Civ Pro - Table of Contents
I.Anatomy of a Litigation - Pleadings ................................................................................ 5
Sources of Civ Pro ..................................................................................................................... 5
Timeline of Litigation ................................................................................................................ 5
FRCP 7 - Pleadings Allowed; Form of Motions and Other Papers ................................................ 5
FRCP 8 - General Rules of Pleading ............................................................................................ 5
FRCP 12 (b) - Defenses by Motion.............................................................................................. 6
Application of Rule 8(a) & Rule 12(b)(6) .................................................................................... 6
A. Conley v. Gibson 1957. (Retired) ............................................................................................................... 6
B. Swierkiewicz v. Sorema 2002. (Sufficient to survive a motion to dismiss) ............................................... 6
C. Bell Atlantic v. Twombly 2007. (Insufficient to survive a motion to dismiss) ........................................... 6
D. Ashcroft v. Iqbal 2009. (Insufficient) ......................................................................................................... 7
Defenses .......................................................................................................................... 8
FRCP 8(b) - Ways to Respond .................................................................................................... 8
FRCP 12 - Pre-answer Motions .................................................................................................. 9
(a) Time to Serve a Responsive Pleading (b) How to Present Defenses ........................................................ 9
FRCP 11 - Signing Pleadings, Motions; Representations to the court; Sanctions 28 USC &1927 .. 10
Case: Zuk v. Eppi - U.S. CT of Appeals for the 3rd Circuit. ............................................................................ 10
FRCP 15 - Amendments ................................................................................................... 11
15(a) - Amendments before trial ............................................................................................. 11
Case: David v. Crompton and Knowles ........................................................................................................ 11
15(c) - Relation back: allows amendment after SoL has run. ..................................................... 12
Case: Krupski v. Costa Crociere - U.S. Supreme CT ...................................................................................... 12
FRCP 26- Discovery ......................................................................................................... 13
FRCP 56 -Summary Judgment ......................................................................................... 14
Rule 56(a) - In general ............................................................................................................. 14
Burdens of Persuasion/ Proof (doesn't shift) ........................................................................... 14
Burden of Production (can shift) ............................................................................................. 15
II. Choosing the Forum .................................................................................................... 16
(A) Personal Jurisdiction ................................................................................................. 16
Does the CT have the power to bring that D from beyond a state's territorial borders into that CT?
.............................................................................................................................................. 16
Two-Step Analysis - Combine constitutional Due Process ( "No person shall be deprived 'of life, liberty, or
property, without due process of law." ) + State's Long-arm Statute. ........................................................ 16
Old Caselaw............................................................................................................................ 18
a. Pennoyer v. Neff 95 U.S. 714 (1877) ........................................................................................................ 18
b. Hess v. Pawloski. U.S. Supreme CT (1927) ........................................................................................... 18
Traditional Bases for Jurisdiction ............................................................................................. 19
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Beginning of the Modern Standard - International Shoe Co. v. Washington (U.S. Supreme CT
1945)...................................................................................................................................... 19

Case: McGee v. Mutual Life Insurance Company (U.S. Supreme CT 1957) ......................................... 20
* Case: Hanson v. Denkla (U.S. Supreme CT 1958) ...................................................................................... 20

Case: Worldwide Volkswagen (U.S. Supreme CT 1980) ...................................................................... 20

Case: Burger King v. Rudzewicz (U.S. Supreme CT 1985) .................................................................... 21
Stream of Commerce (type of contact) - NOT legal theory/ Basis for JX .................................... 22
Case: Gray v. American Radiator & Standard Sanitary Corp. (Supreme CT of Illinois 1961) ..................... 22
Case: Asahi v. Superior Court (U.S. Supreme CT 1987)................................................................................ 22
Case: Nicastro v. McIntyre (U.S. Supreme CT 2011) .................................................................................... 23
Technological challenges ............................................................................................................................. 24
Case: Ryan v. MoneyMutual (MN 2016) ..................................................................................................... 24
General (All-Purpose) Jurisdiction ........................................................................................... 24
Specific Jurisdiction ................................................................................................................ 24
I.
General Jurisdiction Cases ................................................................................................ 25


Case: Ford Motor Company v. Montana Eighth Judicial District Court (U.S. Supreme CT 2021) ....... 25
Case: Goodyear v. Brown (U.S. Supreme CT 2011) .............................................................................. 26
Bright Line Rule ...................................................................................................................... 26
Case: Diamler AG v. Bauman (U.S. Supreme CT 2013) ................................................................................ 26
Traditional Bases .................................................................................................................... 27

Case: Shaffer v. Heitner (U.S. Supreme CT 1977) - attachment of property ....................................... 27
Case: Burnham v. Superior Court (U.S. Supreme CT 1990) - Presence & Transient Jurisdiction ................ 28
(B) Venue -28 USC & 1390 ............................................................................................... 29

Purely Statutory: 28 U.S.C. 1390;1391............................................................................... 29
Case: Bates v. C&S ........................................................................................................................................ 29

Forum Selection Clauses (Mandatory) .............................................................................. 29
Case: The M/S Bremen v. Zapata Off-Shore Co. (1972) .............................................................................. 29
Case: Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas (SCt. 2013)
...................................................................................................................................................................... 29
Case: Carnival Cruise Lines v. Shute (1991) ................................................................................................. 30

Update on Forum Selection Clauses .................................................................................. 30
Case: Atlantic Marine Construction Co v. U.S. District Court for the Western District of Texas (2013) .... 31
* Arbitration Clauses as An Alternative ................................................................................... 31
Notice - 5A; FRCP 4 ......................................................................................................... 31

Mullane Rule ................................................................................................................... 31
Case: Dusenberry ......................................................................................................................................... 31
Case: Jones v. Flowers (2006) ...................................................................................................................... 31
* Checklist for Choosing Proper Geographical Forum ............................................................... 32
III. Subject Matter Jurisdiction ........................................................................................ 33
A. Introduction: Article III................................................................................................ 33
B. Federal Question Jurisdiction - 28 USC &1331.............................................................. 34

Caselaw ........................................................................................................................... 34
a. Lousiville and Nashiville RR v. Mottley (SCt. 1908) - Well-Pleaded Complaint Rule .............................. 34
b. Grabble ..................................................................................................................................................... 34
c. Merrill Dow Pharmaceuticals (1993) ....................................................................................................... 35
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
Balance of Federal - State Courts ...................................................................................... 35
C. Diversity Jurisdiction - 28 USC & 1332.......................................................................... 36
(A) Domicile - individual .......................................................................................................... 36

Case: Mas v. Perry ................................................................................................................................ 36
(B) Domicile - corporation 28 U.S.C. 1332(c)(1) ........................................................................ 37


Case: Friend v. Hertz Corporation (SCt 2010) ...................................................................................... 37
Class Action ..................................................................................................................... 38
D. Supplemental Jurisdiction 28 U.S.C. 1367(a) ................................................................ 39
Analysis Process ..................................................................................................................... 39


Case: Allapattah v. Exxon Mobile & Ortega v. Star Kist Foods .......................................................... 40
Aggregation Rules on the Amount in Controversy ............................................................. 41
E. Removal 28 u.s.c. 1441................................................................................................ 41

Removal Analysis ............................................................................................................. 41
VI. Law in Federal Court .................................................................................................. 44


