Adam Katz
Civil Procedure
4/21/06
CIVIL PROCEDURE
GETTING THE D INTO COURT (Chp. 2,3,4)
I. PERSONAL JURISDICTION
(In what states can the P sue the D? A question of geography)
-First we decide what state, then we decide state v. fed ct
-In Personam
-Court has power of the D herself because of her connection
with the forum
-In Rem/Quasi in Rem
-Court has power of some property of the D in the forum
A. IN PERSONAM JURISDICTION
(Two Step Process)
1. Does a statute grant personal jurisdiction?
-Long Arm?
-If NO: no personal jurisdiction
2. If YES: is the exercise of jurisdiction on these facts
constitutional?
The forum’s type of jurisdiction:
“General Jurisdiction”: You can be sued in that forum by a
claim arising anywhere in the world
“Specific Jurisdiction”: You can only be sued by a claim that
arose in that forum
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PENNOYER v. NEFF
(State has power over people/things in its boundaries. Gave us
the four bases of in personam jurisdiction)
1. D was served w/ process in the forum  “Presence” as a basis of
jurisdiction
a. Gives general jurisdiction over the D
2. D’s agent was served while in the forum
a. In place of the D, if job details receiving service of process
3. D is domiciled in the forum  General Jurisdiction
4. D gives consent to jurisdiction
a. If by K, willingly/inadvertently…etc.
i. This right is waivable
If steps are not possible, only way to get In Personam jurisdiction is
by serving the D in the forum
-Tough if D is never there!
HESS v. PALOWSKI
(Gets in car accident in MA and drives out of MA before being
served. MA had non-resident motorist act  Implied Consent to In
Personam Jurisdiction by driving in the state)
-Sec’y of motor vehicles becomes agent for service
***INTERNATIONAL SHOE v. WASHINGTON
(!!!New doctrinal formula!!! Restated personal jurisdiction/made state
lines less important. Makes it easier to get personal jurisdiction in
another state.)
-The Quote: “The court has jurisdiction if the D has such
minimum contacts with the forum so that the exercise of
jurisdiction does not offend traditional notions of fair play and
substantial justice”
TWO PART TEST (See BK)
1. Minimum contacts
-(Continuous & Systematic)
2. Fair play/substantial justice
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-Undefinable Garbage!!!
 not rigid, expandable
-***DOES NOT OVERRULE PENNOYER v. NEFF
This is the test to get In Personam Jurisdiction if
the D is not present in the forum
-Don’t have to worry about minimum
contacts if D is present in the forum
CASES BASED ON INTERNATIONAL SHOE:
McGEE v. INTERNATIONAL LIFE
(TX insurance co. sued in CA, only sold one K there and
breached it. Does CA have jurisdiction over this TX
co.?)
-YES! Even though only one contact in CA
-D solicited/reached out to CA to get this k
-“Relatedness” the P’s claim arises from the
D’s contact with CA
-The states interest!!!
-CA has an interest in protecting its
people
Next:
HANSON v. DENKLA
(PA Woman made trust with bank in DE. Moves to FL,
continues dealing with trustee in DE. Dies in FL…who
gets the estate? Does FL have In Personam Jurisdiction
over the bank?)
-Supreme Court says NO
-The bank had no relevant contact with FL
-***“Purposeful Availment”
-To be a contact D must reach
out to the forum
-Bank did not do this,
Only because woman
happened to move there
Next:
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WORLDWIDE VW v. WOODSON
(Family move from NY to AZ. Buy an Audi in NY and
move to AZ. Rear ended by uninsured drunk driver in
OK by drunk driver, car explodes everyone is hurt bad.
Sue in OK alleging that car is defective.)
-Jurisdiction over VW and importer VW of North
America
-Issue: Was there jurisdiction over the regional
distributor who only dealt with East Coast
-Retailer only did business in NY
 NO jurisdiction over either of these because no
relevant contacts with OK
-No Purposeful Availment
-Family drove the car, not the D’s
-P’s argument: It is foreseeable that the car would
get to OK, but the issue is that it is NOT
foreseeable that the D could get SUED in OK
Next:
BURGER KING v. RUDZEWICZ
(Franchisees dragged to Miami to be sued by BK where BK is
HQed)
-***TWO PART TEST TO Shoe
1. Contact
-Must have this first before go to (2)
2. Fairness
-Sliding scale
-Stronger showing of fairness might
allow jurisdiction based on smaller
amount of contact
-The burden is on the D to show that the
forum is unconstitutionally unfair
-Must show that defending the case is
so gravely difficult and inconvenient
that D is at severe disadvantage in
litigation
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-!!!Relative wealth of parties does not
matter!!!
Next:
ASAHI METAL INDUSTRY v. SUPERIOR COURT
(Stream of commerce case. Product blows up in state C,D, or
E, does company have relevant contact with those states?
***SPLIT of 4 to 4***)
-No law on what constitutes relative contact in stream of
commerce fact patterns
Arguments:
1. There is a relevant contact if co. puts product into the
stream of commerce and reasonably anticipate that the
product will get to state C, D, or E after putting product
in state B
Versus
2. Have to show co. had intent to serve state C, D, or E.
Maybe by advertisements/customer service. Without this
addition, no purposeful availment/relevant contacts, just
a unilateral act of a third-party
!!!No law on stream of commerce!!!
Next kind of:
BURNHAM  “Transient Jurisdiction”
(NJ person served in CA for a CA lawsuit. Suit is for a claim
arising outside of CA. Does presence in the forum when served
give General Jurisdiction?)
-Is presence still alive as its own basis of jurisdiction or
do you have to go with minimum contacts test?
-***4 to 4 SPLIT***
1. Presence in the forum when served does give in
personam J and general J
-Don’t have to go through minimum contacts test
-Due to historical pedigree  presence has
always been an ok basis for general
jurisdiction
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Versus
2. Historical pedigree doesn’t matter, you have to apply
minimum contacts test in all cases of jurisdiction
-Burnam did meet this test by being in CA for 3
days soaking up its benefits
-Voluntarily availed himself of CA to such a
degree that CA could hold for general
jurisdiction
-Ex of benefits: use of police for aid
-???HOW MUCH TIME IS ENOUGH TO
ESTABLISH BENEFITS???
