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Civil Procedure – Spring 2001
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Personal Jurisdiction (first, is there a statute – then constitution/due process)
a. In Personam Jurisdiction – power over the D.
i. Constitutional/Due Process (don’t give a historical analysis!!)
1. Pennoyer v. Neff (1877) – state has power over everything
w/n its boundaries. (NOTE: to gain quasi in rem
jurisdiction over the property of a D, the property must be
legally attached at the outset of the suit – this serves as
constructive notice and gives the state court the power to
dispose of the attached land (nothing in excess of the
judgment) in favor of the P) Four traditional basis:
a. PRESENCE -- D is served with process in the
forum.
i. Of the Person
ii. Of the Property
b. D is domiciled in the forum. (Gives general
jurisdiction)
c. CONSENT – if you show up in court, you consent,
but you can waive personal jurisdiction.
i. Courts have expanded these traditional
notions. See Hess v. Palowski.
ii. Hess got out of the state before they served
process on him. Massachusetts had a statute
– if you operate a motor vehicle, you are
appointing a state office for service of
process.
1. Upheld jurisdiction and is consistent
with Pennoyer – agent in the state.
2. Expand the idea of consent – IMPLY
CONSENT – assume that you have
consented to in personam
jurisdiction.
d. FULL FAITH AND CREDIT – only judgment
which have jurisdiction will be recognized.
2. Int’L Shoe – the Court no longer purports to expand the
traditional basis. Time for a different formulation.
a. If D has minimum contacts so as not to offend
traditional notions of fair play and substantial
justice.
b. You can get in personam w/o serving the D in the
forum – so long as the D has minimum contacts.
c. TWO PART TESTS (only the test if the D is not
present – it’s an alternative to the Pennoyer test)
BALANCE:
i. CONTACT
ii. FAIRNESS
d. Replaces the Consent and Presence Test.
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3.
4.
5.
6.
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e. To the extent a corporation conducts activity w/n a
state, it enjoys the benefits and protection of the
laws of that state. SO – the corporation may incur
obligations w/n the state – it is not unfair to have a
procedure that requires the corporation to respond
to a suit.
Gray v. American Radiator -- A state can exercise in
personam jurisdiction over a nonresident whose only
contact with that state occurred when its manufactured
product shipped into the state by a third party allegedly
caused an injury to one of the state residents.
a. Where a nonresident engages in activities that it
should reasonably expect to directly or indirectly
affect the residents of another state, and to the
extent the nonresident benefits directly or indirectly
from the laws of another state, such state is justified
in exercising personal jurisdiction over such
nonresident.
McGee – TX corporation sued in CA and they only had one
contact – sold one contract of life insurance.
a. D solicited business from CA and reached out to
CA
b. RELATEDNESS – P’s claim arises from the D’s
contact with the forum.
i. Jurisdiction upheld.
c. STATE’S INTEREST – wants to provide a forum
for their citizens.
Hanson – hit the brakes (no jurisdiction).
a. The act of mailing trust earning reports to a resident
of FL is not sufficient contact for that state to gain
jurisdiction over the nonresident.
b. The bank had no RELEVANT contact with FL –
failure of minimum contacts.
c. To be a contact under Int’L – it must result from a
D’s purposeful availment. D has to reach out to that
forum.
i. Different from McGee – because there the D
received benefits from the forum state AND
the forum had a special interest in litigating
the lawsuit (providing a convenient forum
for its citizen).
ii. Here, it was just the woman moving there.
World-Wide VW – D not doing business past three states.
a. No minimum contacts – no purposeful availment –
it was a unilateral act that the care ended up in OK.
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b. Forseeability is relevant – but it’s the D foreseeing
that he would be sued in that forum…not
foreseeability that the product would end up there.
c. Stream of Commerce ends with the retail sale (See
Gray).
d. Quid Pro Quo – if you benefit – if someone is
selling cars over the Internet or just advertising b/c
the dealer should reasonably foresee being sued in
IL since they are reaching out and soliciting
business.
i. Not the amount of business that it’s doing.
See Keeton v. Hustler Magazine: NH is the only state where the statute of limitations
has not expired.
D’s Contacts with Forum:
Continuous & Systematic
Hustler had continuous and systematic contact!!!!
Cause of Action’s Connection with Forum
Arises out of Forum state activities
Cause of action takes place in NH – she’s defamed in NH!!!!
So this is Int’l Shoe because it meets both criteria.
Isolated Act
Does Not
** GENERAL JURISDICTION – Continuous and Systematic and does not arise.
** SPECIFIC JURISDICTION – Isolated Act but Arises out of forum.
7. Kulko – Dad not subject to jurisdiction after he sends his
kid to CA where the kids receive the state benefits.
a. “purposeful act” requirements mean that the D must
receive direct benefits and protections from the state
– vicarious benefits and protections are not enough.
b. Under Hanson, the D didn’t reach out to CA.
8. Burger King – a whopper of a case.
a. Minimum Contacts has two parts:
i. CONTACT – must have a contact before
you look at fairness.
1. The franchised had reached out to FL
– K said that it applied so they’re
availing themselves of FL.
a. A sophisticated businessman
signs contracts with FL law –
the choice of law is FL – so
there’s notice.
ii. FAIRNESS – D said it was inconvenient.
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1. On fairness, the burden is on the D to
show that the forum is
unconstitutional.
a. Tough thing to show – you’d
have to show that FL was so
gravely inconvenient that
they would be at a severe
disadvantage.
i. The relevant wealth is
not important.
ii. Brennan – saying that
the little guy can be
forced.
b. The majority emphasized that when a question of
personal jurisdiction arises out of a business
relationship, underlying realities of the relationship
should be examined to determine whether
jurisdiction exists. The defendant must then
demonstrate that by defending the action he is
subjecting himself to unreasonable burdens that
cannot be relieved by other means.
9. Asahi – GREAT EXAM QUESTION -- gives us no law.
Stream of commerce case. Split – four justices go one way
and four go the other way. There is no law.
a. Two important theories:
i. BRENNAN – this is a contact if D puts in
the stream and anticipates that it gets to the
given state.
ii. O’CONNOR – not enough – you need that
plus an intent or purpose to serve that state.
(if customer service is there or if they
advertised). Just b/c some other third party
put Asahi’s product in CA – doesn’t mean
there’s jurisdiction.
b. 8 Justices hold that exercising jurisdiction would be
unreasonable, considering the severe burdens on D
of defending in a foreign legal system.
10. Nelson v. Park – Manufacturers and distributors purposely
conduct their activities to make their product available for
purchase in as many forums as possible.
a. So in WWVW – you get Volkswagen b/c a
manufacturer reaches out to a much broader area
and derives the profits from sales in all the states.
11. Perkins v. Benguet – A foreign coroporation can be
subjected to in personam by a state in which the corp.
carries on “continuous and systematic” corporation
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activities, even though the cause of action did not arise
from those activities. [Not occasionally or irregularly]
a. Modern view – is that if an authorized rep. Of a
foreign corp. is physically present in the state,
service on the rep. Is fine.
b. BUT – we pigeon hole as an exception b/c there’s
no place else in the world they can sue (Phillipenes
during WWII).
12. Helicopteros – No jurisdiction – Ps argued Perkins and lost
(arose out of TX but no continuous and systematic
contacts).
a. Purchases and related trips (even if occurring at
regular intervals), standing alone, are not a
sufficient basis for in personam.
i. If your selling = more of a benefit than
buying (Drobs doesn’t buy it)
ii. BUT – companies research who they’re
buying from. They’re reaching out to TX
and not the EU.
b. DOJ was worried that companies would buy from
another country if we subjected them to jurisdiction.
c. Drobs doesn’t like the specific/general jurisdiction.
13. Burnham – does process of service in the state give general
jurisdiction (while he was in CA – is the traditional basis of
Pennoyer?) SPLIT!! TAG JURISDICTION.
a. SCALIA – this is OK, has a historical pedigree.
Don’t have to assess minimum contacts. Tag
jurisdiction comports with notions of fair play and
substantial justice.
b. BRENNAN – you still have to look at minimum
contacts. He had enough minimum contacts b/c he
was availing himself by being there for three days
(CA cops would have helped him out).
i. (is sitting around in an airport enough
purposeful availment??)
ii. General jurisdiction – court has only
discussed in Perkins and Helicopteros.
1. General jurisdiction if D has
continuous and systematic ties with
the forum (substantial ties with the
forum). Very tough.
a. Domicile is continuous.
b. Corporations are too.
c. White – doesn’t like that Brennan’s model would
include a case-by-case analysis = waste of time.
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d. In’tl Shoe says: “due process requires only that in
order to subject a D to a judgment in personam, if
he be not present w/n the territory of the forum, he
have minimum contacts”
i. So minimum contacts only applies if they’re
not there. If they’re there it’s cool.
14. CONSENT – SHOWING UP OR ADHESION K.
a. Insurance Corp. of Ireland – Every court has
jurisdiction to decide if it has jurisdiction.
i. Once you’re in court you’re stuck.
ii. Unlike SMJ, PJ may be intentionally waived
or D may be stopped from raising it as an
issue.
1. Ds refused to comply with discovery
during their contesting of jurisdiction
= Consent.
2. Silence constitutes an admission of
the lack of merit in D’s defense of
lack of minimum contacts.
iii. PJ is a personal privilege – not an absolute
precondition for the exercise of judicial
power over the person), which means that it
can be waived.
b. Carnival Cruise Lines – Forum selection clause is
legal.
i. These clauses eliminate confusion about
where suits must be litigated, and by
reducing D’s potential legal costs, the clause
reduces fare for passengers.
ii. Ps have not satisfied the heavy burden of
proof required to set aside the clause on
grounds of inconvenience.
c. Complaint filed and D answers denying liability,
then D moves for dismissal for lack of jurisdiction.
i. 12(h)(1) – it’s too late.
ii. If the answer contained the jurisdiction
defense, then it’s OK.
1. It’s just a special appearance…you
have to bring personal jurisdiction
first…rules consider that you’ve
consented!!!
2. If you deny liability first, then it’s a
general appearance which constitutes
voluntary submission to the court’s
jurisdiction.
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iii. See Baldwin – you get one bite at the apple
and courts favor settling it at one blow. D
cam to challenge jurisdiction, lost, and then
didn’t plead anything else. The judgment is
enforceable.
1. SO – easy to accidentally waive
personal jurisdiction.
ii. FRAMEWORK:
1. Does a traditional basis apply (one of those four tradition
basis)?
2. Minimum contacts analysis too (See Burnham – Brennan
said that you still need to do minimum contacts).
a. WW and BK – two step approach.
i. A RELEVANT CONTACT – a contact b/n
the D and forum. (Hanson no jurisdiction
b/c there was no relevant contact).
1. Purposeful availment – to make
money, use the roads. Distinguish
the facts of our case with McGee and
WWVW.
