I. Personal Jurisdiction (court’s power over the parties – defendant or property)
Personal liberty
A. In Personam Jurisdiction
1. Constitutional Standard – Due Process Analysis – series of cases.
Pennoyer v. Neff – Four traditional bases of in personam jurisdiction
a. D was served with process in the forum – general jurisdiction
(presence as the basis of jurisdiction)
b. D’s agent was served while in the forum
c. D is domiciled in the forum
d. D consents to personal jurisdiction
Rule 4(k) Territorial limits of effective service
1. General – serving summons/filing waiver establishes
personal jurisdiction
A.
2.
Subject to jurisdiction - general jurisdiction
in state
B.
Party joined under 14 or 19 < 100 miles
C.
Federal Statute
Federal Law
Hess v. Pawloski – Supreme Court expanded personal jurisdiction by expanding
traditional bases. MVC: MA/PA DMV is agent and you consent by driving here - statute
International Shoe Co. v. Washington – The court has jurisdiction if D has such
minimum contacts with the forum so that exercise of jurisdiction does not offend
traditional notions of fair play and substantial justice. 1945 – We can serve process
outside the forum state. Contact and Fairness. IT DOES NOT OVERRULE PENNOYER
McGee v. International Life Ins. Co. – Importance of state’s interest. 1957. Texas Ins. Co
sold in CA. They solicited business, they REACHED out. CA had interest in protecting
citizens of state. Led to more longarm statutes
Hanson v. Denckla – Purposeful availment. To be a contact, it must result from
the D’s purposeful availment of the forum. Something the Defendant did
World-Wide Volkswagen v. Woodson – It must be foreseeable that D could get
sued in the forum.
Calder v. Jones and Walden v. Fiori – Contacts based upon causing an effect in the
forum. Wrote and edited in Florida. Defamed actress in CA. Purposeful availment in
CA because cause and effect there. The CALDER effect.
Burger King Corp. v. Rudzewicz – International Shoe consists of two parts. (1)
contact, and (2) fairness. To show jurisdiction is unfair, D must show that
defending the case is so gravely difficult and inconvenient that D is at a severe
disadvantage in the litigation. However, the relative wealth of the parties is
irrelevant. BK brought case in FL as HQd there. D availed themselves of FL. Burden on
D to show inconvenience.
Asahi Metal Industry v. Superior Court – Stream of commerce case, on which
Court fails to give a majority opinion but sets forth two competing theories for
what constitutes a “contact.”
O’Connor vs Brennan.
Brennan: is contact if I put the item in stream of commerce and I reasonably expect it to get to state C.
OConnor: you need Brennan PLUS intention to serve the market in state C – advertisement or customer
service in state C
J. McIntyre Mfg. Co. v. Nicastro – Court revisits stream of commerce and again
fails to set forth a majority test for “contact” in stream of commerce cases. Still split – no
decision. Some did (4) OConnor – 2 did neither test and 3 dissented like Brennan
approach.
Burnham v. Superior Court – Upholds general jurisdiction in California but fails
to generate a majority on whether such jurisdiction is because service of process
in the forum is a traditional basis or because it meets International Shoe.
Goodyear and Daimler – Court limits general jurisdiction to cases in which D is
“at home” in the forum. An individual is “at home” where domiciled and a
corporation is “at home” both in the state of incorporation and the state of its
principal place of business.
Recap. Lecture provides an analytical framework for assessing the
constitutionality of personal jurisdiction.
Does traditional basis apply? In forum? Domiciled there? – DONE.
Minimum contact with forum (Int’l shoe)?
Relevant contact between D and forum?
Purposeful availment?
Forseeablility they would be SUED in state?
Stream of commerce? OConnor vs
Brennnan view.
Does Ps claim arise from Ds CONTACT with the forum?
If not then need General Jurisdiction – domiciled or incorporated or
priniciple place of business.
Fairness? Reasonable? ONLY IN SPECIFIC JURISDICTION CASES.
Burden on D to show GRAVE inconvenience – nearly impossible to
meet.
Forum state interest (McGee – CA had an interest to protect citizens)
P interest – they may not be able to travel
Legal system interest in efficiency – shared substantive policies of the
states.
