Civil Procedure Outline

I.

Personal Jurisdiction
-

Court must have power over something to get PJ

Power over defendant herself
Power over her property

3 types of PJ
In personam: court has power over the defendant herself (preferred)
In rem: court has power over defendants property
Quasi in rem: court has power over defendants property
Collateral attack means you start a second suit to challenge the
judgment of the first suit. In collateral attack, you wait for them to
come and get your property, but then you argue: They cant have my
property! The first lawsuit wasnt valid because they didnt have
jurisdiction! Why use collateral attack from a strategic standpoint? Its
cheaper than hiring an out-of-state lawyer to argue on your behalf. If
that state tries to enforce the judgment, theyll have to try to enforce it
in your state.
Outer limits of courts reach falls within The Constitutional Limit (The
Due Process Circle) & State statute that allows for PJ
First question on exam: Does a state statute allow PJ? No statute, no PJ.
If yes: Is PJ constitutional?

A. In Personam: you need personal service of process within the state.

General or Specific (doctrine of relatedness)
General: defendant can be sued in the forum for a claim that occurred
anywhere
Specific: defendant is being sued that a claim that arose in the forum
Does the claim arise from what the defendant did in the state? Yes
(Specific)/No (General)
1. Pennoyer v. Neff (1878): (PJ) Pennoyer gives us what we still call the
traditional basis for personal jurisdiction*
1) Presence: the defendant is served with process in the forum
(must be present when he is served with process) This gives us
general jurisdiction
2) The defendants agent is served with process within the forum
also general jurisdiction
3) The defendant is domicile in the forum, it is their fixed or
permanent home to which they will return when absent This
gives us general jurisdiction

4) The defendant consents to personal jurisdiction

Notice that under these 4 it is very tough to get in personam
jurisdiction!
Therefore, this became way too rigid as society became more mobile
I.e.: It is very easy for someone to come into a state, commit a tort, &
get out before they are served process. Therefore, the Court expanded
this traditional basis for jurisdiction
2. Hess v. Pawloski (1927): (IPJ) Pennsylvania citizen drives up to
Massachusetts. He is involved in a car wreck in Massachusetts. The
Plaintiff wants to sue this citizen in Massachusetts. He left the state
before he was served processso how do we go after him in
Massachusetts?
Jurisdiction was upheld under the Non-Resident Motorist Act:
It says, By driving into our state, you consent to jurisdiction for a case
arising from your driving, & you appoint a state officer as your agent
for service of process
When you drive on the states roads, you implicitly consent.
To this date, every single state has this !
Brilliant case because its consistent w/ Pennoyer
This expanded Pennoyer from consent to implied consent
3. International Shoe Co. v. Washington (1945): Here we are not
simply expanding the traditional basis like we did in Hess; here we are
giving a new formula
The Court decided it was time to restate the principals
To have jurisdiction over the defendant, (if they are not present w/in
the forum) the D must have such minimum contacts w/ the forum
so that jurisdiction does not offend traditional notions of fair
play & substantial justice
This is totally open ended, flexible & amorphous- 3 points to
remember
1. By the time this case is decided, it is clear we can serve
process outside the forumas long as he/she meets this test
2. It appears there are 2 parts
Contact
Fairness
3. Nowhere does this overrule Pennoyer! This implies that the
traditional basis stands alongside this new test (they coexist)
Challenging jurisdiction: this must be done using FRCP 12 (b), (d),
(g) and (h).
Rule 12 (b): motion permits dismissal of an action lacking the
requisite personal
jurisdiction. The P. bears the burden of proof of demonstrating PJ by a
preponderance
of the evidence once its existence is questioned by the D.

4. McGee v. International Life Insurance Co. (1957): (SJ) If the

contact between the defendant and the state is minimal, such contact
must be closely related to the claim in order for the state to have
jurisdiction.
McGee bought and paid for a life insurance policy while a resident of
California. When he died, his family sued to receive the benefits. The
defendant insurance company, a Texas corporation, had no other
contacts with the state. The state has an interest in protecting its
citizens. There is minimum contact, which is the contract that was
signed. This is sometimes known as the single contact case, but the
insurance company did continue to solicit the business of the client.
This is also in the best interest to protecting citizens of the state by
providing them with a forum against unscrupulous dealers.
5. Hanson v. Denckla (1958): (SJ) The defendant must act to
purposefully avail himself of the privilege of conducting activities
within that state to establish minimum contacts.
A wealthy Pennsylvania woman set up a trust with a bankafter years
of doing business with this bank, the woman moved to Florida. She
continued to do business with the bank in Florida. When she passed
away there was litigation in Florida & the question was do we have
jurisdiction in Florida over the Pennsylvania bank? The answer is no.
The Pennsylvania bank did not avail itself the only reason it had
anything to do with Florida is b/c the wealthy woman moved there.
The bank did not reach out to Florida!
Finally the Court said no jurisdiction*
This case tells us under International Shoe the contact must result
from purposeful availment*
Purposeful availment: the D must reach out to the forum must
avail herself to the forum in some way
Note that avails means: benefit, take advantage of, award, gain.
6. World-Wide Volkswagen Corporation v. Woodson (1980): (SJ) A
New York family buys a vehicle in New York to move the whole family in
it to Arizona. They never got there b/c on the way they are involved in
a horrible wreck in Oklahoma. The family sues in Oklahomaits a
products liability case. The family claims the car (Audi) was defectively
designed. The defective design is what caused their injuries.
The Supreme Crt held that Oklahoma had no jurisdiction over the New
York retailer and the New York distributor.
NY retailer: sold the car to the family
NY distributer: distributed the car in the Northeast
Why not?
Those NY defendants did not avail themselves of Oklahoma
They did not reach out to Oklahoma
They did not send anything to Oklahoma

The only reason the car got there was because the Plaintiffs drove it
therethis is the unilateral act of a 3rd party
Purposeful availment must result from the defendants
conduct
The NY defendants did nothing to avail themselves in
Oklahomasimilarly in Hanson where the defendants did not
reach out to Florida at all.
This decision was surprising b/c it was foreseeable that a car can travel
to another state after it is sold
The Crt said foreseeability is relevant but foreseeability that the
product might get there is not enough
It must be FORSEEABLE THAT THE DEFENDANT COULD BE SUED IN
THAT SPECIFIC FORUM although this seems central, it is not
7. Burger King Corp v. Rudzewicz (1985) (SJ) Contract case brought in
Florida. Two guys ran a Burger King in Michigan. They get sued by BK
Corp in Florida, which is BKs home turf. They drag Michigans guys
down to Florida.
Does Rudzewiczs contract with Burger King evidence substantial ties
to the state of Florida? In considering whether a contract creates a
contact, there are four factors to be considered: (1) The nature of prior
negotiations between the parties, (2) the contemplated future
consequences of entering into the contract, (3) the terms of the
contract, and (4) the course of dealing between the parties. Theres
one thing we know for sure from this case: Simply making a contract
with an out-of-state defendant is not enough to create sufficient
contacts.
Points to remember (Specific Jurisdiction - 2 Part Test)
The Crt emphasizes that there ARE 2 parts to International Shoe
1. Contact: You must have a relevant contact before you even look at
fairness! All the fairness in the world will not make up for a lack of
contacteven if it is fair & convenient
The contact here in Burger King was easythese guys reached out
to Florida to enter into a franchise arrangement
2. Fairness
The D argued that jurisdiction was not fair its not fair to drag us
little guys to Florida. Its tough for us to get there, etc.
The Supreme Crt said stop whining! You can travel!
Here the Crt gave a very high burden to defendants.
If the D wants to argue the forum is unfairyou must show that it
is so gravely inconvenient that youre at a severe disadvantage in
the case. This is almost impossible to show
The relative wealth of the parties doesnt matter (I.e.: The
Corporation has more money)

Surprising because Justice Brennan is usually a supporter of the

little guy but here he decided they should stop whining
8. Pavlovich v. Superior Court (2002): PJ? Passive Website (No) vs.
Active Website (Yes)
Personal jurisdiction may not necessarily be acquired over a defendant
based on posting on a passive internet web site. A court may exercise
specific jurisdiction over a non resident D only if (1) D has purposefully
availed himself of forum benefits, (2) the controversy arises out of Ds
contacts with the forum, (3) the assertion of PJ would comport with fair
play and substantial justice. (Stream of Commerce PLUS)
9. Asahi Metal Industries v. Superior Court (1987) (SJ) (Fairness 5
Factors Pt. 3 of Shoe Test) (SOC)
I.e.: I make components in State A. I sell them to a manufacturer in
State B. State B takes my components and puts them into its final
machine and then sells the final machine to States C, D, and E.
I did not send my components to states C, D, and Ebut they have
made it into those states because of State B.
My component blows up and injures somebody (in this case it was a
valve) in states C, D, or E.
Do I have a relevant contact with C, D, or E?
Asahi fails to answer this questionthere is a 4 to 4 split amongst the
justices*
Therefore, it is a case that gives us no law but it gives us 2 very viable
arguments*
4 Justices (led by Brennan) say: (SOC) It is a contact if I put it into
the stream (of commerce) & reasonably anticipate it will get to state C,
D, or E. Brennan saw that there was a contact here.
4 Justices (led by OConnor) say: (SOC+) You need MORE than
that.
OConnor theory:
You need what Brennan said*
Plus, intent to serve state C, D, or E
In other words, you must target these other statesmaybe by
advertising, allowing customer service there, etc.
Without this additional factor Brennan believes there is no contact, no
purposeful availment*
-All you have is the unilateral act of a 3rd party
Always be ready to argue these two theories*
10.
McIntyre v. Nicastro (2011) English company that
manufactures enormous metal sheers (scissors that cut up scrap
metal) sells them to Ohio. The company in Ohio sells them into other
states, including New Jersey. The plaintiff is injured in NJ and sues the
English company in NJ. The Supreme Crt holds there is no jurisdiction.
6 justices said there was no jurisdiction. But there was no majority
opinion*

