11/12/11 9:51 AMForum Selection Personal Jurisdiction (PJ) jurisdiction over persons or things

In what states can the Π sue the Δ

The court must have power over something o Over the Δ

o Over the Δ’s property

Does a statute give us jurisdiction?o if so go to constitutional due process clause?

Types: due process sets the outer boundary, tells us how far the courts can go in exercising

jurisdiction (fact means that it falls within the due process circle, must have a statute that

allows the exercise of jurisdiction) o In Personam

Power over the defendant

Always want In Personam o In rem

Power of the Δ’s property o Quasi In Rem

Power over Δ’s property

In personam jurisdiction: Power over the Δo Relatedness: does the claim arise from what the Δ did in the forum

General: Δ can be sued in this forum on a claim that arose anywhere

Historically always thought this was true. If had continuous and

systematic ties with the forum. Changes in Goodyear.

Goodyear 2011: just having continuous systematic ties isn’t enough

Where the Δ is essentially at home (limitation) o For a human being (domicile)

o What about businesses?

State of incorporation and principle state of

business but maybe other places as well

Purchases and sales in the state are not

enough.

Has to be a physical presence as well.

Specific: the Δ is sued for a claim arises in the forum o Constitutional Analysis: must find out what principles the case gives us

Pennoyer: gives us what are still called the traditional basis in personam

jurisdiction:

Δ was served with process in the forum when served with process

(general jurisdiction) (presence)

Δ agent was served with process in the forum

Δ is domiciled in the forum (general jurisdiction)

Δ consents to jurisdiction

At it became more mobile it became easier to run into a state commit

a tort and escape

Expansion of Pennoyer is Hess:

Upheld under the nonresident motorist act, by driving into this state

you consent to jurisdiction for a motor vehicle crash case, you are

appointing a state official for service.

Expands Pennoyer from consent to implied consent

International Shoe: (by now you can serve process outside of the forum, there

seems to be 2 parts of the test: contact and fairness, it does not overrule

Pennoyer (consistent with Pennoyer))

The court is not pushing the traditional basis, restate the prinicipal.

(nothing in shoe that says pennoyer is dead)

Test: Such minimum contacts with a forum that jurisdiction does not

offend traditional notions of fair play and substantial justice

McGee: holds jurisdiction in California with a Texas insurance company

when there was only one contact:

The Δ solicited the business from California

California had an interest in providing justice in it’s residents

Hanson: teaches us under International Shoe the contact must result from

purposeful availment

Cannot be an accident

Δ must reach out to the forum

World Wide Volkswagen: NY family buying a new car in Messina NY.

Moving to Arizona. Involved in a car wreck in Tulsa. Sue in Oklahoma.

Court held that they could not sue in the NY retailer and NY distributor in

OK.

There is no purposeful availment

The Δ did not reach out to OK.

The act of the Π got the car to OK

Surprising because it was foreseeable that the car could get to OK.

Foreseeability is relevant

Foreseeability that the product would get there is not enough

Must be foreseeable that the Δ could get sued in the forum

Burger King: k case. Headquartered in Miami wants to sue little guys in

Michigan. Can it sue in Miami

Clear that there 2 parts to shoe: contact & fairness (separately)

Must have a relevant contact before can look at fairness

On facts of the case: Michigan guys reached out to Florida

Argued that the little guys said it was not fair

Supreme Court: the burden is on the Δ to show that the forum is so

gravely inconvenient that you are at a severe disadvantage in

litigation.

Almost impossible to do that

Relevant wealth of the parties does not matter

Asahi: Stream of Commerce

I make components like valves in state A. I sell components to a

manufacturer to state B. That manufacturer B puts my components

into its machine and sells it machines to states C, D, E. My valve

gets into C, D,E but I didn’t send it there.

Do I have relevant contacts?

1: Brennan theory: it is a contact if I put it in the stream and

reasonably anticipate that it will get C, D, or E.

2: O’Connor theory: you need what Brennan said plus need

an intent to serve C, D, or E. (I.E., advertise or customer

service there)

McIntyre (2011): the court split 4, 2,3 no law

English company manufacturing enormous machine. Reaches out

only to a company in Ohio. The Ohio company then sells machines

all over the company. Sells a machine in NJ, guy injured, sues the

English company. Court says no jurisdiction.

Under Kennedy 4 Justices adopt the O’Connor theory, did

not target NJ

Bryer: 2 justices: on the facts here we do not need other one.

No stream of commerce to NJ. Only one machine sold to NJ.

Dissenters: Ginsberg: if you target the US then you can sued

in any state where the product hurt someone. (only 3 votes)

Still have to argue the Brennan Theory and O’Connor

Theory.

Burnam: a NJ sued in California for a claim that arose in NJ. Does

California have general jurisdiction?

Does service of process in the forum?

Traditional Basis in forum enough?o Scalia: presence when served is enough,

International Shoe does not apply here.

International Shoe (contacts)o Brennan: Must apply shoe to every case.

o Framework:

Is there a traditional basis? Because of the Burnam split.

Must still look at international shoe.

Must be a relevant contact between the Δ and forum

Purposeful availment (Δ reached out to the forum) o Brennan and O’Connor

Foreseeability that the Δ could get sued in the forum o Circular

Is it Specific or General Jurisdiction?