2. Statutory Standard. – must have STATE statute before constitutional analysis Has the state
assorted Jurisdiction, and is it constitutionally ok?
Every state claims general jurisdiction over D served with process in the forum.
Every state has a statute that gives general jurisdiction over D domiciled in the
forum.
Every state has a non-resident motorist act.
Long-Arm Statute – Every state has one, to allow jurisdiction over non-residents.
Two types:
i. California statute – Statute reaches to the full extent of due process
ii. Laundry list statute – A non-resident D can be sued in the state on a claim that
arises from D doing something specific in the forum. Business in the forum, tort
in the forum
B. In Rem and Quasi-in-Rem Jurisdiction. Here, the court’s power is over the D’s real or
personal property, not over D herself.
In Rem Jurisdiction – The case is about ownership of the property itself.
Quasi-In-Rem Jurisdiction – Lawsuit has nothing to do with ownership of the
property, but property is used for a jurisdictional basis. (property arrested – admiralty vessel held
in port until bond paid)
There must be an attachment statute, which allows court seizure of property
jurisdictional predicate.
Constitutionally, property must be attached at the outset of the case and, under
Shaffer v. Heitner, D must be subject to jurisdiction under International Shoe.
Pennoyer – Mitchell v Neff could not get in personam – Mitchell used land to get jurisdiction. But the
property was not seized at the outside of the case.
THIS IS NOT LONGARM THIS IS AN ATTACHMENT STATUTE
II. Notice and the Opportunity to Be Heard – how you get to court
A. Service of Process – way we give notice to defendant (RULE 4)
1. Process – Process consists of a summons and a copy of the complaint. -2 parts must be
present
2. Rule 4(c)(2) – Service can be effected by any non-party who is at least eighteen
years old.
3. Process must be served within 90 days after filing the complaint. Rule 4(m).
4. Service of process on an individual (human). There are 3 alternative methods for
service of process:
• Personal Service – Deliver the papers directly to D – can be done anywhere
in the forum state.
• Substituted Service – D’s dwelling or usual abode AND serve someone of
suitable age and discretion who resides there. (mechanical rule)
• Agent Service – Serve D’s agent. Ie the non-resident motorist act
• Rule 4(e)(1) – The court may also use any method for service of process that is
allowed by state law of the state where the federal court sits OR in which
service was effected. (certified mail allowed in many states)
5. Service of process on a business. Serve an officer or managing or general agent
of that corporation. Also, Rule 4(e)(1) applies. Title does not matter –
responsibilities of job matter.
6. Geographically, service may be made anywhere in the forum state; it may be made
out of state only if a state court in that state could do so. Fed Ct have chosen to limit
personal jurisdiction to that of the jurisdictional statute of the state.
7. Waiver of service – Method for waiving formal service of process. Send process
and two copies of a waiver form to D with a self-addressed stamped envelope. If
she returns it, then she waives service of process. If she does not waive formal
service of process in this way, then P must will have service affected formally.
Then, though, D will have to pay for the service.
B. Constitutional Standard for Notice (DUE PROCESS)
Mullane v. Central Hanover Bank – Notice must be reasonably calculated under the
circumstances to apprise D of the suit. 1950 does not require ACTUAL notice.
Jones v. Flowers – usually it is not required that D actually receive the service; but if
P is aware that D has not, due process may require that P make further effort to ensure
notice. 2006 state KNEW he did not reside there – letters were returned.
Notice by publication – Usually in the newspaper. This type of notice might be
permitted depending on the facts,but is a last resort.
Upheld in Mullane – did not know the names nor addresses so it was ok.
C. Opportunity to Be Heard
(usually in the
summons)Factors to
protect D:
1. D gets a hearing on the merits at some point. For their excuse for not paying
2. P must give an affidavit of its claim.
3. May require that P’s affidavit state the facts in specificity.Not conclusory allegation
4. Get a writ of possession from a judge, not a sheriff.
5. P may be required to post a bond to cover D costs if they win.
6. D gets the property back pending litigation by posting a bond.
These are from the repossession cases – Due Process safeguards. Fail to pay one payment and the
store repossesses – gets their permission from SHERIFF) protect buyer from PREJUDGMENT
SEIZURE. Based on conclusory allegations.
