Civ Pro II – Brief Outline
Jurisdiction ........................................................................................................................................................................................ 3
I.
7-Issue Checklist. Ask, in this order: ..................................................................................................................................... 3
II.
Subject-Matter Jurisdiction ................................................................................................................................................... 3
a.
Federal Question Jurisdiction (FQJ)................................................................................................................................... 3
b.
Diversity Jurisdiction (DJ) .................................................................................................................................................. 4
c.
Amount in Controversy ..................................................................................................................................................... 5
d.
Supplemental Jurisdiction (SuppJ) .................................................................................................................................... 5
III.
Jurisdiction over the person .............................................................................................................................................. 6
a.
Personal Jurisdiction (PJ) ................................................................................................................................................... 6
b.
Jurisdiction Based on Property.......................................................................................................................................... 9
c.
Territoriality....................................................................................................................................................................... 9
d.
Federal Court J................................................................................................................................................................. 10
IV.
Notice & Opportunity to be Heard.................................................................................................................................. 10
a.
Acceptable S/P ................................................................................................................................................................ 10
b.
Notice by Publication ...................................................................................................................................................... 10
V.
Service of Process ................................................................................................................................................................ 10
VI.
Venue .............................................................................................................................................................................. 11
b.
The Rules of Venue.......................................................................................................................................................... 11
c.
Transfer of Venue ............................................................................................................................................................ 11
d.
Forum Non Conveniens (FNC) ......................................................................................................................................... 12
VII.
Removal........................................................................................................................................................................... 12
b.
The Rules—§ 1441........................................................................................................................................................... 12
VIII.
Waiver ............................................................................................................................................................................. 13
a.
Subject-Matter Jurisdiction—can be RAISED AT ANY TIME ............................................................................................ 13
b.
PJ, Notice, Process, and Venue—WAIVABLE................................................................................................................... 13
What Law Governs in Federal Courts? → The Erie Doctrine ......................................................................................................... 14
I.
Erie v. Tompkins .................................................................................................................................................................. 14
II.
Guaranty Trust Co. v. York: Outcome-determinative ......................................................................................................... 14
III.
Byrd v. Blue Ridge............................................................................................................................................................ 14
IV.
Hannah v. Plumer ............................................................................................................................................................ 15
V.
Armco Steel, Klaxon, & Day ................................................................................................................................................. 15
a.
Walker v. Armco Steel—Ragan Lives! ............................................................................................................................. 15
b.
Klaxon v. Stentor ............................................................................................................................................................. 15
VI.
Inverse Erie Doctrine ....................................................................................................................................................... 15
VII.
Gasperini ......................................................................................................................................................................... 16
Joinder ............................................................................................................................................................................................. 16
I.
Joining stuff ......................................................................................................................................................................... 16
a.
Claim Joinder—what claims may a P join in 1 action? .................................................................................................... 16
b.
Permissive Party Joinder— T&O + CQ ............................................................................................................................. 16
c.
Compulsory Joinder of Parties ........................................................................................................................................ 17
II.
The Claims of Joinder .......................................................................................................................................................... 17
a.
Counter-claim .................................................................................................................................................................. 17
b.
Cross-Claim ...................................................................................................................................................................... 18
c.
3rd Party Claim (Impleader) ............................................................................................................................................. 18
III.
Class Action ..................................................................................................................................................................... 18
Former Adjudication
I.
(Finality, whut) ............................................................................................................................. 21
Intro ..................................................................................................................................................................................... 21
a.
II.
3 issues: ........................................................................................................................................................................... 21
Res Judicata (Claim Preclusion): the meat-axe ................................................................................................................... 21
a.
The Rule: Play the chip, don’t split it............................................................................................................................... 21
b.
4 Requirements ............................................................................................................................................................... 22
III.
Collateral Estoppel (Issue Preclusion): The Scalpel ......................................................................................................... 22
b.
Prerequisites: .................................................................................................................................................................. 22
c.
Nonparties ....................................................................................................................................................................... 22
d.
Mutuality of Estoppel: ..................................................................................................................................................... 22
JURISDICTION
I.
7-ISSUE CHECKLIST. ASK, IN THIS ORDER:
i. Does the court have SMJ?
1. All SMJ of federal courts laid out in the Constitution, Article III.
a. Federal Question J
b. Diversity of Citizenship J
These are all
Constitutional (DP)
Questions
ii.
iii.
iv.
v.
vi.
Does the court have PJ?
Has the D been given notice and an opportunity to be heard?
Has the D been served w/ process properly?
Does the court have venue?
The action is in a state court. Can it be removed to a federal court?
1. Presupposes that a case has been commenced in a state court. Thus, you can’t get this Q unless your
prof has put you in a state court.
vii. Have any of the preceding 6 issues been waived?
II. SUBJECT-MATTER JURISDICTION
a. FEDERAL QUESTION JURISDICTION (FQJ)
i. Federal Courts are courts of limited J—and as such, P’s CoA must “arise under” the Constitution, treaties, or laws
of the U.S. (Art. III)
1.
Ex: P holds Federal copyright to Mission Impossible. D agrees to pay P $ to show the film at his theater. D doesn’t
pay. P alleges breach of K.
a.
2.
→ No SMJ.
i. Not arising under copyright law, but instead CL of K law. No Federal Q at all. Remember—the
CAUSE OF ACTION must arise under a federal question.
Ex: Same as above, but only reason D provides for breach is that they claim P’s copyright is invalid.
a.
→ No SMJ.
i. What is and is not a federal copyright IS a federal Q.
ii. BUT P’s CoA is still breach of K. All D says is there may be a federal defense—there may be a
defense of invalidity of the copyright. But it is the PLAINTIFF’s CoA that must “arise under.”
iii. What P has done is simply anticipate a federal defense—that’s not a CoA; it’s up to the D to
assert. We don’t take SMJ on speculation—on the prospect of a federal defense. It may never
come, and the federal courts have limited J.
iv. Violates the well-pleaded complaint rule.
ii. Well-Pleaded Complaint Rule: Determine what “arises under” solely on the basis of what would be in a wellpleaded complaint. ∅ include defensive material.
