Civ Pro II – Outline
1. The Rules of Decision Act - 1652
o Substantive law should come from the states, unless it is a purely federal question regarding
federal law
2. Rules Enabling Act - 2072
o Created the FRCP
o FRCP shall not abridge, enlarge, or modify any substantive right
o If law is in conflict, it shall no longer be in force or effect
3. Erie Doctrine - ONLY apples to 1332 claims in federal court
o Conflict between state and federal statutes
o Rules of Decision Act dictates that 1332 claims use state substantive law and Rules Enabling
Act dictates that federal procedural law
o Which state's law governs
 Choice of Law Rules - Horizontal Choice of Law Analysis
 Each state has their own CoL Rules - the federal court use the state's CoL rules
when deciding which substantive law to apply
 State v. Federal Law - Vertical Choice of Law Analysis
 Substantive - state law
 Procedural - federal FRCP rules
 Swift (Overruled by Erie) - CL not included in the law of the several states
o Law of the States of the Several meant:
 State Constitutions
 State Statutes
 Local Rules
 Erie (Overruled Swift and added in State CL)
o General Rule - state substantive law and federal procedural law should apply in 1332
claims sitting in federal jurisdiction
o Black and White Taxicab
 Taxi co. moved across border to get into federal court where exclusive contracts are
legal
 Created Forum Shopping and Inequitable Application of the Law (Twin Aims of
Erie)
o Overruled Swift by adding State Common Law
 No such thing as Federal CL anymore and did away with the idea of Natural Law
 Guaranty Trust v. York - adds the layer of OD
o Established that it is difficult to tell if laws are substantive or procedural
 If unable to tell, Outcome Determination - If the state rule, when applied, would
change the outcome of the case, then it is substantive and trumps federal
procedure.
 If different outcomes when applying state and federal law - state law should be
applied in federal court to prevent FS and IAoL
 Byrd - Exception to the General Rule of Erie
o Division of labor conflict - issue in state court is decided by judge but in federal court it is
decided by the jury
 There are certain rules in place that the federal courts cannot mirror exactly from
state courts
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Constitution invoked indirectly - If state law would impact an Essential Characteristic of the
Federal Court System, then state law does not get applied and federal law trumps
Hanna - adds that OD alone is not enough and must be viewed with the twin aims of Erie
o If there is a direct conflict between state law and valid FRCP then the federal rule wins
(Because of the Necessary and Proper Clause)
o Issue - SoL stops when filed (FRCP) & SoL stops when served (state law)
 OD alone not enough - the difference would need to be so great that it would affect
the initial forum selection
 OD must also be viewed in light of FS and IAoL (twin aims of Erie)
Rule - If there is no direct conflict between state law and FRCP and it is a diversity case in federal
court, then if the law is substantive or if unable to tell if substantive or procedural, the court
should apply state law as to avoid FS and IAoL unless it would impede an ECotFCS
Walker - introduced indirect and direct conflicts to Hanna
o State had 2 statutes - 1) Have to serve before SoL Runs, 2) identical to FRCP rule
 Because OK had the identical rule as the FRCP it was an indirect conflict, as opposed to
Hanna where the state law was in direct conflict with the federal law
BN v. Woods - multiple appeals sanctions
o If state laws modifies federal/FRCP laws it is a Direct Conflict
o If federal rules got rid of state law, there would be more FS so the courts must attempt to
find indirect conflicts as to no undermine state courts
Gasperini - multiple conflicts
o Federal - Shocks the Conscious
o NY - more liberal discretion to overturn jury verdicts
 Created discrepancy on amount able to recover (Substantive law) and state law should
apply to avoid FS and IAoL
o Reexamination Clause - federal appeals courts can review based on discretion of the trial
judge (ECotFCS)
Direct conflict - FRCP Wins
Not an FRCP - Not direct conflict - Substantive or Procedural? - OD? - ECotFCS?
a. .
b. .
c. If Substantive - State law applies. If the court cannot tell between substantive and
Procedural - OD
d. OD - would state or federal law have different outcomes so great FS and IAoL would be at
stake? If so apply state law.
e. Would state law impact an ECotFCS? If so federal law gets applied.
4. In Personum Jurisdiction - Personal Jurisdiction
o Notice - Long Arm Statutes
o Unfairness  Pennoyer - land seized that was bought after the judgement in a case
o 4 ways for fairnes:
1. In Rem - the property is being sued
2. Quasi In Rem - P v. D, but the property is largely involved
3. Consent
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4. Presence in state
Harris - debt treated and seized as property
General Jurisdiction - If you live in a state, you can be sued for anything in that state
Specific Jurisdiction - Can only be sued for action related to activity/actions of being in that state
MINIMUM CONTACTS o Int'l Shoe - More mobile nation than during Pennoyer
 Notice - Long Arm Statutes provide service/notice for out-of-state defendants
 Establishes Minimum Contacts:
 Must be systematic and continuous
 Suit must be related to activity in the state (Specific Jurisdiction)
 Case by case basis
 So long as there is contact with the state and it does not offend the "traditional
notions of fair play and substantial justice."
