yeazell civ pro outline

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CIVIL PROCEDURE OUTLINE

PROFESSOR BRUCE HAY

FALL 2005

PART I: LEGAL PROCESS

Pleading Discovery Summary Judgment Motion Trial Verdict j.n.o.v

π/ ∆/Directed Verdict

π/Directed Verdict

If appeal is granted after a Directed Verdict, legal process goes all te !ay "ac# to pleadings.

If appeal is granted after a j.n.o.v. or order for a ne! trial, just go "ac# to original verdict.

9. Filing Sui: Pl!"#ing$

Pleadings$ papers !ic parties file !/ court to commence litigation

π files a complaint !ic includes jurisdiction, sort and plain statement of claim, demand for judgement

∆ files an ans!er tat denies, affirms, or states ignorance for eac of π%s carges.

&. Main o"jectives

'. sort and plain statement to give notice to "ot parties(. screen out cases immediately if not meet jurisdiction, venue, or service of process). cases decided on te merits, not dismissed on tecnicalities *old fact+pleading rules

-. ederal ules of 0ivil Procedure *0P1sta"lised under te ules 1na"ling &ct of '2)3, 4SS0 committee drafts rules.If 0ongress does not reject, rules go into effect.5nly applies to federal courts, "ut most states copy 0P for temselves.

elevant rules$ 6,3,'(0P 6$ orms of Motions

a. complaint "y π7 ans!er "y ∆

reply to counterclaim/ans!er to cross claim

". motions sall "e in !riting unless during trial7 must set fort relief or order sougt

0P 3$ ules of Pleadinga. 8Sort and plain statement9 of$ grounds for jurisdiction, entitled to relief, specific relief te

pleader see#s statement must eiter invo#e a "ody of la! or ave facts to apply to te la!

". In response to claim ∆ deny, affirm, or state ignorance to eac statement in te complaintc. &ffirmative defenses include statute of limitations, fraud, !aiver, contri"utory negligence etc.

!ic serve as additional facts constituting a defensed. ailure to deny acts as admissione. &lternative teories, even if contradictory, are allo!ed7 pleadings must "e simple and concise

0P '($ Defenses and 5"jections'(*"$ :rounds on !ic to o"tain dismissal

*; most common$ failure to state a claim upon !ic relief can "e granted• 8even if everyting your motion is true, te la! asn%t "een "ro#en9 i.e. 8so

!at<9

• must allege sufficient provisions to support te claim

5ter motions include$ lac# of jurisdiction over su"ject matter or personimproper venueinsufficient process or service of processfailure to join a party under rule '2

'(*c motion for summary judgement after pleadings "ut "efore trial'(* !aiver of defenses$ *' personal jurisdiction, venue, and process !aived if not upfront

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*( oters, suc as '(*"*; are preserved at te trial*) su"ject matter jurisdiction =1V1 !aived, can "e raised "y

any party *including court at any time0P '>$ &mended and Supplemental Pleadings

*a$ party may amend pleading "efore response is served, or if no ans!er is re?uired, !itin (@days after filing

*c$ 8leave sall "e freely given !en justice so re?uiresi. for A$ court may allo! amendments to relate "ac# to te original date even if statute of

limitations as run if te claim arose out of te original claim%s conduct or occurrenceii. for B$ may deny cange in amendment !en statute of limitations as run out if B !as in

te "est position to prevent te mista#e

0. Pleading 0ases$

Formal Sufficiency of the Complaint '. S!ier#ie!icC v. Sorema (@@( %4.S. p. @

ule of la!$ 3 + Pleading only needs to give fair notice of claim and grounds for claim.acts$ A filed claim for discrimination in district court, complaint dismissed "ecause claiminsufficient to raise an inference pf *age and etnicity discrimination, A appealed.Eolding$ Supreme 0ourt ruled 8a plaintiff need only give te defendant fair notice of !at te

plaintiff%s claim is and te grounds upon !ic it rests.9

Filing and Serving the Complaint (. io Poperties v. io International Interlin# (@@( *2t 0ir. p. >@

ule of la!$ ule $ service of process must "e reasona"ly calculated to notify B of te proceedings against im.

acts$ A una"le to serve B !it process, court granted petition to allo! A to serve B troug e+mail, B appealed claiming insufficient process.

inding$ 0ourt upeld service, ruled tat in tese circumstances e+mail !as a means reasona"lycalculated to apprise B of te pendency of te la!suit, and te 0onstitution re?uiresnoting more.

=ote$ Tecnicality of rule creates a tension !it generally li"eraliCing nature of rules.

Rule 12 Motions). 0onley v. :i"son '2>6 *4.S. p. >3

ule of la!$ '(*"*;$ motion to dismiss cannot "e granted merely on te grounds tat teallegations are false *fact+finding is for te jury.

acts$ A filed claim for unfair representation "y union !ere "lac# employees !ere replaced "y!ites. B moved to dismiss on '(*"*; grounds *failure to state a claim

Eolding$ 0omplaint sould not "e dismissed for failure to state a claim unless in appears "eyonda reasona"le dou"t tat A can prove no set of facts in support of claim !ic !ouldentitle im to relief.

Answer . Fing Vision v. J.0. Dimitri%s estaurant '223 *=.D. Ill. p. ;

ule of la!$ 3*d$ ans!er must admit, deny, or as# for more information. =on+conforming

ans!ers are treated as an admission.acts$ B filed ans!er stating 8=eiter admit nor deny, "ut demand strict proof tereof9Eoldings$ =on+conforming ans!ers are a positive admission.

Affirmative defenses>. 0arter v. 4nited States (@@) *6t 0ir. p. ;6

ule of la!$ If A is not armed "y later affirmative defense, judge can admit it.acts$ Suit for medical malpractice, B sougt to later invo#e affirmative defense, A appealed

claiming forfeited defense "y failing to include it in ans!er.

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Eolding$ A could ave reasona"ly assumed te affirmative defense !ould "e used. Te judge canadmit te late defense even toug not generally admissi"le "ecause outside 3*c timerestraints

Amending the Pleadings;. o"inson v. Sappington (@@) *6t 0ir. p. 6@

ule of Ga!$ ule '>$ leave to amend sould "e freely granted !en justice re?uires.acts$ A filed seHual arassment suit against employer. B included affirmative defense in motion

for summary judgment tat adn%t "een included in its ans!er, motioned for leave toamend ans!er and trial judge granted.

Eolding$ A ' ad notice, ( ad ample opportunity to response, and ) failed to so! prejudice.Te court did not a"use its discretion in allo!ing B to amends its pleadings.

=ote$ tension "et!een t!o goals of rule '>$ li"eral permission to amend to reflect variance of tecase as it develops7 and not !anting to unduly prejudice te oter side.

6. Tran v. &lponse Eotel (@@( *(nd 0ir. p. 6ule of la!$ & ne! action relates "ac# to te original claim if it arose out of te conduct set fort

in te original pleading.acts$ A see#s to amend complaint to include I05 violations "ut state of limitations as run out.

&rgues tat I05 claim relates "ac# to original claim tus does not violate te state of

limitations.Eolding$ A%s amendment introduced significant ne! factual allegations tat fundamentally

canged te nature of te allegations. &mendment denied.

D. 1tical Gimitations$ ule ''a. :eneral unctions$ etical limitations

i. ma#es for good la!yersii. prevents frivolous cases !it large settlement values

iii. prevents litigation as arassment ". 0ontroversial ule

i. Tension "et!een goal of discouraging frivolous litigation *litigation sould "e ta#enseriously and simultaneously not discouraging good litigation *civil rigts litigation

ii. 0ompeting =arratives'. Franz $ Gitigation costly and time consuming, don%t file suits ligtly !ant to deter

frivolous la!suits(. Patsys$ people ma#e mista#es and don%t !ant to discourage good litigation fear of

over+deterrence of even good claimsc. e?uires la!yers to sign all pleadings and motionsd. Ma#e reasona"le in?uiry "efore filing *motions and pleadings

i. ilings cannot "e intended just for arassment or delayii. 0an%t file frivolous eHtensions of eHisting or ne! la!suits

iii. 0an%t file if #no! tat ave no evidencee. Sanctions

i. discretionary'. court may impose tem "ut don%t ave to

ii. =ature of Sanctions *judge%s discretion'. limited as to act as a deterrent(. monetary penalty). attorney%s fees. reprimands>. censure

f. Eypo$ Kat if someone "rougt a frivolous suit just to force defendant to settle and avoid courtfees< *-asically eHtortion

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If not testify, only discovera"le in 8eHtraordinary circumstances9 !en facts not oter!iseo"taina"le.

&dmissi"ility$ =ot need to "e admissi"le to "e discovera"le, just li#ely to lead to admissi"le evidence (;*"

Po!er$ "ecause discovery may "e "road,π

may force ∆ to settle in order to not ans!er ?uestions

-. Discovery ules$ 0P (;+)6Nuote from Prof. Eay$ 8Do not memoriCe te rules, just #no! your !ay around tem, and focus on (;.9

FRCP 2: G!n!*"l P*()i$i(n$ G()!*ning Di$'()!*+1 Du+ ( Di$'l($u*!

a. e?uired disclosures$'. Initial$ !/out "eing as#ed7 people, relevant documents, insurance info !/in'@ days(. 1Hpert Kitnesses$ name, report, pu"lications, etc.). Pretrial$ potential !itnesses, deposition transcripts, documents. Metods$ oral depositions, !ritten interrogatories, pysical or mental eHaminations etc.

". Discovery scope and limits$'. any material, not privileged, relevant or reasona"ly calculated to lead to relevant

materials *not need to "e admissi"le is discovera"le(. Gimitations$ if too duplicative, easily accessi"le else!ere, "urden out!eigs "enefit). Kor# product$ if su"stantial need for materials prepared in anticipation of trial, and no oter

means, may disclosure trial preparation materials, "ut la!yer%s conclusions/ impressions still privileged

. 1Hperts$ can depose testifying !itness eHperts after report if filed, only depose retainedeHperts if justice demands it

c. Protective ordersTo protect parties !en undue "urden/eHpense/em"arrassment out!eigs evidentiary value

0P (6$ Depositions -efore &ction or Pending &ppeal'. 0an petition to depose !itnesses even if not file action yet, use proper notice and service

0P (3$ -efore Kom Depositions May -e Ta#en

'. K/in 4S$ officer autoriCed to administer oats or appointed "y te court(. 5utside 4S$ person commissioned "y te court

0P (2$ Stipulations egarding Discovery ProcedureIf parties agree, can cange limits/restrictions for depositions as long as not delay trial

0P )@$ Depositions upon 5ral 1Haminationsa. =eed leave *court permission$ in jail, already deposed, or "eyond time limits eHiting 4S ". =otice$ to eac party stating time, place, metod.

If corporation named, must designate one or more !o can ans!er ?uestionsc. 1Ham and 0ross eHamine$ same as at trial. =ote all o"jections, "ut continued. 1nd or limit$ instruct client not to ans!er only if privileged or scope limited "y court. If "ad

fait, annoy, em"arrass or oppress te deponent, officer can stop or limit *eHpenses

e. evie!/0anges$ can alter in form or su"stance !/in )@ daysf. =o so!s$ if call depo and not so! or forget to su"poena !itnesses, pay eHpenses

0P )'$ Depositions upon Kritten Nuestions5nly need leave of court for reasons cited a"ove

0P )($ 4se of Depositions in 0ourt Proceedinga. 4se$ to contradict testimony of !itness, in place of !itness if dead/too far/old/sic#/not so!

despite su"poena/interests of justice ". 5"jection to admissi"ility$ o"ject just as if !itness !ere present

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c. 5"jection !aivers$ if not made rigt a!ay, !aive o"jections to notice, officer, form of ?uestions,!ritten ?uestions.

0P ))$ Interrogatories to Parties =ot to eHceed (> !/out permission, ans!er under oat, ma#e o"jections or !aived, not need to ans!er

if facts are pu"licly availa"le

0P )$ Production of Documents, Gand Inspectionsa. Scope$ can re?uest anyting !/in (;*" relevance, need to "e as specific as possi"le ". =onparties$ !/court order, may "e made to produce documents/ inspection

0P )>$ Pysical and Mental 1Hamination of Personsa. Must so! good cause ". Party calling for eHam must provide report to oter party

0P );$ e?uests for &dmissiona. See# admission of trut of facts ". If accepted, treated as conclusively esta"lised for present case, "ut no oter proceeding

-. Scope and Gimitations of Discovery

Tree fundamental limitations$'. elevance(. Privelege). Proportionality

0. Discovery 0ases

Relevance'. Sanyo Gaser v. &rista ecords (@@) *S.D. Ind. p. '''

ule of Ga!$ party resisting discovery as te "urden to esta"lis te lac# of relevance under ule)6

acts$ 0opyrigt infringement case7 A ule )@*"*; filed motion to compel and B filed a motionfor a protective order.

inding$ Motion to compel discovery !as granted "ecause information could affect te outcomeof te case, B ad te "urden to esta"lis lac# of relevance

Proportionality(. Ou"ula#e v. 4-S Kar"urg (@@) *S.D.=.L. p. ''3

ule of la!$ Seven factor test for cost+sifting *toug not all elements !eig te same.acts$ SeHual discrimination case !ere 4-S did not !ant to pay for production of emails for

discovery claiming it !as an undue "urden7 !anted to sift te costs to AEolding$ 0ourt ruled tat only cost sift !en tere is an undue "urden, created a random sample

test to determine relevance and o! long it !ould ta#e/o! muc it !ould cost to produce te information.