1. Anticipated defenses→ Goes to state court; they will adjudicate the validity of the defense (e.g.,
copyright, as in Ex 2). Subject to review by SCOTUS. No FQJ in U.S. DCt by anticipating a defense.
iii. No jurisdictional AiC requirement for a federal question case.
iv. 2 Forms of Federal Q J:
1. Exclusive FQJ: MUST take those cases to the federal court. (e.g., those arising under Copyright Act or
Patent Act). Congress wants national uniformity through the federal courts.
2. Concurrent FQJ: EITHER to federal court OR state court. (e.g., federal employers’ liability cases, certain
civil rights cases)
b. DIVERSITY JURISDICTION (DJ)
i. Justification: Way of providing neutral federal/national forum to avoid local biases/prejudices. Reinforced by
federal judges who have lifetime tenure, and security that enables them to escape from local parochialisms.
ii. Rules:
1. There must be complete diversity of citizenship. (Strawbridge v. Curtis)
a. Complete Diversity—everybody from left of the v must come from a diff. state than everybody
2.
3.
to the right of the v.
Diversity of citizenshipi is determined on the day of the institution of the action.
Determination of Citizenship: How do we determine citizenship of parties?
a. Individuals: An individual’s citizenship/domicile is the domicile of birth, continued through life,
unless 2 things occur:
i. Individual physically changes his/her state.
ii. The individual does that w/ intention of remaining in the new state for the indefinite
future.
iii. Ask: Where is the person’s center of gravity?
b. Corporations: 2 citizenships:
i. State of incorporation
ii. Where the corporation has its principal place of business
1. Nerve-Center Test: where it makes its executive decisions.
2. Muscle Test: where it does a plurality of its thing (manufacturing, service
providing).
iii.
Example: Incorporated in DE, headquarters in NY, manufacturing plant in NJ.
1. Nerve center→ DE, NY.
2. Muscle→ DE, NJ.
3. If other party from NY, must say “diversity if muscle test, and no diversity if nerve
center test.”
c. Unincorporated Associations (e.g., labor unions, partnerships)→ cumulate the states of all of
its’ members.
i. Not usually a problem for labor management, b/c usually falls in FQJ.
d. Parties in Representative Actions (e.g., rep of deceased estate, child, incompetent):
i. Most common types: shareholder, class actions.
ii. CL rule: When action brought by, or against, a representative, citizenship is based on
the citizenship of the representative, NOT the represented.
iii. For children, incompetents, and estates: diversity tested in terms of citizenship of
represented, NOT representative. (§ 1332(c)(2)).
1. n/a to shareholder derivative suits or class actions.
c. AMOUNT IN CONTROVERSY
i. The matter in controversy must be more than $75k, exclusive of interests and costs.
1. Punitive damages, statutory atty fees are part of the AiC.
ii. Suit on Multiple Claims
1. Can aggregate the claims of a single P or a single D.
2. Cannot aggregate in multi-party situation, UNLESS the claims are really joint-claims (undivided
interests).
iii. The court should accept P’s allegation of jurisdictional amount UNLESS court is convinced to a legal certainty that
P cannot recover the jurisdictional amount. (SCOTUS)
1. For injunction, quantify value of injunction to P.
iv. Aggregation also must exceed the $75 AiC requirement
d. SUPPLEMENTAL JURISDICTION (SUPPJ)
i. Pendent Jurisdiction
1.
United Mine Workers of America v. Gibbs:
a. Claim 1: P sues a labor union for violation of federal labor-management relations act.
i. → FQJ (and SMJ)
b. Claim 2: Also adds a count claiming tortuous conduct under TN CL (illegal conspiracy).
i. → no SMJ b/c both sides had citizenship from TN
c. Q: Could you append this jurisdictionally insufficient CL claim to the jurisdictionally sufficient
Federal Labor Relations Act claim?
i. → YES. Both come from a common nucleus of operative fact. It’s
efficient/economical to try them together, even there would be no SMJ over the 2nd
claim standing alone.
d. Redefined what a “case or controversy” is (in Art III).
ii. Ancillary Jurisdiction
1.
Allowed Ps to bring case, and allowed Ds to assert jurisdictionally insufficient compulsory c-claims, xclaims, and 3rd party claims (b/c they all emanate from the same trans/occ as the original claim).
iii. Curtailment and Congressional Expansion:
1.
Owen Equipment & Erection Co. and Finley v. U.S.
a. Curtailed pendent and ancillary J
b. Justification: In diversity J, ancillary J can only be asserted by Ds, not original Ps. D’s need it b/c
they don’t get forum choice, and they should have the procedural advantage of being able to cclaim, x-claim, and bring 3rdp claims.
c. Although allow pendent claim J, won’t allow pendent party J.
2.
i. Violates complete diversity.
Congress legislated about pendent/ancillary J.
a. § 1367—instead of pendent/ancillary, it said “supplementary.”
i. § 1367(a)—SuppJ now recognized over everything w/i a case/controversy.
1. Codifies Gibbs.
ii. 1367(b)—prohibits SuppJ when the case is based solely on diversity J, and the
jurisdictionally insufficient claim is one by a P under FRCP 14 (3rd party practice), 19/20
(permissive and compulsory joinder), and 24 (intervention). In those cases, no SuppJ
in favor of a P.
1. Codifies Kroeger and rejects Finley
iii. 1367(c)—it’s discretionary. Court ∅ have to take SuppJ. 1367 lists situations in which
a court should decline SuppJ:
1. Over a state-based claim that’s novel/complex.
2. Over a state-based claim that’s the guts of the action.
3. When federal Q claim has been dismissed/settled.
iv. Glannon’s Steps
1.
Determine whether there is constitutional power under Article III, § 2, to hear the supplemental
claim.
a. Analysis must stem from Gibbs—constitutional power to hear the related claim exists if there
is:
2.
3.
i. A proper claim w/i the J of the federal court, AND
ii. The related claim arises from the same nucleus of operative facts.
