination Test: dependant on ex-ante application of twin evils of Erie. Is it constitutional? d. Pertinence i. too) 1. 2) Inequitable administration of law: federal and state outcomes should mirror each other. ii. Stewart Organization. Cannot abridge. it doesn’t matter if it’s also substantive. If P wouldn’t benefit originally in forum selection. 3. Issue: Who evaluates the forum selection clause? State or fed? 2. When you have a valid and pertinent federal law. Does it intend to replace state practice or work together with state law? c. Everything can be outcome determinative. d. service of process would not impact decision either way originally. will it cause litigants to flock to federal court? A different outcome prediction should not lure people to one court.does it have to do with courts? 1. i. apply it. If it would affect where P would bring suit. Also. Constitutionality. apply fed law (usually). If not. Determining the Existence of Pertinent Federal Law i. iii. 4. If there is a federal law (guided tract). As long as you can characterize it as procedural. P sues in AL for antitrust violations (must be federal). 1) Forum shopping: There should not be a substantial benefit in one court over another. a. Guided Track: If a Federal Statute exists. (1988) (extends Hanna to apply not just to rules (procedural issues). apply it. so MODIFY: we want to know is if it is originally outcome determinative. Inc. If the FR is constitutional. can apply fed law. not after the fact. apply it.22 2. View Outcome Determination Test through the twin aims of Erie. End of story. Rule: creates GUIDED and UNGUIDED track. 2. must be fed law that resolves the question before you ii. Ricoh Corp. Next. okay to deviate from state law. Unguided Track: If no Federal Rule. Must deal with practice and procedure of fed courts ii. apply Erie Duel Evils Test: Would failure to apply state rule create these evils? i. c. v. Not enough that there is fed law. but to substantive law. Validity i. c. must ask if REA is authorized to make the rule. apply state law. apply state law. . a.

Inc.23 a. ii. We are on the Unguided track because: i. but we shouldn’t be fooled by form. but there’s no reason why federal courts would have a preference. Textual question: use state court definition. SUBSTANTIVE REASON FOR A PROCEDURAL RULE iii. and fed jurisdiction should not change how people live ii. Dissent (Scalia): State law evaluates the FS clause. Rule: Honor state sovereignty and consider state “substantive” regulatory interests and essential elements of federal courts (like right to jury trial). The fed statute doesn’t cover FS clause. but only trial courts.‖ Holding: NY law can be used without violating 7th amendment. Issue: How can court second guess the jury? FRCP says remittitur or new trial. Doesn’t matter if it is substantive or procedural. Consider state regulatory interest: why doesn’t the state want FS clause? NY might have a regulatory reason on how enforceable a contract is.) 2. but he doesn’t explain why. 3. i. Majority (Ginsburg): Unguided because Fed Law does not crowd out state law. used more of a Byrd analysis) 1. FEDERALISM: Fed court should honor state regulatory interest. (NY has a substantive interest in regulating tort awards. b. court instead looks at unguided factors to determine track. Rule 59 applies when an award is ―excessive. a. a. On fed side. NY law says to examine similar suits to establish ―standard of reasonableness.‖ The real issue here is whose law says it’s excessive. more important to balance state interests versus federal interests. c. ii. it wouldn’t change identity of trial court to look at jury decisions. b. because appellate courts should not start looking at facts which would change their structure . Center for Humanities.) b. so the fed statute is not pertinent (and we’re unguided). Marshall assumes federal law has displaced state law. The modified Outcome Determination Test won’t deal with problems of equality and forum shopping. Case is guided bc federal statute controls venue. Federal law should not turn on state law. In the ―form‖ it doesn’t affect how people operate in the world. This is a practice that is embedded w/ substantive ideals. (This case seems guided. 4. Gasperini v. 3. Likely Effects: More cases will probably be considered unguided after Gasperini. NY was trying to reform tort law by getting a handle on high jury awards (strong regulatory interest). NY state law is substantive. (1996) (shafted Hanna. This basically destroys the guided/unguided track system. applies.