4 Justices (led by Kennedy) say: adopt the OConnor approach.

There is no jurisdiction b/c the English company did not target NJ. It put
its sheers into the stream but it did not reach out or target NJ
2 Justices (led by Breyer) say: no position. Neither the OConnor
nor Brennan test is met so there is no jurisdictionwe simply dont
know their view
3 Dissenters (led by Ginsburg): would have upheld jurisdiction in
NJ. Their theory is consistent with Brennanthey targeted the US!
They knew their sheers could get into states like NJ and hurt someone
there
Where does this leave us? We are still split on Brennan/OConnors
theories. Professors love this! You have to argue both***
11.
Burnham v. Superior Court of California (1990):
Transient Jurisdiction (TAG): the jurisdiction of people who are
temporarily in the forum and who are served process while in it.
Husband & wife separate in NJ, wife moves to CA w/kids. Husband
stops in CA to see kids. He is served w/ process in CA. The claim arose
in NJ. (General jurisdiction) The question was does presence in the
forum when you are served with process give general jurisdiction?
We already know that Pennoyer says YES (traditional basis)
Now the question is, is that still true after International Shoe?
The Crt split again 4 to 4
4 Justices (led by Scalia) say: presence when you are served is
okay by itself International Shoe is irrelevant. This is good law under
Pennoyer.
To these 4 Justicesif you have tradition basis (like service of process
w/in the forum) you dont need to do all the other tests, it is good on its
own.
This is not a bad position b/c remember International Shoe gave us the
test for when the D is not present when served.
4 Justices (led by Brennan) say: you must apply International Shoe
to all cases We do not care about historical pedigree! You must do the
shoe!
PROFOUND SPLIT! So even on the most basic question of whether the
traditional basis exists alongside Shoe or were replaced by Shoewe
have no answer* we have a 4/4 split*
On the facts of the case all 9 Justices agree that there was general
jurisdiction in CA (odd b/c Brennan believed you have to apply Shoe
and the D barely had contact w/in the state)
Minimum contacts analysis is only applied when we have a
non-resident, non-present D

12.
Carnival Cruise Lines, Inc. v. Shute (1991): Forum selection
clauses included in a contract or ticket are valid and will be enforced
by the court as consent to jurisdiction in the forum selected.
The Shutes went on a cruise. On the ticket, there was a forum selection
clause that said any litigation related to the cruise must be tried in
Florida. Is the forum selection clause enforceable? Forum selection
clauses are considered permissible in this context for several policy
reasons. The ultimate question is one of fundamental fairness. We
wont allow the cruise line to select a forum with the purpose of
discouraging legitimate lawsuits. Permissible and reasonable because
of the special interest of the cruise lines, saves time, money and
judicial resources, reduced fare to customer. Bringing the action in the
specified forum must not effectively deprive a party of its right to sue.
**Recap**
The idea of general & specific jurisdiction
For specific jurisdiction, we have minimum contacts and fair play.
For general jurisdiction, we continuous and systematic contacts.
General in-personam jurisdiction means you can be sued on a claim
that arose anywhere in the universe. General jurisdiction requires
continuous and systematic contacts. You must have more of a
relationship with a forum to constitute general jurisdiction than to be
subject to specific jurisdiction. Think of general jurisdiction as super
contacts.
13.
Daimler AG v. Bauman (2014): A court may assert general
jurisdiction over a corporation when the corporations affiliations with
the forum state are so continuous and systematic as to render the
corporation essentially at home in the state. If such affiliations do
not render the corporation at home in the forum state, general
jurisdiction is not appropriate. Examples of such affiliations include, but
are not limited to a corporations incorporation and principal place of
business.
14.
Goodyear Dunlop Tires v. Brown (2011): (General
Jurisdiction) now the leading case on general in personam jurisdiction
and it was a unanimous opinion.
General jurisdiction is okay if the D is essentially at home within
the forum.
Your ties with the forum must be so continuous & systematic that you
are essentially at home.
The Court gave us some examples:
For human beingsdomicile: wherever your domicile youre
subject to general jurisdiction

For businesses/corporations: where youre incorporated & where

its principle place of business youre subject to general jurisdiction
Is there jurisdiction in any other place?
Before Goodyear came about most people thought that places like
Wal-Mart and McDonalds were subject to general jurisdiction in all
50 states b/c they have continuous & systematic ties in all of
them
-Goodyear casts doubt on this saying it has to be so continuous &
systematic youre essentially at home there. Does doing
business suffice?
The Crt says general jurisdiction cannot be based on buying &
selling in the state you need some physical presence
Even though this is a majority opinion there is some lack of clarity
on what essentially at home means*
In discussing General Jurisdiction make sure to use essentially at
home phrase, note the examples the Supreme Court gave, discuss the
facts of the defendants activities in the forum, and conclude that it is
unsettled whether the concept of doing business suffices for general
jurisdiction.
TO PUT ALL OF THE ABOVE INTO ONE ANALYTICAL FRAMEWORK
How to do the Constitutional analysis: the answer is not as
important as walking through all of these factors*
Find a home for every fact!
The key is to come to a reasonable conclusion based on these factors*
Before you do this analysislook to see if there is a statute (see that
analysis below under statutory inquiry)
Then do the constitutional analysis:
1. Does a traditional basis apply? Look to Pennoyer
If so, based on Burnhammaybe the traditional basis is okay by itself
(4 justices say yes, 4 say no you must do the Shoe)
How do we do the Shoe? *3 step test*
a. Is there a relevant contact b/w the D & the forum? If you do not
have this there is no jurisdiction.
Two things to assess under contact
i. Purposeful availment: (you can have this w/o setting foot in
the state)
-Did the D reach out into the state?
-Unilateral act of 3rd party? World-wide
-Solicited business? McGee
ii. Foreseeability: It must be foreseeable the D can get sued in
that forum (not that the product can just get there) Stream of
commerce (OConnor/Brennan)

b. If we have a contact (or even arguably so) then we assess

relatedness
Here is where we tell the Professor whether it is
specific or general jurisdiction
Theres only one question you have to ask:
*Does this claim arise from the defendants contact w/in the
forum?
If the answer is yes then we have specific jurisdiction!
If the answer is No then its only okay if we have general
jurisdiction!
That means you must tell the Prof. about Goodyear. You must
meet Goodyear for general jurisdiction*
Continuous, systematic, & essentially at home there
c. Assess Fairness is jurisdiction fair on the facts of this case?
If you dont have minimum contacts, you never get to fair play.
The Crt has identified *5 fairness factors (Comes from Asahi)
the problem is they never identified how to weigh them or how
important they are* (Only for Specific Jurisdiction)
Regardless, look for facts in a fact pattern that may relate to any
of these*
Convenience for the D and her witnessesthe D is going to
complain about this but Burger King put a huge burden on
the D here. Its almost impossible to show this. So gravely
inconvenient
Remembera neighboring/close state will never meet this!
Forum states interest
McGee said our state has an interest in making sure our
people dont get ripped off by out of state insurance
companies so we want to provide justice for our people
(Watch for facts like this)
Plaintiffs interest
P usually has an interest in litigating at home
Especially true if P is badly injured
The legal systems interest in efficiency
Shared substantive policies (ie. protect family harmony)
1. The Statutory Analysis: Remember it is not enough that the case falls
within the due process circleyou must have a state that allows
jurisdiction in this case.
Every state has statutes that allow jurisdiction based on the
traditional basis
Every state also has a non-resident motorist act
Every state also has a long-arm statute: allows you to sue a non
resident and usually they have a laundry list of things the non resident
can do in the forum that subject her to jurisdiction

Gibbons v. Brown (1998): Gibbons (Texas resident), Brown (Florida

resident), accident (Canada). Does the Florida Long-Arm statute give
the state jurisdiction over Gibbons? Florida shall have jurisdiction over
a defendant who is engaged in substantial and not isolated activity in
Florida. The question is whether the long-arm statute in Florida gives
the state jurisdiction over Gibbons for the purposes of the suit.
No jurisdiction over D under the long-arm statute (cause of action did
not arise in the forum state), and did not show sufficient minimum
contacts with the state to satisfy due process.
You are going after a non resident b/c she did something in the forum.
1. If your professor gives you a long arm study that language
carefully
2. The same language may be interpreted in different ways
Best example: "The D committed a tort in the forum state (Direct
sale, not SOC)
Rich manufactures widgets in state A
Rich sells one to John in state B
The widget blows up in state B & injures JohnJohn sues Rich in state
B
Suppose that state Bs long-arm says we have jurisdiction over nonresidents who commit a tort within the state
Did Rich commit a tort w/in the state?
(Split of authority - Argue both way and reach reasonable conclusion)
Some courts say yes b/c the injury was in state B (Illinois view)
Some courts say no b/c Rich did not do anything in state B (New
York view)-he manufactured the machine in state A & to the extent he
was negligent it was in state A
-The tort is where the injury was, therefore the is met*
New York, like Florida (Gibbons) also requires more activities or contacts to
allow service of process than are currently required by the decisions of the
US Supreme Court (Constitution).
N.Y. Long Arm Statute - CPLR 302: permits a court to exercise personal
jurisdiction over a non-domiciliary who:
1. transacts any business within the state; or
2. commits a tortious act within the state, except as to a cause of action for
defamation of character arising from the act; or
**NY CPLR 302(a)(3): permits a court to exercise personal jurisdiction over
a non-domiciliary who:
3. commits a tortious act without the state causing injury to person
or property within the state, except as to a cause of action for
defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have