Relatedness: does this claim arise out of Δ’s contact with the

forum o Yes? Specific

o No? General Jurisdiction: must be essentially at

home in that forum

Fairness: Burger King

Burden is on the Δ to show that it is unfair o Factors:

Inconvenience for the Δ

Forum state’s interest (McGee)

Π’s interest

Interest in efficiency

Shared substantive policies (Kulko) o Statutory Analysis:

Every state has statutes that allow jurisdiction based upon the traditional

basis

State statutes that go after non-residents

Non-resident motorist act (always specific jurisdiction: arising from

a claim from you driving your car)

Long Arm Statute: almost always specific jurisdiction (broader, go

after other things)

California type: says we have jurisdiction to the

constitutional limit

Laundry list long arm: where the state lists a bunch of things

that will subject the non resident to jurisdiction to a court. o Commits a tortious act in the forum**

o Gray v. American Radiator: manufacture widgets

in state A and sell in state B. It blows up and you

are injured and want to sue in state B. I am a

nonresident. Long arm statute says personal

jurisdiction over nonresidents who commit tortious

act in state B. Did a I commit a tortious act in state

B? Courts are spoilt

Some say yes because you were injured in

state B

Some say no (NY) because tort was

committed in state A where widget was

made.

ARGUE BOTH WAYS

Hypo: Π lives in Maryland and takes a drive into VA, he sees a clock shops, goes into the shop and

buys it and takes it home to Maryland and put it on the wall. A spring breaks and the bird flys and hits

him in the chest. Can the Π sue the clock maker in Maryland?

o Is there a Maryland statute?

No traditional basis.

Going to be a long arm statute.

Maryland long arm statute has in personam jurisdiction who commits a

tortious act in Maryland.

Clock shop owner didn’t do anything in MD my making clock in

VA can say that the Π was injured in MD so owner did commit

tortious act.

No traditional basis. International Shoe

o Is there a contact for clock maker in MD

Purposeful availment: did Uncle Joe reach out to

MD? LOOK AT THE FACTS. At some point it

can look more like McGee (solicitation)

Foreseeability: argue it. Nobody knows the

answer

o Relatedness: does this claim arise from the contact with

the forum?

Yes. This is an example of specific jurisdiction.

Long arm statute is always going to be specific

jurisdiction

o Fairness factors: Burden is on the Δ, Uncle Joe (clock

maker) look for facts, apply facts, come to an answer

Inconvenience for the Δ, neighboring state so not

inconvenient

Does the state of Maryland have an interest

What about plaintiff’s interest: injured might be

tougher to go to VA.

Efficiency

Shared substantive policies

o In Rem: jurisdiction over Δ’s property

Law suit is about who owns the property

o Quasi In Rem requirements: thing of value, present in jurisdiction, belonging or arguing to

the Δ, seized by the court, pursuant to notice, is the exercise over this Δ constitutionally fair?

How closely related is the thing that was seized to the Π’s cause of action?

Suit has nothing to do with who owns the property

Pennoyer: all about Mitchell v. Neff

Case that would have been in personam if could get in personam.

Used the land to gain jurisdiction.

o It is ok but the court must seize the property at the outset

of the case. If we had done that Mitchell v. Neff would

have done that.

Gotta have a statute: it is not the long arm

Going to be an attachment statute, court can attach property that

the Δ owns or claims to own.

Constitutional statute:

Shaffer v. Heitner: must seize property at the outset PLUS the Δ

must meet international shoe. The constitutional test is the same as

in personam

Notice: Notice and a Chance to be heard.

In regular law suit it means service of process

o Governed by Federal Rule 4

Process consists of the summons (comes from the court) and copy of the complaint

Rule 4(a)(1)

Service can be made by any nonparty that is at least age 18

Rule 4(c)(2)

How do we serve a human being?

4(e)(2): there are 3 choices

personal service: walk up to the Δ and hand him the documents, can be done anywhere

substituted service: o must be done at the Δ’s dwelling or usual abode o must serve of suitable age and discretion WHO

RESIDES THEREo Serve the Δ’s agent, appointed by contract or law

4(e)(1): methods of service allowed by state law of the state where the federal court sits or where service is affected.

Often state law will give you service through mail How do you serve a business?

4(h)(1) can serve an officer or a managing or general agent (pretty open ended, someone with some job responsibility)

4(e)(1) also applies (state methods) Waiver of Service

4(d): Waiver by mail, not service by mail mail the process and waiver forms to the Δ and send a

self-addressed stamped envelope, fills out waiver form and mails it back to you

What happens if the Δ doesn’t mail it back? o Going to serve process in one of the formal ways

but the Δ has to pay for it. Unless she has a good cause for returning the waiver form.

o Constitutional Standard

Malane v. Central Hanover Bank: must be reasonably calculated under all of

the circumstances to apprise the party of the preceding. If you meet rule 4,

you are fine. (notices to allow the Δ to see what the case is about and see

what they are being sued for)

Jones v. Flowers: if you become aware that the Π did not receive then you

might have to try another way

Direct & Collateral Attack within the litigation on personal jurisdiction o Collateral Attack can use when no direct attack(didn’t show up or

defaulted)attack on PJ in later proceedings o Direct Attack

Nationwide Personal Jurisdiction: statutes are generally the exceptions to normal practice.

When nationwide statutes come into play it is possible that the court will make minimum

contacts analysis that may different somewhat form those concept developed for domestic Δo A court evaluating personal jurisdiction involving a federal cause of action will be

less concerned with issue of state/federal relationships and more with issue of federal

policies underlying the federal right that has been asserted by the Π o The court should examine only whether minimum contacts exist or whether the court

should also look to whether an exercise of jurisdiction reasonable in a particular

district

Personal Jurisdiction—parties where SMJ—exercised over cases and claims (federal court can only hear

certain cases, if not then they cannot hear the case)

Subject Matter Jurisdiction (SMJ): nothing to do with personal jurisdiction, worried about what court

you go to in the jurisdiction? State court or federal court. (must invoke diversity or FQ)constitutional or

policy values. Whether the federal district court can hear this case.