The objective of the fed trial court is not to mimic a state trial court but rather to decide the case as would the highest state court. the issue of how courts work is purely procedural. Under Salve Regina. judges look at the same sources to figure out what the law is. Stein thinks Gasperini is Byrd’s resurrection. They should not take judge’s personal preferences into consideration. inconsistent. i. The question is about what the state law is. not necessarily bound by old precedent. 2. . Supreme court does not review state law de novo— they only worry about uniformity of federal law. i. 5. Russell (1991) i. 1. not uniformity with state law. IV.24 c. Salve Regina College v. Here. This is guided because Rule 59 expressly says to use federal practice. Jury verdicts are a reason people would flock to a certain court. you should use it. or outmoded? b. What if the law is unsettled. We’re on the guided tract because the law is procedural. The state Supreme Court would have to make the decision on it for it to be a new precedent. not substantive. Determining the Content of State Law a. Forum Shopping/Equality. but should look only at sources of law and policy. b. Rule: Fed appellate court should review de novo questions of state law. v.that’s not law. iii. not the psychoanalysis of how specific judges would decide. court's job is to ascertain how state Supreme Court would rule.keeping people from flocking to one court i. because Rule 59 has more guidance than 1404. 6. and if there’s a valid and pertinent federal rule on point. Issue: Can a federal court of appeals review a district court’s determination of state law? ii. In Stewart. Different from Steward.―What kind of contracts are enforceable?‖ is a substantive question. iv. This is no different than a federal question. Dissent (Scalia): Guided a. A fed appellate court’s decision of state law is not binding on the state.

11A. Inc. How much evidence do you need? Tort allegation needs all essential elements of negligence. not to them 2. Complaint. Hard to predict outcome c. Healthcare. but can also lead to frivolous suits b. and D gives his account ii. 11C2. 2. DISCOVERY AND ADJUDICATION I. Lesson: once you lose credibility with the judge. 1. Drafting the Complaint i. Complaint and Answer 2. U. and then sanctions cannot be filed.Common Law would be specific. it would be tough to prepare suit without knowing position of opponent ii. Rule 7. No way to know if evidence sought in discovery is relevant iv.S. Mallone researches info for class action suit on stocks and gives info to other attorneys who file similar complaints. Reasons for Pleadings i. Procedure. Counterclaim/Crossclaim and Answer . P gives initial account of wrongful behavior. formed after an inquiry reasonable under the circumstances that… 1. Provides a 21 day safe harbor.‖ Attorneys must conduct their own independent analysis of facts and law to form the basis for a pleading. Applies to every paper submitted to court except discovery requests 2. Garr v. Levin & Sklar violated Rule 11 by relying on someone else’s research. Pleadings a. then it could be dismissed for failure to state a claim ii. factual sufficiency wouldn’t be accurate until trial. Make bringing suit easier and low cost. they still may be involved with fraud but they walk away free because it’s the lawyers being punished for not doesn’t enough to see on their own what US Healthcare did 4.Attorney must sign each paper w/ name and address 3. (1994) 1.claims are warranted by existing law 2.the factual contentions have evidentiary support will after opportunity for investigation and discovery (ambiguity gives us wiggle room) i. 3.Rules 7 and 8 iii.Sanctions 1. Candor in the Pleadings i. 12B2.court on its own can order sanctions d. If you don’t allege all of the elements. Not much incentive for party to file for motions because the fee goes to the court. During that time the party can fix the offending paper. Complaint and Answer i. 11C3.Pleadings 1. you’re dead. iii. Result: Court does not say that US Healthcare didn’t do anything wrong. Rule 11.Certifies that to the best of his knowledge. 11C.makes attorney responsible for quality of the claims 1. which would waste time iii. to be developed in discovery.After a party notes wrongful behavior. they can’t file a motion for sanctions for 21 days. because they all need to have an ―inquiry reasonable under the circumstances.25 PLEADING.follow rules of civil procedure. 12B3. 11B. Now (pre-Twombly) just gives the general sense of the suit.