III. Subject Matter Jurisdiction CONGRESS ONLY (court’s power over the case) in what
COURT in that state is P going to sue? We have a forum do we go to Federal or State court?
State can hear ANYTHING. Article III limits Federal Court jurisdiction (could still go to
state court).
federal district courts will not exercise jurisdiction over domestic relations or probate proceedings.
A United States citizen domiciled abroad is not a citizen of any state and is not an alien, and thus
cannot be sued on the basis of diversity jurisdiction.
A. Diversity of Citizenship. Two requirements under § 1332(a)(1):
1. Case must be between citizens of different states.
A. Complete diversity rule no diversity if any P is citizen of same state as any D
(Strawbridge)
B. Test for diversity when the case is filed.
C. A human U.S. Citizen is a citizen of the U.S. state in which she is domiciled.
D. A corporation is a citizen of all states where incorporated, and the one
state where it has its principal place of business (defined as nerve center) HQ
(managers, where board of directors are)
E. Citizenship of an unincorporated business, such as partnerships or
limited liability companies (LLCs). Look to the citizenship of all
members.
F. Suits on behalf of decedents, minors, and incompetents – In those cases, look to
the citizenship of the person being represented.
2. Amount in controversy must exceed $75,000.
A. The amount must exceed $75,000, not counting interest on the claim or costs.
B. P’s claim governs unless legal certainty not exceed $75,000.
C. P’s ultimate recovery is irrelevant to subject matter jurisdiction.
D. Aggregation adding multiple claims to get over $75,000. We aggregate
claims if there is one P versus one D. Cannot aggregate if there are multiple
parties on either side. However, if there have joint claims, consider total value
of claim. Joint claims number of parties is irrelevant – joint liability
B. Federal Question jurisdiction. Under §1331, P’s must “arise under” federal
law. Citizenship is irrelevant and amount in controversy does not
matter.
Well-pleaded complaint rule: is P enforcing a federal right? CLAIM MUST ARISE
UNDER FEDERAL LAW – only look at complaint, at CLAIM itself. 1908 Motleys
(RR injury, got a lifetime pass – Congress passed a law no free passes, Motley sue RR –
breach contract and law does not apply to us – NOT Fed court because NOT enforcing a
federal law, the law takes AWAY a right. The case is a breach of contract case which is
state law. The federal law is a defense that will be raised by RR) If Federal only comes
up in the ANSWER not a federal case.
C. Supplemental Jurisdiction – case already in Federal Court, adds a claim to a case already
there. This does NOT get the case into Federal court
United Mine Workers of America v. Gibbs 1966 recognizes supplemental jurisdiction.
§ 1367 codifies the doctrine today. The labor law was Federal law. The second claim
arose under the same overall dispute but was under STATE law. A common nucleus of
operative fact. The same real world facts. Gibbs called it pendant not supplemental.
1. Does §1367(a) grant supplemental jurisdiction to this claim? Yes, if it meets Gibbs.
2. §1367(b) – Eviscerates supplemental jurisdiction, but only in some situations BY THE
PLAINTIFF not D.
§ 1367(b) applies only in diversity cases NOT FEDERAL QUESTION to the
following claims:
a. Claims by P’s against parties joined under Rule 14, 19, 20, or 24
b. Claims by Rule 19 P’s.
c. Claims by Rule 24 intervening P’s.
D. Removal jurisdiction. This allows D to remove (transfer) to Federal Court do not need
permission (§1446 etc)
1. General rule: removable if case could have been heard in federal court.
2. May remove only to district embracing the state court.
3. File notice of removal in federal court within 30 days of service of the document
that first made the case removable. Starts afresh with each service of process. This
only applies to each D SERVED not each D named.
4. All Ds served with process must join in the notice of removal
5. Motion to remand is by P.
6. Exceptions to general rule in cases invoking diversity of citizenship jurisdiction:
(A) No removal if any D is a citizen of forum; (B) Cannot remove more than one
year after the case was filed in state court.