2. Forseeability – is it foreseeable that
the D would get hailed into the
forum?
ii. FAIRNESS – several factors.
1. Relatedness (McGee) – does the P’s
claim arise from the contact.
Relatedness can make up from a
minimal contact.
2. FACTORS (five):
a. Burden on the D and
witnesses. Very difficult for
the D to get dismissed (See
BK – have to show a
substantial disadvantage).
b. State’s interest – providing a
forum for its people
(McGee).
c. P’s interest – not entitled to a
lot…in suing at home.
d. Legal system’s interest in
efficiency.
e. Interstate interest in shared,
substantive policy.
3. STREAM OF COMMERCE (i.e. Asahi)
a. Describe the SPLIT.
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b. STATUTORY INQUIRY – even though it’s constitutional, you don’t
have jurisdiction unless there is a statute.
i. First thing to do is ask if there is a statute.
1. Every state has a statute.
2. Allows personal jurisdiction over a domicile.
3. Non-resident motorist act – gives specific jurisdiction not
general jurisdiction – permits jurisdiction only for the
motor vehicle crash.
4. LONG-ARM STATUTE – go after non-residents and
usually specific jurisdiction.
a. Watch for laundry list long-arm.
i. Certain things a D can do in the forum that
will subject him to suit.
ii. Same language in a statute can be
interpreted in different ways.
1. SUPPOSE – manufacture a widget
and send to state B and it blows up.
State B has a long arm – says it
comes up if you commit a tort.
2. SPLIT – if he was negligent it was in
state B.
a. GRAY v. RADIATOR –
YES, b/c the P was injured
in state B.
c. HYPO – P goes into another state, goes into a clock shop and takes it back
to Washington, P gets hurt and wants to sue the clockmaker in
Washington. Is there personal jurisdiction?
i. FIRST – IS THERE A STATUTE?
1. YES – long-arm says that it has jurisdiction over nonresidents who commit a tort in Washington.
2. SPLIT!!! GRAY.
ii. SECOND – CONSTUTIONAL?
1. Is there a traditional basis? NO – he’s not domiciled, he’s
not present, no agent, no consenting.
2. MINIMUM CONTACTS –
a. Purposeful availment (very fact specific)
i. It looks like WWVW, but it’s a neighboring
state. What if the shop is on an interstate
highway one mile from the WA border?
What if they advertise?
1. At some point it looks more like
McGee than WWVW and Hanson.
b. Forseeability? SPLIT!!! Talk it up.
3. FAIRNESS FACTORS.
a. Arises out of the contacts = helps us.
b. Five factors.
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i. No burden.
d. IN REM/QUASI IN REM
i. Difference b/n in rem and quasi in rem – with in rem, the dispute is
over ownership of the property. With quasi in rem – the dispute is
not about ownership – we know who owns the property…would go
in personam if we could get it. Unrelated to the ownership of the
land (See Pennoyer, if they would have attached property at the
outset, then they would have had quasi in rem.)
ii. FIRST – STATUTE (attachment statute)
iii. SECOND – CONSTITUTIONAL
1. If you attach at outset.
2. See Harris v. Balk (intangible property) (1905)
3. See Shaffer v. Heitner (all assertions of personal
jurisdiction – the D still must have minimum contacts with
the forum). (Overruled Harris).
a. In Rem and quasi in rem – in Pennoyer, you would
have had to show that he had contacts.
b. A sweeping ruling? Shaffer hints that with in rem,
the presence of the property will satisfy minimum
contacts.
i. For quasi in rem – the D has to have
minimum contacts.
ii. Where the stock or portable debt is totally
unrelated to the cause of action.
c. Consistency b/n Helico and Shaffer b/c of Drobak
model – here, it’s an isolated act and the cause of
action does not arise in the forum.
d. Powell’s concurrence (that having real property in a
state means you don’t need minimum contacts) is
congruent with Burnham (tag jurisdiction)
i. Harris v. Balk goes against – the case of the
portable debt.
4. Establishing title of land – notification by mail/publication
for those unknown (constructive notice) is good.
a. NOTICE – a method sufficiently calculated under
the circumstances to give knowledge of the
proceeding to person whose interests it affects.
NOTICE – Due process requires that the D get notice (i.e. service of process).
a. SERVICE OF PROCESS – governed by RULE 4 in federal courts. 6
issues:
i. Process consists of a summons and a copy of the complaint.
ii. Service can be made by any non-party who is at least 18.
iii. How do we serve an individual?
1. Rule 4(e) – (2), three different ways:
a. Personal service (hand it to the D)
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i. Can happen anywhere. [Even in a jail – he
couldn’t post bail so he gets tagged]
b. Substituted Service
i. OK, if:
1. At D’s usual abode.
2. Serve someone of suitable age and
discretion who resides there.
c. Serve the Agent.
i. Szeukant – valid even if there is no
provision that the agent actually notify the
D. There’s consent!!!
2. Rule 4(e)(1) – can incorporate any method allowed by state
law where the court sits and in the state where service is
effected.
iv. Service on a corporation
1. 4(h) – serve an officer or managing or general agent of that
corporation.
2. 4(e)(1) applies here two – if there are methods of state law,
can use that too.
v. Rule 4(d) – is not service of process – WAIVER of service.
1. First class mail – mail the process to the D along with a
self-addressed waiver form.
2. Duty to reduce costs.
3. If you don’t waive, you have to pick up the tab for the later
service.
vi. Where do you serve it? 4(k)(1)(a) – can serve throughout the state
where that federal court sits. AND, you can get out of state only if
state law allows. (i.e. a long arm statute).
1. NARROW EXCEOTIONS – 4(k)(1)(b) – the bulge rule.
a. You can serve process outside the state w/n 100
miles of the court house. BUT, does not apply to
serving process on the original Ds. Only on serving
process on people who are joined later.
2. EXCEPTION – Nationwide service (statutory interpleader)
vii. Fraudulently induced service is no good!!! (Wyman)
1. Courts don’t like fraudulent inducement but once a D is in
the forum, anything goes.
b. CONSTITUTIONAL STANDARD FOR NOTICE
i. Mullane v. Central Hannover – Notice is OK if it is reasonably
calculated under all the circumstances to apprise the D.
1. RED FLAG – service by publication (almost never any
good)…not reasonably calculated to give actual notice.
a. Might be OK – in Mullane they upheld publication
notice for people who could not be identified.
b. BALANCING TEST – the vital interest of the state
in bringing things to a final settlement against the
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individual interests protected by the 14th
Amendment.
ii. If they’re served in the mail and they don’t get it – tough!! There
is a shared interest and the other parties will make the same
arguments.
iii. NEW RULE – 4(d) Need a Waiver of Service of Process.
1. Request for a Waiver.
c. OPPORTUNITY TO BE HEARD
SUBJECT MATTER JURISDICTION
a. What court do you go to once you figure out what state you’re in from the
above matter?
b. FEDERAL COURTS can only hear certain kinds of cases – limited SMJ.
i. ART. III – Diversity of Citizenship(1332) and Federal Question
(1331).
1. Even if you get in, you always have state court which has
general subject matter jurisdiction.
c. DIVERSITY OF CITIZENSHIP -- §1332(a)(1) of Title 28.
i. Citizens of Different States (6 rules):
1. Complete Diversity Rule. No diversity if any P is a citizen
of the same state of any D.
2. Test when the case is filed – a subsequent change does not
matter.
3. Citizenship of a human being –
a. For an American, you look to the state of her
domicile.
i. You only have one domicile at a time.
ii. You retain that until you change it:
1. Go to the new state.
2. While you’re there, you have to form
the subjective intent to make that
your permanent home. .
4. Citizenship of a corporation –
a. Defined in 1332 (c)(1) – a corporation is a citizen
of:
i. The states where incorporated.
ii. AND – of the one state where you have your
principal place of business (PPB) – only one
PPB.
1. PPB – great exam question.
a. Corporation’s NERVE
CENTER (where the
decisions are made –
headquarters).
b. MUSCLE CENTER (place
of activity) – where they do
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more stuff than anywhere
else.
c. Most courts will use the
nerve center unless all
activity is in a single state
d. Have to come to a conclusion
about where their PPB.
5. Citizenship of an unincorporated business (partnership).
a. Look to the citizenship of all the members.
6. §1332 (c)(2) – for decedents, minors, and incompetents,
you look to their citizenship and not their representative.
7. Strawbridge v. Curtis – COMPLETE diversity, can’t have
diversity if any P is a citizen of the same state as any D, no
matter how many parties are involved. [For fear of
favortism]
8. Diversity must be shown in the pleadings. (Capron)
9. Requisite diverse relationship must exist at the time the
complaint is filed and is unaffected by subsequent changes
in the citizenship of the parties. The party invoking
diversity has the burden of pleading it, and if challenged,
also bears the burden of proof. (Mas v. Perry – French
couple)
a. §1359 – When parties are collusively made or
joined to invoke federal jurisdiction – the action is
dismissed.
i. So if P finagles his way into fed. Ct.=no
good.
ii. Amount in controversy exceeding $75,000. FOUR RULES:
1. Amount must exceed $75,000 not including costs or
interest on the claim. §1332(a)(1).
2. P’s claim governs unless it is clear to a legal certainty that
she cannot recover that much. “GOOD FAITH
STANDARD.”
a. Incorporate punitive damages and the value of the
injunction into the equation (past and future)
3. P’s ultimate recovery is irrelevant to subject matter
jurisdiction. (§1332(b))
4. Aggregation – adding two or more claims to get over
$75,000.
a. RULE – can aggregate if there is one plaintiff
versus one defendant. (can be totally unrelated) (P
canbring in as many claims as she wants)
b. NO aggregation if there are multiple parties on
either side.
i. With joint claims, use the total value.
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ii. Suppose the P gets beat up by joint tortfeasors – CAN sue the three for 76,000.
(any one of them could be held liable)
d. FEDERAL QUESTION -- §1331 (citizenship is irrelevant and there is NO
amount of controversy).
i. Need a case that arises under federal law.
1. Look ONLY at the P’s complaint (do not look at defenses).
2. Does the P’s claim arise under federal law?
a. Is the P enforcing a federal right?
b. Well-Pleaded Complaint Rule – a court looks only
to the claim.
i. Mottley (1908) – Congress passes a statute
saying that RR cannot give away free
passes.
1. No FQ b/c the P’s are not enforcing a
federal right – can’t be granted based
on a anticipated defense.
ii. DECLARATORY JUDGMENT RULE (§2201-2)
1. Declaring the rights and other legal relations of any
interested party seeking such declaration.
2. DOES NOT create federal subject matter jurisdiction.
a. Would open the door for the defense to bring the
action in federal court.
b. See Phillips v. Skelly Oil – P trying to anticipate
Skelly’s defense and takes a state breach of K case
and asks for a declaration of no termination for the
K. This is just ARTFUL PLEADING!!! If the
coercive(normal) action can’t get into federal court,
than the declaratory case can’t get in either.
3. BUT – if a defense is solely for specific federal claim
(ERISA) then OK. GO TALK TO DROBS!
iii. CREATION TEST (Harms) – A suit arises under the law that
creates the cause of action (i.e. specific statutory right to sue)
1. “Arises Under” and Act if and only if the complaint is for a
remedy expressly granted by the Act, or asserts a claim
requiring construction of the Act, or where it is required
that federal principles control the disposition of the claim.
2. SO – must be a statutory basis (express or implied)
3. MERRELL DOW IMPLIED REMEDY FACTORS:
a. CLASS – Ps are part of the class for whose benefit
the statute was passed
b. LEGISLATIVE INTENT – Congressional purpose
