RULES
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1331-“arising under”
1332 -diversity jurisdiction
o (c)(1)-corporations as citizens of a state
 incorporated or principal place of business
1335-statutory interpleader
o establishes jurisdiction based on minimal diversity so long as there is diversity between
at least two adverse claimants and amount in controversy is greater than $500
o (a) $500 amount in controversy
 (1)minimal diversity requirement
o (b) action can be brought even if titles or claims of different claimants do not have
common origin, are not identical, but are adverse and independent of one another
1441- removal of civil actions
o (a)-general removal-original jurisdiction
o (b)-1332 removal
 if any joined defendants are residents of state in which action brought, case is
not removable under 1441
o (c)- if there is a 1331 claim and state claim, a case may still be removed to federal court
if one of the claims would have been able to be removed there; district court may
choose to sever the state claim and remand it
1367 –supplemental jurisdiction
o (a)-general supplemental-closely related claims to
 in any action where district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are so related that
they form part of the same case or controversy
 this includes claims that involve joinder or intervention of additional parties
o (b)-no supplemental for claims that have original jurisdiction solely based on 1332
 applies to closely related claims by impleaded parties (14), joinder (19) (20), or
parties joinder by 24
o (c)-a few ways to deny supplemental over a claim under (a)
1391-venue
o (a)(1) deals with civil actions brought in district courts
o (2) shall be decided regardless of whether local or transitory in nature
o (b)-general-where a civil action may be brought
 (1)-judicial district of any defendant
 (2)-district where large part of cause of action or property involved with cause
of action is located OR
 (3)- if we may not bring in (1) or (2), then any court that has personal
jurisdiction over defendant
o (c)-residency
 (1)-party resides in any judicial district where domiciled
 (3)-foreign defendants may be sued in any judicial district
o (d)-corporations in states with multiple districts
 any venue/district suffices if there is personal jurisdiction over corporation
(most significant contacts of district=best)
o (f)-foreign defendants
1397-venue for interpleader
o actions of 1335 interpleaders may be brought in the judicial district in which one or
more of the claimants reside
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1404 –change of venue-based on convenience
o (a)-general
 action may be transferred to any venue in where it may have been brought or
which parties have consented
 NOTE: this is based on convenience of venue
o (b)-action may be transferred by court’s discretion to any other division in same district
upon consent or motion
o NOTE: law of transferor forum applies (Van Dusen) (Ferens)
1406- cure or waiver of defects-remedies for improper venue
o (a) court can dismiss or transfer case filed in wrong division or district court to any
other court in which it could have been brought. NOTE: transfer under 1406= law of
transferee forum applies
o NOTE: this is for transfer to appropriate venue
o (b) court’s exercise of jurisdiction is valid if party does not bring timely and sufficient
objection to the venue (under 12(b)(3))?
o (c) “district” entails territorial jurisdiction of each court (Guam, Mariana Islands, and
Virgin islands included)
1441
1738-full faith and credit clause
2361- process and procedure
o once a statutory impleader is commenced (1335), the court may restrict all claimants
from starting or continuing any action that would affect the stake, and discharge the
stakeholder from liability-wikipedia
o service of process proper anywhere in US for interpleader-court may enjoin other
proceedings and make appropriate orders to enforce its judgment
o aka allows injunctive relief with respect to COLLATERAL actions (1335) involving
money or intending to be filed. We are enjoining further prosecution of anything else
that is going on.