Diversity of Citizenship doesn’t have to bring the claim to federal court o 1332(a)(1) of judicial code (statute 28 USC)

case is between citizens (not residents) of different states

complete diversity rule: there is no diversity if any Π is a citizen of

the same state as any Δ

what is the citizenship of a human being (natural person)?

A US citizen is a citizen of the US state in which she is

domiciled. o Only have 1 domicile

o To establish a domicile:

you have to be present in the state physically

must form the intent to make it your

permanent home

Hypo: born and raised in California and goes to college in

NY for 5 years. Doesn’t know where he wants to live.

Moves to DC for law school but doesn’t know where he

wants to be. Wants to go to medical school in Oregon. I

don’t want to go to California. His citizenship is in

California because he hasn’t formed an intent to live

anywhere else.

World Wide Volkswagen: robinson never get to Arizona

because of car wreck have formed in intent to move there

however domicile is still NY b/c they never had a physical

presence in Arizona.

Citizenship of Corporation: can have multiple citizenships

1332(c)(1) determines citizenship o states where incorporated (prof has to tell you) AND

o citizenship of the one state where it has it’s principle

place of business (ppb) (can expect you to know

how to do)

Hertz: PPB is where the managers direct

control coordinate corporate activities.

Nerve center

What is the citizenship of non-incorporated businesses: partnerships,

LLCs

Look to the citizenship of all the members of the business.

Non-incorporated business can be members of all 50 states.

amount in controversy exceeds than $75,000

must exceed $75,000 (excluding interest)

aggregation: where you have to add multiple claims to get over

$75,000

aggregate plaintiff’s claims if there is 1 plaintiff v. 1

defendant (no limit to # of claims, can be totally unrelated

claims)

1 Π against 1 Δ: Π sets out 2 claims 40,000 and 50,000 <

75,000

cannot aggregate if there are multiple Π or Δ

1 Π v. 2 Δ—cannot aggregate the claims

If there are joint claims use the total value of the claim HERE THE #

OF PARTIES IS IRRELEVANT

Look for the word joint o Federal Question Jurisdiction (FQ)

1331 of judicial code

Citizenship and amount of controversy don’t matter)

Need a case that arises under federal law

Well completed complaint rule:

Look only at the complaint

In that complaint focus on the claim itself and ignore

everything else o Ask if the Π is enforcing a federal right

o Louisville v. Motley: couple had lifetime passes on

the railroad, congress passes a law that railroads

cannot give away free passes. Motelys sue the

railroad. Motelys say 2 things: 1. you are breaching

the contract 2. That new federal statute does not

apply to us. **no federal question jurisdiction: does

not state the question in the claim. The second part

is just anticipation. Must arise on a well pleaded federal complaint

No amount in controversy & doesn’t matter if they are from the same state

o Supplemental Jurisdiction: Π must file at least 2 counts. what if no diversity or FQ?

Does not get a case get a case into court supplement can another claim into the case

**can get it from an impleader or joinder or counter claim

1367 of judicial code: gets nonfederal non diversity claims into federal court

does 1367 (a) grant jurisdiction? Answer is yes if it meets Gibbs

United Mine Workers v. Gibbs (labor disputes and the Π

sued the Δ on 2 claims federal law and state law)

P(TN) -- two claims: 1. Federal law 2. State law D (TN) o Claim # 1 does gets into federal court

o What about claim #2? No federal question or

diversity

Can use supplemental/ pendant jurisdiction

as long as it is part of the same case as claim

#1

Test: if the two claims share a common

nucleus of operative fact.

Arise from the same real world

dispute

Always met if those two facts from

the same transaction or occurrence

(T/O)

Does 1367(b) take it away? soley based on diversity? was it claim

made by a Π? Was it made against an original Δ or one joined under

14, 19, 20, 24?

1367 APPLIES ONLY IN DIVERSITY CASES

takes away supplemental jurisdiction only from certain

claims by the Π not the Δ

Hypo: Gibbs under the statute:

Claim #1 federal question

Claim #2, state question: non diversity, non federal question o Did arise from a common nucleus of operative fact

o 1367(b) only applies in diversity cases therefore

doesn’t bar claim

Means if you get to C the court has power to hear the claim but it can refuse.

o Attack on Subject Matter Jurisdiction get either direct or collateral but not enforced as rigidly in personal. Usually it means that if sued and litigate the merits you cannot be heard later to hear collateral attack. Sometimes you are allowed even though you already made a direct attack b/c the federal value is so great it overrides the one bite at the apple rule

o Removal: defendant is sued in state court and wants case (removed) to federal court.

Gives Δ that choice. Takes the case from state to federal trial court. If the case does

not belong there the federal court remands to the state court. any count that

establishes federal jurisdiction can be removed

1441,1446, 1447

It is removable if the case if it meets Federal SMJ (case meets diversity and

Federal Question)

Instate Δ rule: EXCEPTION: CAN’T REMOVE DIVERSITY

CASE IF ANY Δ IS A CITIZEN OF THE FORUM (doesn’t apply in

federal question)

Hypo: case filed in state court the Π is a citizen of south

Carolina sues 2 Δ (NY & GA) amount in controversy a

trillion. Sued in GA. Can’t remove because a Δ is a citizen

of the forum. o If FQ case rather than diversity, it is removable

All defendants must agree

Can remove only to the federal district that embraces the state court.