consequences in the state and derives substantial revenue from
interstate or international commerce.
B. In Rem & Quasi in Rem: you can be served by publication.
The Crt has power over the defendants property (We do not have power
over the person) (You always prefer in personam)
Property can be anythingland, car, watch, bank account etc.
Maybe the long-arm does not reach your particular caseso you can
look at property w/in the forum
Whats the difference b/w in rem & quasi in rem?
In rem: action where the court is trying to decide the rights in a piece
of property itself (in the thing).
LAND - The suit is about who owns the property, the lawsuit itself is
over who owns the property. (Property is used as the jurisdictional
predicate*)
Quasi in rem: determines the rights of a person in a thing.
Using the defendants property as jurisdictional basis but the law suit
has nothing to do with ownership of the property.
The D clearly owns the property
The dispute is about something else
In quasi in rem, the Crt has power over the defendants property
The best example is from Pennoyer the underlying case was Mitchell
v. Neff
Mitchell had a breach of K claim against Neff for about $350.00
Mitchell could not get in personam jurisdiction over Neff in Oregon but
Neff had land in Oregon and it was used at the jurisdictional basis that
is quasi in rem
If the Crt had attached (seized) the property at the start of the case the
quasi in rem jurisdiction would have been fine.
Therefore, Pennoyer holds for in rem and quasi in rem, the
constitutional requirement is that the Crt attach that property at
the beginning of the case
How do we handle this today?
1. Whenever you have in rem or quasi in rem you must have a
statute (just like in personam)
This is easy b/c every state has an attachment (long arm is
only for in personam)
They basically say we have jurisdiction over property in the state
that the defendant owns or claims to own.

2. Do the Constitutional test

Shaffer v. Heitner (1977): (IR)
RULE- Minimum contacts must exist in order for in rem jurisdiction to
attach
ATTACHING (seizing) the property at the outset of the case is not
enough (although you must still do so)
You must also show that the defendant meets
International Shoe* 3 step test
Assess this test* (see earlier in outline)

__________________________________________________________
II.

Notice & Service of Process

We must notify the defendant
1. Service of Process
RULE: FRCP 4 - Summons
1. SUMMONS: official court notice
Crt exercising power over you (signed by clerk)
+ COPY OF COMPLAINT (summons + copy = 2 pieces of
paper)
2. Process can be served by any nonparty who is at least 18
RULE: FRCP 4(e)(2) Service on a human being
Any of these 3:
1. Personal service: (walk up and hand the paper to the
personcan be anywhere at all)
2. Substituted service: (1) defendants dwelling or usual
abode (i.e. summer house) AND (2) serve someone of suitable
age and discretion who resides there (BABYSITTER DOESNT
WORKdoesnt reside there)
3. Serve the defendants agent (could be appointed by law ie.
non-resident motorist act)
RULE: FRCP 4(e)(1) State law methods for service of
process
- State where the Fed. Crt sits or where the service is actually
done.
i.e. many states allow Fed. Service by mailif its good enough
for the state than its good enough for the Crt!
RULE: FRCP 4(h)(1) Service on a business
Youre either going to serve:
1. Officer
2. Managing general agent
Look to the facts (but remember 4(e)(1) still applies)
2. Waiver of Service
RULE: FRCP 4(d) Waiver by mail

1. Mail to the defendant the process and two copies of a waiver

form - asking to waive formal service
2. & self addressed stamped envelope
If the waiver is signed and mailed back w/in 30 days he/she
has waived formal service*
BY WAIVING FORMAL SERVICETHEY DO NOT WAIVE ANY
DEFENSES!
+ Will then get benefit of 60 days to answer or respond from
when mailed (incentive: more time to respond and lower cost)
If the waiver form is not returnedthey are served and cost
of service
imposed on defendant (D has duty to avoid unnecessary
costs)
3. The Constitutional Requirement for Notice
Mullane v. Central Hanover Bank & Trust Co. (1950):
The result in Mullane is that the lawsuit gets dismissed not
because the forum didnt have jurisdiction over the defendants,
but rather because the defendants were not given adequate
notice. By FRCP Rule 12, you can get cases dismissed by invalid
service of process or invalid process.
May a state constitutionally dispense with personal service of
process even if it knows how to contact a defendant? A method
of service of process must either be (1) reasonably certain to
provide actual notice, or (2) the lesser of several evils, that is, a
feasible form of notice that is not substantially less likely to
give actual notice than other options.
This is a classic in rem type case. The Court says we could
probably have in rem jurisdiction. (Note that this case comes
before Shaffer.) They basically say that if the process is decent,
states will have jurisdiction. They base this view of jurisdiction,
including transient jurisdiction, more or less on tradition. Yeazell
calls this jurisdiction by necessity.
What are the elements of due process in this context? The
defendant must know about the suit and be able to defend
himself. How do we decide if notice is constitutionally okay? The
notice must be reasonably calculated, under all
circumstances, to apprise interested parties of the
pending action. It will depend on the circumstances! The
Court says publication notice is not reasonably calculated to
inform them of their rights if you know who they are and where
they live.
How do we do notice today? We do certified mail with a receipt
request. This is certainly reasonably calculated. That doesnt
mean that you have to do it that way. FRCP Rule 4 tells you the
different ways you can serve process.

*All methods under Rule 4 [Notice] are Constitutional - Meet one

& youre set.
Notice can be Constitutional even if the defendant did not get it
due process doesnt require ACTUAL NOTICE Dusenbury. (ie.
Wife served, didnt tell husband, puts it in shredder Service on
husband still constitutional)
Constructive notice: giving notice in a publication such as a
newspaper.
Jones v. Flowers (2002): Even though due process doesnt
require ACTUAL NOTICE, if the plaintiff becomes aware that def.
did not receive it, they might have to try another means.

__________________________________________________________
III. Subject Matter Jurisdiction
Up to this point, we have personal jurisdiction
Now we fact a totally different questionWhat Crt do we go to in that state?
Do we go to the state Crt or the Federal Crt? These are always the options*
SMJ & PJ have nothing to do with each other & you have to have both*
Personal jurisdiction is over parties, subject matter jurisdiction is
over cases & claims
The question is: Can the Crt hear this kind of case or this kind of claim?
Why is this important?
State Crts can basically hear any kind of case at all (minor exception: some
Federal Question claims must go to Federal Crt)
Federal Crts can only hear 2 certain kinds of cases (The Constitution says
so in Article 3) (remember these could also be heard in state Crtaside from
the minor exceptions)
If it does not fall w/in those kinds of cases it simply cannot go to Federal
Crt
Diversity of Citizenship jurisdiction
Federal Question jurisdiction

A. Diversity Jurisdiction

The 1st major way to get a case into Federal Crt

1332 (a)(1) of the Judicial Code (From Congress - not Federal Rule)
This is a statute passed by Congress
Gives us 2 requirements for diversity cases: both of these must be
met to have a diversity case reach Federal Crt
1. Diversity - The case is b/w citizens of different states
2. The amount in controversy exceeds $75,000.00 dollars
Citizens of different states things to know:

1. The complete diversity rule: there is no diversity if any

plaintiff is a citizen of the same state as any defendant. In
other words, the same state cannot be on both sides of
the line (P & D)
2. The citizenship of a human being:
If a human being is a citizen, you will see this called a natural
person
For a U.S. citizen, you are a citizen of the state if you are
domicile
You only have one domicile* you can only be a citizen of one
state at a time as a human!
(You can be a citizen of more than one state as a corporation)
To establish a new domicile you must:
(1)Be present in the new state (physically)
(2)You must form the intent to make that your permanent
home (mental) Did they: buy house, job, pay taxes,
put down roots in the community, etc.
Whatever your domicile isyou retain it until you do both
of these things!
3. The citizenship of a corporation: do not use the word domicile
(this is only for humans)
Defined in 1332 (c)(1): a corporation is a citizen of
(1)Of state(s) where incorporated generally there is only 1
state of incorporation*
AND not or
(2)Of the one state where the company has its principal
place of business
How to determine the principal place of business:
Where the corporation has its nerve centerwhere
managers direct, control, & coordinate corporate activities
(where managers call the shots) usually the
headquarters
A corporation can have more than one citizenship
(Inc. and PPB)
The professor cannot hide the ball about where a
corporation is incorporated
4. The citizenship of unincorporated businesses: partnership,
LLC, etc.
There is no statute about this so; you use the citizenship of
all members
A partnership is a citizen of each state of which its partners,
both limited and general, are citizens.
I.e.: law firm is a partnership where the partners are citizens
of 18 statesthat partnership is a citizen of those 18 states

Labor unions are typically unincorporated

Amount in controversy things to know:
In addition to having the correct litigants we must meet the correct
amount
There are 3 rules:
(1)The amount must exceed $75,000.00 exactly $75,000.00 is
no goodkey word exceed (does not count interestthe
claim itself must exceed)
(2)Aggregation- we must add multiple claims to get over
$75,000.00
We aggregate the Ps claims if there is one P v. one D (there
is no limit on the # of claims) (the claims do not have to be
related in any way)
You cannot aggregate if you have multiple parties on either
side
I.e.: One P suing 2 defendants for $50,000.00 on each
claim cannot meet the amount in controversy even
though it totals $100,000.00
(3) With a joint claim you use the total value of the claim
Here the # of parties is irrelevant
This is b/c in a joint claim any D can be on the
hook for the total amount
Your Professor cannot hide the ball on whether its a
joint claim or not*

