1.1 CivPro Outline LCCM1

8/3/2019 1.1 CivPro Outline LCCM1

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CIVIL PROCEDURE

PERSONAL JURISDICTION

I. PERSONAL JURISDICTION- Territorial limits on judicial authorityA. 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 ofPersonal Jurisdiction:a. IN PERSONAM- jurisdiction against the personi. General- suits in which the contacts are unrelated to the claim-contacts must

becontinuous andsystematic. Connection w/ state must be consequence ofDs own choice.

1. Pure form- Massive Contacts. So much contact that theresjurisdiction for anything. (i.e. you live there)

ii. Specific- if the contacts are related to the claim-can becasualand isolated1. 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 fromthe state. Youve received a benefit, and therefore the state can takea burden from you (jurisdiction)

a. More related to General Jurisdiction2. Regulatory Authority- The state is regulating things that the state has

a legitimate concern over, and this creates jurisdictiona. 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 propertyi. In Rem- Suit over property where the object is the defendant, and we bind

any person who has interest in that propertyii. Quasi In Rem I- Suit is a proceeding over the ownership of property. Onlybinds the named parties (similar to specific juris)

iii. Quasi In Rem II- law suit has nothing to do with the property, instead thepresence of the property is simply the basis upon which the court relies toassert jurisdiction (similar to general juris)

C. Two Main Questions in Every Casea. Has a state authorized jurisdiction in this case? (Statutory)

i. Long arm statutes- laws that give states authority to bring suits againstpeople outside of its borders. Some positive legal authorization is requiredto establish juris over out of state D

b. Does the Constitution permit the state to assert jurisdiction? (ConstitutionalAnalysis)

i. ApplyInternational Shoe Test- is exercise of jurisdiction constitutionalunder the Due Process Clause of the 14th Amendment? (Minimum ContactsTest)

II. CONSTITUTIONAL LIMITS ON PERSONAL JURISDICTIONA.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.


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(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 orimplied.(a)Hess v. Palowski (1927)- EXPANSION!

i. Adds to Pennoyer; If you cant get personal service, PJ can still beobtained through implied consent(Nonresident motorist statute- consents to theappointment of a state official as an agent)

3.Domicile: the place where the person resides and intends to remain for the indefinitefuture. When you establish domicile, you establish a relationship with the forum.

a. Milliken v. Meyer (1940): Relationship to state is not dissolved by mereabsence from the state.

B.EXPANSION of Personal Jurisdiction: Specific and General1.Minimum Contacts Test: International Shoe Co. v. Washington (1945)

(a)To get PJ over non-resident D, D must have such minimum contacts with theforum so that exercise of jurisdiction does not violate traditional notions offair play and substantial justice (14

thAmend) (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. GeneralJurisdiction- If contacts are unrelated to the claim, the contacts must becontinuous 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 Ds 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. SpecificJurisdiction- If the contacts are related to the claim, you can get PJ even ifthe 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 stateii. Solicitation/Relatedness/States 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 placementin 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 couldbe a consequence in the state (indirect connection)

iv. Rule- Reasonable notice. D should be able to reasonably foreseepotential litigation as part of due process.

C.LIMITS Imposed1.Hanson v. Denkla (1958)

(a)Rule- To be a contact under Shoe, must result from Ds purposeful availment;D must purposefully avail himself from the privilege of conducting activities


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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 banksubject 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 Titans 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 tubes valve (Asahi). Asahimanufactures in Japan, sells assemblies many places including CA.Holding: CA cannot assert jurisdiction over Asahi

(b)Purposeful Availment1. OConner (Majority)- Awareness of the stream of commerce does

not create minimum contacts; you also need actions purposefullydirected (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 ofcommerce and I reasonably anticipate that it will get to that state.(Makes sense, bc Im making money off that state whether Idistribute there directly or indirectly)

(c)Reasonableness to see if there are minimum contacts1. 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 livesand center of her business. Holding: There is specific PJ.

(b)PJ okay when the targeted harm is expressly aimed at the forum; knowing thevictim would feel the effects in the forum; reasonably foresee that harm wouldbe 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 Jurisdiction-

Harris 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 debtfrom Balk due Harris, thus acquiring quasi in rem jurisdiction over Balk.

(b)SC: the obligation of the debtorto pay his debt clings to and accompanies himwherever he goes. (QIR jurisdiction allowed Epstein to reach Balk in MD)


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Shaffer v. Heitner (1977)(c)Heitner owned one share of Greyhound stock. Greyhound is a DE corp. w/ PPB

in AZ. P sued in DE, although not a DE resident, over transactions thatoccurred in Oregon. H: DE doesnt have PJ over D (the statute was inconsistentwith DP).

(d)Rule: All assertions of state court jurisdiction, including in rem and quasi in remmust be evaluated under MC Mere presence of property that is unrelated tothe 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.Previous standard was Pennoyer (presence of person or property was sufficientand necessary). With MC (before): presence not necessary; Now: presence ofproperty is not even sufficient!

7.Transient Service- Burnham v. Superior Court of California (1990)(a)P brought suit for divorce against her husband in CA state court. He was a NJ

resident but was in CA for business and was served at Ps house while visitinghis children.

(b)Rule: (transient service): presence of an individual in the forum state allowingfor personal service is sufficient to establish PJ (if present, dont need MC).

(c)The court split 4-4 on this issue::

(1)Scalia- Traditional (Pennoyer) is good! No need to look at MC!Jurisdiction is justified by power and tradition. Receiving a piece of paper in a statedoes not make a contact.

(2)Brennan- Traditional basis are out the window. Every case must beassessed by Shoe, and presence itself is a minimum contact.

D.CONSTITUTIONAL TEST OVERVIEW1. First ask, is there is a traditional basis (power, presence, consent, domicile) that

applies? If yes, 4 justices say thats good enough for PJ. 4 other justices say theyneed minimum contacts.

2. 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. Fairness(a)Relatedness- does Ps claim arise from contact w/ the forum?

1. If so, helps find juris (i.e., McGee: contact upheld jurisdiction)2. If not, then Jurisdiction will only be okay if we have general

jurisdiction, and that means we have to have continuous orsystematic ties with the forum

(b)Inconvenience to the D1. Burden is on D to show that its so gravely inconvenient he is in a

severe disadvantage (Burger King)

(c)States Interest in protecting/providing a forum for its citizens(d)Plaintiffs Interest(e)Legal systems interest in efficiency(f) Interstate Interest in Shared Substantive Policies

E.Why Litigants Care About Forum Choice1.Convenience

- Suing at home, less burdensome, may be less expensive to sue where event happened2.Values and Bias

- Judges and juries have certain values and biases. Possibly hometown sympathy could favor plaintiff3.Procedural Advantages

- Preference in American courts rather than abroad b/c of procedures


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4.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. STATUTORY LIMITS ON PERSONAL JURISDICTIONA. PJ is only proper IF:

1. The case falls within the terms of a state statute (Long Arm), and2. Jurisdiction is constitutional (use constitutional analysis above)

B. Long Arm Statutes1. Specify the scope of that states PJ authority

C. Nationwide Jurisdiction1. 5th Amendment constrains Fed Power; 14th constrains State Power.2. However, FRCP basically makes the 14th amendment apply to federal courts, so

that courts are by and large constrained by state borders3. Rule 4K- Territorial Limits of Effective Service

4K1- In General. Serving a summons or filing a waiver of serviceestablishes PJ over a D:

4(k)(1)(a)- Who is subject to the jurisdiction of a court of generaljurisdiction in the state where the district court is located;

o Backdoor application of 14th Amendment - fed courtscant have jurisdiction over state borders. Fed courts aresubject to all the limits of the state court (state long armstatute and DP)

4(k)(1)(b)- Who is a party joined under Rule 14 or 19 and isserved within a judicial district of the United States and not morethan 100 miles from where the summons was issued; or

4(k)(1)(c)- When authorized by a federal statute.o EXCEPTION: a specific statute, made by congress,

allows you to serve process anywhere in the USA,regardless of other parts of this rule

4K2- Federal Claim Outside State-Court Jurisdiction. Provides fornationwide jurisdiction when conditions are met:

Must be a federal cause of action.

ONLY if D is not subject to any state courts general jurisdiction. For a claim that arises under federal law, serving a summons or filing a

waiver of service establishes PJ over a D if:

4(K)(2)(a)- the D is not subject to jurisdiction in any statescourts of general jurisdiction; and

4(k)(2)(b)- Exercising jurisdiction is consistent with the UnitedStates Constitution and laws.

o This is a Small number of cases: Use 4k2 when its a

Federal Claim, with not enough contact w/ a particular(OR ANY) state to assert jurisdiction there, but enoughcontact w/ the nation as a whole that it wouldnt be aviolation of 5th amendment.