for a private cause of action
c. PURPOSE – underlying purpose
d. STATE JURISDICTION – P’s cause of action is a
subject traditionally delegated to state law.
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i. Ps argued that there is a strong interest in
uniformity of interpretation of federal
statutes. BUT, this interest is safeguarded by
the Court’s power to review the decision of
a federal issue in a state cause of action.
4. BUT – where FQ is important, and it offers a private
remedy itself, then its presence in state law may be enough
to grant 1331 jurisdiction. Smith v. Kansas City Title.
e. SUPPLEMENTAL JURISDICTION – P must have a diversity or a FQ,
but when there are additional claims asserted in the course of that law suit.
(So you have to be in federal court first, this is later). (1367)
1. Pendent Jurisdiction – non federal question claim joined
with federal claim.
2. Ancillary Jurisdiction – non federal question claim asserted
in counterclaim, cross claim, third party complaint.
a. Allows a federal court to hear non-federal or nondiverse claims.
i. Original claim must have jurisdiction.
1. The mere presence of a federal issue
in a state cause of action does not
automatically does not automatically
confer FQJ. Merrel Dow.
b. United Mine Workers v. Gibbs – both claims arose
from the same dispute.
i. First claim gets the case into federal court.
ii. Second claim – no FQ or diversity. Can be
heard:
1. TEST – 1367(a) codifies
a. Supplemental Jurisdiction if
it arises from the same
common nucleus of
operative fact (same as
transaction/occurrence).
2. Just b/c the federal claim gets
dismissed, the S.Ct. can still review.
It’s pendent Jurisdiction!!
3. Pendent is const. under Art. III b/c it
is a CASE arising under the laws of
the US – “CASE” means the entire
law suit, not just the cause of action.
4. Pendent is not a P’s right, but it is a
doctrine of discretion.
a. Practical Considerations – if
the jury would be confused,
etc.
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iii. FIRST – does 1367(a) grant supp.
Jurisdiction? Yes, if it meets the Gibbs test.
iv. SECOND – does 1367(b) take away supp.
Jurisdiction? Only applies in diversity
cases. Only kills supp. jurisdiction over
claims by the P.
c. §1367:
o Section A – D. Cts. Can have jurisdiction when it forms part of the same
constitutional case or controversy as the claim that provides the basis of
the d.ct.’s original jurisdiction.
o Section B – Restricts federal supplemental jurisdiction.
 Codifies Owen – no pendent-party when inconsistent with §1332
(i.e. no diversity of citizenship)
 Does not apply to class actions and you can’t join Plaintiffs, only
Defendants.
o Section C – Discretion Factors (when D.Cts. can dismiss) (exclusive
means – Exec. Software)
 A novel or complex issue of state law
 State issue predominates
 Judicial fairness and efficiency
 Exceptional circumstances (nobody knows – Drobak)
o Section D – Tolling Statute of Limitations to prevent loss of dismissed
claim.
d. RATIONALE: if state issues substantially
predominate, whether in terms of proof, or the
scope of the issues raised, or of the
comprehensiveness of the remedy sought, the state
claims may be dismissed w/o prejudice and left for
resolution in state ct.
i. GIBBS – if federal law governs/pre-empts
the state law
ii. If the federal claim carries more damages,
then that pre-dominates. See §1367.
e. Aldinger v. Howard – before 1367 – no pendent
jurisdiction b/c no right to sue the county.
f. Owen v. Kroger – No §1332 diversity – P sued in
diversity and D brought in TPD. P sued TPD but no
diversity existed.
i. Have to have logical dependence.
ii. Courts limiting FJ in diversity situations, but
in FQ cases it’s all good.
g. 1367 Grants Supplemental Jurisdiction if arising out
of common nucleus of operative fact.
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i. 1367(b) removes supplemental jurisdiction
if jurisdiction is only on 1332, and the claim
is by the P.
ii. BUT, overturns Strawbridge and Zahn when
multiple Ps sue one D.
f. REMOVAL – taking a case from the state court to the federal.
i. 1441, 1446, and 1447. Six RULES:
1. One way street – only goes to state court to federal
court.
2. Only Ds can remove – P can never remove!!!!
3. All Ds must agree to remove.
4. You can remove only to the federal district embracing
the state court.
5. Must remove w/n thirty days of the case’s becoming
removable.
a. Runs from when you are served with a
summons.
6. You can remove if the case has subject matter
jurisdiction (most important). You can remove only in
a case that could have been brought originally. GREAT
EXAM Q. Two exceptions: (only apply in diversity not
FQ).
a. There is no removal if any D is a citizen of the
forum.
i. When a P drops a claim against the D
who was keeping it in state court. Now it
is removable – except you have thirty
days to remove and the case has to have
been going for less than a year.
b. No removal after a year.
ii. 1441(c) – is controversial since it allows some claims to be
removed even though no jurisdiction exists by the constitution
as long as claims are separate and independent.
1. American Fire and Cas. V. Finn – P sued foreign D and
local D. Removed under 1441(c). HELD, case could not be
removed. If the claim is divisible, it does not mean it’s
separate and independent.
VENUE – In what federal district do I lay venue?
a. The Basic Provisions:
i. §1391(a) and (b) – When a P is choosing federal court and not
removal (1441 has its own venue stuff).
ii. A—diversity
1. They are basically the same. For any case at all, P has two
choices:
a. 1391 (a)(1) Lay venue in any district where all Ds
reside.
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i. (Not citizenship – residence) Usually the
same as your domicile. For a corporation –
residence can be radically different 1391(c)
– a corporation resides in all districts where
it is subject to personal jurisdiction. (If a
company is doing business all over the
country).
1. Only good if all Ds live in the venue
– EXCEPTION:
a. If all Ds reside in different
districts of the same state,
you can lay venue where one
of them resides.
b. 1391(a)(2) Any district where a substantial part of
the claim arose.
iii. B – transfer of venue – has to be w/n the say judicial system.
1. Don’t confuse with removal.
2. In federal system there are two transfer statutes – in both of
these statutes you can only transfer to a court that is a
proper venue and has personal jurisdiction over the D.
a. Have to be independently true – absent waiver by
the D.
3. §1404(a) – “The 1404 transfer” -- Suit can be transferred
to venue “where it might have been brought” at first.
a. Applies when the original court is a proper venue.
b. May transfer – look at convenience of the parties
and witnesses. Also, the interests of justice.
i. Look at the center of gravity of the case.
ii. Only way you can overrule is when there is
clear abuse of discretion which is very rare.
c. Van Dusen Rule – the law that applies travels with
the suit.
4. §1406 (a) –
a. Applies when the original court is NOT a proper
venue.
b. You can dismiss or transfer in the interests of
justice.
c. Van Dusen Rule does not apply.
b. FORUM NON CONVENIENCE (FNC) – 1331 HOOK.
i. Court dismisses a case b/c litigation would be far more appropriate
in another place. (D is being unfairly inconvenienced).
1. Doctrine of dismissal. Dismiss b/c you cannot transfer b/c
the better court is in a different judicial system. Can’t
transfer to a different judicial system. (once you have
personal J and venue, you still don’t belong in court)
a. The better court is in a foreign country.
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b. Piper v. Reyno – Airplane crash in Scottish.
i. Court should dismiss and let them go there.
2. GULF OIL FACTORS – common sense:
a. Private Interest of the Litigants
i. Sources of proof
ii. Attendance of the unwilling
iii. Cost of obtaining witnesses
iv. All other practical considerations
(inexpensive).
b. Enforceability of Judgment
i. Unless the balance is strongly in favor of the
D, the P’s choice of forum should rarely be
disturbed.
c. Public Interest
i. Congested centers for litigation
ii. Jury duty should not be imposed upon
people with no relation to the case
iii. Local interest in having localized
controversies decided at home.
ii. If you want a dismissal, ask for forum non convenience.
iii. If you want removal, ask for 1404.
1. Need a stronger showing than transfer b/c it’s a dismissal.
iv. Court can impose conditions on a FNC dismissal. Parties would
have to waive some personal jurisdiction stuff. To step up to
American discovery rules.
v. Reversed only when there is a clear abuse of discretion.
CHALLENGING FORUM SELECTION – how does the D challenge the
P’s choices?
a. In some states (CA), a D challenging personal jurisdiction has to make a
special appearance.
i. Allows the D to challenge personal jurisdiction but you have to be
very careful – if you raise other defenses, you might waive
personal jurisdiction.
ii. Federal Rules = Different – they want to get all threshold defenses
out of the way early and they won’t punish D for raising more than
one at a time – they force D to raise them.
1. See Rule 12 – adopted in many states.
a. When you get sued, w/n 20 days after service of
process, you MUST do one of two things:
i. Make a motion (request for a court order); or
ii. Answer (is a pleading).
2. Rule 12 (b) – 7 defenses that can be raised either by motion
or answer.
a. Subject Matter Jurisdiction
b. Personal Jurisdiction
c. Venue
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d.
e.
f.
g.
VI.
Insufficient Process (problem with papers=rare)
Insufficient Service of Process
6 – Failure to state a claim
Failure to join an indispensable party.
i. Rules 12(g) and (h) impose very strict
waiver rules.
ii. THREE RULES:
1. Defenses 12(b) 2-5, must be put in
the first Rule 12 Response.
2. 12(b) 6 and 7 – can be raised for the
first time anytime through trial. Do
not have to be put in your first
response.
3. 12(b)(1) – can be raised anytime –
lack of subject matter jurisdiction is
NEVER waiveable (can even raise it
on appeal – about constitutional
allocation of power).
3. HYPO – P sues D, D files motion to dismiss for insufficient
service. Court denies the motion. D answers and asserts
lack of personal jurisdiction. She can’t – she waived it b/c
it wasn’t her first response.
ERIE (1939) – if there is no federal substantive, you have to apply state law. \
a. Rules of Decision Act – 28 USC 1652 states that laws of the states shall be
used in 1332 civil actions.
b. State’s Rights case, reduces forum shopping, but leaves the Federal Court
open to apply its own procedural law.
c. How do we tell what’s substantive and what’s procedural?
i. Erie was an easy case – matters of tort law and duties so that’s
obviously substantive=state law applies.
1. FIRST – apply Hanna v. Plumer (1965)
a. Two doctrines – depends on the source of the
federal law.
b. Is there a federal rule of civil procedure on point
that directly clashes with state law?
i. If YES – must apply the federal rule as long
as the federal rule is constitutional. (fits
within the Rules Enabling Act). (Supreme
court will never hold a rule
unconstitutional).
ii. FRCP wins – it trumps the state law.
c. Hanna V. Plumer – kicks state law out of the way.
i. What if what our federal judge wants to do it
different from state law but there is no
FRCP on point?
ii. AVOID FORUM SHOPPING –
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1. CT. – if the federal court ignores
state law on this issue and does its
own thing, will litigants flock to the
fed. Courts?
2. Unfair b/c an in-state person couldn’t
get into fed. Court – would be
inequitable administration of the law.
ii. SECOND, if they don’t clash, then TRUE ERIE PROBLEM there
– look to the decision act. FACTORS, but they have never told us
how to put them together. Three factors:
1. OUTCOME DETERMINATIVE – Guaranty Trust v.
York. – A rule of law is substantive under Erie if it “has a
substantial effect upon the eventual outcome of the case.”