as long as P can prove facts are not inconsistent w/ the complaint that if proven would establish liability. Bell Atlantic Corp.Rule 15 is permissive in allowing you to change your story.According to Rule 8A2. If it’s essential. So. Claim is that phone companies conspired to prevent other companies from getting in by not letting them have access to wires and that they won’t compete with each other. Not much function.General Rules of Pleadings 1. 5.show how possible it is. Usually no risk to over-pleading.short and plain statement of grounds for jurisdiction 2. and how it compares with precedent v. except that in a default judgment this will be the amount entered. Not much factual support except observations that they were acting like a conspiracy 2.26 ii. Balancing Test: for specificity in pleadings. Needed under 8A3.which party has to prove the contested facts . Case does not address rule 11 (saying that you can get more evidence in discovery). Purpose of Complaint is to get things moving without all the specifics. Souter says this fails to state a claim because it was factually deficient.the word ―showing‖ means that to show someone is entitled to relief.however most lawyers are more specific than 8A2 or rule 11 requires b/c the judge depends on pleadings to tell them what the case is about iii. Burden of proof.shows your demand. even though if true. then the complaint cannot be dismissed for failure to state a claim 4. 8A1. Twombly will create problems when D has access to evidence that P does not have 8. Amendments. Dissent: we don’t have to choose between having full blown litigation or dismissal. Twombly (2007) 1. how expensive. 7. Burden of Pleading. There’s middle ground. Could constrain discovery 3. Relies on 8A2. Show the essential elements of the cause of action 2. Rule 8. 8A2. 8A3. but if you leave something out: 1. Rule 9. you need enough evidence to show that it’s not just possible.claim can be dismissed under 12B6 2. Burdens of Pleading/Proof 1. but plausible 3. Facts.demand for the relief sought 4. don’t make strong reaches in your pleadings. Before Twombly. We don’t know if this case is only going to be applied to anti-trust cases or if it will be applied more broadly.Pleading Special Matters iv. 5. 4.we can let discovery proceed and monitor the case as it develops 6. there would be a cause of action. Elements of Claim 1. 1.which party has to introduce a matter into the litigation in pleadings 2. v. Ad Damnum Clause 1.class action with subscribers to phone service who wanted cheaper plan.short and plain statement of claim showing P is entitled to relief 3. Rule (Souter).

Durable Defenses: 12B1.can be asserted in pleading.Insufficient process or service of process i.not used often because they are easily fixed 4.when it’s necessary for fair adjudication 5. 12F.after complaint is served. End of 12B. these are motions to dismiss 3. Burden of Production ii. If you have not included something in your pleadings. 12B6. If motion is denied.game is over. 12E. 12H if fragile defenses (12b2-5) are not in the motion but were available.Joining Claims 1. If the court granted motion.6.can be raised at any time 6.serving a motion under this rule alters this time period 1. 12A1. Means if everything you said is true. We’re talking about 19B.lack of SMJ. 12B1.Improper Venue 3.Motion for a more definite statement 1. Rules for Raising Defenses 1.Motion to Strike. 12B2.7. When the claim could be actionable but we don’t know because it’s not specific enough 6.party can only make 1 motion under this rule. Burden of Persuasion e. Motions to Dismiss i. Rule 12 defenses are available before answer is filed (b/c they are mostly procedural) 3. 12B7.failure to state a claim i.unless 12H3. must answer in 20 days (60 if Waived service) 2. Fragile Defenses: 12B 2-5 Must assert in first response you make or you lose it! 1.failure to join a party under rule 19 i.Lack of Subject Matter Jurisdiction 2. they are waived 2. it does not give rise to an actionable claim 3. Rule 12B4. so you have to wait until after answering. no defense or objection is waived by joining it with other defenses/objections in a responsive pleading or motion 7.SMJ can be dismissed at any time) 1.Filing an answer ends the chance to make 12B motions because it says that the motion must be asserted before the pleading 3. 12B3. you have 10 days after court’s action to respond 2. Just saying that the summons itself or service were incorrect. Failure to state a claim and failure to join a party. at motion for judgment on pleadings or at trial (12H2) 5.no basis for 12C Motion for judgment on pleadings 4. 12G/12H1 together: 12G.27 i. 12H3. 12B5. 12G.can strike an insufficient defense . Rule 12: Defenses and Objections 1. 12A4.Lack of Personal Jurisdiction 2.will not be waived by answering or moving (but you’re only allowed 1 pre-trial motion.

or 2.court should freely grant leave when justice so requires 1. Doesn’t hurt to err on the side of making something an affirmative defense 3. Amendment relates back to date of original claim when applicable statute of limitations allows it and when amendment arises out of the same transaction or occurrence to the original pleading . Durable Defenses. Defenses.Relation Back 1. Claim must be in the amended complaint or it can’t be asserted at trial.amendments as a matter of course ii. If part of an allegation is true.before the answer is served 8. there will be a parallel numbered paragraph in the answer saying: admit.28 7. 15A1. out of same transaction or occurrence.20 days to amend ii. 8B. Consequence of denial: whoever has burden of proof now has to prove it 1.For every paragraph of complaint. When response is not allowed.reason for not waiving is that it won’t make sense at trial f. the party has: . Affirmatively state any avoidance or affirmative defense. ―I don’t know‖ has same consequence as denial but it would violate rule 11 to say you don’t know when are charged with knowing under reasonable effort 2. The amendment changes the party. When response is allowed. within period provided by 4M (120 days). Policy1.Rule 8 i. Fragile defenses must be asserted in first response because we don’t want to waste court’s time dismissing on most technical grounds first. Frequently a judge may say they’ll allow it but P has to pay for additional discovery and time condition 3. time before trial. This is giving an additional reason why you’re not liable besides defenses in the responses 2.Rule 15 i. Factors: when did you learn it. 12H1.Rule 13 g.instead they can decide the order 2. pick out the true part and deny the rest 2. We don’t want to be able to extend the case with motion after motion 3. Answer . Must bring up defenses or you can’t assert them. deny.if you didn’t include a motion in an answer. 15A2. Consequence of admission: P is relieved of obligation to satisfy burden of proof for that element 3. 15C. iii. Counterclaims. wasted discovery 2. or not sufficient info 1. Ineffective denial is treated as an admission 4. you have 1 amendment as matter of course i. Amendments to the Pleadings.most defenses will be through the responses ii. 8C – Affirmative Defenses 1. because pleadings are about putting the other side on notice iii.other amendments.