If don’t remove then remanded to state court.

Venue: venue tells which federal court you can sue, does not apply to removal

1391(a) & (b): choices are the same o can lay venue in any district where ALL Δs reside

if all Δ reside in the same state you can lay venue where any of them reside

Reside:

for a human being the court say it means domicile (citizenship)

for businesses look to 1391(c)

a business resides in all districts where it is subject to PJ

when the case is filed o any district where a substantial part of that claim arose

Transfer of venue: moving from one court or another in the same judicial system o Going from one federal trial court to another

Original trial court is the transferor

Sending case to transferee o Transfer Statutes 1404 & 1406

Both of the statutes: TRANSFEREE MUST BE A PROPER VENUE AND

HAVE PJ OVER THE Δ must be true without waiver by the Δ

1404(a): the transferor is a proper venue: we can transfer based on

convenience of parties and witnesses and in the interest of justice

where we are now is a proper venue but there is another place that

makes more sense

Going to look at public and private factors (discretion of the judge)

1406(a): transferor is an improper venue: you can dismiss or transfer (up to

the court)

o Forum Non Conveniec: where a court dismisses because there is another court that

makes more sense the Δ is saying it all might good but it is still not the right forum

where this should be heard (primarily case law)

Dismiss because transfer is impossible because it is in a different judicial

system

Can’t transfer from a state court in Kansas to state court in California

Piper Aircraft v. Reno: plane crash in Scotland (everything is

Scottish but the plane manufactured in the US)

Federal court should dismiss because this case belongs in

Scotland and let them litigate in Scotland. Δs let this they are

not going to get strict liability, damages etc.

Factors the same as in the 1404 transfer (public and private

factors) (footnote 6) does the Π have anywhere else to

sue? Is there good personal jurisdiction in that court. Weigh

court congestion, weigh court.. (go back)

Court allowed the dismissal even though not going to

recover as much in the foreign country. As long as it will

get justice is what is matter.

o Transfer statute: normal remedy where it is found by the judge used to be to dismiss the action & let the Π refile. The federal court can use 1404 empowers the federal district judge to transfer the case to some other district court in the U.S.

Erie Doctrine

We are in federal court in a diversity case and the federal judge must decide an issue. The question is on that issue does she have to follow state law.

o Black Letter Law: federal judge must apply state substantive law o Eerie says it is commanded by:

Rules of Decision Act: section 1652 judicial code Constitution: 10th amendment

o What is a matter of substance? Elements of a claim are pure substance Starting point is

Hanna v. Plumer: federal rule 4 allowed substituted service of process but state law it did not. What do we do? Supreme Court—is there a federal directive on point? Yes. Therefore Federal rule wins.

Showed us there is 2 parts to the Eerie doctrine:o Is there a federal law on point that directly

conflicts with state law? If yes then apply the federal law as long as it is valid (FRCP is valid if it meets the Rules Enabling Act section 27(b)(2)—no FRCP has ever been held invalid). Can’t be substantive. It is based on the supremacy clause of the constitution

What if there is no federal directive on point? What is substantive?

Outcome determinative: o Guaranteed trust: under state statute of

limitations case would be barred. No federal directive on point. Court said must apply state law: statute of limitations is SUBSTANTIVE.

o Outcome determinative: if you ignore the state law it will lead to a different outcome

Balance the Interests: Byrd v. Blue Ridgecase law you have a 3 part weighing test: strength of federal procedure, strength of case procedure, and is it outcome determinative

o State law said that a particular question must be decided by the judge not the jury. Case comes up in diversity. There is no federal directive on point. Does the federal judge have to follow state law or should she sent it to a jury.

o When not obviously substantive you should follow state law UNLESS there is a federal interest in doing it differently. Court can ignore the rule and do it’s own thing.

Twin Aims of Eerie: ask at the outset of the case: if the federal judge ignores this state law, will it cause litigants to flock to federal court? If yes? That is a bad thing, unfairness.

o Avoid Forum shopping

Inequitable administration of law Hypo: under state law a particular kind of case cannot go forward as a

class action. Must sue individually. The Π files in federal court under diversity. Under FR 23 class action is appropriate.

First go to Hanna. Is there a federal directive on point? Yes rule 23 is on point. You simply apply the federal

as long as it is valid. Valid under the rules enabling act because it is procedural.

Hypo #2: state X passes a statute aimed at reducing health care costs. Statute says that if you sue for medical mal. your claim must go to arbitration before you go to trial. Π hate this. After arbitration, you may go to trial and the jury will be told what the arbitrators said.

Diversity case is filed against the doctor in state X. Can the federal judge do what it wants.

Does a federal issue apply? No. Eerie issue:

o Is this rule outcome determinative? Who knows.

o What about balancing the interests? The state has an interest, statute is trying

to drive down health care costs. Federal interest in jury trial you don’t lose it.

o Twin aims of issue: if the federal judge ignores this state law will it cause people to flock to state court?

Yes. Every Π who can go to federal court

It is also unfair, only non-citizens of state x can’t do it.

o 28 is a source of federal procedure as opposed to the rules, conflicts with state procedure, federal procedure winssupremacy clause. It always loses.

