I. JURISDICTION AND RELATED MATTERS
 Choice of a court (1st choice a lawyer has to make) is arguably one of the most important
 Attorney alleges jurisdiction, and the court confirms it Rule 8a1
Seven Questions to Determine Proper Jurisdiction
1. Does the court have subject matter jurisdiction? (power to hear dispute)
2. Does the court have personal jurisdiction? (power over person or property)
3. Has the defendant been given proper notice and an opportunity to be heard?
4. Has the defendant been served with process properly?
5. Does the court have venue?
6. If the action is in a state court, can it be removed to a federal court?
7. Have any of the preceding six issues been waived?
a. Subject matter jd can’t be waived; the others can, and if they aren’t asserted, they’re gone
Jurisdictional Predicates
 In personam: Jurisdiction over the person herself. A judgment against this person creates a personal
obligation for the full amount of the judgment.
 In rem: Jurisdiction over the property in an action to determine the ownership of the property itself.
 Quasi in rem I: Jurisdiction over the property in an action to determine the ownership of the property itself
as between and among the parties to the case.
 Quasi in rem II: Jurisdiction over the property owned by a party to a dispute that is unrelated to the
ownership of the property. A judgment in this case is valid only to the amount of the value of the property.
I. PERSONAL JURISDICTION
Three Questions to Determine Personal Jurisdiction
1. Is there a traditional base of personal jurisdiction?
2. If there’s no traditional base, does the long-arm statute apply?
3. If no traditional base but long arm statute applies, is its application Constitutional?
TRADITIONAL BASES OF JURISDICTION:
 Territoriality/Sovereignty: state has exclusive jd over people and property within its borders (established in
Pennoyer v. Neff, reaffirmed in Burnham)
 Burnham v. Sup. Ct. Ca.: Personal jurisdiction can be exercised over a nonresident who was personally
served with process while temporarily in that State, in a suit unrelated to his activities in the State
o All 9 justices agreed that transient jurisdiction is constitutional, they did not agree on
rationale.
 Scalia (+3) approach: based on historical practice (Pennoyer supplemented with
Int’l Shoe)
 Brennan (+3) approach: argued that a transient avails himself of significant
benefits provided by the state. (Int’l Shoe and minimum contacts replace
Pennoyer).
 Domiciliary: state has jurisdiction over its domiciliaries regardless of where they are located
o You don’t lose domicile until you acquire a new one
 Physical presence
 Intent to remain indefinitely
 Agent: if an agent is acting in the interest of the individual then he carries jd
o If state can grab agent, is effectually grabbing the individual
 Consent: methods of consent to personal jd 
o Express Consent  consent by contract (contract of adhesion) - (Carnival Cruise Lines)
 Last word on jd comes out strongly in favor of forum selection clauses
 Upheld for aliens in Bremen v. Zapata
a. A federal court sitting in admiralty will enforce a foreign forumselection clause if enforcing that clause is reasonably just.


Court leaves some wiggle room to rethink if contractually selected forum is irrational—
“judicial scrutiny for fundamental fairness”
 Implied Consent  special exception to territoriality in the interests of the public safety, limits
implied consent to proceedings deriving from accidents or collisions on highway
 Driving in a state = implied consent to appointment of the state registrar as agent for
receipt process in all actions arising out of an accident or collision (Hess v. Pawloski)
 Consent by Court:
o Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee: a defendant in a
civil action may submit to the jurisdiction of a court through many means, including
failing to follow discovery orders.
 The defendant refused to comply with discovery requests that might show that
the defendant had sufficient minimum contacts.
 The court sanctioned the defendant under rule 37(b)(2)(A) = which allows a
judge to assume a fact that is at issue when a party to a suit refuses to comply
with discovery orders.
 Forum Selection Clause:
o A valid and exclusive forum selection clause confers personal jurisdiction on the
parties in the chosen forum
o A valid and exclusive forum selection clauses precludes the exercise of personal
jurisdiction in every other forum.
Consent is also given when def fails to assert it as a defense (Rule 12b2 must be asserted early in the trial)
Corporate Presence: jd in state where incorporated and state where doing business
EXPANDED BASES OF PERSONAL JURISDICTION:
Minimum Contacts Tests 
 Minimum contacts tests do the following (WWVW v. Woodson):
o Protects the defendant from litigating out of town
o Acts to ensure that the states do not reach beyond their status of co-equal sovereigns.
1. Continuous and systematic contact with the state + a cause of action that arises from those contacts 
always have general jurisdiction!
a. International Shoe is a clear example, Burger King may also fall into this category
2. Continuous and systematic contact with the state + a cause of action that doesn’t arise from those contacts
 always have general jurisdiction! If have continuous and systematic contact, it’s immaterial where the
cause of action lies
a. i.e. Perkins
3. Isolated and sporadic contact with the state + a cause of action that arises from those contacts  possibly
have specific jurisdiction, depends on the nature of the conduct
a. i.e. Hess v. Pawloski—most of the cases we look at our Category 3
4. Isolated and sporadic contact with the state + a cause of action that doesn’t arise from those contacts 
never have jurisdiction!
a. i.e. Hanson v. Denckla, Helicopteros
LONG-ARM STATUTES:
 Permits state to obtain jd over persons not physically present in state at time of service
 Basic exam question  read the statute and determine if it is applicable or inapplicable
o If it is applicable, turn to 3rd question (the meat of the answer!)
1.
SPECIFIC/SINGLE ACT JURISDICTION  subject matter of the action must relate/have a specific
connection to the forum state (long-arm statutes)
o International Shoe: minimum contacts with the forum state (some relationship with forum, some
activity with forum)  direct foreseeability, enough to equal fair play and substantial justice
i. If standard not met, jd violates def’s 14 th Amendment right to due process
ii. The federal test for personal jurisdiction under the Due Process Clause of Fourteenth
Amendment authorizes a court to exercise jurisdiction over a non-resident defendant only
if the defendant has “certain minimum contacts with [the state] such that the maintenance
of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int'l
Shoe Co. v. Washington,
o Gray v. American Radiator: (1) was tortious act committed in forum state? (2) if yes, is the
assertion of jd constitutional?
i. Court says tortious act occurs where the consequences of the act are felt (this isn’t the
inevitable reading—can be viewed either way)
ii. Constitutionality determined based on Intl Shoe and 14th Amend requirement
iii. IL Sup. Ct. upheld the jurisdiction because the valve co’s commercial transaction enjoys
benefits from IL.
1. The facts that the defendant indirectly benefits from doing business, doesn’t
make it any less essential to the conduct of his business and where a cause of
action arises from alleged defects. “To say that the cause of action arises is
sufficient contact with this state.”
o Keeton v. Hustler: Personal jurisdiction is proper over a nonresident magazine in any state where
that corporation has sold and distributed a substantial number of copies.
i. the plaintiff in a case has never been required to have minimum contacts in a state to bring
suit in that state. (Keeton (NY) sued Hustler (OH w/ nationwide distribution) in New
Hampshire state court for libel under diversity jurisdiction).
ii. Hustler’s “regular circulation” of its magazines within the state of New Hampshire
constitutes sufficient contacts to justify the assertion of person jurisdiction over it for a
libel claim related to statement made in the magazine. By doing business in New
Hampshire, Hustler had purposefully availed itself of the state’s protections.
iii. SCOTUS upheld personal jurisdiction not only as to her injury in New Hampshire, but
also in all states, as a result of the magazine being distributed in many states.
iv. SCOTUS didn’t hold Hustler subject to suit on all possible causes of action; just in the
instance when part of their general business was being carried out.
o Calder v. Jones: a state court can assert personal jurisdiction over the author and editor of a
national magazine which published an allegedly libelous article about a resident of that state, and
where the magazine had wide circulation in that state.
i. Shirley Jones (CA) sued Calder (FL) for libel in CA state court. SCOTUS held that
because National Enquirer had a large circulation in CA and the Ms. Jones would feel the
effects of the article in CA, that was sufficient to constitute PJxD.
ii. Personal jurisdiction is proper over a defendant where the defendant has certain minimum
contacts such that the maintenance of the suit does not offend traditional notions of fair
play and substantial justice.
iii. See Calder Effects test under PJxd and Internet
o Walden v. Fiore: personal jurisdiction may not be exercised over a nonresident civil defendant if
the defendant’s sole contact with the forum state is knowledge that the defendant’s tortious
conduct committed outside the forum state has an effect on the plaintiff in that state.
i. Plaintiff’s (NV) sued Defendant (GA) in NV Fed court for confiscating their funds at the
ATL airport. Plaintiffs argued that jurisdiction was proper because the deprivation of their
funds in Atlanta had effects in Nevada.
ii. SCOTUS reversed: it’s the defendant, not the plaintiff, who must make contact with the
forum state. The defendant never made any contacts with Nevada other than knowledge
that the plaintiff’s lived there.
Stream of Commerce – Purposeful Availment/Voluntary Affiliation
o McGee v. Intl Life: jd over out-of-state def exists because def took actions that were purposefully
directed towards the forum state (knowingly entered into a transaction with a citizen of a forum
state).
i. SCOTUS ruled that contact between the Texas insurance co. and the California resident
was enough to meet the minimum contacts test in establishing P Jxd.
o Hanson v. Denckla: minimum contacts must be volitional
i. “unilateral” activity” in Hanson distinguishes from McGee; unilateral activity of plaintiffs
who claim relationship with nonresident defendant cannot satisfy requirement of contact
with the forum state. Unilateral activity does not constitute purposeful contact with the
forum state.
ii. Distinguishing McGee, the trust administration that Donner had might be compared to the
mailing of premiums in McGee. BUT there is not evidence that the trustee (DE bank)
performed any acts that bear similarities to the agreement in McGee.
iii. SCOTUS agrees that Florida does not have jurisdiction over the DE bank. When Mrs.
Donner moved to Florida, that was her choice, not the DE bank’s choice. DE bank did not
really do business in Florida.
iv. Def must purposefully avail himself of the privilege of doing business in the state,
thereby invoking the benefits and protections of its laws
o World-Wide Volkswagen: foreseeability is not enough  def’s conduct and connection with
forum state must be such that he should have reasonably anticipated being haled into court there
i. Affirms minimum contacts requirement, but emphasizes concern for def in light of other
fairness factors:
1. Forum state’s interest in adjudicating the dispute (McGee)
2. Plaintiff’s interest in obtaining convenient and effective relief (Hess)
3. Interstate judicial system’s interest in obtaining the most efficient resolution of
controversy
4. States’ shared interest in furthering social policy
ii. Courts say that WWVI and Seaway did not purposefully avail themselves of the laws and
protections of doing business in the state of Oklahoma.
o Kulko: reaffirms Hanson v. Denckla, and states that even if the long-arm statute applies, there
must be purposeful availment of the benefits and protections of the state’s laws.
i. “Foreseeability that is critical to due process analysis is not the mere likelihood that a
product will find its way into the forum state. Rather, it is that the defendant’s conduct and
connection with the forum state. Rather, it is that the defendant’s conduct and connection
with the forum state are such that he should reasonably anticipate being haled in court
there.”
o Burger King: plaintiff’s burden to show contacts, then burden shifts to def to show lack of
reasonableness
i. Once a court has concluded that minimum contacts exist between the forum state and the
defendant, the court must consider whether fair play and substantial justice would be
offended if the defendant must defend himself in the forum state.
1. The requirement that a defendant have “minimum contacts” with the forum
ensures that a non-resident defendant will not be forced to litigate in a
jurisdiction as a result of “random, fortuitous, or attenuated contacts” with the
forum or the unilateral activity of the plaintiff; the defendant “should reasonably
anticipate being haled into court” there
ii. Among other things, the contract Rudzewicz signed with Burger King acknowledged that
BK HQ in Florida regulated the franchise. Therefore, it was not unreasonable to grant FL
personal jurisdiction over Rudzewicz.
iii. Jurisdiction is proper where the contacts proximately result from actions by the defendant
himself that create a substantial connection with the forum state.
iv. An individual contract with an out-of-state party alone is not sufficient to establish
minimum contacts, however, Rudziwcz had enumerated other contacts with the FL HQ to
justify minimum contacts.
Stream of Commerce PLUS
o Asahi Metal: is putting products into the stream of commerce enough to establish personal jd?
i. 4 justices say yes (Brennan Theory)
ii. 4 others say must be accompanied by conduct specifically directed towards the forum
(O’Connor Theory)
1. Essentially, def’s knowledge that products are sold in state may be enough, but
if contact is the only one with forum state, may still be unreasonable for def to
defend there
iii. Minimum contacts set aside and case is decided on issues of fair play and substantial
justice
o
J. McIntyre v. Nicastro: stream of commerce cannot displace purposeful availment.
i. It is not enough that the defendants might have predicted that its goods will reach the
forum state. In order to be subject to the State’s personal jurisdiction, it must purposefully
avail itself of “the privilege of conducting activities within the forum state, thus invoking
the benefits and protections of its laws.”
ii. No PJxD: Defendant McIntyre did not have a single contact with the forum state outside
of the machines.
iii. Breyer’s opinion
Electronic Commerce / Internet
o Telemedicine Solutions v. WoundRight Technologies: the Court found a lack of personal
jurisdiction because none of the Defendant’s alleged contacts – its website, facebook, twitter, and
conference-based marketing efforts – was targeted or aimed at IL.
i. 7th circuit test from Calder:
1. Intentional conduct (alleged or actual)
2. Expressly aimed at the forum state
3. With the defendant’s knowledge that the effects would be felt in the forum
ii. If a court finds that defendant’s actions meets the standard of purposeful direction, then P
Jxd may be asserted based on internet activist which do not meet the level of minimum
contacts needed for other tests of PJxD in internet cases.
o Zippo: the likelihood that general jurisdiction can be constitutionally exercised is directly
proportionate to the nature and quality of commercial activity that an entity conducts over the
internet.
i. “sliding scale test”
ii. Provides little guidance as to how much interactivity is enough to justify purposeful
availment.
1. Contrast this with Calder effects test clarification.
2.
GENERAL JURISDICTION  continuous and systematic association with forum means it isn’t
unreasonable to ask def to appear in unrelated suits there (very few general jd cases); Jurisdiction over
any claim in any lawsuit. SCOTUS in Goodyear and Daimler significantly curtailed the ability of
plaintiffs to bring large suits against big companies in any number of forum states which those companies
conducted a high volume of business.
o Perkins: establishes general jd even if continuous and systematic activity was established after the
claim arose
i. Benguet moved to OH after the claim arose; SC says OH can take case if they want to
o Helicopteros: sporadic contacts not held to be sufficient
i. Difference between contacts that “arise out of” (majority) and contacts that are “related to”
(dissent) the cause of action, when looking at general jd
ii. The mere purchases, even at recurring intervals, are not enough to warrant in personam
jurisdiction over the defendant when the cause of action does not relate to those purchases.
o Goodyear v. Brown: a court may assert jurisdiction over a foreign corporation “to hear any and all
claims against it” only when the corporation’s affiliations with the State in which suit is brought is
constant and pervasive to render it “at home” in that forum state.
i. The claim did not arise in the forum state of North Carolina and none of the type of tires
that caused the accident made it to North Carolina, the court cannot exercise specific
jurisdiction over the defendants
1. Thus, the foreign subsidiaries lacked a significant connection to North Carolina
to warrant general PJxd.
2. "A connection so limited between the forum and the foreign corporation, we
hold, is an inadequate basis for the exercise of general jurisdiction. Such a
connection does not establish the “continuous and systematic” affiliation
necessary to empower North Carolina courts to entertain claims unrelated to the
foreign corporation’s contacts with the State."
o
o
Daimler v. Bauman: a court can assert jurisdiction over a corporation if the corporation’s
affiliation with the forum state are so continuous and systematic as to render the corporation at
home in the state.
i. MBUSA is an indirect subsidiary of Daimler; they’re Daimler’s exclusive importer and
distributor in the U.S. PPoB in DE.
1. The relationship between Daimler and MBUSA is that of an independent
contractor.
ii. The 9th Circuit upheld jurisdiction by applying the agency theory to Damiler and MBUSA,
thus they attributed MBUSA’s contacts in CA to Damiler because MBUSA was acting on
behalf of Damiler in such a capacity that without, a German representative of Daimler
would’ve made contact with the U.S.
iii. The Supreme Court says that the 9th Circuit’s subjection of foreign corps to general
jurisdiction was rejected in Goodyear.
Bristol-Myers Squibb v. Sup. Ct.: for a state court to assert specific jurisdiction, there must be an
affiliation between the forum state and the specific claim at issue.
i. it is not sufficient for the defendant to have other contacts with the forum state; the
contacts must be related to the claim at issue.
ii. If the defendant’s conduct giving rise to the claim and plaintiff’s injury both occurred
outside of the state, the court likely cannot assert specific jurisdiction.
iii. Although BMS has many contacts with CA, none of those contacts is affiliated with the
nonresident plaintiffs’ claims. BMS did not design, develop, or manufacture Plavix in CA.
Thus, both BMS the BMS conduct giving rise to the claims and the nonresident plaintiffs’
injuries occurred outside of CA.
General Jurisdiction
Specific Jurisdiction
Contacts: systematic and
continuous
Maybe: GJxd might or might not
exist
Easy: SJxd likely exists
Contacts: single, isolated,
occasional, or causal
Easy: GJxd does not exist
Maybe: SJxd might or might not
exist
JURISDICTION BASED ON PROPERTY  if you can’t bring suit against a person because he is not
in that state, you can bring suit against whatever property he has there—BUT must apply Shoe
requirements!
Quasi in rem: jd over person by attaching property and treating it as the person; judgment can only be for
property
In rem: case is about property itself  state can adjudicate title and interests to any property within its
boundaries
o Shaffer v. Heitner: quasi in rem jurisdiction may only be asserted when the interests of the
persons in the property seized have sufficient contacts, ties, or relation to the state. The minimum
contacts must be evaluated based on Shoe and its progeny.
i. Plaintiff sues Greyhound in a shareholder derivative action. The suit was brought quasi-inrem by attaching the defendant’s shares (sequestration). Defendant’s challenged PJxd
arguing that the stock certificates (located in DE under situs) were not sufficient to
establish minimum contacts.
ii. Minimum contacts and notions of fair play and substantial justice now apply to property
cases
iii. Doesn’t kill quasi in rem entirely, but severely limits its use (to gap between state’s longarm statute and 14th Amend Due Process right)
3.
4.
FEDERAL COURT JURISDICTION
o A federal court has jurisdiction only if the state in which it sits would have jurisdiction.
o In diversity cases: can use state’s long-arm statute Rule 4k1A
o In federal question cases: same as above when statute is without jurisdiction provision
i. Some statutes include jd provision (i.e. wherever def is found, wherever act occurred, etc)
ii. When states have shorter long-arm statutes and there is a jurisdictional gap  Rule 4k2
federal long-arm statute applies
1. Allows nationwide service of process if there are minimum contacts with the US
but can’t get jd over def in any state, no sufficient fed court in any state
5.
ATTACKS ON PERSONAL JURISDICTION
o Direct attack: going to the forum and objecting to personal jurisdiction
i. Can be very expensive and time consuming
o Collateral attack: ignoring the notice from the out of town court; that court then enters a default
judgment against you; you would then try to argue that the non-forum state cannot use the FFC to
serve a judgment in the forum state of the defendant
i. Risky: the collateral attack only permits the defendant to raise only the issue of whether
the non-forum court had jurisdiction. She Cannot contest the merits of the plaintiff’s
claim.
CHALLENGING PERSONAL JURISDICTION:
a. State court: def is allowed to make special appearance contesting personal jd
o Some states allow def to appear to defend a quasi in rem suit without becoming subject to personal
jd
b. Fed Court: def can (and must, or he waives his right) challenge jd in an answer or a pre-answer motion.
II. SUBJECT MATTER JURISDICTION
Federal Courts
BASIC DOCTRINE:
 The party seeking to invoke the jurisdiction of a federal court has to make an affirmative showing that the
case is within the court’s subject matter jd
 Federal courts are courts of limited jurisdiction, authorized to hear 9 categories of subject matter
 Constitution, Article III, §2  the judicial power of the US shall extend to all cases:
o Arising under the Constitution, laws of the US
o Between a state and citizens of another state
o Between citizens of different states
o Between a state, or citizens thereof, and foreign states, citizens, or subjects
 No matter when the deficiency of subject matter jd is noticed, the suit must be stopped and dismissed Rule
12h3
FEDERAL QUESTION JURISDICTION:
28 U.S.C. 1331 states that the cause of action must arise under the Constitution, laws or treaties of the US
 Watch out for questions that invoke federal language, but arise under state law
o Anticipated federal defenses aren’t part of the cause of action, so don’t create federal jd—federal
subject matter must be part of the original complaint (Mottley)
o American Well Works v. Layne: a suit arises under the law that creates the cause of action
 Am. Well works sued Layne for slandering and falsely claiming that Am’s patent were
infringements of Layne’s pumps. Am. Well sued in Arkansas state court. Layne removed
the case to federal court on the grounds that it was based on federal patent law.
 Because the claim was created by state law, the case did not arise under federal law.
 SCOTUS says that no part of the case involved proving anything about the patent
(therefore, no federal law). The presence of the patent is merely a piece of evidence, not
the cause of action.
 No 1331 jurisdiction
o Smith v. Kansas City Title.: for purposes of federal question jurisdiction, a case arises under the
Constitution if a plaintiff’s right to relief depends on the court’s interpretation of the Constitution.
 Smith brought suit against KC Title in MO fed court to prevent the fund from investing in
farm bonds issued pursuant to the Federal Farm Loan Act. The Act declared all farm-loan
bonds to be lawful investments, however, Smith disputes the constitutionality of this.