 If the D has a major tie with the forum, general jurisdiction is okay
Only truly discussed in:
-PERKINS
-HELICO
Problems: Where do we draw the line?
-When does the tie become continuous, systematic, or
substantial
-BURNHAM was only there for three days!
ANALYTICAL FRAMEWORK FOR IN PERSONAM JURISDICTION
1. Does one of the four traditional bases apply (under PENNOYER)?
a. Presence
b. Domicile
c. Service on an agent
d. Consent
 If so, identify!
2. Minimum contacts analysis (SHOE)
1. Relevant contact between D and the forum (BK)
a. Purposeful availment (HANSON)
-Make money there, use the roads, etc…contact is the
result of the D’s reaching out to that forum
b. Foreseeability
-Foreseeability that the D could get sued in that forum
2. Fairness (BK)
a. Relatedness (McGee)
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-Does this claim arise from the D’s contact with the
forum?
-Can make up for a small amount of contact with
the forum
b. Inconvenience for the D and witnesses
-The burden is on the D to show that the forum is
unconstitutionally inconvenient
-So gravely inconvenient at a severe disadvantage
in litigation
-Relative economic disparity betw the
parties is NOT a factor
c. State’s interest
-State almost always will have an interest in providing a
forum
d. P’s interest, legal system’s interest in efficiency, interstate
interest in shared substantive policies
-Not a lot about these from the courts
 STATUATORY BASES FOR IN PERSONAM JURISDICTION
-Every state has statutes that gives general jurisdiction over D’s
-D’s that are served w/ process in the forum
-D’s that are domiciled in the union
-Non-resident motorist acts (HESS)
-Implied consent to jurisdiction!
-Specific Jurisdiction here
-“Long Arm” Statutes
-Gets non-resident D’s
-CA type: statute reaches to the full extent of due process
-“Laundry List Long Arm”
-A non-resident D can be sued in the state on a
claim that arises from the D doing something
specific in the forum
-Statute makes a laundry list of bad acts
Ω HYPO
Product made in state A, defect in state B = injury, can you sue in state B?
-Long Arm over D’s who commit tortious acts in state B
-Split on how to go about this
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a. NO tortious act in state B, D didn’t do anything
there, it all happened in state A
b. YES because P was injured in state B (GRAY)
-Illinois interpreted this way
Ω HYPO
WA P drives to OR buys clock, takes clock to WA, clock is defective,
injures P. Is there In Personam Jurisdiction in WA?
1. Is there a statutory basis for jurisdiction here?
-Yes, by long arm!
-Tortious act in WA
-Maybe yes, because injury occurred in WA
-Maybe no, because clock was made in OR
2. Is there a constitutional basis for jurisdiction?
-NO PENNOYER basis
-YES/MAYBE by minimum contacts between clockmaker in
OR and WA
-Relevant contact?
-Purposeful availment
-Almost like VW, got to WA by third party
-If near border, and advertises there, has
customers there, takes a check—looks more
like McGEE
-Foreseeability
-Maybe Foreseeable that the D gets sued in
WA?
-Fairness?
-Relatedness
-YES, maybe only clock that got into WA,
but claim based on it being in WA
-Convenient
-YES, BK was much more stringent std.
because MI guys dragged to Miami
-State’s interest/P’s interest/intersystem’s interest
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B. IN REM JURISDICTION AND QUASI-IN-REM JURISDICTION
(When there is minimum contacts, but use when you can’t get In
Personam Jurisdiction because i.e. long arm statute doesn’t apply)
-Jurisdiction is over D’s property
1. Definitions
a. In Rem
-Case is about ownership of property itself
b. Quasi-In-Rem
-Lawsuit has nothing to do with property, just uses
property as a basis for jurisdiction (like in PENNOYER)
2. Attachment (statutory)
a. We can attach the property if it is property that a non-resident
D owns or claims to own
b. Constitutional Requirement
-The property must be attached at the outset of the case
-Intangible property as well
-D must meet the minimum contacts test too
C. FULL FAITH AND CREDIT
-A valid judgment is entitled to full faith and credit in other states
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II. NOTICE
A. Service of Process
RULE 4
1. Process
-Summons + Copy of the Complaint
2. Must be 18 to affect service
3. Process must be served within 120 after filing complaint
-If you don’t, court will dismiss case w/o prejudice (can come
back and refile the case)
-Unless you can show good cause for the delay
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4. Service of process on an individual
a. Personal Service
-Deliver papers directly to D
-Can be done anywhere in the forum state
b. Substituted Service
-Okay if you are at the D’s dwelling house or usual abode
-AND serve somebody of suitable age and discretion
who resides there
c. Agent Service
d. The court may use any method of service that is allowed by
state law
-State law of the state where the federal court sits
-State law of the state where the claim was affected
5. Service of process on a corporation
-Must serve an officer or managing or general agent of the corp.
-Somebody with enough responsibility that we can
expect him to transmit important papers
-May use state law here too
6. Waiver of service
-Method for waiving formal service of process
-Send the process and waiver form to D with a self-addressed
stamped envelope first-class mail
-If she returns it w/in 30 days, then she waives service of
process
-If doesn’t waive, must have service affected formally
-Only penalty, D pays the service of process fee
7. In federal ct, can serve process throughout the state where the court
sits
-Can serve process out of state only if a state court there could
as well
-i.e. state Long-Arms, non-resident motorist act etc…
-EXCEPTIONS
-The Bulge Rule
-Can serve process from a fed ct w/o a
state law as long as it is 100 miles
from the fed ct house
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-Does not apply on service of
process to an original D
-Only on D’s joined later
-Federal statutes may allow for more service
of process outside of the state
-Federal statutory interpleader
B. CONSTITUTIONAL STANDARD FOR NOTICE
MULLANE v. CENTRAL HANOVER BANK
-Notice must be reasonably calculated under all the circumstances to
apprise the D of the suit
-Even if D didn’t receive notice from substituted service still
constitutional
-Constructive notice
-In newspaper at end of pages usually
-May be okay as a last resort if nothing else will work
-If don’t know D’s location, identity
-ex. unidentified beneficiaries of a trust
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III. SUBJECT-MATTER JURISDICTION (Chp. 4)
(Do we go to state court or federal court?)