 This is because we don’t want other actions to come to judgment before 1335
actions because we would have to give them full faith and credit
 Can also get injunctive under 2361 with a 1332 + 22 interpleader
4-service of process –(pair (k) with 2361 when 1335 case)
o (a)-contents; amendments
o (c)-service
 (1)-summons + complaint
 (2)-any person at least 18 years old and not a party may serve the summons and
complaint
o (d)-defendant may waive service of summons
o (e)-serving an individual within a judicial district of the US-cant be minor, incompetent,
or person who filed a er
 (1)-follows state law for how to serve or
 (2)
 delivering copy of summons and of complaint to individual personally
 leaving company at individual’s place of dwelling or usual place of abode
with someone of suitable age and discretion who resides there
 delivering copies to agents authorized to receive service of process
o (f)-serving an individual in a foreign country
o (g)-serving a minor or incompetent person
o (h)-serving a corporation, partnership, or corporation
o (j)-serving a foreign, state, or local government
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o (k)-territorial limits of effective service (basically properly serving process gains
jurisdiction over a person once other jurisdictional requirements are met)
 generally, serving a summons or filing a waiver of service establishes personal
jurisdiction over D:
 (a) who is subject to the jurisdiction of a court of general jurisdiction in
the state where district is located
 (b) who is joined under 14 or 19 and is served within a judicial district of
US and not more than 100 miles from where summons was issued
 (c) when authorized by a federal statute
o (m)-time limit for service
o (n)-asserting jurisdiction over property or assets
12
o see elaboration below
o (a)-defendants must serve a responsive pleading within 21 days of being served
summons and complaint
o (b)-see 7 ways (below) to make a motion (defense) to the complaint/litigation against
them. Must be made in responsive pleading if required and before pleading. (special
appearance?)Otherwise can be asserted in pre-trial motion. If no responsive pleading is
needed, then they may be asserted at trial. May be joined together
o (g)- you can join any motions together. Motions MUST be made together at same time if
possible unless 12(h)(3) exception
o (h)- (1)- waiving and preserving certain defenses-(more elaboration below) defenses 25 are waived when omitting it from a motion (12(g)(2)) or failing to make it by
motion/or include in responsive pleading
 (2)-all other defenses (not 2-5?) may be raised in any pleading allowed under
7(a), motion under 12(c), or at trial
 (3)-lack of subject-matter jurisdiction= court must dismiss action
13
o (a)-compulsory counterclaim –
 (1)related counterclaims must be stated at time of pleading
 (a) claim must arise from same transaction or occurrence that is subject
matter of opposing party’s claim
 (b) cant add another party over whom court doesn’t have jurisdiction
 (2) exceptions –don’t need to state claim if..
 (a) when action was commenced, the claim was subject of another
pleading action OR
 (b) opposing party sued on claim by attachment so there is no personal
jurisdiction over pleader on claim, and pleader asserts no counter claim
o (b)-permissive counterclaim pleading may state as a counterclaim against opposing party that is not
compulsory
o (g)-crossclaim against a coparty-pleading may assert a crossclaim against a copraty so
long as claim arises out of same subject as original action/counterclaim
 D may also file 13(a) or (b) counterclaim against crossclaim to co-party
 After filing 13(g), D may file other unrelated claims against co-party under 18
o (h) additional parties brought in by 13(a) must satisfy rules of joinder under 19 and
20(a)..aka there must be relationship between all parties and cause of action
14-impleading-generally any claims from P to 3rd party D or counterclaims cross claims, etc.
from 3rd party D must be related (arising out of same transaction)
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o (a)-when defendant may bring in 3rd party defendant-defendant must get court’s
permission if impleading more than 14 days after serving its original answer
o (b)-3rd party’s claims and defenses-NOT ON EXAM
o NOTE: you must establish some kind of relationship between 3rd party P and 3rd party D
in order to implead. Aka what is 3rd party P’s claim against 3rd party D
18-joinder of claims
o (a)-general
 a party asserting a claim, counterclaim, crossclaim, or third-party claim may join,
as independent or alternative claims, as many claims as it has against an
opposing party
o (b)-joinder of contingent claims
 a claim may be joined even if it is contingent on the disposition of the other
19- persons to be joined –as long as court has subject-matter jurisdiction over person-closest
to mandatory joinder
o (a)
 (1)-required party
 (a) in person’s absence, the court cannot accord complete relief among
existing parties OR
 (b) that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person’s absence may
o (1) impair person’s ability to protect the interest OR
o (2) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of
interest
 (2)-court may order a required party be joined
 (3)-if joined party objects to venue and joinder would make venue improper, the
court must dismiss that party
o NOTE: failure to join 19 party can be raised under r12(b)(7)
o (b)
 if party required to be joined cannot be joined, the court must take into account
certain factors to decide whether or not this party should be dismissed
20-permissive joinder of parties-court may order to split parties into separate actions to avoid
embarrassment, delay, expense, prejudice, etc.
o (a)-there MUST be relationship between cause of action and all parties to satisfy rule
20(a)
 (1)-plaintiffs
 if they jointly assert right to relief arising out of the same transaction OR
 any question of law or fact common to all plaintiffs will arise in the action
(same nucleus of fact)
 (2)-defendants
 if any right to relief is asserted against them jointly with respect to the
same transaction AND
 any question of law or fact common to all defendants will arise in the
action
 (3)-extent of relief-plaintiffs or defendants relief need not be concerned with the
entire relief
22-interpleader
o (a)
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o (b)
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(1)by a plaintiff- persons with claims that may expose P to double or multiple
liability may be joined as D’s and required to interplead. This is proper even
though..