Statutes ........................................................................................................................... 44
Pre-Erie Caselaw .............................................................................................................. 44
a. Swift v. Tyson (1842) - Fed. Ct (NY).......................................................................................................... 44
b. Black and White Taxicab v. Brown and Yellow Taxicab (1928) .............................................................. 44
Erie Railroad Co. v. Thompson (1938) - Modern Rule ................................................................ 45
Cases Interpreting Erie ............................................................................................................ 45
I. Cities Services v. Dunlap (1939) ................................................................................................................ 45
II. Guaranty v. York (1945) -modified, not exactly the law anymore........................................................... 46
III. Byrd (1958) .............................................................................................................................................. 46
Hanna v. Plumber (1965) ........................................................................................................ 47
Scope - Hanna II - Governing Test ............................................................................................ 48
●
●
Burlington Northern RR v. Woods (1987) (Broad reading) .............................................................. 48
Walker v. Armco Steel Corp. (1980) (Narrow reading) .................................................................... 49
* Erie Analysis Steps ............................................................................................................... 49
VII. Boundaries of a Lawsuit: Joining Claims and Parties.................................................. 51
RULES:.................................................................................................................................... 51
Rule 13- Counterclaim and Crossclaim............................................................................. 51
ii. 13(a) - Compulsory Counterclaim Against an Opposing Party................................................ 51
iii. 13(b) - Permissive Counterclaim -A pleading may state as a counterclaim against an opposing
party any claim that is not compulsory. ................................................................................... 52
III. 13(a) Caselaw .................................................................................................................... 52
A. Grumman ................................................................................................................................................. 52
"Logical Relationship Test" .......................................................................................................................... 52
B. Wigglesworth ........................................................................................................................................... 53
"Same Evidence Test" .................................................................................................................................. 53
IV. Analysis Step of 13(a) Compulsory Counterclaims ............................................................... 53
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Rule 20 - Permissive Joinder of Parties ............................................................................ 54
II. Caselaw .............................................................................................................................. 55
a. Kedra - YES case ....................................................................................................................................... 55
b. Insolia - NO case ....................................................................................................................................... 56
Rule 19 - Required Joinder of Parties ............................................................................... 56
III. Caselaw ............................................................................................................................. 57
a. Helzberg ................................................................................................................................................... 57
Rule 22 & U.S.C.1335 - Interpleader ................................................................................ 58
II. Caselaw - Phillipines v. Pimental - RULE Interpleader ........................................................... 58
III. 28 U.S.C. 1335 - Statutory Interpleader ............................................................................... 59
ii. Caselaw - State Farm v. Tashire - Statutory interpleader ....................................................................... 60
Rule 14 - Third Party Practice (aka "Impleader") ............................................................ 61
VII. Prior Adjudication .................................................................................................... 62
iv. Generally, a person who is NOT a party to a suit is NOT bound by the judgment, UNLESS
(Taylor - apply for BOTH claim and issue preclusion, and non-party preclusion):....................... 62
II. Claim Preclusion & Issue Preclusion ..................................................................................... 62
B. Claim Preclusion (Res Judica) ...................................................................................... 63
II. Caselaw .............................................................................................................................. 63
a. Manego - "same claim" ........................................................................................................................... 63
b. Reed v. Allen - "final judgment" .............................................................................................................. 65
C. Issue Preclusion (Collateral Estoppel) .......................................................................... 65
II. Caselaw .............................................................................................................................. 66
a. Little v. Blue Goose - YES estoppel case .................................................................................................. 66
b. Hardy v. Johns-Mansville - NO estoppel case ......................................................................................... 66
D. Parties Bound by the Judgment .................................................................................. 67
II. Caselaw .............................................................................................................................. 68
a. Hansberry - NOT bound case .................................................................................................................... 68
b. Taylor v. Sturgell - Non-party preclusion ................................................................................................. 68
c. Bernhard v. Bank of America - YES preclusion ......................................................................................... 69
d. Blonder Tongue v. U of I Foundation - Defensive non-mutual issue preclusion ..................................... 70
e. Parklane - Offensive issue preclusion....................................................................................................... 71
III. Due Process (One Day in Court) .................................................................................. 72
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I.Anatomy of a Litigation - Pleadings
Sources of Civ Pro
a. U.S. Constitution
Article III
Due Process Clauses of the 5th and 14th amendments
b. Statutes
c. FRCP
Courts write the rules
Rules Enabling Act, 28 U.S.C. && 2071-74
Judicial Conference
Advisory Committee on Civil Rules
Supreme Court
*Congress must approve/ override
d. Local Rules
e. Individual Judge's Rules
f. Caselaw
Timeline of Litigation
event leading to lawsuit - decision to sue - starting the lawsuit by filing complaint and
serving - answer - discovery - pretrial - trial - judgment entered - appeal
FRCP 7 - Pleadings Allowed; Form of Motions and Other Papers
(a) Pleadings. Only these are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
FRCP 8 - General Rules of Pleading
(a) Claim for Relief. A pleading that states a claim for relief MUST contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the
court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different type of relief.
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FRCP 12 (b) - Defenses by Motion
(6) Failure to state a claim upon which relief can be granted
i. Challenges complaint on basis that it has not satisfied "short and plain statement" of
Rule 8(a).
ii. Complaint has insufficient factual allegations.
iii. Missing element.
iv. No cognizability or claim for which relief can be granted
iiv. Contradicting facts in the complaint
iiiv. Although there is a known CoA, the facts in the complaint demonstrate that the
alleged circumstances do not support the CoA.
Application of Rule 8(a) & Rule 12(b)(6)
● Questions before the court
Is the complaint legally sufficient?
Does the complaint satisfy FRCP 8?
Does the complaint make sufficient allegations to survive a motion to dismiss? FRCP
12(b)(6)
● Caselaw
A. Conley v. Gibson 1957. (Retired)
12(b)(6) motion to dismiss
i. Standard at that time - "A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."
ii. " The statement must simply give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests."
iii. * This standard is extremely broad - anything if possible - emphasis on later
discovery - should no longer be used.
B. Swierkiewicz v. Sorema 2002. (Sufficient to survive a motion to dismiss)
P, a Hungarian, worked for a French company and was replaced by a young
French man. Sued for age/national origin discrimination.
● Facts alleged - member of different group; qualified for the job; comments by
the boss, etc.
D argued that P had not included enough facts in his complaint and that it was
deficient. - District court agreed and dismissed the case.
● Issue - Is the complaint sufficient to proceed?
● Holding - Yes. Court reversed and denied motion to dismiss under 12(b)(6)
i. An employment discrimination complaint need not include specific facts
establishing a prima facie case of discrimination.
ii. Rule 8(a)(2) was satisfied - It must contain only a short and plain statement of
the claim showing that the pleader is entitled to relief.
C. Bell Atlantic v. Twombly 2007. (Insufficient to survive a motion to dismiss)
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P sued in class action, alleging conspiracy between telephone companies. Sherman
Act suit (antitrust). Alleged that parallel conduct shows conspiracy, with little
facts in support. - The court granted motion to dismiss - Court of Appeals
overturned the dismissal.
● Issue- Whether the complaint can survive a motion to dismiss when it alleged that
D engaged in parallel conduct unfavorable to competition, absent some factual
context suggesting agreement?
● Holding - No. Court of appeals is reversed.
1. Too many possible explanations for parallel conduct, absent enough factual
allegations - the claim isn't anything more than possible.
2. Legal conclusions/ recital of the elements of a cause of action are
insufficient - Must be factually suggestive to be plausible (more than
conceivable) - Possible > Plausible > Probable.
3. Rationale - a. Public reasons: avoid frivolous claims; b. Highly expensive if
allowed to proceed.
* Takeaway - It heightened standard compared to Swierkiewicz and Conley, but
doesn't overrule Conley because notice pleading isn't dead.
D. Ashcroft v. Iqbal 2009. (Insufficient)
P, a detainee post-911, sued numerous federal officials, alleging that they adopted
unconstitutional policy on account of P's race, origin and religion. D raised the
defense of qualified immunity and moved to dismiss. The District Court and Court
of Appeals denied the motion.
● Issue- Does a complaint need to include factual allegation that is plausible and
non-conclusory to sufficiently state a claim?
● Holding - Yes. Remanded.
1. A court must accept a complaint's allegations as true, but it is
inapplicable to threadbare recitals of a cause of action's elements, supported by
mere conclusory statements. - Separate "legal conclusion" from "factual
allegation".
2. When there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an
entitlement of relief.
3. The factual allegations in the complaint do not plausibly suggest that D
purposefully discriminated based on P's race, origin and religion.
* Takeaway：Pleadings must have sufficient factual allegations, accepted as true,
to state a claim for relief that is plausible on its face.
● What do courts agree on :
a. FRCP 8(a) governs
b. Factual allegations must be accepted as true at this stage of the litigation.
c. The court only looks at the complaint.
● Pleading on "information and belief"
a. No direct knowledge
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b. Usually permitted
●
Defenses
FRCP 8(b) - Ways to Respond
a. Admissions/ Denials
1. No denying -- allegation is admitted!
2. Denials -- stating lack of knowledge/ information sufficient to form belief has
same effect as denial
3. Can deny generally or specifically
b. Affirmative Defense - "Even if this true, I am justified"
1. MUST raise in the answer -- cannot be brought up at trial
2. Listed in 8(c), but not exhaustive
c. Counterclaim
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1. Suing and asking for relief from the original P
2. Subject to Iqbal standards -- Plausibility Test
3. Could also be free standing in a separate suit (if not compulsory)
FRCP 12 - Pre-answer Motions
(a) Time to Serve a Responsive Pleading
(b) How to Present Defenses
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper venue
(4) Insufficient process
(5) Insufficient service of process
(6) Failure to state a claim upon which relief can be granted; and
(7) Failure to join an indispensable party under Rule 19
(c) Motion for Judgment on the Pleadings
(d) Result of Presenting Matters Outside the Pleadings
(e) Motion for a More Definite Statement
Limited use -- to which a responsive pleading is allowed but so vague and
ambiguous that the party cannot reasonably prepare an answer.
(f) Motion to Strike
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.
(g) Joining Motions
Have to consolidate motions but not if:
i. defense unavailable at the time the party files
ii. raising SMJ motion, or
iii. other defenses may be raised at trial under 12(h)
(h) Waiving and Preserving Certain Defenses
(i) Hearing Before Trial
Policies underlying motions
Resolve certain issues early -- FRCP 12(b) & 12(h)
Consolidate pre-answer motions -- FRCP 12(g)
12(b) Defenses
i. Disfavored Defenses: (2)~(5)
12(h)(1) -- Waived forever if (A) omitted from a pre-answer motion, or, if no motion
is made, from the answer. OR,
(B) Failed to include it in a responsive pleading or in an amendment allowed by Rule
15(a)(1) as a matter of course.
Must bring them up in the first response
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ii. Favored Defenses: (6), (7)
12(h)(2) -- (A) Can bring up in any pleading allowed or ordered under Rule 7(a);
(B) by a motion for judgment on the pleadings under Rule 12(c);
(C) at trial on the merits.
iii. Most Favored Defense: (1)
12(h)(3) -- Can bring up at ANY TIME
Court can bring it up on their own -- must dismiss
Can still bring up post trial.
FRCP 11 - Signing Pleadings, Motions; Representations to the court; Sanctions
28 USC &1927
i. Principle purpose is to deter intentional and unintentional delay in the
proceedings
ii. Courts can assess costs against attorney who multiplies proceedings in case
unnecessarily.
a. Only applies to attorneys
b. Applies to all conduct, not just papers.
c. Requires subjective bad faith.
Sanctions development
a. Previously: subjective standard
i. Good faith was a defense.
ii. sanctions were rare.
b. 1983-1993: objective standard ("reasonable inquiry”）
i. Good faith not a defense.
ii. Sanctions were mandatory. - 6000 reported cases
c. 1993 - present: current standard
i. All about deterrence - are at the discretion of the court but should be the
minimum to achieve the deterrence goal.
ii. "Safe harbor rule"
iii. Must be filed separately from any other motion.
iiii. An attorney cannot keep advocating an allegation set forth in her original
complaint, if he has learned it was not true; But doesn't have to go back and
amend the complaint.
Case: Zuk v. Eppi - U.S. CT of Appeals for the 3rd Circuit.
P is former psychologist at D. D kept his videotaped sessions and available for rental
through library. P later wrote a book based on these sessions, then required D to
return the tapes. Benjamin Lipman represented P. D 's motion to dismiss is granted,
arguing that (1) Not a realistic copyright claim or ownership - P's copyright of the
book didn't protect the tapes; (2) Waited too long. Both P and his attorney were
sanctioned.
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Rule - Sanctions imposed under FRCP 11are intended to deter future violators,
rather than to compensate the opposing party.
Issue - Did the district court abuse its discretion when awarding attorney's fees and
sanctions against appellant?
Holding - Yes
1.P and his attorney should have made "reasonable inquiry" into the law;
2.Sanctions under Rule 11 imposed on the attorney are appropriate - he shouldn't have just
accepted his client's version of story.
3.⻅上. But the sanction against Lipman was excessive in light of the statute's
4.non-punitive purpose and consideration of the mitigating factors.
*Takeaway: Reasonable inquiry
1. Conduct thorough interview with client
2. Interview key witness
3. Look at relevant statutes and caselaw
4. Thorough use of public resources.
Mitigating factors to consider
1. The party's ability to pay
2. Whether the attorney has a history of such violation
3. D's need for compensation
4. Degree of frivolousness
5. Willfulness of the violation
FRCP 15 - Amendments
15(a) - Amendments before trial
15(a)(1)A - May amend its pleading as a matter of course within 21 days after serving it.
15(1)(2) - Other amendments after 21 days have passed: may amend only with the
opposing party's written consent OR the court's leave. The court should freely give leave
when justice so requires.
*Exceptions (the court has discretion to deny leave) : for futility, bad faith, undue delay,
undue prejudice to the opposing party, or multiple attempts at amending.
Case: David v. Crompton and Knowles
D seeks to amend his answer to deny the allegations that it designed, manufactured
and sold the shredding machine that injured P.
Default rule - 8(b)(5): a party that lacks knowledge or information sufficient to form
a belief about the truth of an allegation must so state, and the statement has the effect
of a denial.
Exception rule - A motion to amend should be denied if the plaintiff would be
prejudiced and the defendant was actually aware of this knowledge/ information prior
to filing his answer.
● Holding - No amendment allowed
*Takeaway
a. Lack of knowledge/ info must be pleaded in good faith/ honesty.
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b. A district court has discretion to deny leave to amend for "undue prejudice and
undue delay."
15(c) - Relation back: allows amendment after SoL has run.
15(c)(1)(b)
i. Relating back to add new claim/defense
ii. Must arise out of the same conduct, transaction, or occurrence set forth in the
original complaint.
iii. Easier than adding party b/c D is already on notice.
15(c)(1)(c)
i. Relating back to add/ change a party
ii. Must arise out of the same conduct, transaction, or occurrence set forth in the
original complaint.
ii. New party can only be added if: the new party received notice of the lawsuit such
that there isn't prejudice to defending merits AND the party knew or should have
known he would be served if not for a mistaken identity.
iii. More demanding b/c prejudice to defendant is high.
Case: Krupski v. Costa Crociere - U.S. Supreme CT
P was injured on a cruise ship operated by Costa Crociere (D), filed original complaint
sued Costa Cruise b/c confusion as to which company owned and operated the cruise
ship.. P was told that it was not the correct defendant for 3 times. After SoL expired,
P moved to amend complaint against Costa Crociere, who then filed a motion to
dismiss, arguing P's amended complaint didn't relate back to the date of her original
complaint and SoL has expired (delay in moving to amend.) - District court granted
D's motion to dismiss - CT of appeals affirmed.
● Rule - Relation back under Rule 15(c) doesn't depend on the amending party's
knowledge or timeliness , but on what the party to be added knew or should have
known.
● Issue- Whether relation back under Rule 15(c) depends on the amending party's
knowledge or timeliness?
● Holding - No.
1. 15(c)(1)(c) satisfied + Rule above.
2. Simply being aware of two parties doesn't necessarily mean that P cannot make
a mistake in naming the wrong party.
3. Rule 15(c) doesn't provide for undue delay as a basis for denying relation back.
4. The new party knew or should have known that, but for P's mistake, it would
have been named in the suit - Notice doesn't have to be formal; Can be inferred
from knowledge, relationship, etc.
5. Knowledge of a party's existence doesn't mean deliberate attempt to sue others Here, it was a honest mistake as to nature of parties.
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FRCP 26- Discovery
● 26(b) - Discovery Scope and Limits
a. In general, documents requested must be relevant and nonprivileged, And,
b. Must be proportional to the needs of the case. Consider:
● 1. the importance of the issues at hand
● 2. the amount in controversy
● 3. the parties' relative access to relevant information
● 4. the parties' resources
● 5. the importance of the discovery in resolving the issues
● 6. Whether the burden of the proposed discovery outweighs its likely benefit.
c. Information obtained in discovery doesn't need to be admissible as evidence.
d. Court can limit discovery to make it more restricted. - 15(b)(C) - Court MUST limit
discovery if:
1. Discovery is unreasonable/cumulative, or information can be obtained elsewhere.
2. Party seeking the information has had ample time to obtain it during discovery.
3. Proposed discovery is outside scope of (b)(1)
● Discovery Devices
a. Initial disclosure (e.g., of potential witnesses' names - is automatic at the outset.
b. Document inspection: Request for documents + Must deliver these requests
c. E-discovery - 26(b)(2)(B):
Don't have to provide electronically stored info, if the burden/cost to obtain is
unreasonable.
But it's that party's burden to prove the burden and the court may order it anyways.
d. Interrogories:
i. Written questions to another party that must be answered under oath
ii. limits to 25 interrogatories (Rule 33)
iii. Advantages- inexpensively gather and prepare valuable info; useful in discovering
additional witnesses and documents
iv. Disadvantages- subject to abuse; questions might be hard to answer; answers are
usually prepared by lawyers who are trying to reveal as little as possible.
e. Physical or mental examination of a party
need judge's order - very invasive
f. Depositions
i. Under oath
ii. Ask questions in person
iii. Limited duration
iv. Most expensive
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FRCP 56 -Summary Judgment
Rule 56(a) - In general
a. Discovery- SJ- Trial
● Must make the motion within 30 days after the close of discovery, unless local court
rules or orders otherwise.
● If the court decides that no finder of fact could reasonably find for P, then P loses.
● "Judgment as a matter of law" - Rule 50(a)
i. The motion is made earlier
ii. Movant could make motion for judgment as a matter of law w/o presenting any
evidence.
iii. If...then P loses. 同上.
b. Court looks at the complaint and all the evidence presented to test whether there is any
genuine dispute for the jury to resolve, not for the purpose of resolving that issue.
i. If the movant shows that there is no genuine dispute as to any material fact, and, the
movant is entitled to judgment as a matter of law - case must be dismissed (SJ
granted).
ii. If has a genuine dispute over material fact - has to go to trail (SJ denied).
c. Function to resolve dispute before trial.
Burdens of Persuasion/ Proof (doesn't shift)
i. Normally, a plaintiff bears the burden of persuading a fact finder at the trial for the
overarching claim at all times.
ii. Sometimes, a defendant has this burden for counterclaims/ affirmative defenses. (看
Hypo！！！注意 AD 的类型！）
● Case: Celotex Corp. v. Cartrett - U.S. Supreme CT
● Here, Celotex: D= movant = petitioner; Cartrett: P has burden of persuasion at trial
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P alleged that her husband died from exposure to D's product. D moved for SJ
claiming that P failed to present any evidence. Then P submitted three documents as
evidence in objection to the SJ motion. District Court granted SJ, b/c P lacked
sufficient evidence - CT of appeals reversed, b/c movant's failure to support its motion
with evidence negating such exposure. - Supreme CT reversed.
● Issue- Does a party moving for SJ need to provide affirmative evidence in the form of
affidavits to support its motion?
● Holding - No
1. The movant is responsible for informing the court the reason of SJ by identifying
the lack of genuine issue as to material fact.
2. Rule 56(c) doesn't require the movant to provide affirmative evidence (in the
form of affidavits) to support its motion. - CT of appeals incorrectly assumed that.
3. To overcome the challenge, the nonmoving party is expected to present
affirmative evidence.
4. If the moving party doesn't have the burden of proof, it's sufficient to point to
gaps in evidence presented, to prove no genuine dispute as to material fact.
Burden of Production (can shift)
● e.g., Celotex (D/ movant) produces enough to shift the burden to P to show that there is a
genuine issue of material fact that needs to go to the jury. - Now Catrett (P/ non-movant)
responds with three documents. - If they presents a genuine issue worthy of trial, SJ is
denied.
● What does a movant ( who doesn't have burden of proof) to show in order to shift the
burden of production？
a. Inform the district court of the basis for its motion
b. In cases like Celotex, where the non-movant bears the burden of proof at trial, SJ
motion may be made solely on the "pleading, depositions, answers to interrogatories,
and admissions on file."
c. Whatever they would have to show for a 50(a) motion.
15
II. Choosing the Forum
(A) Personal Jurisdiction
Does the CT have the power to bring that D from beyond a state's territorial
borders into that CT?
Two-Step Analysis - Combine constitutional Due Process ( "No person shall be deprived 'of
life, liberty, or property, without due process of law." ) + State's Long-arm Statute.
STEP 1: Does long arm statute of the forum state authorize jurisdiction in the particular
case?
● Required by FRCP 4(k)(1)(A)
a. Federal CT have PJ only to the extent a state court (in the forum state), could
exercise jurisdiction under the long-are statute.
(k) Territorial Limits of Effective Service
(1) In General. Service of a summons or filing a waiver of service is effective to
establish jurisdiction over the persons of a defendant:
(A) who could be subjected to the jurisdiction of a court of general jurisdiction in
the state in which the district court is located or ...
● Look at the language of the statute + case law in the forum state
E.g.,
● If NO (the long-arm statute doesn't cover the issue) - the CT doesn't have PJ.
a. 12(b)(2) motion to dismiss will be granted, for lack of PJ
b. Don't get to talk about constitutionality or minimum contacts.
● If YES (the long-arm statute covers the issue or allows CT to hear anything within
constitutional limits - Move on to constitutional/ Due Process inquiry
a. Must evaluate constitutionality with minimum contacts. - look at Int'l Shoe.
STEP 2: If YES, does exercise of jurisdiction reach beyond constitutional standards? Due Process inquiry
A. Due Process Clause 14th & 5th Amendments
16
B. Minimum Contacts? - Level of Activity & Types of Contact
Has certain minimum contacts with it such that the maintenance of the suit "does
not offend traditional notions of fair play and substantial justice." International Shoe
b. Is activity purposefully directed toward (targeted at) forum state?
c. Is activity continuous and systematic OR occasional?
d. Purposeful availment OR unilateral activity of P? Hanson v. Denckla
e. "Stream of Commerce"? Gray, Asahi, Nicastro
(a) Minimum Contacts Analysis Required
f. In rem
a. Power of the CT with regard to property (usually real estate) within its borders.
E.g., action to determine title to property
b. Most of the time, this is an easy analysis, since the fight is over property which
is a significant contact.
c. No Contacts Analysis - Voluntary Appearance (showing up to CT and not
contesting is)
g. Quasi in rem
a. Hybrid
b. Based on presence of D's property within the forum state
c. Permits the CT to enter a judgment for an amount of money not exceeding the
value of the property
d. Claim for relief can be unrelated to the property that provides the basis for
jurisdiction
e. No Contacts Analysis - Explicit Consent/ Contract
h. In Personam
a. Power of the CT to enter a money judgment against D
b. May be satisfied by seizing and liquidating D's assets.
Implied Consent - see Hess
Personal Service / Presence / Transient Jx
c. Not enough on its own - want to know whether it was voluntary or not. see
Burnham
● Relationship of Claim to Activity (General v. Specific)
a. General
a. If the claim doesn't arise from the D's activities and contacts in the state, the
D's activities must be so systematic and continuous in that state to make it
essentially "at home."
b. Domicile, incorporation, PPB (headquarters)
b. Specific
a. Claim arises out of the D's contacts with the state.
STEP 3: If Minimum Contacts are met, is it reasonable to bring the D into this forum?
17
● Considerations - Worldwide Volkswagen 1980
1. The forum state's interest in adjudicating the dispute
2. The plaintiff's interest in obtaining convenient and effective relief, at least when
that interest is not adequately protected by P's power to choose the forum.
3. The interstate judicial system's interest in obtaining the most efficient resolution
of controversies.
4. The shared interest of the several states in furthering fundamental substantive
social policies.
Old Caselaw
a. Pennoyer v. Neff 95 U.S. 714 (1877)
● Suit 1 - Mitchell v. Neff - Oregon State CT
a. Neff owed Mitchell money for legal work - Notice by publication - No response
by Neff (CA resident) - Mitchell gets default judgement
b. Neff gets title to property in Oregon
c. Mitchell executes vs Neff's property in Oregon - gets it at shriff's sale
d. Mitchell then transfers title to Pennoyer
● Suit 2 - Neff v. Pennoyer - Oregon Federal CT
a. Neff sued to recover the property
b. Suit 1 was invalid because the Oregon CT lacked jurisdiction
● Issue: Is there a basis for PJ over Neff in suit 1?
No
a. Rule
a. No PJ, because D must be physically in the state where the suit is brought to be
served.
b. Service by publication would be sufficient in an in rem proceeding, but this is
in personam (not about the peroperty).
c. No Quasi in rem Jx, because the property was acquired after suit 1 - timing!
d. No In personam Jx
1. Must be physically served within the boundaries of the state
2. No voluntary appearance or consent
3. Neff not in state for service at time of suit.
● Pennoyer Principles of Jurisdiction - Justice Field
a. "Every State possesses exclusively jurisdiction and sovereignty over persons and
property within its territory."
b. "No State can exercise direct jurisdiction and authority over persons or property
without its territory."
c. But exercise of jurisdiction "will often affect persons and property without it."
b. Hess v. Pawloski. U.S. Supreme CT (1927)
18
● Nonresident Motorist - serve on registrar and mail to defendant - get signed return
receipt
● YES
a. Acceptance by a nonresident of the "privilege" of operating a motor vehicle in the
state, shall be deemed equivalent to an appointment by such nonresident of the
registrar ... to be his true and lawful attorney upon whom may be served all lawful
processes in any action or proceeding against him, growing out of any accident or
collision in which said nonresident may be involved while operating a motor
vehicle in Massachusetts. - implied consent to suit brought within MA.
Traditional Bases for Jurisdiction
a. Presence
Including transient jurisdiction
Excluding fraudulent inducement
b. Voluntary Appearance
Except special appearance to fight PJ only, w/o conceding anything
c. Consent
Including implied consent (implied is no longer sufficient in modern day)
d. Domicile
e. Attachment of property
In rem / Quasi in rem
Beginning of the Modern Standard - International Shoe Co. v. Washington (U.S.
Supreme CT 1945)
c. Legal Standard
Due process requires only that in order to subject D to a judgment in personam, if he
be not present within the territory of the forum, he have certain minimum contacts
with it such that the maintenance of the suit does not offend "traditional notions of
fair play and substantial justice." -- Justice Stone.
d. Relevant Facts
e. Application of Law to Facts (Holding)
19
YES
-
PJ established in WA when company engaged in systematic and continuous
activity within the state, despite the fact that the company was not incorporated in
WA nor did it have a permanent office there.
f. Important considerations for Minimum Contacts - Look at (a) Level of activity; (b)
Relation of claim to activity

