I.
II.
INTRODUCTION
PERSONAL JURISDICTION
A. General Principles
1. Definition: Personal jurisdiction concerns the circumstances under which a court has
authority to make decisions binding on particular parties
2. If  refuses to pay judgment she can’t be held in contempt—it’s up to person securing
judgment to seek enforcement, in which case she usually attaches property owned by  in the
state
a) Real estate is attached by posting notice on property and making a notation in
property records
b) After attachment and notice to the owner, property is auctioned off and proceeds are
given to judgment holder, if there are nay proceeds in excess of amount of judgment
plus expenses, amount is returned to judgment debtor
3. Every state must enforce the judgments of every other state—Full Faith and Credit Clause,
Art. IV, statute = § 1738
Example: a state that makes gambling contracts illegal and unenforceable must
nonetheless enforce a judgment entered by a sister state enforcing a gambling contract
B. Constitutional Limits on Personal Jurisdiction
1. Pennoyer v. Neff (1877)
CONCISE RULE: Personal jurisdiction over a person may be established at the outset of
an action by attachment of property owned by him within the state seeking to establish
jurisdiction—states have jurisdiction over people and property within their state
FACTS:  owned land in Or, but lived in CA—Mitchell sued  in OR over unpaid fees and
notice was made in newspaper (few readers),  did not respond so default judgment was
entered
--’s land was sold and proceeds went to Mitchell who then gave title of land to .
-- later wanted property back and said that OR did not have jurisdiction over him in the first
place
--SC says jurisdiction can be gained at the outset of an action through attaching property, but
here the procedure was not followed and ’s right to property is void
--Only way court could get in personam jurisdiction would be to grab him in-state or to serve an
agent of process, BUT a sheriff could not serve him in CA b/c the sheriff would have no
authority there
a) This type of quasi-in-rem jurisdiction only permits limited liability up to the value
of the property
b) Absent attachment of property within the state, still personal service must occur
within the state
c) In personam jurisdiction = "against the person” = court exercises jurisdiction over
the person of the  and so it can enter judgment to pay or perform some act and can
enforce it by selling any of ’s property or if  defies and order, by jailing
d) In rem jurisdiction = court’s jurisdiction is over the property attached—2 types:
(1) In-rem-proceeding concerns ownership of the attached property, (e.g.,
condemnation or foreclosure proceedings)
(a) True in rem—decide ownership as to whole world, (e.g. admiralty
cases and government condemnation)
(b) Quasi-in-rem Type 1—adjudicate ownership as between 2 litigants,
(e.g. fail to pay mortgage, bank will own property)
(2) Quasi-in-rem Type 2—lawsuit has nothing to do with the property attached,
property is just basis upon which court relies for jurisdiction
Example: In Pennoyer, if Mitchell had done this at the outset the default
judgment would have been valid
1
If a state enters a judgment without jurisdiction, it violates due process of 14th
Amend. and the judgment is not entitle to full faith and credit
2. Hess v. Pawloski (1927)
CONCISE RULE: In advance of a nonresident’s use of its highways, a state may require
the nonresident to appoint one of the state’s officials as his agent on whom process may be
served in proceedings growing out of such highway use
FACTS:  sues  a nonresident for damages due to a car accident in Mass., no personal service
was made on him and no property was attached
--Mass. Had statute that said nonresident drivers were deemed to have appointed registrar of
motor vehicles as their agent of service of process and also that notice of that service must be
sent with a copy of the process to  by registered mail
--SC holds this statute does not violate due process, state has right to protect its citizens from
highway safety issues
--Here, just through his conduct he has consented
C. Modern Era
1. General Concepts—after Hess, SC struggles to understand Pennoyer, it’s straightforward,
but difficult to apply to corporations, an intangible—where does a corporation exist? So for
corporations SC began to move away from Pennoyer-based terms of “consent” and “presence”
and more on if corporation was doing business within the state
—expand on Pennoyer but don’t overrule—confusing b/c under Shoe test a different
result would happen in Pennoyer
a) Formalism gives way to realism—it’s unrealistic to ask where a corporation exists
2. International Shoe Co. v. Washington (1945)
CONCISE RULE: For a state to subject a nonresident defendant to in personam
jurisdiction, due process requires that he have a certain minimum contacts with it such
that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice
FACTS:  was a Delaware corporation having principal place of business in Missouri,
employed 11-13 salespersons under supervision of managers in Missouri-—the salespeople
resided in Wash. and did most of business there,  did not have any offices in Wash.
--Wash. sues  for failing to pay employee compensation funds
--SC says now due process only requires that  is subject to in personam when he’s not in the
territory, so that he has sufficient minimum contacts and that maintenance of a suit there does
not offend traditional notions of fair play and substantial justice
--Even single or occasional acts may by nature of their quality, nature and circumstances be
enough to render them under jurisdiction
--SC finds that ’s contacts were neither irregular or casual, but systematic and continuous, and
the cause of action here has to do with those contacts, and it would not be unreasonable to make
them try the case there, so Wash. does have personal jurisdiction
--they profited off the state’s laws
--salespeople in the state were controlled by the company
--salespeople had engaged in a lot of in-state activity
a) International Shoe test applies also to non-corporations—Kulko v. Superior Court
b) Hypos pp. 48-49—one contact is enough, just because its convenient is not enough
3. McGee v. Int’l. Life Ins. Co. (1957)
--CA citizen who had purchased insurance policy in AZ which later was taken over by TX
company
--When e died in CA, family sued in CA court, even though no evidence that insurance co. had
done any business or solicited besides this particular policy
--SC holds there was jurisdiction—CA has a “manifest interest” in providing redress for
its citizens, witnesses would be in CA and it would be unfair to make family try court
elsewhere
4. Hanson v. Denckla (1958)
e)
2
--A trust was created by a PA citizen, executed in DE and a DE trustee, and woman later moved
to FL, and died and a dispute arose over the trust
--SC said FL had no jurisdiction b/c she was not living there when it was executed, there
must be some act by which  purposely avails himself of conducting activities within
forum state invoking protection of its laws
5. Gray v. American Radiator (1961) NOT A SC CASE!!!
-- sues co. for negligently made safety valve in IL, the valve co. was located in Ohio, then
sold the valve to a PA company who incorporated it into heater, and the heater in “the course of
commerce” was bought by 
--SC of IL upheld jurisdiction holding that if a corporation elects to sell products for
ultimate use in another state, they should be held answerable there for any damages
caused by its defects, and now transportation makes it easier to defend lawsuits in other
states
6. World Wide Volkswagon Corp. v. Woodson (1980)
CONCISE RULE: The sale of a car by corporate  isn’t a sufficient “purposeful
availment” of the benefits and protections of state law where car is fortuitously driven to
constitute the minimum contacts needed for personal jurisdiction in that state
FACTS: Robinson sued WWV dealer in federal court in OK along with dealer Seaway. They
had purchased car in NY from Seaway, left NY for new home in AZ but on way crashed in OK/
--Robinsons said injuries resulted were aggravated by Audi’s negligent placement of a gas tank
--Neither dealers were located in NY, had no offices in OK nor conducted business within the
state.
--District court denied WWV’s motion for lack of jurisdiction, WWV petitions for a writ saying
no jurisdiction and SC of OK denies motion
--SC holds that there is no jurisdiction in OK
--Due Process clause limits power of state to render judgment against a nonresident -and for such judgment to be rendered,  must have “minimum contacts” with forum
state—there is a liberty interest for  not to be subject to jurisdiction there
--No sales were closed nor services provided
--Mere “unilateral activity” of a car traveling from NY to OK is not enough to satisfy
foreseeability argument—foreseeability alone is not sufficient for jurisdictional
purposes
--’s conduct with the state must be such that he should reasonably “anticipate being
haled into court there”
--Neither  purposely availed itself of the laws of OK
--SC says that if  delivers products into stream of commerce with expectation that its
product will be purchased by consumers within the forum state or specifically is
shipped there (See Keeton), he should expect to be called there—BUT here, SC found
that this was not the case here
--SC rejects argument that economic benefits from cars being able to go to OK satisfy
jurisdiction, b/c it’s a collateral relation
7. Kulko v. Superior Court (1978)
--SC held that father sending kids to mom in CA did not constitute a purposeful availment of
benefits and protections of CA laws, and mom could not get jurisdiction in CA for child support
claim
--Could deter non-custodial parents like the mom, here, from accepting custody knowing they’d
have to go to court in other’s state to get child support paid
Personal Jurisdiction in Federal Court:
--Absent special congressional legislation, federal court has personal jurisdiction only if the
state in which it sits would have had personal jurisdiction—Rule 4(k)(1)(A)
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--1993 Amendment: Rule 4(k)(2) provides personal jurisdiction in cases where (1) claim based
on federal law (2) jurisdiction is constitutional, and (3) no state would have personal jurisdiction
--Congress has authorized nationwide service of process where they can be tried anywhere for
antitrust, securities, bankruptcy, etc.
Keeton v. Hustler (1984)
-- a citizen of NY, sued Hustler for libel in magazine tat was distributed to NH and
nationwide.  had little connection with NH, but sued there for good statute of limitation laws.
 sought damages for injury suffered in NH and nationwide by the defamatory statements
--SC upheld jurisdiction in NH for injuries from copies in NH and nationwide injury which
resulted, sating it doesn’t matter that  had no contacts with the state
--SC said there was jurisdiction b/c the cause of action rose out of Hustler’s contacts with the
state
9. Calder v. Jones (1984)
--SC upheld jurisdiction in CA against editor and writer, both citizens of FL, of an article that
defamed a CA citizen.
-- never traveled to CA but magazine was distributed in CA and damage done to reputation
was there, and ’s could “reasonably anticipate being haled into court there”
8.
Why Litigants Care Where Litigation Occurs
 Avoid inconvenient forum
 Biases for and against with different judges and juries
 Strategic maneuver for what law will be applied
--not always clear what law applies
--some states apply the law of place of incident
--it’s unconstitutional for a state to apply the law of a state that has no connection to the
transaction or the parties, even if they have personal jurisdiction—but the limits are not very
stringent
10. Burger King Corp. v. Rudzewicz (1985)
CONCISE RULE: Where there is a substantial and continuing relationship with a forum state,
and circumstances indicate that there was fair notice that a nonresident might be subject to suit
in the forum state, assertion of personal jurisdiction, if fair, does not offend due process
FACTS:  entered into franchise agreement with , a corporation whose headquarters and
incorporation were in FL. Day to day management was through regional offices, but contracts
were governed by FL office and governed by FL law. Restaurant was in MI
-- purchased equipment t for restaurant in FL and business partner attended classes at FL
school.
-- didn’t make payments and refused to leave MI store
--FL’s long-arm statute reached jurisdiction over non-residents for breach of contract formed in
FL
-- appeared specially claiming FL lacked jurisdiction b/c claim did not arise there
--SC says there is jurisdiction b/c minimum contacts were made and  purposefully availed
himself of the benefits and privileges of conducting activities in the state.
-- was entering into a highly structured 20 yr. relationship w/  including many contacts w/
FL
--’s connection with FL surely cannot be seen as “random, fortuitous, or attenuated”
--No mechanical rule can be applied in all these cases, it must be case-by-case basis
--Foreseeability alone is not a sufficient benchmarkmust have purposeful availment
--Once minimum contacts have been made, these contacts must be considered with other factors
to make sure jurisdiction would “comport with fair play and substantial justice”
4
--Reasonableness may make out case for jurisdiction when there is a lesser showing of
minimum contacts like in Keeton, Calder, and McGee
--SC seems to here talk about contacts and reasonableness as together and not separate
issues—i.e. if its really reasonable you don’t need so much contact—the 2 issues are
interrelated in this analysis
--at the margins they are interrelated, and if there are minimum contacts, the burden
falls on  to prove that it would be unreasonable and a burden for him
--choice of law clause was useful but it is not enough to get jurisdiction and to purposely avail
b/c very often it’s just on contract and cold be some random state’s law, etc.
--NOTE: Often there is also a choice of forum clause—but that state CAN choose not to
try that case, it doesn’t offend due process
--choice of forum clauses can be mean to the little guy b/c if LL Bean customer wants
to sue it might say that he needs to go up and sue in Maine, and states are usually
unwilling to enforce it, SC is worried about “modest personal purchases” like this and
so demands that each case be looked at individually
11. Asahi Metal Industry Co. v. Superior Court o CA (1987)
CONCISE RULE: Mere awareness on the part of a manufacturer that its product may
enter a forum state in the stream of commerce is not sufficient to constitute minimum
contacts that would confer jurisdiction within that state.
FACTS: Zurcher was injured in motorcycle accident and sues among others the Taiwanese tire
manufacturer Cheng Shin who in turn indemnified Asahi, a Japanese valve maker. Cheng Shin
settled with Zurcher, and then Asahi moved to dismiss for lack of jurisdiction
--Evidence showed that while many tires within CA had Asahi valves and Asahi was aware of
it, Asahi did not attempt to market its products in CA.
--SC holds NO JURISDICTION
--action of  must be more purposefully directed at the forum state than just placing it in stream
of commerce
--There is no evidence that the design of the valve, the marketing, advertising was not directed
to CAO’Connor’s opinion advocates this approach
--SC says in weighing reasonableness must take into account:
 Burden on 
 Interests of forum state
 ’s interest in getting relief
 efficiency of justice
 federal government’s interest in foreign relations—interesting b/c Japan would definitely
assert jurisdiction over us
--CA’s legitimate interests have diminished b/c  is not a resident
--Dispute b/w Cheng Shin and Asahi is really about indemnification rather than safety
--Minimum contacts are not established and jurisdiction is not consistent with fair play and
substantial justice
--SC treats here, contacts and reasonableness requirements as two separate prongs—this is
different from Int’l Shoe b/c there the two issues were related together
--There is no clear consensus here—O’Connor’s discussion of reasonableness got 8 votes, but
contacts was split with not 5 votes for any one opinion
--BRENNAN disagrees with contacts discussion and feels that purposeful targeting is not
necessary in stream of commerce situations b/c retail sale of product in final sale in that state
provides and economic benefit—this is different from WWV b/c there a consumer drove the car
there, there was not the same degree of predictability—distribution is more predictable than
what a consumer will do after having purchased it
--STEVENS—disagrees with contacts also and says that purposeful availment shouldn’t even
be considered here b/c it is so unreasonable, but if test was applied it should be determined by
volume
5
--Lower courts don’t really know how to deal with this, and just use different approaches
 Helpful Hint: If the contacts are such that they support O’Connor’s analysis (namely,
advertising, design, marketing directed at that forum; then there clearly would be
jurisdiction b/c the other views of contacts would require a lesser showing—(Glannon)
D. General Jurisdiction
1. Helicopteros Nacionales de Colombia, SA v. Hall (1984)
CONCISE RULE: Purchases of equipment and personnel training may be insufficient to
confer personal jurisdiction in cases where the cause of action is unrelated to the contacts
with the forum state
FACTS: Helicopteros was a Colombian corporation that had no offices or property in TX, but
had purchased 80% of its helicopters in TX and some of its pilots had been trained there
--During course of project with a Peruvian company, a helicopter crashed killing Hall’s
decedent
--Hall sues in TX for wrongful death
--SC finds no jurisdiction—When ’s contacts with forum state are unrelated to cause of action,
the contacts must be “systematic and continuous” so that bringing them into that state would
not offend Due Process.
--b/c nothing was mentioned in the briefs about it, SC assumes that the cause of action is
unrelated to the contacts even though it appears that it was
General Jurisdiction is when the claim does not arise from ’s activity in the forum
--Paradigm case was Perkins that established that ’s can be sued anywhere on any
claim at their place of incorporation—the same is true of an individual’s domicile
--However, Rosenburg case established that mere purchases, even if occurring at
regular intervals are not enough to warrant personal jurisdiction on a claim unrelated to
contacts
SC has never really clearly stated what to look for in establishing general jurisdiction
Many courts view specific and general jurisdiction as a continuum:--if cause of action is
related, you need few contacts, if it’s unrelated you need a lot of contacts
E. Consent
 Person can consent to jurisdiction long in advance of litigation by appointing an agent for service of
process within the state
 Parties to a contract may agree to litigate only in a designated forum
 By submitting to the jurisdiction of the court for limited purpose of challenging jurisdiction, 
agrees to abide by court’s decision on jurisdiction issue
F. In rem and quasi-in-rem jurisdiction
 SC held in Harris v. Balk that a debt can be considered property and can be attached, so that the
debt is located wherever the debtor was
1. Shaffer v. Heitner (1977)
CONCISE RULE: Jurisdiction cannot be founded on property within a state unless there
are sufficient contacts within the meaning of the test developed in Int’l Shoe—minimum
contacts and fair play and substantial justice
FACTS:  brought derivative suit against  Greyhound directors for antitrust losses it had
sustained in OR—suit was brought in DE, Greyhound’s state of incorporation
--Jurisdiction was based on sequestration of Greyhound stock, which was deemed to be located
in state of incorporation
--SC rejects jurisdictional framework of line of cases like Pennoyer v. Neff, and Harris v. Balk
where jurisdiction is based on mere presence of property within the state, based on fundamental
concepts of fair play and justice under Due Process and Equal Protection clauses
--Here the stock is not the subject of the controversy, ’s don’t reside in DE nor have any
contacts there
--Real property is still treated as an exception
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--The state had no real interest in adjudicating, SC finds no jurisdiction
--Note: Here it wasn’t the company being sued, but directors of the company
--SC is saying that you can only get in rem if you could have gotten in personam b/c it must met
the same tests, BUT THIS IS A LITTLE AMBIGUOUS
--SC does say that where there’s property, it’s likely there will be jurisdiction if cause of action
n arises out of the property
--SC says that the affiliation is not with the physical entity in DE, it’s not the headquarters,
unlike BK
G. Transient Presence
--Though in rem has been changed so that mere presence of property does not confer
jurisdiction, in personam “tag jurisdiction” still holds
1. Burnham v. Superior Ct. of CA (1990)
CONCISE RULE: Service of process on a non-resident who is voluntarily inside state
border is sufficient to confer personal jurisdiction, even if presence was brief and
unrelated to litigation—tag jurisdiction is still valid for general jurisdiction purposes and
no minimum contacts test is required
  need not have had any contact with the state at the time giving rise to the suit, she just
has to be tagged there
FACTS:  filed for divorce in NJ, wife filed in CA, while he was visiting kids in CA she
served him
--SC (Scalia) argues that Shaffer must be read narrowly and that a physically present  is not
treated the same as an absent one
--Also some argue Scalia said that Shaffer should be read as only applying to intangible
property that has no reasonable nexus with the forum
--Brennan argues in concurring opinion that by merely going into another state the person has
availed themselves of the protection of that state’s laws, and to say that he can’t be sued there
would be giving him benefit of being a  there at same time as giving him immunity from
being a  there
--Not clear what would happen if a plane is flying over a state—you’d have to ask (1) is 
actually in the state? And (2) is he intentionally going there?
--Note: for entering a divorce only  need be domiciled in state, in personam is not needed, it is
needed however for money judgment or alimony support
 SC found in subsequent case that in-state service on a corporate agent does not subject the
corporation to general jurisdiction
 However, if it’s a specially appointed agent within that state, courts have held they can be
served for general jurisdictional purposes
Possible Justifications for Personal Jurisdiction—Arguments:
 Guarantee of immunity from distant litigation
 Less a device for protection of individual liberty and more a device for regulating inter-state
federalism
 Limits ’s choice of fora as an indirect way of limiting ’s ability to choose the law
H. Statutory Limits on Personal Jurisdiction
 States can choose to exercise less than the full authority granted by the Constitution on limits of
personal jurisdiction within their state
 Where states choose to impose a restriction beyond those of the Constitution, courts only have
jurisdiction if:
1. The case falls within the limits imposed by the state statute, AND
2. Jurisdiction is constitutional
--So if the statute is not met, no constitutional analysis is needed—if a state as elected not to assert
jurisdiction over the case at hand, the fact that it constitutionally could have done so is irrelevant
7