 (a) claims of several claimants lack common origin and are independent
or adverse rather than identical OR
 (b) plaintiff denies liability in whole or in part to any or all of the
claimants
(2)by a defendant –D exposed to similar liability may seek interpleader through
a crossclaim or counterclaim
doesn’t limit joinder of parties under 20
this remedy is to be seen as additional but not to supersede or limit remedy
under 1335, 1397, and 2361. Actions under those 3 must be conducted under
I. Jurisdiction
a. Subject-Matter-Article III mandates there will be a supreme court and that
we may exercise subject-matter jurisdiction over a case arising under federal law
(1331-accepting invitation in constitution to address issues arising under
constitution) or between diverse parties (1332). Any not enumerated must be
brought in state court
i. Diversity-1332-we want to avoid bias by certain state courts when
hearing cases involving non-residents so federal courts can hear cases in
which there is complete diversity among the parties
ii. Diversity-1335(a)(1)(interpleaders)-requirement of
minimal diversity –for efficiencies sake, we want to litigate with parties
at the same time and block against collateral actions
1. Citizenship
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Individuals
o Have domicile in the state
 Domicile= has physical residence in a state and intent to
remain there indefinitely
Corporations are considered to be “resident of a state” if
o They are incorporated there OR
o It is their principal place of business (WHAT CASE?)o (can have citizenship in two places)
2. AND Amount in Controversy
o Above $75,000 in controversy for 1332
o Above $500 in controversy for 1335
3. Exceptions(1332)
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Limited exceptions specifically created by congress
o Unincorporated associates (unions)= citizens of every state where
has members
o Statutory impleaders: minimal diversity requirement
o Claims covered by supplemental jurisdiction, like those brought by
third party defendants. In class actions, only citizenship of
representatives need to be diverse
iii. Federal Question-1331-federal court should be able to hear cases that
involve the application of federal law
1. Well-Pleaded Complaint
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The complaint must arise under federal law
o Federal question must appear on the face of the plaintiff’s
complaint. Elements of the claim and nothing more
 Merrel Dow Pharmaceuticals v. Thompson
 In a mixed complaint- (federal and state), federal
question jurisdiction exists if federal claim is an
essential element
o NO anticipatory pleading
 Federal law MUST give rise to cause of action
 Jurisdiction must apply at the time of filing (face of
complaint), can’t surround what the defendant MAY do-like
a defense
 Federal defenses and counter claims are not sufficient to
have subject-matter jurisdiction or suffice for purposes of
removal to federal court
 Smith v. Kansas City
iv. Supplemental
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NOTE: if there is an independent basis for jurisdiction-aka diversity, DO NOT
address supplemental jurisdiction
o If we are bringing in a third party defendant under 14(a), and they are
diverse then we are dealing 1332 not 1367
Federal rules of joinder are very generous because we want to get as much
under one tent at one time
Expands subject matter jurisdiction beyond what it was
1367 (a)-Even if a counter claim (13(a)) is a state claim and it is brought in
an action involving a federal claim (1331) then we may join the claims for
efficiency under 1367(a)
o Federal jurisdiction continues and also applies with respect to the
joint claim
o Also applies to 13(g) cross-claim
 Note that without 1367….cross-claims NEED to have original
basis for jx. Aka without 1367, if the two D’s aren’t diverse or
the cross-claim isn’t a federal question, then there is no jx over
the cross-claim whatsoever
o Also applies to 14(a) impleading of third party defendant –so long as
third-party claim closely related
o Also applies to joinders-19,20,24
o Also 13(a) and (b) counterclaims that don’t arise out of same
transaction but are so closely related
1367(b) takes away basis of supplemental jurisdiction if it is solely based on
1332 if state claim is brought by plaintiffs!