-Totally separate inquiries from personal jurisdiction
-But we need both
-Personal: over the parties
-Subject-Matter: over the case and claims in it
-Any claim that qualifies for fed ct can go to state ct
A. Diversity Jurisdiction
§1332
-Case has to be betw citizens of different states AND amount in
controversy must exceed $75,000
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1. Citizens of different states
a. “Complete Diversity Rule”
-No diversity if any P is a citizen of the same state
as any D
-Can’t have same state on both side of the
P/D line!!!
-Co-parties can be from the same state
b. We test for diversity when the case is filed
-Subsequent change in citizenship is irrelevant
c. You are a citizen of the state in which you are
domiciled
-Domicile is established by:
i. You must be present in the state
AND
ii. You must form the intent to make it your
permanent home
-Only can have one domicile at a time
***d. Citizenship of corporations
-Do not use “domicile”
-Corp. citizenship is defined by statute
-Corp. is citizen of all states where
incorporated
AND
-the ONE (only one) state where it has its
principal place of business [PPB]
_____________________________________________________________
HOW DO WE FIGURE OUT CORP. CITIZENSHIP IN A FACT
PATTERN?
-Given: state of incorporation
-Must determine state of PPB (only ONE PPB for a corp.)
-Different tests to use by different courts
1. Nerve Center of the Corp.
-Where the shots are called, often the HQ
2. The Muscle Center/Place of Activities of the Corp.
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-Where the corp. does more “stuff” than anywhere
else
-i.e. manufacturing the most stuff
3. Total Activities Test
-Most cts use this now
-PPB is the nerve center unless all of the
corps. activity is done in one state
_____________________________________________________________
e. Citizenship of an unincorporated business
-i.e. partnership, labor union, etc…
-Look to the citizenship of ALL members
-Case law, no statute
-In a limited partnership, look to the citizen
ship of all the partners general and limited
-A law firm with partners from 15
states is a law firm with citizen ship in
the 15 states
f. Agents representing decedents, minors, incompetents\
-Look to the citizenship of those being represented
-A legal representative has to represent them
in order to sue
-***In class actions, look to citizenship of
representative, not those being represented
2. Amount in controversy must EXCEED $75,000
a. Not counting interest on the claim or costs
-Must be at least $75,000.01
b. The P’s claim governs unless it is clear to a legal certainty
that she cannot recover that much
-Must be a case where as a matter of law/statutory cap
she cannot claim that much
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c. The P’s ultimate recovery is irrelevant to subject matter
jurisdiction
-Just look at the claim
-If wins only $10,000 it’s irrelevant
d. “Aggregation”
-When we add together two or more claims to get over
$75,000
-Ex: one P sues one D for $40k on one claim and
$50k on a separate claim
-We only aggregate if there’s one P v. one D
-Cannot aggregate if there are
multiple parties on either side
-If we have joint claims we add those claims
together
-Ex: P sues 3 joint tortfeasors for a
total of $80k
B. Federal Question Jurisdiction
§1331
-A claim that arises under federal law. Citizenship is irrelevant and
amount in controversy doesn’t matter
-Under the federal constitution/federal statute
-Ex: OH P v. OH D for one penny can go to federal court
if the claim arises under federal law
-To determine whether the claim arises under federal law:
1. Look only at the P’s complaint
-Do not look at anything else the D does
2. “Well-Pleaded Complaint Rule”
-Judge looks only at the claim, not anticipated defenses,
window dressing, etc..
-Ask if the P is enforcing a federal right
-YES, Fed Q J
-NO, No fed Q J
LOUISVILLE & NASHVILLE R/R v. MOTTLEY
(Husband and wife couple injured by the R/R, took lifetime passes in
settlement of the claim)
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-Congress passed a statute later saying R/R’s cannot give away
free passes
-Mottley’s are turned away
-Mottley’s sue, say the fed statute doesn’t apply to us
-Ct throws out case
-Is the ct enforcing a federal right??? NO!!!
-The Mottley’s instead are claiming that the
statute does not apply
-Therefore their claim does not arise
under the statute
-Instead they are giving an
anticipatory defense
-This is merely a breach of K
Holmes’ Creation Test
a. A suit arises under that law that creates the cause of action.
Because the suit arises under K law, determined by common
and state law, it is not a federal question.
b. There is no SM J if a civil action is brought under a federal
law which does not create a private cause of action
C. SUPPLEMENTAL JURISDICTION
§1367
-The P must have one claim that invokes diversity or fed Q J to
get into fed ct
-Every single claim asserted in fed ct must have federal
subject matter jurisdiction
-But what if there is an additional claim that does not meet the
fed ct reqs
-Supplemental J allows a ct to hear a claim that otherwise
would not get into fed ct
-There must be an original claim that gets the case
in however
UNITED MINE WORKERS OF AMERICA v. GIBBS
(Gibbs asserted 2 claims against the D, one claim under fed law, one
under state. Both claims arose from the same transaction)
Claim 1
Gibbs ----------> D
TN (fed stat) TN
Gets into fed ct by FQ J
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Claim 2
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(state law)
Gets into fed ct by Sup J
(Otherwise wouldn’t get in)
-The claim under state law arose under “COMMON NUCLEUS OF
OPERATIVE FACT” with the jurisdiction invoking claim
-Arising under the same transaction or occurrence [t/o]
-§1367 handles this nowadays, not GIBBS
-Allows a fed ct to hear a claim (grants sup J) that could otherwise not
get into fed ct
-Does §1367(a) grant Sup J to this claim?
a. Does the claim meet GIBBS?