“Acts or omissions clauses”—courts in different states have interpreted this language differently—
in Gray the court found that jurisdiction is proper where the  is injured
--However, NY in a similar circumstance reached a different conclusion: the act or omission
had to be done within the state, i.e. if manufacturing of defective product took place out-of-state
there was no jurisdiction—although a statute later amended this to fit the injury in-state analysis
******Insert circle graph from Glannon’s
SUMMARY: States may assert jurisdiction over ’s, if there’s first a long-arm statute that covers
the claim, and ’s who have established a significant relationship to the forum state, such as
domicile, in-state presence, continuous and substantial business within the state, consent to suit in
the state, or minimum contacts with the state that give rise to the claim
Purposeful contacts
SC finds JURISDCITON
McGee
Keeton
Calder
Burger King
--------Contacts

Purposeful
--------------

Not purposeful contacts
SC finds NO JURISDICTION
Hanson
Kulko
WWV
Shaffer
1. Long-arm Statute—if yes, go on, if no, go home


2. Is it constitutional?
------------------------

In personam
In rem
-----------Reasonableness

No real clear test—lots of factors—BK, Asahi
---presence
specific
general ---domicile/incorporation

---systematic and continuous contacts
minimum contacts
and does not offend
traditional notions of
fair play and substantial
justice
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III.
NOTICE AND OPPORTUNITY TO BE HEARD
A. Constitutional Requirements
1. Mullane v. Central Hanover Bank (1950)
CONCISE RULE: Due Process is served when  makes efforts that are “reasonable
calculated” to inform desired parties of the action and where they reside outside of the
state and addresses are available they should be sent notice, but if such address is not
available notice by publication shall be sufficient
FACTS: Mullane represented hundreds of beneficiaries of trusts held by the bank, notice was
made by publication in state newspapers. Mullane on behalf of the parties claimed violation of
Due Process clauses of 5th and 14th Amendments
a) Although publication is seen as supplementary, SC found that it’s necessary to take
a pragmatic approach to notice, do what “reasonable man counting pennies would do”
and it was impossible to know names and addresses of everyone so it was okay to just
publish—but where there were names and addresses, required to send notice with copy
of complaint
b) This is an effort to create balance b/w the interests of  and --in personal
jurisdiction the only interests really considered are those of  as a liberty interest in
substantive due process
c) Although the beneficiaries probably would not show up b/c they have this
appointed lawyer, they often have a dignity interest in knowing
d) Benefits of notice? One argument is that there will be more accurate results through
adversarial process
B. Statutory Requirements: Service of process must comply with both the constitutional minimum
and any additional statutory or rule requirements
1. Rule 4—only permits service by mail through request for waiver, otherwise must be given
in person within 120 days after complaint is filed
a) If send by waiver:
(1)  has 30 days to respond to the waiver
(2) As an incentive to accept to a waiver
(a) Rule 4(d)(2) informs the  of a duty
(b) Rule 4(d)(2) informs  that costs of service will be imposed on
her if she fails to show good cause for why she has not waived
(c) Rule 4(d)(3) grants  60 days, (instead to normal 20 days) to
respond to the complaint
b) Following service person effecting it must file proof with the court, although failure
to do so doesn’t matter, you can amend it later to show proof Rule 4(l)
c) Rule 4(e)(1)As an alternative to federal rule, one can use any means of service
provided by:
(1) either the law of the forum state; OR
(2) the state in which  is actually served
2. Nat’l Dev. Co. v. Triad (Kashoggi case) (1991)
CONCISE RULE: When a party has several residences that he maintains permanently
and he travels a lot, service is valid when made at his dwelling house where he is then
living
a) SC says it is not enough to just say that he ended up getting the notice anyway,
because nonetheless rules must be followed and here they werepromotes incentive to
follow the rules
b) Rule 4(e)(2) allows service to be made by leaving copy of summons and complaint
with a competent person at ’s dwelling place or usual place of abode
C. Immunity, Evasion, and Sewer Service
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Immunity from service sometimes granted to litigants, witnesses, or lawyers who come to
state to litigate one claim and can’t be served for another. Also if induced to enter state by fraud
or deceit.
2. Evaders can be caught by creative process servers who pretend to be milkmen, etc.
3. Also some service processors say they do serve and actually have not (Sewer Service), so
some states have tried to make it easier to leave it at the person’s home with someone else
4. NOTE: If a person sees the server, has been informed by the server of the nature of the
papers and refuses to accept them; the server may leave the papers in close proximity to him
and it will be acceptable as a form of service of process
1.
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IV.
SUBJECT MATTER JURISDICTION
 Subject matter jurisdiction (SMJ) is independent of personal jurisdiction
A. State Courts and General Subject Matter Jurisdiction
1. In the aggregate (there are specific courts for some claims) state courts have general
jurisdiction
EXCEPT: narrow exception of areas where Congress has vested federal district courts with
exclusive SMJ—admiralty cases, bankruptcy matters, patent and copyright, antitrust
B. Federal Courts and Limited Subject Matter Jurisdiction
1. Constitutional Grants and the Role of Congress—Art. III, §§ 1-2
a) Note: Art. III doesn’t require Congress to grant jurisdiction to the full constitutional
limit—they impose amount in controversy requirement even though Constitution
doesn’t say to
2. ’s Burden to Establish Federal SMJ
a) No such thing as consent
b) Lack of SMJ motion is never waived Rule 12(h)(3), who initially raised it, can
try to dismiss for lack of it
c) A presumption against SMJ so  must properly plead
3. Diversity of Citizenship and Alienage Jurisdiction
 Alienage jurisdiction given for aliens to have forum free of local influence, and also
to show foreigner that US considers these matters to be utmost importance
 Diversity given b/c wanted to encourage businesses to have fair forum and citizens
too
 Critics argue this is outdated, that bias doesn’t exist but it seems to still and it’s
good b/c one can draw juries from a wider geographic area in federal court
a) Complete diversity rule, Strawbridge v. Curtis (1806)
(1) Each  must be diverse from each 
(2) So NY v MD = diverse, but NY v. MD + NY = not diverse
(3) This is based on citizenship and not residence
b) Determining citizenship, Mas v. Perry (1974)
(1) We look at diversity at time of suit, so one can move where they live, just
before filing, just for diversity purposes
(2) Citizenship for an individual = domiciliary of state AND citizen of US
(a) domiciliary = presence + intent to make it home
(i)
A person can only have one domicile at a time
(ii)
Domicile is given with birth and stays until person
affirmatively changes it
(iii)
Evidence of intent: ask person, where registered to
vote, driver’s license, buying a new home, where you center
your lifea conclusion drawn from a collection of information
(b) US citizen, domiciled abroad: Cannot invoke diversity because
she is neither a citizen of a foreign country, nor is she domiciled in US;
so the only way she can be sued in federal court is through FQ;
otherwise the case must be filed in state court
(c) If one party is found to be non-diverse and has a separate claim, the
court under Rule 21, may dismiss that party and allow the other party’s
claim to continue
(d) NOTE: DC and territories are considered as “states” even
though other cases have found that they do not qualify as states
(e) Foreigners on both sides must sue in state court only
11
(f) 1990 Amendment to §1332 permits an alien in US who is
domiciled in a state is a citizen for diversity purposesmost courts say
this can only be used to defeat diversity and not to create it
(g) If LA hits FR in Paris, FR can sue LA in state or federal court in
LA
(3) Citizenship of a Corporation =
 Principal place of business AND incorporation
(a) Total activity test:
(i)
Nerve center is PPB when activities are far-flung
(ii)
Sole operation in one state and offices in another, place
of activity is more significant “muscle center”
(iii)
Activity is passive and “brain” is in another state, the
“brain” is more important
(4) Partnerships: considered a citizen of every state in which one or more
partners is a citizen which means an organization like the Teamsters can’t sue
in federal court in any state under diversity claims
c) Representative suits and assignments of claims: § 1359 says you can’t just assign
your claim to someone improperly in order to create diversity
d) Domestic relations exception: Federal courts refuse to hear domestic relations
claims like divorce, alimony and child custody even though there might be diversity—
they will still hear, however, claim b/w family members
e) Amount in controversy requirement: Fed. Courts should not be small claims
courts and also a form of docket controlamount must be in excess of $75,000
(1) NOTE: Federal jurisdiction is not lost b/c the judgment awarded is less
than the jurisdictional amount, as long as the original claim for amount in
controversy is in good faith
(a) Courts rarely investigate, unless raised by  that it’s “clear to a
legal certainty that the claim is less than jurisdictional amount,” but
then it’s a low burden for  to prove
(i)
Most common way this burden is not met is when one
seeks recovery for damages not allowed by law, e.g. punitives
are not recoverable for breach of contract
(2) Some courts under § 1332(b) may order the  who recovers less than the
jurisdictional amount in controversy to pay costs to  of filing, copying costs,
etc.
(3) AGGREGATION RULES:
(a) One  v. one :  may aggregate all other claims in order to meet
jurisdictional requirementthey need not be transactionally related
(b) Multiple parties on either side: No aggregation is allowedthis
would be where two or more ’s have claims of 50 and 45 against one
, or one  against two ’s or two ’s against two ’sthis is true
even if the claims are transactionally related
NOTE: Aggregation involves the adding together of two or more
claimsso if  had one claim for $80, 000 against two joint
tortfeasors, it would be okay
(c) Common undivided, or joint claims: even if there are multiple
parties, courts allow aggregation of claims if they are “common,
undivided or joint”usually involving title to property (note, personal
injuries from the same accident CANNOT be aggregated)
NOTE: If  cannot possibly win on both of 2 claims (if they
contradicts each other/alternate claims) and each is below the
amount in controversy requirement,  cannot aggregate
12