4. GMAC v. Raju (2003)a) India citizen registered Internet domain names to sell GMAT test prep

materials. Sued in VA, where GMAC is located. P could not sue in VAbecause there was not enough contact with the state, but nationwidejurisdiction was granted through 4(K)(2).


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


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NOTICE (from BAR/BRI): In addition to PJ, D must be given notice.A. Service of Process

a. FRCP 4.i. Process consists of 1) the summons and 2) a copy of the complaint.

1. Summons shows power of the stateii. Service can be made by any nonparty who is at least 18.

iii. How do we serve a human beings, 3 alternatives under 4(e)(2)1. Personal service: walk up and hand it to you.2. Substituted service

a. Must be at Ds usual abodeb. Serve someone of suitable age and discretion who resides there

3. Serve Ds agent4. Waiver of service under 4(d)

a. Allows waiver of service by mail.b. Allows you to mail the process and a waiver form to D with a SASE.c. If D does not return waiver form, P must serve with process. Only penalty

to D: D may have to pay the cost of service.b. Constitutional Test. Mullane v. Central Hanover Bankc. Opportunity to be heard, factors court looks at:

i. P must give an affidavit (sworn statement as to why hes entitled to property back)ii. Affidavit must state specific facts

iii. Must get an order form a court.

iv. P might have to post a bond.v. D should get a hearing at some point.

PJ simply tells you that you can sue D in a particular state; says nothing about which court to go to once in that state. SMJ tells us which court to goto. SMJ is not exercised over parties, it is exercised over the case. (federal courts can only hear certain kinds of cases, have limited SMJ) State courtshave general SMJ: State courts can hear any kind of case. (One exception: some FQ cases that are exclusive to fed courts.) Two kinds of cases fedcourts can here: diversity of citizenship, or federal question.

NOTICEI.Constitutional Requirement

A. Due Processa. Due Process right: the opportunity to be heard and be informed of a lawsuit

a. Right to Participate- includes the right to present your side of the story.

Based in adversarial truth because the arguments should enable the jury topick the best side and also participation helps draw people into the legalsystem so they are more likely to respect an outcome

1. Notice: crucial DP right: if you dont know, you cant participateb. Subjective Awareness- comes with a tradeoff of responsibility, some on

listener to make himself aware and some on speaker to make info available1. Determining who has the bigger burden is highly contextual2. Ask, wheres the bang for the buck?

B. Mullane v. Central Hanover Bank (1950)a. Tust fund gave notice in a newspaper to 113 beneficiaries; most didnt see

it. Court: this did not satisfy the notice requirement of 14th

amendmentb. Rule: Notice must be reasonably calculated under the circumstances.c. Mere publication was not enough. Under the circumstances, there was an

easier way to serve D.

II.Mechanics of Service of Process- Service- delivery to the party- Process- the thing being served, the summons itself- Complaint- more detailed information of the claims/parties. Complaint starts the lawsuit.

Must be served with the summons!!


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- If D does not respond to summons, a default judgment can be entered against him.

Rule 4- Summons (a call to court)- 4a: Contents of summons- names of court/parties, addresses of Ps attorney, time limits.

Must be signed by clerk and sealed- 4b- Issuance: summons must be filed w/ court. Summons is drafted by P; signed by the

clerk. Summons is a document of the court. Need a complaint to order a summons.- 4c- Service

o 4c1- Summons must be served with copy of the complainto 4c2-3- anyone over 18 that is not party of the suit can serve (lawyer can serve).

Sometimes done by US Marshal- 4d- Waiving Service:**This is not service by mail. It allows waiver of service by mail,

because mail itself w/o acknowledgment does not provide service of process.o Requesting waiver- request to waive service of summons by written request to defo Failure to waive- if def doesnt return waiver w/in time limits, then court can

impose expenses needed to make service (D has a duty to avoid unnecessaryexpenses of service)

o Time to Answer- 60 days to file answer after request for waiver sent (90 if out ofcountry) This is a longer time than if they were just served

- 4e- Serving an Individual w/in a Judicial District: follow state law in state where district

court is located. Or, hand deliver, leave copy with someone at home, or deliver to an agento Delivering a copy to the individualo Leave it at the house with another person of suitable age who lives there. So, if

you cant deliver it personally, you have to give it to someone else. You cant justleave it there.

o Deliver a copy to someone appointed to receive processo You still have the option of serving according to the law of the state. So if state law

says you can just mail it, then you can- 4f- Serving someone if foreign country: Use rules from Hague Convention/International

agreements or, if not available, use countrys laws, hand deliver, or letter w/ receipt

- 4g- Serving Minors/Incompetents: follow state laws, or if out of country use countrys

laws- 4h- Serving Corporations: follow state law or deliver summons to officer or agent, and

mail copy to all defendants OR if out of country, use international law or country laws- 4i- Serving US/Agencies:

o US- deliver copy to district attorney (or assistant), or send copy to civil-processclerk, to the US Attorney General, and to any agencies/officers involved

o Agency/Officer in Official capacity- serve US and also the Officero Officer Individually- serve US and officero Allow reasonable time

- 4j- Serving foreign/state/local gov't:o Foreign- use US Codeo State/Local- deliver copy to CEO or follow state laws for serving type of def

- 4k- Territorial Limits: summons gives jurisdiction if def is subject to jurisdiction in thatstate, or authorized by fed statute. For outside state jurisdiction- def cant be subject to anystate jurisdiction and jurisdiction is consistent w/ Constitution (detailed above)

- 4l- Proving Service- Server has to sign an affidavit (sworn statement). Outside US- followinternational agreements, or receipt. Single best collateral attack is one that says you neverreceived service

- 4m- Time limit: serve within 120 days after complaint is filed, unless good cause- 4n- Jurisdiction over Property/Assets:


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o Federal law- if authorized by fed statute. Notice must be giveno State law- seize assets following state law.

- State service of process- usually similar to FRCP- Immunity from service

o Many states allow people immunity from process when they enter the jurisdictionfor reasons such as witness, party or attorneys who have entered to participate inunrelated 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. File a complaint with the court.2. You have 120 days to serve the defendant. Rule 4(m)3. The complaint must be accompanied by a summons. Rule 4(c)(1).4. Get the summons from the clerk. Rule 4(2)(b).5. Anyone at least 18 and not a party can serve the summons. Rule 4(c)(2).6. Leave the service with someone ofsuitable age and discretion at the Ds home. Rule 4(c)(2)(a,b,c)7. You can borrow state law for serving summons where district court is located or where service is made.8. P can request to waive service to avoid expense. If D does not agree to waive service, D must pay expenses to

track himself down.

9. Serving corporations: To a managing or general agent or any agent authorized by appointment or law toreceive service of process. Must also mail a copy to each D.


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VENUE: allocated judicial authority withinjurisdiction; concerned with convenience of trial.I. The Local Action Rule

a. When title to land is involved, the only forum that can hear that case is where theland is located.

b. Livingston v. Jeffersoni. Court dismissed the suit because the action was local and could only be

brought in Louisiana, where the land was located.

II. State and Federal Venue Statutesa. Venue- determines where a P can bring a suit. It allocates judicial authority within

a judicial system. Focuses on convenienceb. State: intra-jurisdictional: where within a state the suit can be brought?c. Federal: in which district can D be sued? 28 USC 1391o 1391A- For DIVERSITY actions. P may lay venue:

District where all the Ds 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, OR If theres no other district, then in a judicial district where any D is subject

to PJ at the time of the filingo 1391B- For FEDERAL QUESTIONS, P may lay venue

#1 and #2 are same as above, OR If theres no other district, 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, wherewere more concerned about forum shopping. No reason whycongress did this

o 1391C- CORPORATIONS Corporations are deemed to reside in all districts where they have PJ, which

is any state where it has minimum contactsd. Other Notes:

i. 1391 only applies if an action is FILED in fed courtno application tocases removed from State court

ii. We do not use A3 or B3 very often coming up with a hypo is challengingiii. Usually, venue will not make a difference because theyre in the same

places as PJ. Key Exception is the Burnham case, where someone is servedin a state where they dont reside. They have PJ, but may not have venue

III.ForumNon Conveniensa. Allows courts the discretion to dismiss an action that would be more appropriately

litigated in another forum even though the proper jurisdiction and venuerequirements were met in the first forum

b. Effect: just as P looks for best laws, D can also to do the same thing: when the caseis dismissed and re-filed, use the law of the new forum

c. Practical Effect- if the case is moved outside the US- it will probably never be re-filed because it would be too difficult and expensive.

d. Piper Aircraft Co. v. Reyno (1981)i. Plane rash in Scotland, manufactured in US. Litigation in US is dismissed

b/c center of gravity is Scotland.ii. Rule: weigh public (nature of the claim) and private interests (convenience,

cost, witnesses) before deciding to dismiss the case.