Privilege and Trial Preparation Material

). Eic#man v. Taylor '26 *4S p. '(3ule of la!$ ule (;$ !or# product of la!yer, !ile not protected "y attorney+client privilege, isnot discovera"le !/out a so!ing of strong necessity to prevent injustice

acts$ tug"oat san# #illing > cre!men. ∆ attorney intervie!ed survivors in anticipation of

litigation. π re?uest all of te information related to intervie!, ∆ attorney not ans!er

"ecause of privilegeinding$ Kor# product not discovera"le upon mere re?uest. =eed to so! undue "urden, not in

tis case "ecause survivors could still "e intervie!ed. If relevant non+privileged factsoter!ise unattaina"le in !or# product, must disclose, "ut "urden is on invading party.

=ote$ &"solute immunity to discovery$ attorney%s mental impression/conclusion

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Kor# product privilege is not limited to attorney%s products. &nyting prepared inanticipation of litigation falls under !or# product protection.

=ote$ Te olding in tis case as "een incorporated into an amendment to ule (;.

1Hpert Information. e$ Tri+state 5utdoor Media :roup (@@( *-an#r. MD p. ')2

ule of la!$ ule (;*a*(*-$ Disclosure of information to an eHpert !itness assumes tat privileged or protected material !ill "e made pu"lic and effectively !or#s as a !aiver of attorney+client privilege.acts$ B o"jection in "an#ruptcy earing "ecause B%s eHpert !itness !as once a consultant for B

and #no!ledge sould "e protected "y attorney+client privilege.Eolding$ -y listing te accountant as an eHpert !itness B effectively !aived attorney+client

privilege and !or# product !it regards to information/documents accountant !as privyto.

D. Discovery Disputes

'. Motion to 0ompel

0P )6$ ailure to Ma#e or 0ooperate in Discovery$ Sanctions

a. evasive or incomplete ans!er treated as failure to ans!er ". considered contempt of court, pay feesc. if not reveal initially disclosa"le or re?uested materials, not use at court, sanctions

=ational Eoc#ey Geague v. Metropolitan Eoc#ey 0lu" Inc. '26; *4.S. p.'6ule of la!$ ule )6$ failure to comply !it discovery orders may result in sanctionsacts$ Dismissal of anti+trust action as sanction for failure to timely ans!er !ritten interrogatories

as ordered "y courtEolding$ 1Htreme sanction of dismissal !as appropriate in tis case "y reason of respondant%s

flagrant "ad fait and teir counsel%s callous disregard of teir responsi"ilities.

(. Motion for Protective 5rder i. If one party as#s for a motion to compel discovery te party from !om information is

sougt can preemptively as# te court to relieve it of or limit its o"ligations to producete information *motion for protective order

ii. any party from !om discovery is sougt, !eter or not a party, may move te court for a protective order

Pilips v. :.M. (@@( *2t 0ir. p.'>)ule of Ga!$ ule (;$ Information is discovera"le if it !ill facilitate settlementacts$ Motion to "reac a confidentiality agreement from previous la!suitEolding$ Eigly intrusive discovery re?uests re?uire a "alancing under ule (;*c. 1vidence tat

is not admissi"le is still discovera"le if it migt lead to admissi"le evidence.

:onsalves v. 0ity of =e! -edford '22; *D. Mass. p.'>6ule of la!$ Ga!yer cannot #no!ingly present false testimony, and sanctions are appropriate

under ule (;*gacts$ Victim is "eaten to deat "y police !ile in jail and family sues te family%s attorney purposefully did not disclose victims EIV status, could ave canged damage a!ard sosould ave "een turned over

Eolding$ &ttorney sanctioned '>,@@@ for !itolding damages tat could ave canged teoutcome, la!yer cannot #no!ingly present false testimony *affidavits tat #ne! !eren%tcomplete

Discovery Summary$ =o more Perry Mason surprises. :oal is to ave as many facts sared as possi"le.

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Privileges and limited !or#+product and eHpert !itness 8protections9 try to decrease free riderincentives.

III. R!$(lui(n i3(u T*i"l

&. 0ase Management'. Main o"jectives

a. 0entral Teme$ 1Htent to !ic judges must move from traditional adversarial presiding roleto a more in?uisitorial role

". Standard of evie!$ Management decisions revie!ed "y court of appeals purely for a"use ofdiscretion &ppeals 0ourts are generally reluctant to overturn case management decisions "ylo!er courts.

c. 1lementsa. deadlines for pases of litigation ". active judicial encouragement of settlementc. judicial eHploration of different means to end litigation

i. early neutral evaluation$ eHperts give realistic vie! of damagesii. non"inding ar"itrationiii. summary jury trial$ summariCe case to moc# jury, tey come up !/ damage estimate all designed to give parties more realistic vie! of outcome, encourage settlement

(. ules0P ';$ Pretrial 0onferences, Sceduling, Managementa. e?uirementsi. Judge must esta"lis a scheduling order for completing various pretrial tas#sii. 0ourt must conduct a final pretrial conference sortly "efore trialiii. Parties !o fail to comply !it ule '; are su"ject to sanction

". 5"jectives$ eHpedite action, not !aste time, !n'(u*"g! $!l!-!n

=otes$ Judge can not force parties to settle, "ut can ma#e influence felt*not !ant an angry Judge -ane Judge in VerdictMay "e in te parties% interests to settle, even if la!yers not !ant to settle.Settlement "rougt up "y judge ta#es a!ay stigma of 8"ringing it up first9

0P ($ 0onsolidation7 Separate Trialsa. &llo!s judge to structure trial in !ay e tin#s is appropriate ". (*"$ judges may "ifurcate or com"ine trials0P 3$

). 0ase Management case

Scheduling !rder

To!er Ventures v. 0ity of Kestfield 'st 0ircuit, (@@( *p.'6;ule of la!$ ule ';*f ma#es sanctions possi"le for ule ';*" failure to adere to sceduling.

Dismissal is an appropriate sanction for violation of sceduling order.

acts$ Judge dismissed A%s case for failure to adere to pretrial scedule. Venture repeatedlymissed deadlines.Eolding$ 0ourt dismisses te case for failure to meet sceduling order deadlines. Venture%s

argument tat te oter side didn%t o"ject to te delay ignored te court%s independentinterest in administering its doc#et.

=ote$ Tis sanction !as unusual te most common sanction is to refuse to eHtend te deadline.

"asic Management #echni$ues

&cuna v. -ro!n oot, Inc. > t 0ircuit, (@@@ *p. '3(

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ule of la!$ Must comply su"stantively !it sceduling orders. *=ot just time *ule ';acts$ Mass tort for uranium poisoning. Judges used pretrial sceduling order "ecause of siCe of

case. Plaintiff failed to meet pre+discovery re?uirements even after judge grantedeHtension.

Eolding$ 0ase dismissed for insufficient affidavits te affidavits failed to meet te re?uirementsof te sceduling order.

=ote$ Management decisions revie!ed "y court of appeals purely for a"use of discretion

icutti v. =e!Lor# Transit &utority =L, '22( *p.'3ule of la!$ 0ourt may order separate trial to do any of te follo!ing$ '. &void prejudice, (.

Provide convenience, (. 1Hpedite proceedings/"e economical.acts$ A "rings suit against "eating/attac# "y police and "rings suit against "ot individual officers

and municipality. Municipality !ants trials "ifurcated .Eolding$ Potential "enefits of splitting trials out!eig te potential costs. 0oncludes tat interests

of economy, convenience and justice support separate trials.

Final Pre%trial !rder

.M.. v. Muscogee 0ounty Scool District ''t 0ircuit, '222 *p. '32ule of la!$ It is !itin te judge%s discretion to not allo! a last+minute !itness. ';*d

re?uirements for plan for trial and admission of evidenceacts$ Moter and son sue scool for molestation of "oy "y teacer. Gast+minute !itness for

plaintiff arrives !en defense is alf!ay troug teir case.Eolding$ Kitness may not appear. Te importance of te testimony doesn%t out!eig te

prejudice to te defense of aving te !itness testify. =ote$ actors in decision to eHclude !itness$ '. Importance of testimony, (. eason for failure to

disclose te !itness earlier, ). Prejudice to opposing party if !itness allo!ed to testify.

-. &lternative Dispute esolution *&D'. Main o"jectives

a. )rd party to decide dispute.i. &r"itrator Q "inding po!er ii.mediator Q facilitate

". often faster, ceaper, more privatec. coice of ar"itrator can ensure eHperience in su"ject matter

(. ole of courts in ar"itrationa. 0ourt+anneHed &D is almost al!ays not "inding, altoug it is often mandatory ". courts treat ar"itration agreements li#e F c. not evaluate te merits of te F, just complianced. 0allenges to ar"itration ten depend on F la!.e. 5ften courts limited to seeing tat "ot parties agreed to ar"itration and tat esta"lised

procedures !ere follo!ed

). Pro"lems !/ar"itrationa. 1mployees entering into pre+dispute ar"itration agreement may not compreend actions

". reedom of F/!ill v. un#no!ingly signing a!ay due process rigtsc. Ga! trumps in some areas eH. cild custodyd. If "inding ar"itration, no cance for appeal in court system

. &D caseIn re &tlantic Pipe 0orp. 'st 0ircuit, (@@( *(@6ule of la!$ 0ourts can mandate mediation in appropriate cases.acts$ Euge case !it multiple parties, court mandated mediation, &tlantic Pipe o"jected.

Mandamus granted "y 0ourt of &ppeals is mandatory mediation appropriate<

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Eolding$ District court as inerent po!er to mandate mediation *if not in local statutes inappropriate cases + tis !as an appropriate case "ut court failed to set reasona"lelimitations on duration and mediator%s fees.

=ote$ Mandamus$ appellate revie! of a district court%s non+final order7 Eay$ mandamus is !enyou go to appellate court "efore decision to get te trial judge not to a"use po!er.

0. Settlements'. Main 5"jectives

a. Main form of settling suits is private settlement !it or !itout la!yers ". Settle cases "efore trial can save and time, encouraged "y courts

i. 4A *i"l i$ " "il!# $!l!-!n.

c. -ut courts not accept settlements at all costs, not !ant to arm )rd partiesi. 1H. "uying te silence of parties can urt future litigants

(. Possi"le Settlementsa. prefiling agreement not to sue

". π see# voluntary dismissal, agree not to refile suit$ saves and pu"licity, if π "rea#s

settlement, ∆ can use settlement as affirmative defense

c. π consent to dismissal !/prejudice and agree not to refile suit$ a judgement on te merits, so

applies to claim preclusion *if "rea#, go to state court "/c. a F matter

). Fey actors in Deciding to Settlea. Gitigations cost ". Kat oter side is demandingc. Kat e%ll ave to pay in court if e losesd. Ken parties are in roug agreement a"out te outcome of te case tey are more li#ely to

settlee. &void ris# of going to trial estimated cances of losing at trialf. &void adverse pu"licity

. Kays 0ourts 1ncourage Settlementa. ule ;3

". =eutral mediationc. Ma#ing it costly to go to trial

>. -arriers to Settlementa. Differing assessments of ris#/cances of !inning at trial

;. ules0P ';$ &llo!s judges to convene settlement conferences0P ;3$ 5ffer of Judgment

• PenaliCes plaintiff for not accepting settlement

• If B ma#es settlement offer and A doesn%t accept &=D A !ins less at trial tan proposed

settlement, A must pay costs incurred "y B after offer

Settlement 0ases'. Mare# v. 0esney 4S, '23> *'22

ule of la!$ ule ;3 not incompati"le !it federal fee+sifting statutes for civil rigts litigationacts$ 0ivil igts case !ere police #illed A%s son. 5rdinarily, !en A !ins civil rigts case B

pays A attorney fees. Eere, B made settlement offer and A refused "ut ten !on less tan proposed settlement at trial.

Eolding$ A as to pay B%s post+offer costs and EIS 5K= attorney fees B not responsi"le for

A%s attorney fees as e !ould ave "een if A ad not refused settlement.

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=ote$ -rennan in dissent fear te majority opinion !ill discourage civil rigts litigation

D. Summary Judgment *SJ'. Main o"jectives

• Suit is filed, discovery is over, settlement fails, still not need to go to trial.

• If side !it te "urden of production can not meet tat standard and esta"lis tat tere is

a material ?uestion of fact, ten te judge can issue summary judgement as a matter ofla! for te oter side.