Case: McGee v. Mutual Life Insurance Company (U.S. Supreme CT 1957)
Suit 1: beneficiary (CA) sues insurer (TX) in CA state court. - Judgment against insurer.
Suit 2: Unable to collect in CA, beneficiary (CA) tries to enforce judgment in TX state
court. - Court refuses to enforce b/c lack of PJ over insurer in CA.
YES - Supreme court reverses - b/c "substantial connection" can be established with just
one contract.
1. Involved the D sending a reinsurance contract to CA when it took over the original
insurance company and the P mailing premiums from CA.
2. Even though it was the only life insurance contract the D had with anyone in CA, it
was sufficient to allow CA to exercise PJ.
* Case: Hanson v. Denkla (U.S. Supreme CT 1958)
NO - Delaware trustee cannot be brought into Florida
a. No minimum contacts to bring suit in Florida b/c defendant's activity in the state
was not sufficient to show that it purposefully availed itself the privilege of
conducting activities within the forum state, thus invoking its protections and
benefits of the laws.
b. "The unilateral activity of those who claim some relationship with a nonresident
D cannot satisfy the requirement of contact with the forum state."

-
It cannot be based on merely the unilateral activity of the plaintiff
-
D must have personally availed himself of the privilege of conducting activities
within the forum state.
Case: Worldwide Volkswagen (U.S. Supreme CT 1980)
NO
a. Facts & Contacts
-
Family is moving from NY to AZ. Car crash in OK - Suit in OK state court.
20
-
No business/ shipping/ agents/ advertising/ targeting residents in OK; Car is the
only presence - the only car that went to OK; Audi service centers throughout U.S.;
"foreseeable" in OK.
b. OK statute is interpreted as conferring to the constitutional limits. - So
constitutional inquiry + refer to Int'l Shoe.

Holding
No PJ b/c not sufficient minimum contacts based on stream of commerce/
foreseeability theory alone.
i. D did not have any office in OK, little business there, was a regional company
ii.
No purposeful availment. - D did not try to target residents in OK.
iii.
foreseeability is only relevant to the extent that D could reasonably expect to be
sued in a state.