B. Federal Question Jurisdiction

The 2nd major way to get a case into Federal Crt
1331 of the Judicial Code
Citizenship & Amount in controversy are irrelevant
You can have a Georgia P against a Georgia D for ONE CENT and it
doesnt matter!
It can still go to Crt if its a Federal question case*
What do we need for a Federal Question case?
A claim that arises under Federal law
It is not enough that the case arises under some type of Federal
issue the claim itself must arise under Federal law

The well-pleaded complaint rule:

We look only at the complaint

In the complaint we ignore everything except the claim itself

We do not look at anything the D says

How to apply this rule:

Simply ask yourself is the plaintiff enforcing a Federal right?
Yes then it does arise under Federal law, we are ok under
the well-pleaded complaint rule
No then it is not a Federal question
Louisville & Nashville Railroad Co. v. Mottley (1908) The
Mottleys have lifetime passes on a railroad. (They got the
lifetime free passes b/c they were previously in a train wreck w/
this company). Congress passed a (as soon as you see this
you know its Federal lawcircle this) that said railroads
couldnt give away free passes. The Mottleys show up for their
free ride and the railroad says no more free rides; there is a
Federal law that says we cannot do it.
The Mottleys sue the railroad and their complaint says 2 things
(1) Railroad company is breaching the K (said would give free pass and now
its not)
(2) New Federal law does not apply to us (THIS ACTUALLY HAS NOTHING TO
DO W/THE CLAIM)b/c they are anticipating a defense! (Remember* we
only look at the claim itself)

Therefore, on the face of this complaint the Mottleys raise a

Federal issuebut it is NOT a Federal question case
Why?
Go back to the question: Is the plaintiff (Mottleys)
enforcing a Federal right?
NO The Federal does not give the Mottleys any rightsit
says the Federal law cannot honor free passes
Their claim has nothing to do with that Federal law
The cause of action must arise under Federal law!!!!!
Breach of K is regular state lawthere is nothing Federal
about it
So even though the case raises a Federal issue it is not
a Federal question case***

C. Supplemental Jurisdiction
Once we are already in Federal Crt (whether its a diversity case or a
federal question case)
It is important to realize there may be other claims asserted in that
case
Counterclaims cross claims, etc.
For every single claim in Federal Crt there must be Subject
matter jurisdiction
(Not just the original claim that got the case into Federal Crt
but every claim after that as well)

Therefore, get in the habit of testing every claim that came into Federal
Crt
Does it invoke diversity of citizenship?
Does it invoke a Federal question?
If so (one or the other), then the additional claims come into the case
What happens if one of these additional claims does not invoke diversity
or Federal question?
It is then and ONLY THEN do we look at Supplemental Jurisdiction
It may still be able to get into Federal Crt
Supplemental Jurisdiction
(supplemental jurisdiction alone does not get a case into
Federal Crt)
Applies only to additional claims IN a case thats in Federal Crt
1367 of the Judicial Code
Supplemental jurisdiction allows us to hear non-diversity non-Federal
question claims in Federal Crt*
United Mine Workers of America v. Gibbs (1966) Case involved a
labor dispute in the coalmines of Tennessee. The P had 2 claims; 1
arose out of Federal law, 1 arose out of state law. The 2 claims arose
from the same real world event.
Claim #1 (FQ: arose out of Federal Labor law)
P (citizen of TN) ---------------------------------------------- D (citizen of TN)
Claim #2 (State law: arose under state law)
P (citizen of TN) ---------------------------------------------- D (citizen of TN)
Is this okay? Remember our habitevery single claim in Federal
Crt must be assessed for subject matter.
Claim # 1 invokes a Federal Question (violation of Federal Labor
law)
Claim # 2 does not invoke Federal Question because its based
on State lawit also fails to invoke diversity jurisdiction (its by
a TN citizen against a TN citizen)
This claim by itself could never go to Federal Crt
The Supreme Crt held in Gibbs that the Supreme Crt could hear Claim
#2 under what they call supplemental jurisdiction*
Because it is part of the same case that arose out of a Federal
question
The Crt said it would meet this test if the claims share a
Common Nucleus of Operative Fact (Gibbs SMJ Test)
In this fact pattern it did arise from the same nucleus b/c it
arose out of the same transaction or occurrence (t/o) (which

always meets the Gibbs test) b/c (Same t/o is more specific than
common nucleus)
Bottom line:
The Crt can hear a non-diversity non-Federal claim as long as it
shares a common nucleus of operative fact with the claim that
got it into Federal Crt
Keep this very mechanical*
If you see a claim that is non-diversity non-Federal and
youre trying to get it into Federal Crt you
Ask yourself:
1. Does 1367 a grant supplemental jurisdiction?
The answer is yes if it meets Gibbs (common nucleus)
2. Does 1367 b take away supplemental jurisdiction?
Why you have to ask #2Dont forget this one problem! *
1367 b cuts back on supplemental jurisdictionit kills it in
certain circumstances:
1367 b applies only in diversity cases (never applies
in Federal question)
1367 b only takes away certain supplemental
jurisdiction claims by plaintiffs (not over claims by
defendants)
(The specifies which claims)
*1367 c
Hypo: How would Gibbs come out today?
We know they got the claim into Federal Crt under Federal question
jurisdiction
Claim #2 failed to invoke federal question or diversity so you need
supplemental jurisdiction over claim #2
First, does 1367 a grant supplemental jurisdiction?
Yes, b/c it meets Gibbs
Does 1367 b take away supplemental jurisdiction?
Does not apply b/c it only applies in diversity cases
So we do have supplemental jurisdiction!

__________________________________________________________
(EXTRA ADDED STUFF HERE - JOINDER)
1367(b), when applicable, takes away supplemental jurisdiction in
a number of joinder scenarios involving supplemental plaintiffs.

Remember, 1367(b) does not create supplemental jurisdiction. Instead, it

operates to take away SJ that would otherwise have been ok under 1367(a).
What is the basis for original jurisdiction? If original jurisdiction is based
solely on section 1332, then move on to the next question.
But if original jurisdiction for the CNOF is premised (solely or alternatively) on
some other original jurisdictional statute (such as 1331 federal question),
then 1367(b) does not take away supplemental jurisdiction, so long as it was
granted by 1367(a).
That means we dont need to ask questions 3-5 listed below regarding
1367(b). Instead, youd move on to analysis under 1367(c) and (d).
Next, if original jurisdiction is premised solely under 1332, then ask whether
applying SJ over any supplemental claims would be inconsistent with 1332.
Ask whether exercising SJ over any of the supplemental claims would be
inconsistent with section 1332. For example, would one or more of the
supplemental claims fail to satisfy the amount in controversy? If so, move on
to the next question. But if applying SJ over a supplemental claim would not
violate section 1332, then 1367(b) does not take away SJ.
Next, if exercising SJ over any supplemental claims would be inconsistent
with 1332, then ask whether any the supplemental claims fall under one of
the joinder scenarios in 1367(b). Note that these are all claims asserted by
plaintiffs! These would be claims:
By plaintiffs against persons made parties under FRCP 14, 19, 20, or 24.
By persons proposed to be joined as plaintiffs under FRCP 19.
By persons seeking to intervene as plaintiffs under FRCP 24.
Finally, determine whether SJ is barred. If original jurisdiction was premised
solely on 1332 diversity (Q2), and SJ would be inconsistent with 1332 (Q3),
and the claim falls into one of the listed plaintiff-claim scenarios (Q4), then
1367 prohibits SJ over that claim.

D.Removal

Here a defendant sued in State Crt and essentially transfers the case to
Federal Crt
Technically the term transfer is incorrectthe right word is removal
You do not need permission to removeyou just file your notice of removal*
This is a one-way street
There is no such thing as removing from Federal Crt to state Crt that
cannot be done
If the case does not belong in Federal Crt (there is no jurisdiction, etc.)
then the Federal Crt will remand to state Crt
Removal: takes the case from stateFederal

Remand: kicks the case from Federal back to state Crt if removal was
improper
Relevant Statutes
1441, 1446, 1447
Important Rules about Removal
1. First Removal Rule: You can remove if the case could have been
brought in Federal Crt (general starting point)
EXCEPTION TO THIS RULE:
In-state defendant rule: you cannot remove a diversity case if
any defendant is a citizen of the forum (doesnt apply to Federal
question)
Hypo: P (citizen of South Carolina) v. D1 (citizen of NY)
v. D2 (citizen of Georgia)
The case is in Georgia state Crt
The claim is for a billion dollars
Can the defendants remove? NO!
Even though this is a case that may meet all the requirements
to be in Federal Crtyou cannot remove a diversity case if any
defendant is a citizen of the forum!
The Professor may give you this fact pattern & add that the
claim by the P arises under Federal law THEN YES YOU CAN
REMOVE
The in-state defendant rule only applies to DIVERSITY CASES
NOT FEDERAL QUESTION CASES! So be weary of this!
2. Second Removal Rule: You must remove w/in 30 days of service
of process (not from when it was filed)
3. Third Removal Rule: All defendants who have been served with
process must join the removal
Rule of unanimity (agreement): every defendant who has been
served has to be on board w/ the decision to remove to Federal Crt
4. 30 days starts a-new (starts over) with each newly served
defendant

IV. Venue, Transfer & Forum Non Conveniens

Venue
Whats the dif. b/w SMJ & VENUE? SMJ tells us we can go to Fed. Crt; Venue
tells us exactly which Federal Crt
There are 94 Federal Districts*
You must lay venue in a particular district