o McGe - Need Purposeful Availment with MC
 TX Insurance chose to insure a CA citizen
 Cannot have MC without PA
 Hanson - Trustee case. After the lady moved, the trustee did not chose to be bound
by the new state where she lived
NOTICE - Long Arm Statutes 4(k)(1)(A)
o Defendant myst be on notice of suit (served)
o Statutes can spell out exactly what is covered and good services or they can give all
o If it is fair, they are put on notice
FAIRNESS - MC/PA needed to detrmine fairness if not present in state
Presence
Property - IR
Property - QIR
Consent
MC+PA
Volkswagen - Car case
Need Foreseeability + Targeting
 Alone, foreseeability is not enough - cars are mobile and it is foreseeable for them to
travel to other states
 Need something targeting the state as well
MC - Inconvenient to the point of unfairness
 States are equal sovereigns and their boarders give them rights to hear cases
regarding their jurisdiction
Calder - Newspaper Case
Similar to McGee but adds that 1 intentional act can be enough for MC
Burger King Contracting is enough to show MC.
There is a presumption that PJ is reasonable in the form. But just because it is fair does
not mean it is reasonable. Factors showing unreasonableness are:
1. Buren on the defendant to defend in that state
2. Forum state's interest
3. Plaintiff interest in convenience and effective relief which might invoke CoL
considerations
4. Judicial economy by interstate cooperation
5. Shared interest of public policies
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 Almost never work. Only case where it has worked was Asahi
Asahi - 2 foreign companies left after original suit was settled
o It was unreasonable to have two foreign companies duke it out in US court
Stream of Commerce Rationale:
o Brennan - Goods in SoC it is foreseeable to end up anywhere, thus enough to equal MC
o O'Conner - Need Foreseeability + Factor
1. Ads in forum
2. Design product for the market in that state
3. Established regular channels for providing advice to customers in the forum (help line)
4. Marketing through a distributor who is the sales agent for that state
Nicastro - British machine case
o Neither the manufacturer or the distributor targeted NJ
o So no Specific Jurisdiction?
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PJ Expanded
o Bulge Jurisdiction - 4(k)(1)(B) - parties who are joined by rules 14 or 19 and within 100 miles
of the state boarder
o Federal Question Claims - 4(k)(1)(C) - federal statutes giving nation-wide PJ
 Antitrust claims
 Securities
 Bankruptcy
RECAP/IN SHORT
 Notice - Long Arm Statute
 Fairness - only need 1
1. Presence (long arm statute not necessary)
2. IR
3. QIR - I or IIA
4. Consent
5. MC + PA (1 intentional act is enough)
 SoC/SoC+ - both still good law
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In Rem/Quasi In Rem
o Pure In Rem - property v. the world (often titled In re _______)
 Good law
 Forfeiture or Probate cases
o Quasi In Rem I - Plaintiff v. Plaintiff for ownership interest in property
 Good Law
 Quiet Title actions or Competing interests in property
o Quasi In Rem II A - Suits directly linked to property
 Good Law
 Negligence - property is directly linked/plays a large factor in the suit
o Quasi In Rem II B - Action unrelated to the property
 Not Good Law after Shaffer
Shaffer (overruled Harris)
o QIR IIB is no good because it goes around MC and specific jurisdiction
 Suit must be related to actions in the state
Burnham - CA divorce Case
o If present in state there is no need to have MC
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Goodyear - wrongful death suit
o EU and US tire companies are different companies and can only be sued in the PPoB state or
where they are incorporated
5. Venue - governed by 1391
o a, b, c2, & d (focus)
 B1 & B2 operate together and simultaneously (can choose any jurisdiction between 1
and 2)
 B3 operates ONLY if no venue under B1 and B2 (Last resort)
 D - if a state has multiple districts, it treats each district as its own state
(restricts/reigns in available jurisdictions) (ex: if accident in Miami, FL, can't bring suit
in the Northern District of FL)
 1404 - move from Correct to Correct Venue
 FNC - Initial Correct venue's CoL Rules govern
 1406 - moves from Incorrect to Correct Venue
 FNC - Correct venue's CoL Rules govern
 Choice of Law Rules - determines which state's substantive law will be applied (differs
by state).
 Forum Non Convenience - FNC
 Can dismiss if forum is inconvenient
 CL doctrine to be done at the court's discretion
 Only way to prevent FNC is if the foreign court's remedy is completely
nonexistent, not just severely diminished
 Piper  Removal cures all venue defects.
 Piper - filed a 1404 because they did enough business in CA to have MC
 Harzel - filed a 1406 because they did not meet MC
 Private v. Public Interest factors
6. Right to a Jury Trial
o Comes from 7th Amendment (Constitution) and FRCP 38
o Historically it has been split into Equity & Law
 Now - ALL actions are Civil Actions (FRCP 2)
o Beacon - Declaratory Judgement Act Case (a way around the well pleaded complaint rule)
 No federal CoA until Beacon's countersuit
 An equitable claim cannot prevent a jury trial
o Dairy Queen  The equitable claim may not prevent a constitutional right to a jury trial. Claims at
law must be decided first, even if they will impede the equity claim.