SCOTUS says Smith is seeking a ruling declaring that the Act is unconstitutional and that
therefore, the investment is invalid. Smith’s right to relief depends on the Court’s
determination of whether the Act is constitutional.
 1331 jurisdiction
o Moore v. Chesapeake & Ohio Ry:
 Plaintiff sued his employer under state employer’s liability law. Under that law the
employer could not claim that the plaintiff was guilty of contributory negligence if the
employer had violated a statute enacted for the safety of employees.
 The plaintiff claimed the defendant violated a federal act.
 This is a state created claim in a case to be decided by the construction of federal law.
 No 1331 jurisdiction
o Merrell Dow Pharmaceuticals v. Thomson: federal jurisdiction may be proper in instances where
there is a federal issue in a state cause of action, or when the suit arises under a federal law that
creates a cause of action.
 Plaintiffs alleged a variety of state law claims, including negligence per se.
 They argued defendants were guilty of negligence per se because they violated the
federal FDCA by “misbranding” Bendectin.
 In this case, FDCA, the federal statute involved, does not create a private right or cause
of action. Therefore, there is no federal question, and ultimately no federal jurisdiction.
 No 1331 jurisdiction
o Grable v. Darue: a federal court may have jurisdiction over a state cause of action, if (1) the case
necessarily raises a federal issue, (2) the federal issue is actually disputed and substantial, and (3)
federal jurisdiction would not disrupt the balance of labor between state and federal courts.
 IRS seized Grable’s property for back taxes. Grable argued that he did not receive proper
notice of the sale because he was not personally served in the manner required by 26
U.S.C 6335 but received it via certified mail.
 Darue removed to federal court arguing the FQ was present because it involved
interpreting federal tax law.
 SCOTUS: a state-law cause of action may give rise to federal question jurisdiction, if the
case relies on the application and analysis of a federal law.
Federal Jurisdiction without Federal Cause of Action (the Grable Test)
1) “Essential Element” (Motley)
i. Mottley- the well pleaded complaint rule
If it is only a federal issue on affirmative defense or counter claim= not federal
2) Contested (Parties should be fighting about it)
i. Does the dispute turn on a matter of law. [Grable] yes = Federal Jurisdiction. No = no federal
jurisdiction.
ii. Question of fact did not get jurisdiction (Empire and Merrel Dow)
3) Substantial Federal Issue (especially constitutionality)
- Can the federal issue be enforced by a private right of action (Merrell Dow; Empire)?
- Does the federal issue implicate a significant federal interest, such as federal taxation (Smith, Grable;
but see Empire) or just an issue traditionally assigned to the states (Gunn)?
- Is the federal issue triggered by an action of the U.S. government (Grable)?
- Does the dispute turn on a factual issue (Empire)?
- Is there a need for uniformity or immediate error correction (Gunn)?
4) Congressional Approved Division of Labor
- Would it lead to a flood if state law cases in Federal Court?