(under state statute of limitations (substantive) the claim
was barred – federal judge wanted to do his own thing.)
a. CT. – state law governs b/c it is a matter of
substantive law. B/c the outcome of the case should
be the same in federal and in state court.
b. Problem – b/c it’s always going to change the result.
Goes way to far and we don’t know where to stop.
2. BALANCE OF THE INTERESTS – Byrd v. Blue Ridge
(state law said that an issue had to be decided by a judge –
federal judge wanted to use a jury).
a. CT. – federal court should be able to do its own
thing.
b. Balanced the relative interests – the federal interests
(7th Am) is pretty strong…on the other hand , the
state has no reason for the rule.
c. Problem – we don’t really know how to apply.
d. Preference for state law is not binding if application
of such a law would deprive one party of a strongly
protected federal RIGHT, EVEN IF THE
STANDARD “OUTCOME DETERMINATIVE”
TEST IS MET.
e. HYPO – Federal court class action based on
diversity, but if it was in state court, it could not go
forward.
i. Hanna problem – we have a FRCP that
directly clashes with state law.
ii. Apply federal rule – it trumps!!!
1. All you have to show is that it’s
arguably procedural
(they all are).
f. HYPO – state’s concerned about malpractice cases
so they pass a statute that in a med. Mal. Case, once
you file – it goes to an arbitration panel. P is a
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citizen of another state and has malpractice, sues the
doctor in federal court. Does that court have to
send it to an arbitration panel?
i. Hanna – no federal rule on point.
ii. True Erie Problem:
1. Outcome Determinative – who
knows?
2. Balance of Interests – now the state
has a very strong interest (different
from Byrd where the state had no
interest). Federal interest in a jury
trial is not obviated b/c you could get
it later.
3. Avoid Forum Shopping – if the fed.
Judge does not follow state law,
litigants will flock to federal court.
4. ANSWER – got to follow state law –
it is substance.
iii. Gasperini – P sued in diversity and got
damages. NY statute allowed for review of
jury award, but federal law does not
(unconst. By 7th Amend). HELD, by Erie,
law is substantive, so the district trial court
can “review” the award. This is so that state
and federal claims will have same damage
awards to reduce forum shopping.
g. Federal Courts can forecast a change in state law,
and rule accordingly.
i. Mason v. American Emer Wheel Works –
HELD, it concerned an old state law that
Miss would undoubtedly change in the
future, so the federal court should recognize
as such.
iii. CHOICE OF LAW IS SUBSTANTIVE!!
iv. SOL and Tolling are Substantive (Guaranty Trust)!!!
1. Equals State Law.
2. Rule 3 – nothing to do with SOL so state wins.
v. FRAMEWORK
1. Apply Erie, York and Byrd balancing when state rule does
not conflict with Federal Rule, b/c then Hanna doesn’t
apply.
2. Construe Federal statutes broadly, but Fed. Rules narrowly
(i.e. federal venue statute applies).
PLEADINGS
a. RULE 11 – requires the attorney to sign all documents – certifying all the
things in 11(b). (not frivolous, reasonable investigation, etc.).
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i. CERTIFICATION – is effective every time that time is presented
to the court.
ii. SANCTIONS – are discretionary (used to be mandatory and now
they’re just aimed at deterrence, not punishment).
1. Surowitz v. Hilton Hotels – P sued representing all
shareholders, and 23.1 requires verification for such a suit.
She could not answer questions about the complaint since
she could not understand it. HELD, suit was not meant to
harass, therefore not dismissed b/c of “false” verification
by P.
2. Can only be imposed after attorney has reasonable
opportunity to be heard; also has a 2 day safe harbor period.
Must be made by separate motion, or by the court. 11(C).
a. Hadges v. Yonkers Racing Corp. – P sued and
misstated date of an incident, and also his lack of
work since D banned him. HELD, no sanctions b/c
he was not given safe harbor period; sanctions not
filed by separate motion. As for the attorney, no
sanctions since he may reasonably rely on P’s
assertions.
3. NEW RULE 11 – Safe Harbor plus an objective,
reasonableness standard and not good faith.
4. PURPOSE – deterrence.
iii. A MOTION FOR VIOLATION – served but not filed.
1. Must give the other side 21 days to fix the problem (SAFE
HARBOUR). If they don’t fix the problem then you can
file the motion.
b. THE COMPLAINT – what starts the law suit.
i. RULE 8(a) – must have three things:
1. A statement of subject matter jurisdiction.
2. A short and plain statement of the claim.
a. Federal rules use notice pleadings – do not have to
give detail. Just put the other side on notice. Want
to decide on the merits, not a pleading technicality
(Dioguardi v. Durning). Need not state a cause of
action.
ii. Everyone gets one free amendment – courts don’t knock people
out of court.
1. The more detail, you’re leading with your chin and asking
for trouble.
c. ANSWER -- DEFENDANT’S RESPONSE – w/n 20 days (bring a motion
or answer).
i. RULE 8(B) requires an answer to either admit, deny or plead
insufficient information.
1. Zielinsky v. Philadelphia Piers, Inc. – P sued the wrong D
for injury from a forklift, and D made a general denial that
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he owned and operated it negligently. P found out too late
that D did not own the forklift. HELD, general denial was
ineffective therefore suit proceeds as if D owns the forklift.
D should have specifically admitted the “owned” allegation
and denied the rest.
a. Failure to deny is treated as an admission.
b. A demand for judgment.
ii. RULE 8(C) Raise affirmative defenses. Certain things must be
raised (i.e. contrib. Negligence).
1. Ingraham v. US – an affirmative defense may not be raised
for the first time on appeal. Failure to timely raise a defense
constitutes a waiver of that defense.
a. Statutory cap would take the P by surprise so it
should be pleaded in the beginning (Drobs, how
could they be surprised since it’s a statute – but
three months is way too late).
b. While failure to plead an affirmative defense
technically violates Rule 8(C), if it is raised in the
trial court in a manner that does not cause unfair
surprise, the court at its discretion, will permit the D
to amend its pleadings and advance the defense.
c. The burden of pleading may be different from the
burden of proof. (i.e. D must plead contrib.
Negligence with 8(C). But, under state substantive
law which is applicable in diversity, P have the
burden of proof.)
2. I.e. res judicata, SOL, etc.
3. Injecting a new fact that shows the P should not win.
iii. Rule 12 has to do with defenses and motions on the pleadings.
1. 12(e) is a motion for a more definite statement.
a. Lodge 743 v. United Aircraft – D made 12(e)
motion for complaint to state which of the 2,000
workers were involved in strikes. HLED< since P
does not have the information, motion approved
conditioned on completion of discovery.
2. 12(b(6) – Failure to state a claim upon which relief can be
granted. (only when the Complaint totally lacks merit)
a. Garcia v. Hilton Hotels – motion to dismiss is
denied if the complaint, construed in its entirety,
shows reasonable probability that P may eventually
prevail upon the merits, even if an essential element
of the cause of action is not formally pleaded.
i. Courts are willing to construct a pleading to
find the bare minimum substantive legal
sufficiency if it is at all possible to do so.
ii. A judgment on the merits (rare)!!
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b. American Nurses v. IL – comparable worth class
action…while that is not actionable, the Complaint
did contain alleged willful discrimination which
does state a claim.
c. One Bite At the Apple!!!
d. AMENDING PLEADINGS – federal rules are very liberal about this.
Rule 15.
i. Rule 15(A) – Three basic rules:
1. P has a right to amend once before D serves her answer.
2. D has a right to amend once w/n 20 days of serving his
answer.
3. If there is no right to amend, you seek court permission.
a. STANDARD – shall be freely given when justice so
requires.
ii. Rule 15(B) – VARIANCE
1. Where the evidence at trial does not match what they
pleaded.
iii. Rule 15(C) – Amending After SOL has run.
1. 15(c)(2) – Amendment to add a new claim. Amended
pleadings relate back if they concern they same Transaction
or Occurrence.
a. See Beeck v. Aquaslide – P sued slide manufacturer
for injuries, and D admitted manufacturing the
slide. Later found out that it didn’t make the slide.
HELD, D was allowed to amend his pleading to
deny making since there was only a possibility of
prejudice to the P (Later turned out that P couldn’t
even sue the real maker).
iv. It is possible for a party to impliedly consent to litigate an issue not
in the pleadings if an objection is not raised. 15(B)
1. Moore v. Moore – P filed for custody of their child, and D
merely answer. Where consent is implied, careful
examination of the record is required to see whether the
party contesting the amendment received actual notice of
the unpleaded matters and had adequate opportunity to
litigate.
v. 15(c)(3) – Relation back to add a new D. Amendment may relate
back to the original pleading if state law allows it; or if amended
claim arises out of same transaction; or, if the party is changed,
that party had notice of the original action and knew that it
should’ve been brought against him, and amendment is w/n 120
days. (15(C))
1. Worthington v. Wilson – P sued “unknown police
officers’” and when he found out their real names, he
amended the complaint. HELD, the amendment cannot
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relate back since the original complaint was not due to a
mistake of identity as per 15(C)(3).
JOINDER – Testable b/c you have to know the rules and every single claim
must have subject matter jurisdiction.
a. Where Supplemental Jurisdiction goes wild.
b. Rule 18 (A) – claim joinder by the Plaintiff. P can join all claims against
the D – they do not have to be related at all.
i. Must assess whether there is FSM jurisdiction.
c. CLAIM Joinder by the Defendant – here the D is suing someone in the
offensive capacity.
i. COUNTER-CLAIM – governed by Rule 13(A) and (B).
1. “a claim against an opposing party”
2. TWO KINDS:
a. Compulsory Counter-Claim (13(a)) – “one that
arises from the same transaction or occurrence as
the P’s claim.”
i. Must be asserted in the pending case. You
cannot assert this claim anywhere else.
ii. OR – it’s compulsory if it bears a logical
relationship to an opposing party’s claim
where separate trials on each of their
respective claims would involve a
substantial duplication of effort and time by
the parties and the courts. Great Lakes
Rubber.
b. Permissive Counter-Claim (13(b)) – does not arise
from the same T/O as the P’s claim. You can sue
on this in another action.
i. If a counter-claim is for $45,000, SMJ –
there is no diversity b/c it doesn’t exceed the
amount in controversy. Use Supplemental
Jurisdiction – (1) Does 1367 (a) grant
jurisdiction – yes if it arises from the same
T/O? Compulsory counter-claim, by
definition meets this test; and (2) Does
1367(b) kill jurisdiction? This applies to
diversity but only kills claims by the P. So
we have supplemental jurisdiction.
ii. CROSS-CLAIM – Rule 13(g).
1. “against a co-party”
2. No such thing as a compulsory cross claim – it’s up to the
person – they don’t have to do anything.
3. NOTE – cross claims can only be asserted by those who
have claims asserted against them. So Ps can’t turn on each
other if there is no claim against them. Until the D brings a
compulsory claim against P(1), P(1) can’t sue P(2).
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iii. Who may be joined?
1. More than one Plaintiff if their claims arise from the same
T/O and raise at least one common question. Rule 20(a)
2. Co-Defendants – the same test.
** SEE ADDENDUM
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d. RUSH RULE – All injuries resulting from a single accident must be
