CIVIL PROCEDURE II
Spring Semester 2013
Tuesdays, 8:35-10:00, Room TBD
Thursdays, 8:35-10:00, Room TBD
3 Credits
PROFESSOR JESSICA CLARKE
Office N348 – (612) 626-9708 – jessicaclarke@umn.edu
Office Hours: Tuesdays, 10 to 11 am, Thursdays, 10 am to noon, and by appointment
Assistant: Morgan Gooch – Office N216 – (612) 626-5984 – gooch010@umn.edu
COURSE OVERVIEW
While the Civil Procedure I course you took as a first-term law student focused on the
“life cycle of litigation” from pleading through final judgment and preclusion, this course
zeroes in on several particularly complex issues that arise along that path. We will
consider personal and subject-matter jurisdiction, fundamentals of choice of law
(especially the Erie doctrine that governs the choice of law in diversity jurisdiction
cases), class actions, remedies, and relief.
Like Civil Procedure I, this course explores the design of procedural structures, and the
ways in which different designs can promote certain values over others or can shift power
between different participants in the system. Somewhat unlike the earlier course,
however, most of the topics in Civil Procedure II lack the codified rules that govern so
much of litigation. We will be working much more with case precedents, and a
considerably greater level of abstraction and malleability. Ultimately, we will be learning
about the court system’s generation of its own rules through an iterative common-law
process of judicial reasoning and constitutional constraint.
REQUIRED TEXTS
 Subrin, Minow, Brodin & Main, Civil Procedure: Doctrine, Practice, and Context
(Fourth Edition 2012).
 The Federal Rules of Civil Procedure (any version, including online, current through
2012). If you choose a bound version, I recommend one that also includes the
Advisory Committee Notes, the U.S. Constitution, and relevant sections of the U.S.
Code. You can also find these on Westlaw or Lexis.
 You are also required to purchase a “clicker” or a subscription to Turning
Technologies for in-class exercises. See below for details.
TWEN
Please register for this course on TWEN immediately. You have access to TWEN
through the Westlaw website, using the Westlaw login and password information you
received at orientation. You are responsible for being sure that your e-mail address in
TWEN is accurate and up-to-date. You will need to be enrolled in this course’s TWEN
website to receive notification of assignments and access to supplementary required
readings, among other things.
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CLICKERS
During class, I will occasionally conduct ungraded multiple-choice quizzes and instant
polls using TurningPoint clickers. I will not grade your responses to any clicker quizzes,
but I may use clickers to monitor class attendance and participation, beginning with our
third class. You have the following options:
1.
Use your Laptop or Mobile Device
If you would like to use the web browser on your laptop, smart phone, or other
device you must first sign up for a $17 annual license at
https://store.turningtechnologies.com/ with the code for the University of
Minnesota: Vql4. (that’s a lower-case letter l, not the number 1). Then:
a.
To use a web browser on your laptop, login at www.RWPoll.com.
b.
To use a mobile device, download the “Turning Technologies,
LLC ResponseWare” app.
Be sure to register with your correct name, so that I can give you credit for your
class attendance and participation. You will need to be connected to the internet
during class to use this option. During class, login to the Session ID
clarkecivpro.
OR
2.
Purchase a ResponseCard from the Bookstore
You also have the option to purchase a “clicker” device from the bookstore, called
a ResponseCard RF LCD, for approximately $40. The bookstore may buy back
clickers at the end of the semester at a percentage of the original cost. During
class, make sure your clicker is programmed to Channel 41.
If you choose to use a device, please email me with the device ID on the back of
your ResponseCard before our second week of class, so that I can give you credit
for your class attendance and participation.
Additional information, including support guides and FAQs, can be found at
http://www.turningtechnologies.com/responsesystemsupport/.
ASSIGNMENTS
You will find the first half of the reading assignments for the course at the end of this
syllabus. I will post the second half later. Some assignments include notes of
clarification or questions that you should focus on in your class preparation.
I will call on students at random to answer questions. You are required to come to class
prepared to discuss the reading assignment. If you are unable to prepare for class on any
particular day, please send me an email the night before and I will not call on you, or
approach me before class to let me know. I will pass around a seating chart at our third
class and the seat you choose will be yours for the entire semester; this will help me learn
names and will allow group exercises to run smoothly.