• Purpose$ to prevent futility of conducting a trial !en one side as no case. 5nly need

trials to resolve disputes of fact. If no dispute, no trial. *SJ comes "efore te trial,directed verdict *judgment not!itstanding te verdict comes after, "ot considered judgement as a matter of la!

• Process$ judge eHamines documents *affidavits, depositions, transcripts

o Pleadings do not count "ec. tey are not a s!orn statement

• Vie! evidence of non+moving party in "est ligt.

• Very difficult for party !it "urden of proof to get summary judgment "/c credi"ility of

!itnesses and evidence decision for jury to ma#e *must present evidence !oseautenticity is indisputa"le

• Judge does not determine credi"ility of te !itness, tat%s up to te jury *see Eay%s ypos

from '@.(>.@>o 5ne drug addicted "lind man%s affidavit v. '@@ saints still an issue of fact

Strengt of evidence

Kea# -alanced *Tria"le issue Strong

π as Bu*#!n ( P*(#u'i(n to

move to middle to get to a trial. ∆ gets summary judgement

-urden of production is met. Trialdecided "y prepond+erance of teevidence$ >'R

*tie goes to ∆

π%s evidence so strong tat π receive

SJ "efore trial *rare ∆ as Bu*#!n ( P!*$u"$i(n tomove to middle to get to a trial.

Nuote from Eay$ 8Don%t get ung up on te terms. 4nderstand !en a judge can ta#e a trial/verdict a!ay from a jury.9

(. Summary Judgment ule$ 0P >;a. SJ if no genuine issue as to any material fact ". If multi+claims, can receive SJ for all, some or none.c. &dverse party cannot just say 8no9. Minimum, need affidavit !/specific facts so!ing tere

is a genuine issue for trial.

). Summary Judgment 0ase0eloteH 0orp. v. 0atrett '23; *4S p. ;';ule of la!$ ule >; grants summary judgement against a party !o fails to esta"lis a genuine

issue for trial. Te party !/"urden of proof "ears "urden at summary judgment.

acts$ π sued ∆ for deat of us"and due to eHposure to as"estos manufactured "y ∆. ∆ move for

summary judgment "ecause no evidence tat decedent !as eHposed to B%s as"estos instatutory period. B moved for summary judgment.

Eolding$ To !in summary judgment ∆ *moving party not need to produce evidence to disproveA%s case, just need to so! tat A can%t meet er "urden of proof at trial. 4S'inill" ofevidence is not enoug. If ave "urden, must so! enoug evidence tat jury could

reasona"ly return verdict for "urdened side. emand to lo!er court to determine if π met

te "urden. =otes$ concurring and dissenting opinions tin# moving party needs to "e more active in

discrediting nonmoving party%s evidence.

1. Standard/-urden of Proof

''



'. Standard of Proof a. Degree of "elief tat te decision+ma#er must ave to ma#e a ruling ". 0ommon standards of proof

i. Preponderance of te evidence clear and convincing "eyond a reasona"le dou"tii. In civil cases, te standard of proof is preponderance of te evidence

(. -urden of Proof a. Says !ic party is responsi"le for proving te case

i. 4sually A as te "urden of proof in civil cases

). &llocation of Decision+Ma#ing &utoritya. 6t &mendment rigt to a jury trial in civil cases ". Keter a judge can ta#e a case a!ay from te jury *judgment as matter of la! depends

crucially on !o "ears te "urden of proof.

IV. T*i"l

&. IntroductionJust getting to trial does not guarantee tat a jury !ill ear a case.If see#ing monetary damages, traditionally a case of l", rigt to a jury trialIf see#ing injunction or declaratory judgement, traditionally a case of !6ui+, no 6t amendment rigt

to a jury.

1ven in jury cases, te judge can ta#e verdict a!ay.

-. Judgment as a Matter of Ga! *JM5G/Directed Verdict$

• &t close of evidence, judge determines case so one sided tat reasona"le jury could only decide

one !ay, so judge ma#es te call.

• ∆ usually moves after π presents case

• π usually moves at te close of all evidence.

• Judges reluctant to issue directed verdicts

• If overturned on appeal, need a !ole ne! trial. *eHpensive/em"arrassing

• Kaste of jury%s time

• Judge loo#s li#e te 8"ad guy9, let jury ta#e te "lame

0. J=5V/Judgment not !itstanding te verdict/ ene!ed JM5G$• &fter jury returns verdict, and evidence does not support te verdict, judge can override it.

• ∆ needs to ave made motion at end of all evidence to preserve rigt for j.n.o.v.

• If overturned on appeal, no ne! trial, just reinstate te original verdict. *ceaper

• Standard of revie! for judge ta#ing case a!ay from jury *summary judgment, jmol, etc.

is in teory de novo *"ut in practice certain amount of deference given to lo!er court

0riteria for SJ, DV, J=5V all te same$ no legally sufficient evidence for a reasona"le jury to findfor te party against !om te motion is made.

D. ules0P >@$ Judgment as a Matter of Ga! in Jury Trials7 &lternative Motion for =e! Trial7 0onditionalulings

a. Judgment as Matter of Ga!$ =o legally sufficient evidentiary "asis for a reasona"le jury to findfor a party on an issue, court may grant a motion for judgement as a matter of la!7 motion may "emade at any time "efore su"mission of case to te jury.

". ene!ed Motion$ May also grant motion after jury returns a verdict tat does not matc evidence7must "e filed !itin '@ days of entry of judgment7 same standard as j.m.o.l.7 moving party mustave made a motion for j.m.o.l. at te close of evidence

o See ule >@*" for judge%s options

*:ranting of motions is discretionary

'(



1. 0ases &udgment as a Matter of 'aw'. eeves v. Sanders Plum"ing Projects (@@@, 4.S. *p. (>2

ule of la!$ ule >@, must dra! all reasona"le inferences in favor of te non+moving party,credi"ility sould "e left up to te jury, !eigt of te evidence *is tere enoug< Kicside it supports< is a ?uestion for te jury

acts$ A suing for discrimination on "asis of ageEolding$ 0ourt ruled tat case "oiled do!n to a ?uestion of !o you "elieve, !ic sould "e left

up to te jury, 0ourt of &ppeals erred in su"stituting its judgment concerning !eigt ofevidence for te jury%s

=ote$ -urden of proof sifts in discrimination cases$ plaintiff must esta"lis prima facie case ofdiscrimination, ten B must respond !it non+discriminatory reasons for actions, A mustso! !y tose reasons are not legitimate.

V. N! T*i"l

&. Introduction

• Judge gets a verdict, not li#e it, "ut can%t grant j.n.o.v. "ecause facts eHist on "ot sides, so it

is not impossi"le tat a reasona"le jury could come to verdict.

• Decision to grant a ne! trial is usually revie!ed for a"use of discretion "ecause original judge

te one !o sa! te !itnesses/evidence-. 0ommon la! grounds to issue a ne! trial

'. fla!ed procedure$

• mista#e "y judges$ !rong evidence ruling, improper jury instructions

o jurors$ visit accident scene, read papers

o la!yers$ prejudicial comments

(. fla!ed verdicts$ most common$ 8against te !eigt of te evidence9

• if against !eigt of evidence strong indication tat jury misunderstood

• can%t issue j.n.o.v. "ecause some evidence eHists.

• elief a!arded "y jury doesn%t ma#e sense *sould ave a!arded H and gave (@H

instead suggests didn%t understand

• 0an order an entire ne! trial *jury so "iased need a !ole ne! one or just a ne!

trial for te damages pase. 5r can remit *reduce damages a!ard strictly spea#ing,

usually give !inner coice "et!een reduced damages or !ole ne! trial

0. ules$ 0P >2$ =e! Trialsule doesn%t state !y a ne! trial can "e granted, rater 8for any of te reasons for !ic ne! trialsave eretofore "een granted9, so rely on common la! eHamples a"ove. Must "e filed !itin '@ days.

• Some courts ave ruled tat ma#e a >@*a motion at close of evidence if motion for ne! trial

is premised on verdict "eing against te !eigt of te evidence

• 0an file "ot >@*a and >2*a *not eiter/or

• =e! trial may "e granted even if su"stantial evidence supporting jury%s verdict

D. 0ases'. Keisgram v. Marley (@@@, 4.S. *p. (6

ule of la!$ Ken district court erroneously admits testimony during trial, court of appeals as

autority to direct entry of judgment as matter of la! for losing party !itout remandingto district court for consideration of !eter a ne! trial sould "e granted.

acts$ &ppellate court ruled tat A%s eHpert !itness !as improperly admitted and tat !itout suctestimony B%s motion for judgment as a matter of la! sould ave "een granted.Nuestion is !eter te court of appeals can enter a jnov or if it sould aveautomatically remanded te case to te district judge for a ruling on !eter a ne! trialsould "e granted.

Eolding$ A !as on notice of alleged deficiency of its eHpert%s testimony "ecause of B%s o"jectionsduring trial. ad opportunity to present its "est evidence and prove its case.

')



8&utority of courts of appeals to direct te entry of judgment as a matter of la! eHtendsto cases in !ic, on eHcision of testimony erroneously admitted, tere remainsinsufficient evidence to support te jury%s verdict.9

1. DamagesJudge can order a ne! trial for damages, or get !inner to agree to reduced damages *remituCCy standard$ 8soc# te conscience9.Pro"lem$ if damages !ay off, jury may ave "een off on negligence/lia"ility verdict.emittitur$ reduction of award

=e! trial ris#s losing money already in poc#et *pending appeals&dditur$ increasing a!ard.

0alled unconstitutional "ec. judge pic#s a U "eyond jury%s decision.0ritics call tis a 8distinction !/out meaning9

I. R!li! *(- 7u#g-!n

&. Introduction

• Judge as te po!er to set aside judgments, usually !itin one year *some eHceptions

• Trade+off "et!een su"stantive justice and closure

• &fter one year *!it eHceptions judgment is final and tat%s it

-. ules$ 0P ;@$ elief from Judgment or 5rder '. 0lerical Mista#es(. 0ourt may relieve a party from final judgment if file !itin one year for$

i. Mista#e, surprise, eHcusa"le neglect'. Keter non+defaulting party !ill "e prejudiced(. Keter defaulting party as meritorious defense). Keter culpa"le conduct led to default

ii. =e!ly discovered evidenceiii. raud

). 0ourt may relieve a party even if file after one year$i. Judgment is voidii. Judgment as "een satisfied

'. 4sually injunctive relief iii. &ny oter reason justifying relief

0. 0ases'. &c#erman v. 4S '2>@, 4.S. *(3

ule of la!$ ule ;@*"acts$ A failed to filed motion to set aside judgment canceling certificate of naturaliCation !itinone year period, claiming reason for delay !as eHcusa"le and sould fall under ule ;@*"*;!ic allo!s for appeals after one year deadline as passed.Eolding$ =eiter te circumstances nor te eHcuses of A !ere sufficient to set aside judgmentunder ule ;@*"*; after one year ad passed. =otes$ Dissent argued tat ule ;@*"*; sould "e applied more li"erally in tis case and!erever fairness re?uires it.

II. A88!"l$&. &ppeala"ility

Fin"l 7u#g-!n Rul!: 0an%t appeal until final judgment as "een entereda. 1fficiency$ courts only !ant to see you once ". :rievances ave a !ay of going a!ay, especially if party !ins case at trial or if case settles2 E'!8i(n$:

a. Petition for Mandamus$ If judge as a"used is po!er can re?uest a !rite of mandamus from tecourt of appeals ordering trial judge to stop !at e%s doing tese are for issues !ere it !ould

'



"e too late to appeal after final judgment *i.e. te damage !ould already "e done *1H$ order todisclose state secrets in discovery

". Interlocutory &ppeal$ Judge can certify for an interlocutory revie! if e%s unsure a"out a rulingand resolution "y te appeals court !ould "ring a"out a speedy resolution of te case

-. Standards of &ppellate evie!D! N()( %n(n#i$'*!i(n"*+;: revie! of pure ?uestions of la!, !eter or not judge applied correctlegal standard

• 1H$ Is a promise enforcea"le< *matter of la!

• easons$ 4niformity across district judges *so tat la! is te same in every jurisdiction

A,u$! ( Di$'*!i(n: Deferential !ill only revie! to see if trial judge !as 8clearly erroneous9*matter of fact or a"used discretion *management decisions

• 1H$ Kas a promise made< *matter of fact

• eason$ Judge sa! actual evidence and is in a "etter position to judge ?uestions of fact

7UDG<ENTS

I. Cl"i- P*!'lu$i(n %R!$ 7u#i'"";

&. IntroductionDefinition$ Te general rule of res judicata is tat a final (udgment , rendered on the merits, constitutes ana"solute "ar to a su"se?uent action )etween the same parties* or those in privity !it tem, upon the sameclaim or demand . *once a claim as "een litigated to final judgment can%t "e "rougt again1veryone gets one "ite at te apple, "ut can%t #eep "o""ing "ac# for more.G!n!*"ll+ ,!!!n 3! $"-! 8"*i!$

-. Main Issues'. Policy arguments served "y claim preclusion$

a. Judicial efficiency$ Sensi"le allocation of scarce judicial resources "y avoiding re+litigation ofmatters tat a court as already determined. =o reason to assume (nd court !ill "e more rigt tanfirst.

