Jennifer Good
Jen Good
Page 1
CIVIL PROCEDURE – PROFESSOR LEVIN – SPRING 2002
I.
Introduction to Civil Procedure – Chapter
1. Overview of Civil Procedure
a) Adversarial System
1) FOUR POSTULATES – Reasoning for Adversarial System
1. Truer decision when argued directly by interested parties
2. Parties interested should bear major burden of cost
3. Setting up sides makes “yes or no” decision easier
4. Instinct to “do battle” is better satisfied by settling disputes than left in the hand of the parties
b) So – the question to remember is:
1) Do the system, rules and guidelines lead to a just and efficient determination of legal
controversies?
An Overview – Procedure & Process – Case Book – pages 3-17
1) Selecting a Proper Court
Generally: Courts must have all of the following to hear a case
1. PERSONAL JURISDICTION
2. SUBJECT MATTER JURISDICTION
3. VENUE
i. Personal Jurisdiction and Venue can be waived
ii. Subject-Matter jurisdiction
1. cannot be waived
2. can be reviewed by the court AT ANY TIME
1. JURISDICTION - Court must have
i. Personal Jurisdiction
persons must be amenable to suit in court’s jurisdiction
ii. Subject-Matter Jurisdiction
1. court must have “power” to hear this type of case
iii.  FOR Federal Court Jurisdiction
1. Federal Question Jurisdiction – arising out of
2. Diversity of Citizenship
a. Amount in Controversy – 75,000
3. Removal
b. Δ option to remove to fed court based on Π claim (not on Δ crossclaims, etc)
1.
2. VENUE
i. Case must come before court which is within district, county of jurisdiction
2) Commencing the Action
1. Service of Process
i. Summons
1.
generally by Personal Service
a.
2.
physically to Δ or to Δ home
Occasionally Substituted Service is allowed
b.
i.e registered mail, agent delivery
2. NOTE: Service of Process must be “reasonably calculated to bring the action to Δ notice”
Jennifer Good
Jen Good
Page 2
Overview of Civil Procedure
3) Pleading and Parties
1. Π – Complaint
ii. written statement containing Π claim against Δ
iii. PURPOSE of COMPLAINT
1. identify legal and factual contentions
2. establish in advance what Π is going to prove at trial – NOTICE
a. will require detailed pleading
3. Give each side only general idea
b. will require less detailed complaint
4) The Response
1. motion to dismiss – May be granted if:
i. no legal remedy provided for type of complaint
ii. Π failed to include necessary part of case in complaint
iii. so general, confusing that courts cannot determine complaint
2. Admit or Deny allegations
iv. must plead any affirmative defenses here
3. Π may reply or Δ may counterclaim [Optional]
5) Obtaining Information Prior to Trial
1. Discovery
i. methods of obtaining information from opp. party
1. Depositions
a. questioning by attorney’s through direct and cross-examination
2. Written Interrogatories
b. questions to opp. party answered w/ attorney’s aid
3. Production of Documents
4. Request for Admissions
c. removes uncontested issues from case
5. Physical Examinations
2. New FRCP Rules:
i. require parties to automatically identify information and documents which prove to
be important
6) Summary Judgment
1. Motion by either party to rule in their favor, resolved in favor of other party, that they, even
if case looked at most favorable to that party, cannot produce enough evidence to win case
7) Setting the Case for Trial
1. Note of issue
i. number and placed on trial calendar – trial date
8) The Jury and its Selection
1. 7th amendment – right to jury trial
2. Challenge for Cause – bias, etc. (reason for dismissal)
3. Preemtory Challenges – no reason – (limited #, attny discretion
Overview of Civil Procedure
Jennifer Good
Jen Good
Page 3
9) The Trial
1. Opening Statement
2. Evidence
i. no hearsay – (several exceptions)
3. Parties Rest
4. Motions for Directed Verdict – renewed Summ. Judgment
10) Submitting the Case to the Jury
1. Burden
i. Preponderance of Evidence (more yes than no)
ii. Π – burden of prima facie
iii. Δ – burden of proving affirmative defenses, rebutting Π prima facie evidence
2. Verdict
i. General
1. conclusion
ii. General w/ Interrogatories
2. answer specific questions
iii. Special
3. answer questions and judge determines law based on answers
11) Post-trial motions
1. JNOV
i. renewed motion for judgment as a matter of law
2. New trial
ii. error in applying law, granting or denying motions
12) The Judgment and its Enforcement
1. Order – Enforced by Execution
1. Writ of Execution – commands officer of court to enforce
2. Injunction
3. Costs
13) Appeal
1. Briefs and ORAL Arguments on Appeal
2. Only review ruling of law – may not review factual determinations
3. AC can affirm, reverse, modify
4. WHAT CAN BE APPEALED – see page 16
14) The Conclusiveness of Judgments
1. Doctrine of Res Judicata –
a thing decided, and now at rest
2. When time for appeal is expired, and no appeal made, party cannot challenge a judgment
3. Basically, doctrine of avoidance of re-litigating same factors over and over again
Jennifer Good
Jen Good
Page 4
PERSONAL JURISDICTION – Jurisdiction over the Parties
i) First, make sure that the court has "personal jurisdiction" or "jurisdiction over the parties." You must
check to make sure that:
(1) D had MINIMUM CONTACTS with the forum state (whether the court is a state or federal court); and
(2) D received such NOTICE and OPPORTUNITY TO BE HEARD as to satisfy the constitutional requirement of
due process.
*****NOTE*****To hear the case, the court must also have subject matter jurisdiction and proper venue
ii) There are two distinct requirements to be met before a court has jurisdiction over the parties
(1) Substantive due process:
(a) The court must have power to act, either upon given property, or on a given person so as to subject
her to personal liability. The Constitution’s Fourteenth Amendment Due Process Clause imposes this
requirement of power to act, as a matter of "substantive due process." – Can do this through minimum
contacts or long-arm statute.
(2) Procedural due process:
(a) Also, the court must have given the defendant adequate notice of the action against him, and an
opportunity to be heard. These, taken together, are requirements of procedural due process, also
imposed by the 14th Amendment’s Due Process Clause.
iii) 3 different kinds of jurisdiction - one of these three must be present for the case to go forward.
(1) In personam: In personam jurisdiction, or jurisdiction over the defendant’s "person," gives the court power
to issue a judgment against her personally. All of the person’s assets may be seized to satisfy the judgment,
and the judgment can be sued upon in other states as well.
(2) In rem: In rem jurisdiction, or jurisdiction over a thing, gives the court power to adjudicate a claim made
about a piece of property or about a status. (Examples: An action to quiet title to real estate, or an action to
pronounce a marriage dissolved.)
(3) Quasi in rem jurisdiction: In quasi in rem jurisdiction, the action is begun by seizing property owned by
(attachment), or a debt owed to (garnishment) the defendant, within the forum state. The thing seized is a
pretext for the court to decide the case without having jurisdiction over the defendant’s person. Any
judgment affects only the property seized, and the judgment cannot be sued upon in any other court.
**NOTE*** see nutshell for current use of the 3 types of jurisdiction**********
(a) Minimum contacts requirement:
(i) If jurisdiction in the case is in personam or quasi in rem, the court may not exercise
that jurisdiction unless D has "minimum contacts" with the state where court sits.
1. Δ has to have taken actions that were purposefully directed towards the forum state.
(Examples of the required action: D sold goods in the state, or incorporated in the state,
or visited the state, or bought property in the state, etc.) Without such minimum
contacts, exercise of jurisdiction would violate due process.
2. Unreasonable exercise: Even if D has the requisite "minimum contacts" with the
forum state, the court will not exercise jurisdiction if considerations of "fair play and
substantial justice" would require making D defend in the forum state so unreasonable
as to constitute a due process violation. But in most cases, if D has the required
minimum contacts with the forum state, it will not be unreasonable for the case to be
tried there.
iv) Long-arm statutes:
(1) State statute which permits the court of a state to obtain jurisdiction over persons not physically present
within the state at the time of service. (Example: A long-arm might allow jurisdiction over an out-of-stater
who has committed a tort in the state.)
(a) Depends on the State  Jurisdiction generally may be based on citizenship, property ownership, or
tortuous act in the state.
(b) Substitute service: Long-arms typically provide for "substitute" means of service, since in-state personal
service is not possible. (Example: A long-arm statute might allow the plaintiff to cause the defendant to
be served out of state by registered mail.)
Jennifer Good
Jen Good
Page 5
PERSONAL JURISDICTION – Jurisdiction over the Parties
Personal Jurisdiction Over Individuals
i) Traditional Basis of Jurisdiction
(1) Pennoyer v. Neff - for personal jurisdiction, Δ must be present in state and service of process must
occur within the forum state
(i) even if Δ is only in state for minutes, if served while in state this is sufficient Burnham
1. Although Pennoyer limits are valid, since Pennoyer jurisdiction has been expanded to
include personal jurisdiction in other situations that do not satisfy these requirements
ii) CATEGORIES generally sufficient for personal jurisdiction
 In most states, there are a # of diff. criteria enabling court to take personal jurisdiction
 **HOWEVER*** Regardless of the criteria used by the state and its long-arm for establishing personal jurisdiction over
the individual, due process requires that the individual have minimum contacts and jurisdiction must not offend traditional
notions of fair play and substantial justice.
(1) Presence
(2) Domocile
(a) temp. presence in state even if unrelated to lawsuit is sufficient for pers. jurs. if service is made
while Δ is in the state even if Δ is out of state resident and has no other contacts with state
(i) Burnham v. Supr Court -because hx. basis of jurisdiction, presence is valid and comports with fair play
(a) If Δ has 1) current dwelling place and 2) intention to remain in place for indefinite time period
(i) domicile does not change until a new domicile is created
(b) Miliken v Meyer- purposeful availment of absent Δ by domicile – so min. contacts
(c) Residence
(i) some jurisdictions allow based on residence, although SC has not ruled on residence, and keep
in mind that one may have several residences at one time
(3) Consent
(a) Δ can consent to suit in the case either explicitly or implicity (i.e. implied)
(i) Consent by filing an action, written consent, (contract, etc) voluntary appearance in court
satisfies minimum contacts requirement, jurisdiction choice of law in k
(b) ie. Driving a car within a state
(i) use of the states highways, etc. is considered implied consent to pers. jurisdiction
(ii) Hess v. Palowski
1. out-of-state motorist involved in an accident – consent is implied
2. HOWEVER – jurisdiction is limited for actions arising out of the act
a.
most LAS allow for service on state official and registered mail to out-of-state Δ
(4) Committing a Tortious Act
(a) Most states allow but may be limited to actions arising from the act itself
(i) Out-of-state acts with in-state consequences:
1. Some "in-state tortious acts" long-arm clauses have been interpreted to include acts done
outside the state which produce tortious consequences within the state.
2. Gray v. American Raditator - court found minimum contacts within the state because Δ
invoked the benefits of the state –
(5) Ownership of Property
(a) may not be enough under some, but remember Levin's Vermont example
(i) although satisfies minimum contacts b/c by buying land the Δ puposely availed himself to the
forum (i.e. protection if a fire on property)
(6) Conducting Business
(a) States often exercise jurisdiction over non-residents who conduct businesses within the state.
Since states may regulate an individual’s business conduct in the state, they may constitutionally
exercise jurisdiction relating to that doing of business
(7) Domestic Relations Cases
(a) Remember, although state interest, Min Contacts applies
(i) Kulko – Father in New York permits daughter to go to Cal & live there with her mother. Held, father
does not have sufficient min. contacts with Cal. to allow the mother to bring an in personam suit in
California against him for increased child support
Jennifer Good
Jen Good
Page 6
PERSONAL JURISDICTION – Jurisdiction over the Parties
Modern Basis for Jurisdiction
(1) International Shoe – MINIMUM CONTACTS TEST "presence in forum state"
(a) Δ must have sufficient minimum contacts with the forum state
(i) continuous and systematic, giving rise to liability sued on
(b) suit cannot offend traditional notions of fair play and substantial justice.
(i) goes to fairness and inconvenience
(ii) Balance the inconvenience to the Δ and the states interest in adjudicating
1) this generally is satisfied if minimum contacts are found
1. courts do not consider this until min. contacts threshold is passed
(1) Factors to MINIMUM CONTACTS
(a)
(b)
(c)
(d)
frequency, nature of contacts
contracts arising from contacts & benefits of contacts
connection between the lawsuit and the contact
intentional tort (shows voluntary action toward the state)
(2) Constitutional Limitations on International Shoe Due Process Test
(a) Δ acts must be purposefully directed toward the forum state "Purposeful Availment"
(i) Hansen – unilateral activity of those claiming relationship to the Δ not sufficient – Δ must purposely avail self to the
benefits of the forum state (she moved to Fla, Fla cannot assert based on her moving)
(ii) Asahi – activities must be purposely directed toward the forum state, so simply placing in the stream of commerce is not
sufficient to satisfy min. contacts, so court does not even do the fairness test – Δ would need additional acts, i.e. advertising
in forum state – So RULE: Stream of Commerce + 1 (plurality) – Some say it would be diff. today
(b) Δ Must reasonably foresee being haled into court in the forum state
(i) WWV - b/c Δ sold car and car was then driven to state – the unilateral activity is not sufficient for pers. jur. over Δ – 2
prongs 1) convenience/fairness and 2) power to hear
1) Contacts for corporations is lower because there less burdensome for Δ corp than for
individual and the ind. must have more than one incidental contact (likely)
2) however – if WWV had advertised in forum state, it may have been sufficient because it would be a
deliberate act and therefore purposeful availment
(c) Δ contacts must be continuous and systematic
(i) Helicopteros- mere purchases in forum state do not support jurisdiction if the action is not related to those purchases
(ii) Although 1 intentional act may allow for specific jurisdiction re: that action
1) A single act may be sufficient for jurisdiction re: actions arising out of act
(iii) Burger King
1) Δ continuous and systematic dealings w/ forum state long-term contracts and thus should
reasonably foresee being haled into court support jurisdiction, although contract alone does
not satisfy minimum contacts requirement
(d) There must be some contact between the Δ actions and the forum state & litigation
(i) i.e. mere ownership of property will not support general jurisdiction
THE INTERNATIONAL SHOE SPECTRUM
Decreasing Contacts
Increasing Contacts
Extent
of
No
Casual or Isolated
Single
Continuous
Substantial or
Contacts
Contacts
Contacts
Act
but limited
Pervasive
_____________________ I_____________I__________________I_______________I___________________I_______
No
No
Specific
General
General
Jurisdictional
Jurisdiction
Jurisdiction
Jurisidiction
Jurisdiction
Jurisdiction
Consequences
Jennifer Good
Jen Good
Page 7
PERSONAL JURISDICTION – Jurisdiction over the Parties
Jurisdiction Over Corporations, other Entities
1) Resident Corporation (Incorporated in the Forum State)
(1) Any action may be brought against a domestic corporation (incorporation in forum state satisfies
minimum contacts)
(a) However, must be beyond the mere presence of an agent
(i) note that this is different that diversity jurisdiction for corp. bc here incorporation is residence, whereas in diversity
jurisdiction the "place of business" satisfies the citizenship requirement
(2) This is basically just in personam because the Δ corp is for all intents and purposes a resident
(3) Not incorporated – FOREIGN  a corporation may be considered "present" when their activities were
sufficient and continuous enough to constitute "presence"
(a) this is basically MINIMUM CONTACTS
2) Non-Resident Corporation (Foreign – not incorporated in the forum state)
(1) Must meet minimum contact requirement of International Shoe
(a) Must have minimum contacts with the forum state
(b) must comport with traditional notions of fair play and substantial justice
(i) Even where min contacts exist, it will violate due process for the court to hear a case against a non-resident defendant where it would be
"unreasonable" for the suit to be heard. The more burdensome it is to the defendant to have to litigate the case in the forum state,
and the slimmer the contacts (though "minimum") with the forum state, the more likely this result is to occur
(2) Business Dealings with Residents of Forum State
(a) When Δ has sufficient business dealings w/ forum state, the if the Δ has voluntarily sought
to do business in or with residents of a forum state
(3) Use of agents:
(a) When out of state co. uses another co. as in state agent  Even though all business within
the state is done by the agent, the principal (the foreign corporation) can be sued there, if
the agent does a significant amount of business on the foreign company’s behalf. (Min.
