JURISDICTION – TWO BRANCHES: SUBJECT-MATTER, REMOVAL & PERSONAL
(1) SUBJECT MATTER – State and Federal:
 The ability of court to exercise power over a particular type of case (can be challenged
under Rule 12) and CANNOT be waived by anyone ever
 In order to have subject matter jurisdiction, you must have a constitutional AND
congressional (statutory) basis
o Constitution Article III, Section 1 – gives judicial power to Supreme court and
Congress to make inferior courts
o Constitution Article 3, Section 2 – gives judicial power to all cases arising under
the Constitution and States – controversies between citizens of different states
o Judiciary Act of 1789 Section 11 – creates and gives power to federal circuit
courts – requirements include over $500 in controversy, US as
plaintiffs/petitioners, or alien is a party, or the suit is between a state citizen
where the suit it brought and a citizen of another state
 Now reiterated in 28 USC 1332 – gave power to district courts –
requirements include amount in controversy is over $75,000 and all
plaintiffs must be of different citizenship than all defendants (diversity
citizenship)
o Judiciary Act of 1875 – expanded the jurisdiction of the federal circuit courts
allowing either party to remove a federal question case from state court to
federal court – requirements include over $500 in controversy arising under the
Constitution or laws of the US
 Now reiterated in 28 USC 1331 – gave district courts original jurisdiction
of all civil actions arising under the Constitution, laws and treaties of the
US (on federal questions) – requirements include plaintiff’s complaint
must be a well-pleaded one referencing a federal question and federal
issues evoked
 could be filed in state and federal court because of overlap
 (1) STATE Subject-matter jurisdiction – exclusive jurisdiction over certain issues
o Plaintiffs are of same state as defendants
 i.e., MO v. MO in MO for criminal, civil, family, probate issues
 (2) FEDERAL Subject-matter jurisdiction – three ways
o (1) Diversity Jurisdiction – citizens of different states
 28 USC 1332 – two requirements:
 complete diversity between the parties AND
o plaintiffs citizens of different states than defendants
 the claim is for more than $75,000 in controversy
o there at least has to be a POSSIBILITY that judgment will
be in excess of $75,000 (what is pleased NOT what is
recovered)
o can include compensatory and punitive damages but NOT
interest or costs
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Complete Diversity of Citizenship
 Individuals are citizens of the state they are domiciled
o Most recent state where the person has resided WITH the
intent to remain indefinitely
 Evidence of practical affairs can help prove intent
o Residency remains in the old state until the two criteria
above are met, even if person has no plans to return to old
state
o Domicile is determined at time the complaint is filed
o Domicile for babies is place of birth (in custody disputes)
UNTIL it changes
 Corporations are citizens of state where they are incorporated at
or where it’s principal place of business is at
o Nerve center TEST – determines principal place of business
by where policy originates, offices of president & vice
president
 Erie Doctrine –
 28 USC 1652 – state laws as rules of decision (1789)
o The laws of the several states, except where the
Constitution, treaties, Acts of Congress require, shall be
regarded as rules of decision in civil actions in the courts of
the United States in cases where they apply
 Cases in Federal courts based on diversity citizenship
o Apply federal procedure rules
 Judge may ignore state law
o Apply state substantive law
 Judge MUST follow state law
 i.e., statute of limitation, elements of a claim of
defense
 Twin aims – prevent forum shopping AND prevent unequal
application of the law
o (2) Federal Question Jurisdiction – claim states a federal law or issue
 Arising under the Constitution Article III
 Ingredient RULE – as long as the federal law is an ingredient in the
case the case arises under federal law
 28 USC 1331 – district courts have original jurisdiction over all civil actions
 Well Pleaded Complaint RULE: a federal question and or issue
must appear in the complaint
o MUST create the cause of action, and not just an
ingredient
 Examples:
 Civil rights complaints under 42 USC 1983
 Fair Housing Act complaints under 42 USC 3601
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Employee Retirement and Security Act (ERISA) 29 USC Section
1001
o (3) Supplemental Jurisdiction – extension of subject matter and CANNOT be
waived (discretionary)
 28 USC 1367(a) – district courts shall have supplemental jurisdiction over
all other claims (that otherwise wouldn’t have jurisdiction) that are so
related to the original jurisdiction claims that they form part of the same