A. Plaintiffs choices:
1391 B (1) & (2) (Gives the Plaintiff choices to lay venue) (You
can go with either of these bulleted choices)
You can lay venue in any district where all defendants
reside
If all defendants reside in the forum state, we may
lay venue in the district where any of them resides**
What does reside mean?
A human being resides in the district where
domiciled
(You only have one domicile)
A business resides in all districts where they are
subject to PJ in the case (may be more than one)
You can lay venue in any district where a substantial part
of the claim arose
It could arise in more than one district
i.e.: if a K arose in one place, but was negotiated in
another, they may both be appropriate to lay venue
C. Transfer:
Has to be from one Crt to another in the same Judicial system
i.e. Federal district Crt in Minnesota Federal district Crt in Hawaii
Terminology
Transferor: original Federal Crt (where the P filed case)
Transferee: Crt case is sent to
Applicable statues: 1404 A, 1406 A

IN BOTH OF THESE , THE TRANSFEREE (course case is

sent to) MUST BE A PROPER VENUE & HAVE PJ OVER THE
DEFENDANT!
This must be true without waiver
i.e. suit in Federal district Crt of Minnesota Defendant
says, its too cold. Lets transfer to Fed. District Crt in
Hawaii There is no venue in Hawaii, & defendant is not
subject to PJ in Hawaii, but D is willing to waive these
issuesnot doable*

1404 A TRANSFER: when the transferor (orig. Fed Crt) is a proper

venue but sending the case to another place because it makes more
sense (convenience). Proper venueproper venue

The center of gravity testwhere the litigation belongs

Courts look at a series of public & private factors when

determining whether to transfer (the Crt has enormous discretion
here)
*convenience of parties & witnesses, in the interests of justice
*Where are the witnesses? Wheres the evidence? (see forum
non conveniens factors)
Forum Selection Clause: if the parties have a forum selection clause for
a particular district, they can almost always transfer to that district (i.e.
in a binding K)
Atlantic Marine Construction Co. v. United States District Court
(2013):
Rule: Only under extraordinary circumstances unrelated to the
convenience of the parties should a 1404(a) motion based on a forumselection clause be denied.
The Court held that 1404 codified a doctrine of transfer that allowed
cases to be transferred to a more convenient forum rather than being
dismissed. Because both 1404 and the forum non conveniens doctrine
from which it derives depend on a balancing-of-interests standard,
courts should use that standard when evaluating claims under Section
1404. The Court also held that, when parties have agreed to a forumselection clause, a court should transfer the case to that forum unless
there are exceptional factors at work.
1406 A TRANSFER: when the transferor (orig. Fed Crt) is an improper
venue you can;
1. Transfer in the interests of justice, or
2. Dismiss on the basis of improper venue
D. Forum Non Conveniens
Where a Crt dismisses pending case instead of transfers because
there is another Crt that is more convenient*
Dismiss because transfer is impossiblethe other more convenient Crt
is in a different judicial system
i.e. a foreign country
(Must be an adequate forum)
We cannot dismiss and leave the Plaintiff out of luck without an
adequate forum
This doesnt mean the recovery has to be the same (Ps hate
forum non conveniensno jury, emotional distress, etc. in other
countries) (less recovery doesnt mean less adequate)
Piper Aircraft v. Reyno (1981):
Plane crashes in Scotlandvictims, pilot, & airline are all Scottish
Plane manufactured in PA
This litigation belongs in Scotland

You can argue for a more convenient forum even when that forum
would have law that is less favorable to the plaintiff.
The public & private factors dismissal under forum non conveniens
(same factors in a 1404 A transfer)
BALANCING FACTORS (Gilbert Balancing Test)
Private factors:
Relative ease of access to sources of proof
Availability of witness subpoenas (compulsory process for attendance
of unwilling witnesses)
Cost of obtaining attendance of the willing witnesses
Possibility of view of premises
If view would be appropriate to the action
All other practical problems
Public factors:
Court congestion (Administrative difficulties)
The local interest in having localized controversies decided at home
Forums familiarity w/ substantive law (The interest in having the trial of
a diversity case in a forum that is at home with the law that must
govern the action)
The unfairness of burdening citizens with jury duty for a case unrelated
to forum

V.

The Erie Doctrine

The Erie problem comes up in diversity cases in Federal Crt

Generally, not going to come up in a Federal question case
If theres no Federal directive on point its an Erie problem*
Federal directive on point Hanna problem
The Eric Doctrine comes up when the Federal Judge must decide an issue*
The question for us is:
In deciding that issueMust the Federal Judge apply State law?
The Blackletter principle for this question comes from the Erie case itself*
Erie Railroad Co. v. Tompkins (1938): It says that in diversity cases
in Federal Crt they must apply state substantive law
(usually the law that the courts of that state would apply)
Therefore if the issue in your case is one of substantive law, the
judge must apply the State law
Why?
The Rules of Decision Act 1652

The 10th Amendmentrequired by the Constitution The Federal

govt cannot invade powers that are reserved to the states
The substantive law is for the states
How do we know if something is substantive?
In many cases this is going to be easy
An example of pure substantive is the elements of a claim (if someone
is liable to another)
Erie itself is an example of substantive law: Tompkins walked along a
path of the railroad tracks & something protruding from the train hits
him as the train goes by and he is injured
The question was whether the railroad was liable
This boils down to the definition of the claimpure substance
What if its not that clear? What if its not obviously substantive?
Starting point for an analysis in this area is not about Erie at all
Its about Hanna v. Plumer
Hanna v. Plumer (1965): shows us that what we thought was one
doctrine (Erie) was actually two
Hanna tells us to ask ourselves these questions when trying to
understand if the Federal judge has to follow state law:
1. Is there a Federal directive on point that conflicts with state
law? (Like a FRCP, Constitution, ) Federal law on the issue
2. If the answer to that question is yesthen the Federal law
trumps state law as long as the Federal provision is
valid
^In this case you do not look at the Erie stuff about
Outcome determination its all irrelevant. Call it the
Hanna prong*
This is based on the Supremacy Clause of the Constitution
the Constitution says if there is a Federal rule on point it is the
Supreme law of the land*** (and it wins as long as its
valid)
How do we know if the Federal provision is valid?
Test is against the Rules Enabling Act 2072
Says that an FRCP is valid if it does not modify substantive
rights
The Supreme Crt tends to uphold any FRCP if it is arguably
procedural the line b/w substantive & procedural is
hazy
NO FRCP HAS EVER BEEN HELD INVALID BY THE SUPREME
CRT! (The Supreme Crt writes them)

Theory of Erie// No Fed. directive on pointso we have to

apply State law
You have to account for these three cases:
Guaranty Trust Co. v New York (1945): (Outcome Determinative)
there was a state statute of limitations that barred the claim. The
case was brought in Federal Crt under Diversity & the Federal Judge
wanted to ignore the state S.O.L. & allow the plaintiff to sueCan the
Judge do that?
There is no Federal directive on point so its not a Hanna
problem its a pure Erie problem*
The Supreme Crt said no, the Judge couldnt because the S.O.L.
is Outcome Determinative
If you ignore state law does it affect the outcome of the case?
If you ignore the state law & you get a different outcome than if you
applied it (Therefore its substantivewe do not want this)
The outcomes should be the same in state & Federal Crt
S.O.L is absolutely substantive for Erie purposes
The problem with this is that every single rule is therefore going to be
seen as outcome determinative*
Is a jury going to be involved? (Procedural Nature + 7th Amendment)
Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (1958):
(Balance the Federal & State Interests) State law said that a particular
issue had to be decided by the Judge not the jury.
The Federal Crt wants to ignore it and send it to a jury
Can the Federal Judge ignore the State law?
There is also no Federal directive on point here so its not a
Hanna problem its a pure Erie problem*
Here it was not really Outcome Determinative as in Guaranty
Trust b/c the Judge and the jury might decide the same way
The Crt said if its not obviously substantive (like elements of a
claim) we should apply state law unless the Federal Crt system
has a federal interest in doing it differently
The Crt said you have to balance the states interest and the
Federal interest in running their own Crt systems
On this particular pointthe state law had no reason for the rule
(it said the Judge had to decide it but it did not say why)
Therefore there was no state interest! no weight*
On the other hand, a Federal system should be able to run its
own allocation of power b/w Judge & jury therefore the Federal
interest outweighs the State & you do not have to follow State
law
Byrd has never been overturned

The twin aims of Erie (from Hanna)

To avoid forum shopping*

To avoid the inequitable/unfair administration of the law*
To apply this, you ask one question: and you ask it at the outset of the
case
If the Federal Judge ignores this state law, will it cause parties
to flock to Federal Crt?
This is bad, we do not want this, and it is unfair to the citizens in the
state who cannot invoke diversity in Federal Crt!
So assess all 3 of these important factors:
1. Outcome Determination
2. Byrd Balancing of interests
3. The twin aims of Erie
Dont worry about getting a right answerthis is even more
amorphous than personal jurisdiction!
The conclusion is not worth muchall of the points are with applying
the tests & arguing!