Determine whether there is a statutory grant of J over the related claim.
a. Look to § 1367(a)-(b)
(Once above factors are met) Determine whether court should hear the related claims (whether the
court should do so)
a. Look to § 1367(c)
v. Ben claims:
1. "claim" carveout d/n/a to counterclaim
2. 2. carveout is only rule 20 Ds not Rule 20 Ps
3. 3. Discretionary decline to exercise must be supported by reason from 1367(c) Executive Software
1.
III. JURISDICTION OVER THE PERSON
a. PERSONAL JURISDICTION (PJ)
i. 3 levels:
1.
Is there a traditional base of PJ?
a. Yes→ all you have to do is spot it, tell the reader, and move on.
b. No→ say no traditional base, identify them, move on.
2.
3.
If no traditional base, does the long arm statute apply?
If no traditional base, but long arm applies, is that application of the long arm Constitutional?
ii. Traditional Bases of PJ
1.
Territoriality (Pennoyer v. Neff)
a. Proposition 1: A state is all-powerful within its’ borders; has complete, total territorial power
w/i its boundaries.
i. Transitory J—state can assert territorial J, even when D is simply in the state on a
transitory basis.
2.
3.
4.
b. Proposition 2: A state is completely helpless outside its’ borders.
Domicile – You can’t leave home w/o your domicile.
Agency – Our agents, when acting for us, are our jurisdictional carriers.
Consent –
a. Express consent (e.g., contractual)
b. Implied consent (Hess v. Pawloski [US 1927])
i. State statutes said if you travel on their roads, you’re consenting to the appointment
of the DMV as your agent. If you get into an accident, any suit arising out of your use
of the highway enables s/p to be made by serving the DMV.
1. A legal fiction of implied consent used to recognize that a state has the right
to exercise its police powers, adjudicate what happens on the highway, make
the nonresident motorist liable.
ii. Implied consent recognized in Hess extended to apply to cars, aircraft, motorbikes,
stock fraud, etc.
c. Waiver – Failure to assert a jurisdiction defense
d. Producing consent
5.
Corporate Presence/Doing Business (territoriality applied to entities) – when you do business in a state,
you’re present in the state.
iii. Long Arm Statutes (SPECIFIC J)
1.
If specific event listed in long arm statute (specific jurisdiction), forum state can assert specific J based
on commission of that act in the state.
a. Issue of statutory construction → look at the statute, apply one or two or three of the
2.
provisions to the facts of the problem. Try to make the long arm statute to the D.
3 critical cases:
a. International Shoe Corp. v. Washington – “a state can assert J over a nonresident if the
nonresident has minimum contacts w/ the forum so that it is fair play and substantial justice to
say to the nonresident: you must stand and defend in this court.”
i. Minimum contacts & Due Process (Fair Play, Substantial Justice)
ii. Hess + Shoe → long-arm statutes
iii. CoA, the minimum contact, must be related to the forum.
b. Hanson v. Denkla – Minimum contacts must be volitional, cognitive, beneficial.
i. Facts: Wealthy woman establishes a DE trust; maintains relation w/ DE trust, but then
moves to FL and dies there. Heirs fought over the estate. Some wanted to bust the
trust, b/c they’d get more $. One wanted to keep the trust, b/c she’d get more $. FL
said it had J over the estate of the deceased—was the state of probation, many heirs
from FL… FL had all sorts fo contacts w/ the deceased, the heirs, the estate.
ii. In a 5-4, SCOTUS said NO PJ in FL! No minimum contacts w/ FL. Wouldn’t be fair play
and substantial justice. The DE trust did not voluntarily do business w/ FL—simply
trying to maintain their responsibility as a trustee. DE trust ∅ vulnerable to FL PJ.
c. World-Wide Volkswagen v. Woodson
3.
i. Facts: Robinson family lived in NY. Bought an Audi from Seaway Motors. Moved to
AZ. On their way to AZ, went through OK—they were hit, the gas tank explodes. They
sue Volkswagen AG (German manufacturer), Volkswagen of America (importers),
WWVW (distributor), and Seaway Motors (retailer). Sue in OK state court, invoking OK
long arm statute, b/c OK is where the tort occurred. Seaway and WWVW moved to
dismiss for lack of J. OK says: we got J!
ii. In a 7-2, SCOTUS said NO PJ in OK!
1. How could they reasonably apprehend being hailed before an OK court?
a. Maybe foreseeable that car would go to OK, but you need more!
2. You need the D to purposefully avail itself of the protection of the forum.
Neither D did so. Doesn’t equate to D reasonably apprehending that it might
be hailed before the OK courts.
3. Note: A 3rd party moved the product from NY to OK (the forum). (WWVW →
Seaway (NY) → Robinsons (NY))
Less critical cases
a. Burger King → Michiganders held J vulnerable in FL b/c they contracted w/ BK corp to run a
franchise up in Michigan. SC said Michiganders can be held to PJ in FL.
i. Contractual arrangement
ii. K for 20 years
iii. Michiganders agreed to be bound by rules established by BK in FL
iv. K itself had a choice-of-law provision that said FL law controls.
b. Asahi → Zurcher (CA) driving his motorcycle, tire blows out, death. His estate sues, among
others, the tire manufacturer Shin-Cheng(a Taiwanese company) and the tire valve company
Asahi (a Japanese corporation… the valve manufactured in Japan, shipped to Taiwan, was
incorporated into the bike, and ended up in CA). Zurcher drops out, so left w/ Asahi (valve
manufacturer) and Shen-Cheng (tire manufacturer).
i. 2 parts to the case:
1. Stream of Commerce Problem: Q of whether manufacturer who puts their
product into the stream of commerce is automatically jurisdictionally
vulnerable wherever the product ends up.
a. Stream of Commerce: 4 justices say yes.
b. Stream of Commerce Plus: 4 justices say no. Manufacturer must
engage in specific conduct directed to the forum (advertising,
distributing there, service its products there, have agents there).
ii. Leaves open: legitimacy of finding a PJ base on entering a product into the stream of
commerce. State courts have gone both ways.