o (3) DOES NOT apply to clams by plaintiffs against people made
defendants under 14(a)
o 3rd party defendant may file claim against plaintiff under 14(a) if only
1332
o IF there is a case involving 1332 AND 1331-then 1367(b) does not
preclude the possibility of bringing in the supplemental state claim
o Strawberry v. Curties-required complete diversity
b. Personal-court will render a judgment binding on the plaintiff who chose to
acquiesce to jurisdiction by filing. The defendant must be served proper service of
process to begin looking at whether there is personal jurisdiction
 You can serve jurisdiction over a
o Resident
o Present non-resident
o Absent non-resident that has minimum contacts with the forum
state-purposeful availment (test viewed in light of all attendant
circumstances)
i. Traditional Basis
1. Consent
o Implied
o Hess v. Palowski
 Court views that contractual forum selection clause is not
unconstitutional if reasonable
o Express
o Carnival Cruise Lines
 Arbitration clause to litigate in Florida
 Whole case examines whether the chosen forum is
reasonable
 Not unusual/unreasonable to litigate in FL-the cause of
action did not take place in home state of P and Carnival
has an interest in keeping litigation in FL due to being
incorporated in there and being a large corp. with many
litigations
 Exercise of jurisdiction can be EXPRESSLY consented to
2. Domicile
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Domicile is like general jurisdiction which also applies to corporations (Rule
1332 says domicile of corporations = principal place of business or where
incorporated). Permanent establishment + intent to stay
i. Mas v. Perry
1. Domicile= the place of “his true, fixed, and permanent
home and principal establishment, and to which he has
the intention of returning whenever he is absent
therefrom.”
2. Residency is not enough –need intention aspect
ii. Milliken v. Meyer-domicile rule
1. Domicile alone is enough to exercise jurisdiction over
someone
3. Physical Presence
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Quasi in rem jurisdiction-still must be viewed under international shoe
o Harris v. Balk-overturned below
 Quasi in rem jurisdiction
 Jurisdiction over the property, not the person of balk
Applying the rule that the debt follows the debtor, wherever
Harris is located is whether the debt of balk is located, and is
owed to Epstein
 Shaffer v. Heitner
o We still have to look at due process when quasi in rem
o No quasi in rem or in rem jurisdiction would be constitutional if
the international shoe concepts were not applied-contacts must be
sufficient to satisfy international shoe
o Quasi in rem juris may be used only if the person whose property
is attached and th state is sufficient to satisfy the min contacts test
of international show
o The test here does not deal with person jurisdiction, contacts
between defendant and forum satisfies international shoe
 Every state decides what constitutes sufficient contacts to
exercise jurisdiction
 Long arm statute
o Shaffer v. heitner addresses physical presence of property of a person
but says that is it not fair on it’s own (overturns Harris v. Balk)
McArthur
o Physical presence, no matter how transient is sufficient
o Physical presence is sufficient if non-resident is present without any
affiliating circumstances
o If he were absent we would need to look at international shoe
Burnham-upholds McArthur
o Non-resident who is personally served with process while
temporarily in that state is subject to jurisdiction by the state court in
a suit unrelated to his/her activities in the state
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ii. Modern Basis
1. Minimum Contacts-Cases
a. International Shoe
i. Does the defendant have such minimum contacts so that would
justify the exercise of jurisdiction in personam so as to no
comport with traditional notions of fair play and substantial
justice
1. Continuous and systematic activity
a. Perkins v. Benguet-also deals with systematic
and continuous (only general jurisdiction case;
acts like a duck)
b. Hanson v. Denckla
i. Was the contact purposeful
ii. The contacts were brought about for the unilateral activity of
the party and was not found to be purposeful
c. Hawkins v. Mcgee
i. Although one contact, because D initiated contact it may be
substantial enough to allow jurisdiction
ii. In both international shoe and mcgee, the direction of
solicitation was on the part of the defendant and it displays
purposeful availment although the contact is very different
d. WWVW
i. We used to rely on foreseeability of being sued in the past
cases, and this may have loomed much larger than courts
intended
ii. We will give the question of foreseeability to the plaintiff and
although relevant, foreseeability BY ITSELF IS NOT ENOUGH,
there must be something else
iii. The courts were trying too hard to find jurisdiction
iv. No interest of state of Oklahoma to litigate against NY
defendant and provide forum
v. Justice doesn’t demand exercise of jurisdiction
e. Asahi
i. Substantial amount of product of foreign defendant comes into
CA
ii. We would normally require much more of a contact
iii. CA does not have an interest in hosting a case involving a
Japanese v. Taiwanese company even though cause of action in
CA
2.
a. Minimum Contacts Test –International Shoe
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1. Did the cause of action arise in the forum (contacts arise from
cause of action)?