brought in a single cause of action.
i. Cannot split damages except for weird deals with insurance and
suing later for personal damage – not property.
e. NECESSARY AND INDESPINSIBLE PARTIES
i. Rule 19 – Who MUST be joined in a civil action?
1. P is architect of the case, but sometimes a person gets left
out.
2. When an absentee is so interested in an action, we grab
them and bring them in.
ii. Rule 19 = Three Steps:
1. Is A (absentee) necessary? Yes, if we meet any of these
three tests:
a. Rule 19(a)(1) – Without A, the court cannot accord
complete relief. (Nervous about efficiency).
b. Rule 19(a)(2)(1) – A’s interest may be harmed if
she is not joined. (Her interest could be impaired)
c. Rule 19(a)(2)(2) – A’s interest may subject the D to
multiple or inconsistent obligations. (Focus on the
D)
i. Joint tort-feasors are not necessary.
ii. HYPO – I own 1000 shares in the XYZ
corporation. David claims that he and I
agreed to buy it jointly and that we paid half.
David sues the corporation and I am the
absentee. Am I necessary? YES –
absolutely b/c we meet all three (you only
have to meet one.)
1. Cannot accord complete relief.
2. I would definitely be harmed and his
stock would be canceled.
3. Corporation could be harmed – If I is
not brought in, they would be subject
to multiple obligations.
2. Is joinder of A feasible?
a. Personal Jurisdiction – if the A is subject to
personal jurisdiction.
b. SMJ – bringing in A does not mess up diversity.
i. NOTE – tricky way of bringing in PJ and
SMJ.
c. IF NO – third step:
3. If joinder of A is not feasible, we either proceed without A
or dismiss the pending case.
a. Rule 19(B) –
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i. Fourth Factor – if you dismiss, does the P
have a remedy? Is there an alternative
forum?
ii. If you decide to dismiss – then you label the
absentee indispensable.
f. IMPLEADER (indemnity)– If it starts with the letter C, it is a claim b/n
existing parties. If it starts with an I, we are joining someone new.
i. Rule 14 (a) – The D is joining someone who owes the D indemnity
or contribution.
ii. Third Party Defendant (TPD) -- has to be for owing D for the
liability (has to be derivative).
1. NOT A CROSS CLAIM (b/n co-parties where they are
both sued by a P). Here, we are joining someone new.
iii. Claim by the P against the TPD and vice versa (triangle diagram)
1. Same T/O.
iv. The right to implead is procedural and is, thus, governed by federal
law in diversity cases. Jeub v. B/G Foods.
1. Whether a court will allow impleader is a matter for the
exercise of judicial discretion. Two Policies are considered:
a. Avoidance of multiplicity of litigation.
b. BUT – not a vehicle for the trying together of
separate and distinct causes of action.
***
It is well established that compulsory counterclaims under 13(a), impleader
action under 14(a), and intervention as a matter of right under 24(a) all bring
proper ancillary jurisdiction, because they all arise out of the same transaction or
occurrence the original claim. 13(b) permissive counterclaims must have an
independent federal ground, and do not normally bring ancillary jurisdiction
because they don’t arise out of the same transaction or occurrence. Ancillary
jurisdiction is made available to defendants in order to protect their interests since
they have been involuntarily brought into the litigation. Here, the two claims are
the opposite sides of the same coin; they both arise out of the breach of a contract.
Thus, ancillary jurisdiction is proper.
NOTE – 1367(b) Supplemental does NOT apply to P’s though.
NOTE – Always ask whether after face, if a third person could sue a party to the
original law suit. Did they have their day in court?
g. INTERVENTION – Rule 24. The absentee is bringing herself in. When
you intervene, you choose what side you want.
i. Have to show that A’s interest may be harmed if she is not joined
(practical disadvantage); AND;
ii. Her interest is not adequately represented now.
1. Just has to be timely.
iii. OR, leave any of the persons already a party to the suit with
inconsistent obligations.
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1. Can’t use 24 to wipe away diversity requirements.
2. Even if they have a right to intervene, they cannot come in
if it would destroy diversity.
a. LOOK FOR 1367(B)
3. Possible even after the initial judgment. See Smuck v.
Hobson – Board of Education suit – the parents can come
in after the judgment.
4. Stare decisis can supply the “practical disadvantage” that
warrants intervention of right (a decision on the same
property – but if another party would feel the same effect
b/c of different property – that would be no good).
a. Err on the side of bringing them in – we want
everyone to have their day in court.
iv. PERMISSIVE INTERVENTION – 24(B)(2) – is proper when
there is a question of law or fact in common.
h. CLASS ACTIONS
i. Two ways to think about: 1) the mother of all joinder; or 2) Class
as a legal entity. SEVEN RULES:
1. You must meet all four requirements of 23(a).
a. Numerosity – so numerous that joinder of all
members is impractical.
b. Commonality – questions of law or fact common
c. Typicality -- a representative who feels their pain.
d. Adequate Representation – the reps will fairly and
adequately protect the interests of the class.
2. Must meet at least one type of class action in 23(b):
a. B(1) and (2) are specialized.
i. B(1) = very homogeneous (i.e. communal
suit re: taxes or bonds) (as a practical matter,
would it substantially impair or impede their
ability to protect their interest); and
ii. B(2) – Injunctive – not $$. Perfect classes
for Title VII cases – no need for mandatory
notice. This type should be chosen for its
superior res judicata effect and to avoid the
procedural complication of (B)(3).
1. If the relief is predominately money,
then no B(2).
b. B(3) – there is more stuff Drobs can ask us.
i. Damages class action – two requirements:
1. Common questions predominate.
2. The class action is the superior
method for resolving the dispute.
ii. How to get a mass tort certified?
1. Easy with a plane accident (everyone
hurt at the same place and time)
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a. BUT – Causey held that there
was too strong interest of the
parties to sue on their own.
2. Hard with toxic tort (everyone hurt at
different times and in different ways)
iii. NOTICE – 23(b)(2) – the Rep pays to give
individual notice to all members reasonably
identifiable.
iv. WHO is bound? All class members except
those who opt our of a B(3).
v. Settlements or dismissal must be approved
by the court. Rule 23(E). True for all three
types.
vi. Rule 23(F) – allows you to seek an
immediate appeal for an order on class
certification.
3. FSMJ – could be federal question, but that’s easy.
a. If it’s diversity of citizenship = Houston, we have a
problem.
b. CITIZENSHIP = law is clear, look only to the
citizenship of the representative.
c. AMOUNT IN CONTROVERSY = See Zahn.
i. Every member must claim more than
$75,000.
ii. However, there is an argument, that the
supplemental jurisdiction statute has
changed that rule. That you’re OK as long
as the representative claims more than
$75,000 – regardless of what the class
claims.
1. 1367 does not mention class action
as an exception
2. BUT – Leonhardt – legislative
history reveals that the framers did
not intend for the statute to effect
Zahn. (So all Ps have to meet the
amounts)
iii. STATE of the LAW – 2 circuits that say
Zahn is dead and all you need is the
representative. There are 2 other circuits
that say Zahn is alive and the supplemental
jurisdiction statute didn’t change anything.
1. See Abbott Laboratories – we split 4
to 4.
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iv. DROBS – Snyder and Zahn killed federal
class actions. Each P has to meet their own
jurisdictional amounts.
i. CHALLENGING “BOUND BY” A CLASS JUDGMENT – One is not
bound by a judgment in personam where he is not designated as a party or
to which he has not been made a party by service of process. In a class
action, there is only a failure of due process in those cases where their
interest was not protected. Hansberry.
i. Inadequate representation b/c there is antagonism in the class.
ii. Generally – if the court finds that a party had sufficient notice and
was considered a member of the class, the court’s decision binds
him.
iii. Cooper – A judgment in a properly entertained class action is
binding on class members in any subsequent litigation b/n them on
any issue actually litigated and determined, if its determination was
essential to that judgment.
1. Class action deciding against a general pattern of
discrimination does not preclude individual suits for
discrimination.
2. Conceptually – it’s a different issue.
SAMPLE EXAM QUESTION – class action against a corporation for a securities fraud
violation. Corporation wins. 100 people in that class sued again as a class action for
misleading personal statements during a meeting (different fact, instance) – securities
fraud again (same claim but different transaction).
 Not barred under Cooper b/c this issue wasn’t litigated.
o Claim preclusion doesn’t require those 100 to add that claim in the class
b/c it probably doesn’t apply to the rest of the class.
o Even if one of the 100 was the class representative…should the rule be that
the class representative has to bring ALL the claims?
 YES. Or maybe not…to require the rep. Would destroy
commonality.
YES is the better view – hook into the TWA view…have to bring all of your claims…if
you have your day in court you can’t split your claims and go for two bites at the apple.
j. PERSONAL JURISDICTION PROBLEMS WITH CLASS ACTIONS
i. Absent Pa are not like absent Ds who experience heavy burdens
(i.e. travel, counsel, etc). The minimum contacts requirement of
Due Process prevents the forum state from unfairly imposing these
burdens on the D.
ii. The Due Process Clause need not and does not afford as much
protection to absent class Ps b/c fewer burdens are placed on them.
An absent class P is not required to do anything. The court and the
name Ps protect the absent Ps interests.
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1. Class actions are an exception to the rule that one cannot be
bound by a judgment in personam unless one is fully made
a party in the traditional sense.
2. All you need is notice and an opportunity to opt out.
3. Ps losing the right to sue is minimal b/c it’s probably for
one dollar anyway. SHUTTS CONSENT.
a. If the court ruled the other way, you’d have to have
opt in procedures and class actions would die.
b. Class actions were killed in federal court, so you
don’t want to kill them in state court.
***
HYPO – What if P doesn’t actually receive notice and the D wins and
later the P wants to sue on their own?
o Shared interest allow us to tolerate the possibility?
o Is it the same standard as D’s notice, “reasonably calculated”?
 But the P never had her day in court.
 But they’re never going to sue anyway.
iii. Suppose – there’s a counter claim back, there’s no personal
jurisdiction over the Ps if D wants to counter claim.
1. In that instance, it would become a D class.
a. What about personal jurisdiction in B(1) and B(2)
cases?
i. Is personal jurisdiction part of the
procedural due process that is involved with
the homogeneous factors?
ii. Comes from full faith and credit – if
Pennoyer says that FF &C is joined with
Due Process, if it’s procedural, then it’s
waiveable.
1. If it’s not – HOUSTON.
iii. Could get personal jurisdiction in other ways
(minimum contacts or through their
property) and D could counter claim.
iv. Wouldn’t work in B(3) b/c the stakes are too
great – no way to get PJ over such a huge
class. Have to start fifty different law suits.
[?????? – Ds or Ps – what’s going on????]
TWA Accident:
CLASS
v.
TWA
1) K Damages
2) Negligence
3) Strict Liability
TWA wins, now P(3)(class member) sues TWA alleging negligence per se (a
theory not argued up there). Not claim precluded – If P(3) was the only original P
and then later sues – that’ s not allowed b/c they can’t split their case.