Unilateral Disclosures. even if statute of limitations would be longer II.to know the limits for negotiations ii. recorded by court reporter. Depositions.26B 1. Written questions with written answers. not too broad 2.29 1. 2.Rule 33 1. Discovery a. 36B6. 26A2. sit with judge in chambers and explain how we plan to use the remaining discovery devices 2. Calculation of damages 4. address. Copies of documents that the party may use to support claims (except if only for impeachment) 3. Must disclose expert testimony 2.can just request the most knowledgeable person on a topic 4.Initial Disclosure 1. Inspection and copying of insurance agreements. Received notice of the action.Disclosure of Expert Testimony 1.Rules 30 & 31 1. Cross examination of witness under oath. NOTICE: it’s not service that we’re looking for… just the point where D received notice or should have known 3. Mental/Physical Examinations.within 90 days before date of trial b.Rule 16 1. Attorney drafts questions.Rule 34 1. Devices 1. Name. Discovery Plan. 45.not more than 100 miles 3.At an organization.date for completion ii. Adversarial Discovery i. Request must be appropriately focused. 26A2C. phone number of individuals likely to have discoverable info that you may use 2.subpoena non-parties. Electronic Documents 4.penalizes someone that files a complaint well in advance of a statute of limitations. 2. Scope. Documents or other tangible things 2.After initial disclosure.rule 35 . or knew or should have known that the action would be brought against it but for a mistake over the proper party’s identity 2. Pretrial Conference. Request for Production. Must be reasonably calculated to lead to the discovery of admissible information 3. Anyone w/ relevant info. Court must limit the extent of discovery if the burden or expense outweighs the benefit iii. Glitch in the system. because they are still limited by 120 days. Set discovery window. Available only to parties. Interrogatories.Required Disclosures. 26A1. Good for follow up questions by asking in a different way 3.Rule 26A i. Used for specific info that a witness may not have and for any contention for legal strategy (b/c there’s a burden of reasonable investigation) 2.

ii. P must not only show existence of evidence. you don’t have to prove it 4. Celotex Corp. So. then that memo could be safe from disclosure.Rule 36 1.Parties have a duty to update disclosures c. ―she seems like a good witness from being trustworthy‖…etc. Summary Judgment. Must have good cause shown. However if the questions asked are about the attorneys thoughts and strategy intertwined in the questions. Typically done at end of discovery 3. if they have the burden of production. Under Hickman v. 1. would have to give proof they are right. Catrett (1986) 1. including affidavits of competent witnesses . A moving party. Person moving for summary judgment. D (moving party) does not have to come forward w/ their own documents or affidavits. Judge does not weigh the evidence. Facts of the case must be turned over.Sanctions if they didn’t admit something that is proved at trial 6.Rule 56 i. Facts: P is suing for her husband’s death. Work product rule – the attorneys strategy and thoughts are protected but not the facts iii. 3. Taylor – Attorneys are protected from revealing mental impressions.30 1. Rule. iv. P then has the opportunity to produce additional evidence.There’s a fundamental difference when moving party does or does not have burden of production. 2. if they don’t have the burden of production. if D moves for summary judgment. He was exposed to asbestos manufactured by 15 companies.usually if mental or physical condition is at issue 5. Ask yes or no questions to factual or legal questions 2. Either P or D can move for summary judgment 1. P has the burden. Burden of production. Attorney client is always protected. does not have to negate the other sideall they have to do is look at the other side and say the record lacks evidence 2. More constrained b/c of intrusiveness 2. 37C. Usually. he identifies whether the party w/ burden of production has produced evidence on which a decision can be based iii.summary judgment tests whether person w/ this burden to produce evidence satisfied it 1. If admitted. Requests for Admission. but that evidence conclusively demonstrates the truth of its allegations iv. It’s a state by state determination of how broad the work product rule really is. that would be protected d. 26E. they must show the ABSENSE of evidence supporting the claim 2. They just have to show P doesn’t have the evidence. Can be used to raise legal and factual deficiencies ii. D moved for summary judgment. Attorney Client Privilege – related to adversarial discovery above i. v. The 3rd party is where there is more issue. v.