Pleadings: documents we file

15(a)amended pleadings (b) pleadings before or after trial Moore v. Moore (c) filed after the statute of limitations ran 3 circumstances where treated as a relation back to the original pleading: some statute allows relation back, when the amended pleading arises from the same transaction or occurrence it displaces, relation back where you are adding a party the other side got notice in a reasonable timely matter & they weren’t unfairly prejudiced

o Complaint: the pleading by the Π; filing this starts a case

Rule 8(a) requirements

Statement of SMJ must state why in federal court

Short and plain: statement of the claimo Historically did not need to do much “notice pleading” only had to

put enough detail to put the other party on notice o Supreme Court in Twombly and Ickball (this applies to all cases):

changed the rules

The court will ignore conclusions of law

Π must plead facts supporting a plausible claim

Court will use it’s own experience and common

sense to decide if it is plausible (subjective)

Demand for relief

There is some situations where must plead with detail under fraud, mistake and

special damage (that does not normally flow from an event)

9(b) and 9(g) o Response

Rule 12 tells us: the Δ must respond within 21 days of being served with process.

You can respond:o Motion: not a pleading, request for a court order

Under rule 12:

(e) motion for a more definite statement

(f) motion to strike (to knock stuff out of pleadings)

(b)**important: 7 defenses, motions to dismiss can

be put in a motion or an answer o SMJ

o PJ

o Venue

o Insufficient process: there was a problems

with the documents o Improper service of process

o Failure to state a claim

o Failure to join a rule 19 party

(indispensable)

(g) & (h) timing o defenses 12(b)(2)-(5) must be put your first

rule 12 response (by motion or answer)

(waivable defenses) o defenses 12(b)(6)-(7) can be raised for the

first time anytime through trial o 12(b)(1) can be raised anytime

Hypo: Π sues Δ, Δ files a motion 12(b)(5) failure for

service of process (motion denied) now Δ files her

answer and in the answer no personal jurisdiction

and no venue. (those 2 defenses are waived because

they must be in the first rule 12 response) o Answer: is a pleading

Must do 2 things in an answer

Must respond to the complaint o Admit

o Deny

Failure to deny is an admission

not true for damages o Say you do not know (cannot use that if the

info is in that control)

Must raise affirmative defenses: Rule 8(c)o Going to raise new fact

E.g statute of limitations o Must plead them or risk waiver

Joinder: determines the scope of the litigation (ALWAYS EXPECT SMJ) o Claim joinder by the Π

18(a) a Π can join any claim: don’t have to be anything same

Can we get it into federal court (SMJ)o Claim joinder by the Δ: Δ is suing someone else

Counter Claim: claim against and opposing party (someone who sued you)

13(a) & (b)

o (a) compulsory counter claim: one that arises from the same

transaction or occurrence as the Π’s claim

MUST BE ASSERTED IN THE PENDING CASE OR

CLAIM IS LOST

Ex: A and B driving around each in their own car, collide. A

sues B litigate someone wins. Case # 2 B sues A—

dismissed because it was compulsory counter claim.

4 Exceptions:o

o

o when the action was commenced, the claim was the subject of another pending action

o the opposing party sued on its claim by attachment (quasi in rem) or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

o (b) permissive counter claim: one that does not arise out of the same

transaction or occurrence of the Π’s claim. Can sue on this

separately o Hypo: A and B driving around and have car wreck. Case 1: A (NY)

sues B (PA) claim for $100,000—gets into federal court under

Diversity. B files a compulsory counter claim for her injuries B’s

claim is for $125,000.

Compulsory counter claim must assert it here same

transaction

Address SMJ: diversity NY v. PA and greater than $75,000o Hypo: same but B files a compulsory counterclaim against A but for

$50,000.

Compulsory counter claim same transaction or occurrence.

SMJ: This claim does not invoke diversity, also does not

invoke federal question, try to invoke Supplemental

jurisdiction. Does 1367(a)? does it meet Gibbs? (yes T/O)

compulsory counter claim always meets Gibbs. 1367(b): no

diversity, only takes away by the claim by the Π this is a

claim by a Δ—we are ok.

How to address:

Points for 13(a) counter claim

Points why no FQ

Why No Div.

Why 1367 (A) met

Why 1367(b) not met

Cross Claim against a co-party (one def against a co def.) must arise from the same

transaction occurrence. NEVER COMPULSORY

13(g)

HYPO: A,B,C: 3 way collision A (MS) going to sue B (NY) C (NY) assume

claims for more than $75,000. Case is in federal court under diversity. Going

to represent C what claims are you going to filing against C.o File a compulsory counter claim against A (must assert it here)

o Subject Matter Jurisdiction? Yes it invokes against diversity NY v.

MS and greater than $75,000. o May assert a cross claim against B (don’t have to) against a co party

and arises out of the same transaction or occurrence.

Does not invoke diversity. No diversity.

Supplemental Jurisdiction:

1367(a): Gibbs (cross claims always arise out of

same transactions or Δ)

1367(b): no diversity, however this is a claim by a Δ

so you are ok. o Proper partiesΠ can sue multiple parties

20(a): who may be joined: tool that is available to the Π when structuring the case

(multiple Π? Multiple Δ?)

How to figure out if have co-Π o 20(a)(1): can have co-Π if they arise from the same T/O and raise at

least one common question

How to figure out if have co-Δ

o 20(a)(2) exactly the same: same T/O and raise at least one common

question.

Must assess subject matter jurisdiction**o Necessary and Indispensable Parties:

Rule 19 (who should be joined in a case)

Hypo: Π is the architect of the case Π sued the Δ absentee is not the party.

Absentee (A) can be grabbed into the case because it is necessary. o Is the absentee necessary?