1.
Internet: are active websites required? If it must be active, how interactive
must it be? Must it solicit orders, or is it sufficient that it can respond to Qs
regarding products, advertising, and where one might buy the products?
iv. General J
1.
Perkins v. Colsolidated Bengay Mining, and SCOTUS in Helicopteros
v. Straddling General and Specific J
1.
2.
Conduct that creates the CoA (D’s activities that allegedly → the tort or w/e) did not occur in the forum,
but the D has other contacts w/ the forum… not enough to be General, but enough… and they’re
substantially related (of the same kind) to the ones that gave rise to the CoA. Court might say that’s
enough, constitutionally, to provide J in the forum.
Vons v. Seabest: Upheld J. The Court called it Specific J, but it didn’t arise in CA, so it’s difficult to see
how it’s Specific J. And it’s certainly not General!
a. SCOTUS standard: when the out of state D’s activities had a substantial connection w/ CA, and
the events being sued on, ∅ matter that the particular conduct charged against them had
occurred OUT of CA (namely, Washington). Relied on 2 federal decisions.
b. JURISDICTION BASED ON PROPERTY
i. In Rem—b/c a state is all-powerful w/i its boundaries, it can adjudicate title and interests in any piece of
property w/i its boundaries, no matter where the claimants are. (See Pennoyer)
ii. Quasi-In Rem—D has property in the state; D isn’t in the state. CoA has nothing to do w/ the state. But the state
has power over the property (machinery, bank account, debt, securities account, land). QIRJ enables the state to
seize the property and say, “hey! that’s you!” (See Pennoyer)
1. A little unfair, but consistent w/ notions of property in Pennoyer.
2. Shaffer v. Heitner – knocking out most of the utility of QIRJ… but QIRJ isn’t dead.
a. P (NY) owned 1 share of Greyhound Bus lines (DE corporation). Brought a shareholder
derivative suit in DE court against all officers/directors of Greyhound, none of whom lived in
DE. CoA asserted was that they had mismanaged Greyhound and allowed it to engage in an
antitrust violation, and multi-million $ suit (this liability was imposed in OR). Attaches all
stock/options the officers/directors had in Greyhound. DE’s the only state that says the stock is
where the corp is (all other states say it’s where the stockholders are). DE also said in QIR
action, if D comes to protect its property, they’re subjected to PJ.
b. Marshall: “from now on, all assertions of J will be tested by the principles of Shoe and its
progeny.” (i.e.: Denkla, WWVW).
i. Minimum contacts, fair play, substantial justice.
ii. No need to sue QIR when you can sue in-personam!
c. In any state that goes to the Constitutional limits of J, no independent viability to QIRJ. BUT
many states don’t. (NY has a defamation exception). Thus, QIRJ even where no PJ.
c. TERRITORIALITY
i. Burnham v. Superior Court – Pennoyer and territoriality alive and well.
1. D (NY) happened to be in CA to visit his kids.
2.
Scalia: Pennoyer v. Neff is not dead; territoriality is not dead. Shaffer only applies to QIR cases and
cases in which D was not in the forum state. Why?
a. Tradition. Territoriality premised on principles of sovereignty (like Pennoyer)… so in the name
3.
of traditional values, territoriality lives.
4 concurring justices said might be a case in which pure territoriality isn’t enough. (e.g., when you’re
involuntarily in a state).
d. FEDERAL COURT J
i. Federal Courts typically use the long arm statute of the forum state in which they are sitting (they
definitely do that in diversity cases, and federal Q cases where federal statute at issue ∅ have a J
provision in it.) (FRCP 4(k)(2))
ii. What standard do federal courts uses in a federal Q case when there is no federal long arm statute?
1. Federal court can go to the constitutional standard. (4(k)(2)).
a. Shoe, Denkla, WWVW. But these are about 14th Amendment cases.
b. 5th Amendment standard? There is none. Most courts say use Shoe, Denkla, and WWVW by
analogy.
i. What does minimum contacts mean for FQJ? Minimum contacts w/ the U.S. This is
where fair play, substantial justice come in. See Asahi.
IV. NOTICE & OPPORTUNITY TO BE HEARD
a. ACCEPTABLE S/P
i. Most forms of process provide notice:
1. In-hand deliver of summons
2. Delivery by registered, certified, ordinary mail
3. s/p on person D is living with
4. s/p on an agent we believe will transmit the summons to D
b. NOTICE BY PUBLICATION
i. Mulane v. Central Hanover Bank & Trust Co.
1. The Constitution requires that notice must be reasonably calculated under the circumstances
to give actual notice.
a. High constitutional threshold. Notice in newspaper insufficient.
2. Requires you to spot the publication form, and make sure it’s reasonably calculated under the
circumstances to give notice. Sometimes no alternative, but that’s rare.
ii. Nail and Mail—publication + mail.
1. As a practical matter, not very effective in NY. Not reasonably calculated under the circumstances b/c it
would’ve been so easy to send it to a more reliable address.
V. SERVICE OF PROCESS
i. FRCP 4
1. Can’t lie and cheat. You can’t entice someone outside the state into the state to serve process.
2. Rules of immunity from process—sometimes can’t serve on Sunday; sometimes those who come in on
judicial business are immune.
VI. VENUE
i. 3 kinds of Qs
1. Rules of venue for a particular system
2. Transfer of venue
3. Doctrine of forum non conveniens
b. THE RULES OF VENUE
i. Federal Venue Principles – § 1391
1.
In a federal Q case, venue is based on the residence of the Ds.
2.
a. Residence of corporation may be every state, if it’s doing business in every state.
§ 1391(b) (When ∅ solely based on diversity)
a. Defendant Residential Venue. Venue is proper where any of Ds reside, but all Ds must reside in
a single state. (§ 1391(b)(1))
b. Substantial Part of the Claim Venue. Venue is proper in a judicial district in which a substantial
part of the events giving rise to the claim is situated (where the tort occurred, or the K was
formed/breached, or the property that’s in litigation is located). (§ 1391(b)(2))
i. Note: this is an alt place of venue.
c. Found Venue. Judicial district in which the D may be found (most likely in jurisdictional terms),
3.