Glannon says useful to ask: If each  was suing each  alone,
would he satisfy the amount in controversy?
(4) Injunction problems: Some courts try to put dollar amount on it by asking
if ’s acts harm the  by more than 75
(a) Minority approach: Some courts look at whether complying with
the injunction would cost  more than 75
4. Federal Question Jurisdiction:
 § 1331 is the general Fed Q rule, but there are others for things like anti-trust and
infringement of patent cases where federal courts have exclusive jurisdiction
 Historical justifications for it were that federal judges would be more sympathetic to
federal claims, but statute was curiously not written until 1875
 Note that under 1331, these claims can be filed in state or federal court
a) Narrow interpretations of jurisdictional grant: “arising under” raises
problems of federal law as a claim and not a defense; and centrality to claim
(1) Well-pleaded complaint rule: Mottley casea federal issue must be part
of the complaint and not a defense that will be asserted; the right to recover
must come from a federal law
EXAMPLE: Someone feels defamed by what someone in Congress says—
they bring claim saying the statements were false, they defamed him and they
are not protected by speech and debatethis is not a well-pleaded complaint
NOTE: If it’s well-pleaded, it doesn’t matter if  ends up losing—still the
possible remedy came from a federal law, whether impliedly or explicitly in the
statute
 In Mottley they lost b/c of well-pleaded but then it went to SC again b/c the
second time it got to SC through § 1257 which gives SC power to hear state
cases where constitutional/federal issues are “drawn into question” thus §
1331 is not a constitutional limitation on federal judicial power (T219),
because SC could later hear the same case, having started in state court
 NOTE: One can put an anticipated defense in a complaint, IT JUST
CANNOT BE THE BASIS FOR SMJ IN FEDERAL COURT!!!
(2) Well-pleaded complaint problems: Declaratory judgments
(a) Declaratory judgment may only be entertained in federal court if
the coercive action that would have been necessary could have been
brought in federal court
5. REMOVAL: § 1441, § 1446, § 1447
a)  may remove a case that was originally filed in state court to federal court as long
as it could have originally been filed in federal court
(1)  need not ask court’s permission, she just can remove, usually for bias
concerns, and it must be in the district or division embracing the place where
such action is pending, § 1441(a)
(a) Must file notice of removal in district court, signed under Rule 11,
w/in 30 days of receiving pleadings, and give copies to the parties and
to the state court
(b) If  makes an amended pleading,  has 30 more days after that to
ask for removal, BUT if it is based on diversity under 1332,  has only
1 year after the commencement of the action(1446(b))
EXAMPLE: If in WWV the Robinsons joined NY  in order to
stay in state court and have not dropped him within a year, and
then do later, then  can not get it removed after NY guy is out
even though there is now diversity(this promotes
gamesmanship)
(2) If removal is improper, federal court just remands the case to state court
13
NOTE:  may only remove the case to federal district court for the district
embracing the place where such action is pending
(3) ’s can only remove on basis of claims against them and NOT
counterclaims, even if those counterclaims invoke federal jurisdiction
(4) ALL ’s must agree to remove
(a) Subsequently added ’s cannot remove a case, if the original 
failed to do so(such a rule would not be efficient)
(b) The only way a subsequently added  may remove, is if he has a
separate federal question claim against him, but this is very rare (T241)
NOTE: All federal question cases can be removed, BUT diversity cases can’t
be removed if one of ’s is a citizen of the state in which the action is brought
§ 1441(b)the theory being that this  will not need the freedom of bias found
in federal court b/c she is already in her home state
 To make a case unremovable one may:
 Join someone so as to destroy diversity
 OR join someone who’s a citizen of the state so they cannot remove
under § 1441(b)
 Plead cleverly exactly $75,000most courts say this is okay to keep
it in state court, unless  can prove to legal certainty that she could
get more
(5) If  citizen of CA sues 1 citizen of OK and 2 citizen of WY in WY state
court, ’s can’t remove to federal court. BUT if  voluntarily dismisses 2
from the case most courts would allow 1 to remove the case
(a) BUT, if court dismisses 2 (the non-diverse party) the case cannot
be removed b/c the court’s dismissal may later be reversed on appeal
(6) Courts are usually unwilling to allow  to join a  just to destroy diversity
so to defeat removal if they have no bona fide claim against them, and it is
deemed “fraudulent”
b) Motion to remand the case if it seems removal was improper must be made 30 days
after the filing of notice of removal BUT if the reason is b/c of lack of SMJ it can be
raised at any time
(1) So, if  later tries to join a non-diverse party, the court may either
deny joinder; or permit the joinder and remand the case to state court b/c
now there is no diversity jurisdiction
14
V.
VENUE
 When these elements are all proper, the court has the authority to hear the case, (except forum
non conveniens below):
 SMJ
 Personal jurisdiction
 Venue
 NOTE: Parties are free to waive PJ and venue, but not SMJ!!!!
A. Local and Transitory Actions
1. Local actionsinvolve land: in rem and quasi-in-rem, foreclosure, trespass
a) Most state venue statutes say venue must be laid where land is located
b) Federal statute does not have explicit local rule, but courts have implied this limit
B. State Venue Provisions
1. Most states have a general rule for all civil actions about where venue is proper and then
special rules for certain types of cases
C. Venue in Federal Court § 1391
1. Personal Jurisdiction element:
a) Federal courts only have jurisdiction over an out-of-state  if the state in which it
sits would have personal jurisdictionso, personal jurisdiction doctrine limits places 
can be sued
b) There are 91 districts, (plus PR, Guam, and VI) and except for one exception
(Yellowstone) no federal district crosses state lines
c) There are some special venue provisions, but generally it’s governed by §1391
(1) Venue is proper:
(a) In a district where any  resides, if all  reside in same state; OR
(b) Where a substantial part of things giving rise to claim occurred; OR
(c) Where any  is subject to PJ at time action commences if there’s
no other district where the case can be brought (if based solely on
diversity); otherwise (b)(3) says wherever they may be found
(2) Treats claims based solely on diversity differently:
(a) Parts 3 of each are different in that b(3) refers to where they can be
“found” perhaps implying that b(3) will not cover PJ not based on
presence, but on contacts
(b) Another anomaly: Part a(3) says “time action commenced”, but is
subject to in personam jurisdiction they are served after the action has
commenced
(3) Venue is proper for corporations as ’s, § 1391(c):
(a) Where corporation resides, which is anywhere that it is subject to
personal jurisdiction at “time action commenced”
(b) If a state has more than one district the corp. is subject to the
district that would have PJ over it if it were a separate state, and if there
is no such district, then it will reside in the district with the most
significant contacts
(c) Also, where substantial part of things giving rise to claim occurred
(d) Also, fall back provision from above
NOTE: If corporation is acting as a , then 1391 (a) or (b) will
apply
(4) Courts have generally interpreted “resides” to be the same as domicile
(a) BUT a counter-argument that “resides” means resides and that
there is no such thing as being a citizen of a district anyway—an
uncertainty in the statute
15
(5) Venue is proper in every district for aliens, § 1391(d)
(a) BUT if the alien falls under the “permanent residence” clause, this
will not apply, and she will be treated as a resident of the state
d) NOTE: Removed cases have their own venue provision under § 1441(a) thus
the above provisions are irrelevant to removed cases
e) NOTE: “Hybrid” cases that could be either FQ or diversity cases, are deemed
for venue purposes to be FQ’s b/c of the word “solely”
f) Venue focuses not on whether  has made a deliberative contact, but where a
substantial part of events occurred and a forwarded letter qualifies depending on the
weight of the content of said letter
(1) Language specifically drafted so that more than one place would qualify as
substantial part of events—need not be the best
D. Change of Venue
1. Transfer of Civil Cases in State Courts
a) Most courts allow transfer if  cannot get a fair trial somewhere
b) NOTE: Transfer is only within the statecan’t transfer to a different state
(1) It can dismiss under forum non conveniens however
2. Transfer of Civil Cases in Federal Courts: §1404 and § 1406
a) Unlike state courts, federal are not restricted by state lines b/c it’s all in one system
b) § 1404:
(1) In the interest of CONVENIENCE to parties and witnesses; and in the
interest of justice
c) § 1406:
(1) Either PJ or venue or both are WRONG; and in the interest of justice it
should be transferred
d) Where?
(1) § 1404(a) and 1406(a) say where it “could have been brought”  cannot
consent, it must be where PJ and venue would have been proper
e) Improper venue
(1) § 1406(a) permits transfer of cases filed in wrong venueit does not matter
if there’s no PJ either, b/c justice and efficiency will be better served if court
has the ability to transfer it to a better place
f) Forum selection clausesare not dispositive, they can still transfer elsewhere
g) Choice of law:
(1) SC has said that the court applies the law that the first court would have
applied and that § 1404 transfer is just a change of courtroomtake
CHOICE OF LAW RULES WITH YOU
(a) BUT 1406 transfers do not take law with them, b/c it was an
improper venue and it wouldn’t make sense to
(2) NOTE: In Buffalo Creek, Stern could have filed in NY, had venue changed
to W.Va. and NY’s better law would just have followed him there
(3) Doesn’t matter if  is the one seeking the transfer—the original law comes
with (Farens case)
h) Although 1406 says the case can be dismissed it almost never happens b/c it’s
usually more in the interest of justice to transfer the case elsewhere
E. Forum Non Conveniens
1. Pipertransfer is impossible to a foreign state, where litigation would make more sense
2. A completely court-made phenomenon where a case is dismissed even though court has
jurisdiction to hear it, but the case is inconvenient to adjudicateused only where alternative
forum in foreign
a) SC gives district judge broad discretion on ruling on forum non conveniens and
these ruling cannot be reversed on appeal absent abuse of discretion
16
A related dismissal is abstention when federal court can just refuse to hear highly sensitive
cases
4. Foreigners are drawn to US b/c our laws are better in areas like tort, trial by jury, etc.
NOTE: A federal court has the authority to transfer/dismiss a case even if it does not have
personal jurisdiction over the 
3.

17
VI.
RAISING JURISDICTIONAL AND OTHER RELATED CHALLENGES
A. Traditional and Modern Approaches to Challenging PJ
1. Special appearance: traditional approach where  wishes to challenge PJ in a forum w/out
subjecting himself to jurisdiction there
a) Can only raise PJ issue, if  does more then may be subject to general appearance
which subjects her to personal jurisdiction
b) A “limited appearance” addresses the issue w/ in-rem cases where some states let 
appear, but not be subject to liability beyond the value of the property
2. Rule 12 abolishes distinction b/w general and special appearance
a)  may raise several defenses simultaneously w/ an objection to PJ
b) Rule 12(b) allows defenses to be raised in “responsive motion” or by “pleading”
(1) Motions are requests that the court do something
(2) Pleadings are documents setting forth factual and legal contentions by the
parties
 Why would a party choose to raise an issue by motion/answer?
  might raise her issue by motion if she feels she has a strong defense,
and why bother to await and raise it in an answer if she can get the case
dismissed at the earliest time
  might raise the issue in her answer however, if she needs further
factual development in order o show a viable defense
c) 12(b)(2-5) are waived if not in first response, be it motion or pleading
 Lack of PJ
 Improper venue
 Insufficiency of process (no complaint attached, etc.)
 Insufficiency of service of process
d) 12(b)(1) and 12(b)(6) and (7) are not waived if not in first response
(1) BUT:
(a) 12(b)(6) Failure to state a claim; AND
(b) 12(b)(7) Failure to join a Rule 19 party
(c) CAN BE RAISED NO LATER THAN AT TRIAL ON THE
MERITS, so any time before judgment is entered, otherwise they
are waived and cannot be raised on appeal
(i)
This reflects the fact that these defenses may not come
to light until much later in the trial
e) BUT: 12(b)(1) Lack of SMJ is never waived, however and may be raised for
the first time on appeal
f) Even if a defense is raised in a timely manner, if she does not reassert it in the
pre-trial conference it is considered waived b/c the pretrial conference order of the
court basically supersedes the pleadings
3. Jones case: Is a motion for immunity considered a “motion” under Rule 12? Are other
defenses hence waived?
a) The court found that  could then file another motion for failure to state a claim,
without answering
b) Perdue think judge interpreted it wrong, FRCP say that if you omit it in first
response, you can only raise h(2) in an answer or after an answer
(1) Rule 12 wants one pre-trial motion, and failure to join all possible defenses
in that motion waives some defenses, but not those in (h)2 or (h)3. If  fails to
include in that pre-trial motion those defenses listed in h(2) they can only be
asserted in an answer or after answer is filedsuccessive pre-trial motions
do not seem to be allowed here in order to avoid filing an answer where one
must admit or deny allegations in ’s complaint
18
B. Collateral and Direct Attacks on PJ