". Party &utonomy$ Protection of autonomy *particularly tat of B%s "y preventing parties from usingte repeated re+litigation te same claim as a means of arassment.

c. Institutional values$ Promotion of consistent administration of justice. &llo!s parties to rely uponresult and move on.

(. Policy arguments against claim preclusiona. Judicial efficiency$ 1ncourages parties to "ring all claims, even !ea# ones tat not !ant to "ring,

for fear of losing te rigt forever.

• 0laim+splitting$ if lose first claim generally !on%t "oter to "ring second

". Party &utonomy$ π sould "e a"le to cose !ic claims are "rougt !ere. If !ant to settle some

claims in state court and some in federal court, sould "e a"le to do so. π is te master of te claim.

c. Institutional values$ =ot !ant to deny meritorious claims on a tecnicality.

). Definitions of 8same claim9a. 'st estatement$ same cause of action, same elements, same facts *narro! ". (nd estatement$ same transaction, same common core of operative facts *"roaderc. ationale for s!itc$ more efficient to "ring all claims at once

air to ∆ to deal !/all claims at once from same transactionTus, not just preclude same claims, "ut also precludes claims tat sould ave "een raised, "ut!ere not.

d. ederal courts$ need to loo# at te preclusion la! of te state tat rendered 'st decision. *rom&rticle IV%s 8full fait and credit9 clause. States need to respect la!s and decisions of oter states.

'>



pu"lic policy generally considered eHception to tis, if la! of first state is so repugnant to pu"lic policy of second state ten don%t ave to enforce.

. 0ounterclaimsailure to join counterclaims also su"ject to claim preclusion.0ounterclaims are precluded troug t!o principal mecanisms.a. FRCP =>%";$ !en a B fails, at te time of pleading, to raise a counterclaim arising out of te same

transaction as te main action, te claim is !aived and may not "e asserted su"se?uently. ". &dditionally, certain counterclaims, even !en not covered "y ule ')*a, fall noneteless into a

narro!ly defined class of 8common la! compulsory counterclaims.9c. If troug reasona"le measures a party sould ave #no!n a"out a claim ten souldn%t "e a"le to

sue on it later d. &rguments for$ practical !en same evidence/!itnesses sould all "e "rougt togeter, can al!ays

split later if going to "e confusing *"ifurcation or use special verdict *to later find out if jury !asconfused

e. &rguments against$ in more compleH cases juries could get confused, evidence for one claim could prejudice against anoter,

>. 5ter =otesPrivity$ a defendant in privity is a party so closely connected to te suit tat courts treat im as if e !ere

named, tere"y "inding im to te original judgment. Indicates tat relationsip is close enougto named party to include !itin scope issue/claim preclusion.

8Mutuality of 1stoppel9$ 0laim preclusion usually operates "/t tose !o !ere parties to "ot suits. Tegeneral rule is tat you can%t ta#e advantage of an earlier judgment unless you are also "ound "yit.

;. inal Judgement on te MeritsJust as 8same parties9 is not literally read, allo!ing for privity, final judgement is not completely literal.

Te ?uestion of ade?uate representation for purposes of claim preclusion also arises in te conteHtof determining !eter a given decision constitutes a final judgment on te merits. Strong presumption in favor of giving individuals a fair opportunity to adjudicate teir claims, and against "inding parties !o ave "een inade?uately represented.

0. 0laim preclusion cases

'. us v. 0ity of Maple Eeigts '2>3 *5io p. )'(ule of la!$ &ll claims arising from a single !rong sould "e "rougt togeter in a single actionacts$ A !as urt in an accident allegedly caused "y B. sued B for damage to property and !on,

litigated claim to final judgment. later filed suit for personal injuries arising from sameaccident, B o"jected on grounds of claim preclusion.

Eolding$ Ken a person suffers multiple injuries arising from same !rongful act, only a single cause of action arises and claims must "e litigated togeter.

&&P*!'lu$i(n i$ n( " $! ( i!# *ul!$1 3!*! i$ "l"+$ *((- (* "*gu-!n ",(u 3!3!* 8*!'lu$i(n

$3(ul# "88l+ (* n(.

II. I$$u! P*!'lu$i(n %C(ll"!*"l !$(88!l;

&. IntroductionDefinition$ Ken an issue of fact or la! is "'u"ll+ liig"!# and n!'!$$"*il+ #!!*-in!# "y a )"li# "n#

in"l ?u#g!-!n and te determination is !$$!ni"l ( 3! ?u#g!-!n@ te determination is conclusive in asu"se?uent action "et!een te parties, !eter on te same or different claim. *estatements (nd (6, p.)'6+)'3G!n!*"ll+ ,!!!n #i!*!n %,u *!l"!#; 8"*i!$ %,u '(ul# ,! $"-!;

-. Dual Purpose

';



'. protecting litigants from te "urden of re+litigating an identical issue !it te same party or is privy(. promoting judicial economy "y preventing needless litigation

0. Main Issues'. 8&ctually litigated and determined9

Due process re?uires parties ave full opportunity to fully litigate eac issue. Sometimes a generalverdict !ill leave open te ?uestion of !eter a given issue as "een decided. In suc cases, issue preclusion is not availa"le to te parties.

(. 8Issue essential to te judgment9a. If multiple grounds eHplicitly invo#ed in support of a judgment, any one of te findings could

provide independent justification for te judgment7 tus, none can really "e termed essential to tedecision.

+Courts divided over whether to grant preclusive effect to such alternative findings,- ". Vie! of te second estatement of Judgments$ !en alternative grounds for judgment eHists, none

sould "e precluded from su"se?uent litigation. Tis estatement favors li"eral use of issue preclusion$ 8any oter compelling circumstance90riticism$ leads to unnecessarily duplicative trials.

). Mutuality of Issue Preclusion

Traditionally, parties not invo#e issue preclusion unless )oth parties "ound "y original judgment. So,issue preclusion not used "y or against individuals !o !ere neiter parties nor privies to te originalsuit. Mutuality as su"stantially eroded over time *estatements (nd nonmutual issue preclusion.*=ote tat tis is an anomaly$ i$$u! 8*!'lu$i(n '"n ,! in)(!# ,+ n(n8"*i!$ ,u 'l"i- 8*!'lu$i(n

'"n

• Multi+adversary claim$ a party !o loses te contest of an issue against one party is ordinarily

precluded from re+litigating it against any oter adversary. *A already ad er day in court

T!o nota"le eHceptions to te doctrine.

a. Defensive non+mutual preclusion$ =on+party uses judgment in first suit to prevent A in second suit from re+litigating issue. *ne! B

stopping original APrecludes a A from re+litigating identical issues "y merely 8s!itcing adversaries9.

• &rgument$ A could simply ave joined W as a B in te original suit and π ad full opportunity

to litigate issue 'st time. Preclusion terefore availa"le to te second B. *incentive to join all potential defendants in te first action if possi"lt

1H. Nuarter"ac# & unsuccessfully sues referee - for a "lo!n call. Issue preclusion may "esuccessfully invo#ed "y 0 *anoter referee from te game as a defense to te same actionagainst im "y &. Eay%s lutie ypotetical *'.

". 5ffensive non+mutual preclusion$ =e! A uses judgment in first suit to prevent original B from re+litigating issue. *ne! A stopping oldBKen A is see#ing to estop B from re+litigating te issues !ic B previously litigated and lost

against anoter party.0ourts reluctant$

• not !ant to give ∆ incentives to "i "n# $!! rater tan join 'st suit *encourages more

litigation.

• 4nfair to B + if first action is for small/nominal damages may ave no incentive to vigorously

defend self *esp. if future suits not foreseea"le

• 4nfair to B !en procedural opportunities availa"le in one action and not anoter.

• If 'st A !ins, nonparty could sue and gain all te "enefits !itout te costs.

'6



Te Supreme 0ourt as tus given trial courts "road discretion to determine !en offensive preclusion is appropriate.actors for allo!ing offensive non+mutual IP$

i. ∆ ad full cance to litigate 'st time *not case of small damage

ii. ∆ could foresee multiple suits *peraps sould ave joined oter πs

iii. π not easily join 'st suit *so not guilty of !ait and see or opportunism

1H. Nuarter"ac# &, instead of suing, pu"licly accuses te referees of "lo!ing te call. eferee -sues successfully for li"el. If te trial court approves *i.e., does not "elieve tat eferee 0 is "eing opportunistic, 0 may use issue preclusion to esta"lis lia"ility on te part of & in asu"se?uent suit. Eay%s lutie ypotetical *(

D. Issue Preclusion 0ases

'. Par#lane Eosiery 0o. v. Sore '262 *4S p. )('ule of la!$ Trial judge as "road discretion to permit te use of offensive non+mutual issue preclusion

to esta"lis part of π%s case if not unfair to ∆.

acts$ S10 filed case against Par#lane for violation fed la!s, !on !it declaratory judgment *no jury.

Sore *π "rougt suit v. Par#lane for securities violation. filed for partial summary judgment

on issues already decided in S10 "enc trial *offensive issue preclusion. *argued Par#lane ad

already ad its opportunity to defend itself and lost, so A sould get "enefit of tat first trialinding$ =ot a denial of due process "ecause ∆ ad full opportunity to defend against carge te first

time. uture suits !ere easily foreseea"le and A in (nd case not a"le to join in first action *not a"leto !altC in to S10 EN and join a case, and it is not li#ely tat ∆ !ould ave ta#en te S10 caseligtly

=ote$ court ruled tat !asn%t violation of B%s 6t &mendment even toug not given cance to litigate infront of jury

Dissent$ 4nfair to apply offensive collateral estoppel !ere party estopped as not ad opportunity toave facts of case determined "y a jury.

1. Eay%s Eated 0ec#list for Issue Preclusion'. 'st case ended in final judgment on te merits(. Same issue litigated and determined in 'st case *no default judgments li#e in claim preclusion). Same issue essential to te judgment. 5nly eld against party or privy in 'st case *due process, need to "e represented>. 5nly used "y party in 'st case *mutuality, unless jurisdiction allo!s non+mutual issue preclusion

*offensive and defensive.

III. 7(in#!*

&. Introduction'. Eistorically$ joinder of parties and claims !as very difficult "ecause te case !as governed entirely "y

pleadings and restrictive rules surrounding te forms of action.(. 0P$ 8li"eral joinder,9 i.e. all claims/parties connected to te dispute can "e eard in one proceeding.

0ore idea is tat claims arising out of te same transaction/occurrence sould "e "rougt togeter for purposes of efficiency.

i. s can sue togeter

ii. s can sue as many Bs as tey !ant/"ring as many claims as tey !antiii. Bs can counter+sue As or "ring cross+claims against eac oter iv. Bs can "ring tird party complaints against parties A didn%t sue for purposes of indemnification

or contri"utionv. people can intervene in te proceeding if tey !ill "e affected "y te outcome and if teir

interests are not !ell representedvi. court can order tat additional As/Bs "e "rougt in if interests !ill "e affected "y te suit

). R!-!-,!*: ?(in#!* *ul!$ "*! *u-8!# ,+ *ul!$ ( ?u*i$#i'i(n

'3



-. Main Issues

'. Policy argumentsor$ consolidation may increase efficiency "y conserving scarce judicial resources. &lso, joinder may

increase party autonomy "y allo!ing tem to "ring claims as tey see fit.&gainst$ "ringing many claims togeter may dilute teir individual force, and su"ject Bs to te tyranny

of num"ers. Earm efficiency and autonomy "ecause people !o !ould not oter!ise ave "eensued get dra!n into litigation.

0. Joinder of claims/ules'. Joinder of claims "y As$ FRCP =, a A can join as many claims as e !ises against a single B ++

even tose arising out of unrelated transactions ++ su"ject to jurisdictional limitations. &ltougule '3 permits suc joinder, it does not compel it. Eo!ever, tere are strong incentives to joinclaims ++ for eHample, claim preclusion may re?uire te A to join related claims arising out of tesame incident.

(. Joinder of 0laims "y B$ FRCP %!;%2;

&llo!s B to assert as many defenses as e/se as to A%s claims.). Joinder of counterclaims "y Bs$ FRCP =>

a. permissive counterclaims. B can join as many permissive counterclaims, even tose arising outof unrelated transactions, as e !ises, su"ject to jurisdictional limitations.

". compulsory counterclaims$ ∆ must join all claims arising out of te same transaction as tatunderlying te A%s suit. Today, claim preclusion renders te class of compulsory counterclaimsessentially irrelevant/redundant, "ut in '2)3 claim preclusion ad a muc narro!er scope.