case or controversy
 Includes claims that involve joinder or intervention of additional
parties
 Nucleus TEST: the state and federal claims must derive from a
common nucleus of operative facts
 28 USC 1367(b) – exceptions to supplemental jurisdiction over claims
against persons made parties under Rule 14, 19, 20, or 24
 FRCP 14 – Third party practice: when a defending party may bring
in a third party and when a plaintiff may bring in a third party
 FRCP 18 – Joinder of Claims
 FRCP 19 – Required (Compulsory) Joinder of Parties
 FRCP 20 – Permissive Joinder of parties
 FRCP 24 – Intervention
 28 USC 1367(c) – courts can decline to exercise supplemental jurisdiction
if:
 Claim raises a novel or complex issued of state law
 Claim substantially predominates over the claim over which the
district court has original jurisdiction
 District court has dismissed all claimed over which it has original
jurisdiction OR
 There are other compelling circumstances that could arise
 In order for supplemental jurisdiction to operate:
 A claim has to be within the original jurisdiction of the federal
court
o Look at 1331 and 1332 to see if state or federal claim
 State law claim that is NOT within the original jurisdiction of the
federal court
 A relationship between the state and federal claim where they
both derive from a common nucleus of operative fact
(2) REMOVAL
 Right of a defendant to move a lawsuit filed in state court to federal district court for the
federal judicial district in which the state court sits
 28 USC 1441 – Removal of Civil Actions
o If a case is removed from state court to federal court, the proper venue is the
federal district court and the division in which the state court action is pending
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o Generally – the case must have an independent basis for federal jurisdiction, the
statute doesn’t confer jurisdiction
o Based on diversity of citizenship – the amount demanded in the complaint is
presumed to be the amount in controversy
 Defendant’s notice of removal may also state the amount in controversy
if:
 Plaintiff seeks nonmonetary relief
 State law doesn’t allow the plaintiff to demand a specific amount
in the state court complaint
 State law allows the plaintiff to recover more than the amount
demanded on the state court complaint
o Joinder of federal law claims and state law claims
 Only defendants may remove
 Plaintiff may not remove even if plaintiff is defending a counterclaim BUT
 There is no removal in defendant’s home state
 Forum-Defendant RULE: if removal is based solely on diversity
citizenship, the case may NOT be removed if any of the parties
properly joined and defendant is a citizen of the state in which suit
is brought
28 USC 1446 – Procedure for Removal
o Generally – defendant shall file in the district where suit is pending a notice of
removal signed pursuant to FRCP 11 and contain a short and plain statement for
grounds of removal with copies of all process, pleadings, and orders served upon
defendant
o Requirements –
 notice of removal shall be filed within 30 days after defendant receives
notice of initial pleading OR within 30 days after service of summons has
been filed in court and isn’t required to be served on the defendant –
whichever period is shorter
 If removed under 1441(a), all defendants who were properly
joinder and served must join in or consent to removal
 Each defendant has 30 days after receipt of the initial pleading
described in (generally) to file the notice of removal
 Defendants served at different times, the last served defendant
files a removal, any earlier served defendant may consent to
removal even though they didn’t previously initiate or consent to
removal
 Except (c), if the case in the initial pleading is not removable, a
notice of removal may be filed within 30 days after receipt
o Requirements for removal based on diversity of citizenship –
 May not be removed under (b)(3) on the basis of jurisdiction provided by
1331 more than 1 year after commencement of action UNLESS district
court finds that plaintiff acted in bath faith in order to prevent removal
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If removal is sought under 1332(a), the sum demanded in the initial
pleading shall be deemed to be the amount in controversy EXCEPT
 Notice of removal may assert the amount in controversy if initial
pleading seeks
o Nonmonetary relief OR
o Money judgment but state practice doesn’t permit a
specific sum or permits recovery of damages in excess of
the demanded amount
 Removal is proper on the basis of amount in controversy if district
court finds that the amount in controversy exceeds the amount
specified in 1332(a)
 If case not removably solely because the amount in controversy doesn’t
exceed the amount specified in 1332(a), information relating to the