Well-pleaded complaint rule: must determine where the cause of action arises solely from plaintiff’s
complaint
Exclusive fed question jurisdiction: certain claims must go to a federal court (like Copyright and Patent
Act)
Concurrent fed question jurisdiction: more common—either fed or state court for most claims
No jurisdictional amount requirement for fed question jd
DIVERSITY JURISDICTION:
1.
2.
Provided in Article III and USC §1332
a. Article III: judicial power shall extend to all cases arising between citizens of different states
i. SC is only judicial power created by Constitution (inferior courts created by congress)
ii. Congress can establish rules to define broadness of jd (i.e. amount in controversy)
b. §1332: provides neutral forum for people of different states to litigate in
Several rules govern grants of diversity jurisdiction 
a. Rule 1: There must be complete diversity of citizenship
i. Not explicitly stated in §1332, but has been the rule since Strawbridge v. Curtiss
ii. Strawbridge v. Curtiss: gives use the complete diversity rule: diversity jurisdiction only
exists if all plaintiffs are of diverse citizenship from all defendants.
iii. Every person on left side of v must come from different state than everyone on the right
b. Rule 2: Citizenship for each party is determined on day of institution of the action
i. Court doesn’t rely on pleadings, but rather on parties’ real interests in the litigation
ii. Court will not take jurisdiction where party was “improperly joined” to obtain jd
iii. For diversity purposes, we have jurisprudence for fixing citizenship (unrelated to regular
definition of citizenship) 
iv. Mas v. Perry: a party is domiciled in the state where her true, fixed, and permanent home
is located.
1. The plaintiffs (PL 1 – MS; PL 2 – France) attended LSU, briefly lived in IL,
then moved back to LA.; Defendant (LA). The couple filed suit in federal court
in LA on the basis of diversity.
2. To change where one is domiciled, a party must both take up residence in a
different location and intend to stat at the new location.
c. Rule 3: Four sub-rules to determine citizenship of the parties
i. Natural Persons (§1332a): citizenship is equivalent to domicile
1. Presumed to have same domicile since birth, unless we (1) physically change
our state and (2) plan to remain there indefinitely (“center of gravity test”)
2. Can have multiple residencies, but can only have citizenship in one state
3. Need both US and state citizenship for diversity of citizenship
a. Permanent resident aliens: citizen of state of residence
b. “Man without a country”: no diversity jd
4. Grupo Dataflux v. Atlas Global: if a federal court lacks subject matter
jurisdiction at the time of filing because of a lack of diversity under 28 U.S.C.
1332, a party’s post-filing change of citizenship will not cure the defect.
a. The time of filing rule provides that jurisdiction is based on the
circumstances at the time of the lawsuit’s filing.
ii. Corporations (§1332c): citizens of both state where incorporated and state of principal
place of business
1. To determine principal place of business, apply 1 of 3 tests 
a. “Nerve Center Test” – where officers and corporate HQ exist
b. “Muscle Test” – where bulk of manufacturing is done or bulk of
services are rendered
c. Combination of the first 2 tests
2. Hertz v. Friend: a corporation’s principal place of business, for federal diversity
jurisdiction purposes, refers to the place where the corporation’s high level
officers direct, control, and coordinate the company’s activities.
a. 3 considerations that support the company’s nerve center being its
principal place of business:
i. The plain language of the federal diversity statute supports it
ii. The “nerve center” approach is simple and easy to apply
iii. The federal statute’s legislative history offers supportive
guidance
iii. Unincorporated Associations: the business is considered a citizen of all states of which its
members are citizens. 1331(c)(1) does not apply to unincorporated business associations
1. Includes labor unions, partnerships, political parties, charitable organizations,
etc
2.
3.
d.
Rule has the effect of reducing diversity of citizenship claims with these groups
Belleville Catering v. Champaigne:
a. LLCs are citizens of every state if which any member is a citizen.
iv. Representative Actions (§1332c2): citizenship determined by looking at the
representative, not the entire represented group
1. Includes infants, incompetents, the infirm, deceased, shareholders, members of a
class
2. Lawyers try to create/destroy diversity in selecting the representative(s)
3. Class Action Fairness Act: didn’t pass, but would have allowed all class actions
to be moved to fed court if minimal diversity exists (effectively would have
moved them all)
Rule 4: Amount in controversy must exceed $75,000
i. Amount in controversy must exceed $75K exclusive of interest and costs (§1332a)
1. Plaintiff may aggregate claims provided they arise from the same common
nexus (Rule 18, §1367b), and provided it doesn’t destroy diversity
a. Single plaintiff/def: same case or controversy, aggregate
b. Single plaintiff/def: disparate events, usually aggregate
c. Different plaintiffs: no aggregation if they have separate and distinct
claims; but when they unite to enforce a single title or right, in which
they share a common and undivided interests, they may aggregate
ii. Court accepts plaintiff’s claim for relief unless they are convinced to a legal certainty that
plaintiff can’t recover amount claimed
SUPPLEMENTAL JURISDICTION (§1367):
§1367 only applies to subject matter jd—doesn’t satisfy personal jd or service of process
Codified the seminal case United Mine Workers v. Gibbs  Courts have discretionary power to hear
jurisdictionally-insufficient state claims deriving from a common nucleus of operative facts in which there is a
substantial federal issue
 §1367(a): grants supplemental jd over all claims that form part of the same case or controversy under
Article III
o “Case or controversy” embraces everything within a common nucleus of operative fact (CNOF)
 §1367(b): prohibited use of supplemental jd when the case is based solely on diversity jd, and the
jurisdictionally insufficient claim is by a plaintiff against persons made a party under (defendants can
bring in these 3 categories):
o Rule 14: third-party defendants
 Defending party can add another third party defendant, for the purpose of shifting
liability to that party. A->B then A-> B ->C. C is not liable to A only to B
 Court must have jurisdiction over impleaded party (personal etc.) however likely to
qualify under supplemental jurisdiction, as section 1367(a) explicitly allows for it.
 Third Party Defendants May:
 Bring claims against other parties
 Bring compulsory counterclaims
 Bring more co parties
 Bring a claim against the original plaintiff
 Can implead another party -> 4th party.
o Rule 19, 20: permissive and compulsory joinder
o Rule 24: intervention
 If def’s counterclaim is compulsory under Rule 13a (same T&O), then court will allow
ancillary jd over the counterclaim
 If counterclaim is permissive under Rule 13b, it will not
o Prohibition of supplemental jurisdiction in diversity cases applies only to claims asserted by
plaintiffs or parties subsequently joined on plaintiff’s side (1376(b)(3))
 §1367(c): grants district courts discretion to decline to exercise supplemental jd if:
o State-based claim is novel and complex, or it is really the guts of the action
o Federal question claim has been dismissed
1367(d): is to provide a savings clause for claims that are timely filed in federal court and later dismissed.
Subsection Metaphor
Discretionary? What it means
1367(a)
Granteth
No
1367(b)
Taketh away No
Takes away supplemental jurisdiction if conditions met
1367(c)
Punteth
Yes
Discretion to dismiss otherwise permissible supplemental claims
1367(d)
Saveth
No
Bypass statute of limitations if timely filed claim is later dismissed
Grants supplemental jurisdiction if conditions met
 Must establish original, subject matter jurisdiction before you can establish supplemental jurisdiction!
CASE HISTORY UP TO §1367:
 United Mine Workers v. Gibbs: Gibbs brought suit against UMW and alleged (1) claim under §303
(completely federal) and (2) common law tort claim (state law) [pendent claim jd]
o Prior to this case the state claim would have to be tried separately, in state court (no federal issue
and no diversity of citizenship to move it to fed court)
o Court overruled Constitution to allow Gibbs to try both claims together in federal court
o Impact  supplemental jd granted when there is a “common nucleus of operative fact” and cases
would normally be triable together (i.e. not murder + divorce)
 CNOF abandons T&O (“transaction and occurrence” test created by Rule 13a)
 CNOF is about trying like things together
 If a claim has CNOF with ind. Claim (SMJ), jurisdiction is proper, BUT, there is a series
of discretionary factors under which a court with power to hear the claim might decide
not to. Reasons not to:
 The state law dominates the litigation
 If trying the supplemental claim with the independent claim would confuse the
jury.
 Owen Equipment & Erection Co v. Kroger: SC refuses to allow pendent jurisdiction for additional parties
(here under def’s compulsory counterclaim), says independent jd is required for new parties [pendent party
jd]
o Convenience of litigants and judicial economy cannot justify extension of supplemental jd over
non-diverse defendants
 Finley v. US: ruling that ultimately led to enactment of §1367
o Finley brought partial diversity suit (original claim was under federal statute, claim was amended
to include state-law tort claims)
o SC ruled that plaintiff had to choose (No supp jxd)—pursue state-law claims in state court or
pursue claim against US in fed court  Congress did not explicitly state that FTCA claims could
be heard with supp jxd claims.
 SC essentially said they know this isn’t the right solution—invited Congress to rule
otherwise
 Within one year, §1367 was enacted
III. NOTICE AND OPPORTUNITY TO BE HEARD
NOTICE REQUIREMENTS:
c. Mullane v. Central Hanover Bank: Notice must be reasonably calculated under the circumstances to
give actual notice, and must afford a reasonable time for those interested to appear
o When they reside outside of the state and their names and addresses are available, notice by
publication is insufficient.
d. Groups to be identified and provided notice appropriately:
o Known beneficiaries (address known)  direct notice (by mail in this case) is required
o Unknown beneficiaries (changed address, beneficiary died)  use due diligence to find class
members; if you can’t then publication may be okay—reasonable effort to give notice needed
a.
6.
o Contingent interests: future beneficiaries  get no notice, because not currently vested
Whether proper notice was given is a fact-specific analysis of whether the method was reasonably
calculated under the circumstances to give actual notice
o What matters is the appropriateness, not whether or not def actually got notice
Affirmed in Dusenberry v. U.S.: notice need only be reasonably calculated to apprise the parties.
IV. SERVICE OF PROCESS
Must follow the rules of the state or Rule 4  reasonably calculated under the circumstances to succeed
(Mullane)
 Only once a court has determined it has personal jd can it effect valid service of process outside the state
 You can’t entice/trick people into the state to serve process (Tickle v. Barton, Wyman v. Newhouse)
 No immunity from service of process if voluntarily in state (even if in prison) (Sivnksty)
o But court will sometimes immunize a party from service of process:
 Witnesses, parties, and attorneys who come to a state to participate in a lawsuit are often
granted immunity from service of process in other suits
 Immunity may not be extended to a plaintiff who voluntarily enters the state to further his
or her own interests by bringing an action there
 State methods vary  most common was to deliver summons and complaint to def in hand or vicinity
o Now all states recognize substituted service
METHODS OF SERVICE:
1. Personal Delivery
a. Natural persons: in the hand of the def, served at his house or usual place of abode
b. Artificial entities: service can be delivered to an officer or agent of the entity (some dispute about
who qualifies as such an agent)
2. Service by Mail (form of substituted service) – must be certified mail
a. Rule 4d  letter sent with copy of the complaint and a waiver; def can waive process, but if
chooses not to (or doesn’t respond), he will be served in person and charged for the cost of hand
delivery
3. Service on a Person Residing in Def’s Dwelling (form of substituted service)
a. Rule 4e2  service must be left with a person of suitable age and discretion who resides at the
dwelling
4. Delivery to an Agent Authorized by Appointment (form of substituted service)
a. Rule 4d1  service may be provided to an agent if there is evidence that def authorized the agent
i. Szukhent: party may appoint an agent contractually even when he doesn’t personally
know that agent, provided the agent promptly accepts and transmits notice (even if not
required to do so)
5. Publication
a. Fed Rule 4 doesn’t authorize service by publication
i. But Rule 4e1 says fed court can use service rules in state where it sits or where service is
effected
b. State statutes provide that service may be made by publication when plaintiff has demonstrated
that def can’t be reasonably served by any other method
c. Notice by publication is rarely acceptable—only if can’t get to individual by any other method,
and if reasonable investigation fails to reveal an address
6. Service on Artificial Entitites
a. Rule 4h  authorizes service to an officer, managing agent or general agent when def is a
corporation, partnership, unincorporated association, etc that is subject to suit under a common
name
7. Class Actions
a. Sometimes publication + actual notice to a sample of class members suffices
TERRITORY – Rule 4k1
 For both diversity and fed question cases, service of process may be made only (1) within the territorial
limits of the state in which the district court sits, or (2) anywhere else permitted by the state law of the state
where court sits