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iii. The possibility of an unfavorable change in law by granting a motion todimiss underforum non conveniens should not by itself bar dismissal; Theremust also be a more appropriate forum.

IV.Transfera. 28 USC 1404

i. Provides for transfer from one federal district court to another as analternative to outright dismissal

ii. Can only transfer to a district where P could have originally filed suit(Different from FNC, where D can submit to PJ in the alternate forum)

b. Ferens et ux. V. John Deere Co. (1990)i. Facts: P from PA lost hand on combine harvester. Files suit in MI because

of longer statute of limitations. P transfers back to PAii. Rule: Laws of the transferor court should apply regardless of who initiates

the transfer. 1404 does not bring with it a change of law.iii. If the court decided the other way, all it would do is keep P from

transferring but they can still forum shop.c. Key Factors:

i. Transfer- not dismissal. Case is just moved to a new location

ii. Law- Must apply Same Law that was used in the transferor courtiii. Low Burden- Low Deference to Ps choice. Easierto acquire transferiv. Moves to another court in the same system: Federal. Must move case from

one federal court to anotherv. Appellate Review- De Novo/Plenary Review- after the case they can review,

and it if you are correct, they will wipe out everythingd. 28 USC 1406

i. Applies when the venue/jurisdiction are lacking in the original forum. Courtcan either dismiss the case or transfer it to the proper forum, but they willapply the law of the new forum

e. 28 USC 1407

i. Actions pending in different districts can be transferred to a single districtfor coordinated/consolidated pretrial purposes


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SUBJECT MATTER JURISDICTIONI. Introduction

a. State courts- courts of general/plenary SMJ: can hear cases on any type of claimb. Federal courts- limited SMJ (and some exclusive jurisdiction- antitrust). Has

jurisdiction only over categories in Art. 3 Section 2, given by Congressi. Article 3 is Madisonian compromisecreates a Supreme Court, but allows

Congress to create lower federal courts if it wants.ii. Then, 1st congress creates lower federal courts.

iii. We have lower courts because theres not enough ability for one supremecourt to police all of the state courts

c. Courts can address issues of SMJ sua sponte- on its own motiond. Standing to Sue- Standing rules require that a party asserting legal right be the

appropriate person to enforce that right.

II. Diversity Jurisdictiona. Rationale/Complete Diversity Requirement

i. Complete Diversity- Strawbridge v. Curtiss (1806)1. Rule- Where the interest is joint, there must be complete diversity.2. 28 USC 1332 (Diversity Statute)

For Diversity Jurisdiction:a. Parties Must Be Diverseb. Amount in Question must be MORE than $75,000

3. If there is at least 1 D from the same state as 1 P, then the non-diverse D protects the interests of all the Ds. No need to move tofederal court

4. Exceptions to Diversity Jurisdictiona. Domestic Relationsfed courts traditionally refused to hear

cases dealing w/ domestic relations even if diversity andamount in controversy have been met

b. Probaterefuse to hear

b. Determining Citizenship/Joinder Issuesi. Time Frame- Citizenship is determined at the time the suit is filed

ii. Natural Citizens- Citizenship is their place of Domicile1. Where you live and play to stay indefinitely- where you will return2. Even if you live somewhere for an extended time but know youll

leave, then its not your home3. Can only have 1 domicile. When you leave a place, your citizenship

doesnt change until you get a new domicileiii. Corporations- 28 USC 1332(c)(1)

1. Citizen of 2: place incorporated & PPB (place decisions made)2. Keep in mind- citizenship and residency are different between

diversity and venueiv. Unincorporated Associations- based on citizenship of ALL members

1. Limited Partnership- Carden v. Arkoma Associates (1990)a. P is a limited partnership, 1 partner (LA). D was from LA.b. Rule: citizenship ofevery partner in a limited partnership is

considered when determining diversity. Congress has theoption to change.

2. Rose v. Giamatti (1989)a. Facts: Rose joined Reds and MLB as Ds. Giamatti filed for

removal. Rose filed to remand to state courts. Court decides


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theyre not going to count the non-diverse defendantsbecause Rose doesnt really have any grievance against them.Keeps diversity.

b. Rule: Parties fraudulently joined should not be used indetermining diversity. Fed court should disregard nominal orformal parties and determine jurisdiction only oncitizenship of real parties to the controversy.

c. The fraudulent joinder doctrine is a direct response to thefrustration of the Involuntary Dismissal doctrine, which madeit irrelevant for states to dismiss non-diverse parties becausea case that is not removable when filed cant becomeremovable through dismissal. Instead, the federal courtshave to decide.

c. Alienage Jurisdictioni. 28 USC 1332(a)- gives diversity jurisdiction over controversies between:

1. Citizens of a state and citizens of a foreign state2. Citizens of different states, in which citizens of foreign state are

additional parties3. A foreign state as plaintiff, and citizens of a state or different states

ii. Notes:1. Aliens that have a permanent US residence are treated as a citizen of

the US state that where they reside2. Americans living Abroad are precluded from suing in diversity3. Suits between 2 aliens- no jurisdiction4. Suit in which alien and citizen are on one side, and alien is on the

other- no diversity5. Suit in which citizens of different states are on both sides along with

aliens on each side- Yes jurisdictioniii. Reasons

1. To mitigate local bias against foreigners by allowing foreigners to remove to federal courts

2. To compel aliens to litigate in state courts would be an affront to the sovereign nations from which theycome.

d. Amount in Controversyi. 28 USC 1332- claims between citizens of different states must have an

amount in controversy that exceeds $75,000ii. Legal certainty test- unless D can show that to a legal certainty that the

claim could not exceed $75,000, then the amount in controversy must betaken at face value.

iii. Aggregation of Claims1. Single P asserts more than one claim against a single D add them up

(claims do not need to be related)2. Claims of separate plaintiffs seeking similar relief against D- cannot

add up3. Single claim against multiple D- cannot add up4. Separate Ps can unite when they have a common and undivided

interest- add them upe. Diversity Jurisdiction and Complex

i. Multiparty, Multiforum Trial Jurisdiction Act1. Liability

a. Several- each D responsible for amount of damage theycaused


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b. Joint- everyone is responsible for harm, but burden is on P tobring all parties to the suit

c. Joint and Several- each D is responsible for full amount ofinjury. Each bears complete responsibility to P

2. Multiple Party suits- must be common and undivided. Both partieshave to share the same injury (not just same type- ex. Jointhomeowners both sue for full damage)

ii. Class Action Fairness Act1. Named representative brings suit on behalf of himself and others in

similar situation2. When brought in fed court on diversity- we look to the main P for

diversity3. Each class members claim must be above $75,0004. Congress made changes in Class Actions b/c they were upset with

how states were handling it

III. Federal Question Jurisdictiona. 28 USC 1331: The general Federal Question statute.

i. No amount in controversy requirement.

ii. Federal law must be part of the claim, not a defense.iii. Federal law must be sufficiently central to the claim asserted.

b. Arising Under Jurisdiction- Louisville & Nashville RR v. Mottley (1908)i. Mottley received lifetime passes in settlement with RR. Congress passes a

law: RRs cannot honor free passes, so RR stops honoring Ms passes. Mssue. RR defense: this violates DP. Holding: No FQ jurisdiction.

ii. Rule: Need to look to the source of the suit to determine if it arises out offederal law. Federal law mustcreate theunderlying cause of action; Notenough that fed law issues are simply present.

iii. Well-pleaded complaint Rule: A suit arises under a FQ only when Pscomplaint (looking at the claim itself) is based on fed laws or Constitution.

iv. In this case, 5th amendment was an anticipated defense and not the source.Even though the case turned on federal law, the underlying cause of action

being enforced was a creature of state law.c. Smith v. Kansas City Title & Trust Co. (1920)

i. Shareholder Smith: the act of congress (Federal Farm Loan Act) allowingKCTT to invest in farm bonds is unconstitutional. H: Yes, FQ jurisdiction.

ii. Rule: Federal law must provide an essential element ofplaintiffs claim.iii. This case fails the Mottley test because fiduciary duty is state law; federal

law just authorizes the investment. The case comes out the other way bc theConstitution was not used as a defense. Compare the well-pleadedcomplaints: Mottley- we dont need federal law to show that the P is being

wronged; Fed law is dependent on D using it as a defense. Smith- the onlyway P can explain they were wronged is by talking about federal law; Its anessential partof Ps claim.Basically, as long as its necessary that a Fedclaim be brought up. In Mottley, it wasnt necessary, so the P had to bring it.

iv. Opposite: If federal cause of action turning on state law: not enough for FQjurisdiction. ALSO need a federal standard.

d. Merrell Dow Pharmaceuticals v. Thompson (1986)i. P sues for birth defects suffered as a result of meds moms took while

preggo. P claims the meds didnt have warnings, violated an FDCAregulation.