So why can a class rep. Sue later but not the P?
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SUMMARY JUDGMENT
a. Doing the same thing as judgment as a matter of law (before and after the
jury verdict).
b. Courts are real nervous about granting Summary Judgment – will bend
over backward for the non-moving party. Take inference in favor of the
non-moving party.
c. Celotex and Anderson – hey, lower courts, loosen up a little bit – grant
some summary judgments.
i. Celotex – Rule 56(C) -- Burden is on the P to come forward with
evidence showing the existence of an essential element in order to
survive SJ.
d. RULES – SJ shall be rendered if the evidence shows that there is no
genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.
i. Summary Judgment is rarely granted for the party with the burden
at trial. It is a lot tougher for the P to get b/c they have the burden
on those elements.
ii. Tougher in tort cases than in K.
iii. ** Never, Never resolve disputes of fact or credibility in summary
judgment.
1. Look at the evidence before the court
iv. SJ is appropriate where one party’s affidavits and exhibits are
conclusive and uncontested by the other party. Lundeen.
1. Burks affidavit was good b/c there was no issue of
credibility:
a. No adverse incentive
b. Competent
c. Happened in the course of his duties.
d. Affidavit consistent with documents.
2. When there is no indication that the affiant was biased,
dishonest, mistaken, unaware or unsure of the facts, there is
no need for cross exam and SJ is cool.
a. Bad Faith Standard.
v. BUT, SJ is inappropriate when the only evidence is P’s selfserving affidavit of his intent. Cross.
1. Affidavit did not preclude the possibility that there are
triable controversies presented by the facts of the case. [RP
could have differed]
2. SJ should never have been used to decide an issue where
“personal motives, intent, and feeling” were central.
3. SO – there is a general issue of material fact and it doesn’t
matter that the party opposing the motion presented no
affidavits.
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rj
e. DEFAULT JUDGMENT – Any attack upon jurisdiction, service, venue,
or any answer upon the merits, whether or not D shows up at trial,
precludes entry of a default judgment. Coulas.
i. RULE 60 – D never getting notice of the suit. Is it “excusable
neglect” – duty is on the lawyers to find out.
ii. RULE 55 – What does “Appearance” entail?
1. Rhodes – signing property settlement agreement was
“Appearance.”
2. If they have appeared – have to give them 3 days notice
before entering a default. If they have NOT appeared, no
notice is needed.
TRIAL – Right to a jury trial (to resolve disputes of fact)
a. If neither side demands a jury trial, then you waive – Rule 38(B)
b. 7th Amendment – gives us a jury for civil cases in federal court.
i. Applies only in federal court, not in state court.
ii. PRESERVES the right to a jury trial at law, but not at equity.
1. Locked into a historical test – there’s no way out.
2. Whether we get a jury today, depends on whether we
would have gotten a jury in 1791.
3. Can only get an equitable remedy where the legal remedy is
inadequate.
iii. Beacon and DQ – expands the notion of jury trial.
1. Party gets jury if same factual situation and legal issues go
first, with a jury, then later -- equity. [With Beacon – it
was a compulsory counter-claim so he was being denied a
jury]
a. Takes away any right to a judge trial.
2. Clean-Up Doctrine – At common law, a doctrine was
developed whereby, in equity courts, legal issues
“incidental” to the primary equitable claim could be
disposed of w/o a jury trial.
a. HOWEVER, during the Warren court, the vitality
of the right to jury experienced an upsurge, and the
clean-up doctrine has fallen into disrepute. Today, it
is a general maxim that EVERY legal issue,
whether or not incidental to an equitable claim,
carries w/n itself the right to a jury trial.
iv. Once you have any law element – there is right to a jury trial.
c. Jury Selection – unlimited strikes for cause and three preemptory strikes
per side.
d. Chauffeurs, Teamsters – Determining what’s legal/equitable?
i. FIRST, we must look for an analogous cause of action that existed
in the 18th century to determine whether the nature of this duty of
fair representation is legal or equitable.
ii. SECOND, and most important, we examine the remedy sought
and determine whether it is legal or equitable in nature.
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1. Here, it’s a union and back pay – which is damages, not
restitution. Thus, the remedy ($$$) is legal.
2. Just know the “Essence” of the law suit and be able to
articulate reasons why dollars would be damages and
nothing else. [Don’t need to know the old common law]
e. MOTIONS:
i. STANDARD – to consider all the evidence in the light most
favorable to the non-moving party and if the facts and inferences
point so strongly and overwhelmingly in favor of one party that the
court believes that RP could not arrive at a contrary verdict,
granting of the motions is proper.
ii. Judgment as a matter of law (50(a)) – i.e. directed verdict.
1. Can make this motion only after the other side has been
heard. Can make it at the close of the P’s case and then at
the close of all the evidence. P can only move once – at the
close of all this evidence.
2. Reasonable people could not disagree on the results.
3. BUT – credibility is for the jury.
4. To survive a motion, all it has to do is have substance (a
scintilla – not ghost like)
iii. JNOV – renewed judgment as a matter of law.
1. After the case goes to the jury
2. RULE 50 KICKER – motion for directed verdict is a
prerequisite – if you didn’t make that motion – you have
waived the renewed JMOL.
3. TRICK – Judge should do this b/c you avoid the possibility
that on appeal, there would be a whole new trial. Now, the
appellate court could enter judgment for P.
4. Will not permit a JNOV if there is any possibility that the
evidence supports the jury’s verdict.
iv. New Trial Motion – to prevent a miscarriage of justice.
1. Prejudicial misconduct, judge messing up, etc.
2. Much less radical – that person might get the victory back
(they’ll just settle and everyone is happy).
3. Have to move w/n ten days of the entry of the judgment.
4. Usually for the whole trial – liability and damages, but it
could just be partial.
5. Conditional new trial – we’re absolutely sure the D is liable
but the jury’s calculation of damages is screwed up.
a. Jury was too generous – unless you agree to take
less, then there is a new trial.
i. REMITTITUR – judge can’t simply lower –
must allow the P the option of taking a new
trial. It’s OK!!!
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ii. ADDITUR – jury’s assessment of damages
was too low. = unconstitutional in federal
court. Violates the 7th Amendment.
APPEAL –
a. The final judgment rule – in federal court but in most states – you cannot
appeal until the trial court enters a final judgment (wraps up the merits of
the whole case).
RES JUDICATA/CLAIM PRECLUSION – One bite at the apple rule.
a. Take a good bite!!!
b. Three mechanical steps:
i. Both cases are brought by the same claimant against the same D.
ii. Case 1 ended in a valid, final judgment on the merits.
1. “on the merits” – see 41(B) – every dismissal is on the
merits unless it was based on jurisdiction, venue, or
indispensable parties. Even if you did not litigated
anything – even if it was a default.
iii. Both cases must involve the same claim.
1. Splits of authority – two definitions:
a. MAJORITY – claim is a transaction or occurrence.
i. All rights to relief related to that transaction.
b. Minority – you have a different claim for each right
invaded.
c. HYPO – Lucy v. Ethel. Car collision, case #1 is
Lucy v. Ethel for personal injuries. That’s over.
Case #2 is Lucy v. Ethel for property damage from
the same crash. Do we dismiss? Under the
majority, we dismiss. Under the minority, we do
not dismiss.
2. P can still be precluded from bringing another suit after the
first case was dismissed for failure to state a claim (doesn’t
matter that it was a preliminary dismissal). Jones v. Morris.
3. A judgment in favor of either the P or the D is conclusive,
in a subsequent action b/n them on the same or a different
claim, with respect to any issue actually litigated and
determined if its determination was essential to that
judgment.
c. BUT – note the “Threshold Defect” (Costello—the Mafia exception to
Rinehart). Don’t read 41(B) literally.
d. “Without Prejudice” – you can sue again!!
e. No words, and you want to sue again, it has to fall w/n 41(B).
XI.
XII.
P
P
v.
v.
D (suing in federal court but it’s after SOL so it’s barred)
D (federal court in different state with longer SOL)
Should the second suit be barred?
YES – this P should have looked around for the right court.
NO – there was never any merit adjudication. You never got in –broader meaning of
jurisdiction.
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XIII.
COLLATERAL ESTOPPEL/ISSUE PRECLUSION
a. Narrower than Res Judicata – just relates to a particular issue.
b. “Aint no sense in re-litigating this issue”
c. Five mechanical steps:
i. Case 1 ended in a valid final judgment on the merits.
ii. The same issue was litigated and determined in case #1.
1. Radically different from res judicata – only applies to
actual issues that were definitely litigated.
iii. That issue was essential to the judgment in case #1.
iv. Against whom is collateral estoppel asserted? Answer is only
against one who was a party in case #1. (required by due process)
v. By whom is collateral estoppel used (THE BIG ONE) ?
1. Traditional answer – mutuality – it can only be used by
somebody who was a party in case #1. (not required by
due process…courts don’t have to follow)
2. Move toward non-mutual assertion of collateral estoppel.
a. Even though she was not a party in case one, she
can bring the motion.
b. Non-mutual defensive – she’s the defendant in case
#2 and she was not a party in case #1.
c. Non-mutual offensive – not a party in case #1 and
she’s the P in case #2.
i. Most jurisdictions say no!!!
ii. Trend toward allowing it.
vi.
Suppose: p 
D (D cut down P’s timber)
vii.
D wins b/c the court finds that P didn’t own the land – you have to own land to sue
(only issue in the law suit)
P