a litigant would have been entitled to a jury trial in England 4. 3. Voir dire. legal theory. Time limit: D can move for summary judgment any time. The main standard to defeat summary judgment is if there is a genuine issue of material fact. Loether (1974)------we didn’t do this case!!!!!!!!!!!!!! 1.court has developed a preference for sending new statutory claims to juries.challenge without cause ii. Final and definitive statement of legal and factual contentions III.woman was denied an apartment because of her race. Direct examination. Now. If you’re looking for injunctive relief. restitution. Exception is cases where equitable relief is being demanded (injunction. you will get a jury trial. you will not get a jury trial. Give meaning/context to abstract legal rules 2. Jury selection (47). Final Pretrial Order. Rule evolves from different courts for law and equity. Right to Jury Trial i.between 6 and 12 jurors 1. Summary judgment can be done on specific issues to get them out of the case before trial. Curtis v. Trial a. Trial procedure i. iii. Facts. ―In suits at common law‖. violating fair housing act. Apply the law to the facts 2. courts have evolved to focus on if the new statutory right is analogous to a claim that would have been heard at common law. Objections.16E i. call it analogous. Court will likely say that this would have been in court of equity and should go to judge 4. Jury: finder of fact 1. Practice is when it doubt. Responsibilities of Judge and Jury 1.litigants have a right to jury trial if at the time the amendment was adopted. Rule.Bifurcate. 7th Amendment Phrasing 1. accounting). but P has to wait 20 days from time suit commences e. Summary: If you’re looking for damages. No need to put it on the record. vii. and testimony iii. Decide on 1 issue before arguing another iv.refers to federal courts alone 2.common law v. ―in any court of the United States‖. then cross examination (only matters testified on in direct) 2. Presentation of Evidence 1. Lists every witness to be called and substance of testimony ii. Court: find law b.split cases between issues.31 4.when question or testimony violates a rule of evidence . All you need for summary judgment is an affidavit. v. Find Damages 3. Peremptory challenge. ii. Testimony 1.so there’s no reason to depose your own witness. vi.brief questioning of potential jurors 2. 2. equity from a historical approach. Opening Statements. ―Right to jury trial shall be preserved‖. 42B. 3.outline the case.

Remittitur. Dixon v. Policy i. Within 10 days after judgment 3.Any time before the case is submitted to jury 1. 59. P didn’t show how long it was on the floor. 1 year limit for certain reason. new evidence.Motion for Judgment as Matter of Law (JMOL) 1. Summations.Motion for Reconsideration 1. Standard is lower than JMOL. 50.32 3. P gets caught in plastic strap. Timing i. but you have to make the movement before ii. 50B. 2. Form of the Verdict. The standard is that verdict should be based on evidence 2.closing arguments vii. Special Verdict. Judge has enormous discretion to call for new trial 3. 60. 50A. Court approved: the jury could not have find WM was liable based only on evidence P presented ii. or demonstrative evidence.49 1. Judge generally waits b/c it lets jury have a shot at doing the right thing and because if the decision were to get appealed.charts/models vi. Jury Instructions. General.allows judge to give P opportunity to reduce damages or else have a new trial 4.witnesses are subpoenaed to attend fed trial v. Final 3 Big Motions. P has to wait for D to put on his case ii. they would have a verdict to fall back on 2. Waiting until after the trial is more common. Court: the strap couldn’t have come from the newspapers bc someone would have picked it up. Can be on jury instruction. Wal-Mart Stores (2003) i. Post-Trial (and Before Verdict) Relief i.jury answers factual question and court applies it 3. Additur (not in fed court). General Verdict w/ Written Interrogatories. Tangible objects.Motion for New Trial 1. etc 2. 45. but more for others . falls.jury decides winner and damages 2. Jury Deliberation 1. D moves for JMOL. denial of a motion. D can move as soon as P puts on his case 2. P had burden to prove plastic had been on floor enough time to make store responsible iii. Fed jury must reach unanimous verdict c.jury determines liability but it’s crosschecked with factual questions ix.judge orders new trial unless D raises damages 3.51.called the ―charge‖ viii. Presentation of Real Evidence 1.After the Jury Decision 1.at or after trial to correct/control jury 1. iv.