Contacts)
(4) Claims based on Contractual Relationships
(a) Could the defendant have reasonably anticipated being required to litigate in the forum
state
(i) consider factors such as whether one party was state res, choice of law clause, payments
(5) Claims unrelated to the Δ in-state actitivity
(a) ONLY if Δ contacts are continuous and systematic can forum state assert general
jurisdiction
(i) i.e. Helicopteros – not sufficient b/c claim in unrelated to Δ corps in state contacts
(6) Products Liability
(a) effort to market in the forum state or min. contacts including knowledge that product
would end up in the forum state AND requiring Δ to defend in the forum state must not
be unreasonable
(7) Internet Websites
(a) maybe not for passive sights, but prob. for sights which try to sell to in-staters (and solicit
business) although this area is unsettled and a minimum contacts analysis is necessary
EXAMPLES
1. Example 1 (minimum contacts found): D has no activities in Washington except for the activities of its salesmen, who live in the state
and work from their homes. All orders are sent by the salesmen to the home office, and approved at the home office..  Held, the
company has minimum contacts with Washington. International Shoe Co.
2. Example 2 (minimum contacts found): D is a Texas insurance company, does not solicit business in California, but takes over, from a
previous insurance company, a policy written on the life of X, a California resident. D sends X a new policy; X sends premiums from his
California home to D’s out-of-state office. X dies; P (the beneficiary under the policy) is a California resident. P sues D in California for
payment under the policy.  Held, D has minimum contacts with California, and can thus be sued in personam there in a suit by P for
payment on the policy. McGee v. International Life Ins. Co.
3. Example 3 (minimum contacts not found): D, Delaware bank, which acts as trustee of a certain trust. S, the settlor of the trust, is a
Pennsylvania resident at the time she sets up the trust and then moves to Florida. Later, her two children, Florida residents, want to sue D
in Florida for a judgment that they are entitled to the remaining trust assets. D has no other contacts with Florida.  Held, D does not
have minimum contacts with Florida, and therefore, cannot be sued in personam there b/c unilateral contacts. Hanson v. Denckel
Note
Jennifer Good
Jen Good
Page 8
The key idea is that D will be found to have minimum contacts with the state only if D has purposely availed itself of the chance to do
business in the forum state. Thus in # 2 the insurance company offered a policy to someone who it knew was a resident of the forum
state. In #3, by contrast, the trustee never voluntarily initiated business transactions with a resident of the forum state or voluntarily did
business in the state –was only S’s unilateral move to forum state that est. any connection with state, so no min.
Jennifer Good
Jen Good
Page 9
PERSONAL JURISDICTION – Jurisdiction over the Parties
Federal Personal Jurisdiction over the Parties
Basically, you must check 3 things:
(1) Territory for Service (2) Manner of Service (3) Amenability
i) TERRITORY FOR SERVICE
(1) General Rule – FRCP 4k
(a) Service of Process may only be made
(i) within the territorial limits of the state where the DC sits
(ii) Anywhere else as permitted by state law of the state where the DC sits
(2)
(3)
(4)
ii)
(1)
(2)
(3)
iii)
(1)
1) i.e. by way of a long arm statute
(b) if arise under fed. law and the Δ is not otherwise subject to gen jurisdiction of any state
100 Mile Bulge Rule
(a) allows for out of state service even if not permitted by local law
(b) ONLY APPLIES where out-of-staters are brought as additional parties to already pending action (3d
party Δ by way of rule 14, or impleaded parties by way of Rule 13
(c) Allows for service of process anywhere within a 100 mile radius of the court
Nationwide Service of Process
(a) for suits against federal officials and agencies
(b) IMPLEADER
*NOTE*
(a) A defendant who is not located in the state where the district court sits may not be served if he does
not fall within one of the four special cases described above (servable pursuant to state long-arm,
100-mile bulge, nationwide service or foreign defendant not servable in any state), even if he has the
constitutionally-required minimum contacts with the forum.
(b) This is true whether the case is based on diversity or federal question
MANNER OF SERVICE – SUITABLE
Individual 4(e)
(a) Personal
(b) Substitute
(i) to a person of suitable age and discretion residing at Δ residence
(c) Agent
(i) appointeor designated by law (i.e. states allow DMV in re: car accidents)
(d) Local State Law
(i) By serving D in the manner provided by either:
1) the law of the state where the Fed DC sits, if that state has a provision OR
2) the law of the state where the person is being served
Corporation 4(h)(1)
(a) officer, managing agent or any other authorized by law to receive service of process
(b) LOCAL STATE LAW
(i) of state where action is pending OR
(ii) State where service is made (4(h)(1)
Waiver of Service 4(d)
(a) by mail if Δ cooperates
(i) Δ is mailed a request for waiver of service, and if Δ agrees, in-person service is not required
(ii) INCENTIVES
1) If Δ refuses this, Δ will have to bear costs unless Δ shoes a good cause for refusal
AMENABILITY
Δ must be closely enough linked to state where Fed Court sits to be "amenable"
(a) FEDERAL QUESTION
(i) generally, if the Δ could constitutionally be subject to jur. in state court where fed court sits,
even if the state would not have juris. (b/c of limited long-arm stat)
(ii) generally must have min. contacts with the state where the fed court sits
(b) DIVERSITY
(i) only by state law of the court they sit (think Erie since no FRCP on point)
PERSONAL JURISDICTION – Jurisdiction over the Parties
Jennifer Good
Jen Good
Page 10
Jurisidiction Over Things – In Rem and Quasi In Rem
There are two types of actions that relate primarily to "things" rather than to people:
1) In rem actions:
(1) In rem actions are ones which do not seek to impose personal liability on anyone, but instead seek to affect the
interests of persons in a specific thing (or res).
(a) Examples: Probate court actions; admiralty actions concerning title to a ship; actions to quiet title to real
estate or to foreclose a lien upon it; actions for divorce.)
(2) No personal liability: In all of these types of in rem actions, no judgment imposing personal
liability on anyone results – all that happens is that the status of a thing is adjudicated. (Example:
In a quiet title action, a determination is reached that A, rather than B, is the owner of Blackacre).
2) Quasi in rem actions:
(1) Quasi in rem actions are actions that would have been in personam if jurisdiction over D’s person
had been attainable. Instead, property or intangibles are seized not as the object of the litigation,
but merely as a means of satisfying a possible judgment against D.
(2) No res judicata value:
(a) Quasi in rem judgments have no res judicata value. (Example: If P wins against D in a quasi in rem action in
Connecticut, he cannot in a later suit against D in California claim that the matter has been decided for all
time. Instead, he must go through another trial on the merits if he wishes to subject D to further liability.)
(i) Possible exception: Some courts hold that if D makes a limited appearance (an appearance that does
not confer personal jurisdiction over him) and fully litigates certain issues, he will not be allowed to
re-litigate those issues in a subsequent trial, BUT other courts hold that even here, the first suit will
not prevent D from re-litigating the same issues later on.
(2) Requirement of minimum contacts - Shaffer
1) Quasi in rem jurisdiction over D cannot be exercised unless D had such "minimum contacts" with
the forum state that in personam jurisdiction could be exercised over him.
b) Effect of Shaffer:
i)
The landmark case of Shaffer v. Heitner, has almost no effect on in rem suits. Shaffer holds that there must be
minimum contacts before a quasi in rem action may proceed; but no minimum contacts are needed for the court
to adjudicate the status of property or some other thing located in the state, even though it affects the rights of an
out-of-state defendant
(1) Use of quasi in rem jurisdiction violates constitutional due process. No D may be subjected to quasi in rem
jurisdiction unless he has minimum contacts with the forum state. (but can get if long arm does not allow)
c) Limited appearance:
i) Some states allow a "limited appearance." Under a limited appearance, D appears in an in rem or quasi
in rem suit, contests the case on its merits, but is subjected to liability only to the extent of the property
attached or debt garnished by the court.
(1) Distinguished from special appearance:
(a) Distinguish limited appearances from special appearances – in the latter, a defendant against whom
personal jurisdiction is asserted is allowed to argue the invalidity of that jurisdiction without having this
argument, or his presence in the court, itself constitute a submission to the court’s jurisdiction.
ii) Federal limited appearances: Federal courts usually follow the rule of the state in which they are sitting
in determining whether to allow a limited appearance.
d) Federal quasi in rem jurisdiction:
i) General rule:
(1) Quasi in rem jurisdiction is allowed in a federal court if:
(a) the law of the state in which the federal court sits permits such quasi in rem jurisdiction, and
(b) P cannot obtain personal jurisdiction over D in the state through reasonable efforts. Rule 4(n).
(Examples of conditions satisfying (2): D is a fugitive, or the local long-arm is too weak to reach D
even though he has minimum contacts with the state where the district court sits.)
ii) Amount in controversy:
(1) In a federal quasi in rem case, courts are split as to whether it is the value of the attached property, or the
amount claimed, which should control for the $75,000 amount in controversy requirement.
PERSONAL JURISDICTION – Jurisdiction over the Parties
Defenses to Jurisdictional Claims – Personal Jurisdiction Challenges
Jennifer Good
Jen Good
Page 11
Note: Δ is required under Rule 12(g)and 12(h) to either file special appearance or to raise the defense of lack or jurisdiction either before
filing answer or when filing answer or the DEFENSE IS WAIVED and Δ is considered to have consented to jurisdiction
1. Direct Attack on Personal Jurisdiction
a.
Special Appearance (rare – many states follow federal rule – see below)
i. In a "special appearance," D appears in the action with the express purpose of making a jurisdictional
objection. By making a special appearance, D has not consented to the exercise of jurisdiction.
1. Note that if the Δ raises any objections or arguments that may be construed as a defense on the merits, Δ
is considered to have waived personal jurisdiction defense – this is DIFFEENCE from the FEDERAL
RULE because the federal rule allows the Δ to defend on the merits at the same time
2. Appeal
a. in most states, Δ does not lose the right to appeal, but by specially appearing, the Δ has made
an appearance and lost on the jurisdiction, so can only win by direct appeal, not by collaterally
attacking a default judgement
b. Orange Theatre
i. no more distinction in fed courts between a general and special appearance – If defense to lack of
jurisdiction is not raised in answer or before, it is treated as waived
b. If Δ Defaults
i. Δ may come back and challenge when Π tries to enforce,and enforcing court will determine if there is pers.
jurisdiction – if there is – decree enforced, if not, not enforced.
ii. BUT – if Δ defaults – cannot challenge the merits in the enforcing court (collateral attack that is not allowed)
2. Federal "Special Appearance" – FRCP 12
a. under Rule 12(b)(2), by a motion to dismiss for lack of jur. over the parties
i. HOWEVER – if the Δ answers on merits and then challenges pers. juris. – too bad
1. Data Disc - tc may determine what to let in to rule on the jurisdictional issuesSo – again, only can be
challenged on direct appeal, not by collateral attack
b. 12(b)
i. allows defense to be made by motion in response or joined with other defenses in motion
1. so, Δ does not have to appear, may raise by pretrial motion to dismiss or in answer, and may be made
with other motions
c. Waiver of Defenses
1. The right to make a motion to dismiss for lack of personal juris. is waived in the federal system if:
a. D makes a motion raising any of the defenses listed in Rule 12, and the personal jurisdiction
defense is not included; (rule 12(g))
b. D neither makes a Rule 12 motion nor raises the defense in his answer (rule 12(h))
3. Collateral and Other Attacks
a. General enforcement of judgments:
i. A judgment entered in one jurisdiction may generally be enforced in another. If State 1 enters a judgment
against D, D’s property in State 2 (or wages owed him in State 2) may be seized to satisfy the earlier State 1
judgment
b. Collateral attack on default judgment:
i. If D defaults in an action in State 1, she may collaterally attack the default judgment when it is sued upon
in State 2.
ii. Most commonly, D collaterally attacks the earlier judgment on the grounds that State 1 did not have personal
jurisdiction over her, or did not have valid subject matter jurisdiction
c. Waiver by D
i. A defendant who appeared in the original action without objecting to jurisdiction, or one who
unsuccessfully litigated the jurisdictional issue in the first action, may not collaterally attack the judgment.
(Instead, a defendant who unsuccessfully litigates jurisdiction in the first action must appeal to the first state’s
system, rather than later making a collateral attack.)
d. Defenses of Fraud or Duress
i. If D’s presence was the result of fraud or duress on the part of the plaintiff, the court may exercise
its discretion not to exercise jurisdiction.
1. Wyman v. Newhouse - forum state will decline to exercise its jurisdiction because of P’s fraud
E&E TABLE  Common Scenarios in Challenging Personal Jurisdiction
Jennifer Good
Δ RESPONSE TO
ORIGINAL SUIT
Jen Good
ACTION IN RENDERING
COURT
Page 12
ACTION IN ENFORCING COURT
Scenario One
Δ appears, defends on
merits, and loses
Judgment entered for Π
Court must enforce rendering court's judgment
even if Δ challenges the pers. jurisdiction, Δ
has waived his objection
Scenario Two
Δ makes special appearance
or 12(b) motion;
Court agrees no jurisdiction
In most cases, dismissed for
lack of jurisdiction;
Some may order service to
cure jurisdictional defect
If original suit was dismissed, there will be no
judgment ag. to enforce
However – Π may file a new suit in a court
that has jurisdiction over the Δ
Scenario Three
Enters Judgment for Π
Δ makes a special
appearance or 12(b) motion
and court upholds
jurisdiction and Δ defaults
Must enforce the judgment because Δ has
already litigated the jurisdiction issue and lost
Scenario Four
Δ loses on objection to
jurisdiction, defends action
on the merits, losese and
appeals
App. court may review
jurisdiction question,
although some still view a
defense on the merits as a
waiver or pers. jurisdiction
If jurisdiction was upheld, on appeal, or
waived, the court must enforce the rendering
court's judgment
Scenario Five
Δ defaults, contests
jurisdiction in enforcing
court
Enters default judgment for
Π unless lack of juris. is clear
from complaint
This is a collateral attack – Enforcing court may
decide whether rendering court had
jurisdiction, if it holds it did not, it refuses
enforcement, if it holds that it did, it enforces
judgment
Scenario Six
Δ defaults, denies liability
on the merits in enforcing
court
Enter default j. for Π (again,
unless lack of J is clear from
complaint
Enforce judgment b/c FULL FAITH and
credit clause precludes reexamination of merits
which were settled by default
Jennifer Good
Jen Good
Page 13
NOTICE AND OPPORTUNITY TO BE HEARD
Opportunity to be heard
14th Amendment requires that a person may not be deprived of life, liberty or property without notice of action against him and an
opportunity to be heard
1. D must not only be notified of the suit against him, but must also be given an opportunity to be
heard. That is, before his property may be taken, he must be given a chance to defend against the
claim. This "opportunity to be heard" must be given to D not only when his property will be taken
forever, but even before there is any significant interference with his property rights.
i. Fuentes - Notice and an opportunity to be heard are required before deprivation of a possessory interest in the property
– STAT. held unconstitutional which deprived Δ of property before opportunity to be heard
2. Pre-judgment remedy:
i. Opportunity-to-be-heard questions arise most frequently in the context of pre-judgment
remedies, which protect plaintiff against the defendant’s hiding or squandering his assets
during litigation. Two common forms of pre-judgment remedies are the attachment of D’s
bank account and the placing of a lis pendens against her real estate.
3. Three-part test:
i. The court will weigh factors against each other to determine whether due process was violated
when D’s property was interfered with through a pre-judgment remedy.
ii. FACTORS:
1. degree of harm to D’s interest from the pre-judgment remedy;
2. risk that the deprivation of D’s property right will be erroneous (especially if the state
could have used additional procedural safeguards against this but did not); and
3. strength of the interest of the party seeking the prejudgment remedy
a. Mitchell - statute provides that the π must post bond, and sign affidavits in an ex-parte proceeding
before a Judge, but that the ∆ may immediately move to dissolve the writ, and it must be
dissolved unless the π can prove the debt, lien and delinquency. – HELD CONSTITUTIONAL Due process does not require that the ∆ have possession of the property during the pending action, only
that he have notice and an opportunity to be heard before deprivation.
Jennifer Good
NOTICE AND OPPORTUNITY TO BE HEARD cont…………..