BUT only if the other 2 aren’t available. (§ 1391(b)(3)).
i. Note: It’s like a default venue.
§ 1391(a) (When solely based on diversity of citizenship)
a. Defendant Residential Venue. (§ 1391(a)(1))
b. Substantial Part of the Claim Venue. (§ 1391(a)(2))
c. Venue Based on a Place where D Subject to PJ at the time the action is commenced. (§
1391(a)(3))
i. Default principle—only if no district in which action may otherwise be brought.
ii. Local Action Venue – venue in property actions (usually land).
1. Must bring the action where the land is located. (Reasor Hill v. Harrison)
c. TRANSFER OF VENUE
i. Can transfer in the interests of justice.
ii. Federal Transfer Provision – § 1404(a)
1.
Speaks of the interests of justice, but action can only be transferred to a place where it could have been
commenced/initiated.
2.
Words applied literally – Can only transfer in the federal system to a court that would have had original
SMJ, original PJ, and original venue. (Hoffman v. Blaski)
iii. When an exam question arises:
1. If SMJ in transferor court → SMJ in transferee court.
2. But even if PJ in original court, ∅ mean PJ in transferee court.
a. Traditional basis
b. Long arm
c. Constitutionality
3.
Does § 1391 permit you to lay venue in the transferee court?
d. FORUM NON CONVENIENS (FNC)
i. Situations where you can’t transfer venue—
1. No state-to-state transfer (a NY state court can’t transfer to a NJ state court)
2. No federal-to-state transfer
3. No U.S.-to-foreign-country transfer
ii. Must overcome presumption in favor of P’s choice of forum.
1. So ask: does it make no sense to litigate in the American court?
iii. Piper Aircraft v. Reyno – American-built plane crashes in Scotland. Tries to sue in CA, then FCt in PA. Everything
about case was tied to Scotland (where killed, crashed, etc). Court says Scotland.
1. Look at the factors:
a. Private—relating to convenience of the litigants; litigation elements (witnesses, documents)
b. Public—who’s got the interest in adjudicating the dispute?
iv. Leads to an actual dismissal, but doesn’t allow D to get out of his day in court.
1. No FNC unless:
a. We know there’s an alternate forum
b. D must waive any SoL defense that may have accrued in the time since the institution of the
first action
c. If you want FNC, you must agree to stand and defend in the alternative forum—consent to J
there.
VII. REMOVAL
i. STATE → FEDERAL—You can only remove from a state court to a federal court
b. THE RULES—§ 1441
i. There must be original J in a federal case. You can only remove an action that could have been brought in a
federal court originally.
1. Requires:
a. Federal Q
b. Diversity of citizenship
c. AiC
2.
Well-pleaded complaint rule applies fully on removal
a. The fact that there is a federal defense to a state-based CoA ∅ a defense
ii. Only a D can remove.
1. It’s an evener-upper! P has initial choice of forum, but if state court, then Congress wants to be sure
both sides of the dispute have a chance at executing their congressionally-mandated right to use federal
forum.
2. C-claim Ds can’t remove (original P)
iii. Where based on federal Q, action is removable by D w/o regard to the citizenship of the parties.
1. In-state D can remove, out-state can too.
2. BUT—for diversity cases, in-state Ds can’t remove. when the action is based on diversity of citizenship,
the ONLY D who can remove is a D who is not a citizen of the state in which the action was brought.
iv. You remove a case from a state court to the federal court covering the geographical area embraced by the state
court.
v. 1404(a): Once you remove, you can seek to transfer the federal action.
vi. 1441(c): if separate federal Q joined w/ completely state claim (non-removable)—to prevent Ps from defeating
the removal right by joining something otherwise non-removable, you can take the separate federal claim and
remove it.
1. Enables removing D to remove not only the federal Q, but ALSO the otherwise un-removable state
matter (like supp J). In DCt’s discretion to keep the entire thing, or send the entire thing back.
VIII. WAIVER
a. SUBJECT-MATTER JURISDICTION—CAN BE RAISED AT ANY TIME
i. SMJ IS NEVER WAIVED!!!!!
1. Parties can’t consent to it; court is free to raise it on it’s own motion.
ii. Louisville v. Mottley: SMJ is not a personal matter; it’s a systemic issue. Courts are free to raise it at any time.
b. PJ, NOTICE, PROCESS, AND VENUE—WAIVABLE
i. Threshold matters!!!!—if you want to raise any of these things, do it at the beginning.
ii. 4 things—Personal J, Notice, Process, Venue—must be raised by a pre-answer motion or asserted in the answer,
or they are WAIVED!
1. Ex: PJ defenses are threshold defenses, must be asserted __, D didn’t do that; now we’re at trial, so it’s
waived.
iii. FRCP 12(g), 12(h): Consolidation of Defenses
1. You can only have ONE MOTION. Anything you don’t put in that motion, you can’t raise in the 2nd
motion—and if you’ve omitted a threshold defense, you cannot even put it in your answer.
iv. Almost everywhere today—you make your motion for lack of J, you lose it, and you go on to the merits, knowing
the issue is preserved for subsequent appeal on the merits
WHAT LAW GOVERNS IN
FEDERAL COURTS? → THE ERIE
DOCTRINE
I.
ERIE V. TOMPKINS
i. Basic Proposition: In a diversity action, a FCt applies the substantive law of the forum state.
1. O/R Swift v. Tyson –Constitution ∅ give federal courts the power to create substantive law. 10th
Amendment reserved powers clause.
ii. What is substantive law?
1. Torts, property principles are obv substantive law
2. The system of rules (rights, duties) that run to people/institutions
3.
II. GUARANTY TRUST CO. V. YORK: OUTCOMEDETERMINATIVE
i. Question was: Apply Sol? Or use Laches?
ii. Forum-shopping bad b/c people might be able to achieve a different outcome—inequitable administration of the
law.
iii. BUT almost anything can be outcome-determinative!
iv. Ragan: wrongful death in Kansas, diversity action commenced w/i SoL (FRCP 3) by filing claim w/ the clerk. But
under Kansas law, action is commenced by actually serving the D.