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Holding: No FQ jurisdiction.ii. Rule: The use of a federal standard in a state law issue does not arise

under federal law.

1. Congress did not want P to have remedy; Congress had a choicewhen passing the act, and said not enforceable by P in fed court byFDA.

iii. Under Mottley- No, fed law does not provide remedy. Not a fed c.o.a.iv. Under Smith- Yes, fed law is essential to Ps reliefv. (Merrell seems overrule Smith; but also ways to distinguish- Here, P has

other ways of establishing deficient labeling than fed law. Not using fed lawit is not fatal to the case: Not reallyessential, just enhances Ps case.)

e. Grable & Sons Metal Products v. Darue (2005)i. Facts: P didnt pay taxes, and IRS grabbed his property and he defaulted in

court. Then brings an action saying judgment is not valid because he wasnot served properly based on Federal regulations on service. Holding: Yes,FQ.

ii. Rule- (Revives Smith) Its still possible to have FQ jurisdiction when thefed law is essential to a state cause of action

iii. Grable Three-Prong Test:

1. Is a federal issue central to the cause of action?2. Is it a substantial federal issue? (Is there strong fed interest?)3. Would this interrupt the division of labor? (Would it open the

floodgates?)

f. Declaratory Judgmentsi. A kind of injunctive relief; asking court to declare the rights of 2 parties. aka

If someone who was set to be the D in a lawsuit is first to file for theDeclaratory judgment, on paper they look like the P, however, the court willrecognize this and still treat them as the D.

1. You cannot get juris when D is claiming a federal defense.2. The Mottley rule (that the fed statute must be on the P side) does not

apply to declaratory judgments.ii. Allows someone file a lawsuit simply to get a declaration of rights and

liability. If D sues first, then something that is federal that would be used asa defense, is now on the plaintiffs side. This is not good enough for FQ-Identify what the underlying coercive claim would be and evaluate FQ onthat.

IV. Supplemental Jurisdictiona. USC 1367: Federal courts can hear claims that invoke FQ jurisdiction, including

individual claims or issues that do not, so long as they are so closely related to theunderlying dispute as to constitute a part of the same case or controversy (Pendent)

i. Ancillary: D can assert a state law counterclaim or 3rd party claim with nodiversity of citizenship in Fed court as long as there is no independent basisfor jurisdiction

JOINDER OF CLAIMS AND PARTIES UNDER THE FRCP

Rule 18Joining claims against one partyo Kitchen sink rule- P or D can assert as many claims as he has against the other party, they do not have

to be related

Rule 13Counterclaims and cross-claimso Authorizes party to assert counterclaims against anyone who has asserted a claim against themo 13A- Compulsory counterclaim- if the counterclaim is related to the claim against the party (arises out

of same t/o), it must be asserted or it is waived


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o 13B- Permissive Counterclaim- unrelated claims are permitted but not requiredo 13GCrossclaim-allows parties to assert cross-claims against non-adverse parties (such as co-defs),

but only if those claims are related to the original action

Rule 20Joinder of partieso 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 14Impleadero Allows any party defending a claim to implead a 3rd party def who may be liable for indemnity on that

claim

Rule 19Required Joinder of Partieso Authorizes court to order the joinder of any party needed for just adjudicationo 19B- if the party cant be joined, court can stop the lawsuit

as a practical matter if you couldnt bring a party into court it would subject the other party tosubstantial risk of obligation or impair or impede ability of that party to protect oneself.

Rule 24Intervenero Person interjects himself into the lawsuit w/out request by pl or def (crashing the party)

Rule 23Class actionso Asserting the claims of similarly situated parties

Rule 22Interpleader-o the same property held by P. Allows Ds 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.

b. The Origins of Supplemental Jurisdiction: Pendent/Ancillary Claimsi. United Mine Workers of America v. Gibbs (1966)

1. Facts: P: UMW violated federal law. Not diverse, so Gibbs used FQto get in fed court on the labor law claim. Court let his other stateclaim in as well.

2. Rule: Pendent Jurisdiction allows court to assert jurisdiction over thewhole case when part is state and part is fed court, as long as theyshare a common nucleus of operative facts.

3. Article 3 gives court jurisdiction over cases, not just claims, and acase can arise under fed law even if it has state elements.

4. Reasoning- (1) Protect the fed court mission of hearing fed claims-

courts dont want to discourage parties from adjudicating fed claimsin fed court. (2) Efficiency- common nucleus, same facts andevidence

ii. Moore v. New York Cotton Exchange (1926)1. Facts: Odd Lot sues in an antitrust case, claiming NYCE has a

monopoly (FQ). NYCE counterclaims that Odd Lot is stealing info(not FQ).

2. Rule: Ancillary Jurisdiction allows federal court to assert jurisdictionover a non-federal claim when the 2 claims arise out of sametransaction or occurrence.

3. The theft and anti-trust cases did not have a common nucleus (no

same witnesses, not easier) but theyre linked b/c theres anexpectation that the 2 parties can resolve their full dispute. A caseisnt just evidence, its idea ofsetting a common dispute

4. Compulsory counterclaims, as this was with one federal and onestate claim that are different, under (13A) should have supplementaljurisdiction. The test is same transaction or occurrence akalogically related.

c. Additional Partiesi. Owen Equipment & Erection Co. v. Kroger (1978)


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1. Facts: Kroger (IA) walks near crane near power line and getselectrocuted. Wife sues Power Co. in diversity; Power Co. impleadsOwen (crane owner) under Rule 14(a). Power Co. drops out of thesuit; Kroger amends complaint to include Owen. After trial beings:Owen is actually from IA, and there is no diversity. H: Fed cannothear.

2. Rule: P cannot add non-diverse parties to a diversity suit. If itwas a federal question, they could have. But first case was based ondiversity.

3. If Power Co. stayed, it would have been different bc Ds can impleadnon-diverse 3rd parities and stay in Fed Court (because D didntchoose fed forum). Problem occurred when Kroger added Owen tocomplaint: Court doesnt want to allow P to add in a non-diverseparty b/c then Ps can abuse the diversity rule.

4. Not constitutional problem, not FRCP problem. Congress: must havecomplete diversity under 1332.

ii. Finley v. United States1. Facts: Airplane crash at San Diego airport. Fed claim against FAA-

must sue in fed court (by law). State claims against San Diego and

Electric Co. Is there jurisdiction over state claims & parties in fedquestion case?

2. Scalia: Can add pendant claims, CANNOT add pendant parties.a. Even though P had no choice of forum.b. If Congress wanted to, they would pass a statute. (They did.)

d. Congress Responds to Finley: Supplemental Jurisdiction-28 USC 1367i. Embraced Gibbs, overruled Finley, codifies Kroger.

ii. Default Rule: 1367A1. If the 2 claims are so related that they form the same case or

controversy, they have supplemental jurisdiction over all claims andadditional parties. (Does not distinguish between diversity and FQ

jurisdiction.)iii. Carve Out Exceptions: 1367B (otherwise, go back to default)

1. Only applies to diversity jurisdiction2. Covers claims by Ps against parties joined under R 14, 19, 20, 24, or3. Covers claims by persons proposed to be Plaintiffs under 19 or 24

iv. When supp juris over such claims would be inconsistent w/ 1332trying to helpP in Kroger if she hadnt chosen the forum, if she filed in state court

e. Exxon Mobil v. Allapattah ServicesRosario Ortega v. Star-Kist Foods (2005)

i. Facts: Exxon dealers file a class action suit against Exxon for a schemewhere they were overcharged for fuel. Suit was filed in fed court for

diversity, but not all the class members met the minimum amountii. Rule: When other elements of jurisdiction are present and at least 1 P in the

action satisfies the amount in controversy, 1367 authorizessupplementaljurisdiction over the claims of the other Ps in the same case, even if

they dont meet the minimum amount. (The anchor claim met theminimum amount in controversy to get into federal court.)

iii. It would be inconsistent with the notion of supplemental jurisdiction torequire that all claims in the complaint have to stand as indivisible actions


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iv. Post Allapatah, you cannot add additional plaintiffs under 1367 if doing sowould destroy complete diversity. You can, however, add additionalplaintiffs if the additional plaintiffs do not meet the amount in controversy.