Direct attack = going to state and making an appearance to challenge PJ
Risks of direct attack:
a)  will have to find an attorney in distant forum to do his attack on PJ
b) Most jurisdictions only allow appeal of PJ only after a final judgment so  would
have to litigate the whole case far away if he loses after making initial attack on PJ
c) This option is good if you have a good case on the merits, b/c if you lose on PJ you
could still win in the subsequent trial over there
 Collateral attack = do no go to forum, let them enter a default judgment and then when
they come to you to collect on that judgment, you argue in your home state that that
judgment is not entitled to full faith and credit b/c there was no PJ in that first
judgment
 This option is good if you have a good case for lack of PJ
2. Risks of collateral attack;
a)  can enforce the judgment anywhere  has property
b) If judgment is enforced in ’s own home state, he can only raise his objection to PJ
and not any of the merits of ’s claim
3. NOTE: Issue in Baldwin was that after having gotten a default judgment, he wanted to
raise PJ collateral attack when they tried to enforce, but he was denied b/c he had made a
special appearance in the previous trial, and had lost and got a default judgment. SC refuses o
relitigate the PJ argument b/c he had the option of not appearing at all the first time
a) In short, he should have appealed in the first case
C. Challenging Federal SMJ
1. Can be raised at any time in trial, it’s not waivable
a) This can result in a waste of resources and also may inspire some to conceal lack of
SMJ
2. Lack of SMJ cannot be raised in collateral attacks, b/c once a judgment has been entered
one cannot raise it in another suit—one can however raise it on appeal
3. It’s not clear what happens with SMJ arguments in default judgments where  does not
appear at all
4. Courts have the power to define their own jurisdiction: “bootstrap principle” (T290)
 REVIEW P. 53 IN GLANNON!
1.
19
VII.
WHAT LAW APPLIES IN FEDERAL COURT (ERIE DOCTRINE)
A. Erie Doctrine
1. Overrules Swift—in Swift v. Tyson the SC reasoned that the Rules of Decision Act should
be construed to mean that state law applies when it’s a statutory law or a “local” law and that
federal court-made “general” law was applied in all other areas
a) This distinction was elusive—wasn’t state common law important too?
b) It created disparity and inconsistency rather than its goal of uniformity of the law,
and it inspired forum shopping
c) It also was unfair to in-staters, denying equal protection of the law
2. Except in matters governed by Constitution or by congressional acts, state law must be
applied
3. There is no federal general common law and to do so would be acting extraconstitutionallyBrandeis says that the SC was acting unconstitutionally and going where
even Congress couldn’t go—theories of federalism and separation of powers, federal
government must respect state courts as lawmaking bodies
a) There are many arguments surrounding the Erie decision—where in Constitution
does it say that federal common law is not allowed? Wasn’t the whole point of diversity
cases to get rid of bias?
4. REED’S CONCURRENCE:
a) He agrees with the decision but feels that the Swift course of looking at things
cannot be said to be unconstitutional if we’ve done it for so long;
b) Reed also says federal courts have power over procedural laws and he draws the
first real potential distinction b/w substance and procedure
5. NOTE: Federal “common law” that is made up by federal courts can be applied in
cases involving border disputes, admiralty cases where there is no state law to applyrare
cases of implicit delegation and also where there is explicit preemption by statute
 In these cases federal law would apply in state and federal courts
 The procedural rules used in state courts for these narrow areas are those
federal procedural rules that are “part and parcel of the remedy afforded”
and “essential to effectuate the purposes behind the federal law”
B. Rules Enabling Act (1938):
1. Congress delegated to SC authority to create federal procedural rulesso post-1983 and
Erie, federal courts applied federal procedural rules and state common law rules
2. Erie’s concern over federal power seems out of step with federal expansion during New
Deal, but it may have been more a reaction toward oppressiveness of big corporationsit was
hard to win as the little guy
C. In diversity cases federal courts must apply the choice of law rules of the state in which it sits
1. So a federal court in NY must apply whatever state’s law a state court in NY would apply
D. Guaranty Trust Co. v YORK: (1945)
1. Outcome determinative test—the outcome should be the same in federal as in state court
2. SC finds that difference in statute of limitations has great effect on outcome ands thus state
law should be applied
3. An interest in the litigants and making it more fair
PROBLEMS: Almost anything is outcome determinative, perhaps the better question would
be, is this a big deal difference?
4. York approach applied in trilogy of cases:
a) Ragan (1949)
(1) State law prevails on statute of limitations in regard to when an action
commences
b) Woods (1949)
20
(1) State “door-closing” statute that told corporations they must first properly
E.
F.
G.
H.
register in the state before being able to sue in state courts, prevailed and the
company had to register and sue in state court
c) Cohen (1949)
(1) State bond requirement that aimed to discourage strike suits prevailed in
federal court
d) These cases led to a fear that the FRCP were in trouble of being wiped out by state
laws, but were soon assuaged by Byrd and later cases that sought to protect the validity
of FRCP
BYRD v. Blue Ridge Rural Electrical Coop., Inc. (1958)
1. First we look at if outcome determinative and then we must balance state’s interest and
countervailing federal interest
2. More of an interest of balancing power b/w state and federal interest
3. “Bound up with state’s rights and obligations”usually any rules intended to change
behavior outside of the courtroom are said to be bound up, e.g. strict liability over negligence,
filing correctly, rules concerning who has burden of proofall would be strong state interests
4. Federal interests are usually an administrative interest
5. Here the SC found a strong federal interest in the 7th amendment right to trial by jury to
outweigh state interest (Note: 7th Amendment does not apply to states, although most states
have similar provisions
6. It’s not clear if there are strong state interests if we stop there or go on to consider the
federal interest, but Byrd uses the word “must respect” which might imply that we stop there
Hanna v. Plumer (1965)
1. Case involves service of process-in state it must be hand delivered to the person whereas in
FRCP it can be left at residence w/ competent person
2. NOTE: If FRCP on point it is applied unless it might “abridge, enlarge or modify” any
substantive right—this will never really happen b/c federal courts were the ones who made up
the FRCP anyway
3. If no FRCP on point Hanna takes us back to a more York-like analysismore of a
modified outcome determinative test which focuses on the twin aims of Erie:
a) Discouragement of forum shopping; AND
b) Avoidance of inequitable administration of laws
c) Perdue calls this the “Big Deal Test”b/c conceivably anything can be deemed
“outcome determinative”
4. Notice, again this is very litigant oriented
5. Hanna doesn’t really overrule Byrd, and everything said about twin aims is really dicta here
b/c SC found that there was an FRCP on point
Chambers (1991):
1. Under state law there could be no sanctions in this case, but court applies its own made-up
federal rules b/c they have an inherent power to do so
2. Federal court has an interest in being able to police situations going on in their courts
3. SC does Hanna-type test and says it wouldn’t affect forum shopping or inequitable
administration of lawsdoesn’t even mention Byrd although an easy case under Byrd and a
tough one under Hanna
Gasperini (1996)
1. Two issues;
a) What standard of review: Federal shocks the conscience or NY’s “deviates
materially”
(1) Here, SC construes Rules narrowly and finds no FRCP on point
(2) They go on to do Hanna and find that it would affect the twin aims of Erie
(3) They say state law should thus apply here
b) What’s standard in reviewing cases, NY’s de novo or federal standard?
(1) Here, SC says federal standard should apply
21
(2) SC seems to use Byrd analysis here, but not Hannano discussion of
effect on choice of forum, etc.
(a) It’s possible that they assume that there’s no effect and just go on
to countervailing interests, BUT then why not address countervailing
interests in the first part?
I. Chemerinsky Approach: can use it on exam but only as a way to figure out SC rulings b/c they
hold
1. Is there a valid FRCP on point? If so the FRCP is applied in diversity cases; if NOT then
2. Will application of federal law affect the outcome? If no, then federal law is applied, if yes
3. Then, is there a countervailing federal interest in applying federal law and how does that
balance with state interest?

J. A test with a Chemerinsky spin although a true test is very ambiguous, SC hasn’t really said:
Is there a valid FRCP on point? (depends on how broadly FRCP is construed, should be narrowly)
 If it seems on point, ask what it’s meant to cover, what does it say, and what is its purpose?
-----------YES
Is the FRCP valid?
Constitutional?= “rationally procedural?”
W/in scope of REA?=
 “amend or abridge substantive rights?
= normally NO and it
applies b/c it’s delegated by RDA
and by supremacy clause

---------NO
Outcome determinative test (Hanna)
Twin aims of Erie? If yes, then
--forum shopping; inequitable
administration of the laws?
-------Now do Byrd test
= balance state and federal interest
NOTE: Perdue says use whatever approach you want to use, be explicit about what you are
doing, say the two tests and acknowledge the ambiguities