1. SCOTUS says you have to apply Kansas law, so barred under SoL.
v.
III. BYRD V. BLUE RIDGE
i. Moved away from Erie/York—Byrd is different b/c there’s a countervailing federal consideration that should be
balanced against Carolina policy.
1. Federal commitment to jury trial
2. Distribution of power b/w federal judge and federal jury
ii. Operates under the influence, if not command, of the 7th Amendment
1. Strong fed policy, weak state policy
iii. Not clear that it’s outcome determinative that it’s given to a judge and not a jury
1. Whereas in York, you knew it would automatically bar the case.
iv. Balance federal v. state interests
IV. HANNAH V. PLUMER
i. Application of Byrd doctrine
ii. Facts: Wrongful death action in Massachusetts, federal court, diversity of citizenship. Action against executor of
deceased. Mass law said in actions against estate, must make in-hand delivery w/i 1 year of death. FRCP 4 said
serve by leaving process with the spouse…which is what P did.
1. Valid under FRCP 4, but invalid (time-barred) under Mass statute.
iii. SCOTUS: FRCP represents federal policy. (that’s Byrd—a federal policy). And under the constitution, fed law
trumps state law.
1. So whenever you have a FRCP that’s applicable and it’s valid (procedural), the only authority SCOTUS
has to promulgate rules under the Rules Enabling Act (§ 1652)—only power Congress gave is to
promulgate rules of procedure
a. BUT NOT if it abridges, enlarges, modifies substantive right
iv. If you’ve got a federal rule, and rule is valid under § 1652 and ∅ violate Constitution, and if rule applies to the
particular issue before the court → that rule trumps state practice/law.
1. Even if it is outcome-determinative.
a. Harlan doesn’t like that but concurs.
2.
Also applies to FR of Evidence
V. ARMCO STEEL, KLAXON, & DAY
a. WALKER V. ARMCO STEEL—RAGAN LIVES!
i. Everyone thought Ragan was o/r by Hannah! Walker says noooo!
ii. Rule 3, though it does declare a commencement principle, it is not a commencement principle in regards to the
SoL—measures timeframes from commencement forward. (when responsive pleading may be served, when SJ
may be made). Wasn’t intended to apply to state SoLs!!!
1. If court tried to promulgate a rule that amounted to a SoL → problem under Rules Enabling Act, York
b. KLAXON V. STENTOR
i. When a FCt in diversity looks to the substantive law of the forum state, that embraces the forum state’s conflicts
principles—FCt in diversity cannot make up its’ own conflicts rule!!
ii. Reaffirmed in Day v. Zimmerman!
VI. INVERSE ERIE DOCTRINE
i. When you have a federal substantive right that’s being adjudicated in a state court, the state court must (under
the Supremacy Clause) to apply federal law.
1. Makes a state court, enforcing a federal substantive right, another federal court!
a. E.g., Brown v. Westin Railway—GA says pleadings to be construed against pleader, but SC says
must use federal approach that says construe pleadings liberally.
ii. Concurrent SMJ—Congress often says this particular federal substantive right can be vindicated in a state court
OR a federal court… it’s P’s option.
1. FELA cases
VII. GASPERINI
i. 2 Questions:
1. Whether federal Q should apply NY’s statutory standard for judicial review of jury-awarded damages.
2. Whether a federal appellate court could review the verdict de-novo (as would a state court), or whether
that violated the re-examination clause of the 7th amendment (federal judges can’t reexamine decisiosn
by federal juries).
ii. Federal Court did have to honro state statute awarding jury verdict, though typically doesn’t give as wide a
review of a jury verdict b/c of federal court respect for the province of the jury.
JOINDER
I.
JOINING STUFF
a. CLAIM JOINDER—WHAT CLAIMS MAY A P JOIN IN 1 ACTION?
i. Under the Code system, and in a fair # of states today, a P is permitted to join any claims that spring from the
same trans/occ, or a series of related trans’s/occ’s.
1. Figure out whether the claims to be joined by the P come from a trans/occ.
ii. In Federal practice, and many states, a P may join any claims he has against D.
1. Don’t have to have a T/O relationship, substantive background, etc
iii. If the Q involves state court, do both: If state X follows the federal rule, any claims may be joined by a P and
joinder is proper. On the other hand, if state X follows the more traditional rule of demanding that claims be
transactionally related to be joined, then on the facts given, (describe T/O), T/O is/isn’t satisfied.
b. PERMISSIVE PARTY JOINDER— T&O + CQ
i. 2-part Test: T&O + CQ!
1.
2.
You can join any parties whose claims (P joinder) or potential L (D joinder) stem from a T/O, or series of
T/Os, AND
There is a common question of law or fact that ties the parties together.
c. COMPULSORY JOINDER OF PARTIES
i. 3 Levels:
1. Who must be joined? Who are parties w/o whom the action shouldn’t proceed (FRCP 19(a)), should be
joined if feasible, etc.?
a. FRCP 19(a)—2 situations where joinder is necessary:
i. If you don’t get the outsider in, you can’t grant complete/effective relief to the
parties who are in. People should be joined if the outsider’s absence from the case
prevents complete relief from being given to those IN the case. (e.g., parties to a K
where you want specific performance; co-owners of property; distributing an
estate/insurance policy) OR
ii. We worry about the outsider’s rights. If the party on the outside will be prejudiced as
a practical matter (rights or interests impaired/impeaded) if you do not join him.
b. Trying to avoid prejudice (to people inside, or outside, the courthouse).
c. The outsider is probably someone you should join—EXCEPT that there’s one kind of party who
2.
3.
(emotionally, instinctively) you’d think should be classified as a compulsory joinder party… a
joint tortfeasor. But BEWARE!!!!!!!!!!! P can choose what joint tortfeasors to sue!
Can you join the outsider? You might you not be able to get the outsider b/c it would destroy complete
diversity (SMJ) OR you can’t get PJ over him!