V. Removal Jurisdiction- 28 USC 1441a. The Structure of Removal

i. Almost any case that could have been brought in federal court can beremoved to federal court.

ii. D has to be the one to remove. All Ds must agree to remove.

iii. Diversity Cases- Limited- 1441B1. Only removable if none of the parties are home-state defendants. (if

there is a home state D, it is NOT removable)2. Reason- If D has home field advantage, no need to sue in fed court.

iv. Federal Question- Guaranteed- 1441B1. Claim is always removable when it arises under federal law, as

determined by Ps complaint even removed by D in home state.v. 28 USC 1441C

1. Only in FQ cases: Removal of entire case if the removable federalclaims are separate and independent from any non-federal claims

vi. Glitch- 1441B says D has to be properly joined and served.

1. D could try to remove before being served- some courts allow this,others do.

b. Procedure for Removal- 28 USC 1446i. Only D can remove; D cannot remove on grounds of Diversity jurisdiction if

D is sued in his own state court.ii. Removal is allowed only if P could have chosen to bring action in Fed Court

initially but didnt.iii. D can remove to federal court in a different state.iv. Unanimity rule: If more than one D, all Ds must agree to remove.v. D must file notice of removal in district court of the district and division

where the action would be pending.

vi. The minute the notice is filed- its automatically removed1. If it shouldnt have been removed, then P can remand under1447

vii. D has 30 days after service of a removable claim to remove the action.Must be within a year of the original filing (Fed Question has no time limit)

viii. Remand 28 USC 14471. Motion to remand must be made within 30 days of notice of removal

VI.Challenging Forum Selectiona. Subject Matter Jurisdiction

i. 12H3- Lack of SMJ can be raised at any timeii. Its the judges responsibility to determine if it exists (even if no one raises

the issue)iii. Usually, SMJ is determined firstiv. Collateral Attacks are available (like PJ).v. For SMJ- you can collaterally attack even if you contested the first judgment

b. Personal Jurisdictioni. Special Appearance

1. Make an appearance in the state for the sole purpose of arguing lackof personal jurisdiction.

ii. Collateral Attack


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1. After a suit is completed, defendant can argue that the judgment isinvalid because of no jurisdiction. If you lose, you cannot argue thecase on the merits. Youre putting all eggs in one basket.

c. Motions to dismiss- Later in Outline


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THE LAW APPLIED IN FEDERAL COURTI. Introduction

a. 2 Legal Texts give Guidancei. 10th Amendment of Constitution

1. Limits Federal Power: Powers not delegated should be reserved forstates. The state is the default sovereign. When federal power isntexplicit, use state law.

ii. 34 of Judiciary Act of 1789/28 USC 1652 (Rules of Decision Act)1. Creates the federal courts2. The laws of the several states, except where the constitution or

treaties of the US or Act of Congress otherwise require or provide,shall be regarded as rules of decision in civil actions in the courts ofthe US, in cases where they apply

a. Basically, state law applies unless a statue says otherwiseb. State law is the default, unless controlled by

Constitution/treaty/act of Congress

II. The Origins of the Debate: Swift and Eriea. Swift v. Tyson (1842)

i. Rule: In matters of common law, the federal court was not bound by thestate courts interpretation of the common law.

ii. Story: If legislature passes a statute, then thats law, but the interpretation ofthe courts of common law is not state law because its just the judgesopinion and shouldnt be binding on federal courts. Fed has to follow stateover something things but they dont have to follow over general law.

iii. By 1938, vision of law changes1. Both statutory and judicial decisions constitute law2. No general common law

b. Erie R. Co. v. Tompkins (1938)i. Facts: PA citizen was injured in PA by NY train. P sues RR in NY fed

court for negligence. (PA state law makes P contributorily negligent.)ii. Rule: Swift is overruled. The federal court should follow state judicial

decisions. Common law is law.iii. Rationale- Equality. Diverse litigants should not have different rights than

non-diverse litigants.iv. Creates Forum Shopping problem:

1. Creates horizontal forum shopping (state to state): P can choosebetween state laws

2. Ends vertical forum shopping (state to fed): No need for D to removeto federal court because the law applied will be the same.

3. Gives more power to P.

v. SUBSTANTIVE v. PROCEDURAL law1. Required federal courts to apply state substantive law, but their

own federal procedural lawa. Substantive- rights and remedies (how you act in the world,

and what you do to fix a wrong). Go with State law.i. Erie is substantive- how did railroad have to behave

toward Tompkinsb. Procedural- how a case will be brought in court/how it will

be litigated. Go with federal law. (Why: Rules of Decision


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statute law of the several states and their unwritten orcommon lawshall be regarded as the rules of decision)

III.Determining the Procedural Law Applicable in Federal Courtsa. Outcome Determination

i. Guaranty Trust Co. of New York v. York (1945)1. Fiduciary duty suit. (Claims would be barred under state law by state

StatuteOLimitations) P says SOL is procedural (federal SOL: laches:equity suits can never be untimely). Holding: State SOL.

2. Rule (Frankfurter): Use OUTCOME DETERMINATION TESTto find out if a law is substantive or procedural; the case should comeout the same. Identify a substantive rule by uniformity and forumshopping.

3. If the differences affect the outcome of litigation: substantial, so gowith state law. (The test leads to excess conformity.)

b. Analyzing State and Federal Interestsi. Byrd v. Blue Ridge Rural Electric Cooperative (1958)

1. Facts: Federal Workman Comp Act. Byrd: not an employee, noworkman comp; Blue Ridge: workman applies. In state court, judge

would decide; fed court, the jury. H: the jury (so fed law).2. The outcome derivative test is unclear: judge and jury could

theoretically rule the same.3. Rule (Brennan)-FEDERALISM-Balance regulatory interests of states with need for

judicial independence in federal courts. Balance state substantive rights (smallerpebble) with federal courts autonomy (bigger pebble).(If the fed courthas to apply the state rule, is it going to impend on the way a fedcourt works?)

a. Fed courts shouldnt step on state toes, but sometimes federalcourts should be able to do things their way.

b. Outcome uniformity and forum shopping are just factors

4. Here, Strong state regulatory interest? NO, state wasnt conferring aright. Strong federal interest? YES, the ability of a jury trial under7th amendment.

The Impact of the FRCP

ii. Rules Enabling Act of 1934 (REA)- 28 USC 20721. Congress delegated power to Supreme Court to establish FRCP

a. 2072A- SC shall have power to prescribe general rules ofpractice and procedure and rules of evidence for cases in US

district courts and courts of appeals

b. 2072B- Such rules shall not abridge, enlarge, or modify anysubstantive right(allowed if it modifies procedural right)

2. Relationship between REA and RDA: No longer an absence offederal rules. If federal statute, must follow it. (Statutory backing!)

3. Today, rulemaking process is an ongoing evaluation: 28 USC 2071-2074

iii. Hanna v. Plumer (1965)1. Issue of service of process. Does Rule 4 crowd out state law? (Is R4

unconstitutional?) Outcome determinative test is over-inclusive(because anything can determine the outcome).


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2. Rule: creates GUIDED and UNGUIDED track. If there is a federallaw (guided tract), apply it. View Outcome Determination Testthrough the twin aims of Erie.

3. Unguided Track: If no Federal Rule, apply state law (usually).a. If the difference would affect Ps choice of forum, apply state

law. If not, can apply fed law. (This is the new OutcomeDetermination Test: dependant on ex-ante application oftwin evils of Erie.)

b. Next, apply Erie Duel Evils Test: Would failure to applystate rule create these evils?

i. 1) Forum shopping: There should not be a substantialbenefit in one court over another.

ii. 2) Inequitable administration of law: federal and stateoutcomes should mirror each other.

iii. Question to ask: If the fed judge ignores this statelaw, will it cause litigants to flock to federal court?A different outcome prediction should not lure peopleto one court.

c. Everything can be outcome determinative, so MODIFY: we

want to know is if it isoriginallyoutcome determinative, notafter the fact. If P wouldnt benefit originally in forumselection, okay to deviate from state law. If it would affectwhere P would bring suit, apply state law.

d. Here, service of process would not impact decision eitherway originally.

4. Guided Track: If a Federal Statute exists, apply fed law (usually).a. If the FR is constitutional, apply it. End of story.b. When you have a valid and pertinent federal law, apply it.

i. Must deal with practice and procedure of fed courtsii. Cannot abridge, enlarge or modify any substantive

right.c. Validity

i. Constitutionality- does it have to do with courts?1. As long as you can characterize it as

procedural, it doesnt matter if its alsosubstantive.

2. Also, must ask if REA is authorized to makethe rule. Is it constitutional?

d. Pertinencei. Not enough that there is fed law; must be fed law that

resolves the question before you

ii. Does it intend to replace state practice or worktogether with state law?

c. Determining the Existence of Pertinent Federal Lawi. Stewart Organization, Inc. v. Ricoh Corp. (1988) (extends Hanna to

apply not just to rules (procedural issues), but to substantive law, too)1. Clause in K: disputes must be resolved in NY. P sues in AL for anti-

trust violations (must be federal). D tries to change venue under1404 or dismiss under 1406.Issue: Who evaluates the forum selection clause? State or fed?