Rule 4k1B  service of process permitted within 100 mile radius of district court, but only applies where
out-of-state parties brought in as additional parties to an already pending action
o Valid parties are: 3rd party defendants and “indispensable parties”
Congress can provide for nationwide service of process in certain types of cases
RETURN OF SERVICE
After process-served has delivered the papers, she must file a return, which should disclose enough facts to
demonstrate that def has actually been served and given notice to appear in court
 Proper return is ordinarily necessary for trial court to conclude that is has jurisdiction
SERVICE OF PROCESS & STATUTE OF LIMITATIONS
Federal Court
 Rule 3  in federal court, filing of complaint constitutes commencement of the action
 Rule 4m  requires fed court to dismiss an action when the def hasn’t been served within 120 days of the
filing of the complaint (if plaintiff fails to show a good cause for not completing service within that time)
 Rule 6b  allows plaintiff to request extra time to serve summons and complaint
 Rule 12b5  motion to dismiss for insufficiency of service of process
o Considered waived if not made by motion or in responsive pleading
State Court: when cause of action is based on state law
 In some states, cause of action is commenced by service of process
V. PROPER VENUE
 Venue deals with the allocation of a case within a court system that has jurisdiction over that case
o Jurisdiction over parties must be established first
 Venue challenge must be raised particularly early by def, otherwise it is waived Rule 12b3
o Venue is waivable because it is an issue of allocation or convenience, not a constitutional issue
Three Questions to Determine Proper Venue
1. Does the court have venue under the statutory structure (each state is different)?
2. If the court has venue, can the court transfer it?
3. If the court has venue, are there situations where we should transfer it anyway – forum non conveniens?
QUESTION 1. Does the court have venue under the statutory structure?
1. Venue in Federal Actions §1391  which court shall try the action?
a. §1391(b)  Fed Question & Mixed Diversity/Fed Question cases may be brought only in federal
court:
i. Where any def resides (not the same as citizenship) if all defendants reside in the same
state
ii. Where substantial portion of the events giving rise to the complaint occurred, or where
substantial part of the property that is the subject of the action is situated
iii. If and only if neither of the first 2 apply, then venue exists in any judicial district in
which the def may be found (usually means wherever personal jd exists at time action is
commenced)
b. Note on corporations and aliens for purpose of venue
i. Corporations reside in any district where subject to personal jd at the start of the action
§1391(c)
ii. Aliens may be sued in any district §1391(d-f)
Residence of
Non-Natural
Persons
• Residence of non-natural persons
(corporations and otherwise)
– Judicial district where the entity is subject
to PJ. § 1391(c)(2)
• Residence of corporations in states with
multiple districts:
– If a state has multiple judicial districts (like
New York), a corporation resides in any
district where it would be subject to PJ if the
district were a state, and if there is no such
district, it resides in the district with the
most significant contacts. § 1391(d).
8
“Residual”
Venue
Category
• If there is no district with venue
under § 1391(b)(1) or (2)
• Venue is proper in any judicial
district in which any defendant is
subject to PJ § 1391(b)(3).
10
c.
d.
Removal: §1441 (a) says that when a case is removed to federal court, the fed court encompasses
the place where the state action is pending, so it’s irrelevant that the fed court wouldn’t have been
a place of proper venue originally
Local action: in cases involving land, the action must be brought in the state in which the land is
located (Livingston v. Jefferson); if property is located in more than one state, venue is proper in
both §1392
i. Transitory action: one in which the court will try the case even though the suit relates to
land outside the state (Reasor-Hill)  if a local action can’t be brought where the
property is because of lack of jd over the def, the action may be brought in the state
where the def resides
Venue Flow Chart
Authorization
§ 1391 (default)
§§ 1396 et seq.
Venue
Authorized
Case stays in
venue chosen by
plaintiff
Transfer if
authorized
§ 1404(a)
Venue Not
Authorized
Dismissal
forum non
conveniens
Transfer
Dismissal
§ 1406(a)
§ 1406(a)
14
2.
State Courts  Factors state courts consider in deciding whether to dismiss for forum non conveniens
a. Whether the plaintiff is a state resident—if so, plaintiff has stronger claim to have case heard in
home state
b. Whether witnesses and sources of proof are more available in different state or county
c. Whether forum’s own state laws will govern the action
QUESTION 2: If the court has venue, can the court transfer it?
1. §1404(a)  “For the convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought”
a. Motion to transfer almost invariably made by def, and burden is on movant to show why
b. Transferee forum must be one in which the original claim could have been brought (Hoffman v.
Blaski)
c. The law of the transferor court must apply
i. Generally only applicable to diversity cases; consensus against applying to fed question
case.
d. Van Dusen v. Barrack: when a defendant moves for such a transfer, the choice of law statute of
the transferor court is applied in the transferee court.
i. The rationale for this rule is that it:
1. preserves state law advantages,
2. discourages forum shopping, and
3. focuses on the convenience of the parties and the interests of justice in decisions
regarding transfer, rather than gamesmanship.
ii. The concerns remain relevant when the plaintiff makes the motion for transfer.
e. Ferens v. John Deere: when a plaintiff transfers a case from one venue to another under 1404(a),
the choice of law rules of the transferor jurisdiction apply.
i. facts: plaintiff lost his right hand in a combine manufactured by JD. The accident
occurred in PA. Bc the state statute of limitations had run, Ferens filed in WDPA for
warranty and contract claims.
ii. Ferens then sued for negligence and products liability in S.D. Miss. Miss. Court allowed
him to apply PA neg and products liability law and MS statute of limitations.
iii. Ferens then moved to transfer the MS case to the WDPA under 1404(a). SD Miss, based
on convenience of the parties, transferred the case to PA.
Ferens v. John Deere Co.
494 U.S. 516 (1990).
Ferens v. John Deere
S.D. Miss.
Tort claims
Mississippi state
choice of law rules
Choice of law:
Negligence/products liability:
Pennsylvania
Statute of Limitations:
Mississippi
Ferens v. John Deere
W.D. Pa.
Contract/warranty claims
18
f.
2.
3.
Atlantic Marine: when parties have entered into a valid forum-selection clause that designates a
federal venue, the case should be transferred to the designated venue unless extraordinary
circumstances exist that are unrelated to the convenience of the parties.
i. A federal court that otherwise has proper venue must use 1404(a) to transfer the case to
the new district that is consistent with the forum selection clause
ii. The 1404(a) analysis includes only the “public interest” factors which will rarely defeat
the parties’ choice as expressed in the FSC
iii. The Van Dusen rule does not apply
iv. The transferee court applies its own law and not the law of the transferor court
§ 1406(a)  requires a federal district court to dismiss a case if venue is improper or, if it would serve the
interest of justice, to transfer the case to another district or division where the case could have initially been
brought.
a. CURE OR WAIVER OF DEFECTS
i. The district court of a district in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.
ii. Nothing in this chapter shall impair the jurisdiction of a district court of any matter
involving a party who does not interpose timely and sufficient objection to the venue
§1407  Allows cases with the same common nucleus of operative facts to be transferred to a single court
for consolidated pre-trial hearings
a. Cases must be returned to transferor court for trials, unless get parties’ consent or invoke §1404(a)
QUESTION 3: Situations where we should transfer it anyway—forum non conveniens?
1. Generally forum non conveniens exists because the transfer is impossible
Can’t transfer state-to-state, federal-to-state, US to foreign court
Forum non conveniens works when it really makes no sense to litigate in the given court
i. Dismissal of case course have jurisdiction over and venue on grounds that practical
factors indicate it should be heard in another court and that court is outside the same
judicial system.
i. Different from change (1404, 1406) because this is for outside the system you are in,
rather than transfer to one within the system.
 Thus if preferred forum outside the Federal System must:
o Be adequate Alternative Forum AND Public and Private interests must weigh in
favor of having the case heard in the alternative forum
There is a presumption in favor of plaintiff’s forum choice, so forum non motions and transfers are rare
a. Declaring forum non conveniens results in an actual dismissal or action, so plaintiff must initiate
again
b. Because of this harsh outcome, court may grant motion on condition(s):
i. Def identifies an alternative forum
ii. Def’s consent to jurisdiction in the other forum, waiving statute of limitations in the other
forum…
a.
b.
2.
VI. REMOVAL TO FEDERAL COURT
§1441 authorizes defendants to remove a jurisdictional claim from state court to federal court (one-way street!)
 Can only remove an action that could have been brought in the federal court originally  basis for federal jd
must appear as part of the complaint
 Home state exception: 28 U.S.C. § 1441(b) general rule that even where diversity of citizenship exists, a
defendant cannot remove a case to federal court if one of the parties “properly joined and served” as a defendant
is a citizen of the state in which the case was filed. 28 U.S.C. § 1441(b).
 Only the original def can remove (way of protecting federal forum choice)
o Plaintiff has the burden of remanding to state court if he wishes
 Diversity case  only defs who are non-citizens of forum state can remove
o If there are multiple defs, all must be non-citizens of forum state to remove
o Diversity case can’t be removed if there are multiple claims, and at least one is not removable
 Federal Question case  action is removable by any def regardless of parties’ citizenship
o §1441(c) allows removing def to remove not only the federal question, but also the otherwise
unremovable state matter, when joined with fed question
 Prevents plaintiff from adding state claims in order to prevent removal
 District Court has discretion to accept state claims along with the federal claim, or just the fed question claim
itself
 §1367(c) allows the fed district court to remand a claim if state claims predominate
 Removal is entirely vertical  def removes to fed district court that covers the original state court
o Def can seek to transfer to another fed court once action has been removed
 Removal is considered waived if def takes a substantial defensive action (i.e. counterclaims plaintiff) before
filing for removal
VII. WAIVER OF DEFENSES
1. Subject Matter jd is never waived
2. Personal jd, Notice, Service of Process, and Venue are all waivable
a. They are threshold defenses  must be raised by a pre-answer motion or asserted in the
answer, or else they are treated as waived
b. Rule 12(g), 12(h)  any threshold defense you don’t put in 1st motion can’t be raised in 2nd
(consolidation)
i. If you omit a threshold defense, can’t even put it in your answer
c. If you make a threshold defense motion and lose, go one with the case and can subsequently
appeal it
II. APPLYING THE CORRECT LAW TO A FEDERAL ACTION
I. STATE LAW IN FEDERAL DIVERSITY CASES
Old Rule  Swift v. Tyson
 Federal courts sitting in diversity had to follow state statutes and constitutions, but did not need to follow
state common law (the “unwritten law”)
 Judge Story wanted federal courts could pursue general common law, so commercial transactions would be
uniform across the country
 THIS DIDN’T HAPPEN  advent of railroads tore apart the simplistic notion of federal common law
New Rules 
 Federal Rules
o Where there is no relevant Federal Rule or other Rule pursuant to the Enabling Act and the federal
rule at issue is wholly judge-made, Rules of Decision—construed in Erie and York—control
o Where the matter in issue is covered by a Federal Rule, the Rules Enabling Act constitutes the
relevant standard. (Hanna)
o There is a real difference between “substance” under Erie and under Rules Enabling Act.
 Erie bars any federal court attempt to create state substantive rights; Rules Enabling
prohibits abridgement, enlargement, or modification of substantive rights
 Courts could not create a Rule with one statute of limitations
 Congress could change statutes of limitations for federal statutes but not for state
laws (10th Amendment)
 Hanna Analysis
o (1) Is there a Federal Rule, given its plain meaning, that is sufficiently broad to control the issue?
 If not, then Erie / York
o (2) If so, is the Rule within the scope of Rules Enabling Act (does it abridge, enlarge or modify a
substantive right)?
o (3) If not, does the rule exceed its constitutional grant of power under due process and Necessary
and Proper?
Erie Cases
Guaranty Trust:
F: Equitable claim brought in federal court rather than state court. Guaranty Trust claimed the action was barred by
the statute of limitations. York claimed since the action was in equity it was not barred by the SOL.
H: The outcome of the litigation in the federal court should be substantially the same, so far as legal rules
determine the outcome of a litigation, as it would be if tried in a state court.
S.P.: a federal court in diversity must apply the state rule that would be outcome determinative if held in state court.
Trilogy Cases: Ragan, Woods, and Cohen
Ragan
I: When is an action “commenced” for purposes of tolling statute of limitations.
F: the SOL expired after plaintiff filed case but before the defendant was served process. State law dictated that the
statute was tolled from the date the defendant was served, not when the complaint was filed. FRCP 3 states that a
civil action is commenced when the claim is filed.
H: A state law claim that is time-barred in state court is also time-barred in federal court.
S.P.: if the state law was applied the case would be dismissed, if FRCP 3 was applied, the case would proceed.
This is outcome determinative.
Woods
I: Whether the Mississippi door closing statue should be following by the federal district court.
F: Miss. Statute provides that corporations formed in other states must register with the state before doing business
in Miss. If a company fails to register, it waives that corporation’s right to sue in Miss. courts.
H: SCOTUS held that the fed. court should apply the state statute, invoking the outcome determinative test.
S.P.: if the case was in state court it would be dismissed; if the fed court ignored the state law, it would
proceed.
Cohen
F: shareholder derivative suit. FRCP 23.1 enumerates requirements for bringing a derivative suit in federal court.
Unlike state law, it does not require plaintiffs to post a bond. The purpose of the NY law is to deter nuisance
lawsuits.
H: The federal court must apply the state law bond requirement, even though rule 23.1 does not require it.
Byrd: the case after the triple play cases “eviscerated” the power the federal system. SCOTUS reevaluated and
reasserted that the federal system has legit interests that need not be subjugated to state law.
I: Byrd injured on the job brought a claim in fed court against his employer under the theory that he was not an
employee and thus was not limited to worker’s comp recovery.
 The question of whether he was a statutory employee of the co-op was central.
 The question that went to SCOTUS was who got to decide if he was a statutory employee: a judge
or jury?
o State law: Under S.C. law a judge would make the determination.
o Federal law: Under 7th amendment, a jury would decide it.
H: Under Erie…federal courts must respect the definition of state-created rights and obligations by the state courts
 Definition = substantive law: the elements of a claim or defense
 Substantive law = rules decision for a case and thus, RDA requires application of state law
A1: “bound up” – there are some state laws so closely related to matters of pure substance that the 10 th amendment
requires federal courts to respect them.
 It seems to encompass things that refine the state’s assessment of when someone is entitled to
recover from one another.
A2: SCOTUS says the S.C. rule does not define state-created rights and is not “bound-up” with such rules -> instead
-> the rule is a “form and mode” of enforcing
 The policy of litigant equality applies to cases in which the state law issue is not purely
substantive or bound up with pure substance.
 The Court opens the door to the possibility that other considerations might override outcome
determinative because federal courts have an interest in keeping the “essential characteristics” of
that system free from interference by state law.
 In Byrd, federal interest is in the division of labor between judge and jury. State law, at least not
that bound up in cannot exact application in fed court, esp. if it disrupts the federal system of
allocating functions between judge and jury.
o Federal law had a strong interest
o State law had no stated interest
A3: Byrd is not outcome determinative: apply federal law.
Byrd model
1. Is there a federal directive on point?
 If yes:
o Apply the federal directive if it’s valid
 If no:
o RDA analysis
 If the law is: Pure substance (claim or element)/bound up (assessment of who is entitled
to recover) -> then state law applies
 If the law is a rule of form and mode, then apply the outcome determinative test:
 Outcome determinative -> apply state law unless there’s a good reason not to
 Not outcome determinative -> apply federal law
Hanna
F: plaintiff brought an action in diversity in federal court. Def. is an executor of a deceased person. He was served
w/ process under Rule 4(e)(2)(B), which allows for substituted service of process. Under Mass. Law, however,
service on a representative on a decedent had to be effectuated personally: no substituted service.
I: Did Erie require the federal court to apply state law in this instance, or was the federal court free to ignore state
law and apply rule 4?
A. RDA Analysis Dicta: The Court introduces the idea that Erie was meant to prevent forum shopping not in the
York sense.