. Jurisdictional limitations$ Te only limitation upon joinder of claims and counterclaims is jurisdictional. -ecause courts ave discretion to grant supplemental jurisdiction, o!ever, te "ottom line is really whether it ma.es sense to hear the cases together . 1valuate te relative

interests of te state and fed courts. 1Hample$ π *=L sues a B *=L in federal court on a federal

claim. Te A tries to join a state claim. Since tere is no diversity of citiCensip, tere can "e jurisdiction over te state claim only if tere is supplemental jurisdiction. 0ompulsory claimsautomatically receive supplemental jurisdiction, "ut permissive claims re?uire an independent "asisfor federal jurisdiction.

D. Joinder of 0laims 0ase$

Painter v. Earvey '233 *t 0ir p. )3ule of la!$ Kere te same evidence !ill support or refute "ot te claim and counterclaim, te

counterclaim !ill almost al!ays "e compulsory.acts$ A claims police officer assaulted and raped er and violated er constitutional rigts. B

counterclaims for li"el and slander. Suit is "rougt in federal court. Issue for court is !eterli"el claim is permissive or compulsory<

Eolding$ 0ounterclaim is compulsory and tere is supplemental jurisdiction "ecause te B%scounterclaim is logically related to *i.e., arises out of te same facts as te A%s original claim.Since it is a compulsory counterclaim, no independent "asis of federal jurisdiction is re?uired*claim is granted supplemental jurisdiction. Test for !eter or not claim compulsory sould "e "ased on "ot evidentiary similarity and logical relationsip.

1. Joinder of Parties

a. Permissive Joinder of Parties$ FRCP 20 Gi"eral joinder of As or Bs if te claims "y or against te party !ose joinder is contemplated present +1- common $uestions of fact or law, and arise out of +2- the same transactions as te claimsof te parties litigating te matter.

". =ecessary and indispensa"le parties$ FRCP =9 Situations !ere court must "ring in outsiders and join as parties even if te parties don%t !ant to.Tis is rarely revo#ed.

c. )rd Party Joinder "y ∆ $ FRCP = ∆ may join oter Bs *i.e., for purposes of indemnification B may also join oter As troug te useof counterclaims as long as te counterclaims arise out of te same transaction as tat underlying te

'2



original suit. Muc more limiting tan rule (@ for A%s. Joinder of a tird party "y B is called animpleader .

d. Intervention: FRCP 2$& party outside te litigation, "ut !/strong interest to te property or transaction at issue, may cooseto intervene. Te decision is tat party%s alone ++ if se cooses not to intervene ten se !ill not face claim/issue preclusion.

e. Jurisdictional limitations to )rd party joinder Supplemental jurisdiction presents a potential pro"lemfor tird party joinder in cases !ere diversity is te only grounds for jurisdiction. Joinder can =1V1 "rea# complete diversity re?uirement.

. Joinder of Parties 0ases'. &leHander v. ulton 0ounty, :eorgia (@@@ *''t 0ir. p. )>6

ule of la!$ &pplication of ule (@ is revie!ed for a"use of discretion "y trial judge. T!o criteria forule (@ are ' rigt to relief arising out of same transaction, ( some common ?uestion of la! orfact arising from claims of all parties.

acts$ '3 As alleged racial discrimination, claims all eard togeter and '> !on at trial. B appealed,arguing tat claims sould ave "een eard separately. B argued tat trial judge a"used isdiscretion "y failing to sever claims under ule (.

Eolding$ 0ommon core of allegations, su"stantial overlap of te claims, and logical interconnection ofallegations meant tat judge did not a"use is discretion in allo!ing claims to "e "rougt togeter.

T!o majors concerns are 8*!?u#i'! "n# '(nu$i(n, and court said tese !ere ade?uatelyconsidered/addressed "y trial judge.

=otes$ standard of revie! is a"use of discretion.

(. :rutter v. -ollinger '222 *;t 0ir. p.)3)ule of la!$ Must esta"lis four elements in order to "e entitled to intervene as a matter of rigt$ '.

motion to intervene !as timely, (. Eave a su)stantial legal interest in su"ject matter of case, ).&"ility to protect tat interest may "e impaired in a"sence of intervention, and . Parties already "efore te court !ould not ade$uately represent tose interests.

acts$ Proposed defendant+interveners !ere denied intervention under (*a and *" in suit against 4 ofMicigan for use of race in considering admission applications. District court ruled tat failed toso! tat interests !ould not "e ade?uately represented "y te 4niversity *eHisting defendant.

Eolding$ Su"stantial interest does not need to a strong enoug interest to start o!n la!suit7 minimal "urden to so! impairment7 only need to so! tat te eHisting parties !on%t ma#e all te samearguments as petitioner te potential interveners in tis case met all tese re?uirements.

=otes$ revie! for denial/granting intervention is de novo.

IV. Cl"$$ A'i(n$

&. IntroductionDefinition$ Te 0P () class action$ suit may "e "rougt "y or against large num"ers of individuals !oseinterests are sufficiently related so tat it is more efficient to adjudicate teir rigts or lia"ilities in a singleaction rater tan a series of suits. & class action is "inding even on parties !o did not participate in teoriginal suit. In ordinary joinder, "y contrast, parties are not "ound unless tey coose to join te original

litigation. ule () is undou"tedly te most controversial 0P.

PART II: PERSONAL 7URISDICTION

III. In*(#u'i(n

Fey issue$ !eter a state or federal court possesses po!er to adjudicate given persons in court.

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0ourt needs to ave po!er over individual or property'. in personam jurisdiction$ po!er over individuals "ecause of presence, domicile, minimum

contact.(. in rem jurisdiction$ po!er over individual "ecause of attaced property in dispute *rem Q

ting). ?uasi in rem jurisdiction$ po!er over individual "ecause of attaced property unrelated to

dispute.Due Process 0lause$ outer limit of personal jurisdiction, state can coose as muc or as little personal jurisdiction as !ant5n eHam$ first evaluate state%s long+arm statute "efore moving onto 0onstitutional issues.

IV. F(un#"i(n$

&. Main Principles/ulesTraditional "asis for PJ$ '. presence !en served

(. agent). domicile in state. consent *actual, implied, !aived

=otes$ Tree limits on territorial reac of state courts

'. Po!er$ sovereign rigts of states over people and property !/in "orders(. 0onsent$ individual li"erty *8sould "e a"le to coose la!s live under9 and democratic

governance *people of state sould ave control over internal matters). =otice$ proper notice and fairness of service so opportunity to defend self in court

Post+Pennoyer+pre+International Soe !orld$ courts stretced '(n$!n and 8*!$!n'! to determine personal jurisdiction. 0onducting "usiness or aving an agent in a state amounted to consenting tote state%s jurisdiction. -usiness activity also amounted to presence. -ut !it increase intransportation and corporations, need a ne! frame!or#.

Pro"lem$ rules not !or# so !ell in a mo"ile society, so Pennoyer slo!ly erodes yet never eHplicitlyoverturned.

-. 0asesPennoyer v. =eff '366 *4S p. 6)$ state as jurisdiction over people and property !itin stateinding$ ( #ey principles

in personam jurisdiction only !en personally served process !/in te state *once ave "eenserved in state doesn%t matter if leave, jurisdiction already esta"lisedin rem jurisdiction

'. true in rem$ cases in !ic property tat is attaced is te su"ject of te litigation(. ?uasi in rem$ property tat is attaced is not su"ject of litigation "ut !ill "e used to satisfy judgment

't &mendment Due Process clause applied to service of process and jurisdiction

0. 0allenging Personal Jurisdiction$ options'. Direct attac#$ callenge on appeal

(. 0ollateral attac#$ callenge results in a sister state trial court *jurisdiction issues are only time canmount a collateral attac# on a judgment). 8Special appearance9$ some states allo! ∆ to so! up just to contest PJ !/out su"jecting self to

8presence9 gra".. 8Gimited appearance9$ lia"ility limited to value of attaced 8rem9 property. *&fter Saffer !ic

eliminates ?uasi in rem, not muc of a role.

D. 0onstitutional e?uirement of =otice4nder Pennoyer, in personam re?uire personal service

In rem and ?uasi in rem re?uired pu"lication in local paper/posted notice

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*&fter Mullane, notice must "e 8reasona"ly calculated9 to reac party

V. <(#!*n F(*-ul"i(n$ "n# C(n!-8(*"*+ P*(,l!-$

&. IntroductionPersonal jurisdiction canged as society canged. Pennoyer esta"lised consent and presence as t!o

#ey aspect for PJ, yet corporations ave no pysical presence or !ill.Su"se?uent cases !ill develop idea of a "eing%s "'i)i+ in a state leading to!ards concept ofconsenting to te la!s of te state, and a state%s jurisdiction over people outside of its "ordersunder te $"!$ in!*!$$ and sovereign rigt to protect its citiCens.Tese concepts stretc Pennoyer !/out overruling it.

=o! ( strands of arguments$'. Individual rigts/personal li"erty(. Division of po!er "et!een states in a federal system

=otes$ general jurisdiction$ PJ for any claim. rom domicile *for people or state ofincorporation or su"stantial "usiness activity *for corporation in a state.Specific jurisdiction$ applies !en ave minimum contact, "ut "elo! 8su"stantial9standard. PJ for specific claim/activities related to te forum, "ut not unrelated claim.

eciprocity$ voluntary reciprocal eHcange "/t ∆ and state$ you live/ave minimumcontact in state and "enefit from la!s and protection, you consent to o"ey to la!s ofstate.

-. ules/Principles

C(u* 3"$ 8!*$(n"l ?u*i$#i'i(n ()!* n(n'(n$!ning n(n*!$i#!n$ i

Pennoyer$ ∆ is present and served in state.In rem jurisdiction if attac property and pu"lis notice in paper.or personal jurisdiction, presence and service are sufficient and necessary.

International Soe$ te person as contacts !it te state sufficient to ma#e jurisdiction consistent

!it 8traditional notions of fair play and su"stantial justice9. 't

&mend.0ontact 8systematic and continuous9.1valuate te nature and ?uality of contact.

Saffer$ &ll assertions of state+court jurisdiction must "e evaluated according to standards of Int%lSoe. =o more ?uasi in rem, presence of property alone not enoug.Tere must "e a contact "et!een te la!suit and te forum state.So no! Int%l Soe as eHpanded personal jurisdiction and Saffer as contracted it *no longersu"ject to jurisdiction just "ecause ave property in te state.

KKVK$ 8 ∆%s conduct and connection !/forum state are suc tat e sould reasona"ly anticipate "eing aled into court tere.9

Mere forseea"ility tat product can enter stream of commerce and end up in forum state notenoug, "ecause unilateral act of tird party "rougt car tere.

&sai$ minimum contacts are not out!eiged "y "urden of defending self in distant land, lac# of stateinterest, and overall failing te reasona"leness test for fair play and su"stantial justice.

-urnam$ personally served !itin state, even if in state for unrelated matters.

Mullane$ notice is reasona"ly calculated to reac intended parties.

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Gac# of personal notice not a pro"lem if no reasona"le !ay to contact. Pu"lication in paper notenoug if address is #no!n.4nder Pennoyer, pu"lication !as good enoug for in rem jurisdiction.

=ote$ -urger Fing *p.)2+@$ if you reac out "eyond one state and create a continuing relationsipand o"ligation !it citiCens of anoter state, you are su"ject to regulations and sanctions in te oterstate for te conse?uences of tose activities.

0. 0ases

Minimum Contact '. International Soe v. Kasington '2> *4S p. @2

ule of la!$ or personal jurisdiction, due process re?uires tat a person needs to ave -ini-u-

'(n"' *!l"!# ( '"u$! ( "'i(n !/state so tat te suit does not offend traditionalnotions of fair play and su"stantial justice.

acts$ Int. Soe incorporated in D1, EN in M5. K& !ants unemployment taH, "ut Int. Soe saysno "usiness in state, just a fe! salesmen. -ut salesman paid "y commission, ta#es orders "ut not F or .

Eolding$ ∆ claims no property and no agents in K&, so no personal jurisdiction.u"li+ "n# n"u*! of minimum contact must "e evaluated.

&ctivities of Int. Soe$ '(ninu(u$ "n# $+$!-"i' *not a casual or irregular presenceand ")"il!# i$!l ( 3! ,!n!i$ "n# 8*(!'i(n$ ( 3! l"$ of K&. Tus, Int. Soedefending self in K& does not violate 't amendment protections for fair play andsu"stantial justice.

(. Saffer v. Eeitner '266 *4S p. 'ule of la!$ Nuasi in rem jurisdiction is dead. Jurisdiction can not "e founded on property alone,

"ut needs to "e accompanied "y minimum contact related to cause of action. *If propertyis te cause of action, ten minimum contact li#ely satisfied

acts$ π "rougt suit against :reyound directors * ∆ in D1, EN in D1, over events in 5regon. π

attac te directors stoc# in D1, altoug stoc#s not pysically in D1.Eolding$ &pply Int. Soe standards to in rem jurisdiction in addition to in personam. If you can%t

get jurisdiction over me, ten my property !on%t "ring me in eiter. Must ave minimum

contacts, eHamine nature and ?uality of contact, and not violate traditional notions of fair play and su"stantial justice.