Factors for PJ and Due Process analysis: above
a. There must be more than a mere likelihood that a suit will arise out of the state.
- Must be likely that a suit will arise out of the state,
b. Weigh burden to D against forum state's interest, P's interest and interstate
system's interest. – Reasonableness

Case: Burger King v. Rudzewicz (U.S. Supreme CT 1985)
YES
Florida Long-Arm Statute
-
Jurisdiction extends to any person, whether or not a citizen or resident of this state,
who breaches a contract in this state by failing to perform acts required by the
contract to be performed in this state,
-
if the cause of action arises from the alleged contractual breach
Falls within the state long-arm statute - Is it within the Due Process clause?
(still look at Int'l Shoe as legal standard)

Facts & Contacts
i. 1. Franchise agreement (shall be governed and construed under the
laws of Florida)
ii. 2. Franchisee contacted Miami office in FL for problems and
negotiation
iii. 3. Franchisee attended Burger King university in FL
iv. 4. Franchisee bought equipments from FL
v. 5. Payment to the Miami office
vi. 6. 20-year contract with Miami headquarters,

Holding
-
Court declines to establish a bright-line rule saying that a contract automatically
established sufficient minimum contacts in the forum state - case by case basis:
-
D established a substantial and continuing relationship w/ BK's Miami
headquarters and received fair notice from the contract documents and the course
21
of dealing that he might be subject to suit in FL and has failed to demonstrate how
JX in that forum would otherwise be fundamentally unfair.
-
this is sufficient for Florida law: "reinforce deliberate affiliation with the state."
-
When a commercial actor has purposefully directed his activities at forum
residents, he must present a compelling case that the existence of some other
considerations would render JX unreasonable.
*Takeaway
- Don't have to physically be in the forum state to have PJ, if minimum contacts are
met.
- Reasonably foreseeable that D could be hauled into court in that forum.
Stream of Commerce (type of contact) - NOT legal theory/ Basis for JX
a.Have to argue that there is ore than D simply placing the product into stream of commerce.
Case: Gray v. American Radiator & Standard Sanitary Corp. (Supreme CT of Illinois 1961)
YES
IL long-arm statute; NOT good law anymore!!!
P was injured in IL by a water heater that exploded (bought in IL) - P sued in IL state
court, against manufacturer of heater (PA) & manufacturer of component valve (OH) Valve manufacturer moved to dismiss, arguing no PJ b/c all they did was sell it to the
heater manufacturer. - state CT granted motion and P appealed. - reversed and
remanded.

Holding
1. IL long-arm statute reaches the conduct b/c the "tortious act" (injury) was within IL
2. Constitutional due process requirements fulfilled, b/c D put the component part into
the stream of commerce, with the expectation/ intention that it would be marketed and
sold in IL
Case: Asahi v. Superior Court (U.S. Supreme CT 1987)
NO - Plurality in its reasoning; Majority in its outcome

Rule: Exercising PJ over an alien defendant is unreasonable and unfair, if the burden
on the alien defendant from being required to defend itself in a foreign court
outweighs the plaintiff's and forum's interests in the forum state's assertion of JX.
(Applying WWV fairness test)
Motorcycle crash in CA, P sued for product-liability in CA state court against
Taiwanese tube manufacturer - who then filed a cross-complaint against the Japanese
valve manufacturer Asahi (D) - valve assembled in Japan, Taiwanese manufacturer
bought over 100,000 assemblies annually from Asahi, then incorporated the
assemblies into its tires, and sold them worldwide. - trial CT held that JX was
appropriate, b/c it was not unreasonable to hold an international business accountable
in the markets where it does business. – reversed

Holding unanimously - JX over Asahi is unreasonable

Plurality in Reasoning
a. 4 Judges (O'Connor, Rehnquist, Powell, Scalia)
22
- “The 'substantial connection' between D and the forum state necessary for a finding of
minimum contact must come about by an action of D purposefully directed toward the
forum state."
- "The placement of a production into the stream of commerce, without more, is not an act of
D purposely directed toward the forum state."
b. 8 Judges (O'Connor, Rehnquist, Brennan, White, Marshall, Blackmun, Powell &
Stevens)
- Assertion of JX over Asahi is unreasonable
- "As long as a participant in this process is aware that the final product is being marketed in
the forum state, the possibility of a lawsuit there cannot come as a surprise."
Case: Nicastro v. McIntyre (U.S. Supreme CT 2011)
NO - Plurality - toughest standard
P in New Jersey was injured while using a metal-shearing machine manufactured by
D - Machine was manufactured in England where D is incorporated - D never
marketed in the state nor shipped them there - New Jersey Supreme CT held that it
had JX, b/c D knew or should have reasonably known that its products were
distributed through a nationwide distribution system that might lead their products
being sold in any of the 50 states including New Jersey. - Granted certiorari to review.

Facts and contacts
-
Only sold through the exclusive U.S. distributor, whom was given direction by D
-
No more than 4 machines in NJ, but expensive
-
D didn't have contract or regular business w/ NJ
-
D attended annual trade shows, conventions and conferences in U.S. but not NJ
-
D based and manufactured in England (HQ & incorporation)
-
D has U.S. & European patents
-
D sent no advertising or employee to NJ, U.S distributor structured adverstising
-
D has no taxes, property, office in NJ
-
NJ has a huge scrap metal market in the U.S.

Rule - For D to be subjected to a state's PJ, it must purposefully avail itself of the
privilege of conducting activities within the forum state, thus invoking the benefits
and protections of its laws.

Holding
-
Majority opinion(Kennedy, Roberts, Scalia & Thomas)
a. "The defendant's transmission of goods permits the exercise of JX only where D can be
said to have targeted the forum; as a general rule, it is not enough that D might have predicted
that its goods will reach the forum state."
b. Simply putting sth. into the stream of commerce is not enough to establish PJ; can't just
have thought it might get to a specific state if they don't target that state.
- Concurring opinion (Breyer, Alito)
Don't agree with the plurality's seemingly strict no-jurisdiction rule for stream of commerce
issues
23
-
Dissent (Ginsburg, Sotomayor, Kagen)
D, by engaging the U.S. distributor to promote and sell its products in the U.S., "purposefully
availed itself" of the U.S. market nationwide, not a market in a single state... D thereby
availed itself of the market of all states and wanted to reach as many states as possible by
targeting the U.S. generally; thus, should expect suit anywhere.
Technological challenges
Case: Ryan v. MoneyMutual (MN 2016)
YES
MN residents Ps sued in a class action in MN for violating MN law regarding illegal
terms and misrepresentation - Contacts:

-
D made contacts with more than 1,000 MN residents
-
D matched the applicant with a local money lender
-
D encouraged applicants to complete their unfinished loan application
-
D solicited prior loan applicants to apply for additional loan
Holding
a. e-mails are going to be treated just like any other contacts, as long as the sender knew or
should have reasonably known that the recipient was located in the forum state
b. Targeting specific state, even over the internet through ads, may be enough for contact
General (All-Purpose) Jurisdiction
a. Instances in which a corporation's conduct is so continuous and systematic that they can be
sued for anything in the forum state. (Incorporation & PPB)
b. For citizens, mostly be domicile
c. A court may exercise GJ over D who is "essentially at home" in the state - Claim doesn't
have to be related specifically to the conduct
d.
Shaffer
Goodyear
Hypo
Specific Jurisdiction
a. Claims must "arise out of or relate to" D's contacts with the forum
b.
24
MoneyMutual
Nicastro
Intl. Shoe
Hess
I.

General Jurisdiction Cases
Case: Ford Motor Company v. Montana Eighth Judicial District Court (U.S.
Supreme CT 2021)
YES

Contacts
-
Ford cars in accident in the states
-
Ford has dealerships, advertising, service support, resale support in states for years
-
Ford sold specific models (at issue) in those states
-
P were state residents (natural forum)
-
Specific cars not sold within the states
-
Incorporated in DE; HQ in Michigan
-
Ford concedes purposeful availment, contracts, property

Issue - Whether the "arise out of relate to" requirement is met when none of D's
forum contacts caused P's claims, such that P's claims would be the same even if D
had no forum contracts?

Holding - Enough contacts, including advertising in the state, will be enough for PJ
Ford In-Class Hypos
Hypo 1: Accident in TX involving a TX resident. Car was sold to P in TX. P sues Ford in a
TX court.
YES
Hypo 2: P had the car for 10 years. P moved to TX a month before having the accident in TX.
YES
Hypo 3: Accident in TX and P sues Ford in a TX court. Ford had not marketed that model of
car within TX.
YES
25
Hypo 4: Accident in TX while P was driving through the state (not a TX resident). P sues in a
TX court.
NO

Case: Goodyear v. Brown (U.S. Supreme CT 2011)
NO
Boys from North Carolina were killed in a bus accident outside Paris - Parents sued
for wrongful death in North Carolina state court against Goodyear USA, and three of
its subsidiaries organized and operating exclusively in Turkey, France, and
Luxembourg (defendants), alleging a defective tire manufactured in Goodyear's
Turkey plant was the cause of the accident. - Subsidiaries moved for dismiss - Trial
court denied. - Supreme CT granted certiorari.

Contacts:

Issue - Whether a foreign corporation is subject to GJ, on causes of action not arising
out of or related to any contacts between it and the forum state, merely because other
entities distribute in the forum state products placed in the stream of commerce by D?

Holding
-
Merely placing the tires into the stream of commerce in a state is not enough to
subject the entity to suits unrelated to that activity.
-
The subsidiaries' sale of some tires in NC through intermediaries is not a
continuous, systematic business contact with the state.
Bright Line Rule
a. A court may assert GJ over foreign (sister-state or foreign-country) corporations when D
engages in "continuous and systematic" activities in the forum state, as to render it
"essentially at home" in the forum state.
b. For an individual, the paradigm forum for the exercise of GJ is the individual's domicile;
for a corporation, it is an equivalent place (Incorporation/ PPB) one in which the corporation
is fairly regarded as at home.
Case: Diamler AG v. Bauman (U.S. Supreme CT 2013)
26
NO
Ps (Argentine residents) sued German Parent Company DaimlerChrysler AG for
violations of the Alien Torts Statutes by Daimler's Argentinean subsidiary in CA
federal court.

Contacts:

Issue - Whether the defendant corporation's "affiliations with the state are so
'continuous and systematic' as to render it essentially at home in the forum state?
(Goodyear standard)

Holding - The court refused to expand "all-purpose" Jx beyond the core examples of
the corporation's state of incorporation and PPB, although it left open the possibility
of an exceptional case (eg., Perkins)
Traditional Bases

Case: Shaffer v. Heitner (U.S. Supreme CT 1977) - attachment of property
NO
Heitner (P) brought a shareholder derivative suit in Delaware against the Greyhound
Corporation incorporated in Delaware, represented by Shaffer (D) - P also filed a
motion for an order of sequestration of shares of Greyhound stock owned by the
individual defendants - Ds moved to vacate the order, arguing that the ex parte
sequestration violated their due process rights and that the property seized was not
capable of attachment in Delaware. - the court rejected the motion b/c the suit was
brought as a quasi in rem proceeding based on seizure of property present in the
jurisdiction rather than contacts between Ds and the state. – Reversed
-
Ds never been to DE and their only connection is that they work for the company
that is incorporated there
-
P based Jx on the DE statute that allows a court to take Jx by sequestering any
property of the Ds - stocks - that happens to be located there.
-
If Ds make a general appearance and don't fight PJ, then they can get their
property back.

Rule - Quasi in rem jurisdiction may only be exercised over a person if the interests of
the person in property seized meet the minimum contacts standard (Intl. Shoe)

Holding
a. Still have to do minimum contacts analysis for suit attempting to bring non-resident
officers of company when stocks are physically located in DE.
27
b. Assertion over Jx over property is the same as that over person - minimum contacts
analysis
c. the property seized was statutorily located in DE, but it didn't have any relation to the
subject matter of the litigation.
d. Ds had nothing to do with the state of DE; their only connection was that they had
accepted directorial positions in a company incorporated there.
e. There were not minimum contacts, the Delaware sequestration statute deprived Ds of their
property without due process.
*Takeaway:
Case: Burnham v. Superior Court (U.S. Supreme CT 1990) - Presence & Transient
Jurisdiction
YES (Plurality)
P (New Jersey resident) and his wife agreed to divorce - Wife moved to CA with
children - P was served with a CA court summons and wife's divorce petition, while in
CA for business and to visit his children.

Issue - May a non-resident be properly served with process while temporarily visiting
a state for purpose unrelated to the suit?

Rule - Physical presence and service of process are valid to establish PJ w/o minimum
contacts; The minimum contacts standard was created for use in the absence of a
party's physical presence in the state.