If you should join, but CAN’T join b/c of SMJ or PJ, what do you do?
a. 12(b)(7)—dismissal for want of an indispensable party
b. Modern courts don’t like this. But there are instances where you DO have to insist on it (e.g.,
partitioning land). But, look to 12(b):
i. A court has discretion, rather than dismissing for lack of that party, to shape relief and
do partial justice to those before the court.
II. THE CLAIMS OF JOINDER
a. COUNTER-CLAIM
i. Counter-Claim: Claim back by D, across the v, against the P.
ii. All systems permit c-claims; some (federal) draw a distinction b/w 2 types:
1. Compulsory—13(a)—must be asserted; if you don’t, it CAN’T BE ASSERTED LATER in a subsequent
action.
a. Arises out of the T/O that’s the SM of the main claim, or a related series of T/Os.
i. Why? Efficiency, economy.
b. What is a T/O?
2.
i. Logical relationship b/w c-claim and main claim.
Permissive—13(b)—you may, but don’t have to, assert it
a. Any c-claim that isn’t a compulsory c-claim.
iii. Diversity claim that’s less than the required jurisdictional amount
1. Supplemental Jurisdiction—§ 1367
a. Common nucleus of operative fact, same case/controversy?
b. CROSS-CLAIM
i. Cross-Claim: Between co-parties (P v. another P; or D v. another P). Does not cross the original v.
ii. FRCP 13(g)—one D may x-claim against another D if there is a claim that arises out of the same T/O, or related
T/Os.
iii. Never compulsory—always permissive.
iv. Once you have OJ, x-claims will take supp J. Take ancillary J (supp J)—§ 1367 says if the x-claim is T/O related,
and even if there’s no diversity of citizenship or AiC, it can ride the coattails of the base claim.
c. 3RD PARTY CLAIM (IMPLEADER)
i. 3rd party claim—FRCP 14(a)—3rd party claim (impleader) is the action over (for contribution, for indemnity, to
pass the buck along).
ii. Burlington Mills—3rd party action → 4th party action → 5th party action → 6th party action
iii. You must have PJ over the 3rd party D—Unlike the c-claim or x-claim, you are adding a new party.
iv. What if no AiC or diversity? Supplemental J.
1. If 3rd party D compulsorily c-claims back against the 3rd party P → supp J
v. Original P v. 3rd Party D
1. FRCP 14(a)→ once D brings in a 3rd party D, the original P can amend and assert a claim directly against
the 3rd party D.
2. What if no SMJ over that? (Destroy diversity?)
a. Owen Equipment & Erection Co. v. Kroeger: original P can’t use Supp J to bring in ppl by 3rd
party practice by basic joinder or by intervention
i. § 1367 (though this case was pre-1367)
ii. SCOTUS: ∅ Supp J here!
iii. § 1367(b)—in a diversity case, no Supp J over claims by Ps over Ds against people who
are made parties under FRCP 14 (3rd party practice), 19 and 20 (basic joinder rules), or
24 (intervention rule)
1. ∅ include FRCP 13 (c-claim and x-claim)
III. CLASS ACTION
i. Jurisdiction
1. If C/A is based on a Federal Q (securities, civil rights, antitrust) → normal SMJ rule
2. If diversity-based C/A →
a. Representative action—determine diversity by looking solely at citizenship of representATIVE
3.
(NOT by looking to the representED)
Amount in Controversy:
a. Snyder v. Harris, Zahn v. International Paper: In class actions, you cannot aggregate the claims
of the class members
b. ZAHN SAYS NO TO THIS: § 1367—supp J—plain language of statute suggests you can have
pendent/supp J by having ONE class member with a claim for more than $75k, and treating all
other class members (who might have less) a Supp J parties
i. No intention to o/r
c. Abbot Laboratories—governed by the language of the statute, not a guess as to what the
4.
intent of the legislature was. In some places, Zahn rule is dead, and you can aggregate in a
class action.
Personal J—the absent class-members preclude from attempting to preclude their own claims! What
about due process?
a. Philips Petroleum Co.: when you have a national class, there must be IPJ over each member of
the class (Shoe, Denkla)—but this would cut the heart out of the class!
i. SCOTUS says yes, absent class members are entitled to DP, but since absent class
members ∅ have to apprear, aren’t vulnerable to cost-assessments, don’t have to
deal w/ discovery… they can deal w/ a different DP remedy:
1. Must have an adequate rep (constitutionally essential)
2. Notice (Mullane)
3. Right to opt-out
ii. Limited to $ or class actions.
ii. Should it be certified as a class action?
1. PREREQUISITES to achieve certification: FRCP 23(a), (b), some are implied
a.
b.
c.
d.
e.
f.
Must have a class.
P representative must be a member of the class.
Numerosity—the class must be large. (efficiency/economy). At least 40-50. FRCP 23(a)(1)
Commonality—Common Q of law/fact that ties the class together. (efficiency) FRCP 23(a)(2)
Typicality—Class rep’s claim must be typical of the claims of all class members. FRCP 23(a)(3)
Adequacy of Representation—a DP requirement. If absent class members are being subjected
to litigation that’s binding (res judicata), you wan’t ‘em adequately represented. FRCP 23(a)(4)
i. Shotts; Hansbury v. Lee
ii. Adequacy = adequacy of the lawyers
1. Honorable, litigators, experienced in the class action (esp in complex cases).
Courts are rigorous about this! Court’s acting as a fiduciary for absent classmembers.
2. Not enough that the rep be adequate at the time of certification—the rep
and the lawyer must remain adequate throughout the case or the court
must take action (e.g., give inadequate lawyer a talk, say get add’l resources
and lawyers, OR decertify the case!).
g. Action must fall w/i a category that’s recognized as legitimate class actions—FRCP 23(b)
contains 3 classes of legit class actions:
i. Anti-Prejudice Device: Says: if don’t proceed via class, you have individual litigation,
and sometimes you get inconsistent results—so if those results are inconsistent in
individual litigation, and if those would produce prejudice EITHER to class members or
party opposing class → legit to have a class action.
ii. Injunction and Declaratory Judgment Cases: 23(b)(2)—used in discrimination,
environmental, prisoner cases.