Jen Good
Page 14
NOTICE and SERVICE OF PROCESS
(1) Notice generally:
(a) Even if the court has authority to judge the dispute before it (covered in the above sections), the court may
not proceed unless D received adequate notice of the case against him
(2) Reasonableness test:
(a) In order for D to have received adequate notice, it is not necessary that he actually have learned of
the suit. Rather, the procedures used to alert him must have been reasonably likely to inform him,
even if they actually failed to do so
(i) Mullane "reasonably calculated under all the circumstances" to apprise interested parties of action and afford an
opportunity to be heard
1) Publication may be accompanied by other means to reinforce notice, ie. attachment or seizure of
property, Mail service to those of known address sufficient as to those of unknown address in a case
like this because all of the parties belong to a greater class., As such, notice reasonably certain to
reach most of the interested parties is likely to safeguard the interests of all because they all have
overlapping mutual interests – IF ADDRESSES ARE KNOWN – MUST MAIL A LETTER
2) NOTE: IMP of the reasonably calculated, even if Δ did not actually get the notice
1. Maryland Fireman – even if Δ got notice, if not sufficient, not valid?
(3) Personal Service
(a) handing the notice to the Δ will ALWAYS be sufficient notice
(i) note: this is not always easy to do – remember
(4) Substitute service – OTHER FORMS OF SERVICE:
All states, and the federal system, also allow "substitute service" in most instances. Substitute service means
"some form of service other than directly handing the papers to the defendant
(a) leave at dwelling with adult reasonably likely to give to Δ
(i) note: FRCP 4(c)(2) for fed. service – "suitable age and discretion residing at Δ dwelling"
1) Rovinski – construe rule 4 liberall so Δ cannot weasel out of it like Rovinski (residence in Mi, to
avoid out of state motorist, but then claimed that service at his home was not valid b/c he lived
in MN.
(b) Notice Posted to Door
(i) Greene v Lindsay – notice on door of apt. not sufficient b/c of the children, etc. likelihood of reaching Δ
not very much
(c) Notice by Publication
(i) Last resort , See Mullane which allows ONLY if Δ cannot be found and comb. w/ other method
(5) Service on Out-of-State Δ's
(a) When Δ is not present in the forum state, he must be served out of state. In a state court suit, this can only
be done if the state has a long-arm statute covering the type of case and Δ in question. Once the long-arm
covers the situation, the out-of-state defendant must still be given some sort of notice
(i) Mail Notice - registered or certified, although 1st class okay for class actions
(ii) Public Official – i.e. non-resident motorist statute
(iii) Newspaper – Only when Δ truly cannot be found be reas. efforts (as req. by Mullane)
(6) Service on Corporations
(a) The FRCP, and the rules of many states, allow service on any person associated with the corporation who is
of sufficiently high placement.
(i) FRCP 4(h)(1) provides that service on a corporation may be made by giving the papers to "an officer, a
managing or general agent, or to any other agent authorized by appointment or by law to receive service
of process
(ii) Note that some states require a designated official or agent
(b) Helenic Challenger – even though not designated official, service was allowed b/c reasonably calculated to give
notice
(7) Service Etiquette
(a) Wyman v. Newhouse
(i) luring Δ into jurisdiction under false or fraudulent pretenses is not valid
(ii) HOWEVER – note that if Δ is already in jurisdiction – it is okay to lure OUT of hiding under false pretenses b/c of
the difficulties in actually serving process
Jennifer Good
Jen Good
Page 15
SUBJECT MATTER JURISDICTION
General Principles Governing
1) Federal SM jurisdiction arises because of ART III, § 2 of the United States Constitution which limits federal
jurisdiction to the matters listed in the clause (these include Fed Q and Diversity Jurisdiction
2) So – Π who wants to file an action in federal court must ask not which federal court, but IF they can file the
action in federal court at all
3) Why might a Π prefer a federal forum?
(1) rules may be different, more favorable
(2) may be more conveniently located
(3) There may be fewer outside pressures because unlike state judges, they are app. for life
If the case is a federal case, you must then ask whether the court has subject matter jurisdiction. Essentially, this
means that the following must be true, 1) the case must "arise under a federal
1) Diversity OR Federal question must be present:
a) In the federal courts, there are two basic kinds of controversies over which the federal judiciary has subject
matter jurisdiction:
i) suits between citizens of different states (so-called diversity jurisdiction); and
ii) suits involving a "federal question"
(1) A federal law creates a right of action, or
(2) Π right to relief depensd on the resolution of a substantial Q of federal law
2) Amount in controversy:
a) In federal suits based on diversity, an amount in excess of $75,000 must be in dispute. This is the "amount
in controversy" requirement. In federal question cases, there is no amount in controversy requirement
3) Burden:
a) The party seeking to invoke the jurisdiction of a federal court must make an affirmative showing that
the case is within the court’s subject matter jurisdiction.
i) Example: If P wants to invoke diversity jurisdiction, in her pleading she must allege the relevant facts
about the citizenship of the parties.)
4) Dismissal at any time:
a) No matter when a deficiency in the subject matter jurisdiction of a federal court is noticed, the suit must be
stopped, and dismissed for lack of jurisdiction. See FRCP 12(h)(3), requiring the court to dismiss the action
at any time if it appears that the court lacks subject matter jurisdiction
i) NOTE: That the court can dismiss on own for lack of SM jurisdiction AND must do so because
if the court does not have SM jurisdiction – it should not be hearing the case
Jennifer Good
Jen Good
Page 16
SUBJECT MATTER JURISDICTION cont………………….
FEDERAL QUESTION JURISDICTION
(1) Generally
(a) A federal law creates a right of action, or
(b) Π rights to relief depend on the resolution of a substantial question of federal law
(i) Also –
1.
When US is a party, Controversies between states and Controversy is btw. US and foreign citizens
1.
cause of action must come from within a section of statute of the subject matter jurisdiction to apply
(ii) i.e. Federal statutes
(2) STATUTORY GRANT OF JURISDICTION
(a) 28 USC 1331
(i) "the federal courts shall have jurisdiction of all civil actions "arising under the constitution, laws or
treaties of the United States"
1. 28 USC 1337 - commerce and antitrust cases
2. 28 USC 1442 - federal officers sued or prosecuted
(3) FEDERAL CLAIM "ARISING UNDER"
(a) There is no precise definition of a case "arising under" the Constitution or laws of the United States.
(i) Gully - the right or immunity created by Π cause of action NOT Δ defense – must be a basic
element of the Π cause of action – not a collateral issue or anticipated defense
(b) Vast majority of cases, the reason there is a federal question is that federal law is the source of the
plaintiff’s claim. Example: A claim of copyright infringement, trademark infringement or patent infringement
raises a federal question, because in each of these situations, a federal statute – the federal copyright statute,
trademark statute or patent statute – is the source of the right the plaintiff is asserting.) .
(4) INTERPRETATION OF FEDERAL LAW
(a) It is not enough that P is asserting a state-created claim which requires interpretation of federal
law.
(i) Merril Dow - Held, no federal question is raised, because P’s claim did not "arise under" federal law when
P brings a state-court prod. liability suit agst. Δ for injuries from Δ's drug and Π claims that Δ violated the
federal FDA statute by mislabeling the drug thus constitutes common-law negligence automat. Δ wants
to remove to federal court, so it claims that the case is within federal question jurisdiction, because it
requires interpretation of a federal statute. – too bad
(5) CLAIM BASED ON THE MERITS
(a) If P’s claim clearly "arises" under federal law, it qualifies for federal question jurisdiction even if
the claim is invalid on the merits. Here, the federal court must dismiss for failure to state a claim
upon which relief may be granted (FRCP 12(b)(6)), not for lack of subject matter jurisdiction.
(6) ANTICIPATING A DEFENSE
(a) The federal question must be integral to P’s cause of action, as revealed by P’s complaint. It does not
suffice for federal question jurisdiction that P anticipates a defense based on a federal statute, or
even that D’s answer does in fact raise a federal question. Thus the federal question must be part of
a "well pleaded complaint."
(i) Mottley – if federal law is anticipated into Δ defense, even if valid, is not sufficient for Fed Q
jurisidiction – it must appear on the face of Π complaint that the case "arises under" a federal
question
(ii) Well Pleaded Complaint RULE
1. Fed Q jurisdiction can be invoked only when the statement of the Π claim, properly pleaded,
shows it is based on a federal law.
2. ASK – what are the necessary and proper elements of a claim for relief, and under this, does
the Π claim state a cause of action "arising under" the fed q?
a. THIS extends to declaratory judgment acts under Skelly Oil rule
(7) OTHER CASES
(a) Smith
(i) Fed Q when the right to relief depends on the construction of a federal law/statute
(b) Shoshone
Jennifer Good
Jen Good
Page 17
SUBJECT MATTER JURISDICTION cont……………………
DIVERSITY JURISDICTION
(1) Generally
(a) 28 USC 1332 - Controversies between citizens of different states and citizens of a state and citizens
of foreign states (alienage) for more than 75,000.
(i) note: court may have discretion not to hear cases of domestic or probate (state matters)
(b) WHY or WHY NOT – The Debate over Diversity
(i) originally to prevent out of state Δ from in state bias – underlying reason
(ii) constitutional guarantee to privileges and immunities clause
(iii) BUT – now is this really the case? and are the federal courts overburdened?
(2) Complete Diversity Requirement
(a) All Π must be from different states than all Δ (note: do not let test trick you w/ Π or Δ from same
state – that is allowed)
(b) nominal parties are ignored – Rose v. Giammatti
(c) 1332 (c) also holds that for guardian, etc. – same state as decedent
(d) DON’T NEED FOR
(i) Stat. Interpleader, Supp. Jurisdiction & Class Actions
(3) ANTI-COLLUSIVE STATUTE – 28 USC §1359
(a) No jurisdiction if the parties are collusively joined to establish jurisdiction
(i) Kramer v. Carribean Mills
(ii) although this does not speak to destruction of diversity – one case has held that review
destruction the same way to review creation (Grassi – 5th Circuit)
(4) DOMICILE  How to determine citizenship
(a) TWO PART TEST – see personal jurisdiction too.
(i) place where physically located
(ii) intend to remain there indefinitely
(b) You keep one domicile until you legally establish a new domicile under the test in (a)
(c) Determined at THE COMMENCEMENT OF ACTION and is NOT defeated if parties move
(d) A "resident alien" is domiciled where they reside
(e) A foreigner DOES not destroy diversity because they are not considered a citizen of any state
(f) Mas v. Perry
(i) just because women gets married, she does not lose her domicile, and cit. = domicile for diversity purposes – so
there still can be diversity if women resides w/ husband but has not established new domicile
(5) Citizenship of Corporation – NOTE: same as for removal
(a) Under 1332 – Corp is considered any state where incorporated AND
(b) where the "principal place of business is"
(i) this can be determined under 3 theories (CB p. 268)
1. "nerve center"
a. decision making center
2. "corporate activities" or "operation centers"
a. production or service
3. "total activity"
a. combination of 1 & 2
(6) Citizenship for Partnerships, Unincorporated Organizations
(a) citizenship of each partner
(b) note: same for Removal
(7) Citizenship for Class Actions
(a) only the citizenship of the name representative
Jennifer Good
Jen Good
Page 18
SUBJECT MATTER JURISDICTION cont……………………
JURISDICTIONAL AMOUNT – Amount in Controversy
(1) Applies on to diversity cases – does not include interest or court costs. – OVER 75,000
(a) Commences at the time the suit commences.
(2) Standard of proof:
(a) the party seeking to invoke federal diversity jurisdiction does not have to prove that the amount in
controversy exceeds $75,000, only that there is some possibility that that much is in question.
(i) "Legal certainty" test:
1. Claim cannot be dismissed for failing to meet the $75,000 requirement unless it
appears to a legal certainty that the claim is really for less than the jurisdictional
amount. St. Paul Mercury Indemnity Co. v. Red Cab
a. Tongkook – claim must be made 1) in good faith and 2) must not appear to a
"óbjective" legal certainty that claim is insufficient - here, although in good faith
believed sufficient, before trial it was found insuf. so no jurisdiction
(ii) Eventual recovery irrelevant:
1. The fact that P eventually recovers far less than the jurisdictional amount does not by
itself render the verdict subject to reversal and dismissal on appeal for lack of
jurisdiction.
2. *But court may deny costs to Π or impose on him according to 1332 (b)
(3) Viewpoint
(a) McCarty (cb 276) Three viewpoints for determining the amt. in controversy
(i) from Π viewpoint – if value to Π exceeds, regardless of value to the Δ
(ii) Party seeking jurisdiction viewpoint (Π for original, Δ for removal
(iii) either viewpoint – Δ or Π value
(4) Aggregation
(a) Snyder
(i) Aggregation is only allowed when
1. One Π claims ag. One Δ or (under supp. jurisdiction this is allowed)
a. however, if one Π meets the amount alone, some courts allow the other Π to
join claims under supp. jurisdiction
2. Common interest – (i.e. property, joint owners, estate)
(5) Counterclaims
(a) Majority of courts find that Π must meet the amount
(i) Usually do not look to counterclaims
1. like diversity req, must appear from face of the complaint.
(b) Removal
(i) If Δ removal and permissive counterclaim – no removal (b/c could not have been brought)
(ii) If Δ compulsory – some courts say yes, some courts say no
(6) Class Actions
(a) In class actions, until recently there has been an especially stringent, and clear, rule: every member
of the class had to satisfy the jurisdictional amount. This meant that class actions in diversity
cases were rarely possible.( Zahn)
(b) Some courts, however, have recently ruled that as long as the named class representatives each have
a claim in excess of $75,000, the supplemental jurisdiction doctrine applies, so that the
unnamed members need not meet the jurisdictional amount. (Free v. Abbott Labs.)
Jennifer Good
3)
Jen Good
Page 19
SUBJECT MATTER JURISDICTION cont……………………
SUPPLEMENTAL JURISDICTION
1) Supplemental Jurisdiction Statute - 28 USC 1367 a) Where Fed. Ct. has original jurisdiction, DC shall have supp. jurisdictions over all other claims that are so related they form
the same Case or Controversy i) "common nucleus of fact" "transaction or occurrence"
2) FEDERAL QUESTION CASES
a) includes claims involving joinder and intervention of additional parties
i)
In Fed. Q - court can hear all closely related state law claims
(1) Clearly APPLIES when a related state claim involves the same parties as the Fed. Q claims
b) Additional Parties may be brought in (to state law, fed law claim)
i) must arise from COMMON NUCLEUS of FACT - no need for ind. jurisdiction
3) DIVERSITY
a) YES to
i) compulsory counterclaims - (13(a))
ii) joinder of additional parties to compulsory counterclaims (add. Δ) 13(h) parties
iii) cross claims - R. 13(h) - one Δ ag. another Δ (do not need diversity btw)
iv) impleader - 3d party Δ (claims by and ag. 3d party Π or Δ)
(1) NOTE: not by P ag. non-diverse 3d party Δ b/c of 1367 (Owen. v. Kroger)
b) NO to (all must have ind. basis of jurisdiction)
i) intervenor claims (must have independent basis for jurisdiction)
ii) compulsory joinder - rule 19(a) ("necc. party")
iii) Rule 20 joinder - (permissive - Π sues mult Δ)
iv) P cannot counter claim ag. non-diverse 3d party
(1) although 3rd party may assert a claim ag. the Π
4) AOC requirement
a) some courts say yes, some say no - split b/c statute is silent as to whether all claims must satisfy
i) Zahn - all claims must independently satisfy jurisdiction AOC
(1) courts disagree on whether 1367 overrule Zahn
5) Discretion - 1367 (c)
a) Four reasons i)
ii)
iii)
iv)
if original claims dismissed
novel or complex state law
state claim predominates
other compelling reasons
6) Old Doctrines - Pendant and Ancillary
Pendant - when Π adds a claim btw Π and 1 Δ which otherwise would not be sufficient (i.e. state claim) to a federal claim
b) Ancillary - when Π or Δ injects a claim by way of counter-claim, cross-claim or 3d party
i) Gibbs
a)
(1) Two Part Test
(a) Common nucleus of fact
(b) judicial economy and justice (DISCRETIONARY)
ii) Kroger
(1) cannot violate the principals of diversity - (i.e. no Π claims ag. a 3d party non-diverse Δ), although allow Δ to assert
cross-claims and counter-claims b/c Δ did not choose the forum
7) PERSONAL JURISDICTION
a)
The application of the supplemental jurisdiction doctrine does not eliminate the requirement of jurisdiction over the parties,
nor does it eliminate the requirement of service of process. It speaks solely to the question of subject matter jurisdiction. (But
often in the supp, service in the 100-mile bulge area
8) NOTE: DEFENSIVE POSTURE:
a)
DIVERSITY cases
i) Add. by Δ usually fall w/in court's supp, while add. claims by Π or new parties, not generally)
ii) NOTE: expect supp. in cases where the claimant who is trying to benefit from it is defensive.