-Grants Sup J to all claims that share a common nucleus
of operative fact with the claim that got the case into fed
ct
-EXCEPTION: Cuts back on the grant of supplemental J §1367(b)
-Kills Sup J over:
-Diversity cases
-Claims by Rule 19 plaintiffs
-Claims asserted by people seeking to intervene as a P
under rule 24
 These are all claims by a P in a diversity case
Ω HYPO:
How would GIBBS come out under §1367?
-Yes Sup J, because the claim arises from the same t/o as the
FQ
-Does §1367(b) take away jurisdiction?
-NO! This is not a diversity Q case
What if the second claim is against a different D who is also from
TN?
-The state law claim cannot get into fed ct by itself
-Can we get Sup J?
1. Does §1367(a) grant sup J? YES
2. Does the second D screw it up under §1367(b)?
NO
-If it’s a different party it’s fine.
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D. REMOVAL §1441, 1446, 1447
-When we go to fed ct because that’s where the D wants to be
-D sued in state court, wants to remove it to fed ct
The Rules:
1. One-way street, only can remove from state to fed
2. ALL D’s must agree to remove
-Minor Exception §1441(c): a single D can remove if
there is a separate and independent fed claim against her
3. Only D’s can remove, P’s cannot
4. You remove to the federal district embracing the state court
where the case was filed §1441(a)
5. We remove w/in 30 days of the case’s becoming removable
6. Can remove if the case has federal subject matter jurisdiction
-Two Exceptions: THESE 2 EXCEPTIONS APPLY
ONLY IN DIVERISTY CASES, NOT FEDERAL
QUESTION
(1) No removal if any defendant is a citizen of forum.
(2) Cannot remove a diversity case more than one year
after the case was filed in state court. §1446(b)
III. Challenging Subject Matter Jurisdiction
1. Direct Attack: Lack of subject matter jurisdiction may be asserted at any time
by an interested party in federal court. The challenge to subject matter
Jurisdiction may be made in the answer, by notice to the court prior to final
judgment, or on appeal.
2. Collateral Attack: This results when a challenge is made in a subsequent triallevel action to the jurisdictional basis (either personal or subject matter JD) of the
prior action. Collateral attack is more successful against a prior default
judgment than a prior contested action. Usually this occurs when a D who defaults
in an action in one JD collaterally attacks the default judgment when it is sued
upon in a second JD.
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IV. VENUE AND OTHER TERRITORIAL RESTRICTION
-Say we are in fed ct, but which fed district do we go to?
A. Basic Provisions
1. In removal cases, venue is in the district embracing the St Ct
2. Local actions must be brought in the district where the land
lies
-Cases over ownership, possession, injury to land
3. Rules for the transitory case (anything that’s not a local
action) §1391
-P has two choices where to lay venue:
(1) Any district where all D’s reside
OR
(2) Any district where a substantial part of the
claim arose
-A corporation resides in all districts where it is
subject to personal jurisdiction when the case is
commenced
-Difference from the corp.’s citizenship
-Residence for venue
-Citizenship for diversity
-If all D’s reside in different districts of the same state,
you may lay venue where any one of them resides
B. Transfer of Venue
-Moving from a trial court in a court system to another trial
court in the SAME system = INTRASYSTEM
-In the same state court system
-In the same federal circuit
1. Terminology
a. “Transferor court”: The court from which we are
transferring
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b. “Transferee court”: The court to which we are
transferring
-Has to be a proper venue and have personal
jurisdiction over the D
-Can’t waive these rights to get to Hawaii
-(HOFFMAN v. BLASKY)
2. The two transfer statutes in the federal system
a. §1404(a) – The transferor court is a proper venue, and
we may transfer based upon three things:
1. Convenience of the parties
2. Convenience of the witnesses
3. Interest of justice
-The transferee court applies the choice of law
rules of the transferor court
b. §1406(b) – Venue in the transferor court is improper.
The court may transfer in the interest of justice or it may
dismiss
C. Forum Non Conveniens
-This is where a court dismisses the case because there is a
more appropriate venue
-When transfer is not available because the more
appropriate court is in a different judicial system
-Or the more appropriate ct is overseas
-Dismiss and let them go overseas
-PIPER v. RAYNO
-PA court should dismiss the case and
send it to Scotland because crash
occurred there
-Due to factors involving
§1404, belongs in Scotland
-When dismisses, can impose conditions on D
-i.e. you must waive a statute of limitations
defense
-The fact that the P cannot recover as much
is not determinative, just can be thrown into
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the mix of factors why it shouldn’t be
moved (PIPER)
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V. CHALLENGING FORUM SELECTION
(Contesting Jurisdiction)
-As long as you come to the forum just to challenge
jurisdiction, you have a protective bubble from satisfying In
Personam Jurisdiction
 “Special Appearance Doctrine”
A. Federal RULE 12
-When you get sued and receive notice, you have a
choice of response
-You can answer (a pleading) or make a motion
***RULE 12 lists seven particular defenses that the D
must raise in his answer or in motion to dismiss or they
will be waived!!!
RULE 12(b)(#)
(1) Lack of subject matter jurisdiction
-Can be raised anytime, never waived
(2) Lack of personal jurisdiction
-IN THE FIRST RULE 12 RESPONSE
(3) Improper venue
-IN THE FIRST RULE 12 RESPONSE
(4) Insufficient process
-IN THE FIRST RULE 12 RESPONSE
(5) Insufficient service of process
-IN THE FIRST RULE 12 RESPONSE
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(6) Failure to state a claim
-Anytime through trial
(7) Failure to join an indispensably party
-Anytime through trial
-(2) – (5) are the “Waivable Defenses”, if don’t use in
time, the defenses are waived!
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VI. THE ERIE DOCTRINE (Chp. 6)
(Usually only in diversity of citizen cases, must the fed ct follow state
law?)