Facts: P loses first suit in which he alleged that company fraudulently induced him to leave business.must be party in earlier proceeding or in privity with a party for preclusion to apply ii. b. so it is not barred. Introduction a. Bar. Court says that P’s claim was not out of the same cause of action b/c it was a separate wrongful act. Same Claim i. Prior Adjudication/Preclusion. Harendeen would lose because it is consequence of the same event iv.can be precluded by omission 2. motivation). the court found that the injuries arose from the same transaction iii. The omitted claim didn’t have to be brought.33 PRIOR ADJUDICATION I. (1975) 1.party lost in the first proceeding. Claim Preclusion. Pl then tried to bring suit for personal injury 2. Reasons: i. Three things to look at to determine of causes of action are the same: . Strict Identity of parties. 2. origin. and any claims that should have been consolidated in the first case 1.if you can link up nexuses (time. Parties did not have to be there. No identify of parties. Today. the prior judgment must have: o been rendered by a court of competent jurisdiction o been a final judgment on the merits o the same cause of action and the same parties or their privities were involved in both suits a. Efficiency. Only precluded from claims you litigated that were necessarily decided and were adverse to you 2. place. Champion International Corp. Claim Preclusion/Res Judicata.one big case instead of multiple II. Rule: Claim must be out of the same cause of action. 3.should only do it once ii. Harendeen v. Case was decided before restatement 2nd’s definition of transaction or occurrence. a.Stein thinks this can be a mean spirited rule For judgment to be barred. Merger. 4. Relaxation of joinder rules – now that parties were permitted to consolidate their claims. Issue Preclusion.bars re-litigation of the same claim that was already adjudicated. preclusion law increasingly required them to do so ii. City of Maple Heights (1958) 1. Rush v. Takes it from one context and puts it in another 1. Facts: P had previously won suit against def for property damage to her motorcycle in accident. Rule: Although different rights were infringed.An adjudication in one case can have affects in other cases decided after the first case i.bars specific legal or factual determinations. it’s the kind of claim that should be precluded. Litigation is expensive.party won in first proceeding v. P then brought new suit to get payments he’s eligible for under pension plan.

After a case was in the appeals process. 2. P loses. causes people with a minor injury that could become worse to sue when they wouldn’t have. There must be finality. Moitie (1981) 1. Whether different judgment in the second action would impair or destroy rights or interests entered in first action. Generally follow compulsory counterclaim rules (13)… and in a way makes it a mandatory rule of joinder ii. Moitie cannot bring a 2nd case. v. A D who may interpose a claim as a counterclaim in an action but fails to do so is precluded from maintaining and action on the claim if: a. Changed circumstances and Other Countervailing Policies i. vi. Whether the essential facts and issues in the second were present in the first. 2. (1) the counterclaim is required to be interposed by a compulsory counterclaim statute or rule of court. Rule 11 says the claim needed to have been brought up the first action. Rule: One cannot use the same defense first as a shield and then as a sword. ii. Facts: P brings suit against D and D asserts defense. Can’t add it to an appeal/2nd action. Facts: Group of P's. those who do appeal win.34 1. Rule: Can’t go with a 2nd case which should result in a better judgment just because the law changes – res judicata – moitie was final because they did not appeal. The other cases won on appeal. Federated Department Stores.not practical iii. 2. Restatement 2nd of Judgments 1. The special problem of Defenses i. c. D then brings separate cause of action using his defense as claim 2. or . claiming essentially the same thing. Whether the same evidence is necessary to maintain the second cause of action as was required in the first 3. 2 non-appealers bring second suit trying to use the decision in the appeal. Harrington v Vadallia-Butler 1. Rule 11 is a claim preclusion designed to push all claims into the first lawsuit so people don’t keep adding claims to the same issue. a new law was added from a different case. D who bypassed chance to assert a defense/counterclaim may be precluded from asserting is as a separate claim for relief 1. Problem: 60(b) permits a court to relieve a party of final judgment when there is new evidence that was not discoverable earlier. but does not assert counterclaim. Federal Intermediate Credit Bank (1932) 1. two of which don't appeal. Inc. Simply changing your legal theory doesn’t entitle you to bring a 2nd claim b. Reason: D had the alternative to assert the defense as a separate counterclaim in the first suit iii. however Harrington was not allowed to bring the new law up in a 2nd action. Mitchell v. to win based on what the other parties did on their appeal. Court says claim is barred by res judicata because the facts pleaded in the defense are the same as the separate suit 4. sue for potential damage. 3.