__________________________________________________________
VI. Pleadings
Documents filed to the Crt

A. The Complaint
Plaintiff filescommences the case
FRCP 8(a) - All 3 are required in the complaint*
1. A statement of SMJ (Federal Crts can only hear certain cases)
2. A short and plain statement of the claim (details from
Ashcroft+Twombly)
3. Demand for relief sought (damages. Injunction, etc.)
Ashcroft v. Iqbal (2009): made it tougher to state a claim
The Crt ignores conclusions of law & focuses on
allegations of fact.
Cannot simply assert conclusions w/o factual
allegations to back it up
The Plaintiffs facts must state a plausible claim
Plausible: not just possible
The judge uses their experience and common sense to
assess plausibility

FCRP Rule 9(b) - circumstances of fraud must be alleged with particularity

(more detail than required above)

B. Defendants Response
FRCP 12
When you are sued, you must respond within 21 days after
service of process
(If service is waiveddef. has 60 days)
2 ways to respond
1.) By MOTION (request for a Crt order) (not a pleading) (you
move)
Motions under Rule 12*
12(b) Defenses (To dismiss)
1. SMJ: this case does not belong in Fed. Crt - 12(b)(1)
2. PJ - 12(b)(2)
3. Venue - 12(b)(3)
4. Improper process 12(b)(4) (issue with the summons or copy of
complaint)
5. Improper service of process 12(b)(5) (not served correctly)
6. Failure to state a claim 12(b)(6)
7. Failure to join an indispensable party 12(b)(7)
ALL OF THESE DEFENSES CAN BE PUT IN A MOTION OR AS
AN AFFIRMATIVE DEFENSE IN YOUR ANSWER!
But, you run the risk of waiver
12(g), 12(h)
1. 12(b) 2,3,4,5 (waiveable defenses) must be in your first
Rule 12 response (whether its a motion or an answer)
(if you dont put them in your first, your chance is gone)
2. 12(b) 6,7 can be raised for the first time, anytime
through trial (not on appeal, no later than trial)
3. 12(b) 1 is never waived (can be raised at any time,
even on appeal)
2.) By ANSWER (this is a pleading) (motions are not)
In some cases, you make a motion, it is denied, and then you
answer
In your answer you must
1. Respond to the complaint FRCP 8(b)
Admit
Deny: *failure to deny is an admission,
except regarding damages
i.e.: P alleges D was intoxicated while
driving, D files an answer in which he states
P has no proof D JUST ADMITTED
INTOXICATION

If you want to deny, do it. Do not argue

back.
We lack sufficient info 8(b)(5)
2. Raise affirmative defenses 8(c)(1) there are
many!
An affirmative defense is different from a denial
An affirmative defense injects a new fact
If Def. is right on this fact, then he wins
Failure to plead these affirmative defenses can
result in waiver! Defendant has the burden!

__________________________________________________________
VII. Joinder
The joinder rules define the scope of our case
How many parties can be in one case?
***When you have a joinder question, always think about subject matter
jurisdiction***
Never tested on just joinderSMJ goes along with it
**IF IT STARTS WITH THE LETTER C (COUNTERCLAIM & CROSSCLAIM)ITS
B/W EXISTING PARTIES
**IF IT STARTS WITH THE LETTER I (IMPLEADER & INTERVENTION) WE ARE
JOINING SOMEONE NEW TO THE CASE

A. Claim Joinder by Plaintiff

FRCP 18(a)
P can join any claim against this D, they do not even have to be
related, there is no limit*
Assess SMJ (Fed Q., Diversity) Does this case, as weve packed it with
all these claims, get into Fed. Crt?

B. Claim Joinder by Defendant

1. The Counterclaim (part of the answer)

FRCP 13(a) and (b)

A claim against an opposing partysomeone who has already sued
you (defendant against P)
Two types of counterclaims
Compulsory Counterclaim FCRP 13(a)(1): arises from the
same transaction or occurrence (t/o) as the Plaintiffs claim ->
must be asserted in the answer
Unless you already sued on this, you must assert this in
the present case!
(You cannot sue on this separately!)
THIS IS THE ONLY COMPULSORY CLAIM THAT EXISTS!

(YOU DONT USE IT, YOU LOSE IT!)

i.e.: collision b/w A & B
Case 1: A sues B
Litigation ends
Case 2: B sues A to recover in the same wreckcase
dismissed.
Compulsory counterclaimshould have been filed in
Case 1s answer
Remember: compulsory counterclaims always meet 1367
(a) in regards to Supplemental Jurisdiction because they arise
from the same t/o (always meets common nucleus test of Gibbs)
-> 1367 (b) only takes away supplemental jurisdiction for
diversity claims by a plaintiff.
Permissive Counterclaim FCRP13(b): does not arise from the
same transaction or occurrence as Ps claim (this could be sued
on in a dif. case if you wanted)

2. The Crossclaim
FRCP 13(g)
A claim against a co-party (D against D) (not opposing)
Must arise from same t/o as underlying case
Remember, the Crossclaim is not compulsory
(This can result in a lack of diversity) try Supplemental jurisdiction does 1367 (a) grant it?
Crossclaims always meet 1367 (a) in regards to Supplemental
Jurisdiction because they arise from the same t/o (always meets
common nucleus test of Gibbs)
Does 1367 (b) take it away? Only takes away supplemental
jurisdiction for diversity claims by the plaintiff

C. Proper parties
FRCP 20(a) Who may be joined in a case*
A tool for the Plaintiff who is filing the case*
20(a)(1) Test for Co-Plaintiffs
1. Claims must arise from same t/o, and
2. They raise at least one common question
20(a)(2) Test for Co-Defendants
1. Claims must arise from same t/o, and
2. They raise at least one common question

Then you must assess whether there is SMJ,

can all these plaintiffs and defendants get

into federal Crt? (needs to meet diversity or

Federal Q)

D.Necessary & Indispensable parties

FRCP 19 Who should be in the case (Not who may be in the case)
THIS HAS TO BE OBVIOUS*
PLAINTIFF v. DEFENDANT and (nonparty-absentee)
Absentee is then forced into case
19 can proceed in 3 steps
1. Is the absentee necessary?
Yes, if we meet any of these 3 tests - 19(a)(1)
Test #1: 19 (a)(1a)
Without the absentee, the Crt cannot accord
complete relief
*Test #2: 19 (a)1(b)1 (most tested on
exams)
The absentees interest may be harmed if
he/she isnt joined (focuses on absentee)
Test #3: 19 (a)1(b)2
The absentees interest subjects the
defendant to multiple or inconsistent
obligations (focuses on defendant)
2. Is joinder of the absentee feasible?
Its feasible if
theres PJ over the absentee
bringing in the absentee will not goof up
diversity (diversity must still be
maintained!)
3. When joiner is not feasible, but joinder of the
absentee is necessary (i.e.- no PJ) we can either;
Proceed w/o absentee
Dismiss the whole case in its entirety
How do you make this decision? Rule
19(b)
Gives you 4 factors (ensures that
dismissal will not happen unless theres
another Crt where everyone can be
joined)
IF YOU GO THROUGH THESE FACTORS AND
DECIDE TO DISMISSWE LABEL THE ABSENTEE
INDISPENSABLE
*** 12 (b)7Motion to Dismiss for Failure to
Join an Indispensable Party

E. Impleader
FRCP 14
A defending party is bringing in someone new to the case*
Not a co-partynot a cross claim! TPD must have never been a party before.
Only can be done if the new party may be liable to him (the D) for the
plaintiffs claim against him*
This new party is the Third Party Defendant (TPD)
Defendant says I shouldnt be the only one responsible for paying, brings in
other liable D (TPD)
These claims are almost always for indemnity & contribution
i.e.: the joint tortfeasor owes contribution to D
Under Rule 14(a)3, P can now assert a claim against the TPD
PTPD
Under Rule 14(a)2(d), the TPD can now assert a claim against
the P
TPDP
NEXT, SMJ****
Every single claim, every single timeyou have to assess SMJ
Try diversity jurisdiction
Try FQ jurisdiction
If neithersupplemental jurisdiction

F. Intervention

FRCP 24
When an outside party (intervener) wants to join the lawsuit as an
additional party.
Raised by the absentee herself. (Previously absentee pulled in by others
ie. rule 19)
Intervener can enter as either a plaintiff or defendant.
Intervention must be timely - intervener may not lie in wait until the
litigation is on the brink of resolution. (ie. Discovery is already iffy,
possibly too late at judges discretion)
Must have SMJ no Supplemental jurisdiction.
Intervention of Right Rule 24(a)2:
-You may intervene if your interests may be harmed if you are not joined.
(same as test #2 for necessary parties -> watch for overlap on
exam)
- Unless your interests are adequately being represented without your
presence.
Permissive Intervention Rule 24(b)2:

- Interveners claim or defense has at least one common question with the
pending case.
- The permissive intervener will be allowed to litigate only with respect
to that particular law or fact.
- Totally up to the judge to permit or deny.
(In making that determination, the court shall consider whether the
intervention will unduly delay or prejudice the adjudication of those
already parties to the action.)
Coming in to assert or defend a claim, so claim has to have SMJ
- Got diversity?
- Got Fed. Question?
- If not, Supplemental Jurisdiction.

G.Class Actions
FRCP 23
Where a representative is suing on behalf of the group.
First paragraph of the class action essay should be dedicated to the pros
and cons of the class action.
1. Prerequisites Rule 23(a)
*Need all four of these requirements*
1. Numerosity (claims or class so numerous making joinder of all
members of the class
impractical) - 23(a)(1)
2. Commonality (must be questions of law or facts that are common to
the class)23(a)(2)
Walmart Stores, Inc. v. Dukes: Class certification under FRCP
23(a) is improper when there is no common injury (commonality)
that may be resolved across the entire class. We focus on common
answers, not common questions. There has to be some issue and if
we litigate this issue for everybody, it will provide answers for
everybody.
3. Typicality (claim must be typical of the class members same kind
of pain)- 23(a)(3)
4. Representative must fairly and adequately represent the class in the
claims - 23(a)(4)
2. Types of Class Actions FRCP 23(b) only have to meet one of
these
23(b)(1): Prejudice class actions - need class action because
individual cases would be incompatible standards for D
(mandatory CA cant opt out)

Ex.: claims by shareholders against corporation trying to

force a dividend
23(b)(1)(b): class action to avoid harm to other class members
(mandatory CA cant opt out)
Ex.: limited fund litigation: D has $1 million, P claims total
$10 million
23(b)(3) Class Action:
*More questions can be asked about this on exam*
Usually for damages/money
1) Common questions predominate - over individual
claims
2) Show that class action is the best way to resolve the
dispute
(ex. class [mass] torts was the driver negligent?)