2. What is the quality nature of the contacts?
o General substantial contacts-Milliken v. Meyer
o Systematic and continuous-general jurisdiction-Perkins v.
Benguet
o Continuous but limited- Burger King
o One substantial –Hawkins v. McGee
The Shoe Spectrum:
General
Decreasing contacts
Increasing contacts
|
no
casual or single, related continuous
|
substantial
contacts
isolated
act
but limited
| or pervasive
|_____|_________|__________|_____________|________|________|_____|
no
no
specific
specific
|
general
jurisdiction jurisdiction jurisdiction jurisdiction
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3. Did D purposefully avail themselves to the laws of the forum
state?
o Direction of solicitation is by D
 Hawkins v. McGee, International Shoe, Hanson v.
Denckla--(not directed toward forum)
o Is the exercise of jurisdiction over D foreseeable enough so
as to give the forum state an interest is hearing the case? –
mere foreseeability is not enough on its own
 Alludes to purposeful availment and intent of parties
to involve selves in the forum state
 Stream of commerce-foreseeability in corporations
 WWVW, Asahi
4. Would it comport with traditional notions of fair play and
substantial justice to exercise jurisdiction over the defendant?
Burden on defendant
Interest of forum state
Plaintiffs interest in obtaining conven and effec relief
Interstate judicial interest in efficient resolution and
substantive social policies
o International Shoe
o Buckeye Boiler-couldn’t find jurisdiction at first but
because of risk of inconsistent judgments/necessity of
needing to litigate and compensate P, exercise of
jurisdiction is granted (balanced against non convenience
and contacts)
o
o
o
o
3. Long-Arm Statutes
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Each state has own statute to permit service of process over nonresidents
Bensusan-Before we look at minimum contacts, jurisdiction must first
comply with the forum state’s long arm statute
o if minimum contacts violate long arm statute then there is no
jurisdiction
Omni Capital v. Rudolf-state long arm statute or congressional
authority authorizes service of process
c. Service of Process
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Proper service of process must be served to a defendant in order for jurisdiction to
be exercised over their person. Even if personal/subject-matter jurisdiction exists,
without correct service of process this is irrelevant
There are state statutes and federal rules relating to service of process
o Rule 4 (see above)
o Rule 12 deals with proper responsive pleading/trial motion by defendant
o Rule 2361 for interpleaders
 Rule 4(k)(1)(c) and 2361- You get nationwide service of process (as
long as these people are anywhere in the U.S., there is jx over their
person)-STATUTORY IMPLEADERS ONLY
 Rule 4(k)(1)(c) + state long arm statute-proper service of process
Rule interpleaders, and normal service of process in general
o
d. Venue
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1391 + 1404 (a) for forum non conveniens
o 1404(a)
 allows transfer of one District Court to another as long as we are
doing it in the interest of justice and for the convenience of the parties
so long as the action could have originally been filed there
 we look at 1391 to see if proper venue
o if convenient and justice served we will allow the
transfer
o Piper-speaks to convenience for choosing venue
o Van Dusen-It is the law of the transferor forum that should follow the case
should it be transferred, so long as the motion is defendant initiated
o Ferens v. John Deere-partially upholds VanDusen
Transferee court must apply the substantive law (i.e. statute of
limitations) of the transferor court regardless of whether the transfer
was made by the plaintiff or by the defendant
 Entire justice system will benefit from this
 If it is more convenient, we can disregard the idea of forum shopping
o Based on common law idea of Forum Non Conveniens-we can transfer based
on convenience so long as transferee venue and jurisdiction are proper (see
1391 or 1397 to see what is proper)
1406 –improper venue (challenged under 12(b)(3))
o (a)can either dismiss or transfer to appropriate venue
o As opposed to 1404, law of transferee forum applies for 1406 transfers
o (b) if objection not made in reasonable time then court may litigate in
current venue?
o NOTE: If court must be transferred for improper venue, you MUST us 1406not 1404
1391 classifies venues generally
o proper place of residence of the D, where a significant amount of events
happened, residence of any person involved in the litigation
1397-proper venue for interpleaders= in place of residence of any one of adverse
parties
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e. Removal
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f.