19(a)(1): yes necessary if she meets any of the tests in (a)(1)

(a) if without A the court cannot accord complete

relief

(b)(1): if A’s interest may be harmed if he is not

joined (focus on the A)

(b)(2): if A’s interest may subject the Δ to multiple

or inconsistent obligations o joint tort-feasors are never necessary

Weighing factors:o Fair to absent parties

o How can you repair the damage

o Will the judgment be adequate

o Does the Π have anywhere else to sue

Hypo: I own 1000 shares of stock in XYZ. You come along

and say we agreed to buy it jointly so it should be half yours.

You sue the corporation wanting an order cancelling my

stock. I am the absentee. Am I necessary?

If not brought in it is going to be inefficient. Cannot

accord complete relief if I’m not brought in.

Can my interests be hurt if not joined my stock

would be cancelled and can lose half of stock

My interest may subject the company to multiple or

inconsistent obligations to me and you. o Is the joinder feasible? Yes then brings it in

Personal jurisdiction

Subject matter jurisdiction as long as doesn’t screw up

diversity o What if joinder is not feasible? BAD.

Options

Either proceed without me

Or dismiss the case o Labels absentee indispensible (label you put

in at the end) 12(b)(7) as a basis of dismiss

19(b) factors

4: whether there is alternative forum available

Impleader: third party practice, only done by the Δ. Going to being in with

someone new. Called third party Δ (TPD). permissive always and don’t

have to bring it in. o if it starts with the letter C they are claims between existing parties.

If it starts with the letter I we are joining somebody new. o Rule 14

(a)(1): only can do this that may be liable to you for the Π’s

claim against you

indemnity or contribution

watch for it with joint tort-feasors

Π sues the Δ; Δ wants to sue someone new (TPD)

that action is a impleader claim

Owen equip.: once the TPD is entered then the Π

can assert a claim against TPD but must arise out of

the same T/O.

Must assert SMJ over the claims

Intervention: absentee brings herself in, o up to you to do two things:

intervene timely

absentee must choose which side of the case to come ino Intervention of right: Rule 24(a)(2): you have a right to intervene if

you’re interest may be harmed if not joined. Timely application to

the judge to intervene, interest in the action, interest is at risk, current

parties do not adequately represent the interests of the current party

Same test for necessary parties

Must assess SMJ

o Permissive intervention: Rule 24(b)(2): may be able to do it if your

claim or defense and the pending case have at least one common

question with the case (up to the court) (timeliness & common

question of law or fact)

Must assess SMJ

Class Action (joinder on steroids) o Rule 23

Always brought by the rep., the rep sues on the half of the

class.

23(a) before you start, 4 requirements numerosity; so numerous that joinder of all members

is impractical, no magic # up to the court.

Commonality: there is some question(s) in common

Typicality: Reps. claim must be typical of those of

the class, who is going to be there to represent the

person beyond the Π

Rep. will fairly and adequately protect the interests

of the class

23(b) Types of class, gives you a choice (don’t have to

satisfy all)

(b)(1) & (b)(2) very specific, mandatory class

actionso b(2) the party opposing the class has acted

or refused to act on grounds that apply

generally to the class, so that final

injunctive relief or corresponding

declaratory relief is appropriate respecting

the class as a whole

(will not certify the class if

monetary damages outweigh the

equitable relief)

(b)(3) must show 2 things:o common questions predominate over

individual questions o The class action is the best way to handle

this dispute

Higher the stakes the higher the

interests are the class members in

filing their own claims. Usually are

suing for damages, usually after

money.

Motion to certify: not a class action until court certifies it.

Rule 23(g) Court must define the class and must

identify class council

Notice of pendency

23(d) may direct to appropriate class (b1) (b2)

23(c)(2)(b) IN THE (B)(3) CLASS THE COURT

GIVES INDIVIDUALS REASONABLEY

IDENTIFIABLE o notice tells you that you can opt out and if

not you will be boundo only required in the (b)(3)

o representative has to pay for the notice

Who is bound by a class judgment?

All class members except those who opted out of a

(b)(3)

There is no opt out of a (b)(1) or (b)(2)

Settlement or dismissal of a certified class must be approved

by the court.

Rule 23(e)o Judge will notified class members

SMJ

Could be a federal question

Tougher is what do you do with a diversity

jurisdiction with a class action o For citizenship you look only at the rep.

being diverse from all citizenso Amount in controversy:

Allapata: we are ok if the rep’s

claim exceeds $75,000

Discovery: Federal rules are pretty liberal about information allows electronically stored information

(ESI) **always weighing costs against benefits

o Required disclosure

Rule 26(a) Must produce certain information without a request for it.

26(a)(1): initial required disclosure (very early in the case)o must identify people with discoverable information that you may use

on the merits. o Identify documents, ESI, and things that may relevant in the case as

well

26(a)(2): witnesses

26(a)(3): later, must tell them everything you are going to raise at trial o Discovery Tools: which can be used to get information from a non party

Deposition

Rule 30: oral deposition

Rule 31: written deposition, answers are always oral

Can depose a party or a non party but must subpoena a nonparty o Lose spontaneity

Interrogatories

Rule 33: written questions answered in writing under oath o 30 days in which to answer

o can only be sent to parties, never to nonparties

o Shaded to

Request to produce

Rule 34: asking to see things (only to be used by parties) o Make a written request and it appears like it can only be sent to

parties BUT (c) can use it with nonparties but must hit the nonparty

with subpoena

Medical Examination:

Rule 35 request to the court o Must get a court order

o Must show:

Condition is actually in controversy

Good cause

Can be only ordered by a party or someone in a party’s

custody or control. *pretty narrow

Parent and child

Request for admission

Rule 36 ONLY BE SENT TO PARTIES

o They force you to admit or deny any discoverable matter.