If you’re a lawyer and you want state law to apply, you’d not want to find a strong federal interest;
you'’ want to argue that it does affect outcome if federal rule is applied and that the only things
federal rules should be applied in administrative issue and 7th amendment
 On the other hand; if you want federal law to apply, you’d argue that there are countervailing
federal interests
 NOTE: Some issues we know are clearly situations where state law applies:
 Burden of proof, damages, strict liability v. negligence, (while others are harder to figure
out like NJ exercise in class)
K. Determining the Content of State Law,
1. If state law has been determined to be applied, federal courts should do what they believe
the state supreme court would do
a) They must look at all available data to determine this
b) Federal courts may be more conservative—don’t want to do something that goes far
ahead of what the supreme court in that state has done
c) Certification is a way to figure it out in some states—letter sent to the supreme
court of that state w/ questions that ask the law is on that issue
2. If a ruling has been incorrectly decided, Rule 60 allows it to be reopened, subject to a 1
year time limit for change in relevant law, but mere legal error is not a basis to reopen
3. In DeWeerth, the court didn’t allow the  to reopen it b/c she picked the forum and
“assumed the risk” that the federal court might not get it rightthere is an efficiency and
fairness concern—how to draw the line on when a decision is final and stable
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VIII.
PLEADINGS AND JUDGMENTS BASED ON PLEADINGS
A. Historical Overview
1. Code pleading:
a) Still exists in some states like CA and NY—it’s basis was pleading the facts
(1) Some courts began to get confused and created stringent rules for
determining what were facts and what were not and pleading became an end in
itself, requiring much more detail than the Rules do today
b) The FRCP got rid of the complicated word “facts, ” and now requires in the
pleadings: A short and plain statement of her claim, showing that she is entitled to
relief
(1) Because of our broad discovery, the pleadings are meant to put the other
party on notice of the suit
c) Most states have adopted similar rules in their own courts
B. The Complaint
1. Rule 3: A civil action begins with the filing of the complaint and not with the service of
process
2. Elements of the complaint, Rule 8(a)
a) Short and plain statement of the grounds upon which the court’s jurisdiction
depends,
b) Short and plain statement of the claim showing that the pleader is entitled to
relief,
c) Demand for judgment for the relief the pleader seeks—forms 3, 12, 16, 18
(1) The “prayer”—doesn’t limit the recovery nor the type recovered (not so in
default)
(2) Dollar figure need not be put down, can just say “in the amount shown at
trial” even if you have already said that the amount in controversy exceeds 75
3. Form of PleadingsRule 10
a) 10(a)caption, docket number, title of the case, etc.
b) 10(b)Claims or defenses in numbered paragraphs
c) 10(c)can reference other parts of document
4. Legal Sufficiency
a) If on the face of the complaint the allegations could not support judgment for ,
case can be dismissed at outset
(1) Ask: If she proves everything in her complaint, does the law provide a
remedy for her? If no, motion to dismiss will be granted
b) In code states, a  test the legal sufficiency of complaint by a “demurrer”which
is equivalent to a Rule 12(b)(6) motion in FRCP
(1) Court usually dismisses the case here, with leave to amend
(2)  does not lose this right if she fails to put it in initial responseshe could
become aware of it later during the proceedings and raise it then
(3)  also need not attack the entire complaint in the motion
c) Technically the court may not look to evidence when ruling on 12(b)(6) motions
but if she does she just converts it into a summary judgment motion
d) A Rule 12(c) motion does the same as 12(b)(6), but it is raised after pleadings
are closed—it’s just based on the pleadings
5. Rule 38 says you must request a jury trial
6. Remember:  has 120 days after filing the complaint to serve process
7. Factual (or Formal) Sufficiency: Specificity Debate
a) Code Pleading:
(1) Must plead “ultimate facts” and it’s not clear what that means
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(2) If the pleading is done in too little or too specific detail it’s a no-win
situation for the partythus, code pleading is not as liberal as FRCP, although
it has relaxed some somewhat
b) FRCP Pleading:
(1) Need not plead “facts”the word isn’t in there
(2) Courts generally feel that the object of pleadings should be to secure a
determination on the merits rather than penalize litigants for procedural rules
(3) BUT the whole point to pleadings is to put  on notice so one must allege
all elements necessary for their claim, but it can be implicitlyneed not use the
words “breach of duty,” etc.
(4) Don’t want to say too much b/c it may get too long and annoy the court
ALSO if one pleads to much evidence, it may be different in trial
(5) Conley set out liberal rules of pleading
(6) Rule 7 sets out when pleadings are closed—complaint, answer, reply to
counterclaim, reply to cross-claim, third-party complaint, and third party
answer and then no more pleading is allowedexcept when court orders
otherwise
8. Heightened Specificity Requirements Rule 9(b)
a) Courts have required heightened specificity in cases involving:
(1) 9(b) fraud, mistake:
(a) Seems this is b/c fraud is so damaging to reputation but it’s not
really clear why
(b) Might likely be b/c these claims are brought all the timeBUT in
Leatherman the court said you can’t just make heightened requirements
b/c you don’t like the cause of action
(2) 9(c)Condition Precedent:
(3) 9(g) Special Damages:
b) Conditions of the mind like malice and intent can be averred “generally” b/c it’s
hard for  to state these things w/ particularity
c) Courts have not been uniformly clear on what “particularity” means
9. Pleading Inconsistent Facts and Alternative Theories, Rule 8(e)(2)
a)  may pursue both alternative theories to her case and her pleading as to one is not
to be treated as a judicial admission on the other point
b) This applies to both  and  (e.g. for ; if in breach of contract he argues no
contract, but also a counter-claim against  for breach of the contractthis is okay)
(1) This allows a better opportunity to find out efficiently what happened
(2) It could be done in 2 different trials, but there is danger that juries could
find for other theory or person, and you’re stuckinconsistent verdicts
c) BUT all allegations must abide by RULE 11 and have evidentiary support
(1) EXAMPLE: guy says I didn’t shoot him, but if I did it was self-defense—
this is permitted, and at some point he might just go with one theory
10. Voluntary Dismissal, Rule 41(a)
a)  may withdraw her complaint without court’s order before  answers or makes a
motion for SJ; or with consent of all parties and it is w/out prejudice; otherwise it must
be ordered by court
b)  may do this once, and the second time it’s dismissed with prejudice if she
dismisses by filing
(1) BUT: If she dismisses the second time by stipulation of the parties, it is
dismissed without prejudice
c) These limits imposed on  are to help protect ’s from being subjected to serial
suits, and if  is allowed unfettered right to dismiss unilaterally over and over again it
becomes a huge waste of money and time
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11. Involuntary Dismissal, Rule 41(b)
a) This may be ordered sua sponte or by  if rules are not followed, etc. and acts as a
decision on the merits if not for jurisdiction, venue or joinder reasonsb/c  had her
chance
b) Rule 83 allows district courts to make up own rules Order to Show Cause (OSC) if
 doesn’t take an action within a certain amount of time, her case is involuntarily
dismissed
C. Defendant’s options in response
1. Motions, w/in 20 days from complaint
a) Rule 12 motions to dismiss and Rule 56summary judgment
b) Also more definite statement motions 12(e) and (f)fixing unintelligibility is the
aim and not just because of the lack of detail
2. The Answer, Rule 8(b-d)
a) Responses to ’s Allegations
(1) Admissions might admit citizenship, parties entered into a contract, etc.
(2) Denials
(a) General denialdenies everything and should be used with
caution
(b) Specific denialsalmost always used
(i)
Usually respond to each paragraph in turn, but need not
match up exactlycan do a modified general denial saying
that she admits paragraph 1 and denies all other allegations
(c) Beware the “negative pregnant”being too specific in denying
may lead one to infer that there is an admission that it was done at some
other time—e.g.  denies she drove negligently that particular day
(d) So it’s important to be explicit in what you admit and deny
(3) Denials for lack of knowledge, 8(b)has the effect of denial but must be
in good faith under requirements of Rule 11  would write: that she is
“without knowledge or information sufficient to form a belief as to the truth”
NOTE:  cannot make a 12(b)(6) motion regarding ’s answer b/c  has
not made a claim for relief may however, make a motion to strike
under Rule 12(f)
b) Affirmative defenses, Rule 8(c)
(1) Usually if the  failed to raise affirmative defense, then she has waived it
(a) She can however amend
(b) She can also raise it in summary judgment motion
(2) Some states require a “reply” to ’s affirmative defenses, and under Rule
7(a) it is not required but can be ordered in federal courts
(a) BUT a pleading in response to ’s counterclaim is required.
(3)  may raise affirmative defenses in a 12(b)(6) motion although she usually
raises these defenses in an answer
3. Claims by counter-claims and cross-claims
4. Default and default judgment, Rule 55
a) A two-step process: 1) Entry (by affidavit or otherwise and clerk must enter it;
AND then 2) Judgment—which is by the clerk if for sum certain stated in the
complaint like statutory damage or liquidated damages; otherwise, judgment by the
court
(1) If the party has appeared, they are given 3 days notice before default is
entered, then the court decides the amount of the judgment and it’s not
necessarily the amount in the complaint
(a) If the party has not appeared at all he is not given any notice of the
hearing on the application for default judgment
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(2) If  then shows up:
(a) He first must set aside the entry of default under Rule 55(c) made
to the court and not the clerk, and must show good cause, usually
consisting of “excusable neglect”
(b) And if default judgment has already been entered  moves to set
aside the judgment under Rule 60(b)—60(b) sets time limits, within a
reasonable time, but no more than 1 year after entry of the judgment
(i)
This motion is made to the court that entered the
judgment and it is not an appeal
b) NOTE: A party can be in default even if they have appeared: e.g. if she makes a
motion to dismiss, it’s denied and then she does not answer
c) In default judgment cases,  cannot recover more than she asked for or a different
kind than demanded in her complaintRule 54(c)
D. Amended Pleadings, Rule 15
1. Rule 15(a)
 Party can amend once any time before a responsive pleading is served; or if it is one where
no responsive pleading is permitted, and action is not on trial calendar yet, within 20 days
after it’s been served
 Otherwise, party can only amend the pleading only by leave of the court or by written
consent of adverse party
 Party must respond to amended pleading w/in time left from original pleading or within
10days after service of amended complaintunless otherwise ordered by court
 Court is usually pretty liberal in allowing amendments b/c we want trials based on merits
and not technicalities
NOTE:  may also amend within 20 days of serving her responsive pleading
2. Variance, Rule 15(b)
a) Variance is when there is presentation of evidence on a point not covered in
pleading
b) 15(b) allows amendment to conform to evidence presented at trial
c) Evidence beyond scope of pleadings need not relate to a different claimit could
just be in support of a different theory for the same claim
3. Amendment and Statute of Limitations under Rule 15(c)
a) Conflicting policy: liberal amendment in pleadings v. policy of “repose” for  to
know an issue is over
b) Relation back to beginning date is allowed for amendments when it says so in
statute or if it arises out of same “conduct, transaction, or occurrence”
c) Keep in mind that it’s possible that the statute has not run out anyway or it does you
no good b/c it would have run out initially anyway
4. Relation back when amendment adds a new party, Rule 15(c)(3)
a) Rare cases when wrong party was served
(1) Claim asserted is the same from the original claim
(2) Within 120 day period required in 4(m) service of process and party added
must have been served with “notice” = RPP knowing that he should be a party
to the case
(3) The party joined won’t be at a disadvantage in his defense b/c he knew
(4) Should have known that but-for the mistake concerning the identity of the
proper party, the action would have been brought against the him
E. Supplemental Pleadings, Rule 15(d)
1. Supp. Pleadings sets forth events occurring after a pleading is filed
2. Only allowed with court’s permissionbut courts freely do so, unless there is undue delay,
prejudice or bad faith
F. Veracity in Pleading
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1.
Rule 11
Much criticism for Rule 11 which used to mandate that courts issued sanctions,
resulting in a torrent of litigation over sanctions, led to new version written in 1993,
kindler gentler version:
(1) 11(b) requires certification for every presenting of motion, pleading or any
other paper that attorney certifies that to the best of his knowledge, info, and
belief formed after inquiry reasonable under the circumstances
(2) 11(b)(1): Cannot harass
(3) 11(b)(2): Based on existing law, nonfrivolous argument
(4) 11(b)(3): Factual allegations have evidentiary support
(5) 11(b)(4): Denials of factual contentions are warranted on evidence or if
specifically identified are reasonably based on lack of information or belief
(6) Most controversial provision in 11 provides a 21-day “safe harbor” for
those purported to have violated the rule, in order to make changes or withdraw
the challenged thing they did wrong
(7) Also, the monetary damages are now very much constrainedthey are now
paid to the court and not the other side
(a) Rule 11(c): Sanctions may be imposed on attorney; law firm; or
party violating the rule
(b) Rule 11(c)(2)(a): may only be imposed against counsel/law firm
for violation in the form of frivolous arguments
(8) EXAMPLE from class: Clinton says to Bennett, I did it but she’ll never
get away with it, or how can you ask me that? Or is it okay if lawyer says, just
tell me snippets? Good lawyering seems to suggest that you should push him on
it but it’s hard to do with President!
BUT if Pres. says I didn’t do it—this is enough evidentiary support, (even if he
might be wrong)lawyers can take their client’s denial at face value for
evidentiary support
(4) Rule 11 says if you continue to advocate what you know is false you are
in violation of the Rule
b) Standards for poor conduct are also found in Rules of Professional Responsibility
2. Other Devices
a) § 1927only applies to attorneys, can be oral, “objective unreasonableness”
b) § 1912frivolous appeals
a)
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IX.
DISCOVERY
A. Introduction
 Unique discovery rules in US—very generous
 we will get to truth better if everyone knows what everyone else knows and gets rid of
gamesmanship aspectscould bring more settlements
 permit preservation of evidence
 narrow issue in dispute
 Helps to equalize resources of parties
 Buffalo Creek was unusually large discovery—usually it’s pretty small scale—median
$13,000
 Quantity and timing of information sought is usually up to the parties unless there is a
problem and there’s judicial intervention
B. Devices
1. Depositions, Rules 30, 31
a) No judge present, just lawyers, witness, and court officer to give the oath
b) Anyone can be deposed; but if a non-party need a subpoena; and if a party, needs
notice
c) Depos can be anywhere; if party objects to the location, can get a protective order
under 26(c)
(1) If non-party depo; it must be within 100 miles of home or office
d) It can be recorded electronically
e) There is a presumptive limit to 10 depos which can be altered by stipulation of both
parties or by court ordera reaction to criticism that depos were over-used
f) Drawback is that it is their recollection at that moment in time
g) Depos can also be written so that lawyer need not be there and a court officer gives
the oathdrawbacks are that can’t make follow up questions and witness will likely
know the questions in advance; BUT it’s less expensive
NOTE: If you want information from a witness who isn’t a party, but you don’t want to
depose them, you may just interview them
If you then need the signed statement, you can have them sign the affidavit,
but it can’t be sued as evidence, it only can be used to impeach a witness
2. Interrogatories, Rule 33
a) Any party may send any other party questions that require a written response under
oath within 30 days (or an objections w/in 30 days)
(1) If the party does not answer at all; can move directly for sanctions
(2) If the party only answers some; first must try to confer with that party; then
make motion to compel; and then if not, move for sanctions
b) Advantage over depos is that parties here are required to provide facts that are
reasonably available to them, even if this requires reviewing files, etc. but need not get
new documents
c) Not a good way to determine credibility, b/c usually are drafted by
lawyershowever they can help to get names of others, etc.
d) Presumptive limit of 25 interrogatories, which can be altered by stipulation like
above
e) If a party says the questions are overly burdensome, the burden falls on them to
support and clarify why
f) If it would be very burdensome to answer all the questions the party may just give
over the files, Rule 33(d), BUT this is only possible where the burden would be
substantially the same for both parties to do
3. Production of Documents, Rule 34
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Requires to produce for inspection, copying or testing all relevant documents or
other tangible things, this includes access to property in a property dispute or the
product in a patent suit, etc.
b) Can only be served on parties by subpoena
4. Medical Examination, Rule 35
a) Court order needed for “good cause” and the mental or physical condition is in
controversy
b) Court may order the party to submit to physical or mental examination by suitably
licensed or certified examiner (may be a therapist or chiropractor, etc.)
c) If a party asks for a report of the exam; she has waived all Dr./Patient privileges
with respect to medical examinations regarding that condition
5. Request for Admission, Rule 36
a) Can only be directed to another party
b) Used to determine what is or what isn’t in dispute
c) Not good for providing detailed information, but helps to narrow issues and clear
up issue raised in the pleadings
d) If it is not denied within 30 days, the statements are deemed to be admitted
e) If a party fails to admit something and then later it is proved true at trial; a sanction
may award the party the costs for having to prove it
C. Scope of Discovery, Rule 26(b)(1)
1. Generally
a) Things discoverable need not be admissible—they just need to be reasonably
calculated to lead to admissible evidence, e.g. hearsay
b) When faced with a case, before you do discovery, ask:
(1) What do I need to know, what do I need to prove?
(2) Anticipate what other side will assert, and counteract
c) How far back do discovery devices let you go? Rule 28(b)(1) says “relevant to the
subject matter”court usually says whatever is reasonable
d) Discovery is so broad—its only true limits are reasonableness and relevancy
2. Privileged Material
a) Communications b/w physician/patient, priest/parishioner and husband/wife are
privileged
b) Attorney/client privilege only extends to communications in connection with the
rendering of legal services (as opposed to business advice, etc.)
c) Reflective of a policy judgment that certain interests are more important than fact
finding and truth seekingcomplete disclosure to attorney will ensure better
representation
d) Client is corporation: SC has struggled to define scope of the privilege here
(1) Privilege extends further than communications with only the top
management
e) ALL privileged material (including work product) must be expressly be
claimed under Rule 26(b)(5), so that parties may assess the applicability of the
privilege
NOTE: Merely embarrassing or private information isn’t privileged
f) Discovery can be potent weapon b/c people with good claims may opt out of filing
suit or may be more willing to settle for fear that they might be subject to
embarrassing disclosures
3. Work Product, Rule 26(b)(3)
a) Work product is protected but not absolutely protected, (first laid out in Hickman)
(1) Must show a the high standard of a “substantial need” and party is unable
“without undue hardship” to obtain the material otherwise; it would be an
injustice not to let the party obtain these materials
a)
29
(a) What if they could have gotten that info themselves before? Some
courts say it’s okay they can get it from other party, while other courts
say, tough
(2) Mental impressions are also protected
(a) BUT when mental impressions are a pivotal issue in the case,
(Holmgren) the work product is not absolutely immune
(b) NOTE: General impressions of case are discoverable through Rule
33(c), but not the specific contentions and impressions (T473)
(i)
That is, it’s okay to get attorney’s theory in an
interrogatory, but work product protects his own memos in
which he actually said these theories
(c) NOTE: Work product does not protect the underlying facts, (so if
Robinsons were asked in interrogatory whether there were skid marks
at the scene, they cannot decline to answer b/c their lawyer learned the
answer to that question while preparing for litigation)
(3) Only material prepared in anticipation of litigation is protectedCourts
agree that it is not necessary that litigation has actually commenced
(4) NOTE: Work product need not be collected by the attorney to be protected
(5) NOTE: IF A PARTY SUCCESSFULLY CLAIMS WORK PRODUCT
PROTECTION; IT CANNOT THEN USE THAT (E.G. VIDEOTAPE) IN
TRIAL B/C THIS WOULD DEFEAT WHOLE PRUPOSE OF
DISCOVERY, however the party may withhold it as work product until
the other party is deposed
b) In Holmgren, an unusual case, it was necessary to turn work product over b/c it was
a bad faith claim and the mental impressions were directly at issue
c) Some argue that protection of work product just leads to overinvestment in
information creationEasterbrook argument
d) “Ordinary course of business exception”routine reports on accidents, etc. are
usually not protected by work product
e) Most states have similar work product rules, but PA is very restricted and their
discovery is very broad
f) NOTE: Attorney/client privilege is waived when the client puts the communication
itself at issue
So, for work product, ask: Was it prepared by or for another party? Was it done in
anticipation of litigation? Is it a tangible thing?
4. Experts, Rule 26(a)(2)
a) Qualified experts are allowed to testify to their opinions which will aid the trier of
fact
b) 90 days before the trial, each party must identify experts who may testify at trial
along with a written report prepared and signed by expert
c) Once this report has been turned over, the expert may be deposed
d) Failure to give the report may lead to the court denying the witness’s testimony
e) The report must include the data he used to form his opinioncourts are unclear
whether this is meant to include documents that might otherwise be protected by workproduct
f) A distinction:
(1) Witnesses who will testifynames are discoverable
(2) Non-testifying witnesses, but retained or employed in anticipation of
litigation, Rule 26(b)(4)(B)