1441- Any case that could have originally been filed in federal court can be removed
there
o 1441 (a)
 Federal defense or counter claim that brings up a federal question is
not sufficient for removal, it must arise on the face of the complaint
(1441(a))
o 1441(b)
 action that is removable solely on the basis of diversity (1332) may
not be removed if any parties in interest properly joined as
defendants is a citizen of the state in which such action is
brought-aka cant remove away from where the D is if we are already
there
o Caterpillar v. Williams federal question at issue but does not appear on the face of the
complaint but cam up as federal defense
 cant have federal defense for use as a basis of removal
o pre-emption
 if federal claim as a defense to a state claim is extremely
extraordinary, it may pre-empt the state claim and the case can be
removed
Waiver
i. Different ways in which parties may waive their rights or their immunity
1. Aka foreign sovereigns usually immune to litigation unless waive their right
through entering into commerce, etc. (1330)
2. 12(g)-bar against serial 12(b) motion defenses. Once any12(b) asserted at
pre-trial motion, responsive pleading, or trial, then, any 2-5 become
barred/waived for rest of litigation
3. there are express waivers-aka defendant waiving service of summons in
complicated situations, or express consent to personal jurisdiction cases
(Carnival Cruise Lines)
II. Erie-we want to know whether the federal government had any interest in hearing
the case constitutionally
o A. Erie Cases
o ERIE v. TOMPKINS
o If no federal interest, there can be no federal law on point
o Two questions to ask
 Isolating the question, the federal court looks and finds about there is
no federal law in that question-is there any federal law on point?
 CAN there be any federal law on point?
 Found to be NO in Erie, law of state applied
o GUARANTY TRUST v. YORK
o It is the law of the state in diversity cases that should govern the law with
regard to substantive law because federal courts should have the same
outcome as state courts
o No federal law on point
o Limitations on actions
 Outcome determinative test
 Outcome must be determined according to the laws of the state
o Found statute of limitations to be more likely than not to be substantive
o REAGAN
o Any rule of procedure can have substantive impact
o Statute of limitations: battle between Rule 3 and state statute of limitations
 Rule 3 is on point but it CANNOT apply
 We should use state law
 We recognize that even though there is a federal law on point, there
CANNOT be a federal law on point here
 It is applicable ant not intended to control this issue
 Beyond the scope of rule enabling legislation
o SEABOCK v. WILSON
o When evaluating FRCP on point we must see if whether it regulates more
than procedure
o If rule 35 regulates more than procedure it violates the rule enabling act and
is therefore unconstitutional
o Rule: A rule is procedural if indeed it governs procedure
o Rule 35 was found constitutional?
o PALMER v. HOFFMAN
o State law puts case in plaintiff’s corner for negligence yet Rule 8© seems to
place this burden of contributory negligence in the defendant’s corner by
raising a defense
o We are going o keep rule 8© procedural because a defendant has to plead it
but it does not relieve the plaintiff from having to prove they were not
contributorily negligent
o Court is saying that however you read rule 8© it cannot be seen as so broad
as to relieve the plaintiff o the burden of proving
o Like in REAGEN, it looks like the rule may be applied on its face yet if we
apply it, it is going to have an effect on our outcome
If we view outcome determinative as anything having an impact on
the outcome, then we must take state law
 The rule is NOT invalid it just doesn’t apply
 It usually just applies with problems of federal law, not
problems of the state
BYRD v. BLUERIDGE
o If there is a federal law that is directly on point, there really is no balancing
test to be applied because it applies it as written
o Conflict of common law, then the court can decide for itself whether federal
interests trump those of the state
HANNA v. PLUMER
o We recognize that application of federal law will have a direct effect on the
outcome
o We look at state statute of limitations and see what is needed to toll it
o We come out in favor of federal law
o We understood that in Reagan the court found a federal interest in that point,
yet here we change our question by finding how to toll statute of limitations
by serving process properly
 How do you properly serve with process
 There is conflict of law between federal and state law on this
point
 We find that there is more of a federal interest in this
 Could we have said that the federal law is inapplicable,
theoretically yes, but it seems to be a head on rule that applies
 The outcome is determined by federal law irrespective of the
impact of the outcome
o We apply federal law because of the clear federal law and interest even
though it seems clear that there would be an impact on outcome
o We can distinguish this case because courts have found a legitimate federal
interest, where all preceding cases they didn’t
o We apply outcome determination with the twin aims of Erie in mind
 Forum shopping
 We don’t find a big issue with forum shopping in this case
 Uniformity
GASPERINI
o The state has interest with respect to the substantive question and federal
has the interest with respect to the procedural aspect
o So this is an interest analysis
o Holding: state law?