To fall under jurisdiction.Stein hates collateral estoppel. affidavit in this case which under 41B was non on merits. Depends if the case was dismissed with or without prejudice. then in F2. d. because it was not a judgment on the merits 3. in a state court. Semtek case said: vi. Transplant into different legal context. Costello v. iv. is not claim preclusive for state courts but is claim preclusive for the exact same Federal court. its more than just personal/subject matter.and lack of jurisdiction is always without prejudice a. Rule 41B 1. iii. or failure to join a party) it is an adjudication on the merits unless otherwise specified v. Requirements for collateral estoppel: o Must be the same issue o Issue must be actually litigated o Has to be necessarily decided a. costs more money than it saves and privileges more wrongs than good results. Court says different context doesn’t matter. venue. By involuntary dismissal (except jurisdiction.Operates to preclude a party from contesting a particular question of law or fact that was decided in an earlier case 1. Court did not specify whether it was dismissed with or without prejudice. On the Merits i. United States (1961) 1. If a Federal court says in F1(forum 1) that something is on the merits. Time Saver.e. Facts: Gov’t brings denaturalization proceeding but is dismissed b/c affidavit wasn’t filed along w/ complaint. Causes more harm than good. but if it’s a different burden of proof. III. Only cases finally disposed of on the merits will stop re-litigation of the claim ii. Improper affidavit is lack of jurisdiction. Intro i. In Mutuality. then defense preclusion operates to preclude the claim. 2. This is because you don’t want federal courts expanding/modifying the rights of the state court.we don’t often see issue preclusion because it will usually have common nucleus of facts and already be barred by res judicata . Rule: a case is not barred if it is dismissed without prejudice. i.35 b. Collateral Estoppel/Issue Preclusion. then no collateral estoppel ii.don’t re-litigate an issue. Also includes what is needed to get into court i. but assuming jury would decide the same iii. (2) the relationship between the counterclaim and the P’s claim is such that successful prosecution of 2nd action would nullify the initial judgment or would impair the rights established in initial action. Test is if the entertaining the claim in F2 would undermine the rights in F1.

whether on the same or a different claim 2. Exceptions to Issue Preclusion i. and the determination is essential to the judgment. P cannot bring another action in F2 because they could have appealed their negligence. There’s a difference of procedures between the 2 courts iv. Can’t use collateral estoppel against someone who didn’t already litigatemust have their day in court b. Blue Goose Motor Coach Co.P was determined to be negligent in F1 and is barred from recovery.P can take advantage of someone else’s win. Modern Applications i.‖ iii. If in F1 P sues D and loses because both P and D are found negligent. This gives the possibility for injustice. Rule: Issue preclusion bars suits when the issue of fact at issue has already been decided 3. In previous suit. Eli Lilly & Co. Heavier burden of persuasion in F1 v. Problem with mass torts. Facts: P brought suit against D for personal injury due to DES. have obtained review of the judgment in the initial action. So D could go to F2 and make a case that they were not negligent even if that conflicts with F1. Special circumstance meant party did not have adequate opportunity for litigation . c. P in this suit sought to have D precluded from re-litigating factual issues 2. Often occurs in Mass Torts iv. There should be no preclusion if ―the party against whom preclusion is sought could not.36 1. 2 Restatement of Judgments: 1. Not proximate cause issue b/c it is based on an unresolved and novel application of the law and def did not litigate on this issue…Needs to be given chance to be heard on that issue 5. Little v. 2. Claims are substantially unrelated or there’s change in law iii. Party against whom preclusion is sought could not have obtained review of the judgment (couldn’t appeal b/c they won) ii. Rule: Issue must be necessarily decided in order to apply 3. Facts: F1. Court holds collateral estoppel applies. (1985) 1. (1931) 1. but D can bring it up in F2 because although they were found negligent in F1. Original decision was a final determination on the issue of negligence in the crash nd ii. d. When an issue of fact/law is actually litigated and determined by a valid and final judgment. Traditional Applications i. Note.D sued P for damage to the bus and won. F2. D was precluded from re-litigating 5 of the 6 issues 4. as a matter of law. Adverse impact on public policy vi. Kaufman v.collateral estoppel sets the stage for other cases by not letting D retry issues. D had been found liable to another P. but she can’t be prejudiced from having her day in court 6. the determination is conclusive in a subsequent action between the parties. they are not able to appeal that since they won the case anyway and had no incentive to appeal a verdict in their favor.P tries to sue D for personal injury.