D (again, and a year later)
No claim preclusion b/c it’s two different cutting instances. D will win b/c P will
be estopped from saying he owns it. Once the P gets in, there’s issue preclusion.
It’s exactly the same issue.
Cromwell –
Where two actions involve generally the same subject matter, but the
causes of action litigated are different or the parties involved are different,
the first action is conclusive as against the second only on issues actually
and necessary litigated in the course of the first trial.
** If it is not clear whether a point later asserted as res judicata has
actually been litigated and decided, there is no issue preclusion or
collateral estoppel.
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Auto Accident, P

D, D argues no negligence
and P was contributory negligent. But the court strikes
the contrib.. negligence claim. P wins (assume away the
Rush rule) (First suit for personal injury).
Second suit, Property, P

D – D is estopped
from claiming no negligence but CAN raise the
contrib…negligence.
A
v.
B for interest due (principal not yet due – no claim preclusion)
B defends – 1) fraudulent inducement (applies to principal too) (B doesn’t
have to pay b/c A was fraud; and (2) A gave a release for interest (just the
interest).
Second law suit for principal – A v. B for principal.
In the fist general verdict for A -- they decide for A – everything is estopped
b/c the jury rejected both defenses.
If in the first, the jury found for B – neither are estopped.
Russell v. Place –
Collateral Estoppel. Does not apply where the precise question
raised and decided in the earlier case is not disclosed.
** If there is any uncertainty in the record of the first trial as to
whether a distinct issue was raised litigated, or if it appears that
several issues have all been litigated as a “group” rather than
singly, as here, the whole subject matter will be at large and
subject to relitigation.
 EXTRINSIC EVIDENCE – if you have it, you might be
able show what the verdict was focused on.
o OR – if you have a general verdict for 10M and you
look at the claims (10M and 1M) you can
reconstruct what the jury did.
SUPPOSE – P