-***Black letter law: The Federal Court must apply state
“Substantive” law
-Substantive law = question of liability/elements of law
-If this issue is a an issue of substance as opposed
to procedure, the ct must apply state law
-If there is federal law on point, it trumps state law
by the constitution
A. How do we determine under ERIE whether something is substance
for the Erie Doctrine and the ct has to apply state law
1. HANNA v. PLUMER: If there is a fed rule of civil procedure
on point that clashes with state law, the federal rule governs
-This is the “Rules-Enabling Act” §2072
-Not Erie Doctrine rule
-Fed rule wins if just arguable procedural and valid
-***THIS IS THE HANNA PRONG OF THE ERIE
DOCTRINE
B. If there is no federal law, and state law says you gotta do X, but the
judge says he wants to do his own thing and not apply state law.
-Can the federal judge ignore state law? (This is an Erie rules of
decision act problem!)
-If that issue is a matter of substantive law the fed judge
MUST apply state law
-Cannot do his own thing
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C. How do we know if it’s “Substance?”
-Courts have never given us a solid approach, it’s amorphous
FACTORS FOR APPLYING THE ERIE DOCTRINE
1. Outcome Determination
GUARANTY TRUST v. YORK
(State law v. what fed judge wanted to do)
-State law said case barred by SOL, but fed judge wanted to
ignore and use a fed equitable doctrine to let it go forward
-No fed rule of civil procedure on point (NOT HANNA)
-Sup Ct said the fed ct has to apply state law
-Ignoring this state law would affect the outcome of the
case
-IT WOULD BE OUTCOME DETERMINATIVE
-Sup Ct says the outcomes in fed and state should be the same
-Cases shouldn’t get longer life in fed than in state
-However all rules are somewhat outcome determinative
-11 inch paper v. 14 inch paper rule is technically
outcome determinative, clerk can refuse to take 11
2. Balancing of Interests
BYRD v. BLUE RIDGE RURAL ELECTRIC COOPERATIVE
(State law said that a particular issue is to be decided by the judge, fed
judge wanted jury to decide it)
-No federal rule on point so it’s an Erie problem
-We don’t know if this is outcome determinative because can’t say
what judge or jury would decide
-If some state rule is not clearly substantive the fed ct can apply
state law unless the fed ct system has some interest in doing it
differently
-SOLs are SUBSTANTIVE (apply state law)
-Sup ct said this is okay
-State rule for judge decision had no rational
-State has no interest in it
-Fed ct likes jury decisions
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 Fed interest outweighed the state interest
3. Twin Aims of Erie (HANNA)
(1) Avoidance of forum shopping
-If the fed ct did its own thing and ignored state law,
would people flock to fed cts to litigate on this issue?
-Unfair to instate citizens because can’t go to fed
ct due to diversity
(2) Avoidance of the inequitable administration of the
law
GASPERINI v. CENTER FOR HUMANITIES
-Sup ct blew it by not clarifying a system to apply the Erie Doctrine
WALKER v. ARMCO
-RULE 3 is not on point, does not declare SOLs not substantive
-Tolling of SOL is substantive law, apply state law
KLAXON v. STENTOR
-Choice of law rules are substantive for Erie purposes
Ω HYPO 1
-Assume RULE 23 would allow a class action to proceed, but a state
law says it is not
-Diversity case in federal ct
-Is this a matter of substance or procedure?
1. HANNA Prong
-Is there a fed directive on point?
-Yes, RULE 23 is on point and directly clashes with state
-Fed rule wins as long as valid/constitutional
-Valid if arguably procedural…YES
-Not an Erie problem/Rules of Decision Act problem
Ω HYPO 2
-When med mal case is filed, sent to arbitration panel in many states
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-Litigate before panel, panel decides
-If dissatisfied w/ decision P or D can insist on going
before a jury at full trial w/ panel decision usually
admitted as evidence
-Out of state P comes into forum engages Dr and claims med mal.
-P sues Dr based on diversity in fed ct
-Does the fed ct have to force this case to the arbitration panel
or let it go to a jury trial?
-Is this issue substantive or procedural?
1. HANNA Prong
-Is there a fed directive on point? NO
Not rules enabling act
Rules of decision act/Erie problem
2. Walk thru three factors
(1) Outcome determinative?
-Hard to say if panel will come out diff. than jury
(2) Balancing of Interests
-We will go w/ state law unless fed interest outweighs
state interest (BYRD)
-Different than BYRD because state is concerned
w/ welfare of its citizens
-Balance is for state law
(3) Twin Aims of Erie
-Will it cause litigants to flock to fed ct if skip panel?
-YES, P’s will flock to fed ct to get to juries
-Inequitable administration of the law?
-Unfair to instate P’s
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VII. PLEADING
(Documents that set forth claims and defenses (i.e. complaint, answer)
A. RULE 11
-Requires the attorney to sign ALL documents, not just
pleadings
-Except for discovery documents
-Have their own certification req
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-Certifies to the best of your knowledge and belief, after an
inquiry reasonable under the circumstances that:
a. The document is not for an improper prupose
b. The legal contentions are warranted by law, or there is
at least a non-frivolous argument that the law should
change
c. The factual contentions have evidentiary support or are
likely to after further investigation
d. The denial of factual contentions has evidentiary
support or are likely to after further investigation
-Three procedural matters for RULE 11
(1) The certification is affective every time that
document is presented to the court (continuing
certification)
(2) Sanctions are discretionary and are to be aimed at
deterrence. Can be non-monetary
(3) A motion for violation is served but is not filed.