(a) The names of these witnesses are not discoverable absent a
showing of “exceptional circumstances” where it is impractical for
other party to obtain same facts or opinions by other means
30
(b) If the deposition is about events that occurred before the person
was retained, they may be deposed freely
(3) Non-testifying witness informally consultedCompletely protected
Rationale: If they were discoverable it might discourage people to talk
D. Timing, Rules 26(f) & 16(b):
1. All parties must meet as soon as practical or at least 14 days before a scheduling of a
conference under Rule 16(b)
2. In these 26(f) conferences they try to settle and then come up with discovery plan
3. No discovery can commence absent this discovery conference
4. Within 10 days after this Rule 26(f) conference they must submit a written report of it
5. Rule 26(f) conferences can come as late as 106 days after service
E. Mandatory Initial Disclosures, Rule 26(a); DO WWV PROBLEMS T498!!!
1. Some materials must be automatically turned over w/out need of request:
a) W/in 10 days after discovery conference, unless parties agree on or court orders
differently
b) Expert witnesses must be disclosed w/in 90 days before trial unless otherwise
ordered or agreed to
c) Pretrial disclosures of trial witnesses and evidence, must be made at least 30 days
before trial, unless otherwise ordered or agreed to
2. Rule 26(a)(1)(a) Witnesses/Rule 26(a)(1)(b) Documentary evidence:
a) Potential witnesses/documents relevant to disputed facts alleged w/ particularity in
pleading
3. Rule 26(a)(1)(c) Computation of Damages:
a) Must initially disclose documents from which damages could be calculated (bills,
lost earning capacity, etc.)
4. Rule 26(a)(2) Expert Testimony:
a) An ongoing disclosure requirement; must list expert witnesses (anyone who may be
sued at trial) plus submit report of support for that opinion
b) Penalty of not disclosing, Rule 37(c)(1), no able to use that expert at trial
5. The requirements only apply to disputed acts alleged with “particularity”
a) This might serve to encourage ’s to think before filing a frivolous complaint
knowing that they will have to make disclosures early on in the game
 NOTE: A party is not relieved of disclosure obligations b/c it challenges another party’s
disclosure—party must disclose even if the other party failed to do so
6. Wide variations in local rules
7. Meant to reduce costs and opponents complained it would get rid of adversarial
systemboth were wrong
8. Some argue that much of the initial disclosures is stuff that would have come out in first
interrogatories anyway
F. Local Rules, Rule 83
1. Wide variation in district courts; lack of uniformity
2. 26(a)(1) allows district courts to “opt-out” of some rules which really complicates things;
but there are some areas where the court can change the ruling but cannot opt out completely
from the guidelines set forth in FRCP
G. SANCTIONS, Rule 37(c) & 26(g)
1. Sanctions don’t kick in until after a motion to compel is not responded to (Rule 37(a))
2. Fisons case: fair and reasoned resistance to discovery is not sanctionable, but misleading
responses is very damaging to litigation process and is sanctionable
a) Sanctions may be imposed on signing attorney, the party or both
b) Trial court has discretion to fashion appropriate sanctions
3. Flat denials must be qualified and explain why
4. Some argue that this behavior is just part of zealously representing client
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Courts rarely will take the option of dismissal as a sanction b/c it’s unfair to fault the party
for the lawyer’s misconduct
H. Scheduling, Pretrial Conferences and Orders, Rule 16
1. The judge is a participant and thus the action taken at the conference is reflected in a court
order that will control subsequent course of the action
2. Try to settle case and move the case along swiftly
3. Some judges can avoid being exposed to things in settlement that may prejudice him if it
goes to trial, by referring these matters to magistrate judges
4. Scheduling order
a) A blueprint for the pretrial litigation as a whole determining when various tasks
must be completed
5. Court can hold as many pretrial conferences as it wants
6. Final pretrial conference:
a) Held as soon to the start of the trial as possible
b) Judge then enters an order which contains each party’s legal and factual contentions
and it governs the conduct of the trial and clarifies issues that need to be tried
c) Things in pleadings but not in this order may not be tried
d) Very stringent rules on how to modify this order
e) BUT if evidence produced at trial, pretrial conference order may be amended with
less stringent rules of 16(e) in order to conform to the new evidence
 Clinton group exercise:
 Could view White House as a third party and depose “it” through subpoenaing it, but this is a
governmental agency and it would be spending tax payer money
 Could make a motion to compel
 An acceptable response would be to say “this is not relevant”
 Clinton’s response was strange—he said, I don’t have to answer AND I don’t have themthis
is sort of like Fisons case but not really b/c there it was a smoking gun document and here it’s
more peripheral
5.
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X.
ADJUDICATION WITH AND WITHOUT JURY
A. Right to a Jury
 Remember the 7th Amendment was never incorporated into the states, although the right to a
jury is found in most state constitutions
1. Scope of Constitutional Right
a) 7th Amendment doesn’t provide for juries in all civil cases, it says: suits at
“common law”
b) Also says, this right “shall be preserved”
(1) This language has imposed a historical test by which court decides if there
would have been a right to a jury in 1791 at the time of the 7th Amendment’s
ratification
(2) Also the court considers the common law of England at the time
(3) This presents complications b/c back then there was separation b/w equity
and legal remedies in different court systems
(a) If the cause of action didn’t exist back then one must look for
analogies prior to the merger of law and equity;
(b) Then we look at the remedies sought—money damages or an
injunction:
(i)
Rescission (must be in connection with equitable relief,
not claim for money damages), specific performance,
reforming a contractequitable
(ii)
Money damageslegal
NOTE: Some like Brennan argues that step one should be gotten rid or
and we should avoid historical test altogether and just look at remedies
BUT: SC says first we must do historical test, but Perdue says too
heavy a reliance on “preserve” is a very inflexible way to read the
amendment
(4) Another possible approach is a functional one: there should be a jury if
they’re good at deciding such a caseMarkman case, judge was better able to
decide an interpretation of a patent
2. NOTE: Rule 38 says one must demand jury no later than 10 days after service of last
pleading, and failure to do so constitutes a waiver and then it is tried by a judge
3. NOTE: If legal remedy, and  requests a jury and  says no jury =  wins and gets jury;
Rule 38(b) allows anyone to demand a jury trial
a) If no one requests a jury trial it will be a judge trial; however under Rule 39(b) the
court can grant a jury trial even without a timely demand
b) A judge can order sua sponte a jury trial
4. Dealing with law and equity issues in one case:
a) Beacon Theatres (1958)First break issues apart
(1) Then do historical analogies and look at nature of remedy; THEN
(2) Legal claims should be tried first, the jury piece
(3) Then do the equitable claims with the judge
Rationale: We don’t want to prejudice the jury by having the judge decide an
issue firstalso tied to preclusion; e.g. if the jury determines there is no
nuisance in a case , then the judge will not issue an injunction to stop the
behavior b/c it is precluded
b) Dairy Queen (1962)there’s a right to a jury on legal issues even if the equitable
claims predominate and the legal issue are incidental
c) Declaratory judgments: courts determine in what kind of court the action would
have been brought absent the availability of declaratory judgmentsa difficult test b/c
often the action could have been brought in either
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
NOTE: Sometimes the court will break the claim itself into pieces of equity and legal
remedies
 NOTE: Why would someone not want a jury? Sometimes they feel juries have a hostility
toward them (e.g. unions)so if you want to strategically avoid jury you would push for it
being an equitable remedy or historically equitable
B. Jury Selection and Size of Jury
1. Jurors summoned for duty are called the venire
2. Jury is selected from the venire through the process of voir dire
a) Purpose is to gather info about their knowledge, bias, or opinion of the case
b) Based on these questions, a judge may strike a juror for cause (these are unlimited)
or a lawyer may use one of her peremptory challengesthree are allowed in federal
civil cases
c) Traditionally lawyers could use peremptories without explanation for any reason
BUT
d) In JEB v Alabama (1994), SC found that there are exceptions:
(1) SC holds that it’s not permissible to strike jurors based solely on race or
gender
(2) SC isn’t very clear on how this will actually play out in trials, b/c one can
give any kind of non-discriminatory explanation (even if pretty ludicrous like
shifty eyes, don’t tie laces, as long as sort of plausible)
e) JEB brings up a lot of issues similar to those in affirmative action issues:
(1) Is this like affirmative action trying to bring about a change in the nature of
society?
(2) But the question remains—why are we allowed to strike people on really
shallow reasons like they’re fat, or pretty people are stupid, and make such
gross generalizations, and we make these exceptions just for gender and race
(a) It’s almost like we’re being more race conscious
(3) Also, given that women are 50% of society; isn’t it just unlikely that
litigants as a group exclude women from juries b/c it’s a 50/50 chance that a
woman will be replaced by a woman?
(4) O’Connor isn’t willing to say that there is no difference b/w gendersshe
says it’s clear that the state cannot discriminate, but wonders, maybe private
litigants can
(5) Scalia says, let’s think in terms of who’s winning/losinghere, it was
women that were losing, b/c they wanted to strike MEN off the jury
 Perdue says this case was decided correctly, but it’s a hard caseit’s not
being neutral, but actually very affirmative and probably a good thing for
society
 JEB also raises the issue that blacks for a long time could not serve on
juries, and that there exists a right to serve and that it’s not fair to strike
based solely on race
f) Some courts have extended JEB to Italian-Americans, Hispanics, but others have
refused extension to youths and homosexuals, and religion based strikes
 Two views on voir dire: one says in Mapplethorpe how important the lawyer’s role
was in voir dire; and the other says voir dire doesn’t tell you anything about the
outcome
C. Jury Size, Rule 48
1. Federal courts in civil cases can have “not fewer than 6 and not more than 12 members” and
federal juries usually have 6 members
2. There are no alternate jurors, and can only be excused for good cause
3. There must be a unanimous verdict unless parties stipulate otherwise
D. Summary Judgment, Rule 56
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The court may enter judgment when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law
a) The court views the evidence in the light most favorable to the non-moving
party
2. SJ is a way of deciding what to do in a situation with imperfect information, like buying a
new car—at what point do you stop acquiring info and decide to buy it?
3. Motions for SJ are made before the trial and presentation of evidence
4. Courts are very hesitant to grant SJ b/c it is in effect denying the right to a jury trial
NOTE: SJ differs from 12(b)(6) and 12(c) motions b/c in 12 motions the court relies solely
on the pleadings to determine the factsin SJ discovery has occurred BUT all evidence
considered is in written form, e.g. affidavits and other sworn statements
 See p. 606 in TEXT for graph***
5. Two basic situations where SJ is appropriate:
a) Both parties agree totally on the facts and both move for SJ, (But in negligence
cases a lot, determining breach of duty is often left to jury to make inferences even
though no facts are in dispute)
b) Parties disagree about the facts, but here is no “genuine” dispute that is, one side
has so little evidence that no reasonable jury could find for that side
6. Classic case: Dyer gives all of his evidence and  responds by saying that they could be
lying
a) The court grants SJ b/c after the moving party makes the motion pointing out holes
in ’s case (this can be done by showing holes in ’s responses to interrogatories), 
must respond with some affirmative evidence; he can’t just say that’s my case please
find in my favor, like in criminal casesAnderson case reaffirmed this principle, one
can’t just point to their pleadings
b) ’s evidence must rise to some level, can’t decide without some evidence, SC has
rejected “scintilla” of evidence standardit must be enough that there is a genuine
issue that needs to go to jury
(1) Evidence in response to a motion for SJ must be admissiblecan’t just use
hearsay
Rationale: Everyone should have their day in court and more evidence may come out
in trial
c) “Genuine” means that each side must have evidence that gets them past a threshold
d) Burden of production:
(1) Obligations of one side to come forward with evidence to support its claim
(2) So  must present enough evidence that court does not grant SJ for 
e) Standard of proof/burden of proof
(1) Standard of proof in civil cases is “preponderance of the evidence”the
trier of fact must believe that the claimant’s version of event is “more probable
than not
(2) If neither party gave any evidence,  will lose b/c the have burden of proof
7. NOTE: Judge does not consider credibility at all; it must go to the jury:
Example: Red/light green light case: If  only comes forward with one affidavit saying
the right was red, and  has 30 affidavits from priests saying it was green—it doesn’t
matter even if ’s is from herself, judge must ask, is there a possibility that jury might
still find for ? If so, the case goes on
8. Sometimes if  presents circumstantial evidence in response to the SJ motion, it may be
enough that jurors could make an inference about as to continue with the trial
9. When a court evaluates SJ or directed verdict; the evidence must be evaluated as it would
be considered at trial, so the decision is guided by substantive evidentiary standards that apply
to the case
1.
35
10. Courts may also enter partial SJ where some issues are disposed of and others proceed to
trial
11. There are some cases where , the party with the burden of proof, successfully moves for
SJ, ex: plane flying below regulationsnegligence per se, but most of the time inferences are
left to the jury
a) However, if  moves for SJ, she has burden of proof; thus,  can win without
persuading the jury that his side is the truth only has to persuade the jury in
this case that  failed to prove her side, so  need not present contrary evidence
(one person supporting ’s story is probably not enough for summary judgment in this
case)
12. Most courts hold that  cannot appeal the decision not to grant her SJ in the trial court
 Always ask, who’s coming forward, who’s got burden of proof?  can’t rely on nothing,
if  comes forward with evidence even if they say ’s evidence is wrong
E. Controlling and Second Guessing Juries
1. Judgment as a matter of law (JMOL)new expression for directed verdicts and
JNOV
 Directed verdict and JNOV both have same standard as SJRule 50
a) Sequence at trial:
(1)  presents her case, calling witnesses that  can cross
 can move for JMOL (directed verdict)
(2) If denied, then all of ’s evidence is presented
Now, with all evidence closed, both  and  can move for JMOL
(3) If these motions are denied, the case is submitted to the jury
(4) Following the verdict and entering of a judgment, the losing party may
“renew” her JMOL motionNOTE: Losing party can only move for JNOV if
she had previously moved for directed verdict at the close of ALL the evidence
during the trial—Rule 50(b)
 NOTE: Rule 50(a)(1): Court can only grant JMOL against a party who has been fully
heard, thus  cannot move for JMOL after the presentation of her evidence, she must
wait for  to present his case
 Why do courts deny JMOL but then grant it after verdict in a renewed JMOL? Courts are
hesitant to grant JMOL, but if the verdict comes back as so irrational they might grant
JNOV
 Court may not sua sponte order JMOL, which differs from Rule 59 below in new trials
2. New Trials, Rule 59
a) New trials may be granted even if JMOL is not proper, if court decides that the
verdict is against the heavy weight of the evidence and it strongly disagrees
Rationale: A mechanism to keep the jury in check, and also shows our lack of
confidence in the jury system
b) The standard is different from JMOLthe court need not weigh the evidence in the
light most favorable to the non-moving partyit’s if he has given verdict its full
respect, but still has a strong conviction that a mistake was made
c) Motion must be made within 10 days of judgment of first trial; or court may order
sua sponte within 10 days
d) If neither  nor  have moved for JMOL; they still can move for a new trial
e) Court may order a new trial b/c the verdict was so excessive, or they may, as an
alternative use remittitur/additur which gives  the option of accepting a lower/higher
verdict instead of a new trialadditur is not allowed in federal courts
f) Two main categories of errors:
(1) Error in Jury’s Evaluation of the Evidence: Verdict is excessive or
inadequate; or verdict itself is against the weight of the evidence
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(2) Error in Process at Trial: errors in instructing the jury; commenting on
the evidence; misconduct of parties/witnesses
Jury Instructions as a Means of Controlling Juries
1. Court instructs jury on the law, focuses jury’s attention on certain issues and aids in
structuring deliberations
2. Many jury instructions are very confusing, and thus are a common reason for appeal
G. Special Verdicts
1. Sometimes jury is not asked to get to a bottom line, but just to answer some specific
questions
2. Also can use specific questions, plus a bottom line general verdict
3. Special verdicts are most often used to deal with apparently inconsistent answers
H. Judicial Comment
1. Judge is permitted to comment on the law in addition to instructing the jury, but there are
some limits
I. Juror Misconduct
1. Federal courts take a hard approach saying jurors cannot testify to their conduct during
deliberations and why they decided a certain way
2. Courts allow narrow exceptions for “outside influences” but did not view taking drugs, and
drinking as such outside influences
3. Incorrect answers to voir dire provide a basis for a new trial only in limited circumstances
J. Motion to Set Aside the Verdict, Rule 60(b)
1. Not an appeal—it is made to the court that entered the judgment
2. Mistakes, newly discovered evidence, fraud or misconduct on other party’s part, the
judgment is void, prior judgment vacated, etc.SEE RULES
3. Issue is left to the discretion of the trial judge; very rarely happens
F.
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XI.
PRECLUSION DOCTRINES
A. Introduction
1. NOTE: “First case” refers to the first one that went to judgment, not the first one that was
filed
2. Policy justifications of efficiency; claimmust litigate all claims, issuecan’t re-litigate
B. Claim Preclusion (Res Judicata)
1.  has one shot at vindicating all rights to relief encompassed in a single claim
2. Therefore, important to know the scope of the claim; possibilities:
a) Majority view, Restatement:
(1) Clear modern trend is to take a broad “transactional” approach
(a) A “natural grouping or common nucleus of operative facts”
(b) A pragmatic approach—asks were the facts connected closely
in “time, space, origin, or motivation
b) Minority view: DO HYPOS P. 584
(1) “Primary rights”: a focus on the rights invaded, very narrow
(a) Opponents argue this promotes duplicative litigation and is
inefficient
(2) “Single wrongful act”:
(a) Injury to person and one’s property create a single cause of action
and different injuries sustained are items of damage from the same
wrong
(3) “Sameness of the evidence”: if same evidentiary showing would justify
recovery in both suits
(a) Not clear how much evidentiary overlap is needed
 NOTE: Whatever definition is used for scope of claim, the claim is personal to
each individual harmed: (e.g. Each person injured in car wreck each passenger’s
claim is separate
c) Valid Final Judgment on the Merits: (necessary in both claim and issue
preclusion)
(1) Validity:
(a) Competence of the court, proper PJ and SMJ
(b) This part has nothing to do with the merits of that first case
(2) Finality:
(a) Individual rulings during the course of litigation are not given
preclusive effect
(b) Federal courts hold that if such, valid, final judgment is made and
then is on appeal that could take years, the trial court’s judgment is still
given preclusive effect; while state courts are split on this issue
(3) On the Merits
(a) Judgments based on the validity of ’s claim and not on a technical
procedural ground
(b) Summary J and Directed Verdicts are considered decisions on the
merits and are given preclusive effect, even though no actual trial
with SJ
(c) Judgment by default is also given preclusive effect b/c it
establishes the substantial validity of the claim and gave  an
opportunity to “get to the merits”
(d) So virtually every situation where claimant wins is given preclusive
effect
BUT
(4) When claimant has lost for reasons like: lack of jurisdiction; improper
venue; or nonjoinder/misjoinder of partiesthere is no judgments on the
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merits and she can try it again b/c it does not get preclusion effect, See
Rule 41(b)
(5) Also, preliminary matters are generally not given preclusive effect unless
the court specifies that it’s dismissed with prejudice
d) Contract Cases:
(1) Generally, courts say that the claim constitutes all amounts on a single
contract owed at the time the claimant files suit
Example: If  makes first 2 payments, misses, third, makes fourth, and then
misses fifth must sue for both the third month and the fifth in a single
claim; and if she fails to do so and only files for the third month she will be
precluded from litigating for the fifth one
3. Who Can Be Bound:
a) Claim preclusion requires that the parties to the two suits be the same or in “privity”
to the litigant in the first suityou’re not precluded by something someone else did
(1) Due Process requires that one can’t be bound by a judgment unless she has
had an opportunity to appear and litigate
EXCEPTION
(2) “Privity” is more defined by two situations:
(a) Representation; (e.g. trustee on behalf of estate, guardian of a kid)
(b) Substantive legal relationships: (e.g. successive owners of
property w/ a judgment affecting the property”successors in
interest”)
b) The second suit must involve the same parties in the same configuration
c) Make sure to use the word “claimant” instead of , b/c there may be compulsory
counter-claim rules in effect in that jurisdiction
(1) Most states have compulsory counter-claim rules where the counterclaim is
precluded in further suits; however, if it is not compulsory CC, the claimant
would not be precluded from raising his counterclaim in another suit, just as
long as he doesn’t litigate the main claim from the original suit
d) NOTE: A participant (like a witness) is not considered a party to that case for
preclusion purposes!!!
e) A person who has not received notice, but is represented by a litigant, still may be
bounde.g. class actions suits
f) EXCEPTIONS TO CLAIM PRECLUSION, p. 666 (TEXT)
(1) Parties have agreed it’s okay to split claim; court expressly reserved ’s
right in the first case;  couldn’t rely on certain theories in first case; judgment
in first action was inconsistent w/ statute; continuing or recurrent wrong;
extraordinary reasons
C. Issue Preclusion (Collateral Estoppel)