Jennifer Good
Jen Good
Page 20
SUBJECT MATTER JURISDICTION cont……………………
REMOVAL
Any civil action brought in state court that Π COULD HAVE brought in Fed may be removed by D to fed disctrict court
UNLESS D is a citizen of the state where the action is pending
(1) 28 USC 1441
(a) any civil action (case)
(b) original jurisdiction in federal court
(c) may be removed BY DEFENDANT
(d) to a DC in the same district where state claim is pending
(2) Also see: 28 USC 1446 and 1447
(3) Diversity and AOC rules (If applicable)
(a) look only to Π complaint - no "artful pleading"
(i) Court usually takes the Π word since Π has no reason to inflate b/c in state court there is not
AOC requirement.
(b) Π cannot remove
(c) Cannot remove if Δ is in home state
(4) Removal of Multiple Claim - when P asserts two claims, one which can be removed, and one which could not
(a) NO UNDER Diversity
(i) if diversity is only basis for removal - cannot remove if the other claim is not removable
(b) Fed Q
(i) two "separate and distinct" claims may be removed together
(5) REMAND
(a) under 1441(c) the entire case can be removed, but Fed judge may remand all matters which STATE
LAW PREDOMINATES
(b) Fed. claim may also be remanded if state law predominates the entire controversy
(c) MUST remand if does not meet stat. requirements
(6) PROCEDURE
(a) timely
(b) ALL Δ must join notice for removal
(i) however, if under 1441(c) separate and distinct, on Δ to sep. and ind. need sign.
ATTACKING SUBJECT MATTER JURISDICTION
(1) Direct Attack
(a) motion challenging SM jurisdiction may be made at any time by parties or court, even for the first time on
appeal
(b) No real restrictions, court has a duty to raise this challenge
(2) Collateral Attack - (raising when judgment is enforeced)
(a) WHEN it MAY BE COLLATERALLY ATTACKED
(i) default - Δ never appears in the first action
(b) When is MAY NOT
(i) when Δ appears and even when Δ challenges, if Δ fully litigates, can ONLY ATTACK SM on appeal
directly
(c) What if Δ does not raise the defense and fully litigates
(i) usually, no collateral attack is allowed,
1) HOWEVER - policy arguments go to that court's should not hear cases that are not w/in
their jurisdiction, so balance the interests in finality and sovereignty
2) Usually allowed if a state court hears a case w/in exclusive SM of fed courts
Jennifer Good
VENUE
I.
Jen Good
Page 21
VENUE AND FORUM Non-Conveniens
In federal court suits, the venue requirement describes what judicial district the case may be heard in.
a. Essentially, the case must be heard either:
i. in any district where the defendant resides (with special rules for multi-defendant cases; or
ii. in any district in which a substantial part of the events giving rise to the claim occurred.
b. REMEMBER: Venue is not a sub. for SM or pers. jurisdiction
II. 28 U.S.C. §1391.
a. DIVERSITY CASES
i. where any Δ resides, if all in same state
ii. where sub. part/events arose or sub. part of property is located
iii. Where Δ is subject to pers. jurisdiction at the time action is commenced
b. Fed Q cases
i. district where any Δ resides, if all in same state
ii. where sub. part of events, arose
iii. where any Δ MAY BE FOUND, if there is no other district that is app.
c. Residency
i. corporations
1. reside in ALL DISCTRICTS where corp is:
a. subject to pers. jurisdiction, if more than 1 
b. suff. contacts to subject to pers. jurisdiction
c. most significant contacts
d. CASES - Venue
i. Bates - sub event arose, so even though Δ did not make deliberate contact, was enough b/c Δ did not
object to personal jurisdiction
III. 28 USC 1404 - Change of Venue - TRANSFER
a. To any district where it may originally have been brought
i. "in the interests of justice and for the convenience of all parties and witnesses"
b. Upon Motion, Consent or stipulation of all parties
i. Hoffman v. Blaski - DC may transfer to any venue where case could have been brought, BUT not where a
case could not have been brougth
ii. Van Dusen - law of Transforor case applies in diversity (so no meddling w/ transfer for fav. law)
iii. Ferens - does not matter who initiates the transfor, transferor law applies
iv. Goldlawr - ct. can transfer even if orig. court filed in does not have pers. jurisdiction
Jennifer Good
Jen Good
Page 22
VENUE AND FORUM Non-Conveniens cont................
FORUM NON-CONVENIENS
Basic Doctrine when the venue requirements are all met, but there is a better, more convenient forum, so the Δ may make a motion for
the court to dismiss the case even thought Π choice of forum meets all requirements.
1. Main Points:
a. At court's discretion
b. The Δ must bring the action (not Π b/c Π choice of forum is being challenged)
c. Usually only if:
i. Π choice is CLEARLY inconvenient
ii. alternative forum exists which is a vast improvement
2. Must be another forum where Π can bring
3. Δ cannot waive personal jurisdiction & other venue must meet jur. req.
i. usually, court will require the Δ to consent to the forum
4. DISTINGUISHED FROM TRANSFER
a. Forum-non only made by Δ, either can motion for transfer under §1404
b. Forum-non is premised on the fact that both original court and some other meet venue req.
i. Vs. Transfer  transfer may be made from a forum which is NOT PROPER
ii. FORUM-NON - court that does not have jurisdiction CANNOT GRANT
5. THREE FACTORS:
a. Whether Π is a state residence (in favor of P to be heard in home state)
b. Where proof and witnesses are
c. Whether forum's own state will govern action. (if another state, then more in favor of transfer)
6. CASES
a. Gulf Oil - SC (Fed FNC motion)
i. balance the private and public interests - BUT under presumption in favor of the P choice
ii. Court has discretion to resist transfer even though statute governs transfer
iii. PRIVATE FACTORS
1. Proof, availability of process for unwilling witness, view of premises, enforceability of
judgment
iv. PUBLIC FACTORS
1. administrative diff. when litigation is in congested centers
2. jury duty if no relation to suit (imposition of locality w/ no relation to controversy)
3. local interest in having a local controv. decided at home)
b. Piper Aircraft
i. Court will balance the strong presumption in favor of Π choice of forum with against any
factors which relate to the convenience of parties and witnesses in determining whether the
grant Δ motion
ii. Foreign Δ so, P interest are stronger
iii. ALSO: If the change will unfavorably affect Π, no transfer likely
Jennifer Good
Jen Good
Page 23
PLEADING
FOUR FUNCTIONS OF PLEADING
1. Notice
2. I.D. Baseless Claims
3. Setting out each parties view of the facts
4. Narrow the Issues in Dispute
a. COMPLAINT
i. SCOPE: FRCP 3 1. initial pleading of a lawsuit, P cause of action
ii. WHAT DOES A COMPLAINT NEED TO INCLUDE - FRCP 8(a)
1. For jurisdiction a. statement of grounds on which jurisdiction depends
2. For Relief
a. "short and plain statement of the grounds on which Π is entitled to relief" and may
include relief in the alternative
iii. SPECIAL MATTERS in re: COMPLAINT - FRCP 9
1. some types of claims must be pleaded with particularity
a. denial of legal capacity
b. fraud, mistake
c. condition precedent
d. official documents relied on
e. judgments relied on
f. material facts of time and place
g. Special damages
h. admirality/maritime
iv. CASES
1. Dioguard
a. short and plain statement is all that is needed to avoid early motion to dismiss to give Δ
fair notice of what the Π claims are, grounds, and relief.
v. Frivolous Lawsuits - FRCP 11
1. Sanctions are optional (See Sanctions)
a. penalty cannot be appealed until underlying case is over
b. Safe Harbor - 21 days to withdraw pleading to avoid sanctions
b. MOTION TO DISMISS
i. "a complaint should not be dismissed for failure to state a claim for relief UNLESS it appears beyond a
doubt that Π can prove no set of facts in support of his claim entitling him to relief"
1. American Nurses
a. even thought complaint included invalid claims, no dismissal of the valid claims within
the complaint
Jennifer Good
Jen Good
Page 24
PLEADING
PLEADING
c. RESPONDING TO THE COMPLAINT - THE ANSWER
* Answer rules apply to Π answer to counter-claims, answers to cross-claims, 3d party claims
i. A party may respond by motions or by answer specifically denying or admitting allegations 
1. TIME  must answer w/in 20 days from service of complaint (rule 12a)
a.
unless Δ waives formal service  then gets 60 days
ii. MOTIONS
1. 12(b) motions/defenses
a. lack of sm, personal jurisdiction, venue, insuff. service of process, failure to state a claim,
failure to join rule 19 party
b. may plead these in the alternative, even if incompatible
c. 12(b)6 - Failure to state a valid claim - MUST BE MADE BEFORE ANSWER
i. but, can wait until after answer and make 12(c) motion on pleadings for same result
1.
2.
If this is granted, Π may amend complaint to state a claim for relief or appeal the
decision (ONLY granted if no set of facts COULD POSSIBLY prove Π claim)
If this is denied - Δ may let default judgment be entered and then appeal the denial of
the motion
2. 12(c) - Motion for Judgment on the Pleadings - (Same as r. 56 summary judgment)
3. 12(e) - motion for more definite statement - (BEFORE RESPONSE)
4. 12(f) - Attack Pleadings - as insufficient, redundant etc.
a. TIME FOR PLEADING MOTIONS
i. 12(b) motions for pers. jur., venue, service of process must be made before trial
ii. SM may be made at ANY TIME
1. note: court can make this motion on it's own
iii. 12(b)6 and failure to join may be made before or during trial
iii. ANSWER - RESPONSE
1. MUST BE SIGNED by Δ attorney
2. Δ statement denying or admitting allegations
a. May set out affirmative defenses
i. FRCP 8(c)
1. 19 specific defenses which must be EXPICITLY stated in the answer
a. Including, but not limited to fraud, res judicata, Contrib. neg.,statute of limitations
b. If these ARE NOT IN THE ANSWER THEY ARE WAIVED under
RULE 8(c) - So- when in doubt - plead aff. defense
b. Denials
 Must be truthful and cannot be misleading
i. General Denial
1. general averment to all Π claims
2. only use if contesting ALL Π claims in complaint
a. *note - must specifically deny citizenship
ii. Specific Denial
1. Admit those that are true and deny those that are not
2. those not specified are admitted (same goes for Π reply to Δ ctr.claim)
a. Zeilinski - if denial is ineffective and improper (under rule 8 form
of denials) Δ may be held to facts not specifically denied
iii. Denial on information and belief
1. Mostly used by corp. defendant's sued for acts of employees
iv. Insufficient knowledge to form a belief
1. careful here, b/c Δ must not be able to havbe informed self of info.
c. Counterclaim
i. **remember** Δ must plead all compulsory counterclaims
1.
if it "arises out of the same transaction or occurrence"
Jennifer Good
Jen Good
Page 25
PLEADING
PLEADING
d. AMENDMENTS OF PLEADINGS ***NOTE*** This is a very tested area*********************
FRCP 15 (by nature, courts are pretty liberal with amendments)
i. WITHOUT PERMISSION OF COURT - Amendment as of Right
1. Each party may generally amend pleadings once before responsive pleading is served
a. If no response is required  20 days for party to amend a pleading
ii. WITH PERMISSION OF COURT - Amendment by Leave of Court
1. Once a reply is made, party must get permission to amend
a. usually court will only deny if objecting party show prejudice or surprise
b. Burden is on objecting party to show why amendment should be denied
c. If Δ answers and then wins a 12(b) dismissal, court will usually give P "another chance"
to amend pleadings to state a valid claim.
2. Either by written consent of adverse party or "freely given when justice requires" by court
a. grants of leave to amend are reviewable only for abuse of TC discretion
iii. Relation Back - FRCP 15(c)
1. Amended pleading relates back to the date of original pleading if the claim or defense "arose out of the same
transaction or occurrence"
a. useful in meeting statute of limitation requirements
2. WILL RELATED BACK IF: (must meet all 3 requirements)
a. same "transaction or occurrence"
b. party has received notice of the action w/in time for service under R. 4
c. AND knew or should have known, but for the mistake, the action would be brought
against them - KEY IS notice to opposing party that issue was litigated
3. NO RELATION BACK IF:
a. Addition of parties UNLESS parties will not be prejudiced and parties would have been
on notion that the action would be brought
i. Worthington - naming parties as "unknown" cannot be related back
iv. Motion to Conform to the Evidence - Variance of proof from Pleadings
1. Rule 15(b) - if opposing party had notice that issue was being litigated (claim) and does not
seriously prejudice the other side
a. Moore - there must be suff. evidence at trial that issue was raised and litigated and that
opposing party was aware that issue was raised and litigated
i. *note* Hayes - catch 22 - continued resistance and objection to issue indicates
that party is aware that issue is being litigated - BUT silence indicates consent
2. Amendment of Answer - Defenses
a. must be timely and affirmatively pleaded
i. if not timely and aff. plead, they are waived and Δ cannot amend answer
1. To determine if "affirmative defense"under 8(c) residual clause
a. whether matter is necc. or extrinsic element of Π cause of action
b. which party has better access to evidence
c. policy considerations - prevention of unfair surprise
b. CASES
i. Aquaslide - party initially conceding manufacture may amend since amendment only
allows party to dispute factual issue at trial and thus only "possibly prejudiced Π"
ii. Ingraham - affirmative defenses not timely plead are waived see above to determine
which defenses are "affirmative defenses"
iii. Taylor - limitations of damages are not an affirmative defense under r. 8 - reasoning that
may prejudice the jury to bring up limitation of damages
3. Supplemental Pleadings - FRCP 15(d)
a. notice of events which have occurred since filing of motion
i. purpose is to aid Π in cause of action already averred, not to allow Π to recover anew
Jennifer Good
Jen Good
Page 26
PLEADING
I.
PLEADING
e. SANCTIONS - RULE 11 - Assuring truthfulness in Pleading
i. Common method to ensure truthfulness
1. Attorney Signature
a. only sign after a "reasonable inquiry" as to whether there are sufficient grounds in law
and fact to support the pleadings. R.11 Sanctions:
b. If Rule 11 is violated (e.g., the complaint, as the lawyer knows, is not well grounded in
fact, or supported by any plausible legal argument), the court must impose an
appropriate sanction on either the signing lawyer, the client, or both. The most common
sanction is the award of attorneys’ fees to the other side.
c. WHO MAY MOTION
i. party or court under R. 11
1. no safe harbor when court motions sua sponte
2. Safe harbor
a. A party against whom a Rule 11 motion is made has a 21-day "safe harbor"’ period in
which she can withdraw or modify the challenged pleading and thereby avoid any
sanction.
3. Cases
a. Hadges i. attorney is entitled to rely on clients facts as much as objectively reasonable
ii. factors - who has k of evidence, etc  inquiry reasonable under the
circumstances is all that is required
b. Business Guides i. any party signing a motion has an affirmative duty to make a "reasonable inquiry"
into the facts and law before filing
c. Surowitz i. Π does not have to understand the complaint, but discourages filing of suits
which are frivolous
d. Golden Eagle i. not to measure lawyer's ability, but the required controlling law
Jennifer Good
Jen Good
Page 27
DISCOVERY
1) General Scope of Discovery - RULE 26(b)
(1) Either party can discover anything relevant to the SM of the action which is not privileged
1) "any matter, not privileged, that is relevant to the claim or defense of either party
2) Two Principle Requirements
(i) not privileged
(ii) relevant to some claim or defense in the suit
1) PRIVILEGE
1. only party who may assert at trial may resist discovery on the grounds of
privilege (i.e. - att/client, dr. patient)
2. *note* for diversity - state law of priv. usually applies
3) For good cause, court may order discovery of any material relevant to the SM of the suit
(2) Relevant but not necc. admissible
1) discoverable as long a reasonably calculated to lead to discoverable evidence
(i) i.e. relates to whereabouts of a witness, lead to admissible evidence
(ii) Blank - information re: female partnership in lawsuit found reasonably calculated to suit
alleging discrimination in hiring
(3) Protective Orders 26(c)
1) court may order to protect person or party from annoyance, embarrassment, oppression, or undue
burden or expense
(i) Marresse - compare the hardship to the party opposing discovery with the hardship to party
seeking if barred access to material party is seeking
2) Purposes of Discovery
(1) Three major purposes
1) preservation of relevant information that might not be available at trial
2) To ascertain and isolate issues in controversy - DEFINE ISSUES IN DISPUTE
3) Find out what testimony & other relevant evidence is available on each of the disputed factual
issues
(2) Broad or Narrow Discovery?