SEMTEK
o Dealing with res judicata and statute of limitations
o Does the federal government have the authority under the constitution to
enforce the consequences of the statute of limitations?
o No, this is a state interest
o Federal courts would have very little interest in applying this issue that has a
state interest

o
o
o
o
 B. Attack on Erie
o (see attached charts)
 C. Reverse Erie
III. Joinder
a. Joinder of claims

Rule 18-(see above)
o Many claims may be joined against an opposing party
o Note that after bringing in crossclaims, counterclaims, etc. that must be
related to case or controversy you can then attach unrelated claims to
those with 18
o ALSO: we can join several unrelated clams under 18-yet of these claims
are state+ federal then state claims needed to be related to cause of action
in order for 1367 to bring them in
 SO these unrelated claims are barred unless we have some
independent basis for jx for them
b. Joinder of parties –plaintiffs and defendants



Rule 19-required joinder (see above)
1. Entire relief cannot be granted without joinder of parties
2. Failure to join parties under 19= defense 12(b)(7)
a. 19 is the requirement and 12 is objection to party who fails to meet
requirement
Rule 20-permissive joinder (see above)
1. (a) Cause of action and relief is related to party to be joined so they be added
2. Plaintiffs may be joined against multiple defendants so long as arises out of
same issue
3. Joinder is usually joining parties that are liable for the same thing or different
things, but in no way is there a 3rd party D liable to another D. In
Rule 14-impleaders (see above)
1. D may join someone under 14(a) who may be liable to 3rd party plaintiff
a. Need relation between 3rd party D and 3rd party P
b. Important!!!: D must be able to say, “if I am liable to the P, then the
third party is liable to me”
c. MUCH different than joinder
d. If there is a belief + some evidence that other party is liable then he
probably cant be impleaded; however if the party asserting impleader
isn’t sure who is liable-a maybe situation-then we probably can use
impleader to bring in a third party D
IV. Res Judicata-notions of bar and merger
o Three factors
o Earlier judgment is valid and considered a judgment on the merits
o The cases are between the same parties
o The same cause of action is involved in the later lawsuit
o Federated Department Stores v. Moitie-“a final judgment on the merits of an action
precludes the parties of their privies from relitigating issues that were or could have
been raised in that action”
o Re s judicata is not altered by the fact that judgment may have been wrong or
subsequently overturned –even to “uphold justice”. It is more important to
uphold tradition of res judicata to uphold justice
o The parties time to appeal had passed so they try to use collateral attack; direct
attack= appealing
o
o
o
o
o Past rulings are not determinative, just suggestive
Collateral estoppel/issue preclusion
o Is there an identical issue?
o Was the final judgment in the first case on the merits?
o Is the person against whom collateral estoppel asserted a party to the first action
or in privity?
EXAMPLE
o res judicata example: matt and I both in car when a cause of action occurs….case
comes to judgment then matt cant come and bring in another claim with that
same cause of action aka he cant be like your negligence happened here and then
also in a different suit say D fucked up our tire
o Issue preclusion: matt lost on the negligence claim for the car accident, I cant
come sue D for negligence too because same thing
Claim preclusion (more notes on res judicata + examples)
o Doctrine of bar and merger
o Hypo
 P v. Djudgment for P
 Cause of action is MERGED In the judgment and any further litigation on
this cause of action is barred by res judicata
 Doctrine of bar and merger= claim is precluded from further litigation
because it is res judicata
Res judicata works with respect to claims that were:
o 1) litigated OR
o 2) should have been litigated but were not
 i.e.
 13(a) compulsory counterclaim
 i.e.
 P v. D 1331 federal cause of action
 P v. D also has a state cause of action that arises from same event
that gave rise to 1331 claim
 If the federal and the state claim arose from the same issue then
we can say that if P FAILED to file state claim at time of federal
claim then he essentially split his cause of action
 He should have litigated but he didn’t so it is res judicata
 He may argue that he couldn’t because it was a state claim,
however, he definitely could of under 1367 so he unfortunately
split his cause of action here
 i.e.