IV. Venue – which federal court we go to (94 courts exist)
A. Basic Provisions – general rules §1391(b)(1) or (b)(2)
1. In removal cases, venue is in the district embracing the state court.
2. In cases filed initially in federal court, P has two venue choices:
1. Any district where all D’s reside, or
2. Any district where a substantial part of the claim arose.
If all Ds reside in forum state ie one in Northern District of CA and other in Southern
District of CA then can sue in either district of CA if CA is the forum state.
B. Transfer of Venue must be within courts of same system – Federal District Court transfer (ie
Maine to Hawaii)
1. Terminology
a. Transferor court – The court from which case is transferred.
b. Transferee court – The court to which the case is transferred.
2. Two Transfer Statutes in the Federal System
A. §1404(a) – The transferor court is a proper venue. The other place makes more
sense ergo makes more sense to litigate there. Public and private factors.
B. §1406(a) – The transferor court is an improper venue.
C. Forum Non Conveniens. Transfer not possible. Ergo we dismiss and let P sue in other place.
V. The Erie Doctrine In Federal court under diversity jurisdiction – Must Judge apply State
law or free to ignore? 2 prongs to analysis
Swift: Judiciary Act 1789. State laws should apply in Fed – Lord Mansfield, Cicero
A.
Hanna v. Plumer 1965. – first question – is there a Federal Provision that is on point that
directly conflicts with State Law? If yes, then we apply Federal Law as long as it is valid.
B.
Supremacy clause of constitution wins – Erie does not apply.
This includes Federal Rules of Civil Procedure – Look at RULES ENABLING ACT
§2072 – valid if PROCEDURAL 2010 Shady Grove: process serving MA state law vs
Rule 4. See Sibbach
C.
Erie Itself
1938 – Must apply State SUBSTANTIVE law. Rules of Decision Act §1652 and 10th
Amendment. Powers not given to Feds are retained by the state.
If NOT substantive do not have to follow state law. SCOTUS not clear.
Clearfield 1943 – made up Federal Common Law – court can fill in the gaps.
1. Outcome determinative – (Guaranty Trust v. York) 1945. Statute of limitations of state had to
apply as it was outcome determinative – so that made it substantive not procedural. Had to
follow state law. Expands Erie
2. Balancing of interests – 1948 (Byrd v. Blue Ridge Rural Electric Cooperative) Judge not jury
deciding the issue. If law not clearly substantive follow unless there is a Federal court interest
in doing differently. 7th amendment was more important.
3. Twin aims of Erie 1965 (Hanna v. Plumer): if judge ignores this state law will people flock
to Fed Ct?
a. Avoid forum shopping.
b. Avoid the inequitable administration of the law
VI. Pleadings
The goal is NOTICE pleading used to be just to NOTICE then TWIQBAL
A. Rule 11 – avoiding frivolous, baseless documents (all documents except discovery
documents) MUST SIGN – you are certifying.
1. Certification:
a. The document is not for an improper purpose.
b. The legal contentions are warranted by law.
c. The factual contentions have evidentiary support.
d. The denial of factual contentions has evidentiary support.
2. Three procedural matters for Federal Rule 11:
a. “Continuing certification” – every time you advocate a position from that case ie a
year from now.
b. Sanctions are discretionary – with the court. and are to be aimed at deterrence.
c. 21-day safe harbor – cannot file a motion for sanctions for 21 days if opposing party
violates Rule 11.
B. Complaint – When the plaintiff files complaint is filed, the lawsuit is commenced.
1. Rule 8(a) – Tells what must be in the complaint.
a. Grounds for subject matter jurisdiction.
b. A short and plain statement of the claim showing that entitled to relief.
c. A demand for relief. Injunction, $$ etc
2. Focus on 8(a)(2): legal sufficiency and factual sufficiency. Historically it was NOTICE
pleading. Twombly (antitrust) 2007, Iqubal (all civil) 2009 changed this
a. “Twiqbal”: P must plead facts supporting a Plausible Claim – ignore conclusions
of law just allegations of fact. Must support a plausible claim not just possible claim.
Judge uses own experience and common sense to decide on plausibility – very
subjective.
b. Heightened pleading requirements – even more than Twiqbal: must give details
i. Rule 9(b) – circumstances constituting fraud or mistake.
ii. Rule 9(g) – items of special damages.