Motion to Certify - Courts must certify the class

action (if 1. prerequisites and 2. type are met) and
then appoint counsel under the class (court decides
who the lawyer will be).
Notice of Pendency Court must give individual
notice to all members of the class reasonably
identifiable. Contents of the notice found in FRCP
23(c)2(b) Must tell them you can opt out, but
youre bound if you dont.
Rep pays for the notice (can get expensive since
may be a lot of ppl). This notice not required in (b)1
or (b)2 class action.
[23(b)3 most likely for EXAM]
Who is bound by a class judgment? All members
except those who opted out of a b(3).
Settlement or dismissal of a certified class must be
approved by the court.
SMJ Might invoke Fed. Q, but what do we do about
a diversity class action? 1. Citizenship: you look only
at the rep, and the rep must be diverse from ALL
defendants. 2. Amount in controversy: the reps
claim must exceed $75,000 (dont care about the
class members claims)
3. Appeal of Class Action Certification Decision
Generally, appeal is only available from a final judgment. The courts
order granting or denying the certification of a class is not a final
judgment in the case. The party seeking class certification must try the

case on the merits and obtain a final judgment before he/she can
appeal the trial judge's refusal to certify the class.
(Though a party may seek review of the decision in the court of
appeals under Rule 23(f) which states: A court of appeals may permit
an appeal from an order granting or denying class-action certification
under this rule if a petition for permission to appeal is filed with the
circuit clerk within 14 days after the order is entered.)

__________________________________________________________
VIII.

Discovery

To find out what the other party knows, to avoid surprise at trial.
Applies to documents, things, electronically stored information (ESI)

A. Required Disclosures
FRCP 26(a): parties must produce information without request by the
other side- it's a duty. 3 sets of required disclosures.
26(a)1: Initial required disclosures. (most important 1 of the 3) Early in
the case you must identify people and describe things (ex. documents,
ESI) with discoverable info that you may use to support your case. In
addition, the defendant must disclose insurance that covers claim.
26(a)2 and 26(a)3 - were not discussed.

B. Discovery Tools
5 Discovery Tools. Which of these can be used to get info from nonparties?
1) Deposition- Rule 30: Oral deposition (most common), Rule 31:
Written depositions. The response is oral, the deponent gives sworn
oral testimony and its live (can get smoking gun response out of
them). You can depose parties or non-parties. Although, you should
serve a non-party with a subpoena, or he doesn't show up.
2) Interrogatories- Rule 33: Written questions answered in writing
under oath. They have 30 days to answer these questions. (Can take
their time to answer, so no smoking gun effect) INTERGOATOES
CANNOT BE SENT TO NONPARTIES.
Example: Opinions held by experts that have been developed in
anticipation of trial can ordinarily be discoverable only through
interrogatories[which require the identification of an expert witness
who will be called at trial, the subject matter about which the expert is
expected to testify, the substance of the opinions to which the expert
is expected to testify, and a summary of the grounds for each such
opinion FRCP 26(b)(4)].

3) Request to Produce- Rule 34: Written request for access to

stuff/info (ex. documents, ESI, widget that exploded). It appears that it
only applies to partiesBUT YOU CAN USE RULE 34(c) TO GET INFO
FROM A NONPARTY - YOU JUST HAVE TO SUBPEONA THEM. (Subpoena
never for party, only for non-party.)
4) Medical Exam- Rule 35: You must get a court order. You have to
show that the medical condition is in controversy, and you have to
show good cause. (This is only to examine a party or somebody in a
partys custody or control. It does not include employee. If you name
that employee as a party, then you can.)
Example: Parent & child- If child is injured, parent can sue on their
behalf, and if you want to get a medical exam of a child then you can
because they are in the custody or control of the parent.
5) Request to Admit- Rule 36: You force them to admit or deny any
discoverable matter. If they fail to deny, they've admitted. 30 days to
respond. They are only for parties, never non-parties.

C. Scope of Discovery
1) Standard- 26(b)1: We can discover anything relevant to a claim or
defense. This includes anything reasonably calculated to leads to
admissible evidence. Ex. hear say not admissible at trial but you can
discover it.
2) Trial Preparation Materials (Work Product)- 26(b)3: Work
product is material prepared in anticipation of litigation. If it is prepared
than it Is work product. Starting point is that work product is not
discoverable, it is protected from discovery. If someone objects than
you can discover. Hickman v Taylor
Hypo- Mike operates a charter boat service, John comes to Mikes
business and charters a boat for a 3-hour tour. Mike takes John out and
the boat sinks because of the weather, John gets hurt and tries to sue
Mike. Mike hire a private investigator, and he interviews witnesses,
weather report, etc. He gives Mike a memo and gives the report, and
he concludes saying he thinks Mike was negligent. John sues Mike and
he asks to produce relevant documents. Does Mike have to give him
those documents? NO!!! Its work product. Its not attorney client
privilege.
Not all work product is not created equal, you can override the work
product protection for some stuff, if you can show:
1) Substantial Need
2) The info is not otherwise available

[Apartymayordinarilyobtaindiscoveryofdocumentsandtangibleitemspreparedin
anticipationoflitigationortrialbyorfor:(1)anotherparty,or(2)thatparty's
representative(includinghis/herattorneys)onlyuponashowingthatthepartyseeking
discoveryhasasubstantialneedforthematerialsandiswithoutotherreasonablemeans
toobtainthemFRCP26(b)(3)]
Hypo: In memo witness statement from Gilligan and he is marooned
on a island so you cannot take his deposition. Then you can override
because you have substantial need and the info is not otherwise
available.
Work product which is absolute: mental impressions, conclusions,
opinions, theories -> cannot get it.
Work product can be generated by a party or any rep of a party- DOES
NOT HAVE TO BE A LAWYER.
*Motion to Compel- Rule 37:
*Sanctions/Ensuring Compliance

D. Certification upon Presenting Paper to Court FRCP 11

In federal civil cases, the attorney (or unrepresented party), by presenting to

the court a pleading, written motion, or other paper, certifies that to the best
of her knowledge, information, and belief formed after an inquiry reasonable
under the circumstances:
(i) The paper is not presented for any improper purpose
(harassment, delay, etc.);
(ii) The legal contentions therein are warranted by existing law or a
nonfrivolous argument for the modification of existing law or the
establishment of a new law;
(iii) The allegations and factual contentions either have, or upon
further investigation or discovery are likely to have, evidentiary
support; and
(iv) Denials of factual contentions are warranted on the evidence
or, where specified, are reasonably based on a lack of information and
belief.
The certification applies anew each time an attorney or unrepresented party
later advocates a position contained in a pleading, motion, etc. Thus, a
paper that was not sanctionable when first presented may become
sanctionable if the attorney or party later advocating a position contained in
the paper has since learned or should have learned that the position no
longer has merit.

1.

Sanctions

AnattorneyorpartywhoviolatesRule11(b)bymakinganimproper
representationtothecourtmaybesanctioned.[Seegenerally,Haysv.
SonyCorp.ofAm.,847F.2d412(7thCir.1988)]Anopposingparty
maymakeamotiontoimposesanctionsforaRule11violation,orthe
courtmaydosoonitsowninitiative.[Fed.R.Civ.P.11(c)]Thecourt
mayimposeasanctiononlyafternoticeandareasonableopportunityto
respondisprovidedtotheoffendingparty.[Fed.R.Civ.P.11(c)(1)]
i.SafeHarborProvision
e.

Rule37(e)createsasafeharborthatwouldforbidsanctionsagainst
partieswholostinformationintheordinarycourseofoperatingan
electronicinformationsystem.Thepartywouldhavetohavetaken
reasonablestepstosavetheinformation,however,afteritbecameclear
thatitwouldbediscoverableinthelitigation.
BeforeapartyfilesamotionforRule11sanctionswiththecourt,the
partymustservethemotionontheoffendingparty.Iftheoffending
partywithdrawsorcorrectsthechallengedpaper,claim,defense,
contention,ordenialwithin21daysafterservice,themotionmaynotbe
filedorpresentedtothecourt.[Fed.R.Civ.P.11(c)(2)]
ii.ObjectiveStandardofBadFaith
Eveniftheattorneypresentingthepaperdidnotactuallyactinbadfaith
andbelievesthatthepaperscontentsaretrueandproper,thecourtmay
stillimposesanctionsifareasonablepersonwouldhavemadeinquiries
thatwouldhaveshownthepapertobefalse.
iii.TypesofSanctions
IfthecourtfindsthatRule11(b)hasbeenviolated,thecourtmay
imposeasanctionthatislimitedtowhatsufficestodeterrepetitionof
theconductorcomparableconductbyotherssimilarlysituated,which

mayincludenonmonetarydirectives,anordertopayapenaltytothe
court,or,ifthesanctionsarebeingimposedbasedonapartysmotion
andareneededtoserveaseffectivedeterrence,anordertopaythe
movingpartysreasonableattorneysfeesandotherexpensesre
sultingfromtheviolation.[Fed.R.Civ.P.11(c)(4)
__________________________________________________________
XI. Pretrial Adjudication
B. FRCP 12(b)(6): Motion to Dismiss - Failure to state a
claim upon which relief can be granted.
In 12(b)(6) the court looks only at the complaint. (Does not look at
evidence)
In doing so court ignores conclusions of law and only looks at
allegations of fact.
And then court has to asses if those facts state a plausible claim.
If case does not get past 12(b)(6) then it has no business in court.