Dissent$ Directors #ne! :reyound incorporated in D1, D1 la!s tat "enefit :reyound "enefitsareolding directors. 0onnection "/t :E and directors is voluntary, so at least a8minimum9 contact, altoug not te "est contact. &nd D1 as state interest to protectits corporations from 8"ad9 directors.

). Korld Kide Vol#s!agen v. Koodson '23@ *4S p. (6ule of la!$ minimum contact still applies, "ut so does fair play and su"stantial justice.

oreseea"ility of product entering stream of commerce "y unilateral action of tird partynot fair, "ecause ∆ not reasona"ly anticipate "eing aled into court, nor does ∆

purposefully avail imself of te privileges and protections of te state.

acts$ amily "ougt &udi in =L, moved to &O, car "le! up in 5F. π sue dealer, regional

distri"utor, importer and manufacturer. Gatter t!o not callenge jurisdiction, "ut first t!odid.

Eolding$ 1ven toug forum state as interest, is convenient for litigation due to !itnesses andcause of action, and ∆ not suffer inconvenience in forum state, still use Due Process

clause to deny jurisdiction. Majority says no minimum contact. &s per forseea"ility, just "ecause someting is in te realm of te foreseea"le does not mean it is su"ject to jurisdiction. Stream of commerce not anticipated to go to 5F, *altoug certainly

capa"le of it. 4nilateral action of π not enoug to "ring ∆ into jurisdiction.

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Dissent$ IT%S & 0&XX 5f course it could go to 5F. If put a mo"ile product in stream ofcommerce, it !ill go places. More empasis sould "e placed on interests of forum stateand lac# of inconvenience for ∆ to "e tried in forum state. 8Minimum contact9 souldave e?ual !eigt !it state%s interests, not trump it.

=otes$ π !ant suit in "ig a!ard county 5F. =eed at least one =L ∆ to destroy complete

diversity.

Nuestions$ If 5F is too far, !at a"out Illinois, or D0, or P&<

. &sai Metal Industry 0o. v. Superior 0ourt '236 *4S p. 'ule of la!$ 3 justices ruled tat jurisdiction !ould "e unreasona"le, even if minimum contacts

!ere made, !ic is de"ata"le.acts$ 0ouple on motorcycle, tire "lo!out and wife died. A sued 0eng Sin*Tai!an, !ic

cross+claimed &sai *Japan as )rd party for ma#ing tu"e valve. &ll settled eHcept 0engSin and &sai. Asahi sold valves to anoter company !ic made tires, and #ne! tatsome of tose tires ended up in 0&. iled motion to dismiss for lac# of personal jurisdiction.

inding$ no majority opinion, "ut most rule unreasona"le to ale ∆ (Asahi) to 0&.

&ccording to KKVK, foreseea"ility tat valves end up in 0& not enoug for minimumcontact. ∆ not send it to 0&, "ut !ent troug Tai!an.-rennan side$ If it%s in te stream of commerce and gets to W, tere is minimum contact.5%0onnor side$ =eed more tan entering stream, need to purposefully and actively direct

product to forum state *advertising, solicitation etc.-ot sides agree, need a reasona"leness test eHamining factors suc as$

'. "urden on ∆(. interests of forum state

). π%s interest in relief

. most efficient forum for resolution =otes$ KKVK !as a do!nstream case, for it dealt !/ distri"utors of product

&sai is upstream, for it deals !/ manufacturing pase several times removed from teconsumer *valve to tire to !eel to motorcycle to importer to dealer to customer

3. Oippo Manufacturing v. Oippo Dot 0om '226 *P& >@ule of Ga!$ Test is 8nature and ?uality9 of contacts !it forum state and not ?uantity of contacts,

state interests and concerns out!eig "urden to B of litigating in forum state.acts$ Does P& long+arm statute reac troug cy"erspace< Internet domain name dispute, A is

resident of P& and B is resident of 0&. 0ontact !it forum state almost eHclusively overInternet, as approH. ),@@@ P& su"scri"ers and contracts !it t!o service providers in!estern P&.

Eolding$ Gi#eliood tat personal jurisdiction is can "e constitutionally eHercised is directly proportional to te nature and ?uality of commercial activity tat an entity conducts overte Internet. Eere, P&%s interest in te dispute and te nature of B%s contact !it te stateout!eig any "urden on B create "y litigating in P&.

/eneral &urisdiction2. -ird v. Parson (@@( *;t 0ir. p. >3

ule of la!$ Specific jurisdiction applies if te cause of action is 8related to9 to contacts !it te

forum state, even if does not arise from tose contacts.acts$ A *5io sued B *K& Internet 0o. for trademar# infringement, violation and

cy"ers?uatting. Trial court dismissed for lac# of personal jurisdiction. Nuestion is!eter te fact tat approH. ,@@@ *'/>@t of total sales 5io residents registered domainnames !it te B is enoug to meet minimal contact re?uirement.

Eolding$ A failed to so! tat B ad a 8continuous and systematic presence9 in 5io for general jurisdiction *maintenance of a passive !e"site !ere consumers registrants initiatecontact is not enoug. Eo!ever, court ruled tat "ot A%s claims and B%s contact !itte forum state directly stem from B%s operation of its !e"site.

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If you ta#e advantage of opportunities afforded "y virtual commerce, reasona"ly anticipate tat teseactivities !ill su"ject you to suit in targeted locales. *p. ;)

Presence in Forum State'@. -urnam v. Superior 0ourt '22@ *4S p. '>@

ule of la!$ If personally served in forum state, personal jurisdiction eHists even if "rief contactin state is unrelated to te cause of action.

acts$ 0ouple married in KV, move to =J, separate. ∆ sued in =J "ut never served process. ∆ move to 0&, ∆ visit #ids and served for divorce in 0&. ∆ contests personal jurisdiction "ecause lac#ing 8minimum contact9 related to action.

inding$ &ll 2 agree tat jurisdiction eHists.Scalia%s say presence is enoug7 Pennoyer is alive and !ell. Standard of minimumcontact/fair play and su"stantial justice used as an analogous su"stitute for actual pysical presence.-rennan%s say need min. contact, and it !as met. *) days in state so availed self of protections, also #ids related to divorce.

Consent ''. 0arnival 0ruise Gines v. Sute '22' *4S p.66

ule of Ga!$ &cceptance of a forum selection clause in a contract is consent to personal

jurisdiction in tat forum for actions arising from te contract.acts$ A *Sutes + K& !ere passengers on B%s cruise *G, A slipped and fell, filed for suit in K&

federal court, B filed for summary judgment "ecause forum+selection clause on passenger%s tic#et re?uired te suit to "e "rougt in lorida.

Eolding$ B as special interest in limiting for a !ere it may "e sued, and "ecause A !as on noticeof forum clause, A as not met eavy "urden of proof to set aside clause on grounds ofinconvenience.

Re$uirement of 0otice'(. Mullane v. 0entral Eanover -an# '2>@ *4S p. 3)

ule of la!$ To meet Due Process, notice must "e given in manner reasona"ly most li#ely toreac intended parties. =otice "y pu"lication is only supplemental and not sufficient ifaddresses are #no!n.

acts$ ∆ pooled small trust funds, state court cec#s it periodically. 5nce court approves, "eneficiaries% claims are "arred. ∆ gave notice in a ne!spaper. π o"jected "ecause no

one !ould see it, some "eneficiaries addresses !ere #no!n, and some "eneficiaries livedout of state.

Eolding$ =otice can "e any means reasona"ly designed to apprise interested parties of action andallo! tem opportunity to "e eard. 8Process !ic is mere gesture is no process9.Posting of real property still o# *as under Pennoyer if li#ely to put party on notice.Pu"lication o# if location un#no!n. -ut if ave addresses, denial of due process if notmail notice.

=otes$ Jurisdiction and notice are separate issues, and "ot must "e satisfied.

D. Model for analyCing constitutional issue of personal jurisdiction

'. Traditional "asis of Pennoyer<a. presence ". agentc. domiciled. consent

(. Minimum 0ontact<Gi#ely to "e a 8stream of commerce9 type issuea. elevant contact "/t ∆ and forum

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i. Purposeful availment< &rising from ∆%s actions "y reacing out to te forum stateeH. using roads, advertising, ta#ing advantage of privileges and protections. 0annotresult from te unilateral action of a tird party.

ii. oreseea"ility< =ot eHamine !eter it is foreseea"le tat product !ould end up inforum, "ut rater, is it foreseea"le tat ∆ could "e aled into a forum court<

". airness/reasona"leness testi. elatedness< Does te claim arise from contact !/forum< If yes, easier to get PJ for

specific jurisdiction. If a lot of contact, may get general jurisdiction.ii. 0onvenience< ∆ al!ays says it is not easy to travel. -urden must "e so grave tat it

!ould severely disadvantage ∆ in trial. Very ard to meet tis standard. Due Processnot loo#ing for te "est forum, just a constitutional one.

iii. State interest< 1specially strong !en a state is protecting te !elfare of its citiCens.). =otice *separate issue, "ut must "e met along !it jurisdiction

". Meaning of due process is giving people te cange to "e eard must ma#e a reasona"leeffort to notify tem *Mullane

c. Most states ave a rule of procedure !ic specifies o! someone is to "e notified *ed ule

. 4nclear issues/divided court$Stream of commerce cases *&saiPresence for process/related to contact *-urnam

VI. S!l I-8($!# R!$*"in$ (n 7u*i$#i'i(n: L(ng A*- S"u!$ "n# V!nu!

&. Statutory TestsTest Tip$ irst determine !eter statute allo!s for personal jurisdiction "efore moving on to

constitutional issuesX1very state as a statute for personal jurisdiction. ederal courts a"ide "y te long arm statute of te

given state.Gong &rm statutes$ ( types

'. Some cover full eHtent of te Due Process eH. 0&81Hercise jurisdiction on any "asis not inconsistent !it te 0onstitution of tis state or of te4nited States9

(. Gimited laundry list

1H. su"ject to special jurisdiction, transacted "usiness, committed a tort, domicile, propertyeasons to limit$ costs of court, efficiency, conserve jud. resourcesKatc for statutory language$

1H. 8any9 "usiness v. 8su"stantial9 "usiness1H. 8commits a tort in forum9, need to determine !en tort committed. If a product

lia"ility case, !as tort at site of negligent manufacturing, or at te location of teaccident< 1Hamine "ot scenarios on test.

1. Venue'. -asic rules of venue$

Venue rules come from statutes, not 0onstitution primarily concerned !it convenience, protecting B from unfair/inconvenient places for trial cosen "y A

States ave o!n la!s.

(. Transfer/0ange of venue0an transfer to court !/in same system assuming proper venue and personal jurisdiction.So state courts can only transfer !/in same state, !ile fed%s can transfer state to state.Transfer at discretion of courts, often in te interests of efficiency or eHcessive pu"licity.May "e done at motion of parties or independently "y court.

'. orum =on 0onveniens *common la! doctrine

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D. Sources of Su"ject Matter Jurisdiction&rticle III of te 0onstitutionTitle (3 of te 4.S. 0ode$ '))' ederal Nuestion Jurisdiction

'))( Diversity Jurisdiction');6 Supplemental Jurisdiction'' emoval

&rticle III creates potential for "roader jurisdiction in federal courts tan 0ongress as seen fit to give.&rticle III simply gives 0ongress te autority, not te o"ligation, to create lo!er federal courts.emem"er Eay%s diagram$

1. 0onstitutional Gimits of ed. Judiciary Po!er A*i'l! III$ 0reates te federal judiciary.

' re?uires creation of Supreme 0ourt "ut lo!er courts created only as 0ongress may esta"lis.( enumerates and limits te cases over !ic federal courts may ave autority$

'"$!$ "*i$ing un#!* 3! C(n$iui(n@ !#!*"l l" (* *!"i!$

cases involving am"assadorsall admiralty and maritime casescases in !ic te 4S is a partycases "et!een t!o or more statescases "et!een citiCens of diverse statescases "et!een citiCens of same state involving land grant of anoter state

cases "et!een a state or a citiCen tereof and a foreign state or citiCenalso some procedural re?uirements$ trials "y jury *eHcept in impeacment cases, trials sall "e eld !ere crimes ave "een committed

) definition of treason.

undamental Pro"lem of &llocation of Po!er -et!een ederal and State 0ourts

:eneral arguments supporting creation of various types of federal ?uestion jurisdiction$Y need for uniform interpretation of federal la!sY protect federal government%s rigt to conduct foreign policyY protect diverse parties from "ias of state courtsY promote interstate commerceY create a forum tat is insulated from political pressure

Pragmatic arguments for getting into federal court$Y sorter !aiting time to get to trialY may ave istory of rulings more favora"le to your sideY in teory, judges feel less political pressureY federal judges often "elieved to "e more competentY often "elieved to "e more ospita"le to cases "ased on federal la!