Three different views
a. Scalia, Rehnquist, Kennedy, White
- Territory is traditional basis - presence is all that is needed for due process in this situation
b. Scalia, Rehnquist, Kennedy concurring
- Intentional presence is needed
c. Brennan, Marshall, Blackmun, O'Connor concurring
- Voluntary and knowing presence is needed - toughest standard to satisfy
28
(B) Venue -28 USC & 1390
What is the appropriate judicial district(s) in which the case may be filed?
 Purely Statutory: 28 U.S.C. 1390;1391
Venue and PJ require separate analysis - but must have BOTH!!!
Case: Bates v. C&S
-
Interpreted 28 U.S.C. 1391(b)(2)
-
"a judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is
situated" to include multiple venues.
 Forum Selection Clauses (Mandatory)
-
Two Step Analysis (Don't need to determine constitutional validity of PJ)
1. Was there voluntary agreement?
2. Was the clause "fundamentally unfair"?
- Who is bound?
- What kind of Claims?
- Where?
- "Expressly" agree; "exclusive" jx; "ANY" claim or dispute arising under this
contract...
eg., iTunes Store Terms of Service - "You expressly agree that exclusive jx for any claim
or dispute with Apple or relating in any way to your use of the iTunes Service resides in
the courts in the State of California."
● Limits on Forum-Selection Clauses
Case: The M/S Bremen v. Zapata Off-Shore Co. (1972)
● Facts
-
US company and German company contract to tow an oil drilling rig from Louisiana
to Italy
-
Storm damage in Mexico
-
Agree to sue exclusively in London
-
US company sued in US District Court in Florida
● Upholds clause
a. Establishes that a freely negotiated private international agreement should be given
full effect, if:
b. Equal bargaining power, unaffected by fraud and undue influence
Case: Atlantic Marine Construction Co. v. U.S. District Court for the Western District of
Texas (SCt. 2013)
a. "Forum selection clauses should have controlling weight absent 'extraordinary
circumstances unrelated to the convenience of the parties.'"
29
b. "Court should not consider the convenience of the parties, but only public factors,
which will rarely defeat a transfer motion.'"
c. Although transferred cases normally get the choice-of-law rule of the pre-transfer
court, the Court established an exception for cases filed outside the contractually
designate forum in an attempt to limit forum shopping.
Case: Carnival Cruise Lines v. Shute (1991)
● Facts
a. Company v. Individual - contract on the non-negotiated ticket
"It is agreed by and between the passenger and the Carrier that all disputes and
matters whatsoever arising under, in connection with or incident to this
Contract shall be litigated, if at all, in and before a Court located in the State of
FL, U.S.A. to the exclusion of any other state or county."
This includes state and federal court
b. FL HQ/ Panama incorporation
c. Passengers from Washington State
d. Contract for travel
e. Forum selection clause agreed to sue in FL
f. Sued in Washington
● Analysis
● Step one: Was there a voluntary agreement?
-
Ps admit they knew about forum selection clause and still got on ship. To Court, this
was notice+opportunity to reject.
● Step two: Was the clause fundamentally fair? (very hard to prove it was not.)
-
D headquartered in FL - It makes sense to settle disputes there.
-
Cost savings passed on to customers.
● Upholds clause
a. The court doesn't consider minimum contacts and Int. Shoe
"Because we find the forum-selection clause to be dispositive of this question,
we need not consider petitioner's constitutional argument as to PJ."
b. Apply limits - Test of Fundamental Fairness
I. No evidence that petitioner obtained respondents' accession to the forum
clause by fraud or overraching
II. Plaintiffs were given notice of the forum provision
III. No bad faith motive that FL was chosen to discourage passengers from
pursuing legitimate claims
 Update on Forum Selection Clauses
-
"When the parties have agreed to a valid forum-selection clause, a district court
should ordinarily transfer the case to the forum specified in that clause. Only under
30
extraordinary circumstances unrelated to the convenience of the parties should a
&1404 (a) motion be denied."
Case: Atlantic Marine Construction Co v. U.S. District Court for the Western District of
Texas (2013)
● The presence of a valid forum selection clause changes the analysis.
1. Plaintiff's choice of forum receives no weight.
2. Courts should not consider the convenience of the parties, but only public
factors, which will rarely defeat a transfer motion.
3. Although transferred cases normally get the choice-of-law rule of the pretransfer court, the Court established an exception for cases filed outside the
contractually designated forum in an attempt to limit forum shopping.
* Arbitration Clauses as An Alternative
-
Disputes, claims, or controversies relating to the agreement that can not be resolved
by mediation will be settled by arbitration conducted by the American Arbitration
Association ("AAA") in Philadelphia.
-
Very similar to forum selection clauses
-
Examples:
Amazon has binding arbitration for all its users - No class action suits allowed!
Common in employment contracts
-
Federal Statute:
Federal Arbitration Act basically makes most arbitration agreements enforceable
unless there is some problem with how the contract was made.
Notice - 5A; FRCP 4
● What are the due process requirements for notifying the D of suit?
● For mail notice - refusal on certified mail could signal that the person doesn't live there
anymore, not that he still lives there and refused it.
 Mullane Rule
-
Notice must be reasonably calculated, under circumstances, to apprise interested
parties and afford them opportunity present their objections.
Case: Dusenberry
● Facts: FBI sends certified mail to jail and received no response
● Holding:
-
No requirement of the actual notice needed
-
No evidence of receipt needed
-
Constitutional
Case: Jones v. Flowers (2006)
31
● Rule - Insufficient notice if you know your methods have failed even though your
methods may normally be considered to have been sufficient - It must take other
resonable steps to ensure that service is achieved.
● Facts - Gov knew that Jones had not received his mail b/c they sent certified mail They didn't take any more steps to effectuate notice to Jones even after knowing that
he had not received the mail delivering notice - Was not reasonable for Gov to do
nothing when they knew he didn't receive the mail.
● Holding:
-
Improper notice if you know notice was not received
-
Must give person opportunity to receive
-
Not constitutional
● What could Gov have done?
-
Sent first class mail instead of certified, which requires a signature
-
Post notice on the front door
-
Address otherwise undeliverable mail to "occupant"
● What did Gov not have to do?
-
Go through phonebook or otherwise to find out his new address - too burdensome
* Checklist for Choosing Proper Geographical Forum
1. PJ - Does the court have the power to bring that D into that court?
2. Venue - What's the appropriate judicial district(s) in which the case may be filed?
3. Notice - What are the due process requirements for notifying the D of suit?
4. SMJ - Does the court have the adjudicatory authority to hear certain types of cases? (In
particular, can the claims be in Fed. court?)
32
III. Subject Matter Jurisdiction
● Analysis Steps
1. Can congress pass a statute giving the fed court's Jx over the dispute?
- Check Article III and Constitution
2. Would the statute be within constitutional limits? - Check Article II and Constitution
3. Did Congress give the fed courts the power to hear this type of dispute?
- Check statute
a. Federal question jx (1331)
i. Does the complaint arise from federal law?
- Well-Pleaded complaint rule (Mottley) - only look at the complaint itself
ii. Does the complaint turn on a federal issue to bring? (Grable) - see list of factors
b. Diversity jx (1332)
i. Diversity in Citizenship
Complete diversity (Strawbridge)
Diversity of individuals (Mas)
Diversity of corporations (Hertz)
ii. Amount in Controversy over $75k
c. Supplemental jx (1367)
d. Removal (1441)
A. Introduction: Article III
a. Which disputes go to federal courts? Which go to state courts?
i. Article III - Statute &1331 - Original jurisdiction for Fed Ct - Courts can hear
ii. If a type of case is on the exclusive list in Article III, section 2, that means that
Congress can pass a statute allowing a Fed Ct to hear that type of case.
-
"The judicial power shall extend to all cases, in law and equity, arising under
this Constitution, the laws of the United States, and treaties made, or which
shall be made, under their authority; to all cases affecting ambassadors, other
public ministers and consuls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the United States shall be a party; to
controversies between citizens of different states; between citizens of the
same state claiming lands under grants of different states, and between a
state, or the citizens thereof, and foreign states, citizens or subjects..."
iii. Powers that are NOT on the list go to state court - 10th Amendment
-
"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or to the
people."
iv. In short, a Statute MUST give courts power to hear.
b. Main subjects Fed Ct can hear:
1. Federal question jurisdiction
33
2. Diversity jurisdiction
c. General rule: Most of the time, if a Fed Ct could hear a dispute, a state could as well.
i. Concurrent jurisdiction
eg., A dispute over Title VII (federal statute about employment discrimination)
could be heard in state or Fed Ct.
ii. Exclusive jurisdiction (exceptions) - Must be heard by Fed Ct
eg., Copyright and patent can only be heard in Fed Ct.
B. Federal Question Jurisdiction - 28 USC &1331
"The district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States."
 Caselaw
a. Lousiville and Nashiville RR v. Mottley (SCt. 1908) - Well-Pleaded Complaint Rule
NO
● Rule - Just the plaintiff's cause of action is considered to determine federal
question SMJ, NOT defense. - "a suit arises under the Constitution and laws of the
U.S. only when P's statement of his own cause of action shows that it is based
upon those laws or that Constitution."
● In the complaint, Mottley, arguing that D will use a defense that turns on an issue
of federal law,
-
Sued for specific performance of contract w/ RR ( Contract, Torts are always
based on state law) - P's claim is a state law claim
-
Alleged that RR refused to comply because of act of Congress
-
Alleged that the act of Congress violated the 5th Amendment
b. Grabble
YES
● Facts
34
1. State court quiet title action brought by a taxpayer who claims that the
notice of sale he was given did not satisfy the Internal Revenue Code.
2. Basic claim is about getting property back under state law. But the bigger
dispute is over IRS notice requirements under federal law.
● New Rule
Federal question Jx may be established when a claim is created by state law,
BUT:
1. A substantial issue of federal law is necessary to the resolution of P's claim
(judging by the face of the complaint).
2. The issue is important enough to the implementation of national policy to
justify brining it to court, and
3. Litigating such issues in federal court would not open the federal courts to a
floodgate of litigation that Congress didn't envision.
c. Merrill Dow Pharmaceuticals (1993)
NO (example of a federal law claim attached to a bunch of state law claim)
● Facts
-
P sought damages for birth deformities caused by the drug Benedectin.
-
Complaint asserted state law claims of negligence and product liability, as well
as violations of the Federal Food, Drug, and cosmetic Act.
● Holding : It didn't relate enough to federal question to bring in
1. Suit alleged five tort law claims and one violation of a federal law with no
private cause of action
2. There are way too many negligence claims that could be moved into the Fed
courts this way and would upset the balance.
 Balance of Federal - State Courts
a. Significance of federal issue
More significant - better chance to be in Fed Ct
b. Likely docket impact
Wanna avoid a flood of cases to be heard in Fed Ct
c. Implication of Congress's failure to create a federal right of action
d. BUT NO "single, precise, all-embracing test for jurisdiction over federal issues
embedded in state-law claims"
35
C. Diversity Jurisdiction - 28 USC & 1332
● 1st Requirement - Amount in controversy over $75k
a. Determined by P's good faith claim (Mas.)
b. To dismiss, "it must appear to a legal certainty that the claim is really less than the
jurisdictional amount - but courts are extremely tolerant about this. (St. Paul)
c. P CANNOT add up co-plaintiff's claims to meet $75k
Must be $75k for each P
If not, then look for federal question/ supplemental jx
d. But P CAN ass up all of a single plaintiff's claims to meet $75k
● 2nd Requirement - Complete diversity of citizenship of the adverse parties
A party's citizenship is determined at the time the complaint was filed; jx is unaffected
by subsequent changes or moves
(A) Domicile - individual:
May relate to intent. If you don't intend to stay there, domicile might be last
place lived, or parent's domicile. (Mas)

Case: Mas v. Perry
● Facts: Ps were grad students in Louisiana. - Mr. Mas was a French national
and Mrs. Mas was from Mississippi. - They married at Mrs. Mas's home in
Mississippi before returning to Louisiana for two years of school. - Then
they moved to Illinois for 4 months. - Then moved back to Louisiana. While Ps lived in Louisiana, D (their landlord) watched them through a
two-way mirror. - Ps sued in Louisiana fed. court for $100,1000, D
challenges Jx: (1) No diversity; (2) Mr. Mas's recovery of $5000 ruled by
the district court doesn't meet the amount requirement. (* D raised SMJ
objection after the district court's judgement, b/c SMJ can be raised
anytime - Rule 12)
● Rule - "A person's domicile is the place of his true, fixed, and permanent
home and principal establishment, and to which he has the intention of
36
returning whenever he is absent therefrom."; Mere residence is not
sufficient.
● Holding: Mrs. Mas was a resident of Mississippi, b/c:
-
While under common law, a wife is generally considered to be domiciled in
the same state as her husband, but exceptions can be applied. - If Mrs. Mas is
considered domiciled in France, she would not be domiciled in any U.S. state.
-
She is a student and only temporarily residing in Louisiana.
-
Although she doesn't intend to return to Mississippi, she hasn't yet acquired a
new domicile, so she remains a Mississippi citizen.
(B) Domicile - corporation 28 U.S.C. 1332(c)(1):
1. Any state where it is incorporated
2. Any state where it has its PPB
Defined as "nerve center" (Hertz)

Case: Friend v. Hertz Corporation (SCt 2010)
CA plaintiffs filed a class action suit based on state law against Hertz Hertz sought remove the case to federal court.