 P 1 and P 2 (joinder properly under 20) v. D -> motion for D
 There is a judgment for D on 12(b)(6)
 P 1 appeals and P 2 doesn’t
 So appellate court concludes that P1 has set forth a claim for
which res can be granted so it may move forward
 P2 sees this and is like oh I want to appeal to then
o May be do this? NO, if time for appeal is gone
o Everyone entitled to day in court, but he did not take this
opportunity…he let the judgment become final
o You can always appeal within time and possibly get the
judgment reversed
 Federal Department Store v. Montie

*NOTE: 12(b)(6) is considered a judgment on the merits
o which are judgments are not on the merits??
o Collateral Estoppel-person is estopped from relitigating in a collateral lawsuit- this is an
extension of the res judicata effect but in collateral litigation
o Ie.
 1. P1 v. D-> judgment for P->res judicata
 2. P2 v. D (same case or controversy)
 same issue from case 1 for negligence
 the person who I am trying to foreclose from action has already
been a party to this case? So has not further right to litigate this
issue. IF lawsuit 1 is collateral to 2, in the way that they already
had opportunity to litigate, then he should be estopped from doing
so now
 Look at
o 1) same issue
 it is considered same issue if:
 (a) important or central to first litigation
 (b) was actually litigated AND
o If the case is NOT litigated but just
responded to then it is not barred by
collateral estoppel???
 An admission is not considered
litigated
 (c)was decided
o 2) final judgment given on the merits
o 3) same party
Rule 12

Every defense must be set forth in a responsive pleading EXCEPT the following 7 may be at the wish
of the pleader set forth by motion without pleading
 MUST BE DONE BEFORE YOU ACTUALLY PLEAD. If no responsive pleading allowed/required
then can be asserted at trial
 12(g) is a bar against serial motions
 defenses may be waived by failure to include in a pre-answer motion
o RULE (2)-(5)
o If no pre-answer motion then don’t have to worry about 12(g)
o Whenever raising one motion, have to say ALL of them at same time-2-5. 1,6,7
can be asserted at any time. Yet, if 1,6,7 made before then 2-5 must be brought
then as well (12(g))
o (1) subject-matter jurisdiction
 always preserved by 12(h)(3), says case must be dismissed if lacking
 only motion that may be raised by the court or by a party
o (2) personal jurisdiction
 12(h)(1) preserves a dismissal because of lack of personal jurisdiction
 not having been preserved, then may not raise 12(b)(2) by motion
because barred by 12(g)
o (3) improper venue
 case may be dismissed or transferred
 under statute 1406 (cures improper venue)




o the law of the transferor forum only applies to 1404(a)
trasfers, not 1406
 1406 transfers applies law of the new forum?
o (4) insufficient process
o (5) insufficient service of process
o (6) failure to state a claim upon which relief can be granted –i.e. statute of
limitations, summary judgment, etc.
 12(h)(2)
 see more in “Pleadings” below (Access Now)
 If P cant show they are entitled to recover in pleadings, then
12(b)(6) dismisses case
o (7) failure to join a party under Rule 19
 12(h)(2)
12(g) is a bar against serial motions-if it was available to have been brought before,
then it should have been (unless the ones preserved by 12(h)
12(h)(1) waives 12(b)(2-5)-if question is asking what is waived then look to this
rule!!!!
WHEN TO RAISE 12
o If NO 12’s raised in pre-answer motion, then any may be asserted in
responsive pleading. Once asserted 12(b)(2-5) are waived. NOTE: if make
responsive pleading without putting in a 12 and there is NO pre-answer
motion with a 12 then you may amend the responsive pleading within the
statutory time (21 days) to include the 12
12(e)-with regard to pleadings- wants more concise and direct statement (look at
exact words in the rule)
o 12(b)(6) is not AN OPTION HERE UNDER 12(e)-we can only strike, etc.
 this means your motion hasn’t been plead
 he has a claim that D understands but however he doesn’t know how
to answer
 he shoud have brought 12(b0)(6) in first place if he didn’t see a claim
 12(b)(6) and e CANNOT GO TOGETHER because e in and of itself says
that you understand the claim but want to be more definite