(Think about Glannon’s idea: guy sues guy for going on land, trespasser wins—he has an easement
that says he can; then he goes back on land again—claim preclusion allows the landowner to sue
again b/c it’s a different time/occurrence; BUT issue preclusion says he cannot relitigate the issue)
5 Main Questions:
 Same issue litigated and determined?
 Was it essential to the judgment?
 Was it on a valid final judgment on the merits?
 Against whom may it be asserted?
 By whom is it being asserted?
1.
Same issue litigated and determined
a) Unlike claim preclusion, issue preclusion applies to things litigated and decided
39
(1) Why is there this difference? Why don’t we say, “you could have raised it”
(a) It might be more efficient; but it would force people to do more in
the first lawsuit, resulting in longer trials, b/c people would be under
enormous pressure to raise every argument they might ever raise
(b) Also it would be more open-ended if we said you have to raise
everything
 NOTE RATIONALE: In issue preclusion we just plug in prior
judgment that was already decided, so how could we possibly plug
in things that have not been decided
 So, unlike claim preclusion, default and failure to prosecute judgments
are not considered for issue preclusion effect
 GO OVER SALLY AND JOE HYPOS
2. Issue Determined was Essential to the Judgment
a) If the finding would change the result it is essential
(1) E.g. S v. J; J says contrib.; jury gives special verdict saying both S & J negl.
(a) S’s negligence is essential; J’s is not, and is not precluded
(b) Why do we not preclude non-essential judgments? B/c we might be
suspicious of themif they aren’t the central focus, juries may not
spend time on them
(2) E.g. (Glannon’s example):  sues for injuries from falling on ladder; 
impleads manufacturer; jury finds that the defect did not cause the accident, but
that the manufacturer was responsible for the defectthe issue that the
manufacturer was responsible is not precluded and may be relitigated b/c it was
non-essential to the judgment
b) “Alternative Judgments”are different
(1) E.g. if jury says above that S negl. and J not negligent
(2) This is different b/c a finding of either one, alone would satisfy the
judgment for Joe
(3) There is no issue preclusion effect for either unless one or both is affirmed
on appeal
(4) In a way it punishes Joe for “doing too well”if he had just won on one of
these things he would have gotten preclusion on the issue
3. Against Whom Can Issue Preclusion be Asserted?:
a) Privity requirement also applies in issue preclusionissue preclusion can be
asserted only against one who was a party (or in privity to the party) to the first case
(1) You’re saying, you’ve had your day in court and you lost!
b) Mass tort casesparties not joined in mass tort cases are not precluded from
litigating the same issue in a different trial—no one should be bound without his or
her day in court
c) Also when a party is “in control” like the US might be in a federal dam case, they
are bound by the first judgment even though not a true party to that case
4. By Whom Can Issue Preclusion be Asserted?
a) Mutuality
(1) Traditionally courts said that issue preclusion can only be used by someone
who was a party (or in privity to a party) to the first case
Rationale: Fairness: someone who cannot be hurt by a prior judgment should
not be entitled to take advantage of it
(2) Mutuality is not rooted in due process and courts are free to change the
rules
NOTE: Always ask, who is preclusion being used against? Is it being used
against someone who was not a party to the first case?
b) Exceptions
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(1) Most courts now, urged by Bentham’s ideas, have moved away from
mutuality and have adopted nonmutual issue preclusion, where issue
preclusion can be asserted by someone who was not a party to the first case
(2) Narrow exception was found for employer/employee—vicarious liability
situationsif patron sues employee and court finds employee not negligent.
Patron now tries again with employer under vicarious liability theory, (note that
employer/employee relationship is not privity), employer would like to use
issue preclusion, but can’t under mutuality.
(a) So, if we didn’t allow preclusion here, there is a chance that
employer will lose and he will indemnify employee and then either
verdict in the suit of employer v. employee will be anomalous
(b) So courts made a narrow exception and allowed nonmutual issue
preclusion here “narrow exception” to mutuality
(c) Some courts also allow employee to utilize issue preclusion if they
are sued in the second case, even though the same anomaly would not
exist b/c an employee cannot indemnify an employer, a “broad
exception” to mutuality
c) Rejection of Mutuality for Defensive Use
(1) Eventually some courts decided to abolish mutuality entirely rather than
just make the vicarious liability exceptions
(2) Key case: Bernhard v. Bank of America: Family sues executor and he
wins and was not at fault for withdrawing decedent's $; then the family sues the
bank under the same issue and the bank wants to use issue preclusion from the
first case; court found that they can even though mutuality says no and it is not
a vicarious liability exception
(3) SC has also embraced the rejection of mutuality for defensive use:
(a) Blonder-Tongue Laboratories, Inc. v. U of IL Foundation,
(1971):
(i)
A patent holder sues 1 alleging infringement and
court held ’s patent invalid, 1 wins
(ii)
 then sues 2 asserting it was infringing the same
patent; 2 tried to use nonmutual issue preclusion and lower
courts refused
(iii)
SC held that nonmutual defensive issue preclusion
was warranted here:
(iv)
SC used policy reasons of crowded dockets and ’s
seemingly unlimited (as long as there are unlimited ’s)
opportunities to re-litigate an issue for which she had a full and
fair opportunity to litigate in the first case
(4) Note that many jurisdictions still support mutuality, while recognizing the
vicarious liability exceptions only
d) Rejection of Mutuality for Offensive Use
(1) Currie’s concerns over nonmutual offensive issue preclusion:
(a) Airline crash and 100 passengers are injured
(b) 1 sues Airline and wins the first case; now 2 sues Airline for
same crash, and can use nonmutual offensive issue preclusion from first
case (using against a party that was a party to first case, same T/O) and
can ride the first guy’s victory.
(c) Problem is, what if Airline wins against passengers 1-55 (note, he
can’t use preclusion b/c not next passenger wasn’t party to first case)
and then for some reason passenger 56 wins, and then the rest can ride
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that victory and now Airline loses the rest of the cases, which seems to
be unfair b/c it could be that passenger 56’s case was just an aberration
(i)
Your views on the use of nonmutual offensive use
hinge on your views on the reliability of the jury system
(2) Parklane Hosiery Co. v. Shore, (1979)
(a) Nonmutual offensive use of issue preclusion does not promote
judicial efficiency like with defensive use b/c there is not an incentive
to join all potential parties; but rather creates the totally opposite
incentive
(b) It may be unfair to  to use offensive nonmutual b/c if the first
action is for small damages he may not defend vigorously, particularly
if future suits are not foreseeable
(c) Also unfair to  b/c he doesn’t get to choose the forum or the time
and may be at a disadvantage in the first case
(d) SC does not take a firm stand on nonmutual offensive issue
preclusion
(i)
Leave broad discretion to trial courts:
(a) they say if the parties could have been easily
joined in the first action, or;
(b) where it is unfair to  for the reasons above,
namely not litigating vigorously b/c no foreseeability
of future suits; or
(c) the problem of inconsistent judgments already
completed
trial judge should not allow it to be done
(ii)
In the Parklane case SC finds that nonmutual offensive
issue preclusion is okay, and none of the reasons above for
denying its use were present in the action
 So, things to look for to decide if federal courts would allow ONIP:
 Did  have a strong incentive to litigate the first suit ( had serious
injuries)? If so, may be reason to allow it
 Did  anticipate further suits (e.g. mass tort case
 Were there procedural rules that were different in the 2 suits that would
work to ’s disadvantage (considering he doesn’t choose forum); were
certain witnesses unavailable to  in first suit? if so maybe cannot use it
 Did  purposely sit out the first suit when he could have joined? If so,
maybe cannot use it
(3) Plaintiff Shopping
(a) The advent of nonmutual offensive issue preclusion has given rise
to “plaintiff shopping” where big groups will get the  with the most
compelling case to go first so the rest may ride his more certain victory
(4) Fairness argument in mutuality: Lack of reciprocity
(a) Bus crash exercise from class: If GM loses the first case, it could be
used against them in future cases, despite nonmutuality
(i)
BUT, if GM wins in the first case, they cannot use their
victory to win in the next case b/c they are using it against a
non-party to the first case
5. EXCEPTIONS TO ISSUE PRECLUSION, p. 697 TEXT
a) Issue preclusion will not apply if: party who it’s being raised against could not get
review of first judgment; issue is one of law and actions aren’t substantially related or
there’s been a change in law; a new determination is warranted due to differences in
42
quality of procedures; burden has shifted; clear and convincing need for a new
determination of the issue
b) Nonmutual offensive issue preclusion is unavailable in litigation against the US
(1) Rationale: US govt. litigates the same issue all over the country and would
have to continuously appeal each case in order to avoid preclusion; which
would be a huge expense to taxpayers
D. Federalism Problems
1. State-to-State:
a) As long as jurisdiction was correct in the first case, the first judgment is