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You are responsible for finishing each reading assignment before the listed date. I have
organized the syllabus in a logical progression, with readings grouped together topically,
rather than in artificial 85 minute chunks. That means that very often, we will not get
through the entire assignment in one class. I have attempted to predict when this will
happen so that I can make the reading for later classes lighter to allow us to catch up. If
we don’t get to a case on the date it is assigned, we will cover it during the next class, so
be sure that you review it and are ready to answer questions then.
Because this is my first time teaching Civ Pro II, I cannot accurately predict how long it
will take to cover each topic. It is likely that I will make adjustments to the syllabus
throughout the semester, including changing the dates and deleting or adding readings.
When this occurs, I will notify you via the email address you used to register on TWEN.
For this reason, I ask that you try not to read any more than one class ahead on the
syllabus.
LUNCHES
I am free on Tuesdays for lunch from 12:15 to 1:15 at Republic (or another location close
to the law school). I would be happy to meet with you during that time, either
individually or in small groups, for informal discussion of the course, your law school
experience, your career plans, and any other matters of interest. I have posted a sign-up
sheet on TWEN. As many as five students can sign up for each lunch. I look forward to
answering your questions and getting to know you.
COMPUTER AND TECHNOLOGY POLICY
You may use your laptop during class for course-related purposes. However, during
class you may not access email, instant messaging, social networking, games or have
screens open for anything other than work related to civil procedure. You may not
tape record classes without my written permission.
GRADING
Grades will be based principally on a four-hour open-book and open-note final exam.
You may consult any hard-copy materials that you bring with you to the exam (but no
electronic resources). The exam is likely to consist of a mix of issue spotter, short
answer, and policy questions. A percentage of your final grade will be based on class
attendance and participation. I expect to adhere to the Law School’s recommended class
grade average.
HONOR CODE NOTICE
http://www.law.umn.edu/current/policies.html
DISABILITY ACCOMMODATION INFORMATION
Students with disabilities should consult the University’s Office of Disability Services
(612-626-1333) and the Law School’s Assistant Dean of Students Office regarding any
necessary classroom or exam-related accommodations.
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Civ Pro II – Spring 2013
Professor Clarke
ASSIGNMENTS
Note that assignments are subject to change. The parenthetical notes after the page
ranges indicate the main cases and materials, but you should read the whole section,
including all the notes.
I.
PERSONAL JURISDICTION AND RELATED DOCTRINES
A.
The Traditional Concept of Personal Jurisdiction (Class 1 – 1/22)
Readings:
 CB1 681-693 (Introductory Material, Pennoyer v. Neff)
 CB 693-696 (Harris v. Balk)
 CB 696-699 (Hess v. Pawloski)
Notes:
 Pennoyer is one of the most famous, and most difficult, cases in civil
procedure. Read it carefully several times and try to figure out precisely what
is going on.
B.
The Modern Conception of Personal Jurisdiction (Class 2 – 1/24)
Readings:
 CB 699-706 (International Shoe)
 CB 707-709 (Note on Long-Arm Statutes)
 CB 709-711 (Note on Specific as Compared to General Jurisdiction)
 CB 711-713 (Note on Personal Jurisdiction in Federal Court)
 CB 713-714 (Note on Personal Jurisdiction Under International Law)
Notes:
 The notes on CB 707-713 are extremely important and quite helpful. Read
them with care.
 Why should the relationship between the claim and the forum matter?
C.
Minimum Contacts Analysis in Operation
1.
Purposeful Availment (Class 3 – 1/29)
Readings:
 CB 714-730 (World-Wide Volkswagen)
 CB 730-736 (Calder v. Jones)
Notes:
 World-Wide Volkswagen cites the influential case of Gray v. American
Radiator (described at CB 588 n.1). Should the outcome of World-Wide
“CB” is my abbreviation for this class’s casebook: Subrin, Minow, Brodin & Main,
Civil Procedure: Doctrine, Practice, and Context (Fourth Edition 2012).
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
Volkswagen or Asahi mean that Gray is no longer good law? Record your
vote on TWEN.
Is Calder consistent with World-Wide Volkswagen? Why or why not?
2.
Commerce and Contracts (Class 4 – 1/31)
Readings:
 CB 736-748 (Asahi)
 CB 748-768 (Nicastro)
Notes:
 Work out which justices agree to which portions of the various opinions in
Asahi. Does a majority rule emerge from the case?