-RULE 11 gives safe harbor of 21 days for other side
to fix their pleading
-If do not fix problem, can file motion for
sanctions
B. THE COMPLAINT
-When the complaint is filed, the lawsuit is commenced
1. RULE 8 – Tells what must be in the complaint
a. Grounds for subject matter jurisdiction
b. A short and plain statement of the claim showing that
you are entitled to relief
-As long as the judge can read it, make some sense
of it and think there is a claim there you’re alright
-Not a lot of detail necessary (DIOGUARDI)
c. A demand for judgment
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2. General Rule – Complaint must put the other side on notice
-Not a lot of detail necessary
a. Exceptions where details are necessary:
-RULE 9(b) – Circumstances constituting fraud or
mistake must be pleaded with particularity
-RULE 9(g) – Items of special damages must be
pleaded with specificity
-Items that don’t normally flow from an
event
-Ex: car accident => nerve damage
that gives permanent erection, wants
damages from it
C. The D’s Response
1. RULE 12 w/in 20 days of service of process, D will either
answer or bring a motion
2. Answer RULE 8
a. Respond to the allegations of the complaint:
-Admit
-Deny
-Lack sufficient information to admit or deny
b. Failure to deny is treated as an admission on all
allegations except damages!!!
c. Raise affirmative defenses (e.g. SOL, statute of frauds,
res judicata)
D. Amending Pleadings RULE 15
a. Three Basic Rules of Amendment RULE 15(a)
(1) P has the right to amend once before D serves her
answer
-If D files motion to dismiss, can the P still
amend? Yes, because a motion is not an answer or
pleading
(2) D has the right to amend once w/in 20 days of serving
her answer
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(3) If there is no right to amend, you seek leave of court.
-The amendment shall be freely given when justice
so requires
-Cts like to decide on merits not on
technicalities
b. Variance: where the evidence at trial does not match what
was pleaded. RULE 15(b)
Whenever there is variance at a trial either:
(1) The other side will not object to the variance
-We treat the pleading as though it is amended to
show the new information
OR
(2) The other side will object to the variance
-The evidence is inadmissible, but even at trial, the
party that is coming up with this evidence can seek
leave to amend
c. Amendments after the statute of limitations has run RULE
15(c)
15(c)(2) – Amendment is to add a new claim
-Amended pleadings will “RELATE-BACK” if
they concern the same conduct, transaction, or
occurrence as the original pleading
-“Relation-back” means you treat it as it was
filed during the original claim before the
SOL
15(c)(3) – Trying to amend to add a new D
-Allowed if you sued the wrong person the first
time around, but, somehow, the right person knew
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about it and can be charged with knowledge of it
and that but for a mistake he would have been
charged in the original complaint
15(c)(1) – Relation-back if a statute allows it
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VII. JOINDER
-Not just joinder rules, but also federal subject matter jurisdiction
-Every single claim ever asserted in fed ct has to have a FSM J
-By diversity or by FQ
-If not, think about supplemental J
A. Claim Joinder by the P RULE 18
-P can assert any and all claims against the D
-Even from multiple t/o’s
-Procedural for joinder first, then FSM J
B. Claim Joinder by the D
1. Counterclaim – A claim back against an opposing party
-RULE 13(a) “Compulsory Counterclaim”: A claim against a
co-party that must arise from the same t/o as the underlying
dispute
-Compulsory because unless we have already sued on
this, the D must asserted here or else it is waived forever
-The only claim in the world that you must lose or
you lose
-RULE 13(b) “Permissive Counterclaim”: A claim that does
not arise from the same t/o as the P’s claim and does not have
to be asserted in the same case
-When a compulsory counterclaim does not pass FSM J,
you can use federal sup J
1. Does §1367(a) grant F Sup J?
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-Yes if it shares Common Nucleus of
Operative Fact
-By definition, a compulsory
counterclaim will always pass this!
-Must share same t/o
2. Does §1367(b) kill F Sup J?
-Yes if it is a diversity case w/ a claim
asserted by P’s
-Claims asserted by a P against
somebody joined by RULE 14, 19,
20, 24
-Claims asserted by a RULE 19 P
-Claims by somebody seeking to
intervene as a RULE 24 P
-Counterclaims asserted by D’s are fine
2. Cross-Claim
-A claim asserted against a co-party that must arise from
the same t/o as the underlying dispute
-Not compulsory
Ω HYPO
-Three-way car crash
-All claims exceed $75k and invoke diversity J
P (SC) ---------------->
<-------------
D1 (NC)
↑
D2 (NC)
D2 has claims against other two parties
-What is the problem with the cross-claim?
-No diversity J!
-Invoke Sup J
-§1367(a) grants it, same t/o
-§1367(b) applies in diversity case
-Does not hurt us, claim by D
C. Proper Parties RULE 20
-Who may be joined as co-parties in a single case?
-Two Part Test to join as co-P’s:
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1. Did the claims arise from the same t/o?
2. The claims raise at least one common question
-Two Part Test to join as co-D’s:
1. Did the claims against the two arise from the
same t/o?
2. The claims raise at least one common question
-Then assess whether there is FSM J
D. Necessary and Indispensable Parties RULE 19
1. Who MUST be joined in a pending case?
-Three Tests:
a. RULE 19(a)(1) – W/o absentee, can the court
accord complete relief among those who are
already joined?
-If NO, absentee is necessary
b. RULE 19(a)(2)(1) – The absentee’s interest
might be harmed if she is not joined
c. RULE 19(a)(2)(2) – Does the absentee’s
interest potentially subject the D to multiple or
inconsistent obligations?
-***JOINT TORTFEASORS AREN’T
NECESSARY PARTIES
2. Is joinder of the absentee feasible?
a. Not Feasible
- Personal Jurisdiction – Not feasible if there is no
personal jurisdiction
- Subject Matter Jurisdiction – Not feasible if it
would destroy subject matter jurisdiction
b. Feasible
-Join absentee to the case
3. Decide whether to proceed w/o absentee or dismiss the case
-RULE 19(b)
-Almost never will dismiss if there is not an
alternative forum
-We decide whether the claim is strong
enough to hurt the over all case
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***IF IT STARTS WITH I: Bringing in someone NEW
***IF IT STARTS WITH C: Dealing with already existing parties
E. Impleader (“Third Party Practice”)
-Allows the D to join somebody new (Third Party D) because
the TPD is or may be liable to the D for all or part of the P’s
claim
-This is a claim for indemnity or for contribution
-Indemnity: liable for the entire claim
-Contribution: liable for part of the claim
***THIS IS WHERE YOU JOIN THE JOINT-TORTFEASOR, Implead him!
-Then assess FSM J of course.