D – D defends and says that P was contr. Negligent.
Jury comes back with a special verdict – D was negligent and P was contr. Negligent. Are there any issues that
are precluded?

Negligence is estopped and Contrib. Negligence is not estopped in this case b/c D won in the first
suit and could not appeal. So the finding that he was negligent could not be used as contrib..
negligence against him as the plaintiff in the second case.

P’s contrib. negligence is the finding in which the judgment rests.
o If you litigate an issue it might be used against you so do a good job.
o Does this finding alone support the verdict? If no – then you’ve got a Rios problem.
 The way to distinguish Russell and Patterson.
 Inability to appeal is really driving everything. You don’t get your full day in court.
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Rios v. Davis --
rj
First law suit: PDG v. Davis v. Rios (jury finds that all are
negligent)
Second law suit: Rios v. Davis (issue of Rios’ contrib.. negligence
NOT estopped)
 The finding that Rios was negligent was not essential or
material to the judgment and the judgment was not based
thereon.
 Since Rios could not appeal, it’s fair to say that there was
no preclusive effect.
SUPPOSE –
1) A  B for interest on a note.
1. B defends:
a. Fraudulent Inducement on entire transaction
b. Release of Interest.
** The judge finds that A gave release of interest and there was no fraudulent
inducement. Judgment for B.
2) A  B for principal.
i. Is B estopped from bringing up fraudulent inducement b/c issue
was litigated above? NO.
ii. Was the judgment rested on that finding? NO!!
1. This is Rios in a different form – not estopped b/c he
won and he couldn’t have appealed.
SUPPOSE –
1) P  D
a. Jury Says:
i. D not negligent
ii. P was contrib. Negligent..
b. If D wins above, is there estoppel in the second case.
2) D  P
a. Different from Rios – the judgment independently rests on both findings.
b. Do you estop them or no? You don’t know which one the judgment rests
on – not Russel b/c this is not a general verdict.
i. Estop both or you estop neither?
ii. Unlike Rios, P can appeal…so maybe both are estopped.
1. But appellate courts don’t correct every error – so it’s not
like P when he thinks he’s going to be sued again – his
appeal is not going to be worth that much.
2. NEITHER ARE ESTOPPED (Second Restatement –
Modern View, dicta problem, which issue did they put their
thought and effort into)
3. BOTH ARE ESTOPPED (Patterson)
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1) A v. B (Interest)
a. Jury Finds –
i. B induced by Fraud; and
ii. A gave release of interest.
2) A v. B (Principal)
a. A could have appealed – judgment for B
b. Only defense that is relevant is (I – FRAUD)
c. 2nd Restatement – neither are estopped
i. We don’t know if one was the determinative factor
d. 1st Restatement – both are estopped.
3) A v. B (Later Payment of Interest)
a. 2nd Restatement – relitigate b/c we’re not sure what the jury
focused on.
b. Both defenses are available (I and ii)
i. Jury found by special verdict (not Russell)
Doesn’t matter what their judgment rested on – b/c it’s the exact same claim. If
one is dicta and the other is finding – even if we’re not sure which one is the most
important – as long as one of them is important.
rj
Patterson – older view of equity and law. Stills some states like this. In 1953, no states
required a P to bring equity and legal actions at one. Dissent is wrong – if you fail to
prove then that’s a finding against you.

Second Restatement – both precluded b/c it doesn’t matter what the judge
focused on.
o Second suit – where both findings in the first are relevant.
o Either one means the D wins.
 If it was a suit for a new cutting – the fact that he didn’t prove the
first doesn’t matter. Neither would be estopped – since it is the
same cutting, the issues are identical. D loses and he should lose.
 If it is a First Restatement State – they could just keep
cutting trees and taking them – b/c they can be used in a
later law suit.
o If Patterson fixes the problem – then you have to
stop cutting.
o “They should look for oil and gas and take
everything”
 Drobs doesn’t like the 1st Restatement – it’s
an efficiency rule but Drobs doesn’t trust
juries.
 Under the 2nd Restatement – it’s not
collaterally estopped.
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SUPPOSE:
Patterson v. Powell (another take of lumber)

Jury finds that he does have title but that there was cutting

2) Can Powell litigate the issue that he doesn’t own the land?
o Everyone is entitled to their day in court. You can’t use estoppel against
anyone that wasn’t a party.
 Violates the Constitution. See Berhard.
 Cannot be bound by a judgment unless you litigated.
 IS IT BEING ASSERTED AGAINST SOMEONE WHO
WAS NOT A PARTY?

SUPPOSE – jury finds that there is no title.
o Can Powell use that finding against Patterson since he had his day in
court?
 Offensive Use of estoppel – Have to Consider:
 Whether the P could not have joined in the first action?
 Whether it would be unfair to the D?
o If D had every incentive to litigate
o Not inconsistent with any previous decision
o No extra procedural opportunities.
GETTING RID OF MUTUALITY (*most jurisdictions have gotten rid of)
Bernhard – in cases like this, there is no need for mutuality in indemnity and
employee/employer situations.

Defensive use of collateral estoppel

D is using it merely to prevent litigation
o Incentive for C to sue employer and employee at the same time.
o Parklane – defensive use creates efficiency—no rule that requires C to do
this (one loss is a loss against everyone)

Only three questions need be asked when a stranger attempts to assert
defensive a decision in a prior action against a party to the former action:
o Was the issue decided in both cases identical?
o Was the adjudication of the issue final and necessary?
o And was the party against whom the plea is to be asserted a party to the
original action?
OFFENSIVE USE OF COLLATERAL ESTOPPEL
o If Parklane would have won, they couldn’t have used it against the
Shareholders b/c they weren’t parties – they never had their day in court –
can’t be used against them.
o Plaintiffs using prior judgments to assert against same D.
 BUT – worry about those who can just “WAIT AND SEE”
 Creates an incentive for two incentive
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

rj
Unlike Defensive estoppel – which creates an incentive for
joinder.
Want to discourage “WAIT AND SEE” strategies.
Parklane Hosiery Co. v. Shore – TEST FOR OFFENSIVE COLLATERAL ESTOP:
1)
Could the Ps have joined in the first action (avoiding wait and see)
a. No wait and see problem if Ps are each suing for a considerable amount
(plane crash)
2)
Would it be unfair to the D?
a. Did D have every incentive to litigate in the first suit?
i. Forseeability of subsequent suits.
ii. Serious allegations in the first suit.
b. Not inconsistent with other judgments.
c. No extra procedural opportunities that would provide a different result.
3)
NOTE – you have to be really confident that a prior finding is good to use for
collateral estoppel.
a. Have to be convinced that there was a full and fair opportunity to litigate
in the first trial.
b. Judges need to be very careful when you take an issue out of a law suit.
Parklane SEVENTH AMENDMENT ISSUE:

Loss of a jury trial right under the Seventh Amendment is OK.

Inconsistent with Beacon – here there was a legal issue, b/c the
judge found it above, S.Ct. still says it’s consistent.

You and I can win against Microsoft by finding a po-dunk
software company and going after the damages.
Tenant v. Electrician (negligence for causing fire)

Judge expressly finds that the Electrician is not negligence b/c the Tenant left a
hot plate on
o Electrician wins ($40,000)

LL v. Tenant (LL wants to use this finding – they don’t have to show
negligence just damages --$100,000)
o Could the LL do this?
 WAIT AND SEE – No problem -- Would it be unusual for the LL
to come in the first case – Drobs doesn’t know how the LL could
come in (not an indispensable party under Rule 19).
 UNFAIR? To the Tenant – is there something different that’s
being litigated in the second issue.
 In the first case it was litigated differently – Tenant was the
P and wasn’t necessarily fully litigating his own nonnegligence)
 BUT – electrician couldn’t counter-claim b/c he didn’t lose
anything. If he had counter-claimed, then it would be
easier.
 And Tenant is opening himself up to the later
suit=foreseeable. Court ruled that there was expectation
here. Who caused the fire – should have expected so under
Park Lane you can estop.
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Civil Procedure – Spring 2001
rj
** NOTE – when you have multiple cases before the one in question, it’s hard to
have confidence in a certain decision (we don’t know which one is fair).

But, as long as you satisfy Park lane – no jury misconduct and D had a full
opportunity – there should be issue preclusion after the very first one so we
would never know what other cases would hold.

But, if there are inconsistent judgments, then you can’t use issue preclusion.
[If TWA wins, how many P verdicts until you allow issue preclusion (Suit #5
sounds like a good number but we just have to be really careful – have to be
sue and confident that the issue is found).
HAVE TO ASK – Is issue preclusion being used against someone who was NOT a party
in the first suit? If yes, then you can’t use.
1)
P
v.
D – Delaware state corporation law
[P could have brought suit in federal court and include a count of federal
securities law.]
Suit brought in state court gets settled:
2)
P
v.
D (later brings federal securities claim in a second suit –
couldn’t litigate the issue in the first judgment)

Look to the state law.
o P will be barred -- only one bite at the apple, and if you want
all your claims bring it in federal court.
o BUT – a lot of states don’t do that (most states) – no
prohibition on the law suit. If you cannot get into the court b/c
of SMF, you can’t be bound in a second suit.
Full Faith and Credit – must give the same effect to a judgment so you have
look back to what the court did.
Schwartz v. Public Administrator (BIG CASE)

Multiple car collision – Passenger sues a lot of other drivers who are codefendants. P wins – precludes the co-defendant drivers in suits against each
other.
o Historically, there would absolutely not be any issue preclusion b/c you
have to be directly adverse b/c traditionally the co-defendants would want
to get together to fight P.

So even where parties are not technically in an adversarial position – they had
every opportunity to litigate.
o Criticism – you have jury sympathy, might be moved to find people
negligent who really weren’t.
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Drobak
Civil Procedure – Spring 2001

o Become a rule of compulsory cross-claim to protect yourself – If you
don’t, whatever happens in the first will affect the later suit.
 Comparative Negligence changes things. Proportions on
negligence really makes them adverse!!!!!
About as far as you can go with issue preclusion – related to the joinder
rules!!
rj
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