(Class 5 – 2/5)
Readings:
 CB 1156-1162 (Amended Complaint in Carpenter v. Dee) (skim)
 CB 768-770 (Practice Exercise 32)
 CB 769-770 (Massachusetts Long-Arm Statute)
 CB 770-783 (Burger King)
 CB 783-784 (Practice Exercise 33)
Notes:
 Exercise 32 discusses the Carpenter v. Dee hypothetical case, to which we
will return throughout the course. The case is a wrongful death action based
on a car accident. You may also want to consult the memo at CB 1138-1142
for more background on the case.
 There is no need to prepare a memorandum in response to Practice Exercise
33 (or any other practice exercises or review questions assigned for this
course). Instead, you should take some notes on your responses and be
prepared to defend them in class.
 Why does Justice Brennan (of all people) favor a large corporation in Burger
King?
D.
Personal Jurisdiction and the Internet (Class 6 – 2/7, read I.E as well)
Readings:
 CB 784-792 (Als Scan Inc. v. Digital Service Consultants, Inc.)
 Practice Exercise 34
Notes:
 Consider how well the Zippo analysis, discussed in ALS Scan, corresponds
with the way web sites actually are designed and used.
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E.
Personal Jurisdiction based on the Presence of the Defendant’s Property
Readings:
 CB 793-809 (Shaffer v. Heitner)
Notes:
 You may find it useful to review Harris v. Balk before tackling Shaffer.
 A shareholder derivative suit is a device allowing shareholders to sue on
behalf of a company, usually against its officers and directors.
F.
“Tag” Jurisdiction (Class 7 – 2/12, read I.G as well)
Readings:
 CB 809-825 (Burnham v. Superior Court of California)
Notes:
 Pay particular attention to the rationales of the different opinions. Which ones
seem more persuasive to you?
G.
General Jurisdiction
Readings:
 CB 825-837 (Goodyear)
Notes:
 Our readings so far have considered “specific” jurisdiction. This case
concerns “general” jurisdiction. You may wish to review CB 709-711 to
reorient yourself.
H.
Personal Jurisdiction based on Consent (Class 8 – 2/14, read I.I as well)
Readings:
 CB 837-845 (Carnival Cruise Lines)
Notes:
 Does the majority opinion in Carnival Cruise Lines comport with the
principles of contract law you learned last semester? Should it?
I.
Notice
Readings:
 Rule2 4
 CB 846-855 (Mullane)
Notes:
 Work your way through Rule 4(d). Is it consistent with Mullane?
 Aside from Rules 4(d) and 4(k) (to be discussed later), you can just skim Rule
4 enough to understand its basic scope, but you don’t need to master the picky
details.
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All references to “Rules” in this syllabus refer to the Federal Rules of Civil Procedure.
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J.
Venue and Forum Non Conveniens (Class 9 – 2/19 – read II.A as well)
Readings:
 28 U.S.C. §§ 1390, 1391(a)-(d), 1404(a), 1406, 1631
 CB 855-867 (Piper Aircraft Co. v. Reyno)
 CB 867 (Practice Exercise 35)
 CB 867 (Review Exercise 6)
Notes:
 Be ready to explain with precision how the defendants in Piper Aircraft are
using jurisdictional rules strategically.
 Forum non conveniens may seem sweeping, but courts apply it rarely.
II.
SUBJECT-MATTER JURISDICTION
A.
Federal Question Jurisdiction
Readings:
 CB 869-871 (Introduction)
 U.S. Const. Art. III §1
 U.S. Const. Art. III § 2 (first two paragraphs)
 28 U.S.C. §§ 1257 and 1331
 CB 871-880 (Louisville & Nashville RR Co. v. Mottley)
 TWEN: Dana v. Colfax
Notes:
 Why do we have federal question jurisdiction?
 Could the Mottleys have drafted their complaint differently to avoid this
result?
 Why doesn’t the forum selection clause in the contract between Dana and
Colfax prevent Colfax from raising its jurisdictional objection?
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B.
Diversity Jurisdiction (Classes 10 and 11 – 2/21 and 2/26 – read the entire
assignment by 2/21, although we will take two class sections to cover this
material)
1.
Complete Diversity Requirement
Readings:
 CB 880-882 (Complete Diversity Requirement)
 28 U.S.C. § 1331(a)(1), (b)-(c), (e)
Notes:
 Read the diversity statute very carefully.