F. Intervention
-Absentee seeks to bring herself into a case. It is up to the
absentee to decide which side to come on.
-Court can rearrange whether P or D
-Two Types:
a. RULE 24(a)(2) – “Intervention of Right” – Satisfied if
you show that the absentee’s interest will be harmed if
she is not joined and her interest is not adequately
represented now
-Deals with potential harm incurred if
someone is not involved in the case
b. RULE 24(b)(2) – “Permissive Intervention” –
Absentee’s claim or defense has at least one question in
common with the pending case
-At courts discretion to allow
-If this is a claim by a P or D intervener of right (e.g. close
enough to the CNOF), §1367(a) will apply
-§1367(b) takes away Sup J by P interveners!!!!!
-Intervener of right coming in as a P, NO SUP J!
-Claim against D intervener of right, NO SUP J!
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G. Interpleader
-Involves a dispute over property. Somebody holding property
(the stakeholder) can force all potential claimants into a single
case
-Two Types of Interpleader:
1. Rule Interpleader RULE 22 – A diversity of
citizenship case
-The stakeholder must be diverse from every
claimant
-Must exceed $75k
-Normal venue rules
-Regular service of process rules
2. Statutory Interpleader: You need one claimant
diverse from one other claimant. You do not need
complete diversity.
-All you need is one claimant diverse from
one other claimant
-All you need is $500 or more §1335
-We lay venue where any claimant resides
-You get nationwide service of process
-Never get any personal jurisdiction
problems if in USA
H. THE CLASS ACTION
-A representative(s) sues on behalf of a group RULE 23
1. Initial Requirements
-Must meet all four:
(1) Too numerous for practicable joinder
(2) Commonality
(3) Representative’s claims must be those typical
of the class
(4) Representative will fairly and adequately
represent the class
-And her lawyer is adequate too
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2. Must fit the case w/in one of three kinds of class actions
a. RULE 23(b)(1) - “Prejudice Class Action” – Where
class treatment is necessary to avoid harm to the class
members or to the party opposing the class
-Some P’s win some lose
-Different awards to different P’s
b. RULE 23(b)(2) - Party opposing the class acted on
grounds that are generally applicable to the class, and
that makes an injunction or declaratory judgment
appropriate
c. RULE 23(b)(3) – Damages class
-A class usually after money
Two Reqs:
(1) Must show that common questions
predominate
(2) Must show that the class action is the
superior method for resolving this
dispute
-i.e. mass tort – bus flies off mount.
3. Notice to the Class
a. RULE 23(b)(3) – Class representative pays to give
individual notice to all members reasonably identifiable
Must Tell Them:
-They may opt-out
-They will be bound if they do no opt-out
-They may enter a separate appearance
though counsel if they want
-No notice req in (b)(1) or (b)(2)
-Cannot opt out of (b)(1) or (b)(2)
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IX. PRE-TRIAL ADJUDICATION
A. Voluntary Dismissal – RULE 41(a) – Where the P just wants to
dismiss the case
Methods:
1. Stipulation of the parties
2. Court Order
3. P may dismiss w/o prejudice once by serving a notice of
dismissal before the D serves her answer or motion for
summary judgment (EARLY)
B. Involuntary Dismissal
-Court can raise these sua sponte
-(LINK)
Methods:
1. Failure to prosecute
2. Failure to abide by the federal rules
3. Failure to abide by a court order
-Dismissed with prejudice unless case based on:
-Jurisdiction, Venue, Indispensable parties, or the court
says otherwise RULE 41(b)
C. Default
1. RULE 55(a) – The P must request the entry to default from
the clerk of the court when the D has not responded w/in 20
days after service of process
-Once entered, the D cannot respond unless the default is
set aside
-Cannot collect awards unless get default judgment
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D. Default Judgments RULE 55(b)
-D has not responded so if pass requirements:
-Can get a judgment from the clerk of the court
-More likely to go to judge for entry of judgment
-Might hold hearing for damages
-THE P CANNOT RECOVER MORE OR
DIFFERENT TYPE OF RELIEF THAN ASKED
FOR IN THE COMPLAINT
E. RULE 12(b)(6) Motion
1. Motion to dismiss for failure to state a claim
2. The court does not look at evidence, instead it looks at the
face of the complaint
-If all of this were true, would the P win a judgment?
-Granted almost always w/ leave to amend
-Usually if state the cause of action bad
F. Motion for Summary Judgment
1. Court can look at evidence
2. Standard for granting Motion for Summary Judgment:
a. Moving party must show that there is not genuine issue
as to any material fact
AND
b. That she is entitled to judgment as a matter of law
-If the judge sees one inference of these facts as being
more plausible than another to grand Sum J on that
(MATSUSHITA)
-Judge cannot decide issues of material fact
-Can’t weigh affadavits
-Pleadings are not evidence
-Sum J can knock out some of several claims
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X. TRIAL AND RELATED MOTIONS
A. Right to a jury trial, demand it at RULE 38
-7th Amendment
-Not at suits of equity
-Three important issues BEACON & DAIRY QUEEN:
(1) We determine the right to a jury issue by issue
(2) If an issue of fact underlies both the remedy at law
and the remedy at equity, you must have a jury
(3) Generally, we will try the jury issues first
-Juries are justified in class action in the same way as normal
cases
-Decide between legal or equitable claim
B. Selection of a Jury
1. RULE 48 – Governs how many jurors there are in a civil in
federal court
a. Each side has unlimited strikes of potential jurors for
cause
-Cause = if they are biased/related to a party..etc.
b. Each side gets three peremptory strikes.