2. Majority (Marshall): Federal law evaluates the FS clause.


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a. Case is guided bc federal statute controls venue.b. Federal law should not turn on state law.c. Marshall assumes federal law has displaced state law, but he

doesnt explain why.3. Dissent (Scalia): State law evaluates the FS clause.

a. The fed statute doesnt cover FS clause, so the fed statute is notpertinent (and were unguided).

b. Consider state regulatory interest: why doesnt the state wantFS clause? NY might have a regulatory reason on howenforceable a contract is, but theres no reason why federalcourts would have a preference.

ii. Gasperini v. Center for Humanities, Inc. (1996) (shafted Hanna, usedmore of a Byrd analysis)

1. Issue: How can court second guess the jury? FRCP says remittitur ornew trial; NY law says to examine similar suits to establishstandard of reasonableness.Holding: NY law can be used without violating 7th amendment; NYstate law is substantive; applies. (NY has a substantive interest inregulating tort awards.)

2. Rule: Honor state sovereignty and consider state substantiveregulatory interests and essential elements of federal courts (likeright to jury trial).

3. Likely Effects: More cases will probably be considered unguidedafter Gasperini. The modified Outcome Determination Test wontdeal with problems of equality and forum shopping; more importantto balance state interests versus federal interests.

4. Majority (Ginsburg): Unguided because Fed Law does not crowd outstate law.

a. We are on the Unguided track because:i. Rule 59 applies when an award is excessive. The

real issue here is whose law says its excessive.Textual question: use state court definition.

ii. This basically destroys the guided/unguided tracksystem. (This case seems guided; court instead looksat unguided factors to determine track.)

b. FEDERALISM: Fed court should honor state regulatoryinterest.

i. Doesnt matter if it is substantive or procedural. Inthe form it doesnt affect how people operate in theworld, but we shouldnt be fooled by form. This is apractice that is embedded w/ substantive ideals, and

fed jurisdiction should not change how people liveii. NY was trying to reform tort law by getting a handle

on high jury awards (strong regulatory interest).SUBSTANTIVE REASON FOR A PROCEDURALRULE

iii. On fed side, it wouldnt change identity of trial courtto look at jury decisions, but only trial courts, becauseappellate courts should not start looking at factswhich would change their structure


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c. Forum Shopping/Equality- keeping people from flocking toone court

i. Jury verdicts are a reason people would flock to acertain court.

5. Dissent (Scalia): Guideda. This is guided because Rule 59 expressly says to use federal

practice, and if theres a valid and pertinent federal rule onpoint, you should use it.

i. Different from Steward, because Rule 59 has moreguidance than 1404.

b. Were on the guided tract because the law is procedural, notsubstantive.

i. In Stewart- What kind of contracts are enforceable?is a substantive question. Here, the issue of howcourts work is purely procedural.

6. Stein thinks Gasperini is Byrds resurrection.

IV.Determining the Content of State Lawa. 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. What if the law is unsettled,inconsistent, or outmoded?

b. Salve Regina College v. Russell (1991)i. Issue: Can a federal court of appeals review a district courts determination

of state law?ii. Rule: Fed appellate court should review de novo questions of state law.

They should not take judges personal preferences into consideration, butshould look only at sources of law and policy.

1. The question is about what the state law is, not the psychoanalysis ofhow specific judges would decide- thats not law.

2. This is no different than a federal question, judges look at the same

sources to figure out what the law is.iii. Under Salve Regina, court's job is to ascertain how state Supreme

Court would rule; not necessarily bound by old precedent.

iv. Supreme court does not review state law de novothey only worry aboutuniformity of federal law, not uniformity with state law.

v. A fed appellate courts decision of state law is not binding on the state. Thestate Supreme Court would have to make the decision on it for it to be a newprecedent.


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PLEADING, DISCOVERY AND ADJUDICATIONI. Pleadings

a. Complaint and Answeri. P gives initial account of wrongful behavior, and D gives his account

ii. Procedure- follow rules of civil procedure- Rules 7 and 8iii. Complaint- Common Law would be specific. Now (pre-Twombly) just

gives the general sense of the suit, to be developed in discovery. Makebringing suit easier and low cost, but can also lead to frivolous suits

b. Reasons for Pleadingsi. it would be tough to prepare suit without knowing position of opponent

ii. factual sufficiency wouldnt be accurate until trial, which would waste timeiii. No way to know if evidence sought in discovery is relevantiv. Hard to predict outcome

c. Candor in the Pleadingsi. Rule 11- makes attorney responsible for quality of the claims

1. Applies to every paper submitted to court except discovery requests2. 11A- Attorney must sign each paper w/ name and address3. 11B- Certifies that to the best of his knowledge, formed after an

inquiry reasonable under the circumstancesthat

1. 12B2- claims are warranted by existing law2. 12B3- the factual contentions have evidentiary support will

after opportunity for investigation and discovery (ambiguitygives us wiggle room)

i. How much evidence do you need? Tort allegationneeds all essential elements of negligence. If youdont allege all of the elements, then it could bedismissed for failure to state a claim

ii. Garr v. U.S. Healthcare, Inc. (1994)1. Mallone researches info for class action suit on stocks and gives info

to other attorneys who file similar complaints.

2. Levin & Sklar violated Rule 11 by relying on someone elsesresearch,because they all need to have an inquiry reasonable underthe circumstances. Attorneys must conduct their own independentanalysis of facts and law to form the basis for a pleading.

3. Result: Court does not say that US Healthcare didnt do anythingwrong, they still may be involved with fraud but they walk away freebecause its the lawyers being punished for not doesnt enough to seeon their own what US Healthcare did

4. Lesson: once you lose credibility with the judge, youre dead.iii. 11C- Sanctions

1. 11C2- After a party notes wrongful behavior, they cant file a

motion for sanctions for 21 days. During that time the party can fixthe offending paper, and then sanctions cannot be filed. Provides a21 day safe harbor.

1. Not much incentive for party to file for motions because thefee goes to the court, not to them

2. 11C3- court on its own can order sanctionsd. Drafting the Complaint

i. Rule 7- Pleadings1. Complaint and Answer2. Counterclaim/Crossclaim and Answer


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ii. Rule 8- General Rules of Pleadings1. 8A1- short and plain statement of grounds for jurisdiction2. 8A2- short and plain statement of claim showing P is entitled to

relief3. 8A3- demand for the relief sought4. Purpose of Complaint is to get things moving without all the

specifics- however most lawyers are more specific than 8A2 or rule11 requires b/c the judge depends on pleadings to tell them what thecase is about

iii. Rule 9- Pleading Special Mattersiv. Bell Atlantic Corp. v. Twombly (2007)

1. Facts- class action with subscribers to phone service who wantedcheaper plan. Claim is that phone companies conspired to preventother companies from getting in by not letting them have access towires and that they wont compete with each other. Not much factualsupport except observations that they were acting like a conspiracy

2. Rule (Souter)- According to Rule 8A2- the word showing meansthat to show someone is entitled to relief, you need enough evidenceto show that its not just possible, but plausible

3. Souter says this fails to state a claim because it was factuallydeficient, even though if true, there would be a cause of action.

1. Before Twombly- as long as P can prove facts are notinconsistent w/ the complaint that if proven would establishliability, then the complaint cannot be dismissed for failure tostate a claim

4. Case does not address rule 11 (saying that you can get moreevidence in discovery). Relies on 8A2.

5. Dissent: we dont have to choose between having full blownlitigation or dismissal. Theres middle ground- we can let discoveryproceed and monitor the case as it develops

6. We dont know if this case is only going to be applied to anti-trustcases or if it will be applied more broadly.

7. Twombly will create problems when D has access to evidence that Pdoes not have

8. Balancing Test: for specificity in pleadings- show how possible it is,how expensive, and how it compares with precedent

v. Elements of Claim1. Show the essential elements of the cause of action2. Usually no risk to over-pleading, but if you leave something out:

1. If its essential- claim can be dismissed under 12B62. Could constrain discovery

3. Amendments- Rule 15 is permissive in allowing you to change yourstory. So, dont make strong reaches in your pleadings.

4. Ad Damnum Clause1. Needed under 8A3- shows your demand. Not much function,

except that in a default judgment this will be the amountentered.