1) Broad
(i) eliminates disparity between wealth and indigent parties
2) Narrow
(i) induces lazy litigant to let other party do all the work
3) Specific Devices
(1) Depositions R. 30, 31, 26(d)
Taking testimony of any person, party or nonparty
*NOTE* Depos are the only form of discovery that may be addressed to non-parties with relevant information
1) Normally without leave of court, except
(i) person confined in prison
(ii) more than 10 depos
(iii) previous depo in this case
(iv) party seeking depo is seeking dep before time under 26(d)
1) unless party outside the US
2) Why Oral is helpful
(i) demeanor, candor, may be able to catch off guard, follow-up, confrontation
3) Other Options
(i) R. 31 Written Dep. - asked by a neutral party
(ii) Via Satellite
Jennifer Good
Jen Good
Page 28
DISCOVERY
Specific Devices cont...
(2) Interrogatories
1) written questions, answered under oath and signed by party
(i) Objections to questions may be made and signed by atty.
2) 25 LIMIT without leave of court
(i) Additional int. are limited by 26(b)(2)
(ii) Factors
1) duplicativeness, opportunity, burden vs. benefit
3) Answers must be given within 30 days
4) Scope/Use at trial 33(c)
(i) re: Legal Opinion
(ii) Court balances the value to the seeker vs. the prejudice to interrogated party Leumi
1) Factors
1. nature of the case
2. knowledge of the answering party
3. mount of discovery to be completed
4. proximity of issue to the central issue
5. *NOTE* - burden is on party objecting to show why court should not allow
(3) Production of Things R. 34,35
1) Any papers, photos, objects relevant to SM
2) Within the possession custody, or control
(i) Hart - construe term broadly - influence may be sufficient "control"
(4) Physical and Mental Examinations
1) FRCP 35
(i) requires a court order for an exam and imposes strict standards
1) physical or mental condition
1. Must be party or person in control or custody of a party (i.e. child)
2. must be in controversy,
3. moving party must show good cause to compel the examination,
"GOOD CAUSE"
weighing of the pain, danger, intrusiveness of the exam against
the need for or usefulness of information to be gained
(ii) Primary effect is to encourage parties to stipulate to examinations
(iii) Schlagenhauf - party must show good cause and EACH condition must be in controversy
Jennifer Good
Jen Good
Page 29
DISCOVERY
(5) Requests for Admissions
1) FRCP 36 (i) requests for admissions as to genuineness of documents or truth of matters of fact
2) purpose of the rule is to eliminate the litigation at trial of factual matters which the adversary cannot fairly
3)
4)
5)
6)
contest – avoid wasting time and money – settled point
AMENDMENTS advisory notes
(i) language "statements or opinions of fact or the application of law to fact" eliminates the
requirement that the matter be "of fact.", and resolves the court dispute as to whether matters of
opinion.
FRCP 37(c)2
(i) if party fails to admit, court may charge that party with reasonable fees, etc. to determine the fact
of the request
(ii) limits this order to several things – including if the party failing to admit has reasonable grounds to
believe that they may prevail – (i.e. – do you admit you are liable?)
CASES
(i) McSparran (X 90)
1) The issue is how conclusive these admissions are as to issues of fact in dispute
2) sworn testimony does not reduce the effect of conclusive evidence to merely evidential ones,
So- sworn admissions are pretty much like testimony, except that an attorney is there – this
supports that they should be even stronger b/c attny. basically writes them
(ii) Ehrich (x 92)
1) savings in time and money bc of sworn admissions – so parties do not have to fly witnesses
all over the place only to have the other party concede  GOOD example of the reasons
for RULE 37(c)2 payment for reasonable fees, costs to find fact
(iii) Editor's Notes (cb 843-845)
1) Rule 36 –
1. authorizes a party to serve another party w/ requests for admissions, but is not a true
discovery device because it does not require the responding party to disclose
information
2. b/c responses to other disc. can be amended, or contradicted at trial, admissions
cannot be contradicted at trial
WHAT DO YOU HAVE TO DISLOSE?
(i) NOTE: Ethically speaking – you have to admit if you KNOW it's true, but If you are not sure,
than you don't have to – This is an issue though, flagged as a point of contention
4) Mandatory Disclosure
(1) Rule 26(a)1
1) mand. disclosure and automatic disclosure of certain matters
(2) Automatic pre-discovery disclosure:
1) Under Rule 26(a)(1), a party must, even without a request from the other side, automatically
disclose certain things early in the litigation. The most important are:
(i) All witnesses with discoverable information:
1) First, each party must disclose the name, address and phone number of each individual likely
to have discoverable information that the party plans to use in its case.
(ii) Documents:
1) A party must furnish a copy, or description by category and location, of all documents and
tangible things in that party’s possession, that the party plans to use in its case.
(3) Automatic Disclosure
1) Later in the litigation, each party must automatically disclose to the other the details of expert
testimony (as discussed above) and witnesses and exhibits to be used at trial.
(4) *note* A party need only disclose information that will help your case or support your claims or
defenses
Jennifer Good
Jen Good
Page 30
DISCOVERY
5) Limitations of Discovery
(1) Work Product Doctrine (Trial Preparation Materials)
1) Trial preparation immunity: Certain immunity from discovery is given to the materials
prepared by counsel for trial purposes, and to the opinions of experts that counsel has
consulted in trial preparation.
(i) this does not include materials prepared in the ordinary course of business
2) Qualified immunity:
(i) "Qualified" immunity is given to documents prepared "in anticipation of litigation" or
for trial, by a party or that party’s representative.
1) "Representative" defined:
1. A party’s "representatives" include his attorney, consultant, insurance
company, and anybody working for any of these people (e.g., a private
investigator hired by the attorney)
2) Hardship:
1. The privilege is "qualified" rather than "absolute."
2. The other side might be able to get discovery of the materials, but only by
showing "substantial need of the materials in preparation of [the] case" and
an inability to obtain the equivalent materials "without undue hardship.
26(b)(3)"
3. Moving Party must show
1. Good Cause
a. substantial need for the materials in prep of party's case
2. Undue Hardship
a. the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means
3. Hickman
a.
a party desiring discovery of the work product of a lawyer must show
that he has an "adequate need for the materials and that he would
be prejudiced without them"
3) Absolute immunity: MENTAL IMPRESSIONS, CONCLUSIONS, LEGAL THEORIES
(i) In addition to the qualified work-product immunity discussed above, there is also "absolute"
immunity. Rule 26(b)(3) provides that even where a party has substantial need for materials (in
other words, the showing for qualified immunity has been made), the court "shall protect
against disclosure of the mental impressions, conclusions, opinions, or legal theories of
an attorney or other representative of a party concerning the litigation."
4) *NOTE*
(i) work product does not protect the information, just the documents, so think "how else
can you get the documents?"
(2) Other (b)2 limitations
1) Discovery may be limited by the court if the court determines:
(i) unreasonably cumulative or is obtainable from some other source that is more convenient,
less burdensome, or less expensive
(ii) the party seeking discovery has ample opportunity to obtain information sought
(iii) the burden or expense outweighs its likely benefit
1) consider
1. needs of the case
2. amount in controversy
3. parties resources
4. importance of issue in the case
5. importance of proposed discovery in resolving the issue
Jennifer Good
Jen Good
Page 31
DISCOVERY
6) Sanctions - Discovery
(1) Discovery normally proceeds without court intervention. But the court where the action is pending may
intercede in two main ways, by 1) issuing orders and by 2) awarding sanctions.
(2) The court may order
1) abuse of discovery stopped (a protective order) or
2) party to furnish discovery (order compelling discovery).
3) Sanctions can be awarded for failing to handle discovery properly.
(3) Abuse of discovery: One party sometimes tries to use discovery to harass her adversary. The
discoveree may fight back in two ways:
1) by simply objecting to a particular request; or
2) by seeking a Rule 26 protective order.
(4) Protective order: Where more than a few questions are at stake, the party opposing discovery may seek
a "protective order." Rule 26(c) allows the judge to make "any order which justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense...."
1) Prohibition of public disclosure: One common type of protective order allows trade secrets or other
information to be discovered, but then bars the public disclosure of the information by the discovering
litigant. (Example: On the facts of the above example, the judge might allow P to get discovery of D’s trade
secrets, but prevent P from disclosing that information to any third party.)
(5) Sanctions for failing to furnish discovery:
The court may order a number of sanctions against parties who behave unreasonably during discovery. Principally, these sanctions are used
against a party who fails to cooperate in the other party’s discovery efforts.
1) Financial sanctions: If a discovering party seeks an order compelling discovery, and the court
grants the order, the court may require the discoveree to pay the reasonable expenses the other
party incurred in obtaining the order, may include attorney’s fees for procuring the order.
2) Other sanctions: Once one party obtains an order compelling the other to submit to discovery,
and the latter persists in her refusal to grant discovery, then the court may (in addition to the
financial sanctions mentioned above) impose additional sanctions:
1) National Hockey - SC - endorses the use of sanctions for not complying with discovery orders
(ii) Facts established:
1) The court may order that the matters involved in the discovery be taken to be established.
2) Example: In a product liability suit, P wants discovery of D’s records, to show that D made the product that injured
P. If D refuses to cooperate even after the court issues an order compelling discovery, then the court may treat as
established D’s having manufactured the item.
(iii) Claims or defenses barred:
1) The court may prevent the disobedient party from making certain claims or defenses, or
introducing certain matters in evidence.
1. Cine - judge ordered that party who refused to comply with discovery may not introduce
evidence as to treble damages - court found no abuse of discretion
(iv) Entry of judgment:
1) The court may also dismiss the action, or enter a default judgment.
(v) Contempt
1) Finally, the court may hold the disobedient party in contempt of court
Jennifer Good
Jen Good
ASCERTAINABLE LAW – The Erie Doctrine - What Law Governs in Diversity Cases?
Page 32
note: Erie only applies in Diversity, in Fed Q - Fed Common Law applies
The most important problem of this type is:
 In a diversity case, may the federal court apply its own concepts of "federal common law", or must
the court apply the law of the state where the federal court sits?  SUBSTANTIVE LAW OF THE FORUM STATE GOVERNS
KEY CONCEPTS: Under Erie v. Tomkins
1) Discourage forum shopping
2) Promote Uniform Application of Substantive Laws within a state
EXAM TIPS: Erie Problems Generally (CrunchTime)
FIRST  Categorize the Problem
1. Category 1 - Conflict between state law and noncodified FEDERAL POLICY
Under an Erie analysis:
If Substantive - state law applies
If Procedural:
Balance the strength of the state and fed policy's
interests
(consider outcome determinative and forum shopping)
2. Category 2 - A DIRECT conflict between State
law and Federal Rule of Statute
IF FRCP is valid and does not enlarge, abridge, deny
(most FRCP are) - Fed. Rule applies under the
Supremacy Clause - HANNA
3. Category 3 - Overlap - coverage of same areas but Follow state policy if it does not violate the federal rule
NO DIRECT CONFLICY
BALANCING THE STATE AND FED. INTERESTS UNDER ERIE ANALYSIS:
1) Outcome-determinative - If so - more likely state law is followed
2) Forum-Shopping - If will induce Π to forum shop  state rule more likely
3) Will it thwart an important federal policy (i.e. right to jury trial)  more likely FED.
Other Erie Problems:
1) What is the State Law?
i) How would the State's highest court rule?
2) What about Conflict of Laws?
i) Apply state law to determine which state law to apply.
3) What about Burden of Proof?
i) Feds must allow state law burden of proof to apply.
4) Procedure vs. Substance
i) FR take precedence - If rule applies and is valid - Fed Law trumps
ii) If no Fed Rule covers issue - consider outcome det., balance of state and fed. policies (see above)
iii) If Fed. Statute on Point - Controls - even if it promotes forum shopping
Jennifer Good
ASCERTAINABLE LAW – The Erie Doctrine cont...................
Jen Good
Page 33
ASCERTAINING LAW: CASES AND LAWS – THE ERIE DOCTRINE
CASE / LAW
WHAT IT MEANS:
RDA – Rules of Decision Act
28 U.S.C. § 1652
The “laws of the several states” except where
constitutions or Acts of Congress otherwise require or
apply, shall be regarded as the rules of decision in civil
actions in the courts of the U.S
(read: Federal Courts) in cases where they apply
Rules Enabling Act
28 U.S.C. § 2071, § 2072
Promulgated Rules from U.S supreme court under §
2071 which states that the SC has the power to
proscribe general rules of practice and procedure…for
cases in the Federal District Courts
***Such rules shall not abridge, enlarge or modify any
substantive right …..*****
* **Advisory Committee Recommends to the SC,
which adopts (maybe) recommendation and then
sends to congress
Under this authority, FRCP are created
Erie
****SUBSTANCE vs. PROCEDURE
State common law controls in "substantive" matters.
But federal rules and policies control on matters that
are essentially "procedural."
York
 Outcome-Determinative Test
Outcome of the litigation in the federal court should
be substantially the same, so far as the legal rules
determine the outcome of litigation, as if it were to be
tried in a federal court - SO - if the outcome is affected,
substantive and thus state law governs
Byrd
 Interest Analysis Balancing Test
Weighing the State interests versus the Federal
Interests and then take into account the outcomedeterminative aspect
******Fed wins the judge/jury allocation*******
 Interpreted the “laws of several states” in § 1652
to mean that 
In diversity cases, the federal courts must apply
state judge-made law on any substantive issue
 Statute of Limitations applied in State-created
claim
 Judge vs. Jury in factual dispute
Hanna
Burlington Northern
 Rule 38 passes does not "abridge, enlarge or
deny" because it affects only the process of
enforcing litigants rights and not the rights
themselves
WHEN DIRECT CONFLICT BTW FED/STATE
Hanna Part I – Is FRCP on Point
Hanna Part II - If yes and not unconst. - Fed Rule
applies under the Supremacy Clause
 Procedural Rules that incidentally affect substantive
rights are permissible under the 2nd section of the REA
- BUT abridge, deny or enlarge are not - Reasonably
Procedural
Jennifer Good
Jen Good
Page 34
ASCERTAINABLE LAW – The Erie Doctrine
cont..............
CASE / LAW
Hanna/Sibbach
WHAT IT MEANS:
Stewart
Gasperini
1) Is there a valid FRCP or Fed Statute that applies?
2) Is it valid under the Rules Enabling Act and Constitution
If so  then it wins, if conflict with the State law?
When no FRCP is on Point
Courts should look at the differences in the outcome AND the way
that they affect or undermine the 2 prongs of Erie (forum-shopping &
equitable law) To avoid differences that are significant in such ways,
Fed Courts should apply state law
1. Fed Law when FRCP is on point
2. If no FRCP or Stat on point
First  Apply interest balancing test for “broad area” or “pocket” of
the law
Second  Rely on Stare Decisis
For the most part, state statute of limitations procedure must be
followed in a state law
 exception may be if there is a FRCP specifically stated to address
Statute of limitation tolling
TEST:
1. Is FRCP sufficiently broad to cover issue?
2. If no - no FR to apply, If Yes - if const. than apply Hanna
If a fed. statute governs and is constitutional, then federal law applies
Court may apply state law rule for excessive damages -
KLAXON
 For matters governed by state law in a diversity
VAN DUSEN / FERENS
case, the forum state's conflicts law tells which
state's law governs;
 to determine the content of state law where it is unclear, the
federal court should act as if it were then sitting as the forum
state's highest court.
Apply Law of Transferor Forum/ Stat. of Limitation is substantive
Hanna/Erie
Hanna/Byrd
Armco/Ragan
ARMCO
Jennifer Good
ASCERTAINABLE LAW – The Erie Doctrine cont...................