Facts:
-
Hertz derived more revenue from CA than from any other state
-
The majority of Hertz's business activities were conducted in CA
● Holding: PPB is the "nerve center" of the organization, where the highlevel officers "direct, control and coordinate the corporation's activities."
a. Usually where its HQs are, BUT
i. not if it's simply where the corporation holds its board meetings
attended by directors and officers who have traveled there for the
occasion.
ii. If HQs are split - then argue which is better case
b. Telemarketing makes this difficult
c. "Courts don't have to try to weigh corporate functions, assets, or
revenues different in kind, one from the other."
*Takeaway: P (TX) suing D corporation with PPB (TX) & state of
incorporation (DE) - no complete diversity
● Baseball Hypo - Baseball Association sues ABC (a company)
1. ABC's use of baseball statistics violates federal copyright law, state-law
right of publicity, state laws against unfair competition or false advertising
2. State-law contract claim that ABC violated a licensing agreement with
Baseballl Association by using P's logo.
37
● No complete diversity, b/c HQs in NYC ("nerve center"~PPB); Hertz
rejects & doesn't care the online server.
● No party on one side can be a citizen of the same state of a party on the other side.
(Strawbridge)
● Hypo (1) - You have always lived in Indiana, but come to school at U of I. You are
flying out of Indianapolis and right outside. Someone from Indiana runs you down in
the parking lot. Can you sue in Fed. court?
If you intend to leave IL after graduating - NO
If you intend to stay in IL - YES
● Studying for the IL bar
● Married to someone from IL
● Changed your driver's license to IL
● Bought a home in IL
● Register to vote in IL
● Sold your property back in IN
● Hypo (2) - Could Congress pass a statute saying amount over $75k and any plaintiff is
a citizen of a state different from any defendant?
YES, b/c It's within the bounds of the Constitution - State Farm: Article III
diversity as long as "any two adverse parties are not co-citizens."
 Class Action
(1) Amount in controversy over the sum of $5000k, exclusive of interest and costs;
(2) Any member of a class of Ps is a citizen of a state different from any D. (>= 1) different from general action.
38
D. Supplemental Jurisdiction 28 U.S.C. 1367(a)
"Any civil action which the district courts have original jurisdiction...so related to
claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III."
i. The state and federal claims must derive from a "common nucleus of operative
fact." - United Mine Workers of America v. Gibbs
ii. Can be asserted over claims from either party (P's original claims and D's
counterclaims)
Analysis Process
a. Can this individual claim on its own be brought in Fed. court? (SMJ)
i. If Yes - federal question jx or diversity jx
ii. If NO - is it so related to the claim(s) that can be brought in Fed. court?
iii. Steps
1. If it is from common nucleus of operative facts - 1367 (a) satisfied
2. If it is based on diversity jx - Look at 1367 (b) to see if exceptions apply:
- Over claims by plaintiffs against persons made parties (Ds) under rule14,
19, 20, 24
- Or over claims by persons proposed to be joined as plaintiffs under rule
19; or seeking to intervene as plaintiffs under rule 24
- Doesn't apply to D's counter claims - only the original P's claims
3. 1367 (c) provides additional reasons court may decline to exercise
supplemental jx.
(1) the claim raises a novel or complex issue of state law;
(2) the claim substantially predominates over the claim or claims over
which the district has original jurisdiction;
39
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining.