amount in controversy shall be treated as other paper
 If notice of removal is filed more than 1 year after commencement
of action and district court finds that plaintiff deliberately failed to
disclose the actual amount in controversy to prevent removal – it
is deemed bad faith
o Notice to adverse parties and state court – after filing the notice, the defendants
shall give written notice to all adverse parties and file a copy with the clerk and
state court shall not proceed any further unless and until the case is remanded
28 USC 1447 – Procedure after Removal
o Joinder after removal that would destroy subject-matter jurisdiction
 If after removal, the plaintiff seeks to join additional defendants whose
joinder would destroy subject matter jurisdiction, the court may deny or
permit joinder and remand the action to federal court
(3) PERSONAL JURISDICTION – In Personam, In Rem, & Quai In Rem
 Ability of court having subject matter jurisdiction to exercise power over a particular
defendant or property, CAN be waiver
o FRCP 4 – ways to bring in defendants within personal jurisdiction of particular
district court
 Asahi Metal Indus. Co. v. Superior Court where Zurcher was injured and
wife killed after a tire blew out and sued Cheng who cross-complained for
indemnification from P because P manufactured assemblies in Japan and
Cheng bought assemblies annually with the sales happening in Taiwan and
put the assemblies into tires it sold worldwide, the court ruled that whether
or not minimum contacts exists exercising personal jurisdiction over P is
unreasonable and unfair because (1) P’s burden in traveling to and
defending itself in a foreign county is significant, (2) Cheng is not a CA
resident and so the state’s interest is slight (gave us the stream of
commerce doctrine articulated by two judges)
 Two TESTS–
 (1) O’Connor: foreseeability plus OR stream of commerce plus
theory of minimum contacts
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o Stream of commerce PLUS additional factors:
 Designing product for the market in forum state
 Advertising in the forum state
 Providing regular advice to customers in the forum
state
 Marketing that product through a distributor who
serves as a sales agent in forum state OR
 Other equivalent acts
 NOTE: these activities indicate an intention
to target sales within the geographical
boundaries of a state
 (2) Brennan: simply placing a product into the stream of commerce
with knowledge that it will eventually be used in the forum state
constitutes purposeful availment
o As long as 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 NOR will the
litigation present a burden for which there is no
corresponding benefit
Premised on concepts of notice and fairness
Longarm statutes - authorizes the state’s courts to exercise jurisdiction over certain out of
state defendants, provided that the jurisdiction satisfies the constitutional requirement of
notice and fairness, OR the defendant waives objection to personal jurisdiction
(1) Specific Jurisdiction – activities in state must be systematic and continuous for a
determination that minimum contacts exist for an absent defendant
o International Shoe case – where P-DE corporation with its principal place of
business in MO didn’t pay unemployment in WA; the court ruled that actual
presence of corporations is a fiction and therefore activities of a corporation in a
state are a better metric to determine if it’s fair to subject the corporation to
personal jurisdiction of that state
 TEST: When people engage in activities or are involved in commerce in a
state, there comes a point where their activity reaches a level such that
contacts of the corporation with the state of the forum as make it
reasonable to require the corporation to defend the particular suit which is
brough there
o Applies to suits in the forum that are related to the defendant’s activity that gives
rise to minimum contacts
(2) General Jurisdiction – applies even if the harm the defendant caused is unrelated to
defendant’s activity in that state
o Defendant can be sued for anything in that state if they are:
 Individuals
 Present int eh forum when served OR
o No matter how quick the presence is
 At home (based on domicile)
 Corporations
 Where they are incorporated (at home) OR
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Where its principal place of business is at (at home) OR
Where their activity is so continuous and systematic as to render it
essentially at home
o Higher level of activity required (referred to as maximum
contacts)
Modes of Jurisdiction
o In Personam – over the person and acquired by service of process
o In Rem – property located in forum state (limits on issues that van be
adjudicated)
 Quasi in Rem – property can be attached to resolve in personam claims.