WHEN FED LAW GENERALLY WINS
WHEN STATE LAW GENERALLY
WINS
Jen Good
Page 35
1.
2.
3.
4.
5.
1.
2.
3.
Judge/Jury relations
Order of Trial
FRCP and Appellate Procedure
Venue and Forum Selection
Res Judicata Effects of Federal Judgments
Statute of Limitations on State created claims
Territorial Jurisdiction on State-Created Claims
“Door Closing Statutes”
 Woods, Not Szantay
4. Horizontal Choice of Law on matters governed by State
law in diversity cases
5. Burden of Proof matters governed by State Law
Examples and Explanations Notes: Erie, York, Byrd and Hanna – General Rules
p. 166 - These four cases provide the basic framework for when a federal court must defer to state law
There are four basic types of provisions which may conflict with state law:
1. FED CONST. & STATE LAW CONFLICT
A federal constitution provision might mandate a
federal court procedure that differs from state law
a. i.e. requiring a unanimous jury verdict when
the state only requires a majority
SUPREMACY CLAUSE - Under the Art. VI, the federal
constitution is the supreme law of the land, and always wins
out in a conflict, so if the constitution mandates a particular
practice, that practice must be followed
2. FED STAT. & STATE LAW CONFLICT
A federal statute may govern federal law but conflict
with state law
a. i.e. requiring enforcement of arbitration
clauses even when a state court may not
If they are valid, under Hanna , Congress has the authority to
enact statutes governing procedure as long as they are
"arguably procedural". If this "arguably procedural" test is
met, FED RULE WINS when it conflicts with state law,
again, under Supremacy Clause
3. FRCP & STATE LAW CONFLICT
A formal FRCP may apply in federal court which
conflicts with state law
a. i.e. Hanna service/notice requirements
Pretty much, under Hanna and Sibbach, if the rule is arguably
procedural (which usually is) & valid, then the FRCP wins out
UNLESS it "Abridges, Enlarges or Modifies" a substantive
right under §2072.
4. FED. JUDICIAL PRACTICE & STATE LAW
CONFLICT
Federal judiciary may develop rules of procedure
which are applied as a matter of common practice,
but are not in the FRCP or statute, which conflict
with state law
a. comment to jury on evidence, allow alternate
jurors to deliberate, etc.
Under Hanna part I, the court should choose the state rule if
the federal practice would prove "outcome determinative" in
the sense that it would undermine Erie policies against
forum-shopping and inequitable application of the law.
(Shady area, but at least apply this test to the facts if they fit)
Jennifer Good
Jen Good
Page 36
ASCERTAINABLE LAW – The Erie Doctrine cont...................
*****************************************************************************
STICKY SITUATIONS with CONFLICT
1. WHEN IS THERE CONFLICT?
a. If the two require contradictory procedures that CANNOT coexist there is conflict
b. An EXAMPLE  In Walker v. Armco – Court found no conflict by finding that the Federal Rule was
not intended to govern the statute of limitations
i. SO – all they did was apply Hanna part I, and concluded that ignoring the state rule would lead
to inequitable administration of the rules because the suit would go forward in federal, but not
state, and court would not allow a claim to last longer in federal court than state
2. WHEN DOES A VALID RULE "ABRIDGE, ENLARGE or MODIFY A SUBSTANTIVE RIGHT?
(So valid under REA first section, bc a valid FRCP, but violates REA 2nd section)
a. RARE!!!  A case has to have a SIGNIFICANT impact on state policy unrelated to litigation to be
invalid, since there is a heavy presumption of validity for formal rules by court.
b. VARIOUS TESTS APPLY
i. Ely (The Myth of Erie) – A right is "substantive" if it is granted for one or more non-procedural
reasons, for some purpose or purposes not having to do with the fairness or efficiency of the
litigation process.
3. WHAT DIFFERENCES ARE SUFFICIENT TO LEAD TO "INEQUITABLE ADMINISTRATION
OF THE LAWS" (Erie policy) UNDER HANNA?
a. Well, usually if the courts formally require them (by statute (congress) or Supreme Court, but not if (like
in Walker) it can simply be read into the rule or IF judge made, generally then state law will win out
i. i.e. In Walker, had Rule 3 mentioned tolling for statute of limitations, may have been a different
outcome, but since tolling may only possibly be an effect, the court found that applying Rule 3
in that case would lead to "inequitable administration of the laws.
4. WHAT IS THE CURRENT STATUS OF BYRD? (Balancing State and Federal Policy Interests)
a. Did Hanna displace Byrd?
b. Many lower courts rely on Byrd. Since Hanna, Part I talks about use of state law in conformity with Erie
policy, there is still application of the Byrd policy considerations of State and Feds to determine whether
to defer to state law.
5. STEPS OF IN APPLYING THE HANNA TEST and THE FOUR FACTORS

1. Is there a FRCP on point, applicable to the issue?
2. If yes, if it is valid and conflicts – Than the FR applies – If no  Consider these factors
i. Is the Issue one which is tightly or loosely "bound up with the creation of the rights being
sued upon? (How Substantive is the State law?)
ii. Would the application of a different rule by the federal court be outcome determinative in
the sense that it would produce 1) Forum shopping or 2) unequal administration of the laws?
iii. What is the federal policy in either avoiding state law or applying federal law?
iv. Would the use of the Federal standard intrude on State sovereignty?
In balancing these four factors, the court in close cases takes into account the underlying policy of
Erie that deference to the states is preferable unless there is some imp. federal interest or
interference with state's rights.
Jennifer Good
Jen Good
Page 37
PRE-TRIAL
ADJUDICATION WITHOUT A TRIAL
Summary Judgment
FRCP 56
I. MOVING PARTY – submits evidence as to facts for trial
a.
If this information fails to establish that no factual dispute exists, no summary judgment (EVEN IF
ADVERSE PARTY BEARS THE BURDEN AT TRIAL)
b. HOWEVER – if this evidence shows that no factual dispute exists, the un-moving party must come forward
with evidence that there is a genuine issue of fact
i. Opposing party must show specific facts that there is a genuine issue for trial
c. Court views in the light most favorable to the non-moving party
d. Partial Summary Judgment
i. court may grant sum. judgment re: certain claims, (R. 54(b))
II. RULE 56
a. Claimant may move at any time AFTER 20 days following the action, service
b. Δ party at ANY TIME
c. moving party must show no genuine issue of material fact
i. NOTE: may be issued on the issue of liability even if there is a genuine issue as to the amount of
damages
d. Court may rule on some facts, and consider those settled at trial
e. When moving party makes and supports, adverse (non-moving) party must set forth specific facts showing that
there is a genuine issue of material fact)
f. non-moving party may request more time
g. Affidavits made by bad faith
III. CASES
a.
Lundeen - although reliability of witnesses issue of fact, may grant sum. judgment on dep. of witnesses unless
there is reason to believe that witness bias, dishonest, bad faith
b. Cross - no summary judgment where Π testimony was imp. to decision and so ct. says Π reliabiilty issue of fact
c. Adickes - Summ. judgment for Δ reversed b/c Δ did not shift burden to Π
d. Celotex - moving party does not NEED to produce evidence under 56(a)(b) language "with or without aff."
IV. NOTE
a. Consider burden of proof issue - if Π has burden of proof at trial, and there is no evidence, Δ does not have to
present much for a summary judgment b/c Π would lose at trial if there is no evidence in support of Π
Default Judgment
I. FRCP 55
a.
b.
c.
d.
e.
Entry – when a party has failed to plead or otherwise defend as provided by FRCP AND the fact is made to
appear by affidavit or otherwise, the CLERK shall enter the party's default
JUDGMENT
i. By clerk – sum certain or computable sum – not infant or incompetent
ii. by Court – If party has appeared, must be given 3 days notice of default hearing, court may
conduct hearings to determine amounts, or truth of averments Coulas
Setting aside for good cause or in accordance w rule 60(b) (mistakes, excusable neglect, new evidence, fraud, etc)
May be Π, Δ, 3d party claimant, cross or counterclaimant – Limited by rule 54(c) – demand for judgment
J. ag. the US
NOTE: Δ who defaults in one jurisdiction may collaterally attack the Default Judgment in another on these bases
1. court lacked personal jurisdiction
2. First court lacked in rem/quasi in rem jurisdiction - INVALID JUDGMENT
3. First court had no subject matter jurisdiction
4. Fraud by Π
**Δ who appeared w/o objecting to jurisdiction MAY NOT COLLATERALLY ATTACK THE JUDGMENT**
Jennifer Good
Jen Good
Page 38
TRIAL PROCEDURE
THE TRIAL STAGE
Trial by Jury
1) The Right to a Jury Trial
a) Constitutional Issues: The 7th Amendment
i) MOST IMPORTANTLY:
(1) Federal vs. State
(a) 7th Am. right to trial applies only to federal cases
(i) although many states in state const. provide right to jury trial
(2) Legal vs. Equitable
(a) 7th Am. only applies to "legal issues"
1. Equitable
a. claims that are entirely equitable in nature (i.e. injunction, specific performance)
i. No right to jury trial
2. Legal
a. Money Damages
i. Right to trial by jury
3. BOTH Legal and Equitable
a. If both and there is a common issue of fact to both, the court must usually
allow the legal claims to be tried first to the jury
b. MOST TESTED ISSUE
(b) Beacon Theatres
(i) legal issues must be tried first and ONLY in the most imperative circumstances can a party lost
the right to a jury trial
(ii) right to jury trial cannot be lost by prior by prior determination of equitable relief
(c) LABELS are not important
(i) court will look to see whether the issue is really legal or equitable
1. Dairy Queen – choice of words is not determinative
ii) HOW TO DETERMINE LEGAL vs. EQUITABLE
(1) Ross
(a) Legal nature of an issue is determined by
(i) pre-merger customs
(ii) remedy sought (i.e. money damages in favor of legal)
(iii) practical abilities of the jury
(b) Can argue for and ag. a "complexity exception"
(i) Financial Securities
1. Rejected "complexity exception" b/c SC did not address and parties are resp. for presenting
issues in a comprehensible manner
2. availability of options to assist the jury
(ii) Japanese Electric
(2) Teamsters
1. Adopted a complexity exception b/c if the jury cannot understand, there is a risk of
erroneous verdicts, judge can more consistently apply the law
2. However – did caution this is ONLY for EXCEPTIONALLY complex cases
a. NOTE: Courts do have options, i.e. sep. trials and masters for the jury to help them
understand
(a) Apply a two-part analysis
(i) Hx.
(ii) Remedy (arguable that this is weighted more b/c not always a hx. precedent on point)
(3) Souix City
(a) it is unsettled whether there should be a complexity exception to jury trial
Jennifer Good
Jen Good
Page 39
TRIAL PROCEDURE
THE TRIAL STAGE
TRIAL BY JURY
2) Jury Selection
a) Size
i)
SC announced in Colgrove that a jury may sit with less than 12
(1) note: In FRCP 48 – in federal jury trial, no more than 12, no less than 6 UNLESS the parties agree to less
(a) Also – FRCP – must be unanimous unless otherwise stipulated
(2) The notions of the restriction on size are to
(a) ensure fuller deliberations
(b) cross section adequate
(c) larger juries are more predictable and arguably, more stable
b) Selection of Favorable Jurors
i)
Theil
(1) cannot categorically exclude a class of persons
(2) also, under 28 USC 1861, 1862
(a) Cannot exclude on account of race, sex, economic status
ii) Exemptions
(1) 18 USC 1863
(a) Holding office, firefighters, police, armed forces
(b) because they are "needed" for countervailing social needs
c) Challenging Ind. Jurors
i)
Flowers
(1) court must exclude those jurors which are bias or prejudice to one side
(a) Bias – inclination towards one side
(b) Prejudice – pre-judgment
JUDICIAL CONTROL OVER THE JURY DECISION
1) THE PROVINCE OF THE JURY
a) What is for the jury, What is for the judge, LAW vs. FACT
i) RULE:
(1) Markman
(a) consider hx, precedent and the interpretive skills of judge vs. jury
(b) consider whether the issue is one where uniformity is needed, and thus a judge should consider so
that there is uniformity in application of law
(i) i.e. the term "inventory" for patent
2) JURY MISCONDUCT
a) Tools
i) Special Verdicts and Verdicts with Interrogatories
(1) Robb – court ordered new trial b/c the jury verdict inconsistent w/ itself
(2) Sopp – Mansfield Rule – jurors cannot impeach themselves
ii) Most Jurisdictions Follow Mansfield, however, some follow....
(1) Modified Mansfield
(a) jurors can testify to overt acts of other jury members
(i) Cannot be beased on state of mind or feelings of ind. juror
(ii) affidavit and prob. must be supported
iii) FR Evidence 606
(1) Jurors can impeach themselves
(2) Allows the introduction of juror testimony only to show that prejudicial outside evidence was brought
into the jury room or extraneous influences were improperly brought to bear on any juror
(3) Avoids the problem of what is an "act" and recognizes that other things may taint jury verdicts
iv) Quotient Verdict is NOT ALLOWED in most jurisdictions Huckle
(1) however, the only way to know if by juror testimony, which is not admissible w/o extraneous influences
or prejudicial outside evidence
(2) Is it really that bad?
Jennifer Good
Jen Good
Page 40
TRIAL PROCEDURE
THE TRIAL STAGE
Judicial Control Over the Jury Decision
3) JUDICAL POWER TO OVERRIDE THE JURY
a) JNOV – FRCP 50
i) If a party has been fully heard on the issue and there is no legally sufficient evidence for a reasonable jury to find in
favor of the verdict, the judge can issue JNOV for the other party upon motion – JUDGMENT as a matter of law
(Renewed motion for directed verdict)
(1) may be made at any time BEFORE the case goes to the jury
(a) Thus, Δ can move after Π is heard, and both may move after both sides rest
(2) If renewed no later than 10 days after the verdict, the court has options
ii) STANDARD FOR GRANTING
(1) If the evidence is such that no reasonable person could differ as to the result (see above for fed)
iii) CASES
(1) Denman
(a) when Π has burden of proof, must carry burden or directed verdict for the Δ
(2) Kircher
(a) JNOV is NOT APPROPRIATE if there is any possibility that the evidence supports the
verdict (the guy "rolled" 19 feet – although unrealistic, it is possibly, jury verdict upheld
4) NEW TRIAL
a) Generally:
i) The trial court, in both state and federal courts, usually has wider discretion to grant a new trial motion
than to direct a verdict or disregard the jury’s verdict (JNOV). The reason is that the grant of a new trial
interferes less with the verdict winner’s right to jury trial.
ii) FR for granting a new trial
(1) Harmless Error –
(a) cannot grant if harmless error – must be significant, judge must think error may have
effected outcome of case
(2) Evidence Error
(a) erroneous exclusion, inclusion of evidence
(3) Objection
(a) party injured by the error must timely object to preserve ground to appeal
(4) Improper Conduct
(a) by a party, witness or lawyer, or evidence of jury misconduct (bribe)
(5) Ag. the clear weight of the evidence
(a) Fed. Standard – similar to directed verdict, but a little easier to get
(6) Aetna
(a) If there is a possibility that the evidence supported the facts, than no new trial or jury verdict
– ALSO court must be very careful to grant a directed verdict ONLY where there is clearly
not enough evidence to support the verdict,
(b) new trial is discretionary, and court should grant a new trial before a directed verdict because
at least case is still heard by a jury.
b) NOTES
i) There is a big difference btw new trial and directed verdict –
ii) new trial – get another chance vs. directed verdict – win or loss
iii) discretionary, so if 2d trial same verdict, prob. will not keep granting them.
Jennifer Good
Jen Good
Page 41
TRIAL PROCEDURE
THE TRIAL STAGE
Judicial Control Over the Jury Decision
5) Conditional and Partial NEW TRIALS
a) Verdict excessive or inadequate: A new trial may be granted where a verdict is excessive or inadequate.
i) Remittitur and additur: Where the verdict is excessive or inadequate, the judge may grant a
conditional new trial order – the new trial will occur unless the plaintiff agrees to a reduction of the
damages to a specified amount (called "remittitur") or the new trial to occur unless the defendant
consents to a raising of the damages (called "additur").
(1) Most state courts allow both additur and remittitur.
(2) In federal practice, only remittitur is allowed. If a party accepts the remittitur/additur, he may not thereafter
appeal.