C. D’s Response (if waived formal service of process have 60 days)
1. Rule 12 – Within 21 days of service of process, D must answer (a pleading) or bring motion
(request for court order).
a. Motion 12e – cannot respond - more definite statement – complaint unintelligible J.
hate
b. Motion 12f – motion to strike – scandalous, irrelevant J. hate
c. Motion 12b – 7 defenses motion to dismiss based on them or you can plug them into
your answer (affirmative defense)
(1) Subject matter jurisdiction
(2) Personal jurisdiction
(3) Improper venue
(4) Improper process – documents (summons and copy of complaint)
(5) Improper service of process
(6) Failure to state a claim (twiqbal)
(7) Failure to join an indispensable party under rule 19
12b (2)(,3),(4),(5), must be put in FIRST 12b response or you have WAIVED it.
12 b (6 )(7 )can be any time through trial
12 b (1) never waived even on appeal
2. Answer (is a pleading)
a. Rule 8(b) – Respond to the allegations of the complaint line by line
i. Admit
ii. Deny have to EXPLICITLY deny.
iii. Lack sufficient information to admit or deny (don’t know) 8b(5)
b. Failure to deny is treated as an admission on all allegations except damages.
c. Raise affirmative defenses 8c(e.g., statute of limitations, statute of frauds).Raising a
new fact. Must PLEAD affirmative defense or you WAIVE it.
D. Amended and Supplemental Pleadings
1. Amendment: Rule 15(a), (b) & (c)
a. 15(a) – three basic rules of amendment.
i. P right to amend. 21 days after D served
ii. D right to amend. After answer served
iii. Otherwise, seek leave (permission) of court. – if your 21 days are gone.
b. 15(b) – Variance: Where the evidence at trial does not match what was pleaded. If
the other party does not object to the evidence it comes in. – pretend the pleading was
there all along. If objected to – get up and object on basis of variance.
c. 15(c) – Amendments after the statute of limitations has run add a claim or change D.
only works if we sued the wrong D but the right D knew about it. (Aquaslide)
2.
Supplemental pleadings (Rule 15(d)) something happened AFTER the case was filed
VII. Joinder
How big a case can get – how many claims and how many parties (SMJ matters). Joinder of
parties and claims and is there subject matter jurisdiction for each one
A. Proper parties (Rule 20(a)): who MAY be joined (not must). Tool available to P. can have
co-plaintiffs – ie 3 people injured in one taxi accident. All arise from the same
transaction/occurrence
B. Claim joinder by P (Rule 18(a)) – can aggregate to get $75,000 if one P and one D
C. Claim joinder by D assert claims
1. Counterclaim (Rules 13(a) 13(b)) – against opposing party (so in this case against P).
compulsory cc – same transaction/occurrence as Ps claim – MUST assert it in this case or
you WAIVE it ergo compulsory. THIS IS THE ONLY COMPULSORY one – use it or lose
it. Like the same MVC – FILE IT.
Permissive counterclaim – different transaction/occurrence can bring it here or another
action.
2. Crossclaim (Rule 13(g)) against a co-party. Must arise from same transaction/occurrence.
NOT compulsory.
D. “Necessary” (or “required”) and indispensable parties (Rule 19) 3 steps. Is the absentee is
necessary? If yes by 19(a)(1): test 1: without A party cannot accord complete relief between
the parties (efficiency). Test 2: A’s interest may be harmed if not brought in. Test 3: A’s
interest may subject D may be hurt by multiple obligations. STILL NEED jurisdiction
(personal and subject matter) could end up with dismissal (12b7)
E. Impleader (third-party practice) (Rule 14(a)) third party defendant – brought in by D as they
may be liable as part of the liability to P. P can then also join a claim against third party
defendant. Third party defendant can assert claim against P as long as all are from same
transaction/occurrence – still need to assess for subject matter jurisdiction or supplemental.
• Ex I hit you but it was because of the defect that Ford (3rd party) had in the
car.