BUT the defendant is not personally bound by the judgment beyond the
property in question
 Pure – property v. the world
o Minimum contacts exists because property in the state is
sufficiently related to dispute
 Seen in admiralty, forfeiture, and probate cases
 QIR I – specific plaintiff v. another plaintiff for rights in property
o Minimum contacts exists because property in the state is
sufficiently related to the in personam dispute
 Seen in quite title suits
 QIR II (A) – plaintiff walking across defendants land and is hurt
by negligently maintenance of property
o Minimum contacts exists because property in the state is
sufficiently related to the in personam dispute
 Seen in negligent property cases
 QIR II (B) – action unrelated to property
o No minimum contacts exists because property in the state is
unrelated to the in personam dispute
 Seen in cases like Shaffer v. Heitner - where D sued
in DE alleging acts took place in OR against a
Greyhound corporation incorporated in DE
represented by P and the property (stocks and
options) located in DE, the court ruled that DE
cannot assert personal jurisdiction over D’s because
all assertions of jurisdiction require the satisfaction
of the minimum contacts relationship between the
dispute and defendant’s activity/property in the state
and here the property that was seized was statutorily
located in DE but it did not have relation to the
subject matter of the litigation
CLASS ACTIONS
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Cases in which one or more representatives parties bring claims on behalf of all members
of a larger group called a class
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Before a case can proceed as a class action, the court must certify AND determine if
suitable for class treatment
FRCP 23(a) factors must ALL be met:
o Numerosity – the class has so many members that it would be impracticable to
join each individually
o Commonality – questions of law or fact are common to all class members
 Only need one single common issue
o Typicality – the representative parties’ claims or defenses are typical of those of
all class members
 Arise from the same event/practice/course of conduct that gives rise to the
claims of other class members
 Representatives’ interest align with the group
o Adequacy – the class representative will fairly and adequately protect the class
members’ interests
 Representative must have common interests with group AND vigorously
prosecute interests of the class
After 23(a) factors are met, determine that type of class action under 23(b) types – only
need one
o A class action may be maintained if Rule 23(a) is satisfied AND if:
 Prosecuting separate actions would create a risk of
 inconsistent decisions OR
 otherwise impair the class members’ interests
o The defendant acted or refused to act on grounds that apply to the whole class so
that class wide relief is warranted OR
o Common questions of law and fact predominate over any questions affecting only
individual class members and a class action is superior to other methods of
deciding the case. Matters pertinent to these findings include:
 Class member’s interests in individually controlling the prosecution or
defense of separate actions
 The extent and nature of any litigation concerning the controversy already
begun by or against class members
 The desirability or undesirability of concentrating the litigation of the
claims in particular forum AND
 The likely difficulties in managing a class action
o i.e., claims are related but NOT as closely as in the other types of class actions
If Rule 23(a) and 23(b) are met, the court will issue an order certifying these cases to
proceed as a class action
o The order must define the class, identify the class claims, or issue and appoint
class counsel
o Then the notice of certification must be provided to the class members
In a 23(b)(1) and 23(b)(2) case, such class member who receives notice must be included
in the class
o BUT in 23(b)(3) individual class members may OPT OUT by choosing to be
excluded from the class
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Someone who opts out can file an individual suit and isn’t bound by the
judgment in the class action BUT they risk being subject to claim
preclusion or issue preclusion based on the result of the class litigation
VENUE
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Right of a defendant to move a lawsuit filed in state court to the federal district court for
the federal judicial district in which the state court sits
o Party may waive any objection to venue by failing to object at an appropriate time
o Party may consent by including a forum selection clause in contract
 Forum selection clause – parties agree in advance the appropriate venue
for litigation and they have to be enforced unless there is a valid reason for
not doing so
Determined when action commences and is re-evaluated if parties or claims are added as
it must always be proper to all parties AND all claims
o FRCP 19(1)(3) and 28 USC 1391
28 USC 1390 – Venue, Scope
o (c) does not determine district court that the case is to be heard in
28 USC 1391 – Venue, Generally
o (c) Residency
 (1) Individuals
 where they are domiciled
 (2) Entities –
 If the defendant, then it resides in any district where the entity is