“twin aims” of Erie/Modified Outcome Determinative test (focused at outset)
o 1. Discouragement of forum shopping
o 2. Avoidance of inequitable administration of laws
 Hanna is outcome determinative in the York sense, but not outcome determinative in the new twin
aims test.
o Why? Because no litigant would sue, at the outset of litigation, in federal court just to
avoid the personal service requirement of state law.
 The plaintiff in Hanna probably attempted P.S. but failed and did substituted
service instead. Thus, it’s not outcome determinative.
A: Applicability test: Hanna then says that if there is a federal rule then that is an instruction by Congress for
the Courts to apply. REA 2072(a) states:
 1. Federal rules address only procedural matters
 2. Fed rules shall not abridge, enlarge, or modify.
A: Validity test: must be assessed at two levels: constitutional and statutory.
 The Court relied on Sibbach: judicial rulemaking is constitutional if the provision is
“rationally capable of classification” as procedural.
C: In Hanna, the Court had no trouble concluding that Rule 4 was both constitutional and fell within the REA, thus
is applied and trumped state law.
 The process by which the rules are promulgated give them presumptive validity under
constitutional and statutory constraints.
 Once a court determines that a federal directive (1) applies to the facts of the case and (2) is valid,
the Supremacy Clause applies.
Wrap up Erie -> Hanna
 When there is a federal directive -> apply Hanna test (Valid and Applicable)
 When no Erie -> use “unguided Erie” -> RDA analysis
Walker
F: indistinguishable from Ragan (Rule 3) – upheld Ragan: FRCP did not address tolling at all
H: Rule 3 defines a commencement of a suit only for purposes of applying the Federal rules and not for purposes of
applying of whether a SOL is tolled.
A: Both and state and federal rules coexist in a narrow reading of the federal rule: SCOTUS says rule 3 governs
commencement fir an action for reasons other tolling.
 Cases where the Court found that a federal directive was not on point, and this that the Hanna
prong did not apply: Cohen, Walker, Palmer, Ragan, Semtek, Gasperini.
Semtek
F: Rule 41(b) read narrowly by SCOTUS
H: 41(b) meant only that the case could not be refiled in another federal court, and that the dismissal did not bar
refiling in state court.
A: Scalia expressed concerns that a broad reading of 41(b), one that would bar refiling of a claim even in state court,
would run afoul of the REA by modifying a substantive right.
Gasperini
F: trial on damages in fed court. Defendant moved for new trial under 59(a)(1)(A) because the damages amount
“shocked the conscience” of the court. A NY statute granted a new trial if the verdict in the present case “deviates
materially” from similar areas.
H: Rule 59 is not on point; Ginsburg: federal courts have interpreted the federal rules with sensitivity to
important state interests.
 NY tort reform statute and the “deviates materially” standard. SCOTUS decided that the fed court
must apply the “materially deviates” state law standard for granting a new trial but not the
provision for de novo appellate review.
o Deviates materially -> substantive law
o De novo review -> not substantive, procedural
 Doesn’t fully discuss Hanna or Byrd
The court concludes that a statutory cap on damages would be “substantive” under Erie.
The “deviates materially” standard has the same purpose to limit recoveries.
 Thus, the “deviates materially standard” must be substantive.
 The de novo review part was addressed by the 7th Am. Reexamination clause.
o If based on 7th am. -> no de novo review
o If based on state law -> de novo review
C: The state law allocation between trial and appellate courts should not affect how that allocation is made in federal
court.
o
Burlington
F: FRCP 38 permits a court to impose double the costs if it finds an appeal frivolous. State law requires that an
appellate be fined 10% of judgment if the appellant obtained a stay of the trial court and lost on appeal.
H: Rule 38 covers the issue by permitting only permissive sanction and prohibiting mandatory sanctions.
 “rules that incidentally affect litigants’ substantive rights do not violate the REA if
reasonably necessary to maintain the integrity of the federal system of rules.
 Because the line between procedural and substantive is fluid, and a FRCP might tread on
substantive rights, the court should endeavor not to “abridge, enlarge, or modify” a
substantive right.
 The judge must evaluate the rule as it applies to the state law if it abridges, enlarges or modifies it,
then it violates the REA:
o Incidental -> apply FRCP
o More than incidental -> apply state law
Stewart: involves a statute instead of a rule
F: Alabama citizen entered into a contract with a NY citizen. Forum selection clause provided litigation would take
place in NY. AL law prohibited FSC, NY allowed it. Defendant removed the case to fed court and sought
enforcement of the FSC by transferring the case to NY.
H: the venue-transfer statute, 1404(a) was on point and directed federal courts to consider the existence of FSC as a
factor in favor of transfer under the statute. Upheld the transfer to NY.
Problem: in federal courts, FSC clauses are enforceable through transfer; in state courts they are not. By holding that
the fed directive was on point it may have disadvantaged state interests.
Shady Grove – narrow reading
F: involved assertion of a statutory claim under NY law for allegedly unpaid interest concerning insurance benefits.
Under NY law, the claim could not be asserted as a class action. Under rule 23, it qualified as a class action.
H: Rule 23 “answers the question” in dispute and therefore, if valid, would apply under Hanna -> upheld the validity
and applicability of Hanna.
 Whether a federal directive is on point (applicable) and conflicts with state law is of critical
importance. It determines whether the matter will be assessed under Hanna or Erie.
 The majority agreed that rule 23 is valid under the REA, but they differed on the appropriate test
for validity. Sibbach remained the governing standard: if it really regulates procedure, then it
displaces state law no matter how substantive the state may consider the law.
o Sibbach ensures that procedure will be uniform in every federal district
o Ex.: in Shady Grove finding that Rule 23 would displace law, NY considered substantive
would mean that rule 23 would never apply in federal courts in New York (for such
claims). But Rule 23 would be applied in other districts.
 Congress intended the REA to be uniform across courts.
Validity:
 By definition, a federal directive is always valid. So if a federal constitutional provision is on point, then it
applies.
 Federal rule: almost always valid, Should be checked against the Constitution and the REA.
 Under Hanna/Sibbach: a rule promulgated under the REA is constitutional valid if it is “rationally capable
of classification” as procedural. Under the REA, such a rule is valid if it “really regulates procedure” the