&gainst$

• ederal courts jurisdiction sould "e interpreted narro!ly

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Scope of autority tat 0ongress as eHplicitly givenfederal courts

0onstitutional limits of autority of federal courtsunder &rticle III



• If 0ongress !anted to create jurisdiction it !ould ave

o In am"iguous cases sould #eep in state court

• :iving federal courts more cases means less time for real federal ?uestions

• ederal judges are accounta"le to no one

II. F!#!*"l u!$i(n 7u*i$#i'i(n

&. Source/ules&rticle III$ over all '"$!$ arising under te federal constitution, federal la! or treaties.(3 4.S.0. '))'$ over all 'l"i-$ arising under te federal constitution, federal la! or treaties. 0ourt as

interpreted '))' to include !ll8l!"#!# '(-8l"in *ul!. *More limited0reates concurrent, not eHclusive, jurisdiction. Kit rare eHceptions *eg. patent copyrigt cases in

'))3, admiralty maritime in '))), a claim tat can "e "rougt in federal court can also "e "rougt in state court.

-. Main IssueInterpretation of Zarising under%. Eo! muc of a federal ingredient is enoug to confer federal ?uestion

jurisdiction<

0lassic cases$ π sues ∆ on fed. cause of action.Eard cases$ '. ederal element, "ut fed. la! does not create te cause of action.

(. ederal defenses eH. π%s claim anticipates ∆%s ans!er as federal defense

&rticle III and '))' ave different interpretations of 8arising under9&rticle III cases$ can 8arise under9 fed la! if fed la! not direct cause of action if '. ederalingredient or (. ederal la! specifically grants jurisdiction.

'))' cases$ all must arise under federal la! "y cause of action *narro!ertus, federal la! '*!"!$ cause of action

eH. If 0ongress !ants federal ousing cases to go to federal court, need to pass a la! tatautoriCes it. act tat federal la! creates federal ousing not good enoug, "ecause tat la! didnot create te cause of action, suc as unla!ful eviction.

&nalysis of te "orderline cases$ !at is te federal interest in te case< If federal courts ave moreeHpertise in issue, or needed for effective enforcement of federal la!, ten li#ely to end up infederal court.

&P*i)"! *ig3 ( "'i(n$ individual people can sue, if none, means tat just federal prosecutors cansue under it.

0. 0ases$

ell%pleaded complaint3 Rule

Gouisville v. Mottley '2@3 *4S p. >''ule of la!$ stating an anticipated federal defense in te complaint does not satisfy federal ?uestion.acts$ Mottleys ad a lifetime pass for te railroad as part of a settlement of accident. 0ongress "anned all

free passes "ecause of corruption in te railroad lo""ies. π sues for "reac of F, tried to get to

federal court "ecause #ne! tat B !ould claim te federal la! as a defense.Eolding$ !ll 8l!"#!# '(-8l"in *ul!$ federal aspect of complaint must "e part of su"stantive claim, and

not an anticipatory defense. & federal court only as jurisdiction if te case is one in !ic tefederal ?uestion is raised "y te A%s claim in a !ell+pleaded complaint. *A%s claim must "e a federalone. & !ell+pleaded complaint only tal#s a"out elements of te claim and doesn%t raise eHtradefenses, etc.

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=ote$ =eiter party raised te issue of su"ject matter jurisdiction courts can do tis on teir o!n. Tiscase means tat a case raising a federal defense "ut !it no federal claim cannot "e "rougt intofederal district court, even if "ot parties agree tat te federal ?uestion is te only disputed issuein te case.ederal Declaratory Judgment &ct$ !ell+pleaded complaint rule in reverse B can%t sue for

declaratory relief in federal court if A !ouldn%t ave ad jurisdiction to "ring in suit tere

originally

Sufficiency of the Federal 4uestion

Merrell Do! Parmaceuticals Inc. v. Tompson '23; *4S >'6ule of Ga!$ & complaint alleging a violation of federal statute as an element of a state cause of action is

not sufficient to esta"lis federal jurisdiction.acts$ A are suing B under common+la! *state actions of negligence, lia"ility, etc. 5ne count claimed a

violation of federal ood, Drug, and 0osmetic &ct. Nuestion is !eter presence of a federalissue in a state+created cause of action is sufficient to create federal jurisdiction. -ot plaintiff%sagree tat tere is no federal cause of action.

Eolding$ 05& ruled against A stating tat violation of D0& !as only one availa"le criteria for negligenceand tat rigt to relief did not depend necessarily on su"stantial ?uestion of federal la!. Supreme0ourt affirmed$ 8it !ould flout congressional intent to provide a private federal remedy for te

violation of a federal statute.9 =ote$ focus is !eter em"edded federal ?uestion is su"stantial ere rules tat it is not.Dissent$ Tere sould "e federal jurisdiction !enever a federal ?uestion is em"edded in a state cause of

action.

III. Di)!*$i+ 7u*i$#i'i(n

&. Source/ules'. &rticle III, sec. ($ 8controversies "et!een citiCens of different states/foreign su"jects9(. '))($

a. 0ontroversies "/t citiCens of different states "n# !en value > 6>,@@@

". & corporation a citiCen of t!o states$ incorporated and principal place of "usiness.

c. &n 1Hecutor is a citiCen of te state of te decedent.d. D0, Puerto ico and territories are vie!ed as separate states for diversity.

). Must ave '(-8l!! diversity of citiCensip If a citiCen from & sues "ot - and anoter citiCenof & no diversity

-. Defining citiCensipa. egular people$ citiCen of state of domicile, not necessarily residence. Lou #eep same citiCensip

until a ne! one is esta"lised "y intent. 0ildren #eep cit. of parents until act to set a ne! one up.If in city for '@ years "ec. of scool and jo"s, "ut not intend to ma#e it permanent, still a citiCen of 8ome9 state.

". 0orporations$ dual citiCensip in place of incorporation principal place of "usiness.c. =onincorporated organiCations$ eH. unions, curces, clu"s etc. considered citiCens in every state

!ere tere is a mem"er. So Teamsters !ould never "e a"le to file a diversity suit in fed court.d. 0lass actions$ use citiCensip of class representative

0. Main issuesa. istorical rationale$ to protect against prejudices in oter states !en state%s rigts reigned and to

promote a unified national economy. -ias not ma#e sense eH. even if sue =Ler in =E fed court,get a judge li#ely from =E !it a jury made up of =Eers.

". complete diversity rule$ not in 0onstitution, "ut set up under Marsall and not canged. 0an notave citiCens of te same state on opposite sides of te 8v.9, used to limit fed. jurisdiction, *eH. nosupplemental jurisdiction if destroy compete diversity

)@



c. domestic relations eHception$ Supreme 0ourt not allo! domestic cases into fed. court trougdiversity jurisdiction. rom :- and ecclesiastical courts, still true for divorce, alimony and cildcustody. 1Hceptions allo!ed for cild and seH a"use. ationale$ state courts ave specialiCedfamily courts to deal !/issues.

d. &mount in controversy$ > 6>F, not get "ogged do!n "y small potatoes. &ggregation of claims<

G!n!*"l *ul! i$ 3" !"'3 J in " #i)!*$i+ '"$! -u$ u$u"ll+ -!! 3! -ini-u- "-(un in

'(n*()!*$+. ' π !/several unrelated claims v. ' ∆ Les

( πs 8 related claims 8 Les, if one res *8common undivided interest9 or

8single indivisi"le arm9 *p.>(

( πs 8 unrelated claims 8 =o

' A v. (B + Depends, yes if B are commonly lia"le, oter!ise no *p.>(

IV. Su88l!-!n"l 7u*i$#i'i(n %"..". P!n#!n 7u*i$#i'i(n;

&. Intro

• Supplemental jurisdiction allo!s a claim !/out federal ?uestion or diversity into federal court

if it is related to te same case or controversy of a case already in federal court.

• Fey prases$ 4'(--(n nu'l!u$ ( (8!*"i)! "'4$"-! *"n$"'i(n (* (''u**!n'!

• An'ill"*+ ?u*i$#i'i(n$ once a federal court as jurisdiction over te main controversy, it also

ad jurisdiction to resolve closely connected claims tat defendants and tird parties neededto assert in order to protect teir interests completely *eH$ compulsory claims, cross+claims,claims "y intervenors of rigt, etc. refers to matters tat can only come in "y later additionof claims or parties

• P!n#"n: matters tat are, or at least could "e, stated in te original complaint

• P!n#"n8"*+ 'l"i-$: claims asserted "y additional plaintiffs or against additional

defendants *no clear rule as to !eter federal jurisdiction for tese claims

-. ules =>

a. &llo! supplemental jurisdiction over related claims *same case or controversy under &rticle III. ". =ot allo! supp. jur. for '))( diversity cases if destroy complete diversity n( ?u*i$#i'i(n

un#!* 'l"i-$ ,+ J against 8!*$(n$ -"#! 8"*+ ,+ Rul!$ =@ =9@ 20 (* 2 or ()!* 'l"i-$ by

8!*$(n$ ?(in!# ,+ Rul! =9@ (* in!*)!n(*$ un#!* Rul! 2 !en !ould "e inconsistent !it '))(. *5!en v. Froeger$ can%t add parties

c. Di$'*!i(n"*+ 8(!*, can decline if i. ne! state issueii. state issue is main claimiii. later dismiss all fed claimsiv. oter compelling reasonsXXX =ote$ includes claims involving joinder or intervention of additional parties *rules of supplemental jurisdiction applies

d. generally federal ?uestion cases

Owen v. Kroger *p. >2 '263 *4Sule of la!$ 0an%t add parties troug supplemental jurisdiction tat destroy '))( diversity. =onaming of ne! [s !o could not ave "een party in original suitacts$ Io!a sues =e"ras#a [7 [ impleads anoter Io!a [, !o Io!a tries to sue.Eolding$ 0ourt says tis is not allo!ed. =ot a"le to sue [ !om could not ave "een named as party in original suit. Discourages crafty s !o !ould sue [ !o !ould foreseea"ly "ring inoter [s from same state as =ote$ ');6*" codifies 5roger

)'



0. Main issues$a. ationale/policy$ conservation of judicial resources, fairness to parties, efficiency, convenience,

contrary policy discourage many federal claims "eing "rougt in federal courts. ". 5rigin$ rom "road interpretation of 8case9 in 8cases arising under const\9. 0ase includes

cluster of claims resulting from same transaction or occurrence.c. 0riteria$ !ere $u,$"ni"l !#!*"l i$$u! and$

' relationsip "/t state and federal claim so!s entire action comprises one constitutionalcase

( claims derive from same set of operational facts

) π !ould naturally try tem togeter if claims are considered !itout regard to state or

federal caracter.

d. Discretion$ not a π%s rigt.

D. 0ases$'. 4nited Mine Kor#ers v :i""s, '2;; *4S p. ())

ule of la!$ Ken π%s state and federal claims arise from '(--(n nu'l!u$ ( (8!*"i)! "', fed

courts ave po!er to ear all claims

acts$ π a super at a mine, prevented from !or#ing "y stri#ers, lost F, sued !or#ers on fed and

state claim.inding$ 0alled 8pendent jurisdiction9 "ecause "ot state and fed claims ang on same facts.

(. Strom"erg Metal Kor#s, Inc. v. Press Mecanical '22; *6t 0ir. p. >>(ule of la!$ Supplemental jurisdiction is 5F if claims are 8closely related9acts$ ( A file suit against single B. 5ne A meets jurisdictional minimum "ut te oter does not.

4nder '))6 does pendant+party jurisdiction allo! te court to ear a claim "y a party!ose loss does not meet te jurisdictional minimum<

Eolding$ 0laims arose out of same construction pro"lem so could "e "rougt togeter

). Meritcare v. St. Paul Mercury Insurance, '222 *)rd 0ir. p. >>ule of la!$ =o aggregation of claim amounts for purposes of supplemental jurisdiction * '))6

not meant to eHpand diversity jurisdiction, loo# to legislative intentacts$ As sougt to recovery from collapsed roof from insurance company, B denied claim, A

"rougt suit in state court, B removed on diversity grounds, 5ne A met minimum, oterdidn%t.

Eolding$ =o supplemental jurisdiction, =otes$ 0ourt eHplicitly rejected Strom"erg.

V. R!-()"l

&. Intro ∆ can remove case from state court to federal court i $"i$+ 8!*$(n"l ?u*i$#i'i(n "n# $u,?!'