subject to personal jurisdiction in the case
 If the plaintiff, then it resides only in the district where it has its
principal place of business
 (3) Foreign defendants
 Subject to venue in any district AND joinder of such defendants
shall be disregarded
o (d) Residency of corporations in states with multiple districts
 Deemed to reside in any district where it would be subject to personal
jurisdiction if that district were treated as a separate state
 If no state is deemed this, then it is the state where there is the most
significant contacts
28 USC 1404 – Change of Venue (correct venue to correct venue)
o Court may transfer for the convenience of parties/witnesses and interest in justice
to any federal district in which the case could have been file originally OR to
which all parties consented
 BOTH personal and subject-matter jurisdiction must still be proper
o Any party may move to transfer even if original venue is proper (via motion,
consent, or stipulation of all parties in the discretion of the court)
o A district court may order action to be tried at any place within the division in
which it is pending
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If the venue is proper BUT the case belongs in a separate judicial system,
the court can dismiss and stay the case under the doctrine of forum nonconveniens
No transfer to state courts
o Because a state court is a different entity
o Can only be addressed or moved under the doctrine of forum non conveniens
Transfer doesn’t change the applicable law to the case UNLESS the original venue was
not proper
o EXCEPT if a forum selection clause exists, then it could change the applicable
law
Forum non conveniens – discretionary power of court to decline jurisdiction when
convenience of parties and ends of justice would be better served if action were brought
and tried in another forum – based on public and private interest factors
o Can be raised by defendant’s motion or sua sponte
o Private interest:
 Relative ease of access to evidence and witnesses
 Availability of the compulsory process for attendance of unwilling
witnesses and cost of bringing willing witnesses to court
 Possibility of conducting a shorter or less expensive trial in an alternative
forum
 All other practical problems that make trial of a case easy, expeditious,
and inexpensive
o Public interest:
 Administrative difficulties flowing from court congestion
 Local interest in having local disputes settled by local decision makers
 Interest in having the trial of a diversity case in a forum that is at home
with the law that must govern the action
 Avoidance of unnecessary problems in conflict of laws, or in the
application of foreign law
 The unfairness of burdening citizens in an unrelated forum with jury duty
o NOTE: If balance of all factors supports granting of 12(b)(3) motion = action is
dismissed
o Piper where a plane manufactured in PA by P-Piper and the propellers
manufactured in OH by P-Hartzell crashed in Scotland killing the pilot and five
passengers, all of them being Scottish citizens and residents, the court ruled that
the district court didn’t abuse its discretion in deciding that public and private
interests support moving the trial to Scotland because even though recovery and
remedies available to D may be more restrictive in a Scottish court than in a US
court it cannot be said that the available remedies are so limited as to be
effectively nonexistent
28 USC 1406 – Cure or waiver of defects (incorrect division to correct division NOT
incorrect venue to correct venue)
o (a) court may dismiss or transfer any case to any district if in the wrong venue or
in the interest of justice
 If venue is improper, you can either dismiss or transfer the case to an
appropriate venue, even if the transferring court lack personal jurisdiction
o (b) if a party doesn’t interpose timely and sufficient objection to the venue, the
court shall have jurisdiction
 If venue is improper, any objection to venue is waived if it is not raised
either in the answer to the complaint OR in a pre-answer defense motion
o (c) district court includes Guam, Northern Mariana Islands, and Virgin Islands and
includes territorial jurisdictions of each such court
CLAIM AND ISSUE PRECLUSION
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US Constitution Article IV Section 1 – Full Faith and Credit Clause
28 USC 1738 – Full Faith and Credit Statute
Always requires two judicial proceedings:
o An initial action where a judgment was entered AND
o A subsequent action
Doctrines – Two:
o (1) Claim Preclusion or Res Judicata – when a party is attempting to preclude
relitigation of certain claims in the subsequent action because the party asserts
that these claims were addressed in the first action
 FRCP 41 – Dismissal of Actions
 Voluntary By the Plaintiff
o Without a Court Order - may dismiss an action by filing:
 a notice of dismissal before the opposing party
serves either an answer or a motion for summary
judgment; OR
 a stipulation of dismissal signed by all parties who
have appeared.
o Effect. Unless the notice or stipulation states otherwise, the
dismissal is without prejudice. But if the plaintiff
previously dismissed any federal- or state-court action
based on or including the same claim, a notice of dismissal
operates as an adjudication on the merits.