Case: Allapattah v. Exxon Mobile & Ortega v. Star Kist Foods
YES - then Affirmed
NO - then Reversed
The court joins two cases together- In each case there was at least 1 p who didn't meet
the minimum amount in controversy.
● Rules
i. Amount in Controversy: Where other elements of diversity jurisdiction are
present and at least one p satisfies the amount in controversy requirement, the
court may exercise jx over other Ps who might otherwise be properly joined but
who don't allege damages which reach the minimum amount.
ii. Supplemental Jurisdiction: As long as one of the claims is over $75k, then the
rest of the claims come in under supplemental jx if the diversity is till there and the
claims are all related under 1367(a) and all the facts have the same nucleus of fact.
● Apply Analysis Steps
1. Common nucleus of operative facts - 1367(a) YES
2. How the claims are joined? - 1367(b) NOT listed
40
Exxon - joined under Rule 23 (class action) - not listed
Star Kist - joined under Rule 20, but here the plaintiffs were made parties, not
Ds under Rule 20 exceptions. - not listed
3. If not in the exception lists of 1367(b), then check 1367 (c)
 Aggregation Rules on the Amount in Controversy
1. Plaintiffs joined CANNOT aggregate claims
Eg., P1 (50k) + P2 (25k) v. D - NO supplemental jx
2. A single plaintiff CAN aggregate claims against a single defendant (even if the
claims are unrelated)
Eg., P's claim1 (50k) + P's claim2 (25k) v. D - Yes supplemental jx
E. Removal 28 u.s.c. 1441
a. Cases that can be filed in Fed. court initially can be removed from state court to fed
court, in the same geographic area.
I. Allows D to remove suit from state to Fed. Ct:
a) 1441, 1446, 1447
b) 144 – removal general (when it can be removed)
c) 1446 – procedure of removal
d) 1447 – after removal
II. What protects against improper removal?
a) Rule 11
b) 1359 – Doesn’t allow collusive removal – remove needs to be in good faith
b. LIMITS (forum defendant rule)
i. ONLY applies to diversity jx
ii. 1441(b)(2) - Key exception: an action otherwise removable solely on 1332(a) may
not be removed, if any of the parties in interest properly joined and served as
defendants, is a citizen of the state in which such action is brought.
 Removal Analysis
1) If it could have initially been filed in Fed. Ct, D can remove it to Fed. CT.
2) Notice of removal must be filed within 30 days of the date of service of the summons
and complaint
3) Defendant has to show why it can be in fed court
4) Must get consent from other defendants
5) If removal, which Fed. Ct to go to?
1441(a) – District Court in that district
● Hypo 1
41
NO
1. State law claim - so no federal question jx, assuming no Grable - check diversity jx
2. D (PA), P (IN/ MO/ PA), if justify PA:
3-year-law school in PA
boyfriend in PA
no intent to return IN
3. If not PA, check $ in controversy - various damages to recover, as long as w/ legal
certainty...
4. Any counterargument?
● Hypo 2
(b)
● Hypo 3
42
No - (Mottley) - Look at P's claim, not D's defense arising from federal question
● Hypo 4
YES - State Farm: Article III diversity as long as any two adverse parties are not co-citizens.
● Hypo 5: P (FL) v. A/B/C/D (FL); C &D each < $75k; FL law claim
1. Same facts? 1367(a), if yes,
2. Exception? 1367(b)
43
VI. Law in Federal Court
Q: Does the federal court sitting in diversity apply state or federal law?
 Statutes
a. Rules of Decision Act (RDA) - 28 U.S.C. &1652
1. The laws of several states (state constitutions, state statutes, and "long-established
local custom having the force of law" - Swift),
2. except where the Constitution, treaties, or statutes of the U.S. shall otherwise
require or provide,
3. shall be regarded as rules of decision in trials at common law in the courts of the
U.S. in cases where they apply. (yes, Eire)
b. Rules Enabling Act (REA)
Authorized the process by which the FRCP is adopted.
 Pre-Erie Caselaw
a. Swift v. Tyson (1842) - Fed. Ct (NY)
Overview: Under Swift, in diversity cases raising state law claims, federal courts were
not required to follow and apply state common law (state judge-made case) - the
historic foil
-
D, a NY resident, bought land from Narton and Keith with a bill of exchange (a
promissory note to pay later) - Narton and Keith gave the bill of exchange to P, a
Maine resident, to pay off a debt they owned P - they never actually owned the
land; the sale was to defraud D - P presented the bill for payment, D refused to
honor it. - P sued in NY fed. Ct, invoking diversity jx. - trial court applied NY
common law, ruled against P. - Reversed
● Dispute over Contract law (state law)
NY law - Pre-existing debt wasn't valid consideration
General principles derived by the Fed. Ct - ... was valid consideration
● Holding
1. RDA doesn't bind federal courts to state common law - so apply federal
"general principles."
2. State court decisions made on the basis of state common law aren't part of the
laws of the state, b/c they merely apply the laws to specific cases- can be reversed,
overturned, or modified by later decisions.
3. The federal courts are therefore free to consider general common law principles
in diversity cases - ie., Whatever federal common law may have already been
developed by other federal courts or if there was none developed, whatever
common law it believed appropriate to govern the case.
b. Black and White Taxicab v. Brown and Yellow Taxicab (1928)
Originally, both parties are Kentucky corporation. - Monopoly contract was void in
Kentucky, but ok in Fed. Ct - So D reincorporated under the laws of a new state (TN)
to avoid applying state common law so that federal common law will be applied - will
grant D a monopoly over picking up passengers in certain areas.
● Cause forum shopping (discussed in Erie; Hertz would prevent it)
44
Erie Railroad Co. v. Thompson (1938) - Modern Rule
● Rule - Federal courts sitting in diversity are to apply state substantive law and
federal procedural law.
-
Thompson, P, citizen of PA, was injured while walking alongside railroad. - Filed
personal injury claim against D, citizen of NY, in NY federal court
1) If Pennsylvania state law is applied - harder for P to recover b/c he would be
trespasser - Erie wants state law
2) If federal common law is applied - P wins
● Reasoning
a. The court says they are required to overturn Swift, b/c it was unconstitutional due to
principles of state sovereignty.
i. Rooted in Article III & 10th Amendment - "The powers not delegated to the U.S.
by the Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people."
b. Says that state common law is covered by the RDA
i. Judges determine what the law actually is; they don't just provide evidence of it.
c. Thus, the federal court must apply PA state law
i. When question of state v. federal common law - apply state common law
ii. The Constitution does NOT give the federal court the power to create a "general
federal common law." - It would undermine the sovereignty of the state
government.
d. The court cares more about uniformity within a state (vertical uniformity) as
opposed to uniformity across the various district courts (horizontal uniformity)
e. Twin aims of Erie
i. Avoid forum shopping (Black and White Taxicab Co.)
ii. Avoid inequitable administration of the laws
Cases Interpreting Erie
I. Cities Services v. Dunlap (1939)
a. Dispute over burden of proof to show that the purchaser is a bona fide purchaser
i. State law: defendant
45
ii. Principles derived from federal court: plaintiff
b. Supreme Court says apply state law under Erie b/c it "relates to a substantial right."
II. Guaranty v. York (1945) -modified, not exactly the law anymore
a. Dispute over Statute of Limitations
i. State law: the SoL has run
ii. Federal law: not have run
b. Issue: Whether it "significantly affect the outcome of litigation"
i. If yes - apply state law
ii. If no - apply federal law
c. The court says Erie is about when the laws are outcome determinative
Problem: if state law requires different paper type than what federal law calls for this could affect the outcome - don't want this
III. Byrd (1958)
a. Dispute over whether the judge or jury should decide
b. Even if it would affect the outcome, apply federal law if the law is very important
to the federal system (strong federal policy matter) - Ask if the federal court has a
major interest in applying federal law
● Hypos
A. state statute, b/c different outcome
B. state statute, b/c in state court
C. state statute, b/c not sitting in diversity - Hanna I
46
D. Federal Rule - Hanna II
Hanna v. Plumber (1965)
● Facts (Hypo C) : Car collision - P sued the negligent driver's estate. - P served a summons
and complaint on D, the executor of the estate - D was away, so the process-server
handed the paperwork to D's wife (fine under FRCP4) - But under Massachusetts estate
law, executor is not liable unless is served personally - Thus, P's service of process
satisfied the federal procedural rules, but prevented the estate from being liable under MA
substantive law. - Apply FRCP
A. Hanna I - Twin aims of Erie (figure out the scope of Erie)
a. Would applying different rules in federal and state court promote forum shopping
and/or inequitable administration of the laws? (i.e. likely to influence P's choice on
whether to litigate in fed v. state court?)
i. If yes - state law
ii. If no (nonsubstantial or trivial variations - unlikely to influence the choice of a
forum) - federal court can choose to apply state/ federal law
Here, the service process is not sth. parties would typically fight over - so
apply federal law.
b. Outcome determinative test (York) and substantive v. procedural distinction is NOT
Erie intended.
B. Hanna II - When we have a FRCP at issue
a. Dispute over service of process - conflict between state statute & FRCP4
b. If a valid federal rule governs the issue in dispute - apply federal rule (w/o Erie
analysis)
i. Validity Test
1. Strong presumption that the answer is yes (Hanna)
- Article III, Section 1: The judicial power of the U.S., shall be vested in
one Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish...
47
- Article I, Section 8: The Congress shall have power... to make all laws
which shall be necessary and proper for carrying into execution the
foregoing powers ...
2. Rules Enabling Act was a valid exercise of Congress authority - FRCP rules
are validly passed under the REA as long as they do not "abridge, enlarge or
modify, any substantive right and shall preserve the right of trial by
jury."
ii. Is there an applicable federal rule/ law that governs?
use Woods/Walker
c. If the answers to b are yes - apply federal rule; If no, go to Hanna I
● Other Sources of Federal Law
Scope - Hanna II - Governing Test
● Burlington Northern RR v. Woods (1987) (Broad reading)
a. Conflicting rules regarding a policy of discouraging frivolous appeals
Alabama State law: mandatory 10% affirmance penalty (appealing and losing)
FRCP: judge can use discretion in determining penalty
b. Hanna II Analysis
i. Whether FRCP is valid and governs the issue
48
- Reads the FRCP broadly - "Rules which incidentally affect litigant's
substantive rights do not violate this provision if reasonably necessary to
maintain the integrity of that system of rules."
- Its discretionary is enough and about the same topic/ policy, discouraging
frivolous appeals.
ii. So apply federal rule
● Walker v. Armco Steel Corp. (1980) (Narrow reading)
a. Non-conflicting rules regarding the start of civil action
Oklahoma State law: civil action started when summons is served on the defendant
FRCP3: civil action starts when complaint is filed
b. These rules don't cover the same issue. - OK law is about the SoL; FRCP3 is about
requirements for timely pleadings, not SoL tolling.
c. So FRCP didn't govern the issue in dispute (Hanna II doesn't apply) -Back to
Hanna I - apply state law
It would unlikely cause forum shopping, but probably inequitable administration
of the law.
* Erie Analysis Steps
STEP ONE: Is it a federal court with diversity jurisdiction?
-
Doesn't come up in state court - Federal court
-
NOT federal question jurisdiction - Sitting in diversity
STEP TWO: What kind of law is in conflict with the state law?
a. IF federal rule: Hanna II
49
b. IF federal caselaw: Erie/ Hanna I
i.
ii.
● Practice Problem (see note)
50
VII. Boundaries of a Lawsuit: Joining Claims and Parties
RULES:
Rule 13 - Counterclaims and Crossclaims
Grumman
Wigglesworth
Rule 18 - Joinder of Claims
Can add as many as you have
But still need to comply with other Federal court requirements - SMJ, etc.)
Rule 17(a) - Real Party in Interest
Rule 20 - Permissive Joinder of Parties
Rule 19 - Required Joinders
Rule 22 & U.S.C. 1335 - Interpleader
Rule 14 - Third Party Practice (Impleader)
Rule 24 - Intervention
● Basic Hypos on Rule 18
1. P - (stock fraud & trafic accident) - D [Fed. Ct]
Can traffic accident claim be added?
Yes - Rule 18
2. P - (stock fraud) - D - (traffic accident) - 3rd Party [Fed. Ct]
Does Rule 18 allow D to add a traffic accident claim?
No - Rule 18 doesn't tell about D adding claim
3. P [IL] - (stock fraud & State-law contract claim) - D [IL]
Can P add the state-law contract claim?
Still need to comply with other requirements (SMJ)
Rule 13- Counterclaim and Crossclaim
I. Generally
i. Question to ask:
1. Is inclusion of this claim a violation of federal joinder rule?
2. Is there SMJ?
ii. 13(a) - Compulsory Counterclaim Against an Opposing Party
51
● Must bring it up in 1st suit (not separate); If you don't bring up at the time of the
suit - It's waived.
● SHORTCUT: If a counterclaim is compulsory, then SMJ is satisfied (see
Wigglesworth)
"Supplemental jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of the same case
or controversy under Article III" - 28 U.S.C. 1367(a)
iii. 13(b) - Permissive Counterclaim -A pleading may state as a counterclaim
against an opposing party any claim that is not compulsory.
● Doesn't need to be part of same transaction or occurrence - everything but a
compulsory claim.
II. Crossclaims
i. 13(g) - Crossclaim Against a Coparty
Eg., P suing doctor and hospital for malpractice - hospital and doctor are coparties
III. 13(a) Caselaw
A. Grumman
"Logical Relationship Test"
● If logical relationship - compulsory counterclaim
i. Facts
- Suit 1: Data General Corp. (P) suing Grumman (D) for copyright
infringement (ADEX related; Mass. action) - in Massachusetts Fed. Ct
- Suit 2: Grumman suing DG for state antitrust claims (ADEX related) and
interference with business relationships in CA - in CA state Ct.
- DG removed to CA Fed. Ct - Grumman amended its complaint to add claims
unrelated to ADEX claims and added two new defendants
52
- DG moved to dismiss or stay the CA action, arguing that it was a compulsory
counterclaim to the Mass. action
ii. Holding: YES. Dismiss suit 2 - allow Grumman to file the claims as
counterclaims in the Mass. action
a. Rule 13(a)(1)(A) - arises out of the same transaction or occurrence...
b. Courts look to whether the factual bases of the lawsuits have a logical
relationship, such that the two actions should be decided at once for the
purpose of judicial economy and fairness
c. Similarities in legal theories of recovery are insufficient.
d. The fact that this action involves factual allegations not at issue in the Mass.
action doesn't preclude application of Rule 13(a)
B. Wigglesworth
"Same Evidence Test"
● If evidence for the claims is overlapping - compulsory counterclaim
i. Facts
- Suit 1: Wigglesworth (P) suing Teamster (D) for denial of free speech in
violation of 1st Amendment
- Suit 2: Teamster asserted a counterclaim against Wigglesworth for
defamation based on his statements on a press conference months later.
- Wigglesworth moved to dismiss the counterclaim based on lack of SMJ (no
diversity)
ii. Holding: NO. Wigglesworth's motion to dismiss the counterclaim is granted.
a. SHORTCUT: If compulsory counterclaim - doesn't require independent
basis of federal jx - it may be heard by the Fed. Ct hearing the original
complaint b/c the court already has jurisdiction over the SMJ
b. If a permissive counterclaim - a counterclaim that isn't connected to the
same transaction - must have its own federal jx basis to be heard by the same
Fed. Ct
c. Evidence of the two suits is note overlapping here - permissive counterclaim
IV. Analysis Step of 13(a) Compulsory Counterclaims
a. If 13(a) satisfied - Article III (same case or controversy) is satisfied
b. Use both Grumman & Wigglesworth tests to determine if compulsory counterclaim
i. Logical relationship test is broader - more possibility - can tie more things
together
ii. Same evidence test is stricter - think about what evidence needed for both
claims
c. SHORTCUT - Compulsory counterclaim & SMJ
* Hypos
a. Member - (free speech) - Union; Union -counterclaim (member didn't pay parking
fee) - Member
Grumman: NO
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Wigglesworth: NO
-
maybe look for possible evidence (contract, witness) for both claims
b. same original claim; Union - counterclaim (fight at the conference caused damages)
- Member
Grumman: YES (factual basis has logical relationship)
Wigglesworth: NO
c. P - (car accident) - D1 - (contract breach) - D2
No crossclaim. Not same transaction
d.
-
YES. b/c once crossclaim is already there under Rule 13(g), can add as many
as want, even unrelated - Rule (18)
-
But if just Back pay claim, then no.
● Permissive & Required Joinder of Parties
● Apply in Master Card Hypo:
Rule 20 - Permissive Joinder of Parties
I. Generally
a. 2 Essential Parts:
i. With respect to claim arising out of same transaction, and
ii. Question of law or fact in common
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b. Mastercard/ FIFA Hypo (Exxon also joined under Rule 20)
-
Diversity jx was satisfied to bring Discover in
● Yes, if claim arise out of the same transaction and question of law or fact in
common - Rule 20(a) (1)
● Hypo: Can Visa be joined as D? Any barrier? Assume Master Card alleged visa
tortiously interfere with their business relationship
-
YES, Rule 20(a)(2)
-
Potential issue of SMJ: B/C Torts is a state law claim - x federal question jx look at diversity jx, as well as PJ, venue...