Then P tries to sue the bank.Privity (Burden Side) i. In suit over estate.you are given notice of the suit and if you don’t want to be held by judgment. Another form of vicarious liability is class action. Rule: if you participate in an organization that participates in a lawsuit. . and they were precluded from re-litigating. One P was a member of a trade group that had already had a suit against state over this topic. Taylor v. Taylor sues the FAA under the FIA(freedom of info. Taylor’s suit was an issue preclusion saying under ―virtual representation‖ he was too closely associated with his friend who filed the first suit and was therefore represented by him. iii. Defensive Non-Mutual Issue Preclusion 1. Sturgell 1. Bank of America Nat’l Trust Savings Assoc. and court ruled the money was a gift. The Court rejected the lower courts rational saying virtual representation is not good and allowed the suit to go forward saying that adequate representation could apply to other cases when: i. Burnham v. Bank used the judgment in F1 to estop P from suing them. Statutory scheme: bankruptcy and probate proceedings or other suits brought only on behalf of public at large b. guardians. However. you may be bound by their legal proceeding ii. Non – parties can be bound to others decision when: 1. Represented by trustees. Designated representative – when a non-party later bruins suit as an agent for a party who is bound by a judgment 6. P files suit against D for money. (1942) a. Already had opportunity to present arguments and had his day in court 5. Vicarious Representation. a. but didn’t correctly challenge the reasons that the FAA gave as their defense. Massachusetts Dept. Exceptional relationships such as assignee and assignor 3. but the 2nd P could still litigate 2.did not do this case!!!!!!!!!!! (1981) 1.37 IV. fiduciaries 4. and that’s a matter of due process. Mutuality (Benefit Side) i. Taylor’s friend had previously unsuccessfully sued for the same documents. After test cases allow parties to agree for it 2. General Foods Corp. Act) to get documents on an airplane he wanted to restore. Facts: 2 P’s tried to sue dept of health for labeling regulations. D is asserting another party’s victory against P as a defense 2. of Public Health…. Parties Bound and Advantaged a. if you derived your rights from someone else. you have to opt out b. v. You always get at least 1 opportunity to defend your position. 2. you are in privity with that organization and you are bound by the outcome iv.

This could replicate a mistake lots and lots of times. Parklane Hosiery Co. P seeks to take advantage of another party’s victory against a D to preclude D from contesting the issue of liability 2. With mass torts. this cannot be used in certain situations: such as if the first case was for ie. Courts should have discretion to decide where offensive nonmutual issue preclusion should and should not apply (don’t want to reward someone that could have joined) d. i. Facts.38 b. Controversial. Shore (1979) a. However.courts are cautious a. There is no reason to require that the person ASSERTING collateral estoppel be in privity to a party in first litigation— you only have to be a party if it’s being asserted AGAINST you ii. So. Rule. Or if there were previous inconsistent judgments. there does not need to be mutuality of estoppel. and if they don’t then we ignore their lose and get our own day in court c. If P sues D1 and wins.Stock holder class action for false statements in a merger.(maybe D didn’t care to defend in first case for nominal amount). Better: Where did you anticipate your product going? . apply them as best you can. there could be thousands of cases all using the same judgment. they can’t use that win against a new D2 in a different case because D2 would have had to have been a party in the D1case. Rule: Adopts ―wait and see‖ result. Offensive Non-Mutual Issue Preclusion 1. v. procedure: go Hanna and Byrd This is not a test about what isn’t law anymore. Or if there are procedural opportunities that are different in the 2nd suit such as a right (Justice Stewart said a right to a jury instead of a judge does not count as a good enough procedural difference) b. SEC had previously filed the same suit. rather than just a couple 3.With defensive collateral estoppel. Exam review: Work the facts.We will ride on P1’s win if they win. 7k and then the 2nd P sues for 7million. This is a huge advantage to the 2nd P is the D had already lost. P could use the judgment to their advantage and not-re-litigate issues that are already decided. You have to have both PJ and SMJ to get into a federal court. If trying to figure out sub vs. Swedloff: ―Could you r anticipate being hailed into the court there‖ test is a bullshit test. now a particular finding in F1 can come back to burn a P even though he has a different D in F2 c.

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