(a) NO ADDITUR in Federal Court b/c violates the 7th Am. b/c jury did not pass on amt.
1. Fisch – although okay in most state courts, additur is not ok. in the federal court because
inconsistent with the 7th amendment
2. Gorsalitz – remitter does not violate the 7th am. because jury agreed on an amount and the Π has
option to take a new trial or lower amt.
ii) Partial new trial:
(1) The trial judge may grant a partial new trial, i.e., a retrial limited to a particular issue.
(2) Most typically, this occurs when the trial judge feels that the jury’s conclusion that D is liable is
reasonable, but feels that the damages awarded are inadequate or excessive – the judge can grant a new
trial limited to the issue of damages.
(a) BUT – NO RETRIAL on issue of liability alone
1. Doutre – damages and liability are so intertwined that maybe a jury would not find liability when
seeing the new evidence., vs. damages alone when the judge is sure that issue of liability is settled
iii) Newly-discovered evidence: The trial judge may grant a new trial because of newly-discovered
evidence.
(1) The person seeking the new trial must show that:
(a) the evidence was discovered since the end of the trial;
(b) the movant was "reasonably diligent" in his search for the evidence before and during the trial,
and could not reasonably have found the evidence before the end of the trial;
(c) the evidence was material, and in fact likely to produce a different result; and
(d) injustice would otherwise result.
iv) Review of orders granting or denying new trial
(1) Both the grant of a new trial by the trial judge, and his denial of a new trial, may be reviewed upon
appeal. Where the judge orders a new trial, the party who won the verdict may not appeal the new trial
order, and must instead wait until the end of the new trial.
Extraordinary Relief from Judgment
1) Timeliness of Motion for a New Trial
a) Hulson rule 6(b) THERE are no limitations for the time period for motion for jnov or new trial, even if good faith of
all parties and the judge
2) Power to Set Aside a Verdict
a) Briones –RULE 60(b) Excusable Neglect
i) Four Factors
(1) prejudice to opposing party
(2) length of the delay and potential impact on proceedings
(3) reason for delay
(4) Whether moving party acted in good faith
b) Other Options
i) file the motion and then later amend so that motion is timely
Jennifer Good
Jen Good
Page 42
MULTI-PARTY and MULTI-CLAIM LITIGATION
If there is more than one claim in the case, or more than the basic two parties (a single plaintiff and a single defendant), you will face a whole host of
issues related to the multi-party or multi-claim nature of the litigation. You must be prepared to deal with the various methods of bringing multiple
parties and multiple claims into a case. In federal courts:
FOR MULTI-PARTY AND MULTI-CLAIM LITIGATION - TWO QUESTIONS
1. Is there jurisdiction
a. Personal
b. SM
2. Is there a rule that allows this claim?
JURISDICTION:
(1) For any multi-party or multi-claim devices, check to see whether the requirements of personal jurisdiction
and subject matter jurisdiction have been satisfied.
(2) Know whether the doctrine of "supplemental" jurisdiction applies to the particular device in question.
(a) If it does not, the new claim, or the new party, will typically have to independently meet the
requirements of federal subject matter jurisdiction.
(i) Example: P, from Massachusetts, sues D, from Connecticut, in diversity. X, from Massachusetts,
wants to intervene in the case on the side of D. Because supplemental jurisdiction does not apply
to intervention, X must independently satisfy the requirement of diversity, which he cannot do
because he is a citizen of the same state as P. Therefore, X cannot intervene.
JOINDER OF CLAIMS:
(1) Once a party has made a claim against some other party, she may then make any other claim
she wishes against that party. This is "joinder of claims." Rule 18(a).
(a) Applies to original claims, counter-claims, cross-claim and 3rd party claims
(b) NEVER REQUIRED to join other claims
(i) joinder of claims is never required under rule 18
(c) SM jurisdiction and joinder of claims
(i) unless supp. jurisdiction applies, each joined claim must have ind. sm jurisdiction
1) However - usually is not problem for because diversity is not affected b/c same
parties AND parties may aggregate same claims ag. same party to meet AOC req.
2) Also - if claims "arise out of the same transaction" can get them in under the
supplemental jurisdiction
(2) If joined claim would confuse or prejudice
(a) Sep. trials under R. 42
(i) Cases
1) Harris v. Avery - causes of action arising out of the same transaction in Code
jurisdiction may be joined - remember - rule 42 separate trials so as not to prejudice
parties with other claims
2) Rush - a party may be precluded from additional claims by res judicata if they are not
joined with original claims and the issue is fully litigated in first claim
Jennifer Good
Jen Good
Page 43
MULTI-PARTY and MULTI-CLAIM LITIGATION
COUNTERCLAIMS: FRCP 13
(1) D may make a claim against P, by use of the counterclaim.
(a) Also, remember that third parties, who are neither the original plaintiff nor the original defendant, may make
a counterclaim.
(2) Check whether the counterclaim is "permissive" or "compulsory."
(a) PERMISSIVE COUNTERCLAIMS
(i) "any claim not arising out of the transaction or occurrence that is the subject matter of the
opposing party's claim"
(ii) Must satisfy ind. SM jurisdiction b.c cannot get under Supp.
1) basically, no claim is too far removed from the subject of Π claim
1. once a Π brings in a Δ - Δ may bring pretty much any claims ag. Π
(b) CUMPULSORY COUNTERCLAIMS (note: FED RULE - not ever jur. has this rule)
(i) any claim that is "arising out of the same T or O that is the subject matter of the opposing
parties claim"
1) note: this is the same test for Supp. jurisdiction more or less "common nucleus"
2) Not much for def. - but basically a "logical relationship" & same facts
(ii) NEED not have ind. SM jurisdiction b/c w/in supp. jurisdiction
1) Effect of failure to state a compulsory counterclaim
1. LOSE that claim in future litigation
i.
Mitchell - claim is barred b/c it was a comp. counterclaim in previous suit btw same parties
2. NOTE: Δ can motion for leave to amend to include counterclaims under rule
13(f)
3. Also - if Δ motions to dismiss Π claim and never anwers, and then seeks to bring
a claim arising out of same t or o - P is barred by res judicata
2) Exceptions
i.
1. claims requiring the presence of additional parties which cannot be brought in b/c of
personal jurisdiction issues
2. Claims already subject to pending action
3. claims ag. Δ which are purely in rem or quasi in rem
assuming that Δ is not already making any other counterclaim in the action.
3) Π DEFAULT to Δ counterclaim
1. judgment may be entered ag. Π if Π does not reply or make a motion ag. the
counterclaim
(3) Counter-claims by Third Parties - Rule 13 - any party against "any opposing party"
(a) By 3d Party Δ
(i) may counter-claim ag. either original Δ or Π (Π only if Π has a claim ag. party first)
(b) By Π
(i) If Δ has counter-claimed ag. Π - Π may counter-counter-claim ag. Δ,
(ii) Watch for compulsory counter-counter claims from Δ's first counter-claim
(c) New Parties
(i) Can be brought in, but must meet joinder requirements of rule 19, 20
(4) Subject Matter Jurisdiction and Counterclaims
(a) Compulsory - no need for ind. sm b/c prob. supp b/c same t or o
(i) BUT - remember that Supp. Jur. is discretionary, so look to see if the court may not grant
supp. jur. - then the claim will need ind. sm jurisdiction of its own
1) Generally, same t or o = "common nucleus"
2) This also generally means that Δ may bring in additional parties to the comp. cc with
whom Δ is not diverse?
(b) Permissive - prob. need ind. sm b/c no supp. jurisdiction b.c not same t or o
Jennifer Good
Jen Good
Page 44
MULTI-PARTY and MULTI-CLAIM LITIGATION
CROSS-CLAIMS:
(1) Check to see whether any party has made, or should make, a claim against a co-party.
FRCP 13(g).
(a) These are NEVER compulsory (but, remember they could be barred by res. judicata?)
(2) Two Main Requirements
(a) Transaction
(i) must arise out of the same transaction or occurrence as that original action or a counterclaim
1) same test as compulsory counter-claim
(b) Actual Relief
(i) cannot simply be a defense (blaming another - must want relief)
(3) No need for independent SM jurisdiction
(a) b/c the test is the same for Supp. there is supp. jurisdiction over the claims
(i) remember **disrectionary**
(4) Lasa
(a) read R. 13 broadly to allow court to hear all related claims. Court may hold sep. trials if there are
issues requiring separation
(5) NOTE:
(a) rules are really for Δ cross claim, not Π already joined ag. a Δ - so no cross claim btw. Π re: same
subject matter as the claim ag. Δ.
INTERPLEADER:
1) Where a party owes something to two or more other
persons, but isn’t sure which, that party may want to
use the device of interpleader to prevent being made
to pay the same claim twice. ("Stakeholder")
1) After checking whether interpleader might be desirable, decide whether the stakeholder should use
"statutory interpleader" or "Rule interpleader."
2) Mechanism for a defendant to seek relief against multiple competing parties each of which claims to be entitled
to the identical relief. (i.e., two parties claiming to be the beneficiary of a life insurance contract).
1) Potential defendant brings an action to have the court declare which one (if any) is entitled to
relief.
(i) “we’ll pay the winner, or neither.”
Two versions:
2) “Rule interpleader” - Rule 22(1);
1) must be used for federal question jurisdiction
2) for diversity actions, ($50,000 or more) service of process is limited by Rule 4.
3) “Statutory interpleader” - Rule 22(2) (§§ 1335, 1397, 2361)
1) only $500 or more §1335(a)(1), but claimants must be from different states (but not complete
diversity, only necessary that two are from different states)
2) venue is proper in any district in which a claimant resides under §1337 (regardless if all reside in
the same state as is the case in § 1391)
3) process may be served nationwide under Rule 4(k)(1)(C)
3) NOTE: Statutory Interpleader is more lenient than rule interpleader because
1) minimum diversity
2) low amount
3) nationwide service of process
NOTE: This probably will not be on the test.
Jennifer Good
Jen Good
Page 45
MULTI-PARTY and MULTI-CLAIM LITIGATION
THIRD-PARTY PRACTICE (IMPLEADER):
FRCP 14
1) When D has a potential claim against 3d person not already in the lawsuit, by which that third person will be liable to D
for some or all of P’s recovery from D, D should be able to "implead" the third person. FRCP 14(a).
A.) *note*
(a) Once a third-party defendant is brought into the case, consider what other claims might now be available (e.g., a
counterclaim by the third-party defendant against the third-party plaintiff, a cross-claim against some other third-party
defendant, a counterclaim against the original plaintiff, etc.)
1) Purpose
A.) assert claims for indemnity, contribution, and subrogation
(a) Must be valid reason - not just for jury effect, etc - party must really possibly be liable
(b) Any party who "is or may be liable" to Π for any or all claim
B.) Jueb - do not have to be presently enforceable b/c point of 14 is rights of indemnity etc. and otherwise a party
would have to wait until after action and then institute independent action.
2) Impleader claim MUST BE DERIVITAVE
A.) so, when Δ impleads TPD, Δ becomes TPP and the TPD is only liable to the TPP if the Δ is liable to the Π
(a) Alternative Pleading - TPP may claim in alternative that NEITHER is liable
(b) Partial Claim - Δ may allege that TPD is only liable for part (i.e. contribution)
3) CLAIMS
A.) Δ vs. 3rd party
(a) Arises from the same T or O
(b) Must be derivative
(c) SUPP. Jurisdiction is valid here
B.) Impleader by Π
(a) Π may implead a TPD when Δ asserts a counter-claim
C.) CLAIMS 3d PARTY MAY MAKE - TPD
(a) Counter-claim ag. TPP (Δ)
(i) permissive or compulsory
(b) Cross-Claim ag. other TPD's
(c) Claims ag. original P
(i) if same T or O as P original claim - any claims
(ii) also - note that Feds will have supp. jurisdiction of these, but not Π claims to TPD
(d) Counter-claims ag. Π when Π asserts a claim ag. TPD
(i) here - no supp. jurisdiction of Π claim is original claim based on diversity under 1367
(e) OTHER NOT ORGINALLY PART OF A SUIT
(i) All claims are w/in Supp. jurisdiction except:
1) Permissive Counterclaims
4) TPD may assert the same defenses in FRCP 12 that original Δ may have raised
A.) Original P may assert any claims ag. TPD that arise out of the same T or O
NOTE:*** This claim MUST independently meet SM jurisdiction b.c cannot get it in under 1367 (must be Fed
Q or diversity btw. P and TPD and sufficient AOC.
1) Guarenteed Systems, Kroger - Π claim ag. TPD must meet independent SM jurisdiction,
noted is fact that P could not have brought original claim ag. TPD because it would
destroy diversity b/c TPD is same citizenship as Π
Jennifer Good
Jen Good
Page 46
MULTI-PARTY and MULTI-CLAIM LITIGATION
INTERVENTION:
FRCP 24
A person who is not initially part of a lawsuit may be able to enter the suit on his own initiative, under the doctrine
of intervention.
THREE PURPOSES for INTERVENTION
o Protection of non-parties
o trial convenience
o and protection of the original parties
TWO FORMS OF INTERVENTION
o 24(A) – INTERVENTION OF RIGHT
 Three Criteria MUST BE MET
1. Interest in subject-matter: She must "claim an interest relating to the property or
transaction which is the subject of the action";
2. Impaired interest: She must be "so situated that the disposition of the action may as a
practical matter impair or impede [her] ability to protect that interest"; and
3. Inadequate representation: She must show that this interest is not "adequately represented
by existing parties."
o 24(B) – PERMISSIVE INTERVENTION



For a person to seek "permissive intervention," she merely has to have a "claim or defense" that involves
a "question of law or fact in common" with the pending action
 Discretion: Where the outsider seeks permissive intervention, it is up to the trial court’s
discretion whether to allow the intervention. The trial court’s decision is rarely reversed on
appeal.
 Jurisdiction: Like any intervenor of right, a permissive intervenor in a diversity case must
independently meet federal subject-matter jurisdictional requirements. (Example: There must
be diversity between the intervenor and all defendants.
Distinction:
o Where the intervention is "of right," no leave of court is required for the party’s entry into the case. Where
the facts are such that only "permissive" intervention is possible, it is up to the court’s discretion whether to
allow intervention
AS TO SUBJECT MATTER JURISDICTION FOR INTERVENTION:
o Claims by prospective plaintiffs who try to intervene under Rule 24 do not get the benefit of
supplemental jurisdiction. This is true whether the intervention is permissive or of right.
o ****NOTE******** Under 1367 (b) (Supp Jurisdiction Statute) diversity must be satisfied by intervenor.
CASES


Smuck o test is primarily a "practical guide to disposing of lawsuits by involving as many apparently
concerned persons as is compatible with efficiency and due process
o similar to joinder, but more expansive and inclusive - but parties must not otherwise be adequately
represented
o FACTORS of ADEQUATE REP:
 interests and considerations of parties, (i.e. economic interests, other interests)
Atlantis
o allows intervention because not allowing will impede the interest of the parties and parties are not
otherwise adequately represented
Jennifer Good
Jen Good
Page 47
MULTI-PARTY and MULTI-CLAIM LITIGATION
JOINDER OF PARTIES:
Multiple parties may join their actions together. Check to see whether either "permissive joinder" or "compulsory joinder" is
applicable. Also, remember that each of these two types of joinder can apply to either multiple plaintiffs or multiple
defendants. FRCP 19 and 20.
1.) RULE 20 - Permissive Joinder of Parties
a. Parties may be joined if: - TWO REQUIREMENTS
i. arises from the same trans. or occ. AND
1. TEST:  logical relation & common fact questions
ii. common question of law or fact ((a) & (b))
1. TEST:  i.e. how to apportion damages
b. Each Π MUST BE VOLUNTARY
i. Π can be made "involuntary" under R. 19 joinder if "necessary"
c. Joinder of Mult. Δ is at Π option
i. each joined Δ MUST HAVE MINIMUM CONTACTS
1. be subject to personal jurisdiction
ii. ALL joined parties must meet SM jurisdiction requirements & Venue requirements
1. There is no supplemental jurisdiction for Rule 20 joinder of multiple Ds; it’s not clear
whether there is for multiple Ps. So in a case with no federal question, it’s clear that there
has to be at least one P who’s diverse with all Ds, and courts are split about whether it’s
fatal that some P is a citizen of the same state as some D.
d. CHECK FOR:
i. each Δ properly served
ii. each Δ has min. contacts with forum
iii. no Δ is citizen of the same state as any Π
iv. each Δ satisfies the AOC (unclear whether parties can "piggyback" if one meets the requirements)
Jennifer Good
Jen Good
Page 48
MULTI-PARTY and MULTI-CLAIM LITIGATION
JOINDER OF PARTIES:
JOINDER OF PERSONS NEEDED FOR ADJUDICATION - NECESSARY AND INDISPENSABLE PARTIES - RULE 19
Two categories: There are two categories of parties who must be joined where possible:
1) "NECESSARY" PARTIES:
(1) The "less vital" group consists of parties:
1) who must be joined if this can be done; but
2) in whose absence because of jurisdictional problems the action will nonetheless be permitted to go
forward..Rule 19(a).