Subpoenas

Rule 45 o Ordered to show up at a deposition and bring evidence including an

electronic file o Scope of Discovery:

Standard 26(b)(1) can discover anything that is relevant to a claim of defense..

Can get stuff that is reasonably calculated to lead to admissible evidence o This standard is broader than admissible

Privileged matter is not discoverable

Confidential communication ie: between lawyer and client, doctor and

patient, spouses etc.

Work Product

26(b)(3): trial prep materials o material prepared in anticipation of litigation

o protected from discovery; free loader problem

Hypo: I operate a charter boat service, you hire me to take

you on a 3 hours tour. The boat sinks and you are injured.

The person sues me. Hire a private investigator to go down

and investigates and finds an eye witness and gets a

statement. Checks weather, maintenance records. Write it

all in a report to me. It is in my file. You sue me. Can you

get the file? It is work product, you can’t get it. o Not absolute; can overcome work product protection if you show:

Substantial need

Not otherwise available

Ex: witness statement and you cannot find that

witness. Might be able to get witness statement. o Some work product is absolute

Mental impression, conclusions, opinions, and legal theories

you cannot get. o Work product DOES NOT have to be generated by a lawyer. Can be

generated by the party herself or any rep. of the party

Pretrial Adjudicationo 12(b)(6)—motion to dismiss for failure to state a claim

the court never looks at evidence that cannot be 12(b)(6)

The court only looks at the face of the complaint, trying to determine if everything

the Π said is true, can she win. Can the law recognize a claim here? If not then no

claim stated

Twombly and Ickball: remember that the Π must plead facts supporting a plausible

claimo Motion Summary judgment

Rule 56 judgment without a trial (radically different from 12(b)(6)) Must show:

The moving party must show that there is no genuine dispute on a material

fact

Entitled to judgment as a matter of law

Trying to weed out cases where we don’t need a trial; the only reason to go to trial is

when there are disputed issues of fact

Evidence in summary judgment given by the parties , in writing (usually in affidavit

form) are given to the judge are under oath

Is there a genuine dispute on a material fact? If yes? Must deny summary judgment If

no? then might give summary judgment

Supreme Court: loosen up a little bit smaller courts, give more summary judgment.

Hypo: Π walking across the street the and he gets hit by Δ’s car. b/c ran a

red light. Δ moves for summary judgment and gives affidavits from clergy.

They all say Δ didn’t have a red light, he really had a green light. Pleadings

are not under oath. Π must respond with evidence. Π does come up with an

affidavit from a alcoholic, drug addicted, convicted swinger: must deny

summary judgment. Is there a dispute on a material fact? Yes.

Trials & Motionso 1 reason to go to trial is to resolve questions of fact

Jury decides the questions of fact.

No jury: bench trial and the judge with decide the facts in a bench trial.

Must demand a trial in writing

Rule 38(b)

Must demand a trial in writing or you waive it o 7th Amendment: right to a jury trial in federal jury civil cases (not required by a state court )

preserves the right to a jury, only preserves it in actions at law not equity

preserves: locked into a historical testo whether we get a jury today depends on whether we would have a

jury in 1791 in England. (1791 when the 7th amendment was ratified)o Chauffer’s union v. Terry:

You ask is this claim analogous to a claim that existed in

1791? Common law analogue in 1791

Almost always yes

Focus on the remedy

Remedy that the Π wants. o Law: remedy at law is damages & $ to

compensate you for the harm o Equity: no jury for equity

Injunction

Specific performance

Rescission

Reformation

How to determine the trial when both?

Hypo: own a house and have a wonderful back

porch and to survey the view. On weekend morning

you enjoy coffee and croissants. A guy is

trespassing on your property. You yell at him to not

to. He gives you gesture and says no. You sue at

law: you will get damages. You want an injunction

which you would have to go to equity. Enforced in

personam: puts him in jail. o Do you get a jury?

Trespass? J

Damages? J

Injunction? N/J

Beacon Theaters and DQ: you get 3 ruleso Determine the jury right issue by issue, no

longer get a center of gravityo If the issue of fact underlies both law and

equity claims you get a jury o Usually we try to jury issues first.

Motions:

Relate to the function to the judge

o Motion for judgment as a matter of law Judgment as Matter Of Law

Rule 50 (directed verdict)

At trial and if this granted the judge takes the case

away from the law.

Standard 50(a)(1): reasonable people could not

disagree on the result. Looking at the evidence

coming in at the trial and says this can only go one

way therefore, I’m just going to rule here. o Must be done on motion

Under 50(a)(2) timing o Cannot move for this until the other side has

been heard at trial.

Hypo: law requires showing a,b,c,d are true a,b,d

nothing C. Δ moves for JMOL because reasonable

people could see that C was missing.

Functional equivalent of summary judgment o Renewed motion for matter of law RJMOL

Rule 50(b) JNOV

Comes up after trial.

We are at trial the court denies JMOL now the jury

returns a verdict and the court enters judgment on

the verdict. That judgment isn’t a judgment that

reasonable people would have reached.

Hypo: law requires showing a,b,c,d are true a,b,d

nothing C. Δ moves for JMOL because reasonable

people could see that C was missing. o Denies it. Let it go to the jury, the jury

comes back with a decision for Π now the Δ

is going to move RJMOL now going to take

away from Π and giving to the Π

Must move for this w/in 28 days after the judgment

To make this motion must have moved for JMOL at a proper

time at trial

If you did not move for JMOL during trial you have

waived JMOL o Motion for New trial

Rule 59(a)

Same timing as RJMOL

Here we have a mistake, something that went wrong

and it affected the outcome.