-However, you must have a race-neutral and
gender-neutral reason for using these strikes
C. Motions Related to the Trial
1. Motion for Judgment as a Matter of Law RULE 50(a)
-Judge steps in and takes the decision away from the jury
-You can move for this only after the other side
has had a chance to present its case
-Can move also at the close of all evidence
-JMOL if for something you have to show A, B, C,
D, and you don’t show B
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-Reasonable people could not disagree on
the result
-Makes no sense for this to go to the
jury
2. Renewed motion for JMOL (JNOV) RULE 50(b)
-The judge has let the case go to the jury, and the jury has
returned a verdict for one party. The court enters a
judgment. The losing party brings this motion and if the
motion is granted, we take the judgment away from the
person who won the verdict and we enter judgment for
the person who lost the verdict
-After we look at all the evidence and the jury
comes up with a conclusion reasonable people
could not come up with
-Safety valve to undue bad judgments
-10 days after enter of judgment
-***JMOL AFTER ALL EVIDENCE is a pre-req to the
renewed motion for rewned JMOL!!!
-Waived right to renewed JMOL if didn’t ask for
JMOL AT THE CLOSE OF ALL EVIDENCE
-Not after P presents, has to be at end of
ALL EVIDENCE
3. Motion for New Trial RULE 59(a) – Judgment has been
entered but there have been errors at trial that require the case to
be retried
-It can be a partial retrial
-Just a couple of issues
-Maybe the damages are way off
-Does it SHOCK THE CONSCIENCE?
-“Remititur”: Judge can say take lower award or new trial
where you could lose
-It’s okay in fed ct
-“Additur”: Judge says that D has to give more or new
trial
-UNCONSTITUTIONAL by 7th Amendment
-7th amendment does not apply in state court
though, but states have own laws about it
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XI. THE BINDING EFFECT OF DECISIONS / PRECLUSION
DOCTRINES
A. Res Judicata (Claim Preclusion)
-You get one case in which to vindicate your claim
1. You must show that Case 1 and Case 2 were brought by the
same claimant against the same D
-And in the same configuration
2. Case 1 must have ended in a valid final judgment on the
merits
-Default judgment counts as “on the merits”
-Any judgment in favor of the claimant is seen as “on the
merits”
-All judgments are on the merits unless due to
jurisdiction, venue, or indispensable parties (without
prejudice)
3. Case 1 and Case 2 must involve the same claim
-Generally, the court for case 2 will look to the res
judicata/collateral estoppel rules from the case 1 state
-Typically the courts focus on the t/o from which all the harm
arose
OR
-Some jurisdictions look at the rights invaded
SEMTEK
-Involuntary dismissal from fed ct because the case was bared by the
CA SOL
-Brought to MA state ct where not barred
-Res Judicata?
SURPRISING “On the Merits” means you can’t refile it in
the original CA fed district ct, but whether “on the merits”
means “on the merits” for res judicata purposes, depends on the
law of the jurisdiction that decided the first case
-Look to federal law here
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-But in most instances we can look to the state law too..
-Works in MA, CA state law says its okay. FUCK!
Ω HYPO
-Car collision
-Case 1: Lucy v. Ethel for PI from the collision
-Valid final judgment on the merits entered
-Case 2: Lucy v. Ethel for property damage from the collision
-Dismiss for res judicata?
1. Was the party configuration the same?
-Yes
2. Was there a valid final judgment on the merits?
-Yes
3. Do both cases involve the same claim?
-Courts are split!
-Majority: same t/o  Dismiss!
-Minority: no res judicata, suing on a
different claim under the “Primary
Rights” theory
-Harm to property v. body
- Claim preclusion results in a “merger and bar” principle: If P wins
the first action, his claim is merged into his judgment. He cannot later
sue the same D in the same cause of action for higher damages. If the
P in the first action loses, his claim is extinguished, and he is barred
from suing again on that cause of action
B. Collateral Estoppel (Issue Preclusion)
-There was an issue litigated in case 1 and that issue is deemed
to be established in case 2
-Say case 1 established A, B, C, D, E
-Say case 2 deals with issue X, Y, Z, A
-We say issue A is already est. due to case 1
-Only litigate X, Y, Z
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Elements:
1. Show that Case 1 ended with a valid final judgment on the
merits
2. Show that the same issue was actually litigated and
determined in Case 1
3. Show that the issue on which we want collateral estoppel
was essential to the judgment in Case 1
a. Sometimes judgments are made that aren’t essential to
the case
i. i.e. a finding of contrib. neg’l in a non contrib.
state
4. Against whom is collateral estoppel being used. You can
only use collateral estoppel against someone who was a
party to Case 1
5. By whom is collateral being asserted. Mutuality is not
required by due process
a. “Mutuality” says it can only be used by somebody
was a party in Case 1
i. It’s eroding, not necessary for due process
1. Non-mutual collateral estoppel is ok
-“Non-mutual defensive collateral estoppel”
-A person not in Case 1 who is a D in Case 2
Ω HYPO
-Barney is driving Aunt’s car, collides w/ Andy
-Aunt is vicariously liable
-Case 1 Andy v. Barney, Barney wins, Andy is neg’l
-Case 2 Andy v. Aunt
-Aunt wants to say Andy was found neg’l in Case 1, give me
collateral estoppel
-Can she?
Elements:
1. Yes, valid final judgment on the merits
2. Yes, Andy’s neg’l was litigated and
determined in Case 1
3. Yes, Andy’s neg’l was essential to the
judgment
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4. Okay, C.E. is being used against Andy
5. Asserted by Aunt, not a party in Case 1
 NON-MUTUAL DEFENSIVE
ESTOPPEL
-Majority says this is okay as long as
Andy had a fair opportunity to litigate
in Case 1
-Non-Mutual Offensive Estoppel
-P in Case 2 is not a party in Case 1
-Hypo with the same facts:
-Case 1 Andy v. Barney, Barney wins, Andy neg’
-Case 2 Aunt v. Andy
-Her car was damaged and Andy has been
found neg’l so wants for that wreck
-First four elements are met
-Fifth element: non-mutual by Aunt
-Majority view will not allow
Non-Mutual Offensive
Estoppel
-Minority view is okay with it
if we can convince the ct that it
would be fair under the
circumstance on a case by case
basis
Offensive Factors:
1. Andy had a fair opportunity
to litigate in Case 1
2. Andy could foresee multiple
suits
3. Aunt could not have joined
easily in Case 1
-Ambiguous!
4. No inconsistent judgments
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