2) "INDISPENSABLE" PARTIES:
(1) The second, "more vital" group consists of parties who are so vital that if their joinder is impossible for
jurisdictional reasons, the whole action must be dropped. Rule 19(b).
3) NECESSARY" DEFINED:
(1) party is "necessary" – and must be joined if jurisdictionally possible – if the party is not "indispensable"
(defined below) and either of the two following tests is met:
1) Incomplete relief: In the person’s absence, complete relief cannot be accorded among those
already parties;
2) Impaired interest: The absentee has an interest relating to the action, and trying the case without
the absentee will either impair the absentee’s interest or leave one of the people already parties
subject to multiple or inconsistent obligations.
(i) Bank of California
1) Court allowed suit to continue b/c Π here may obtain a judgment which only will bind
appearing Δ, so other Δ is only necessary, and court may proceed at own discretion
4) "INDISPENSABLE" DEFINED:
(1) If a party meets the test for "necessary" given in paragraph (2) above, but the party’s joinder is
impossible because of jurisdictional problems, the court has to decide whether the party is
"indispensable."
(2) Consequence of indispensability:
1) If the party is "indispensable," then the action must be dismissed in that party’s absence.
(2) Factors:
1)
2)
3)
4)
the extent of prejudice to the absentee, or to those already parties;
the possibility of framing the judgment so as to mitigate such prejudice;
the adequacy of a remedy that can be granted in the party’s absence; and
whether the plaintiff will have an adequate remedy if the action is dismissed. R. 19(b).
(i) Haas v. Jefferson Bank
(ii) P sues D, a bank holding some stock. P alleges that although the stock is registered solely in the name of
X, P and X in fact co-own the stock. P and D are citizens of different states, but X is a citizen of the
same state as P. X thus cannot be joined as a co-defendant, because his presence would destroy diversity.
The issue is whether X is "necessary" or "indispensable."
1) because his absence will expose D to the risk of double obligation –his presence is so
important that the suit must be dismissed rather than proceed in X’s absence.
5) JURISDICTION:
(1) NECESSARY:
1) Where a non-party is one who must be "joined if feasible, the doctrine of supplemental jurisdiction does
not apply to overcome any jurisdictional problems. So if the person who is sought to be joined as a
defendant is not diverse with all plaintiffs, or if the claim against that would-be defendant does not meet
the amount-in-controversy requirement in a diversity case, the joinder may not take place.
*************************NOTE: ANALYZE UNDER ALL THREE SCENARIOS*******************
1. What if party is not necc? 2. What if party is necc. but not indispensable, and 3. What is party is indispensable
If
you are not sure- lean towards the view that party is probably necessary, but not indispensible
Jennifer Good
Jen Good
Page 49
MULTI-PARTY and MULTI-CLAIM LITIGATION
CLASS ACTIONS: FRCP 23
1) Check whether a class action is available as a device to handle the claims of many similarly-situated plaintiffs, or claims
against many similarly-situated defendants..
(1) Procedure where single person or small group of co-parties may represent a larger group sharing a common
interest
(2) Look for the possibility of a class action wherever there are 25 or more similarly-situated plaintiffs or similarly-situated defendants.
2) JUDGMENT EFFECT
(1) ALL b1 and b2 class members are bound unless they can show they were not ad. reps or their interests
not common to the class, B3 - bound unless they opt out
(2) Also binds those whose interests adequately represented by a rep.
1)
2)
3)
4)
Martin- rejecting rule of mandatory intervention in lieu of joinder under r. 19
Hansberry - not bound if not adequately represented Gonzales - 2 part test - 1) did TC correctly determine ad. rep? 2) does it appear after that ad. rep?
Shutts - Rule 23 satisfies due process and absent class members bound even if no pers. jurisdiction
3) PREREQUISITES FOR CLASS ACTION - RULE 23
Must meet all 4 prereq's of 23(a) AND fit into one of the three categories of 23(b) (B1, B2, B3)
(1) Size (Numerousity)
1) must be so large that joinder of all members is impractical
2) the more geographically diverse - the fewer needed to satisfy size
3) *note*  if there is less that 15, this element may not be satsified
(2) Common Questions
1) must be a question of law of fact common to a class (seldom an issue)
(3) Typicality
1) reps must be "typical" of the claims of the group (rarely a problem)
(4) Fair Representations
1) reps. must fairly and adequately protect the interests of the class
(i) look out for conflict of interests with absent class members
(ii) competent counsel for suit
(iii) LOOK to see how much the named reps have in common with the class
6) 3 CATEGORIES OF CLASS ACTIONS - MUST FIT INTO ONE OF THESE & 4 PREREQ'S
(1) B(1) - Similar to joinder - "Risk of Inconsistent Adjudications or impairments of interests"
1) TEST
(i) If actions by or against class members would create a risk of
1) inconsistent decisions forcing an opponent of the class to observe incompatible standards of conduct (B(1)a)
2) impairment of the interests of the members of the class who are not actually parties to the individual actions
(B(1)b)
2) NO OPTING OUT
(i) Any absent party is BOUND by a B1 action
3) Does not require ind. notice
4) Mass Tort Claims
(i) increasingly used in B1 actions b/c Δ may be insolvent before later claimants can collect
(2) B(2) - Party Opposing has acted on grounds generally applicable to the Class
1) Declaratory or Injunctive Relief generally (Civil Rights/Discrim)
(i) No Opt Out
(ii) Usually for injunctive relief - (but not necc. limited to, but if $ usually B3)
1) Holland - Jail - declaratory relief access to legal counsel for inmates
2) Wentzel - emp. discrim. - court upheld b2 action for damages - court does not want to
discourage title vii suits
Jennifer Good
Jen Good
Page 50
MULTI-PARTY and MULTI-CLAIM LITIGATION
CLASS ACTIONS: FRCP 23 CONT............................................................................................................
(3) B(3) - CLASS ACTION SUPERIOR TO OTHER AVAIL. METHODS AND FOR FAIR &
1) COURT MUST MAKE TWO FINDINGS:
(i) Common Questions -
EFFICIENT ADJUDICATION
1) q of law or fact common to the class predominate over q affecting only ind. class members
(ii) Superior Method
1) 4 Factors to superiority listed in 23(b)3
1. the interest of class members in individually controlling their separate actions;
2. the presence of suits that have already been commenced involving class members;
3. desirability of concentrating the litigation of the claims in a particular forum;
4. any difficulties likely to be encountered in the management of a class action.
2) TYPES OF CASES
(i) Securities Fraud, Antitrust
(ii) Mass Tort
1) HOWEVER - court's not so keen on Mass tort b3 b/c ind. elements typically predominate
2) Amchem - reps. not common interest or ad. reps, court refused to accept settlement
3) Causey - no class certification for mass accident when conflict of laws and only 17 american
citizens - althought app. if all class members agree, limited to liability, and conflicts of law
issues are minimal
3) Opt-out Provision
(i) each class member must be given chance to opt out - (not bound by the judgment, good or bad)
4) REQUIRES INDIVIDUAL NOTICE
(i) "best possible notice to all class members"
7) NOTICE
(1) Required in B3 actions, but courts may find in cases that notice is req. in b2 or b1 actions
1) Eisen - must be given to all class members whose names and addressed can be obtained with reasonable
effort - even when there are millions of class members and only a small amt. at stake
(2) Publication okay for class members not able to be obtained with reasonable effort
(3) Content of Notice
1) must tell them of option to "Opt Out" in b3 actions
2) inform that judgment will bind if not opt out
(4) COST - both identifying and notifying is born by the Π, if not, case is dismissed (Oppenheimer)
8) FEDERAL JURISDICTION
(1) Diversity
1) Only the named Π are considered for citizenship requirements for diversity & venue
(2) Amount in Controversy ***WATCH FOR THIS ON EXAM**** (only in diversity)
1) Each member of the class must satisfy the applicable AOC requirement (but, remember, what AOC
requirements are & that must appear to a legal certainty that AOC will not be recovered
(i) HOWEVER - some say Zahn was overrule by 1367 supp. j. and only 1 must meet
2) Snyder - cannot aggregate Π claims 3) Zahn - before 1367 - each Π must satisfy jurisdictional amount
4) Leonhardt - each Π must meet the jurisdictional AOC requirements - 1367 did not overrule Zahn
9) CERTIFICATION & SUBCLASS OPTIONS
(1) By certifying, the court agrees that the class action requirements have been met, and allows the suit to go forward
as a class action. If the court refuses to certify the action:
1) Continued by representative: The suit may still be continued by the "rep" but NO res judicata effect for
or against the absent would-be class members. Rep usually will not proceed on non-class-action basis.
2) Sub-class: Alternatively, the suit may be continued by a sub-class of the original class. If so, res judicata
extends to the members of the sub-class, but not to the other members of the original class.
10) SETTLEMENTS
(1) Must be approved by the court & if approved - must give notice if class is certified
(2) Amchem - court did not accept settlement b/c absent class member NOT AD. REP or common
Jennifer Good
Jen Good
Page 51
FORMER ADJUDICATION:
Dist. btw. situations where judgment in the prior suit binds an entire cause of action in the present suit (res jud) and the situation where a
finding of fact is binding on the current suit, even though the entire judgment is not binding (the "collateral estoppel" situation).
RES JUDICATA – CLAIM PRECLUSION
1. After final judgment on the merits, P is barred from bringing same cause of action in later suit where the issue was raised or
could have been raised and involves that same parties or those in privity
a. Merger  If Π wins – cause of action merges and cannot be brought again to recover again
b. Bar  If Π loses – Π is "barred" from bringing cause of action again to try to recover
2. THREE ELEMENTS
a. Judgment must be final, valid and on the merits
b. Parties in Subsequent suit must be identical to those in first action, or privities
c. Claim in 2nd suit MUST involve matters adjudged in the first suit
i. Π cannot "split claims" ag. the same Δ if they come from the same t or o or wrongful act
1.  If the same evidence will support both, that there is one cause of action
2. But, if first court would not have had SM of the "split claim", not barred by res jud.
3. Installment K and notes are each their own cause of action Jones
3. STATE LAW FOLLOWED IN DIVERSITY CASES:
In diversity cases, the federal courts follow state law with respect to the application of the rules of claim
preclusion (as well as collateral estoppel).
b. If (and only if) the law of the state where the district court sits would have granted claim preclusion or
collateral estoppel effect to an earlier state ct. judgment, the feds will do the same.
a.
4. ADJUDICATION ON MERITS:
a. Π will be barred only if the original adjudication in favor of the Δ was "on the merits."
i. Non-prejudicial grounds: In other words, some of the ways that a plaintiff may "lose" the first suit are
deemed to be "without prejudice" to future suits.
ii.  if the first suit is brought in federal court, plaintiff will not be barred from bringing a new action if the
first action is dismissed because of: (1) lack of jurisdiction; (2) improper venue; or (3) failure to join an
indispensable party. See FRCP 41(b).
iii. Any other type of dismissal (e.g., dismissal for failure to state a claim under 12(b)(6)) does bar a future
claim by P, unless the court granting the dismissal specifies otherwise in its order. FRCP 41(b), last
sentence. (NOTE: Π Must appeal in these cases)
5. COUNTERCLAIMS:
a. A defendant who pleads a counterclaim is, in effect, a plaintiff with respect to that claim. He is
bound by the outcome, just as a plaintiff is bound by the outcome of his original claim.
i. No splitting: Thus D may not split his counterclaim into two parts.
1.
b.
Example: P sues D for damages from an auto accident. D counterclaims for his property damage from
that same accident, but not for personal injuries. Whether D wins or loses with the counter-claim, D
may not bring a 2nd suit against P for personal injury arising from that same accident.)
COMPULSORY COUNTERCLAIM:
i. Observe that state and federal rules making certain counterclaims "compulsory" serve a similar
function to the merger or bar doctrine.
ii. Example: P sues D for damages arising out of an auto accident. Although merger and bar do not force D to
assert either his claim for property damage, or for personal injury, arising out of that same accident. But in the
federal court and in most state courts, any counterclaim by D for either of these things would be "compulsory,"
so that D would not be able to use that claim in a subsequent suit against P.)
6.
Change of law: Once a final judgment is rendered (and appeals resolved), not even a change in the applicable law
will prevent claim preclusion from operating. The fact that the losing party would, because of such an overruling of legal
precedent, win the lawsuit if she were allowed to start it again, is irrelevant. Moitie v. Brown
7. Modern Trends:
a.
You only get one shot, and because there are so many new procedural rules, i.e. pleading in the alternative, if
you try to come back on another theory – court has discretion to find res jud. Smith
8. Heaney - The Δ was not barred by suing school district for wrongful term. b/c issue in first case was not fully litigated
9. Bogard Π not barred b/c he was in class action for first suit and did not have ad. notice that could add claim for
damages. That issue was not litigated and Π was not required to bring all claims then.
Jennifer Good
Jen Good
Page 52
FORMER ADJUDICATION:
COLLATERAL ESTOPPEL – ISSUE PRECLUSION
1. Prohibits the re-litigation of issues of fact that were previously adjudicated
a. narrower than res jud (claim preclusion)
b. btw same parties
2. REQUIREMENTS
a. the issue must be the same as one that was fully and fairly litigated in the first action;
b. it must have been actually decided by the first court; and
c. the first court’s decision on this issue must have been necessary to the outcome in the first suit
i. think – adverse party must have been on notice
ii. Issue must be essential to the first judgment to be barred
3. FIVE STEPS & Questions
a. show that cause 1 ended in final and valid judgment on the merits
b. show that same issue was actually litigated and determined in the 1st case
c. show that issue was necessarily decided and essential to the judgment in 1st case
d. Due process compels that Coll. Estoppel can only be asserted ag. someone who was a party or
privity in the first case (had a chance to defend themselves, opp to be heard)
e. WHO is ASSERTING?
i. Traditional Rule of Mutuality – can only assert if both parties were bound
ii. MODERN RULE: Non-mutual CE - Bernhardt
1. Defensive
a. Δ using it is case 2 was not a party in case 1 – is allowed as long as the Π was
a party in case one and had chance to litigate
2. Offensive
a. Parklane – Allowed in Fed courts  Π asserting it who was not in case 1 may
only assert ag. a Δ in case 2 if it is fair and Δ will not be prejudiced and Δ had
a full and fair opp. to litigate
i. show Δ had chance to litigate in case 1
ii. Did Δ have incentive to litigate the issue?
iii. Δ could have foreseen multiple suits
iv. Π COULD NOT HAVE JOINED in case 1 easily
v. No inconsistent judgments
b. Note that some courts do not allow this
4. "ACTUALLY LITIGATED" –
a. both parties were aware and on notice that issue was litigated and given a chance to defend
5. NECESSARILY DECIDED
a. issue was necc. to the adjudication
1. Russel – if it is not clear from the record if issue was decided, no CE
2. Rios – It is the judgment, not the verdict or findings of fact
3. Patterson – If no new evidence or assertions of right, CE if 1st ct. had jurisdiction
6. DISTINGUISHED FROM MERGER AND BAR:
a. There are two major differences between collateral estoppel and claim preclusion
i. Issue vs. claim: Whereas claim preclusion applies only where the "cause of action" or
"claim" in the second action is the same as the one in the first action, collateral estoppel
applies as long as any issue is the same, even though the causes of action are different.
ii. Suit not prevented: Whereas claim preclusion prevents the second suit altogether, collateral
estoppel does not prevent suit, but merely compels the court to make the same finding of
fact that the first court made on the identical issue.