judicial process for enforcing rights and duties recognized by substantive law and for justly administrative
remedy and redress.
Validity:
o 1. Under 2072(a) the rule must be “practice or procedure”
o 2. Under 2072(b) the rule shall not abridge, enlarge, or modify any substantive right.
Rule 13(a)(1) is a good example of a federal procedural rule that could impact substantively the substantive
rights
o Compulsory counterclaim: defending party must assert it in the same case, thus the defendant
loses a choice of forum/jurisdiction because they’ve got to litigate based on where the plaintiff
choose.
The Erie Doctrine
THE ERIE QUARTET:
1. Erie v. Tompkins: Except in matters governed by the Constitution or Acts of Congress, federal courts
sitting in diversity cases must apply the substantive (including common) law of the forum state
a. Overruled Swift v. Tyson, created:
i. Because it creates inequity  having two bodies of common law would inevitably create
forum-shopping
ii. Because it is unconstitutional  nothing in Art III gives federal courts the power to
generate fed common law
 Twin aims of Erie: prevent forum shopping, inequitable administration of the law
2. Guaranty v. York: When the state statute affects the very possibility of recovery (as a statute of
limitations does in this case) the statute bears vitally, and not merely formally or negligibly, on the
State-created right, and the federal court should follow state law
a. York Outcome-determinative test  whether or not disregarding state law would significantly
affect result
b. Difference between substantive and procedural law 
i. Substantive law = any law that provides a cause of action, network of right/duty relations
ii. Procedural law = methodology of effectuating substantive rights
c. Want to avoid forum shopping between state and federal courts
 Fed court is an extension of the state court, at least in diversity cases
3. Ragan: affirmed York—federal court in diversity had to follow state rule for statute of limitations, because
there was no conflict between the state statute and the fed rules
4. Byrd v. Blue Ridge: when issue is procedural and no fed rule or statute is on point, balance York’s
outcome-determinative test with federal and state interests
a. Byrd Balancing test 
i. Evaluation of significance of state policy
ii. Countervailing federal consideration—influence, if not command of the 7th Amendment
iii. Probability of an outcome differential—is the issue really outcome-determinative?
b. Also consider outcome-determinativeness, forum-shopping, etc
c. Form and mode: consider the interests of each judicial system.
Byrd v. Blue Ridge Rural Electric Cooperative, Inc.
356 U.S. 535 (1958).
Byrd Balancing Test
Purely substantive
“Form and mode”
Purely Procedural
State law governs
(per 10th Amendment)
when the rule is “bound up”
with state-law created rights
and obligations.
Balancing test governs
Consider the interests of
each judicial system.
Federal law governs
3
5.
Hanna v. Plumer: federal rules trump state policy when they are both applicable and they don’t violate the
Rules Enabling Act
a. May not abridge, enlarge, or modify the substantive rights of any litigant
b. Court holds that Rule 4d (service of process) neither exceeds the mandate of the Rules Enabling
Act nor the Constitution and is therefore the standard against which district court should measure
adequacy of service
c. Modified outcome determinative test
Hanna Prong Structure
Presence of a federal
directive
(Constitution, statute, FRCP)
Validity
Applicability
Statutory (REA)
Constitutional
(Article III)
Rule of “practice and
procedure”;
Directive is
“arguably
procedural”
does not “abridge,
enlarge or modify any
substantive right.
Broad
interpretation
of the directive
Narrow
interpretation
of the directive
9
6.
Subsequent application:
a.
b.
c.
d.
Walker v. Armco Steel: reaffirms Ragan—a fed rule only trumps state law when it is on point
to/directly conflicts with the particular state issue in front of the court (narrow reading)
i. Here the court held that Rule 3 wasn’t intended to apply to measuring a state statute of
limitations, so it doesn’t conflict with state statute of limitations, and doesn’t violate
Rules Enabling Act
ii. Rule 3 is just telling you what it means for an action to commence so that people know
what order to do things. It’s not meant to cover everything possible that the
commencement of an action could affect – namely the statute of limitations.
Stewart v. Ricoh: court says this is an easy case—there is a fed statute, and fed law is supreme
(broad reading)
i. Court goes through Hanna analysis:
1. Is the statute sufficiently broad to control the issue before the court?
2. Does the statute represent a valid exercise of Congress’ authority under
Constitution?
ii. See tension between Erie/York and Byrd/Hanna  just because there is a federal statute,
court shouldn’t be blind to very valid state interest (here issue is about state substantive
contract law)
Burlington (broad reading)
Gasperini: ; a bit of an aardvark
i. Majority said this was an Erie/York problem, so accommodates both state and federal
policies (narrow reading)
1. Court finds that NY damages statute is in conflict with Seventh Amendment,
though it nevertheless affects a substantive state-created right
ii. Dissent says it’s a Hanna question—trumps Erie/York—so Fed Rule applies
Gasperini v. Center for Humanities, Inc.
518 U.S. 415 (1996).
Choice of law
problem
Erie
Hanna
No federal directive
Federal directive
(Constitution,
statute, FRCP)
“unguided” Erie choice
Modified outcome
determinative test
Validity of
federal
directive
Applicability of
federal
directive
5
e.
Shady Grove: latest word on the Erie doctrine
i. (Broad reading): Rule 23 gives everything we need to know about class actions. The few
instances in which Congress has made exception to Rule 23, they’ve stated as much.
Shady Grove Orthopedic Assoc. v. Allstate Ins. Co.
130 S. Ct. 1431 (2010).
Binding Authority
(Parts I and II.A)
• Rule 23 governs all aspects of whether a class
may be certified when brought in federal
court.
• In the Hanna prong, the clash is determined
primarily by looking at the scope of the federal
directive
• Legislative intent behind the state rule is not
dispositive
Persuasive Authority
• Byrd balancing test and modified
outcome determinative test are not
appropriate for Hanna clash analysis
(Scalia plurality)
• Scalia’s validity analysis
• Ginsburg’s approach to unguided Erie
analysis
12
 Based on Stewart and Gasperini, can see that court is going to try whenever it can to
accommodate the two bodies of law
When you look at an Erie-influenced case, it’s as if you’re looking at it through four different lenses:
1. Erie lens = about the supremacy of state substantive law
2. York lens = about outcome-determination
3. Hanna lens = about collision/conflict of fed and state laws
4. Byrd lens = about the weight of state policy
II. ASCERTAINING STATE LAW
How should a federal court determine state law?
 In theory, fed courts are bound by the highest court of the state in which they sit; also bound by
intermediate courts of appeal
 Fed judges do at times apply laws of an adjacent state/state whose jurisprudence is compatible with the
forum state
 Most states have enacted certification statutes, allowing fed courts to certify over certain questions to a
state court
1. Klaxon v. Stentor: in order to promote desired uniform application of substantive law within a state,
federal courts must apply conflicts-of-law rules of states in which they sit (includes choice of law)
a. Federal courts applying state law typically attempt to determine how the highest court in the state
would hold in a given case/what law the highest state court would apply
III. PLEADING
Pleading is the first phase of the pre-trial process  jurisdiction has been chosen, court picked, body of law chosen
OVERVIEW OF PLEADING:
 History of Pleading
o Common Law pleading: built on specific, technical rules
o Code pleading: followed a formal procedural code, but codes were state things—no real fed
procedure
o Modern pleading: Fed Rules  greatly simplified structure, has only the complaint and the answer
 Functions of Pleading
o Historically, pleading served three functions  notice giving, fact revelation, issue formulation
o Modern procedure only assigns notice-giving function to pleadings
 Massive discovery, joinder and sophisticated motion practice cover the other two
 Basic Documents
o
o
o
Complaint: initial pleading in a lawsuit, filed by plaintiff. Must include SMJ statement on face of
complaint)
Answer: def’s response, states defenses to each claim and admits or denies each count
Reply: required if def asserts counterclaim; plaintiff can also obtain court order to allow reply
Four primary areas of focus on pleading
1. Standard of particularity of pleading
2. Special pleading rules
3. Amendments of pleadings—relation-back
4. Responding to the complaint
1. STANDARD OF PARTICULARITY
 Rule 8  very low pleading threshold—don’t have to plead facts or a cause of action
o Rule 8a1  must give statement of why this particular court (subject matter jd)
o Rule 8a2  pleading should be a short, concise statement of facts
o Rule 8a3  prayer for relief, where you state what you want (ad damnum)
 Dioguardi v. Durning: court says the pleading is about notice, and showing that plaintiff is entitled to relief
o Whether plaintiff can prove his claims is different from whether he has pled them adequately
o By not using code language (i.e. “cause of action”) court reminds us that we are no longer in the
code system—cause of action isn’t the focal point
 Plead claims and an entitlement to relief!
o Rule 8a2 (reinforced by 12b6 motion, asking has plaintiff stated a claim?)  claim = entitled to
relief
 Conley v. Gibson: reaffirms simplicity of pleading and Rule 8a2
o Can’t dismiss under 12b6 unless legal certainty that there is no basis for recovery
 Gillespie, Dioguardi show how a different level of particularity is required by different courts
 Bell Atlantic Corp v. Twombly. Asking for plausible grounds to infer agreement doesn’t impose probability
requirement but calls for enough fact to raise reasonable expectation discovery will reveal evidence of
illegal agreement.) Plausible means more than conceivable rather than possible.
1. Twombly is transubstantive, and the pleading standard applies to all types of cases. (Iqbal, facts
below)
2. A well-pleaded complaint requires non-conclusory factual pleadings that give rise to the level of
plausibility.
3. Iqbal also gives us judicial experience & common sense.
 Ashcroft v. Iqbal (SCOTUS 2009) (Pakistani Muslim filed discrimination suit challenging detention in
maximum-security unit as person of “high interest” during federal government’s investigation of attacks of
9/11/01).
o H: Under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint will only survive a
motion to dismiss if it alleges nonconclusory facts that, taken as true, state a claim to relief that is
plausible on its face.
A. To determine if claims cross the line from conceivable to plausible:
i. Factual or conclusory? (Hint: do the claims mirror the elements of a cause of
action?)
ii. Do factual allegations plausibly establish the purpose of the complaint?
iii. Evaluate if there is a plausible alternative explanation. (Note that plausibility
does not require probability)
iv. Are there enough facts alleged so the inferences rise to the level of plausibility?
 Swanson v. Citibank
o Under the plausibility standard espoused in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
a court is not to consider whether a set of facts are probable, but rather, whether a set of facts are
possible.
2. SPECIAL PLEADING RULES
 Rule 9  creates different allocations of pleading and proof burden based on claim type
Rule 9b  requires fraud circumstances to be stated explicitly, but malice/intent generally
Rule 9c  once plaintiff avers generally that all conditions precedent have been performed or
have occurred, burden shifts to def to find and identify any conditions precedent that plaintiff
hasn’t performed
o Rule 9g  when items of special damage are claimed, they shall be stated specifically
 “Special damages” are those not foreseeable under such a claim as it is brought
Dura Pharmaceuticals: SC’s latest holding on this issue
o Rule 8 permits extraordinary flexibility in the pleading  acknowledges that at the pleading stage,
plaintiff might not know exactly what happened
o Allows alternative and inconsistent pleadings—which was prohibited under the Code
Rule 8e2  a party can set forth two or more statements of a claim or defense alternatively or
hypothetically
o Unlike common law requirements, don’t have to combine in one statement  can set forth either
in one count/defense or in separate counts/defenses
o i.e. I didn’t borrow your pot; when I borrowed your pot it was already damaged; I returned your
pot
Rule 8a3  claim shall include a demand for judgment for the relief that plaintiff seeks
Rule 54c  demand for judgment
o Judgment by default shall not be different in kind or exceed amount prayed for in demand
o Except as in default, every final judgment shall grant the relief to which the party in whose favor it
is rendered is entitled, even if the party has not demanded such relief in pleadings
o
o




3. RESPONDING TO THE COMPLAINT  The Answer
 In theory, the answer is supposed to come in on the heels of the complaint, but standard defense technique
is to make a lot of motions and delay answering
 Typical answer has 1, 2 or 3 sections in it:
o Part 1  Response to the complaint responds “allegation by allegation”
 Admission
 General Denial: deny each and every allegation
 Specific Denial: deny specific allegations of particular paragraph or count in complaint
 Qualified Denial: deny a particular portion or a particular allegation
 Denial of knowledge of information: say you don’t have enough info to form a belief
Rule 8b
 Denial based on information and belief: say reasonably believe allegation is false
o Part 2  Affirmative defenses
 Old rules: had to put up or shut up in the first response
 Modern rules: can respond inconsistently if you don’t have the full story
 Rule 8c lists 19 affirmative defenses (contributory negligence, duress, estoppel, etc)
 Kicker is last clause: “…and any other matter constituting an avoidance or
affirmative defense”  have to plead anything like other 19, anything that might
surprise other side
o Part 3  Defendant’s complaints
 Counter-claims
 Cross-claims
 3rd party claims
 Rule 8b – Defenses; Forms of denials
o Rule 8(b) Allegations in the complaint must be denied or admitted. A third option counts as a
denial but the answering party is saying that they don’t have enough information to know.
o Rule 12 Defenses
 12b2-6: Use them or lose them: how to present defenses and defenses a party can raise
prior to filing an answer. Include lack of subject matter jurisdiction, lack of personal
jurisdiction, improper venue, Insufficiency of process and service, failure to state a claim
upon which relief can be granted, and failure to state a claim upon which relief can be
granted and failure to join a party under Rule 19.
 12 (b)(1) motion to dismiss for lack of personal jurisdiction


12 (c) motion for judgment on the pleadings. If defendant admits facts but offers defenses
in the answer that were legally insufficient a plaintiff could seek judgment on the
pleadings to prevail at that stage in the proceedings.
Rule 8c – Affirmative Defenses
What fits under the residuary clause? What constitutes surprise?
o HYPO: Plaintiff alleges def trespassed on his property, destroyed his bushes and cut his timber.
Def denies. At trial, def starts to show that he owns the property by adverse possession.
 One of the elements of a claim of trespass is that it is your land—if it’s not, there is no
trespass
 Could say that def’s denial of trespass embraces a denial of plaintiff’s title, and
that he is therefore free to prove at trial that title belongs to someone else
(including himself)
 This isn’t an affirmative defense, since it directly denies existence of a specific element
of claim
o Rule 8c was included to ensure there is no surprise as to what defenses will be used
 Likely includes any defense that rests on facts particularly within def’s knowledge
o HYPO: Plaintiff accuses def of negligence for a car crash. Def denies. At trial, def starts to
introduce evidence that his car was struck by lightening, which caused the accident.
 Lightening bolt was an act of God, and def therefore is not negligence
 In a perfect world, would want to require this in the answer, because otherwise it causes
surprise
 May or may not be allowed in if not in the answer, depends on the judge
Motions Against the Complaint
 Defenses against the validity of complaint—included either in answer or separate motion
o Rule 12b1  lack of subject matter jurisdiction
o Rule 12b2  lack of personal jurisdiction
o Rule 12b3  improper venue
o Rule 12b4  insufficiency of process
o Rule 12b5  insufficiency of service of process
o Rule 12b6  failure to state a claim upon which relief may be granted
 Must establish that no recovery is possible under any legal theory
 Usually made before def files answer—after can make a 12c motion for “judgment on
pleadings”
o Rule 12b7  failure to join a necessary party (under Rule 19)
o Motion for a more definite statement  def may make motion under 12e if complaint is “so vague
or ambiguous that def cannot reasonably be required to frame a response pleading”
o Motion to strike  if plaintiff has included “redundant, immaterial, impertinent or scandalous”
material in complaint, def may move under 12f to have material stricken from pleading
 Amendment
o If complaint dismissed, plaintiff will almost always have the opportunity to amend the complaint
 Plaintiff may automatically amend if motion made before def files answer Rule 15a
o If 12b motion successful after filing answer, plaintiff may amend with court’s permission (likely)
4. AMENDMENTS TO THE PLEADING
Rule 15  first judicial postulate; liberal rules to ensure claims are decided on merits rather than technicalities
 15a Amendments (pre-trial)
o If you want to make an early shift (before responsive pleading), just do it  but can only be done
once
o During pre-trial process, amendments are done only with leave of court or consent of adverse
party
 “Leave shall be freely given when justice requires”—leave things to discretion of court
 Unless there is a very strong reason to deny leave to amend, court will allow it
o Liberal approach to amendment—by and large, you ask and you get
 15b Amendments to Conform to the Evidence (at trial)
If evidence inconsistent with pleadings is introduced and the other party doesn’t object, the
pleadings are automatically viewed as having been amended
o If the evidence is objected to, court may allow the pleadings to be amended and shall do so freely
 Burden is on objecting party to show that they will be prejudiced if amendment is
allowed
o Judge is less likely to sustain this motion—why tying to amend the pleadings now??
15a and 15b are common sense  if it looks like party is playing a tactical game, won’t get amendment
(i.e. if party makes amendment multiple times, or is seeking to reflect thing that were unearthed in
discovery)
Hard to know the different between a pleading amendment and a pre-trial order
Trial-type amendments emerge when a witness says something surprising, or you get info on the eve of
trial
15c Relation-Back of Amendments (after statute of limitations has run out)
o Issue isn’t whether to permit the amendment—issue is whether to subject that amendment and its
new claim to a statute of limitations under 8c
o An amendment of pleading relates back to the date of the original pleading when:
 (15c1) relation-back is permitted by the law that provides the applicable statute of
limitations
 (15c2) the claim or defense asserted in the amended plea arose out of the conduct,
transaction, or occurrence set forth in the original plea (T&O test)
 (15c3) amendment changes the party against whom the claim is asserted and satisfies 3
conditions:
 Must arise out of the same conduct, transaction, or occurrence as prior claim
 Must be served within 120 days after filing the complaint
 Correct def must have known or should have known suit was instituted and that
he was intended party
o Testing trick  can’t relate back to something that was dead when the original action was
instituted
Rule 11  requires lawyer to sign/certify
o Warning that you can get into a lot of trouble if you cut it too closely
o Research/failure to research can get you into trouble
o See lawyers making “Rule 11 checks”—more caution is exercised when setting up suits
o Rule 11(c)(2): the motion for sanctions must not be filed or presented to the court if the challenged
paper, claim, defense, etc is withdrawn or corrected within 21 days after service or within another
time the court sets.
o