 Voluntary By Court Order; Effect - may be dismissed at the
plaintiff's request only by court order, on terms that the court
considers proper. If a defendant has pleaded a counterclaim before
being served with the plaintiff's motion to dismiss, the action may
be dismissed over the defendant's objection only if the
counterclaim can remain pending for independent adjudication.
Unless the order states otherwise, a dismissal under this paragraph
(2) is without prejudice.
 Involuntary Dismissal; Effect - If the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move
to dismiss the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule—except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule
19—operates as an adjudication on the merits.
 Dismissing a Counterclaim, Crossclaim, or Third-Party Claim –
claimant’s voluntary dismissal under 41(a)(1)(A)(i) must be made:
o Before a responsive pleading is served OR
o If no responsive pleading, before evidence is introduced
 Cost of a Previously Dismissed Action – if P, that previously
dismissed action, files an action based on or including the same
claim against the same defendant, the court:
o May order plaintiff to pay all or part of costs of previous
action AND
o May stay the proceedings until the plaintiff has complied
 Elements:
 Final judgment on the merits in the initial action
 Prevent relitigation of claims in a subsequent action that were
brought OR should have been brough in the initial action
o Factors to consider for whether a claim could have been
brought:
 Whether court in initial action has subject matter
jurisdiction
 Whether applicable joinder rules (18 & 20) permit
the joinder of the claim
o Factors to consider for whether a claim should have been
brought:
 Is the same evidence required to establish both
claims?
 Are both claims so related they form part of the
same Article 3 case or controversy?
 Are both claims part of the same transaction?
 Consistent with FRCP 13’s approach to
determining whether a counterclaim should
be considered compulsory
 Mutuality of parties always required in first and section action
 Rationale:
 Judicial efficiency
 Persuade plaintiff’s to join all claims
 Avoid inconsistent outcomes
o (2) Issue Preclusion or Collateral Estoppel – when a party is attempting to
preclude relitigation of certain issues in the subsequent action because the party
asserts that these issues were addressed in the first action
 Elements:
 Final judgment on the merits in the initial action
 Prevents relitigation of issues in a subsequent action
o If those issues were actually litigated and decided in the
initial action AND
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o The litigation of the issues was actually necessarily to the
judgment in the initial action
 Mutuality of parties NOT always required in first and second
action
Rationale:
 Repeated suits detract from the credibility of the courts to resolve
disputes
 Harassment of parties or people
 The respect for the finality of judgment
RULE: a party is estopped from bringing a civil claim based on a material
fact when that material fact was determined in a former suit between the
same parties or between with whom the parties to the subsequent suit are
in privity
ISSUE: whether issues attempting to be estopped in the subsequent action
were actually litigated and decided in the initial action
ARGUMENTS:
 Plaintiff – for issue preclusion to apply, claims in initial action
must be identical to claims in subsequent action
 Court – issue preclusion does NOT require claims to be identical,
same issue may exist in multiple claims
o Issues are question which must be decided in order to
resolve a claim and they typically depend on applying the
law to the facts
OUTCOME: finding that an issue was NOT decided or essential to first
action and should NOT be barred by issue preclusion in second action
RULE: when the finding on the issue sought to be precluded in the
subsequent action was not essential or necessary to the judgment in the
initial action, courts in a subsequent action will NOT give preclusive
effect to the finding on that issue
Non-Mutual Collateral Estoppel – a defendant seeks to prevent a plaintiff
from relitigating an issue that has been unsuccessfully litigated by the
plaintiff in the past against a different party
 Prevents freeloading in litigation where parties are waiting to see if
people in similar cases prevail before filing suit and arguing they
should win because the same issue was decided in a previous
action to which they weren’t a party to
o Offensive use doesn’t promote judicial economy, as
defensive estoppel, and it may be unfair to a defendant if
there is little incentive in first action to defend vigorously
against suit
 ELEMENTS:
o Estopped party had a strong incentive to litigate in the first
suit
o The procedural opportunities in the initial suit were no
different than those in the second suit