F. Intervention (Rule 24): 2 kinds. Needs to be timely. Absentee. P or D. Intervention of right.
Your interest may be harmed if you are not joined (similar to necessary parties). Permissive
intervention – your claim/defense have one common question. (Public Citizen)
G. The Class Action (Rule 23) a representative sues on behalf of the group
1. Prerequisite – must show too numerous for joinder
2. Some question in common to all class members (commonality)
3. Reps claim must be typical of class
4. Rep must be a suitable rep for class
B 3 class action – damages – common questions dominate over individual and class action is the
superior way to resolve than individual.
Not a class action until the court certifies it as such. Rep makes a motion – court has to grant and
appoint counsel.
Notice of pendency – In B3 class court must give individual notice to all members reasonably
identifiable – including that they can opt out.
All members are bound except those in B3 who opted out. B1 and B2 cannot opt out
Settlement or dismissal of certified court must be approved by court
Subject matter jurisdiction – only look at rep for diversity and amount in controversy
VIII. Discovery
A. Required disclosures (Rule 26(a))
B. Rule 27 – elderly etc
C. Discovery Tools
1. Depositions (Rules 30 and 31) 32 – use depo I court
2. Interrogatories (Rule 33) – expect attorney answers
3. Requests to produce (subpoenas to third parties)(Rule 34) electronic is part of
4. Medical examination (Rule 35) mental and physical
5. Requests to admit (Rule 36) yes/no answers
6. Rule 37 – failure to play the game
7. Rule 38 – micromanage discovery
D. Scope of Discovery
1. Standard, including proportionality (Rule 26(b)(1))
2. Privilege for certain confidential communications
3. Work Product (“trial preparation materials”) Hickman v Taylor
E. Enforcement of Discovery Rules – you cannot compel an adversary to create a document that
does not exist.
F. Conferences and judicial management of litigation
IX. Pretrial Adjudication
Who wins/loses without going to trial – pretrial conference, judicial management.
A. Voluntary dismissal
B. Involuntary dismissal
C. Default and default judgment
D. Failure to state a claim (Rule 12(b)(6)) court does not look at evidence. Only looking at
allegations – a PLAUSIBLE claim – Twiqbal. IOW even if the facts are true not a plausible
claim (mind control through a fitbit).
E. Motion for summary judgment (Rule 56) – in the litigation stream but we don’t need to go to
trial. There is no dispute of fact. We can make judgment as matter of law. Court does look at
evidence – proffered by parties – written form. Affidavits, declarations, deposition,
interrogatories. Celotex (whose asbestos) moved this forward. Every fact that is material is
not disputed. Every fact that is disputed is not material.
F. Evidentiary Standards – Preponderance of the evidence. Clear and Convincing Evidence
(slightly more). Beyond a reasonable doubt.
X. Trial
Trial – to resolve disputes of FACT.
Judge decides LAW. Jury decides FACTS.
A. Right to jury trial – Seventh Amendment (Federal Court) – preserves the right at LAW not
equity. Is the claim asserted analogous to a claim asserted in 1791 at Common Law? Then
focus on remedy – remedy at LAW vs remedy at equity.
Jury was only at LAW. Compensatory damages ($$$) – means jury. Equity (rescission,
injunction, performance contract) – NOT jury.
Historically if in a mixed case the center of gravity was equity, would not get a jury. But Beacon
Theater and Dairy Queen changed that. Went issue by issue. And if both law and equity
exist, then you get a jury. Deal with law first with jury then get equity without jury.
A. Selection of jury – voir dire. Challenge for cause (unlimited) and preemptory (3 only no
reason)
B. Motions Related to Trial
1. Motion Judgment as a matter of Law (directed verdict) (Rule 50(a)) reasonable people could
not disagree on the result ergo we do not need the jury. After the other side has been heard.
2. Motion for Renewed Judgment as a matter of Law (Rule 50(b)) must have moved for
judgment as a matter of law to do this and it was denied. So went to jury – this is judgment
NOV. Jury reached a conclusion that reasonable people could not have reached so Judge
takes it away. You have 28 days to do this and you have. To have made the prior motion!!!
3. New trial (Rule 59(a))
28 days to do this. Judge is convinced there is a mistake.