5. Burdens of Pleading/Proof1. Burden of Pleading- which party has to introduce a matter

into the litigation in pleadings2. Burden of proof- which party has to prove the contested facts


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i. Burden of Productionii. Burden of Persuasion

e. Motions to Dismissi. Rule 12: Defenses and Objections

1. 12A1- after complaint is served, must answer in 20 days (60 ifWaived service)

2. 12A4- serving a motion under this rule alters this time period1. If motion is denied, you have 10 days after courts action to

respond2. If the court granted motion- game is over, these are motions

to dismiss3. Rule 12 defenses are available before answer is filed (b/c

they are mostly procedural)3. Fragile Defenses: 12B 2-5 Must assert in first response you make or

you lose it!1. 12B2- Lack of Personal Jurisdiction2. 12B3- Improper Venue3. Rule 12B4, 12B5- Insufficient process or service of process

i. Just saying that the summons itself or service were

incorrect- not used often because they are easily fixed4. Durable Defenses: 12B1,6,7- will not be waived by answering or

moving (but youre only allowed 1 pre-trial motion, so you have towait until after answering- unless 12H3- SMJ can be dismissed atany time)

1. 12B1- Lack of Subject Matter Jurisdiction2. 12B6- failure to state a claim

i. Means if everything you said is true, it does not giverise to an actionable claim

3. 12B7- failure to join a party under rule 19i. Were talking about 19B- when its necessary for fair

adjudication5. 12E- Motion for a more definite statement

1. When the claim could be actionable but we dont knowbecause its not specific enough

6. 12G- Joining Claims1. no defense or objection is waived by joining it with other

defenses/objections in a responsive pleading or motion7. Rules for Raising Defenses

1. 12G/12H1 together: 12G- party can only make 1 motionunder this rule; 12H if fragile defenses (12b2-5) are not in themotion but were available, they are waived

2. End of 12B- Filing an answer ends the chance to make 12Bmotions because it says that the motion must be assertedbefore the pleading

3. If you have not included something in your pleadings- nobasis for 12C Motion for judgment on pleadings

4. Failure to state a claim and failure to join a party- can beasserted in pleading, at motion for judgment on pleadings orat trial (12H2)

5. 12H3- lack of SMJ- can be raised at any time6. 12F- Motion to Strike- can strike an insufficient defense


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7. 12H1- if you didnt include a motion in an answer, you have1 amendment as matter of course

i. When response is not allowed- 20 days to amendii. When response is allowed- before the answer is

served8. Policy-

1. Fragile defenses must be asserted in first response becausewe dont want to waste courts time dismissing on mosttechnical grounds first- instead they can decide the order

2. We dont want to be able to extend the case with motion aftermotion

3. Durable Defenses- reason for not waiving is that it wontmake sense at trial

f. Answer - Rule 8i. 8B- For every paragraph of complaint, there will be a parallel numbered

paragraph in the answer saying: admit, deny, or not sufficient info1. If part of an allegation is true, pick out the true part and deny the rest2. Consequence of admission: P is relieved of obligation to satisfy

burden of proof for that element

3. Consequence of denial: whoever has burden of proof now has toprove it

1. I dont know has same consequence as denial but it wouldviolate rule 11 to say you dont know when are charged withknowing under reasonable effort

2. Ineffective denial is treated as an admission4. Defenses- most defenses will be through the responses

ii. 8CAffirmative Defenses1. Affirmatively state any avoidance or affirmative defense. This is

giving an additional reason why youre not liable besides defenses inthe responses

2. Doesnt hurt to err on the side of making something an affirmativedefense

3. Must bring up defenses or you cant assert them, because pleadingsare about putting the other side on notice

iii. Counterclaims- Rule 13g. Amendments to the Pleadings- Rule 15

i. 15A1- amendments as a matter of courseii. 15A2- other amendments- court should freely grant leave when justice so

requires1. Factors: when did you learn it, time before trial, wasted discovery2. Frequently a judge may say theyll allow it but P has to pay for

additional discovery and time condition3. Claim must be in the amended complaint or it cant be asserted at

trial.iii. 15C- Relation Back

1. Amendment relates back to date of original claim when applicablestatute of limitations allows it and when amendment arises out of thesame transaction or occurrence to the original pleading , or

2. The amendment changes the party, out of same transaction oroccurrence, within period provided by 4M (120 days), the party has:


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1. Received notice of the action, or knew or should have knownthat the action would be brought against it but for a mistakeover the proper partys identity

2. NOTICE: its not service that were looking for just thepoint where D received notice or should have known

3. Glitch in the system- penalizes someone that files a complaint wellin advance of a statute of limitations, because they are still limited by120 days, even if statute of limitations would be longer

II. Discoverya. Unilateral Disclosures- Required Disclosures- Rule 26A

i. 26A1- Initial Disclosure1. Name, address, phone number of individuals likely to have

discoverable info that you may use2. Copies of documents that the party may use to support claims

(except if only for impeachment)3. Calculation of damages4. Inspection and copying of insurance agreements- to know the limits

for negotiations

ii. 26A2- Disclosure of Expert Testimony1. Must disclose expert testimony2. 26A2C- within 90 days before date of trial

b. Adversarial Discoveryi. Pretrial Conference- Rule 16

1. Discovery Plan- After initial disclosure, sit with judge in chambersand explain how we plan to use the remaining discovery devices

2. Set discovery window- date for completionii. Scope- 26B

1. Request must be appropriately focused, not too broad2. Must be reasonably calculated to lead to the discovery of admissible

information3. Court must limit the extent of discovery if the burden or expense

outweighs the benefitiii. Devices

1. Interrogatories- Rule 331. Written questions with written answers. Attorney drafts

questions. Available only to parties.2. Used for specific info that a witness may not have and for

any contention for legal strategy (b/c theres a burden ofreasonable investigation)

2. Depositions- Rules 30 & 31

1. Cross examination of witness under oath, recorded by courtreporter. Anyone w/ relevant info.

2. Good for follow up questions by asking in a different way3. 36B6- At an organization- can just request the most

knowledgeable person on a topic4. 45- subpoena non-parties- not more than 100 miles

3. Request for Production- Rule 341. Documents or other tangible things2. Electronic Documents

4. Mental/Physical Examinations- rule 35


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1. More constrained b/c of intrusiveness2. Must have good cause shown- usually if mental or physical

condition is at issue5. Requests for Admission- Rule 36

1. Ask yes or no questions to factual or legal questions2. Typically done at end of discovery3. If admitted, you dont have to prove it4. 37C- Sanctions if they didnt admit something that is proved

at trial6. 26E- Parties have a duty to update disclosures

c. Attorney Client Privilegerelated to adversarial discovery abovei. Attorney client is always protected. The 3rd party is where there is more

issue.ii. Work product rulethe attorneys strategy and thoughts are protected but

not the factsiii. Under Hickman v. TaylorAttorneys are protected from revealing mental

impressions. Its a state by state determination of how broad the workproduct rule really is.

iv. Facts of the case must be turned over.

v. However if the questions asked are about the attorneys thoughts and strategyintertwined in the questions, then that memo could be safe from disclosure.she seems like a good witness from being trustworthyetc. that would beprotected

d. Summary Judgment- Rule 56i. Can be used to raise legal and factual deficiencies

ii. Burden of production- summary judgment tests whether person w/ thisburden to produce evidence satisfied it

1. Judge does not weigh the evidence; he identifies whether the partyw/ burden of production has produced evidence on which a decisioncan be based

iii. Either P or D can move for summary judgment1. Usually, P has the burden. So, if D moves for summary judgment,

they must show the ABSENSE of evidence supporting the claim2. P must not only show existence of evidence, but that evidence

conclusively demonstrates the truth of its allegationsiv. Celotex Corp. v. Catrett (1986)

1. Facts: P is suing for her husbands death. He was exposed toasbestos manufactured by 15 companies. D moved for summaryjudgment.