● Hypo: Can FIFA argue that Visa had to be part of the litigation as D?
i. (h) Joining Additional Parties. Rules 19 and 20 govern the addition of a
person as a party to a counterclaim or crossclaim.
ii. Under Rule 19, Visa has to be joined
iii. Why FIFA does so? b/c there is chance to dismiss the claim - under Rule 19
(b): Visa has to be joined but not feasible b/c x diversity, x SMJ
c. If you aren't P or D and want to be brought in - use Rule 24
II. Caselaw
a. Kedra - YES case
Family members wanted to join multiple police officers together for various
abuses conducted. w/ a time span of 14-15 months
● Holding
i. The issue is whether the claims against different parties are "reasonably
related" to satisfy Rule 20(a)
ii. The time passed between events doesn't attenuate the factual relationship &
"systematic pattern" among all the events
iii. The claims against the various Ds do therefore "arise out of the sane
transaction..." - Joinder is proper under Rule 20(a)
vi. Rule 20(b) gives courts the authority to separate any claims or Ds in order
to prevent delay or prejudice - so possible that trying all Ds together might
prejudice those who ere not involved in all of the events.
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b. Insolia - NO case
Unrelated smokers smoking different brands at varying starting ages and
developed varying diseases - sued 5 tobacco companies for conspiracy to mislead
and the allegations allegedly occurred over 30 years - D moved to sever the claims.
- Granted
● Holding:
-
Too many distinct issues arising from many individual variables/ factors and
too long of a time period - their claims do not arise from the same transactions.
-
Thus, Rule 21 - Misjoinder of parties - they can file separate suits under FRCP
42, or Rule 20(b) protective measure
Rule 19 - Required Joinder of Parties
I. Generally
a. Often used by D - techniques to get cases dismissed because diversity jx can be
destroyed
b. Says claim can/ cannot proceed w/o a party
II. Analysis Steps
a. Rule 19(a)(1)(A),(B) - SHOULD the person be joined if feasible?
b. Rule 19(a)(1), (a)(3) - CAN the person be joined in terms of SMJ & Venue?
c. Rule 19(b) - Can the action proceed w/o the person? i.e. Is it in equity and good
conscience? - see factors listed
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III. Caselaw
a. Helzberg
D wants to use 19(b) claiming that a different party must be joined so to destroy
jurisdiction: Helzberg (P - Missouri) contrasted with Valley West (D- Iowa) and
stipulated that D won't allow more than two other jewelry stores into the shopping
center - D entered a third lease agreement with Lord's Jewelers - P sued in Fed. Ct
based on diversity ix seeking injunctive relief to restrain D from breaching their
contract - D moved to dismiss for failure to join Lord's, claiming that it's an
indispensable party to the suit. - Denied.
● Holding:
i. Should Lord's be joined if feasible? YES
It has an interest relating to the subject of the action - The injunctive relief
may prevent Lord's from operating its jewelry store in the manner that
Lord's originally intended.
ii. Can Lord's be joined? NO - lack of PJ
iii. Can the action proceed w/o Lord's? YES - see factors
1. In general, a party isn't deemed indispensable to a cause of action arising
out of a contract simply because that party's rights will be affected in an
entirely seperate contract
2. Lord's won't be prejudiced by the injunctive relief, b/c even if D
terminates Lord's leasehold interest, Lord's still retains all of its rights
under its lease with D
3. Lord's was offered the opportunity to join but it declined.
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Rule 22 & U.S.C.1335 - Interpleader
I. Generally, It gives stakeholder a chance to consolidate multiple claims
a. Diversity
i. Complete diversity - Stakeholder & all claimants
ii. Also requires $75k
b. Venue
i. Residence of defendant (if all Ds reside in same state), or,
ii. Where substantial part of events occurred or properly located, or,
iii. Where ANY defendant is subject to PJ (if no district where action can
otherwise be brought)
c. Service - as required under FRCP 4
II. Caselaw - Phillipines v. Pimental - RULE Interpleader
i. Interpreting Rule 22 + Rule 19
ii. Claimants (Pimentel class) sued Philippine President Marcos, won $2 billion
judgment in Hawaii Fed. Ct - They tried to attach a brokerage account at Merrill
Lynch (P) - The Republic and the Presidential Commission claimed the money
belonged to the Republic - P filed an interpleader lawsuit in Fed. Ct to settle all the
claims in one case - Naming multiple parties as Ds (claimants) - Republic invoked
sovereign immunity and moved to dismiss, arguing that the case couldn't be proceed
w/o it b/c it's an indispensable party under Rule 19(a).
-
The Republic should be here but Not feasible, this is equivalent of lacking PJ
over Lord's in Herzberg
-
Brokerage account held by P (over $35million) - P is both the stakeholder and
the plaintiff.
iii. Holdings
1. SHOULD the party be joined if feasible? YES
- b/c the Republics has an overriding interest in deciding how to distribute the
money and won't be able to protect its interest if not joined.
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2. CAN the party be joined? NO
b/c Sovereign immunity
3. Can the action proceed w/o the party in equity and good conscience?
NO - Dismissal
III. 28 U.S.C. 1335 - Statutory Interpleader
i. Generally
a. Diversity
Minimal diversity - between two or more claimants
Limits of U.S. Constitution Article.III vs. Limits of 28 U.S.C.1332
b. Venue - Where any claimant resides
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c. Service - Nationwide
d. Amount in controversy - at least $ 500
ii. Caselaw - State Farm v. Tashire - Statutory interpleader
● Interpreting the purpose and limits of interpleader & differences between statutory
and rule interpleader (especially SMJ)
-
State Farm brought an interpleader action - It had an insurance policy with the
truck driver, agreeing to be liable for injury up to $10k per person and $20k
total per action - State Farm paid into the court $20k and requested all the
parties to establish their claims against State Farm in a single proceeding.
(Fewer court cost, avoid multiple independent suits)
● Holdings:
1. Minimal diversity and $500 are satisfied - the case is properly in the Fed. Ct
2. Purposes of interpleader
i. This rule prevents the stakeholder from being subject to multiple
litigation over the same fund.
ii. However, can't use interpleader to bring every plaintiffs in - this is a
significant accident w/ 35 people who have unique claims against several
defendants - State Farm's relatively small interest in this action cannot
control the entire litigation and force all the plaintiffs to be in the forum
chosen by it. - Interpleader never meant to shut down all claims.
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Rule 14 - Third Party Practice (aka "Impleader")
I. Generally
a. Limited in scope - Bring nonparty who is or may be liable to it for all or part of the
claim against
b. P sues D, D (third-party plaintiff) brings D2 (third-party defendant) for
indemnity against him - says D2 is liable if D is on hook.
c. P and 3rd party defendant from same state does NOT destroy diversity jx for the
whole case, as long as there are no claims between P and the third-party defendant Only look at P and original opposing party.
d. SHORTCUT: If FRCP 14 is satisfied, the standard of "same case or controversy" is
also met.
II. Hypo
a. Asahi - FRCP13+FRCP14
b. P - (stock fraud) - D - (traffic accident) - 3rd party
i. Not ok under Rule 14
ii. But ok under Rule 18 - can join as many claims as you want
● Rule 24 - Intervention
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VII. Prior Adjudication
A. Overview
I. How
i. Competing policy interests between (a) Finality and (b) Fairness (giving parties their
day in court)
ii. Need to jnow the outcome of first suit
iii. Black Letter Law from 2nd Restatement of Judgments
iv. Generally, a person who is NOT a party to a suit is NOT bound by the
judgment, UNLESS (Taylor - apply for BOTH claim and issue preclusion, and nonparty preclusion):
1. Consent (contract)
2. Substantive legal relationships (executors, estates, guardians, etc.)
3. Represented (class action)
4. Controlled litigation (sharing a lawyer is not enough)
5. Agent (whether acting under the principal's control - remaining question in
Taylor)
6. Special statutory scheme (bankruptcy)
II. Claim Preclusion & Issue Preclusion
● Claim Preclusion
Res judicata
Prohibition on relitigating a claim which has already been litigated and gone to
judgment
Issue Preclusion
Collateral estoppel
Prohibition on relitigating issues that were actually litigated and that were
necessarily decided by the court
III. Other legal doctrines about finality
i. "Stare Decisis"
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ii. "Law of the Case"
B. Claim Preclusion (Res Judica)
I. Element
1. "Same claim" - factual overlap - Manego
2. "Final" judgment in the 1st action - Rees v. Allen
(even if it can be appealed)
3. * Same parties
4. Judgment "on the merits" in 1st action (Restatement &20; Manego)
a. Clearly on the merits: jury verdict, full trial, summary judgment
b. Clearly NOT on the merits - NOT bar the party: judgment based on procedural
issue, eg., lack of PJ, improper venue, nonjoinder/ misjoinder of parties
c. Somewhere in-between: 12(b)(6) - failure to state a claim
5. OR subject to Non-party preclusion - Taylor
II. Caselaw
a. Manego - "same claim"
same P - a nonparty to substitute in as a new D & 2 other original Ds remain- different
cause of action/ legal theory
D argues claim preclusion - YES - 2nd suit dismissed
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● Holding
i. General rule - Res judicata precludes litigation of claims arising from the
same transaction as claims that reached final judgment on the merits.
ii. Restatement of Judgments &24
Generally,
Specifically,
iii. Factual overlap
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-
Preclusion b/c (a) it's essentially the same claim and shares a lot of the
same facts; and (b) P already have had the opportunity in suit1 - it
cannot proceed against Bank and Willard - BUT the new defendant can
be sued b/c new party cannot get the benefit of claim preclusion
iv. Advice for Manego
However, if P lacked information so that he reasonably could not have
brought a claim arising from the same transaction in the 1st suit, res
judicata will NOT apply
-
Point out some facts were unavailable at the time of suit1
-
Look for more new facts to bring in suit2
-
Target at a completely different defendant
b. Reed v. Allen - "final judgment"
C. Issue Preclusion (Collateral Estoppel)
I. Generally
i. Elements
1. Same issue
2. Issue was actually litigated and essential to the judgment in suit1
3. * parties
4. OR subject to Non-party preclusion - Taylor
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ii. Sometimes only know who won and have to reason backwards using the elements
of the cause of action - Little v. Blue Goose
iii. Other times have more information
● "special verdict" - Hardy
● Court opinion
II. Caselaw
a. Little v. Blue Goose - YES estoppel case
Same parties, same issue (negligence)
i. Don't know decisionmaking process in suit 1 - need to reason backwards for negligence need to prove (a) negligence of defendant AND (b) P is free
from contributory negligence
ii. Suit1 must have been: (a) Little was negligent AND (b) Blue Goose wasn't
negligent
iii. Suit2 requires: (a) Blue Goose was negligent AND (b) Little wasn't
negligent
So issue of negligence here was already necessarily decided in suit1 Precluded
* Blue Goose may use compulsory counterclaim.
● Hypo: What if outcome of suit1- Little won?
i. Suit1 must have been: (a) Little wasn't negligent OR (b) Blue Goose was
negligent
ii. Suit2 requires: same
b. Hardy v. Johns-Mansville - NO estoppel case
Different parties, seemly similar issue but specifically different issues
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● Rule - With special verdict for suit1, can more easily decide if the issue has
actually been litigated - Has jury actually decided it and made it essential to
judgment?
Here, NO
D. Parties Bound by the Judgment
I. Generally
a. Due Process Rights - Hansberry
Sometimes we allow inefficiency b/c we want parties to have a "full and fair
opportunity to litigate an issue."
b. Non-party Preclusion ("privity") - Taylor
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When is someone bound by a prior decision?
i. A party to that earlier suit is bound (easy case)
ii. When can a nonparty to that earlier suit be bound?
"Adequately represented" - Hansberry
Class actions - Bell Atlantics v. Twombly; Insolia brought as a class action
iii. Examples of "privity"
Executrix; Partners; Class action members
c. "Non-mutual" Issue Preclusion - Bernhard; Blonder
d. The court cares about (a) Due process + (b) Litigation incentives
* CANNT use claim preclusion against party that hasn't been in court
II. Caselaw
a. Hansberry - NOT bound case
Different P, different D, same cause of action, P in suit1 won
● Holding: Hansberrys aren't bound b/c they aren't trying to enforce it like other
property owners - they are not adequately represented by parties who are present.
- Should give them a day in court
b. Taylor v. Sturgell - Non-party preclusion
Different P, same D, same cause of action, D won in suit1
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● Relationship between Herrick & Taylor
● District court dismissed the case by invoking "Virtual Representation" that a
nonparty may be subject to claim preclusion if:
(1) its interests were adequately represented by the previous litigate, and
(2) a close relationship between the previous and the present party;
participation by the present party in suit 1; or "tactical maneuvering"/ collusion
● The Court of Appeals rejects the doctrine b/c
(1) "Virtual Representation" is way too broad that it will be too timeconsuming
(2) Taylor was NOT adequately represented
● Generally, a person who was not a party to a previous suit isn't bound by the
judgment, UNLESS: see Overview notes
c. Bernhard v. Bank of America - YES preclusion
Same P, different D, related cause of action, D won in suit1
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Bank argues preclusion, b/c they were not in suit1 - no due process
Bernhard argues should relitigate b/c Bank as non-party, shouldn't be bound
● Traditional Rule of Mutuality of Estoppel
i. A person shouldn't benefit from collateral estoppel unless he would also have
been bound by the prior judgment
ii. Unless both parties in 2nd suit are bound by a judgment in previous suit,
neither party in 2nd suit may use the prior judgment as determinative of an
issue
● Court says the traditional rule is eroded - Preclusion - b/c P has had a full and fair
opportunity to litigate the case (Due Process)
d. Blonder Tongue v. U of I Foundation - Defensive non-mutual issue preclusion
Same P, different D, same cause of action, D won in suit1 - New D wants
defensive preclusion
Court rejects mutuality requirement b/c affording a litigant more than one full and
fair opportunity for the resolution of the same issue is judicially inefficient and
may misallocate the resources of the parties. - U of I has had the opportunity in
suit1
i. Can preclude a party that already participated in a litigation and lost on the
issue, even if both parties are not the same
ii. BUT some limits: P must be permitted to demonstrate, if possible, that he
didn't have a fair opportunity procedurally, substantively, and evidently to
pursue his claim the first time.
● Hypo: (1) A sued B, A won; (2) A sued C on the same issue (comes out of
different events) - A must relitigate
A has an incentive to preclude, but if preclusion - unfair to C who hasn't have a
chance to defend himself ("A day in court")
Different from Blonder, b/c D doesn't need such a chance
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e. Parklane - Offensive issue preclusion
Different P, same D, same issue + additional claims, P won in suit1
● New Rule
Here, None of the problems are present - thus, the judgment of the issue in
suit1 is taken as true (preclusion), and the remaining part of claims can still
proceed.
● Courts set up a different standard for whether allowing offensive issue preclusion:
1. Could the 2nd P have joined the 1st suit easily?
Here, no b/c 2nd suit was actually filed before 1st suit
2. Is it unfair to defendant?
a. different stakes in suit1?
Here, no b/c D would have strong incentive to fight in suit1 on such a
serious allegation - If only fighting for small nominal damages before,
D may have fought less
b. Different procedural opportunities?
Was D subject to inconvenient venue or substantial discovery limits in
suit1 so he was unfairly affected? Here, no
c. Inconsistent prior judgment?
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- eg., if 50 lawsuits in total - first 25 D won, the 26th P won - Won't
preclude merely based on the 26th judgment
● The court is worried about an incentive for plaintiff to "wait and see" and not join
- But not worried here.
III. Due Process (One Day in Court)
i. Rationales
- Some litigants who never appeared in a prior action - may not be collaterally
estopped w/o litigating the issue. B/C:
- They have never had a chance to present their evidence and arguments on the
claim
- Due process prohibits estopping them despite one or more existing adjudications
of the identical issue which stand against their position
ii. Limits
- If one wasn't a party to a previous case, he isn't going to be bound by the decision
- BUT he may be able to take advantage of an issue decided against the party he
got to litigate
iii. Hypos
a. Different P, same D, same issue, D won in suit 1
● Parklane Test: Could Prof B have easily joined suit 1? If not, he can relitigate
(a day in court)
b. P won in suit 1
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● Parklane Test: Did Barbri really get a chance to fight?
Different stakes; different procedural opportunities; prior inconsistent
results?
73