60(b) Motion to set aside a judgment
XI. Appellate Review
US Court of appeals
After that SCOTUS is about 100 of 7000
A. Final (decision) judgment rule § 1291 – that is what is being appealed
File a notice of appeal in the district court within 30 days of entry of judgment on the merits
Do not wait for motions of attorney fees etc (housekeeping stuff)
B. Interlocutory review – any order that is NOT a final order
1. By statute
a.
§ 1292(a) orders about injunction…
b.
§ 1292(b) district and appeal court have to agree – TC has to find controlling
question of law and substantial ground for difference of opinion and appeals court has to
agree to take it
2. By Federal Rule of Civil Procedure
a.
Rule 23(f) class action certification granted or denied
b.
Rule 54(b) multiple claims or multiple parties – DC express finding on one or
more (ie summary judgment of counter claim gets appealed)
3. By common law – collateral order rule
• Important issue – separate from the merits
• The court’s order completely resolves that issue
• That issue is effectively unreviewable if we have to wait for final judgment
4. By extraordinary writs
• Appellate review but not appeal – you are bringing a new order directed at
district judge. Court failing to do something that they should do or is beyond
their jurisdiction.
C. Standard of review – we are at court of appeals
1. Questions of law – reviews de novo. No deference to district judge
2. Questions of fact – if decided by judge will affirm unless clearly erroneous. If decided
by jury will affirm – unless no reasonable juror could make that conclusion
3. Discretion of DC – affirm unless DC abused its discretion (deferential)
XII. Preclusion
Res Judicata and Collateral Estoppel
Case 1 is done
Case 2 is pending – does case 1 judgment preclude?
A. What law applies? What jurisdiction? The court in case 2 applies the preclusion law that
decided case 1. But if you are in Federal court due to diversity, that Federal court will adopt
the state law in all likelihood.
Both claim preclusion and issue preclusion are affirmative defenses that have to be pleaded
B. Claim preclusion – Res Judicata: - merger/bar
C. if you have a claim you get one chance to adjudicate it three requirements
• Rule 1 case 1 and case 2 must. Have same claimant against same defendant
• Rule 2 case 1 ended in a valid final judgment on the merits (Rule 41b)
• Rule 3 claimant asserted the same claim in case 1 and case 2. What is a claim for
this purpose? The transaction or occurrence.
D. Issue preclusion – Collateral Estoppel.
Case 1 A ,X,Y,Z was litigated. Case 2 A,B,C,D – A would be dismissed but not the whole
claim: five requirements
1. Case 1 ended in a valid final judgment on the merits
2. Issue was litigated and determined in case 1
3. That issue was essential to the judgment in case 1
4. Against whom is issue preclusion used? Based in due process – can ONLY be used against
someone who was a party to case 1
5. By whom is issue preclusion asserted? NOT due process. Mutuality. Non-mutual allowed –
non mutual defensive (not a party in case 1 and is a defendant in case 2)
Non-mutual offensive (not a party in case 1 and is plaintiff in case 2) (Parklane Hosiery)
Rule 60(b) Relief from Judgment – 6 sub sections: 1-5 are specific and 6 is catchall.
SELDOM SUCCESSFUL.
Respect for judicial process
Judges need to be obeyed
Must follow a decree unless transparently invalid
Personal Jurisdiction – court’s power over the parties
Notice – service of process how we perfect PJ
Subject Matter Jurisdiction court’s power over the case
Federal Question
Diversity
Venue - mechanical
Forum Selection – ARE WE in the right court can P sue D in this state – same whether state
or federal court.
Erie - only comes up in diversity cases – what law governs
Pleadings gets the case started – D responds by motion or answer. P has to start it with claim.
Remember that the 12b motions/answer have to be FIRST time or waived look for them in fact
pattern are they waived???
Joinder how big does this case get? Need SMJ on every single claim – does it invoke Federal
Question or Diversity? Supplemental Jurisdiction? – common nucleus of operative fact. 1367 a
and b – b only takes away if P bring someone in.
Discovery
Adjudication resolve the case on the merits.
Preclusion – case 1 is over judgment entered. Claim or issue preclusion for case 2? If the whole
claim done. Issue is narrower.
USE THE FACTS IRAC answers – be methodical