2. Rule- Theres a fundamental difference when moving party does ordoes not have burden of production.

1. Person moving for summary judgment, if they dont have theburden of production, does not have to negate the other side-all they have to do is look at the other side and say the recordlacks evidence

2. A moving party, if they have the burden of production, wouldhave to give proof they are right.

3. D (moving party) does not have to come forward w/ their owndocuments or affidavits. They just have to show P doesnt have theevidence. P then has the opportunity to produce additional evidence,including affidavits of competent witnesses


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4. All you need for summary judgment is an affidavit- so theres noreason to depose your own witness. No need to put it on the record.

v. Summary judgment can be done on specific issues to get them out of thecase before trial.

vi. The main standard to defeat summary judgment is if there is a genuine issueof material fact.

vii. Time limit: D can move for summary judgment any time, but P has to wait20 days from time suit commences

e. Final Pretrial Order- 16Ei. Lists every witness to be called and substance of testimony

ii. Final and definitive statement of legal and factual contentions

III.Triala. Right to Jury Trial

i. 7th Amendment Phrasing1. in any court of the United States- refers to federal courts alone2. In suits at common law- common law v. equity from a historical

approach. Rule evolves from different courts for law and equity.3. Right to jury trial shall be preserved- litigants have a right to jury

trial if at the time the amendment was adopted, a litigant would havebeen entitled to a jury trial in England

4. Now, courts have evolved to focus on if the new statutory right isanalogous to a claim that would have been heard at common law.

ii. Curtis v. Loether (1974)------we didnt do this case!!!!!!!!!!!!!!1. Facts- woman was denied an apartment because of her race,

violating fair housing act.2. Rule- court has developed a preference for sending new statutory

claims to juries. Practice is when it doubt, call it analogous.3. Exception is cases where equitable relief is being demanded

(injunction, restitution, accounting). Court will likely say that this

would have been in court of equity and should go to judge4. Summary: If youre looking for damages, you will get a jury trial. If

youre looking for injunctive relief, you will not get a jury trial.iii. Responsibilities of Judge and Jury

1. Jury: finder of fact1. Give meaning/context to abstract legal rules2. Find Damages3. Apply the law to the facts

2. Court: find lawb. Trial procedure

i. Jury selection (47)- between 6 and 12 jurors

1. Voir dire- brief questioning of potential jurors2. Peremptory challenge- challenge without cause

ii. Opening Statements- outline the case, legal theory, and testimonyiii. Presentation of Evidence

1. 42B- Bifurcate- split cases between issues. Decide on 1 issue beforearguing another

iv. Testimony1. Direct examination, then cross examination (only matters testified on

in direct)2. Objections- when question or testimony violates a rule of evidence


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3. 45- witnesses are subpoenaed to attend fed trialv. Presentation of Real Evidence

1. Tangible objects, or demonstrative evidence- charts/modelsvi. Summations- closing arguments

vii. Jury Instructions- 51- called the chargeviii. Form of the Verdict- 49

1. General- jury decides winner and damages2. Special Verdict- jury answers factual question and court applies it3. General Verdict w/ Written Interrogatories- jury determines liability

but its crosschecked with factual questionsix. Jury Deliberation

1. Fed jury must reach unanimous verdictc. Post-Trial (and Before Verdict) Relief

i. Final 3 Big Motions- at or after trial to correct/control jury1. 50- Motion for Judgment as Matter of Law (JMOL)

1. Dixon v. Wal-Mart Stores (2003)i. P gets caught in plastic strap; falls. D moves for

JMOL; Court approved: the jury could not have findWM was liable based only on evidence P presented

ii. P had burden to prove plastic had been on floorenough time to make store responsible

iii. Court: the strap couldnt have come from thenewspapers bc someone would have picked it up; Pdidnt show how long it was on the floor.

iv. The standard is that verdict should be based onevidence

2. Timingi. 50A- Any time before the case is submitted to jury

1. D can move as soon as P puts on his case2. P has to wait for D to put on his case

ii. 50B- After the Jury Decision1. Within 10 days after judgment

3. Policyi. Waiting until after the trial is more common, but you

have to make the movement beforeii. Judge generally waits b/c it lets jury have a shot at

doing the right thing and because if the decision wereto get appealed, they would have a verdict to fall backon

2. 59- Motion for New Trial1. Standard is lower than JMOL.

2. Judge has enormous discretion to call for new trial3. Remittitur- allows judge to give P opportunity to reduce

damages or else have a new trial4. Additur (not in fed court)- judge orders new trial unless D

raises damages3. 60- Motion for Reconsideration

1. Can be on jury instruction, denial of a motion, new evidence,etc

2. 1 year limit for certain reason, but more for others


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PRIOR ADJUDICATIONI. Introduction

a.Prior Adjudication/Preclusion- An adjudication in one case can have affects inother cases decided after the first case

i. Claim Preclusion- bars re-litigation of the same claim that was alreadyadjudicated, and any claims that should have been consolidated in the firstcase

1. The omitted claim didnt have to be brought- can be precluded byomission

2. Strict Identity of parties- must be party in earlier proceeding or inprivity with a party for preclusion to apply

ii. Issue Preclusion- bars specific legal or factual determinations. Takes itfrom one context and puts it in another

1. Only precluded from claims you litigated that were necessarilydecided and were adverse to you

2. No identify of parties. Parties did not have to be there.b.Reasons:

i. Litigation is expensive- should only do it onceii. Efficiency- one big case instead of multiple

II. Claim Preclusion/Res Judicata- Stein thinks this can be a mean spirited ruleFor judgment to be barred, the prior judgment must have:

o been rendered by a court of competent jurisdictiono been a final judgment on the meritso the same cause of action and the same parties or their privities were involved in

both suits

a.Same Claimi. Relaxation of joinder rulesnow that parties were permitted to consolidate

their claims, preclusion law increasingly required them to do so

ii. Rush v. City of Maple Heights (1958)1. Facts: P had previously won suit against def for property damage to

her motorcycle in accident. Pl then tried to bring suit for personalinjury

2. Rule: Although different rights were infringed, the court found thatthe injuries arose from the same transaction

iii. Harendeen v. Champion International Corp. (1975)1. Facts: P loses first suit in which he alleged that company

fraudulently induced him to leave business. P then brought new suitto get payments hes eligible for under pension plan.

2. Rule: Claim must be out of the same cause of action.

3. Court says that Ps claim was not out of the same cause of action b/cit was a separate wrongful act, so it is not barred.

4. Case was decided before restatement 2nds definition of transactionor occurrence- if you can link up nexuses (time, place, origin,motivation), its the kind of claim that should be precluded.

a. Today, Harendeen would lose because it is consequence ofthe same event

iv. Bar- party lost in the first proceeding; Merger- party won in first proceedingv. Three things to look at to determine of causes of action are the same:


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1. Whether different judgment in the second action would impair ordestroy rights or interests entered in first action.

2. Whether the same evidence is necessary to maintain the secondcause of action as was required in the first

3. Whether the essential facts and issues in the second were present inthe first.

vi. Simply changing your legal theory doesnt entitle you to bring a 2nd claimb.Changed circumstances and Other Countervailing Policies

i. Federated Department Stores, Inc. v. Moitie (1981)1. Facts: Group of P's, two of which don't appeal; those who do appeal

win. 2 non-appealers bring second suit trying to use the decision in theappeal.

2. Rule: Cant go with a 2nd case which should result in a betterjudgment just because the law changesres judicatamoitie wasfinal because they did not appeal. The other cases won on appeal.Moitie cannot bring a 2nd case, claiming essentially the same thing,to win based on what the other parties did on their appeal. Theremust be finality.

ii. Problem: 60(b) permits a court to relieve a party of final judgment when

there is new evidence that was not discoverable earlier. causes people with aminor injury that could become worse to sue when they wouldnt have. suefor potential damage- not practical

iii. Harrington v Vadallia-Butler1. After a case was in the appeals process, a new law was added from a

different case, however Harrington was not allowed to bring the newlaw up in a 2nd action. Rule 11 says the claim needed to have beenbrought up the first action. Cant add it to an appeal/2nd action.

2. Rule 11 is a claim preclusion designed to push all claims into thefirst lawsuit so people dont keep adding claims to the same issue.

c.The special problem of Defensesi. D who bypassed chance to assert a defense/counterclaim may be precluded

from asserting is as a separate claim for relief1. Generally follow compulsory counterclaim rules (13) and in a way

makes it a mandatory rule of joinderii. Mitchell v. Federal Intermediate Credit Bank (1932)

1. Facts: P brings suit against D and D asserts defense, but does not assertcounterclaim. P loses. D then brings separate cause of action using hisdefense as claim

2. Rule: One cannot use the same defense first as a shield and then as asword.

3. Court says claim is barred by res judicata because the facts pleaded in

the defense are the same as the separate suit4. Reason: D had the alternative to assert the defense as a separate

counterclaim in the first suitiii. Restatement 2nd of Judgments

1. A D who may interpose a claim as a counterclaim in an action butfails to do so is precluded from maintaining and action on the claimif:

a. (1) the counterclaim is required to be interposed by acompulsory counterclaim statute or rule of court, or


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b. (2) the relationship between the counterclaim and the Psclaim is such that successful prosecution of 2nd action wouldnullify the initial judgment or would impair the rightsestablished in initial action.

i. Test is if the entertaining the claim in F2 wouldundermine the rights in F1, then defense preclusion

operates to preclude the claim.d.On the Merits

i. Only cases finally disposed of on the merits will stop re-litigation of theclaim

ii. Depends if the case was dismissed with or without prejudice.iii. Costello v. United States (1961)

1. Facts: Govt brings denaturalization proceeding but is dismissed b/caffidavit wasnt filed along w/ complaint. Court did not specifywhether it was dismissed with or without prejudice.

2. Rule: a case is not barred if it is dismissed without prejudice, because itwas not a judgment on the merits

3. Improper affidavit is lack of jurisdiction- and lack of jurisdiction isalways without

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