 Why do we have diversity jurisdiction?
 It is imperative to avoid confusing the concept of domicile used in diversity
citizenship with concepts of personal jurisdiction. They are similar but not the
same. Be extremely careful about this.
a.
Determining Citizenship
Readings:
 CB 882-887 (Ochoa v. PV Holding Corp.)
 TWEN: Notice of Removal in Lohan v. Perez
 TWEN: Hertz Corp. v. Friend
Notes:
 Focus on the argument at pages 8-11 of the Notice of Removal in
Lohan v. Perez. Are you convinced that Lindsay Lohan is a
California citizen? What arguments might Lohan’s lawyers make in
response?
b.
Foreign Parties
Readings:
 28 U.S.C. § 1332(a)(2)-(4) (2012)
 TWEN: 28 U.S.C. § 1332(a)(2)-(4) (2006)
 Re-read U.S. Const. Art. III, § 2 (first two paragraphs)
Notes:
 Section 1332 was amended in 2011 by the Federal Courts Jurisdiction
and Venue Clarification Act (JVCA), Pub. L. No. 112-634.
 Can two foreign citizens sue each other in U.S. federal courts? What
if they are permanent resident aliens of different states? Did the
JVCA change this result?
2.
Amount in Controversy Requirement
Readings:
 CB 887-889 (note)
 CB 889-890 (Review Exercise 7)
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C.
Supplemental Jurisdiction (Class 12 – 2/28)
Readings:
 Rule 82
 CB 890-895 (Gibbs)
 CB 895-900 (Owen)
 CB 900-904 (Finley)
 CB 904-908 (28 U.S.C. § 1367 and House Report No. 101-734)
 CB 908, 1156-1162, 1173-1174 (Practice Exercise 37)
Notes:
 Ignore the instruction in Practice Exercise 37 that divides you up
alphabetically by last name. Students in groups on the left side of the room
(facing the front) should be prepared to represent the Garage and McGill,
while those in groups on the right should be prepared to represent Nancy
Carpenter.
 Why isn’t the application of Rule 14 enough to resolve Owen Equipment?
 What policy concerns are motivating Justice Scalia’s opinion in Finley?
D.
Removal (Class 13 – 3/5)
Readings:
 Rule 81(c)
 28 U.S.C. §§ 1441 (a-c, f), 1446 (a-b, d), 1447
 TWEN: Notice of Removal in Lohan v. Perez (skim/review)
 CB 908-911 (Removal)
 CB 911 (Review Exercise 8)
Notes:
 You should understand the mechanics of removal.
III.
ERIE DOCTRINE AND CHOICE OF LAW
A.
Origins of the Erie Doctrine (Class 14 – 3/7)
Readings:
 CB 915-927 (Erie)
Notes:
 What is the Erie doctrine?
 What philosophical view of the law does it reflect?
B.
Boundary Between “Substance” and “Procedure” (Class 15 – 3/12)
1.
The “Outcome Determination” Test
Readings:
 CB 927-932 (Guaranty Trust)
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2.
The “Interest Balancing” Test
Readings:
 CB 932-936 (Byrd)
3.
The “Two Track” Test
Readings:
 CB 936-947 (Hanna v. Plumer)
Notes:
 Guaranty Trust, Byrd, and Hanna give us opinions from four of the century’s
great justices (including the Hanna concurrence). Which is the best?
 What is the Erie test after these cases?
 Take out a sheet of paper and see if you can draw a flowchart of the Erie test
on your own (without looking at examples in the book or study guides – the
process of developing it yourself is the whole point here!).
D.
Complications in Applying the Erie Doctrine (Class 16 – 3/14)
Readings:
 CB 948-955 (Walker v. Armco Steel Corp.)
 CB 955-964 (Gasperini v. Center for the Humanities)
 CB 964-982 (Shady Grove)
 CB 982 (Practice Exercise 38)
 CB 982-983 (Review Exercise 9)
Notes:
 What is the Erie doctrine test after Gasperini? How do Byrd and Hanna
figure in that test? Does your flowchart change at all?
 We will spend considerably less time on Walker than on the other reading.
E.
“Reverse-Erie” (Class 17 – 3/26)
Readings:
 CB 983-984 (Notes)
To come:
IV.
CLASS ACTIONS AND COMPLEX LITIGATION
V.
REMEDIES AND RELIEF
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