Time for Various Pleadings:
1. Service  must normally occur within 120 days of filing of complaint
2. Answer  must be served within 20 days of service of complaint
a. If def is out of state (served via long arm), the time to answer is the state rule (usually longer)
b. If def makes Rule 12 motion against complaint and loses, def has 10 days after denial to answer
c. If def requests waiver and plaintiff grants, def has 60 days from date that request for waiver was
sent
3. Reply to counterclaim  plaintiff must serve his reply within 20 days after service of the
answer/counterclaim
Fed Rules greatly simplified pleadings to complaint + answer  reply may be ordered, but is rarely used
IV. JOINDER
Joinder Roadmap
1. Trilogy One  first cousins, the most basic of the multi-party joinder stuff
a. Joinder of claims
b. Permissive joinder of parties
c. Compulsory joinder of parties
2. Trilogy Two  much of this trilogy is really about supplemental jurisdiction
a.
b.
c.
Counterclaims
Cross-claims
Third-party claims
Trilogy One:
JOINDER OF CLAIMS (Rule 18)
One sentence for exam  Since Rule 18 permits any claims to be joined, joinder is proper.
Party asserting claim for relief may join, either as independent or alternate claims, as many claims as he has against
the opposing party—no T&O requirement
o If claims are so divergent that things don’t work efficiently or prejudice is created, we can
segment out the pieces with Rule 42b  court can order separate trials to avoid the bias/confusion
of trying matters together
 18 is a giant intake valve; 42 permits the judge to separate out the pieces and package
them appropriately
 This is permissive, not compulsory  making it mandatory might encourage litigation where there isn’t
any
 Not all states follow Fed Rules—may have a T&O requirement for joinder of claims
PERMISSIVE JOINDER OF PARTIES (Rule 20)
Two sentences for exam  The standard for permissive joinder of parties is common question and transaction
or occurrence. Since the complaint alleges that all of the defendants were involved in the conspiracy, there is
a common question of conspiracy and a single transaction—the formation of the conspiracy.
 Common standard for joining parties:
o (1) you can join anyone whose claims arise out of the same transaction or occurrence
o (2) you can join them only if there is a common question tying all parties together
 Rule 20 = transaction or occurrence + common question
o Virtually guaranteed that if there is T&O, there will also be CQ
o Deals with transactions, not causes of action—so standard isn’t CNOF
 Works for joinder of plaintiffs as well as joinder of defendants
o Judgment that it’s better to open the door wide than keep it partially closed—better to try like
things together for judicial efficiency
o Ability to join means that when the case is over you can get more preclusion effect
COMPULSORY JOINDER OF PARTIES (Rule 19)
Three questions to think about for exam 
1. Is there someone out there who should be joined?
a. Rule 19a  person shall be joined as a party if:
i. (19a1) outsider’s absence prevents granting complete relief to those already involved
ii. (19a2) outsider will be prejudiced, his rights will be impaired or impeded, if he isn’t
joined
2. Can the court join him?
a. Party may be joined under 19a only if court can serve him/get personal jd over him, and bringing
him in won’t destroy diversity (subject matter jd)
b. 19a is both a party question and a jurisdiction question (subject matter and personal jd)
3. If court should join him but can’t, what can they do?
a. Rule 19b  determination by court when joinder isn’t feasible
b. Court has to decide  is this person absolutely essential to the action? Can you proceed without
him?
i. 12b7 recognizes a motion to dismiss for failure to join an indispensable party
ii. 19b is an attempt to avoid dismissals under 12b7  judge must determine if there’s
anything he can do to move forward, and at least give relief to the people already
involved
1. Invokes the tradition of the equity judge—do what you can, take a guess at
missing party’s claim
a.
i.e. if there are 3 people involved and one is MIA, maybe assume that
person’s claim is for 25%, and give each person 25%—if the person
materializes and is actually owed more or less, judge can adjust
Trilogy Two:
COUNTERCLAIMS (Rule 13)
Claim that def makes against plaintiff; counterclaim can basically be anything
 13a Compulsory Counterclaim  any claim arising out of the transaction or occurrence that is the subject
matter of the opposing party’s claim
o If def brings counterclaim, plaintiff is required to bring compulsory counterclaims of his own, if
they are transactionally related
o If either party fails to assert a compulsory counterclaim, he waives his right to assert it later
 13b Permissive Counterclaim  everything else!
o A pleading may state as a counterclaim any claim against an opposing party not arising out of the
transaction or occurrence that is the subject matter of the opposing party’s claim
 New parties may be brought into suit as part of a counterclaim provided there is
jurisdiction
 HYPO: Two cars collide on a road; one party gets out and punches the other. Is battery compulsory?
o T&O test requires a pretty good logical relationship between claim and counterclaim  in this
case, it’s a different cause of action but a related series of transactions or occurrences
 Most courts would say that this is a compulsory counterclaim
 This seems broad—may embrace things that are separated by time and space
o Rule doesn’t specify consequences of non-assertion  claim preclusion? Res judicata?
o If driver is cautious, will bring all claims forward now—if they aren’t 13as, they’re 13bs
CROSS-CLAIMS (Rule 13g)
Co-parties can cross-claim, as long as they are in the same tier
 Cross-claims must arise out of the transaction or occurrence that is the subject matter of the original action
or a counterclaim therein
o Tolerate broad counterclaims because they are about the same fight—but cross-claims are limited
because don’t want the cross-claims to disrupt the original lawsuit
 Cross-claims are thus completely permissive and carry a T&O requirement
o However, once get cross-claim under 13g, then obliged by 12a compulsory counterclaim to file
any compulsory counterclaims against cross-claiming party
THIRD PARTY CLAIMS (Rule 14a)
Called impleader in many jurisdictions  action for contribution, indemnity, etc
 Rule doesn’t specifically say T&O, but all 3rd party claims must emanate from the underlying claim 
logical relationship, series of T&Os, etc
 Unlike counterclaim and cross-claim, in effect brings a new action
o Bringing in a new party raises all traditional in personam jd issues
o If plaintiff can’t get supplemental jd, then has to take claim against 3 rd party to state court due to
§1367(b)
 Owen v. Kroger: If you wouldn’t allow plaintiff to sue Owen directly, shouldn’t allow
her to do that indirectly by virtue of the 3 rd party defense practice procedure
V. DISCOVERY
Centerpiece of civil litigation in this country, #1 area in terms of rule-making activity within the Fed Rules
 Philosophical underpinning  leveling the playing field, avoiding trial by surprise
o Everyone has equal access to all relevant information  maximizes likelihood that the court gets
it right
 Discovery enables summary judgment to work
o Designed to determine if there is a triable issue, or if there was a way to resolve the case without
trial by enabling judge to work with the pleadings augmented by discovery productivity?
o Trying to avoid trial if there isn’t a reason to go to trial



Discovery is labor-intensive, costly, takes a long time
Discovery is intrusive at many levels: functioning of entity, privacy, economics of litigation
Only 50% of federal cases have discovery at all, and discovery is only limited to 10 events
o In lengthy, complex civil cases (10%) there are more than 10 events
Three Important Discovery Areas
1. Scope of Discovery – what is the legitimate area of inquiry?
2. Discovery Devices – what methods do the parties have at their disposal to gather evidence?
3. “Work Product Doctrine” – Hickman v. Taylor
I. SCOPE OF DISCOVERY
Federal system determines scope of discovery, discovery mechanisms
 Kelly v. Nationwide Mutual Insurance: decided before the fed rules
o State law held that discovery could ask about anything relevant to an issue in the action (as
opposed to being restricted to an issue in the pleading)  moving towards fed rules
 Can’t seek privileged information
 Information sought must be admissible as evidence
 Rule 26b1  Federal standard broadens discovery scope and limits
o Discovery on any matter not privileged that is relevant to the claim or defense of any party
 “Relevant to a claim or defense” scope  plaintiffs always fight to maintain this open
scope, defendants always fight to narrow it
o Materials don’t have to be admissible at trial to be discovered at this stage
o Rule 26f  parties mandated to get together and negotiate discovery before judicial conference
 Seattle Times v. Rhinehart: newspaper orders donor list/member list for discovery
o Court grants discovery, but with a protective order
 Doesn’t want people using discovery regime cavalierly, for ulterior motives
o Illustrates the extraordinary discretion of the trial judge, as far as what is/isn’t discoverable
 All of these discovery orders are interlocutory—rarely appealable
 Rule 26c  Protective Orders
o Protective orders have been a battlefield for over a decade
o Raises issue whether a civil litigation is a public or a private process
 Discovery drafters thought it was a private process—scope of discovery much broader
than the scope of admissibility
 Many go to alternative dispute resolution to gain the privacy they can’t get in court
II. DISCOVERY DEVICES
1. Mandatory disclosure (Rule 26a)  automatic obligation to turn over certain information—regardless of
whether anyone asks for it or not
a. Documents, witnesses, damage computations, insurance policies qualify for mandatory disclosure
i. These are things that the rulemakers believe are so obvious, central, and important to
getting going that no motion should be needed
b. Don’t get to discovery until you’ve gotten through disclosure
i. Most lawyers would say that nothing much turns on this rule
2. Deposition  can question any person (party or not) under oath regarding subject matter of the case
a. Notice is only required if deponent is a party—can force a non-party with a subpoena
b. Strength of deposition is that it’s spontaneous, respondent must answer on the spot
c. Respondent must answer all questions  depositions can include things that are inadmissible
i. i.e. not an objection that they’re talking about hearsay
d. Rules 31, 33  limit each party to 10 depositions (up to 7 hours each) without a court order
3. Deposition on written questions  rarely used; can also be directed at anyone
a. Saves money (oral depositions are very costly), and works well when the witness isn’t antagonistic
b. Downside is that you aren’t there—you’re stuck with whatever questions you sent in advance,
can’t react to what the person says
i. However, if something shows up, can opt to orally depose the witness
4. Interrogatories  questions sent to other party who answers them with lawyer and sends back
Work shifters  less cost for questioner, more for answerer; easier to write questions than answer
them
i. Gives interrogating party the benefit of the entire information base (not just what other
party knows personally)
ii. Many lawyers use as a sweep  find out who knows what, and then depose them
b. Interrogating party writes out all their questions, limit of 25
i. Rule 33  used to get baseline data, used for things with a specific answer
Document discovery / land inspection (Rule 34)  access to land, machinery, laboratories, computer
systems, and electronic data
a. Following conference in accordance with Rule 26d, just give notice about what you want to see
b. This discovery device now becoming as important as depositions in products liability, etc
c. Pervasiveness has led Advisory Committee to consider new Fed Rules on electronic discovery
i. Is there a duty to maintain information? How long? What kind of storage?
Physical/Mental examinations (Rule 35)  court order to submit to examination
a. Only discovery device that requires a motion and subsequent court order for imposition
b. Rule requires def to establish two required elements before court issues order 
i. Good cause—needs info from the exam that it can’t get elsewhere
ii. In controversy—matter being examined is specifically in dispute in the case
c. Closest of all fed rules to violating the Rules Enabling Act
d. Schlagenhauf v. Holder: bus driver involved in accident, def petitions court to issue order for 4
exams
i. Court says must balance privacy rights and interest in resolving disputes justly and
expediently
ii. Since plaintiff didn’t assert his condition in his claim, court says Rule 35 requires def to
demonstrate good cause and the fact that his condition is in controversy in the case
1. Because no evidence brought to support requirements, SC reversed the exam
orders
a.
5.
6.
III. WORK-PRODUCT DOCTRINE
 Rule 26b  Codification of the Hickman rule
o A party may obtain discovery of documents and tangible things prepared in anticipation of
litigation or for trial by or for another party (or representative) only upon showing substantial need
and unable without undue hardship to obtain substantial equivalent by other means
o Court shall protect against disclosure of mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning the litigation
 If mixed, judge will receive documents and cross off all the stuff that’s work product
IV. PRE-TRIAL MANAGEMENT
 Rule 16  Pretrial Conferences; Scheduling; Management
o Gives court power to sequence, direct, schedule and manage in every respect
o Prior to 1983, judges did not have to involve themselves with the idea of settlement
o Rule 16 amended the requirements dramatically
 As soon as case falls within the docket (few exceptions), the judge grabs it and holds a
conference to determine the scheduling, sequencing, management, etc of the case
 Puts much greater pressure on parties to get moving on a settlement
o This and subsequent conferences create a triangulated system to promote settlement
 Judge now major participant in process (20% of judicial resources shifted to
management)
 Some believe push for settlement hinders parties’ right to adjudication
Below fed rules, each district has local rules, and judges may even have their own rules.
VI. SUMMARY JUDGMENT
Two questions to ask when considering a MSJ:
1. What is a material fact?
o Those are facts needed to resolve the dispute.
2. What constitutes a “genuine dispute” of material fact?
 Serves as a filtering device  designed to shorten trials, motion made in the middle of a case
 Stages of trial that serve as filtration devices—should the trial go on?
o Rule 12b6 Motion to dismiss  has anything been stated that amounts to a claim for relief?
 Def says there is no claim upon which relief can be granted
 Def who makes motion makes concession that all of the facts of the complaint are true
 If granted, there is usually leave to re-plead
o Rule 12c Motion for judgment on the pleadings
 If granted, there is usually leave to re-plead
o Rule 56 Motion for summary judgment  asking is anything jury-worthy?
 Universal standard = is there a genuine issue of material fact?
 The party moving for summary judgment must make a sufficient showing that
there is no genuine dispute of material fact to be tried.
 The moving party must satisfy its burden of production by producing evidence
of a lack of any material dispute in order to make a sufficient showing
 The nonmoving party must then submit evidence demonstrating that there is
actually an issue of fact that needs to be tried.
o If the nonmoving party makes a sufficient showing -> MSJ is denied
o If the nonmoving party fails to make a sufficient showing -> MSJ is
granted
 In order to obtain summary judgment, the defendant only has to demonstrate
that there is no issue of fact as to at least one element of the plaintiff's claim.
 The plaintiff will have to prove every element of their claim.
 Granted if plaintiff’s case has no legal basis (i.e. no legally recognized wrong)
 Granted if all material in the motion sings the same song (i.e. no reasonable jury
could disagree with it all)
 Granted if there is a iron-clad defense that can’t be overcome (i.e. statute of
limitations has expired, res judicata applies)
 If there is, go forward—if there isn’t, in effect you’re saying there is nothing trial-worthy
 If granted, produces final judgment with res judicata effect—not appealable!
o Rule 50 Directed verdict motion  judgment as a matter of law; asking is anything jury-worthy?
 Essentially the same as a Rule 56 Motion—but timing is different
 Case is getting more mature, motion-making getting less forgiving
 Def claims plaintiff’s evidence is insufficient, doesn’t satisfy the burden of proof
 If granted, produces final judgment with res judicata effect—not appealable!
o JNOV  renewed motion for judgment as a matter of law
 Case went to jury, jury ruled, and verdict-loser is making this motion claiming that the
case actually shouldn’t have gone to a jury
 Same motion as directed verdict, Rule 56—reflects back to whether issue was juryworthy
 If judge grants, he changes the verdict!
o Motion for a new trial
Highly discretionary—e.g. granted when discrimination is found
 The only reason we have trials is to determine issues of facts—if no facts are in dispute, judge can rule on
case as a matter of law
o 1Ls often miss this  if there are no triable issues of fact in fact pattern, no reason for trial!
RULE 56(c) CASES:
 HYPO: Student is walking to school, hit in crosswalk. Plan to present eyewitness accounts at trial from
various religious figures who will all testify they saw the student in the crosswalk, then saw the car hit him
while driving like a bat out of hell. Def plans on putting a less credible alcoholic on the witness stand to
testify that plaintiff was running, looked drunk, saw the car coming, and shouted “hit me, hit me,” and that
the car tried to stop.
o Pretty obvious that plaintiff would win at trial
o