o There were no prior inconsistent judgments
o The plaintiff could not have easily joined in the initial
action
RIGHT TO JURY TRIAL
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Two types of claims:
o (1) Law claim – Legal right to sue
 i.e., damages for breach of contract, damages for harm caused by a
nuisance, damages for negligence, ejectment from property wrongfully
occupied possession of plaintiff’s property, conversion (to recover item’s
value), and replevin (to recover item)
o (2) Equitable claim - No legal right to sue but require a remedy
 i.e., specific performance of a contract, reformation of a contract,
rescission of a contract, injunction to stop continuation of a nuisance,
negligence, or breach of contract, claim for accounting
 Types of Equitable Claims:
 FRCP 65 – Injunction and Restraining Orders
o Prohibitory and mandatory
o Preliminary  Factors:
 Degree of harm movant will suffer if relief
not grant and ability of court to rectify the
harm as part of final relief granted after trial
 Balance of harms between movant and
respondent
 Movant’s likelihood of success on the merits
 Public interest
o Ex parte
o Permanent
 Specific Performance
 28. U.S.C. 2201 - Declaratory Judgment Act and FRCP 57
o A federal statute when you don’t know what the rights of
the parties are on a particular issue and you go to the court
to simply tell you who is right (based on facts and law)
o Common for claims against the government
o If both legal and equitable, then the jury trial on the claim at law will be
determined first, even if preclusion of the equitable claims will result
FRCP Rule 2 joined the forms of action (legal and equitable) permitting them to be tried
as part of one action.
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
o The joinder rules encourage joining of actions but the rules did not eliminate the
remedial and substantive differences between the two forms of action
A party may bring BOTH claims in one action and will be entitled to jury on some
claims but not on others
o The rules created a risk that a judge’s determination of disputed facts would be
binding and preclude jury determination of facts previously decided by the judge
 Which is why when both legal and equitable issues exist in one claim, the
jury decides the legal issues FIRST and then the judge comes in and
decides the equitable issues
US Constitution 7th Amendment
o In suits at CL, where the value in controversy shall exceed $20, the right of trial
but jury shall be preserved and no fact tried by a jury, shall be otherwise reexamined in any court of the us, than according to the rules of the common law
 Traditionally and up until FRCP, federal courts tried equitable and legal
actions separately
 No jury for equitable claims (judge rules), ONLY for legal claims
 It has long been accepted that the right extends to all actions
created since then which can be classified as legal
FRCP 38 – Right to Jury Trial; Demand
o (a) Right Preserved –
 the right of trial by jury is preserved
o (b) Demand –
 If a plaintiff, at end of the complaint you can put you want a jury trial
 If a defendant, AND if the plaintiff did not demand a jury trial, you can
put you want a jury trial in the response
 No later than 14 days after complaint originally filed (Rule 5(d))
o (c) Specifying Issues –
 A party must specify issues it wishes to be tried by a jury, OTHERWISE it
is considered to have demanded a jury trial on all the issues so triable. If a
party has demanded a jury trial on only some issues, any other party –
within 14 days after being served with the demand or within a shorter time
ordered by the court – serve a demand for a jury trial on any other or all
factual issues triable by jury
 Can come up strategically if attorney thinks better chances with
judge
o (d) Waiver ; Withdrawal –
 If you don’t file and serve the demand properly, you waive a jury trial
 A proper demand may be withdrawn only if the parties consent
FRCP 39 – Trial by Jury or by the Court
o (a) When a jury trial has been demanded under Rule 38, the action must be
designated on the docket as a jury action
 Trial on all issues so demanded must be a jury UNLESS:

(1) the parties or attorneys file a stipulation to a nonjury or so
stipulate on the record OR
 (2) the court, on motion or on its own, finds that on some or all of
those issues there is no federal right to a jury trial
o (b) Issues on which a jury trial is NOT properly demanded are to be tried by the
court. But the court may, on motion, order a jury trial on any issue for which a
jury might have been demanded
o (c) In an action NOT triable of right by a jury, the court, on motion or on its own:
 (1) may try any issue with an advisory jury; OR
 (2) may, with the parties’ consent, try any issue by a jury whose verdict
has the same effect as of a jury trial had been a matter or right, UNLESS
the action is against the US and a federal statute provides for a nonjury
trial