entitled to full faith and credit in the second case; even if the judgment was wrong
on the merits
NOTE: If the losing party in the first case felt that the judgment was erroneous she
could have appealed it in that state
2. State-to-Federal:
a) § 1738 requires a federal court to give full faith and credit to first judgment in
state court
b) Although the majority rule is to give the same effect in the federal court, some
courts feel they can diverge somewhat from the preclusion rules of the first rendering
state
3. Federal-to-State:
a) Neither Const. or a statute addresses this situation, but courts say that state
courts must respect federal judgments
4. Federal-to-Federal
a) If the first case was in federal court b/c of federal question doctrine; federal
common law rules for preclusion apply there
b) BUT if the federal court’s jurisdiction is based on diversity, and state law is
applied in the first case (Erie), the second federal court need not apply state
preclusion laws, and rather can apply federal preclusion law
(1) EXCEPTION, if applying federal law would jeopardize some state
substantive policy, courts will apply state preclusion law
SUMMARY: Need to go through preclusion analysis systematicallyFirst ask if there’s claim
preclusion and then go into issue preclusion
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XII.
JOINDER AND SUPPLEMENTAL JURISDICTION
A. Introduction
1. Goals:
a) Avoids duplicative litigation by putting all transactionally related claims and parties
into a single caseefficiency for parties and court system
b) Might help support public confidence in judicial system by avoiding the possibility
of inconsistent judgments
BUT
c) This packaging of parties has problems: May confuse the jury, may override ’s
ability to choose the forum and the scope of litigation she would like to pursue
2. NOTE: Joinder rules provide procedural mechanisms but cannot alter PJ, SMJ, and venue
requirements
a) We assume for our purposes that every party joined has PJ
b) Often joinder of new parties has no effect on venue
c) Sometimes SMJ will obviously be okay b/c the claim is supported by alienage, FQ,
or diversity, but if not, supplemental jurisdiction comes into play
 In joinder questions, always first ask: (1) Is joinder permitted under the Rules? Is so, (2) is the
claim supported by SMJ in statute?
B. Claim Joinder by ’s, Rule 18(a)
1. Procedural Aspects
a) Great breadth; allows party to assert every claim she has against other party, this
applies even if the claims are not transactionally relatedsome say this increases the
likelihood of settlement
b) This claim joinder is permissive is not required to join claims; however claim
preclusion may persuade her to join all her claims b/c she may risk losing them!
c) This can be used in original claims; counter-claims; cross-claims; and thirdparty claims
2. Jurisdictional Aspects
 What happens when a party tries to use Rule 18(a) over claims that have no independent
federal jurisdiction either through diversity (and amount in controversy) or federal
question?
a) United Mine Workers v. GIBBS, (1966):
(1) SC says that it can hear a an appended state claim that has no independent
federal SMJ; if the claim arises “from a common nucleus of operative fact”
(2) Discretion is left to the court
(3) NOTE: §1367 did not exist yet, so SC made this up through a reading
of Art. III, “case or controversy”
(4) The original federal question claim must not be “wholly insubstantial or
frivolous”
(5) NOTE: some might say that it would be more efficient if the whole case
went to state court; but if  really wants to litigate the federal claim in
federal court, in not allowing supp. jurisdiction you’d be saying he would
have to litigate 2 cases
b) § 1367
(1) §1367(a) is very expansive; it would still authorize Gibbs
(a) Ask:
(i)
Do the claims arise out of the same T/O?
(ii)
Was there a common Q of law and fact?
(2) §1367(b) cuts back this expansiveness a little bit by saying that if original
action is brought into federal court based solely on diversity, there is no supp.
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jurisdiction over claims by ’s against persons made parties by Rules 14, 19,
20, or 24
(3) NOTE: The original federal claim need not be a winner, and it doesn’t
really matter if it drops out early in the case, just can’t be too frivolous, and
need to keep it in court long enough so the court doesn’t dismiss all of your
state claims that were tacked on through supp. jurisdiction
C. Permissive Party Joinder by ’s, Rule 20
1. Procedural Aspects
a) Rule 20 defines who may, as opposed to who must, be joined as parties
(1) Arising from same transaction or occurrence
(2) AND if any question of law or fact are common to all parties
b) Some courts have been very liberal in defining same T/O or series thereof; e.g.
bottlecaps exploding in different states at different timescourt allowed joinder of ’s
b/c there was a common question of law or fact and treated the explosions as a series of
same T/O
c) NOTE: Penalty for misjoinder of parties, Rule 21, is that claims will be severed
and proceeded with separately, resulting in 2 or more separate suits with their own
docket numbers and judgments
d) Why would someone not join all possible ’s and ’s? There may be jurisdictional
problems; maybe can’t get PJ over all ’s; joinder might destroy diversity; or for
strategic reasons like if there’s no mutuality she might want to ride judgments of other
’s claims, etc.
(1) If you join both ’s it will avoid the situation where they each point fingers
at each other
2. Jurisdictional Aspects
a) Finley case led Congress to enact § 1367
(1) In Finley, a woman wanted to assert a claim against FAA (US government
can only be tried in federal court) and he also wanted to assert state law claims
against non-diverse parties
(2) This was a strong case for supp. jurisdiction b/c she would otherwise have
to bring 2 separate claims, one in state one in federal
(3) BUT SC said they would not allow it without express statutory authority
b) So § 1367(a) takes care of Finley
(1) Note that §1367(b) has a strange anomaly that seems to interfere with total
diversity rule:
(a) If (CA) sues (UT) and tries to join (CA); there is no diversity,
and under (b) she can’t b/c it’s against a party joined under Rule 20
(b) BUT, if (CA) sues (UT) and wishes to join (UT), even though
it destroys complete diversity, (b) seems to allow it b/c it’s not a claim
by a  against a party, but just another Perdue says this is a
strange and perhaps unintended consequence of poor drafting in §1367
(i)
§ 1367(b) speaks too “woodenly” with the use of the
word “plaintiff” causing many problems with supp.
jurisdiction issues
(2) § 1367(c) gives courts discretion to refuse supp. jurisdiction
(3) § 1367(d) tolls statute of limitations on supp. claims that are later dismissed
D. Claim Joinder by ’s
1. Counterclaims: Rule 13: Where  can assert offensive claims against others; different
from affirmative defense b/c here it is a separate claim to recover on his behalf
a) Compulsory Counterclaims, 13(a)
(1) Procedural Aspects
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(a) Arising from same T/O (very broadly defined), he must raise it then
in the pleading, so he need not raise it in a motionvery inflexible, the
word “shall” is used connotating a requirement
(b) Few exceptions are made, however, in Dindo, it was really unfair
b/c the  didn’t know he could assert the claim b/c the insurance
company was in essence representing both sides of the case and
probably did not inform him that he could raise the counter-claim
because they didn’t want have to pay out more
(c) Courts have held that if there is a default judgment, and no
“pleading” was ever made (hence not literally invoking Rule 13) 
cannot later litigate claims that had to be counter-claims, if it would
totally undermine the value of default judgment
(i)
But sometimes, it would not undermine the first
judgment, like in car accident with A v. B.
(ii)
A says it was B’s fault; and B defaults w/out answering
(iii)
But A hit B after the accident in his rage and B would
like to sue him. Though it’s the same T/O, he may be able to
sue b/c it would not undo the default judgment on B’s
negligence in the crash
(2) Jurisdictional Aspects, § 1367
(a) Supp. jurisdiction is allowed if same T/O, but if solely on diversity,
look at (b)(b) applies only to a  asserting it against a party joined,
so if (NY) sues (CA) and her claim is for $100,000 and his
counterclaim is for $10,000 it would be okay b/c he is a , and is not
knocked out by (b)
b) Permissive Counterclaims, Rule 13(b)
(1) Procedural Aspects
(a) Anything that is not compulsory, e.g. his dog bit him 3 years earlier
(2) Jurisdictional Aspects
(a) Permissive counter-claims by definition do not arise from same
T/O, so in order to get supp. jurisdiction, they must have an
independent basis of federal jurisdiction
2. Cross-Claims, Rule 13(g)
a) Procedural Aspects
(1) A party ( or ) may assert an offensive claim against a co-party if it arises
from the same T/O as the underlying dispute (whether it be original claim or
counter)
(2) Cross-claims are permissive
(a) Some argue that permissiveness is wasteful so some states have
made cross-claims compulsory
b) Jurisdictional Aspects
(1) Cross-claims must be from same T/O so they could invoke supp.
jurisdiction;
(2) NOTE: If  cross-claims against a  she has joined and there is no
independent SMJ for this claim; if the original claim was based solely on
diversity, § 1367(b) seems to say that this is not allowed b/c it’s a  asserting it
against a party joined under Rule 20
(3) but never jump to supp. jurisdiction w/out first ascertaining if the claim
is supported by an independent basis for SMJ
E. Overriding ’s Party Structure
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
NOTE:  has same ability to join in his counter or cross-claims parties that are applicable under
Rule 20 or Rule 19, so Rule 13(h) puts  on same procedural footing as  in selecting parties to her
claims
1. Impleader, Rule 14
 NOTE: This is not a way of pointing the finger at someone else; this is more a theory
of reimbursement
 Most common form of impleader is through insurance company where the relationship is
contractual
a) Procedural Aspects
(1) This allows a party in a defensive posture to join an absentee in limited
circumstances
(2)  has a right to implead a party within 10 days after filing her answer; she
doesn’t need court permission to do so
(a) If she wants longer than 10 days, she needs court’s permission to
implead
(3)  is not required to implead
(4) The party invoking impleader becomes the third-party  (TPP) and the
absentee brought in is called the third-party  (TPD)
(5) TPP can only implead one who “is or may be liable to TPP for all or part of
’s claim against TPP (the original )
(a) TPD may raise an affirmative defense that the TPP forgot to raise
in the original suit
Rationale: To protect TPD when TPP may not fight the claim
vigorously b/c he knows he will be protected the indemnity
(6) Impleader promotes efficiency by litigating the underlying claim and any
“claim over” for indemnity or contribution in a single proceeding
(a) Also is a way for TPP to avoid multiple liability or inconsistent
obligations if she had to do a separate suit against the TPD for
indemnity or contribution
(b) NOTE: contribution is based on common liability of 2 or more
actors for same injury where they each pay their portion; and indemnity
is where one tortfeasor can shift entire burden of judgment on another
(7) Note that once TPD has been impleaded, he may assert any claims he has
permitted by Rule 14(a) against  “downsloping”
(8) Also, once TPD has been impleaded,  may assert claims against TPD, but
there are jurisdictional problems “upsloping”
(a) What about if  asserts her claim against TPD after he sues her;
wouldn’t this be considered now a counter-claim b/c  is now in a
defensive position?
b) Jurisdictional Aspects
(1) First assess if any claim: impleader, upsloping or downsloping has an
independent form of SMJ
(2) Then, look at § 1367 (a)—same common nucleus of operative facts?
Impleader always seems to fall under this requirement as do upsloping and
downsloping b/c by definition Rule 14(a) says they can only be raised if arise
from same T/O
(3) For decades there has been little question that impleader claim and
downsloping claim can invoke supp. jurisdiction, b/c they are not being raised
by a  (§1367(b)) and policy dictates that there will be no sneakiness b/c  did
not choose to be sued, nor TPD impleaded
(4) Owen Equipment & Erection Co. v. Kroger, (1978)
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
This case was decided before § 1367 and § 1367 was supposed to be
putting in statutory form what this case was saying
 SC allows impleading of Owen, the TPD, even in absence of § 1367 b/c if
OPPD loses to K in first case and then has to file separate suit against
Owen, there is a possibility of inconsistent verdicts; ALSO the SC
recognized an efficiency argument for allowing the impleader even though
no independent basis of SMJ
 SC holds however that K cannot sue Owen for jurisdictional reasons, b/c
there is no diversity
 SC says it is different b/c K chose the forum and she could have originally
sued altogether in state court; and b/c it would be fairly obvious to K that
OPPD would implead Owen there’s a chance if she has a claim against
Owen to begin with she might try to be a sneaky , just to get the claim
into federal court
 NOTE: This is very  orientedthey do not have the same strategic
power that  does
 SC doesn’t tell us if it would be okay if Owen sues K once he’s been
impleaded (downsloping) but given the policy justifications, we might
say that Owen didn’t choose to be impleaded and therefore probably
could sustain §1367 supp. jurisdiction over his claim against K
 What if K now wants to counterclaim against Owen? Here, K is more
like a , and there’s no way she could have gotten it out of federal
court, not very plausible that this is her grand scheme, so courts will
probably let her counterclaim by supp. jurisdiction
NOTE: this seems to be allowed under Kroger, however, if we read
§ 1367(b) it doesn’t allow supp. jurisdiction for claims by  against
joined parties
Thus § 1367(b) creates confusion here too, especially if purporting to
be codifying Kroger
 There is an argument that the last clause of 1367(b) modifies
the earlier language of the section and appears to take away
from it so that the statute would allow supp. jurisdiction by 
in this situation (but this is just a theory)
2. Compulsory Joinder (Necessary and Indispensable Parties), Rule 19
 It may seem sensible to make all ’s join togetherif suits are in the same court, they can
be consolidated, but no way really to join other cases in other courts
 One way is to file for bankruptcy! There all ’s must be joined together who have any
claims against the  who has filed for bankruptcy
 A narrow exception is found through Rule 19
a) Procedural Aspects
(1) 19(a): If the party qualifies here, she must be joined if feasible
 (1)if in absence of the party complete relief cannot be
accorded to parties
 (2)absence may impede or impair person’s ability to protect
his interest in the claim (e.g. ABA tells G-town that they cannot
award any diplomas, we as students are not legally bound, but our
interests are clearly affected here); BUT if Perdue gets mad b/c she
has to sit in traffic b/c of the Wilson bridge and there is a suit by
other’s about the bridge, she probably is not a party in interest, no
real direct effect on her
 2(ii)absence leaves parties at risk for multiple, double or
inconsistent obligations (very narrow, meaning, being forced to do
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
2 inconsistent things—it’s permissible to be forced to pay 2
different people, but not to do 2 different specific performances)
(2) 19(b): Tells court what to do if the party cannot be feasibly joined (e.g. no
PJ over the party or would destroy diversity, so no SMJ)
(a) They can either dismiss the case, or go forward; and if the case
goes forward, is there a way to structure the relief so that it’s more fair?
b) Jurisdictional Aspects
(1) § 1367(b) will not allow supp. jurisdiction by  against Rule 19 parties
(a) Example: If MD v. NY and missing party is from MD
(b) If  joins absentee as a  it destroys diversity, but if she should
have been joined by  there is no diversity problem
(c) But, let’s say absentee is joined in ’s side—is there supp.
jurisdiction? § 1367(b) says no
(i)
Perdue says that this makes sense b/c there could
otherwise be a sneaky  problem of trying to get someone they
know will be joined under Rule 19 into federal court
Rule 19(a) promotes 3 policies:
 Efficiency concern
 Harm to absentees
 Avoiding inconsistent obligations
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