If we grant new trial we are going to start over. Only

to fix some problem that might get reversed on

appeal anyway. o Limitless grounds for this

o This can be granted without a motion, can

do this on it’s own

New trial is a much less drastic than RJMOLo New trial a party may win again where

RJMOL takes verdict away from one party

and gives it to another side.

Appeals o Going from US trial court to the US court of Appeals

Final judgment rule: in federal court you cannot appeal until the trial court enters a

final judgment.

How do we know what is a final judgment?

After making this order, does the trial judge have anything left to do on the

merits of the case. o If yes, then not final, it is interlocutory

o If we make a motion for summary judgment: the judge denies it.

Can you appeal? No. Still have the rest of the case

Can’t appeal a motion of a new trial.

Interlocutory Review:

By statute:o 1292(a) injunctions and things like that

o 1292(b) where there is a big issue of law that the trial judge and

court of appeals should be appealed now.

Federal Rules o 23(f) orders for class certification

allows you to ask court of appeals to look at it

o 54(b) multiple parties or claims

court decides the case to one of the parties

Judge-madeo Collateral order rule: very narrow

When you have a collateral issue and it is unreviewable if

you have to go through a case.

Only thing usually is a claim of immunity from suit.

Claims & Issue Preclusion o Res Judicata, Claim Preclusion

Going to get one suit to vindicate a claim , if you sue twice on the same claim, the 2nd

claim is dismissed

Must show 3 elements:o Both cases were brought by the same claimant against the same Δ

Same parties in the same configuration o Show that case 1 ended in a valid final judgment on the merits

41(b): everything is on the merits unless it was based on

jurisdiction, venue, or indispensible parties. o Both cases involved the same claim

How do we define claim:

Majority view: the claim is the T/O

Minority view: Primary Rights, you get a different

claim for each right invaded. o Hypo: L and M are driving around, they collide. L sues M for PI

from the car wreck. Litigated, case determined, we don’t care L sues

M for property damage from the same crash.

Is element #1 met? Both cases are L against M

#2: valid final judgment on the merits

#3 both involve the same claim?

Majority view: L suing M twice about the same

wreck

Minority view: not dismiss because it is a different

claim for each right invaded. PI & Property right o Hypo: case #1 L sues M litigate case over, M sues L for accident

because of #1 same claimant against the same Δ

Might dismiss because of compulsory counter claim because

of T/O

Going to be obvious; there is always 2 cases.

1 case has gone to judgment

the other case is pendingo does the judgment in case 1 stop us from litigating us in case 2

o **order of judgment

o Issue Preclusion/ Collateral estoppel

Litigated and determined a, b,c,d case # 2 comes along x,y,z,a

Deem section a established and prove x,y,z

Elements:

Case #1 ended in valid final judgment on the merits

Must show that same issue was actually litigated and decided in case #1

Must show the issue was essential to the issue in case #1

Against whom is issue preclusion used? Same in every court: you can only

use it against somebody who was a party to case #1. (includes people

represented by a party) (required by due process)

By whom is issue preclusion used? Doctrine of mutuality: you can use it by

someone who was a party in case #1. (not constitutionally required. This rule

can change, eroding and can erode)

Non mutual Issue preclusion used by a person who was not a party to case #1

Scenarios where it has been eroded

o Non mutual defensive issue preclusion: used by someone not in case

#1 who is the Δ in case #2.

Hypo: you own a car and have a roommate. You lend your

car to your roommate. You are vicariously liable for what

your roommate does. Your roommate goes out and collides

with someone.

Case #1: person sues the roommate and litigate and

the roommate wins—all the other person’s fault

Case #2: person sues me for lending my car: no

claim precludes different defendants. o Person already litigated

o Elements 1-4 are all met.

o Element 5: used by me and I wasn’t a party

to case 1. Under mutuality I can’t do it.

Most courts say it’s ok if the other person

had a full chance to litigate in case #1.

Going to get a collateral Issueo Non mutual offensive issue preclusion: using by someone not a party

in case #1 someone is the Π not a party in case #1

Hypo: you own a car and have a roommate. You lend your

car to your roommate. You are vicariously liable for what

your roommate does. Your roommate goes out and collides

with someone.

Case #1: person sues the roommate and litigate and

the roommate wins—all the other person’s fault

Case #2: I sue the person for the accident, want

collateral estoppel. o Steps 1-4 are met exactly the same as before

o 5: its being asserted by you not a party to

case #1 non mutual, offensive (Π) most

courts say no. Important trend says yes as

long as it is fair.

Parklane Hosiery: Factors: Δ had a

full chance to litigate case # 1, Δ

could foresee multiple litigations, I

could not have joined easily in case

#1, no inconsistent judgments can’t

pick out the one you like

Rules 4 (excluding k-m), 12, 13, 14,15,18,19,20,22 (statutory interpleader), 23 not 1 or 2, 24, 26(a)(b)

(3), 30,31,33,34,35,36,45,56.

Title 28 1331,1332,1367, 1391, 1404, 1441,1446

Interpleader: must be multiple claims that are inconsistent with eachother, claims adding up to over 100%

Rule 22 Statutory interpleader nationwide personal service of process,

diversity jurisdiction is usually used but amount in controversy is only 500, diversity of citizenship only requires 2 claimants are diverse