-"!* ?u*i$#i'i(n %3!*!(*!@ =>>= "n# =>>2 g()!*n *!-()"l '"$!$;

'. one !ay move, cannot remove from fed to state courtfed judge can remand to state court, "ut not ∆%s coice

(. only ∆ can remove, π gets to ma#e te 'st forum coice, and tat%s it). all ∆%s must agree. removal limited to federal district court encompassing state court

eH. if in -roo#lyn, =L state court, can only remove to =L district court.>. ( eHceptions to su"ject matter jurisdiction rule in diversity cases

a. no removal if any of ∆%s from forum state

". 8 8 > ' year after filing

-. ules$ ==

)(



=eed personal jurisdiction and su"ject matter jurisdictionIf multiclaim case !/state and fed issues, district courts ave discretion to remove all, none, or just te

federal part.

=%,;$ Procedure for removal

• =otice of removal must "e filed "y B !itin )@ days

•& diversity case may not "e removed more tan ' year after commencement of te action.

0. ationale$

". 0oice of forum sould not "e left solely to π. B as as muc rigt to opt for federal forum if ave

su"ject matter jurisdiction

,. 1liminates opportunity for π to insulate self from a federal forum "y adding a creative state claim.

'. &gain, in #i)!*$i+ '"$!$ i ∆ i$ $u!# in 3(-! $"!@ 3!*! i$ n( (8i(n (* *!-()"l.

D. 0ases'. itcey v, 4pjon Drug 0o. '223 *2t 0ir. p. >>2

ule of la!$ Te B retains te rigt to remove for )@ days after notification, even if diversity caseand past one year.

acts$ A files suit in state court *already lost once in federal court, !ants to #eep in state court so

adds ( sam Bs to destroy diversity. !aited one year to notify B so tat !ouldn%t "ea"le to remove, B claimed tat sould "e a"le to remove !itin )@ days even tougdiversity case "ecause never notified of proceedings. 0ourt must s?uare te )@ dayallo!ance !it te ' year limit.

Eolding$ ule ';*" does not limit defendants in diversity cases from filing for removal even ifit is more tan one year after te commencement of te action.

=ote$ R!-!-,!*: '(u*$ 3" ,!gin i3 ?u*i$#i'i(n '"n l($! i@ ,u n! '(u*$ '"n g"in

?u*i$#i'i(n

(. Ganford v. Prince :eorge%s 0ounty (@@' *District 0ourt Maryland p. >;>ule of la!$ 4nder ''*c a B !o is named in a 8separate and independent9 state claim need

to not consent to removal of te entire action !en te claims against im are not su"jectto federal jurisdiction.

acts$ A is te passenger in a car accident. &fter te accident e is arrested and claims a"use "y police and violation civil rigts. iled claims against driver of te car *state claim and police officers *federal claim. Police filed for removal, "ut driver did not join in.

Eolding$ 0ourt decides to split te claims and removes te federal claims against te policeofficers and county to federal court, and leaves te claims against te driver in state court.uled tat under ''*c a B !o is named only in a separate and independent state la!claim need not remove or consent to removal. 0ourt ruled tat tere !as no 8commonnucleus of facts9 "et!een state and federal claims, and so it !as appropriate to removete federal claims and remand te state claims against te driver.

1. Eypos$

'. π *&la"ama v. ∆ *&la"ama in state court.

a. federal 'st &mendment claim ". state la! "reac of contract claim

emova"le< L1S$ tere is federal ?uestion jurisdiction !/supplemental jurisdiction on ".

(. π *&la. v. ∆ *&la.

a. federal 'st &mendment claim ". state 'st &mendment claim

))



emova"le< L1S$ analytically parallel to & eHcept te state and federal claims are virtuallyidentical. 4nder ''*c, !enever claim a is Zseparate and independent% from claim ",court as discretion on removal of claim ". 0onversely, if claim " is not Zseparate andindependent% from claim a, court must remove claim " if claim a is removed.

). π *&la. v. ∆ *&la.

a. federal '

st

&mendment claim ". state tort la! claim *e.g. slip and fall

emoval< 5nly on claim a. ederal court could not assert supplemental jurisdiction overclaim " so it can not "e removed along !it claim a.

. π *=L v. ∆ *IG

a. state la! claim

emova"le< If filed in =L state court, te case can "e removed "ecause of diverse parties. Ifte case is filed in IG state court, te case can not "e removed under te one eHception to

''*c. -ut, =L π could ave originally filed in Illinois federal court. Personal

jurisdiction restricts !ic federal courts can ear te case.

>. π *=L v. ∆' *IG ∆( *=L

a. state claim

emova"le< =5$ under te complete diversity rule. =ote$ Eere te IG defendant as norecourse against potential "ias in =L courts.

;. π *=L v. ∆' *IG

∆' *IG v. ∆( *=L so π *=L tries to "ring suit against ∆( *=L

a. state claim

emova"le< ederal court as jurisdiction over eac suit separately. Eo!ever, under ');6%s

rule against pendent parties, federal courts can%t ear case if it includes π *=L v. ∆(

*=L. =-$ π may "e a"le to defeat diversity jurisdiction "y suing ∆(, !ic reflects a "ias against diversity. KorldKide Vol#s!agen provides an eHample of tis #ind ofstrategic joinder.

VI. T3! E*i! P*(,l!-

&. Intro1rie doctrine only applies to diversity cases.Nuestion$ Keter federal or state la! applies.-lac# letter rule$ fed court applies state su"stantive la!

ed court may apply fed procedural la!Pro"lem$ no clear division "/! su"stantive and procedural, so need a "etter standard

-rief EistoryS!ift v. Tyson$ in cases !ere no controlling state statute in diversity actions, federal courtssould use 8general9 common la!1rie$ =o federal common la!, state la! includes common la!, follo! state su" and fed pro:uaranty Trust$ =o clear diff "/t su" and pro, if outcome determinative, follo! state-yrd$ Strong federal interest use fed la!Eanna$ 0P indicates strong fed interest, so use it

If no 0P, loo# at t!in aims of 1rie$ '. ∆ forum sopping (. airness

-. 0ase$ 1rie v. Tomp#ins '2)3 *4S p. (>'

)



ule of la!$ '632 ules Decision &ct *';>( applies state la!s to civil diversity cases. State la!includes "ot statutory and common la!.

acts$ π *P& it "y open door of train as !al# along trac#s. Sue ∆ *=L in =L fed. !ic as a

lo!er standard of negligence tan P&, !ere accident occurred. Nuestion$ apply P& la! orfederal common la!<

Eolding$ Tere is no general common la!, courts don%t ave te po!er to create one, only 0ongress

can. *5verrule S!ift =ote$ 1?ual protection pro"lem$ similar parties !/ same carges treated diff. depending on !ere tesuit is "rougt

0. Motivating actors of 1rie'. 0onstitutional allocation of po!er

T!o const. issuesa. 0ongress can%t specify state tort la! ". 0ourts can%t specify negligence standards, -4T 0ongress can

(. Judicial &dministrative 0oncernsIf not #no! !ic la! *state or fed !ill "e applied, unfair "ecause

a. e?ual protection discrimination ". uncertainty of applica"le la!, not #no! legal o"ligations "efore accidentc. opportunism for forum sopping

). esult$ T!in aims of 1rie$'. prevent forum sopping "y see#ing fed court to avoid state la!.

1 (. prevent unfair administration of la!s, #eep due process

2

. 0onflict of la! / 0oice of la! rules$ 1ac state determines !ic state%s la!s !ill "e follo!ed in a diversity suit.

Traditionally, used state !ere cause of action arose. &pply 05G rule of forum state to determine !ic state%s la! applies

(nd estatement$ apply la! of state !/greatest interest

• more fleHi"ility, less formality *FlaHon case

If state la! is unclear, federal judge can as# state court for clarity or ma#e "est guess. If

guess, fed ruling is te la! until state court or legislature fiHes it.

D. 1rie%s Gegacy

'. :uaranty Trust v. Lor# '2> *4S p. (;(ule of la!$ (u'(-! #!!*-in"i)! !$ If te coice "et!een state and federal la! is outcome

determinative ten te state la! sould "e applied.

acts$ π sue ∆ for "reac of trust, =L la! applies. &ccording to =L la!, statue of limitations as

eHpired. π claims tat statute of limitations is procedural, and according to 1rie, federal

procedural rules sould govern.Eolding$ Court says tat statute of limitations is su"stantive "ecause it protects ∆ from stale

claims and frees im from litigation. Justice ran#furter concludes tat 1rie%ssu"stance/procedural distinctions are artificial. :oal of 1rie is to ave same result!eter in state court or federal court. So set up outcome determinative test, and apply

state la! if determine te outcome of a diversity case. =otes$ eHample of non+outcome determinative$ siCe of paper need to file !/court

(. -yrd v. -lue idge '2>3 *4S p. (;6ule of la!$ $*(ng !#!*"l in!*!$/8(li'+ suc as 6t &mendment rigt to trial can prevail over

state la!.acts$ Fey issue is !eter -yrd gets a jury trial or a "enc ruling state la! says judge.

)>



inding$ Te federal court does not need to listen to state la! !en determining distri"ution of po!er "et!een judge and jury, federal courts are free to fasion teir o!n rules !enallocating decision+ma#ing po!ers "ecause too important to "e su"ject to vagaries ofstate la!s.

). Eanna v. Plumer '2;> *4S p. (6@ule of la!$ If tere is a !#!*"l *ul! (n 8(in "n# i$ )"li# i *u-8$ $"! *ul!$.acts$ 0ar accident, and ∆ !as served process according to 0P '*d*' *leave it at ouse

!/adult "ut state la! re?uires personal service. ∆ says tis is outcome determinative,and sould "e dismissed along :uaranty Trust, and not an over!elming federal interestli#e in -yrd *service of process not li#e trial "y jury

inding$ Justice Karren identified T!in &ims of 1rie'. prevent forum sopping

(. e?ual administration of la!, !ere similar πs treated differently depending on

!eter same action is filed in state or federal court.If an issue comes up tat does not affect one of tese t!o aims, follo! fed proceduralrules.Eere, fact tat tis is a 1D1&G ule of 0iv Pro indicates a strong federal interest.0reated in '2)3 "y te 4SS0 under te autority of te ules 1na"ling &ct in '2).

=otes$ Earlan%s concurrence$ simpler, as# do te rules affect people%s lives<If yes, follo! state la! * negligence if no follo! fed la! *service

1. Misc.

• -ecause state la! is to "e applied in diversity cases, federal courts do teir "est to follo! state

court decisions and state interpretations of state la!s ere te federal courts are "ound "y

state precedence, not federal precedence

• C!*ii'"i(n$ ena"les federal court to essentially !rite te state supreme court a letter as#ing

o! it !ould decide a particular ?uestion of state la!. Te state supreme court !ill eararguments from "ot sides and ten notify te federal court o! it !ould rule *tis is optionalfor fed court

• once in federal courts can%t appeal to state courts

. Eay%s oolproof metod for analyCing 1rie pro"lems

Step '$ Po!er from 0ongressIs a federal rule re?uired/autoriCed "y 0ongress<If =o, go to step (If Les$ Is te rule !/in te autority of 0ongress<

i.e. in &rticle I, sec. 3 or &rticle III to esta"lis and regulate courtsIf rule is constitutional, apply if If rule is unconstitutional, don%t *du0P%s, since !ritten "y 4SS0, ave not "een determined to "e unconst.

Step ($ Po!er from courts a"ility to govern itself Do te federal courts implicitly ave te po!er to promulgate rule "y virtue of grant of diversity jurisdiction<

&pply :uaranty Trust/-yrd/Eanna analysisIs it outcome determinative< If yes, apply state la!Is tere a strong federal interest< If yes, feds !in&re te t!in aims of 1rie violated< *forum sopping/e?ual admin

If no, can use fed la!.If relates to internal ouse#eeping/mecanisms of te court use -yrd to disregard state

la!, even if no 0P on point

:eneral Issues for analysis of any case$

);



'. Su"ject matter jurisdiction(. Personal Jurisdiction). ed or state la!. If state la!, !ic state<

1Hample$ M&π v M& ∆ and P& ∆ M& ∆ is travel agent

Suit for "reac of F in G P& ∆ isπ

%s "usiness partner

P& allo!s punitive damages in F casesM& and G do not allo! punitive damages for F

π "rings suit in P& federal court

'. SMJ$ not complete diversity "ec. of M& on "ot sides =eed a federal claim to get in court

(. PJ$ P& ∆ no pro"lem, "ec. a residentM& ∆$ need to #no! more, "ec. not from state, don%t #no! !ere served,

minimum contact related to cause of action etc.-ut if not contest PJ, it is !aived.

). If no PJ, M&B is #ic#ed out, lets assume trial is eld and π is guilty,

Kic la! to apply for damages<&ssuming no federal statute, loo# at t!in aims of 1rie

Prevention of vertical forum sopping favors using state la!airness in adjudication favors using state la!

FlaHon says use !atever state la! P& !ould useP& !ould apply G la! "ec. tat is !ere action occurredSo no punitive damages*&nd if no federal issue even after M& #ic#ed out, !ould ave "een dismissed "ec. not ave minimum amount in controversy