1. Everybody wants the same thing! All ppl are together in seeking the
injunction or the declaratory remedy.
iii. The Damage Class Action—Not a natural class--23(b)(3)
1. People who have been injured by a common practice, and all want damages.
2. More difficult to get certified. 2 big inhibitors:
a. Court must find that the common issues predominate.
i. Some courts: If the L issues are common, and only the
damage issues are individual (and they’re always individual)
→ predominance
ii. Some courts go further: core of important common
questions is enough. But most require a LOT.
b. The class actions must be superior to individual actions
i. Sometimes it could be referred to administrative agency,
dealt with by legislation or test cases, people preferred to
do it individually, etc.
3. Permits each member of the class to decide for herself whether to opt-out.
4. Demanding Notice Requirement--23(c)(2)
a. In a 23(b)(3) class action, the court must direct that each reasonably
identifiable member of the class be given the best notice practicable
under the circumstances (Mullane-esque), including individual notice
to all members who can be identified with reasonable effort (superMullane!)
5. Difficult problems of proof, individual causation, etc.
iii. Binding on all members of the class who do not opt-out
iv. Res judicata and collateral estoppel apply
v. All decisions to settle class actions must be approved by the judge
1. In all litigation situations other than C/A, parties can settle privately and secretly—but here, judge is a
fiduciary for absent class members
2. Must be a determination and approval by the court that the settlement is fair, reasonable, and
adequate
3. Class must be notified (not necessarily individually) of settlement’s terms, and be given an opportunity
to object/challenge it
FORMER ADJUDICATION
(FINALITY, WHUT)
I.
INTRO
a. 3 ISSUES:
i. Does Res Judicata apply?
1. That the CoA (or claim being asserted) in the 2nd action is barred (cannot be relitigated, is precluded)?
ii. If Res Judicata ∅ apply, does Collateral Estoppel apply?
1. Issue(s) litigated in the first action that shouldn’t be relitigated in the 2nd action.
iii. To what extent can nonparties be bound by things adjudicated in the 1 st action? Can what extent can
nonparties to the 1st action benefit from any adjudication in that action?
1. At CL, nonparty couldn’t be bound and couldn’t benefit. (Mutuality of Estoppel) N/A anymore.
II. RES JUDICATA (CLAIM PRECLUSION): THE
MEAT-AXE
a. THE RULE: PLAY THE CHIP, DON’T SPLIT IT.
i. Once you have litigated a CoA, and it’s been finally adjudicated on the merits, you are prohibited by Res
Judicata to attempt any relitigation of that CoA, even if you didn’t fully litigate all aspects of the CoA.
1. Prevents you from reasserting any aspect of a CoA that you have, or could have, litigated.
2. Bars all claims arising out of same T/O that could have been raised in the original action.
ii. 2 questions:
1. What is the CoA?
a. Old rule: Used to be a writ.
b. New rule: Same transaction & occurrence
2.
What is on the merits?
a. Some things are obvious: Decided at trial, on a post-trial motion, adjudicated on SJ
b. Motion to Dismiss on the Pleadings: FRCP 41(b)—it’s an adjudication on the merits to dismiss
for failure to state a claim because, unless the dismissal is for one of the stated basis for 41(b),
the adjudication is on the merits.
b. 4 REQUIREMENTS
i. Final Judgment
ii. On the Merits
iii. Same Claim in Cases 1 and 2 (same T/O)
1. All damages from a single incident must be sought in a single suit (Rush v. City of Maple Heights)
iv. Same Parties in Cases 1 and 2
III. COLLATERAL ESTOPPEL (ISSUE
PRECLUSION): THE SCALPEL
i. Identify issues litigated in the 1st action that need not be litigated again in the 2nd action.
b. PREREQUISITES:
i. The issue in action 1 must be the same issue as in action 2.
ii. The issue was actually litigated in the 1st case.
iii. The issue was necessarily decided in the 1st case.
c. NONPARTIES
i. You are not bound by a result that you are not a party to or a privy to a party to.
d. MUTUALITY OF ESTOPPEL:
i. even though it’s been adjudicated that X was at fault, a stranger to the litigation cannot benefit from that
adjudication.
ii. Burnhart v. Polygraph Corp: entire mutuality structure has collapsed.
iii. Parklane Hosiery: Abandoned mutuality completely
1. Offensive non-mutual collateral estoppel!
2. SCOTUS: laid down prerequisites to this use of ONMCE:
a. If the stranger could have joined in Action 1 easily, and didn’t, that stranger can’t take
advantage of the doctrine.
b. To be fair to the party who loses on the issue in the first action, that party must have been
given a full and fair opportunity to litigate in Action 1—there can’t be any procedural
inhibitions—AND must have exploited that opportunity.
c. That party must have foreseen the second action.
3.
CAREFUL! Look at the facts carefully. One or more of the pre-conditions to the use of NMOCE might be
missing.
a. Hypo where Parklane shouldn’t apply: There’s an artist who has a gallery. One night, the
gallery burns down. Turns out the fire occurs after the gallery has been rewired, so the artist
sues the electrician, saying his negligent rewiring caused the electrical fire, burnt down the
studio, and destroyed his artwork. Case goes to trial, and the jury finds on a special verdict that
the fire wasn’t caused by the electrician’s N rewiring—it was caused b/c the artist had left a
hotplate on, unattended, and it had heated up some papers which started to burn, causing the
fire. So the artist loses the 1st action b/c fault doesn’t lie with the electrician. Then, the owner
of the building hears this and says ‘Look! The studio fire has destroyed my building. I’m gonna
sue the artist, claiming this damage to my building was caused by HIS N!’ He says he’s entitled
to collateral estoppel for the artist’s negligence.
i. It’s been adjudicated—BUT was that 2nd action FORESEEABLE at the time of the 1st
action?
i
not residence—people can reside in many states