Plaintiff makes summary judgment motion, claiming there is no genuine issue of material fact
with respect to negligence 
 Judge can’t consider facts—merely asks are the facts in dispute?
 Facts are in dispute if we believe def’s witness, but at trial we wouldn’t believe
him
 But factual disputes should be left to the jury, because regardless of how
obvious it seems there is an issue of credibility that the jury must decide
o This case must go to a jury—summary judgment shouldn’t be granted
Celotex Corp v. Catrett: plaintiff sues for husband’s asbestos-related death
o Joint liability theory  plaintiff allowed to sue a number of different defendants, as long as
plaintiff can prove that each def manufactured, or caused to be manufactured, the asbestos her
husband was exposed to
 Here she wasn’t able to prove that Celotex manufactured the product AND that her
husband was exposed to Celotex’s products
 Majority holds that movant must support her motion for summary judgment; must “prove
it”
 Brennan’s dissent says this the majority’s opinion doesn’t provide any guidance
for what a lawyer needs to do when moving for summary judgment!
o A moving party who is a claim opponent does not need to produce any independent evidence, it
need only point to an absence of evidence by the non-moving party/claimant to show there is no
genuine dispute of material fact.
Celotex Corp. v. Catrett
477 U.S. 317 (1986).
Lawsuit:
Plaintiff:
Catrett
v.
Burden as Defendant/non-claimant:
Burden as Claimant:
Burden of pleading affirmative defenses;
Burden of production for some affirmative
defenses as designated by substantive law
Burden of pleading claims;
Burden of production
Motion:

Claim Opponent/Movant:
Celotex
Defendants:
Celotex; 14 other manufacturers
v.
Claimant/Motion Opponent:
Catrett
Burden as Claim Opponent/Movant:
Burden as Claimant/Motion opponent:
Burden to “point out” factual insufficiencies
to court
Burden of production to show that there is a
genuine issue of material fact.
Matsushita: Nonmoving party should receive the benefit of all reasonable doubts as to whether there is a
genuine dispute of material fact, but speculation is not permitted when then nonmoving party is a claimant
and has set forth an implausible theory of liability.
 Anderson: Nonmoving party must produce sufficient evidence from which a reasonable jury could kind in
favor of the nonmoving party. This is affected by the standards the jury would apply at trial.
 Coble v. City of White House
Scott v. Harris: [the police chase case, the video]
- Police officer has the burden of proof.
-
The substantive law = police can use deadly force if reasonable.
Scott v. Harris (video tape clear as to what happened) – when evidence is clear you can grant SJ even
if evidence on both sides
Rule 56(c)-(h)
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--including the facts considered
undisputed--show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that may not be
genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may
enter an order stating any material fact--including an item of damages or other relief--that is not genuinely
in dispute and treating the fact as established in the case
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is
submitted in bad faith or solely for delay, the court--after notice and a reasonable time to respond--may
order
the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as
a result. An offending party or attorney may also be held in contempt or subjected to other appropriate
sanctions
X. CLAIM AND ISSUE PRECLUSION
Four simple rules of preclusion
1. Can only present a claim once
a. Can’t split the claim—if you do, you lose the 2nd piece
b. Question of how you define “claim”?
2. Once legal/factual issue has been adjudicated, can’t seek to have it re-determined
a. Outsider can overturn, as a matter of stare decisis, but an insider cannot ask—even if it is
demonstrably wrong (because insider is barred by preclusion!)
i. Stare decisis  idea that once an adjudication is made about some legal issue, that
decision is entitled to presumptive validity in future cases, unless you can persuade judge
that there’s a good reason to go back!
b. Question of what is the quality of adjudication you need to be sure?
3. Nobody can be injured by preclusion, unless they’ve had their day in court
Preclusion can’t be applied unless someone has had opportunity to raise claim/have his day in
court
b. Question of how you define those that are precluded, and their relationships with people outside
the courtroom, who aren’t precluded?
i. To what extent do you reach inside the proceeding to the outside, to treat outsiders as
though they are precluded? Think about this with regard to class action suits
Law disfavors preclusion
a. Knows that if preclusion kicks in, potential for injustice is significant
b. Preclusion is a defense that must be raised early in the proceedings, or else it is presumed waived
a.
4.
Claim preclusion: results in the dismissal of important legal arguments without them ever being considered by a
court

TEST: The Restatement (Second) of Judgments, promulgated in 1982, takes an expansive view of the
scope of claims precluded by a judgment. Section 24 provides:
o When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the
rules of merger or bar, the claim extinguished includes all rights of the plaintiff to remedies against the
defendant with respect to all or any part of the transaction, or series of connected transactions, out of
which the action arose.
o What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be
determined pragmatically, giving weight to such considerations as whether the facts are related in
time, space, origin, or motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties' expectations or business understanding or usage.
Defense preclusion: this is large subsumed by Rule 13 Counterclaims and Crossclaims. A party failing to assert a
compulsory counterclaim is normally barred by claim preclusion from asserting that claim in a subsequent
proceeding



prevents defendants who failed to assert counterclaims in an earlier proceeding from subsequently asserting
those claims.
Rule 13. Counterclaim and Crossclaim
o (a) Compulsory Counterclaim.
 (1) In General. A pleading must state as a counterclaim any claim that—at the time
of its service—the pleader has against an opposing party if the claim:
 (A) arises out of the transaction or occurrence that is the subject matter
of the opposing party's claim; and
 (B) does not require adding another party over whom the court cannot
acquire jurisdiction.
The Restatement (Second) of Judgments, § 22: Effect of Failure to Interpose Counterclaim provides:
o (1) Where the defendant may interpose a claim as a counterclaim but he fails to do so, he is not thereby
precluded from subsequently maintaining an action on that claim, except as stated in Subsection (2).
o (2) A defendant who may interpose a claim as a counterclaim in an action but fails to do so is
precluded, after the rendition of judgment in that action, from maintaining an action on the claim if:
 (a) The counterclaim is required to be interposed by a compulsory counterclaim statute or
rule of court, or
 (b) The relationship between the counterclaim and the plaintiff's claim is such that
successful prosecution of the second action would nullify the initial judgment or would
impair rights established in the initial action.
o CNOF and claim aren’t the same thing
 Read CNOF as broadening the outer limits of what you can do
 Read claim more carefully—worried about mouse-trapping someone into a situation with
2 claims
Issue preclusion:
 HYPO: Plaintiff sues village for damage to car. Plaintiff wins. Plaintiff sues for damage to body.
o




If those are two different claims, plaintiff clearly wins case 2, because def had his day in court and
lost
 Therefore in 2nd case, def is collaterally estopped, and action in 1st case would control
action in 2nd
o If there was an actual adjudication in the 1st case, and it was necessary to the verdict, that
adjudication is binding on the def in case 2
 Default judgments, guilty pleas are not actual adjudications (and therefore not binding in
case 2)
HYPO: Art is arrested for selling amphetamines.
o In case 1, def pleads guilty.
o Case 2  def sues cop for damages, claims violation of the 4 th Amendment (illegal search and
seizure)
 This would seem to be a case of issue preclusion, because the question in the 2 nd case is
whether or not the search that led to the 1st case was illegal
 But a guilty plea isn’t an actual adjudication, so can’t apply preclusion rules
Preclusion locks in a result once damages have been paid  doesn’t matter how certain you are that
judgment is wrong (barring fraud)
o Res judicata: used to apply to both claim and issue preclusion, often without guidance from judge
 But really means claim preclusion, when used precisely
o Collateral estoppel: used to apply to issue preclusion
 But don’t use res judicata and collateral estoppel—use claim and issue preclusion
terminology
Preclusion is the end of the line chronologically
o Has a relationship to the joinder material, often applied in the context of party and claim joinder
o Also bears on class actions
Park Lane Hosiery: phenomenon of non-mutual collateral estoppel  ability of a stranger to take
advantage of a private determination against someone who had his day in court
o Action 1: SEC v. Parklane—SEC wins, Parklane loses (injunction, no jury trial)
o Action 2: Investors v. Parklane—investors win
 Jury trial right
 Collateral estoppel is permitted here  these strangers, who weren’t in the 1st action, are
allowed to take collateral estoppel effect from the decision in action 1 (that Parklane was
responsible)
 This is allowed because the presence of the investors was clearly known at the
point of the 1st action
 There’s an additional aspect that since action 1 is an SEC prosecution under
securities laws, investors can’t intervene on it
o This is annoying—allows people to sit on sidelines, watch at no risk
o Issue Preclusion (Collateral Estoppel)
 5 elements:
 C1 must have ended in a valid, final judgment on the merits
 The same issue was actually litigated and decided in C1
o Look at:
 Pleadings/amendments
 Answer
 If trial look at transcript/evidence introduced
 Elements of a claim
 Jury instructions and jury form
 Decisions on motions for SJ/motions to dismiss
 That issue is essential to the judgment in C1
o If general verdict by the jury then don’t know what was essential and
can litigate issues in C2
o


We say if everything is the same and we change the one issue to see if
it is essential to the judgment and see what would’ve happened
(“alternative universe” test)
Against whom can issue preclusion be used?
o Only against someone who was a party in C1
 Exceptions:
 Preclusion by contract
 Virtual representation (adequate representation)
 Laboring oar (basically calling the shots in C1)
By whom can issue preclusion be used?
o Mutuality says only by someone who was party in C1 (traditional view)
 Exceptions:
 Preclusion by contract
 Virtual representation (adequate representation)
 Laboring oar (basically calling the shots in C1)
o But we have moved away from this mutuality rule
 Non-Mutual Issue Preclusion
 Non-Mutual Defensive Issue Preclusion (D in C2
using it)
o Ok if the person you are using it against had
full chance to litigate in C1
 Non-Mutual Offensive Issue Preclusion (P in C2
using it)
o Most courts reject this
o Cant use non-mutual offensive issue
preclusion against the government because
they litigate so many cases and don’t want
them to have to choose what to litigate
o Parklane says its ok as long as it’s fair. It
gives us fairness factors (not sure how to
weigh them though):
 Person you are using it against had
full chance to litigate in C1
 Person you are using it against
could have foreseen multiple suits
(so now he will litigate very hard in
C1)
 The person using it could not have
joined easily in C1
 There are no inconsistent judgment