7. Res Judicata or Claim Preclusion - Judicial Doctrine
o Bars litigation of claims/defenses arising out of the same transaction and occurrence in a
subsequent action after a final judgment on the claims
 Elements:
 Final Judgement
 On the merits
 Jury trial and verdict
 Failure to Prosecute - FRCP 41
 Default Judgements
 12(b)(6) - Granted with leave to amend & when 21 days lapse
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Attempting to litigate same claim from previous action in another action or
attempting to litigate claims that should have been brought in previous action
 Same parties in second action or parties in privity with each other
 Purpose is a way to avoid inconsistent outcomes and give integrity to final
judgements
 Avoids harassment of a defendant
 FRCP are flexible to join and amend so if it could/should have been brought, it is
probably waived
 RJ prevents a collateral attack on the final judgement instead of a direct attack
o Factors for granting RJ:
 Same case with no new facts
 Different case title but same case with the same facts (i.e. negligence v. strict liability
w/ the same operative facts)
 Same operative facts that should have been joined with previous claim
 Future Damages - Depends on jurisdiction - future damages should be calculated into
judgement precluding suits for injuries manifesting in the future from the incident
 Lack of SMJ - Depends on court - Some believe it goes against finality of judgements
but at the same time courts need it and it can be raised at any time.
o Factors for continuing second litigation:
 Different suits/claims (i.e. negligence claim w/ awarded damages & then execution of
judgment claim)
o Manego - same case; added a party but no new facts; and, lack of diligence during discovery
all were part of granting RJ
o Marresse - Exclusively federal claims cannot be blocked by RJ if other claims with same
operative facts were heard in state court
 The preclusive effect of a state law judgement on subsequent federal court action is
determined by state law
 Full Faith and Credit - Binds federal courts to state decisions but not the other way
around
8. Collateral Estoppel - Bars relitigaion of issues in a subsequent action if they have already been
litigated in a previous action even if the identical issues come from different transactions and
occurrences
o Elements - Need all 4:
 First case ended in a final judgment on the merits
 Same as RJ
 Same issue in first case and second case
 Issue must have been actually litigated and decided in the previous action
 The litigation of the issue must have been actually necessary to the court's judgment
 Same parties most of the time?
o Changes in a rule of law changes the issue. If the issue changes it cannot be precluded
o Little - Bus Crash case - If a previous case rules you are partially negligent, in a contributory
negligence state, you cannot bring a negligence suit against the other party.
 Contributory Negligence
D can win 2 ways:
If P was negligence - D wins
If D was not negligent - D wins
P can only win 1 way:
P must not be negligent & D must be negligent
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Hardy - Asbestos Case
 If the court cannot establish it is the same issue, then it cannot be precluded
Halpern - Bankruptcy Case
 If it was unnecessary to resolve an issue in the previous trial, then it cannot be
precluded from the second trial
If multiple factors were ruled on in the judgement, no single factor was
"actually necessary" to the judgment
Mutuality
 Suit 1 - A v. B
 Suit 2 - A v. B (or C if in privity)
 Nonmutual CE - different parties
Can be used offensively or defensively (4 or 3 factors):
Whether the estopped party had a strong incentive to litigate in the suit
(aka preventing shareholder suit)
Whether procedural opportunities to raise the issue are equal in first
and second suits
Both cases were in federal court so had opportunity
Prior inconsistent judgments
No prior inconsistent judgments
Prevents freeloaders - should plaintiff have joined in 1st suit
Shareholders are not allowed to join SEC suits so in this case
offensive use is okay
Need the fourth factor to use as an offense
 Taylor - Privity:
Agree to be bound by judgment (efficiency)
Property owner v. Person for easement. If land is sold, the new owner
is bound to the outcome of the previous case about the land.
Adequately represented persons
i.e. class actions, suits brought by fiduciaries, and executors
Manufacturer 1 v. Retailer (for patent infringement). Retailer got goods
from Manuf. 2, who produced goods and has a stake in outcome so they give $
to Retailer.
Attempts to relitigate via proxy.
Widow and sole beneficiary loses a suit against company seeking
damages alleging husband died bc of company's negligence
Then estate sues alleging the same
Probate and In Rem suites
If you have a claim but do not show up, then it is conclusive
 The general rule therefore is that you are only bound by a judgment unless you were
party to the litigation in which the judgement was rendered execpt if in privity
Nonmutual
 A v. B - rent not paid and the court rules lease is unenforceable and thus rent cannot
be forced
 A v. C - for rent not paid and C uses A v. B as a shield or defense (NMCE)
 D v. A - to recover rent paid under the unenforceable lease as a sword or offense
NMCE
Bernhard - NMCE - Bank case
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NMCE was allowed because the estopped party had a full and fair opportunity to
litigate the matter
Blonder-Tounge - Patent case
 Because patent was invalid, the second defendant could claim CE as a shield
Parkland - SEC case
 Offensive use of NMCE is not precluded as a matter of law and may be permissible
when joinder of the person in the 2nd suit was inconvenient or impossible in the 1st
action and it would not be unfair to the defendant
Because shareholders cannot join SEC cases and they met all 4 factors it
was a good suit