C. Summary Judgment- FRCP 56:

In FRCP 56 the court CAN look at evidence. Evidence is sworn

statements under oath and they are given to the court by the parties.
Look at evidence and apply Rule 56(a) Standard
In moving for Summary Judgment, the moving party must show:
1) That there is no dispute of material fact. (once you show there is
no dispute of fact then its a matter of law and court will rule on
that)
2) She is entitled to judgment as a mater of law.
Difference form 12(b)(6): Here we have stated a claim. If she can prove
what she alleged, then she will win.
But with summary judgment, the question isDo we need a trial?
We go to trial ONLY to resolve disputes of fact! IN SUMMARY JUDGMENT
THE EVEIDENCE SHOWS THAT THERE IS NO DISPUTE OF FACT. AND IF
THERE IS NO DISPUTE OF FACT, WE DON'T HAVE TO GO TO TRIAL. THE
JUDGE WILL RULE AS MATTER OF LAW.
The evidence comes from the parties. It has to be under oath ->
affidavits, declarations, depositions, answers to interrogatories, they

are all under oath.

Pleadings are not under oath. Unless Professor says that are verified
pleadings (which almost never happens), then they are under oath.
Summary Judgment- we are going to evidence in written form proffered
to the court and the judge stick it into a basket, and we read all the
evidence and we ask ourselves: Is there a dispute on a material fact? If
the answer is no, then we dont need trial and can rule as a matter of
law. And it's the courts discretion.
In some mid 1980s cases, it was ruled the lower courts should loosen
up and start granting summary judgment. But it is still always
discretionary.
Celotex Corp. v. Catrett (1986):
D moves for summary judgment on the ground that P had no
evidence linking its product to the injury.
D argues that nothing in the discovery record shows that the
decedent had been exposed to Celotexs asbestos.
P could seek a continuance, argue that D failed to meet its burden,
or to defeat Ds showing with more evidentiary support.
P goes with the third option
o Letter from insurance company to Ps attorney showing that D
had sold asbestos to employer
o A letter from the employer showing that they purchased
asbestos from D
o Letter from decedent describing exposure to asbestos.
o D objects
o Court grants Celotexs motion.
o Court of appeals reverses
o Supreme court reverses- Summary Judgment is proper.
Celotex lightened the burden of proof for the movant.
RULE: A party making a motion for summary judgment does not need
to provide affirmative evidence in the form of affidavits to support its
motion.
(While the moving party does not need to present affirmative
evidence, the nonmoving party is expected to present some
form of affirmative evidence to overcome the challenge.)
HYPO- Plaintiff is a pedestrian walking across the street get hit by a
car by D, p sues D, in the complaint he says he was in the crosswalk I
had green light and D ran the red light in the complaint. D files an
answer and denies all this and moves to summary judgment. D proffers
to the court affidavits form 10 clergy people and they tell the same
story under oath and that is that the defendant had the green light and

it was the plaintiffs fault. That is all evidence. The plaintiff relies on his
complaint and says he already said the contrary in his complaint. Do
we grant Summary Judgment? YES, SJ probably granted because
complaint doesn't go in the evidence basket, a complaint is a pleading
and therefore it is not under oath!
HYPO- Defendant moves for summary judgment, has 10 affidavits that
tell it was P fault, P proffers an affidavit that saw it, and it was drug
addicted, alcoholic, convicted criminal, and his affidavit says the
opposite its all the D fault. Do you grant summary judgment? NO,
because now in the basket you have some evidence that says the light
was green, you have other evidence that says the light was red. There
is a dispute on the material facts, you must go to trial. We do not judge
his credibility, thats up to the jury in trial.
There is one nuance, exemplified in:
Scott v. Harris (2007): There was a video tape and the tape was clear
as to what happened. Even if you have evidence on both sides. The
tape showed clearly what happened so you can grant summary
judgment.
1. Partial Summary judgment: SJ may be partial (as well as
complete).
Example: Summary judgment may be rendered on the issue of
liability alone although there is a genuine issue as to the amount of
damages.

3) Affidavits
1) Affidavits or declarations must: (i) be made on personal knowledge;
(ii) set forth such facts as would be admissible in evidence; and (iii)
show the affiant is compe- tent to testify.
2) A party may object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in
evidence.
3) If a party fails to support an assertion of fact or fails properly to
address another partys assertion of fact, the court may consider the
fact undisputed for purposes of the motion, grant summary judgment if
appropriate, give an opportunity to address the fact, or issue any other
appropriate order.
4) When the party opposing the motion shows by affidavit or
declaration that he cannot present facts, he may state the reasons for
their unavailability or declara- tions. The court may then deny the
motion, order a continuance to permit affida- vits to be obtained or
depositions to be taken, or make such other order as is just.

5) When affidavits or declarations are made in bad faith, the court

may:
a) Order the party using them to reimburse the other party for those
expenses that the affidavits caused him, including attorneys fees.
b) Adjudge in contempt the offending party or attorney.

__________________________________________________________
X.

Trial

A. Right to a Jury
The 7th Amendment preserves the right to a jury, it does not create it.
(7th Amendment only applies in Federal court)
Historical Test- 1791 7th amendment was ratified - common law of
England
2 things the court looks at
Schaeffer Union v. Terry (1990): says that the federal court must:
1) Is this claim analogous to a claim that existed 1791? Answer is
almost always YES.
2) Look and focus on the remedy. Is sought claim a remedy at law or a
remedy at equity?
7th Amendment gives you a right at law but not equity.
Back in the day you had a jury in the law court but not in the equity
court.
Today we have one court, Federal court, we have to focus the 7th
Amendment on is it law or equity.
Remedy at Law- compensatory damages.
Equity Remedy- Injunction, specific performance, rescission and
reformation.
Today we have cases that have both, how do we handle that?
HYPO- I own a home and I survey the yard and drinking cappuccino,
everyday someone trespasses the property and it bugs me. Can sue for
law? Yes, I can get compensatory damages. But its not really what I
want. What I want is an injunction to stop trespassing. Injunction is
enforced by putting him in jail.
I sue him and ask for an injunction for future trespass (equity remedy)
and I also ask for damages (law remedy) for past trespass.
Do I get a jury? Up until 1950s you wouldnt get a jury, the court looked
at the center of gravity of the case. Here its the injunction, which is
equity, and you do not get a jury at equity.

Today we do it different because Beacon Theaters and Dairy Queen

together gave us:
3 Rules- to determine: Do you get a jury?
1) We determine the jury right issue by issue (not all or nothing)
2) If an issue of fact underlies both the law claim and equity claim, you
get a jury.
3) We try the jury issues first.
In our hypo: What issues of fact need to be litigated? (1) Whether or
not he trespassed? Do you get a jury? YES, because that question
underlies the claim for damages as well as the claim for equity. (2)
What harm he caused to the property? We have to litigate what the
damages were. Do u get a jury for damages? YES, b/c question
underlies both claims. 3) Whether you satisfy the requirement for an
injunction? NO, because that is purely the equitable claim.

B. Selection of the Jury - FRCP 47

In selecting the jury there are 2 challenges:
1. Each party has unlimited challenges for cause. You are challenging
potential jurors for cause, may be they are related, or they are bias.
Its up to the judge to decide.
2. Each side get 3 peremptory challenges. They mean you don't have
to state an answer. PEREMPORY CHALLENGES MUST BE USED IN A
RACE AND GENDER NEUTRAL WAY. YOU CANNOT USE THESE TO
DISCRIMIATE ON THE BASIS OF RACE AND GENDER.

A. Motions
If we are going to have a jury in the trial, the court has to have some
control to make sure jury doesn't do stupid stuff.
3 Motions:
1. Motion for Judgment as a Matter of Law (JMOL) - Rule 50a:
Formerly - Directed Verdict
The judge takes the case away from the jury, says there is not enough
evidence for jury to decide. Judge states the evidence is so
overwhelming, so clear, that he can just rule as a matter of law.
The standard is that reasonable people could not disagree on
the result.
When do you move for this?
Rule 50(a)2: You cannot move for this until the other side has been
heard at trial.
Example: Under the substantive law, the plaintiff must prove a,b,c,d
are true. We go to trial and plaintiff puts evidence on all issues except
c. The defendant moves for JMOL. The court may grant this. Its always

discretionary. B/c based on the evidence a,b and d reasonable people

could not disagree. Plaintiff can not win, so why let it go to the jury.
This is similar to summary judgment; the difference is w/ SJ you dont
go to trial and JMOL is during the trial.
2. Renewed Motion for JMOL (JNOV) - Rule 50b:
Formerly- Judgment Notwithstanding the Verdict
SAME AS JMOL except it comes up later. Here court denies JMOL, jury
returns verdict and judgment is entered. The loser brings up a JNOV
and if its granted we take the victory away from the winner and we
enter judgment for the other party D that the jury thought was the
loser. We do it because: the jury reached a conclusion that reasonable
people could not have reached.
You must make it within 28 days after the judgment. YOU MUST HAVE
MOVED FOR JMOL AT A PROPER TIME AT TRIAL (which is after other side
put on their evidence).
IF YOU DID NOT MOVE AT A PROPER TIME YOU WAIVED JMOL.
3. Motion for a New Trial - Rule 59(a)1:
Timing is the same as JNOV, has to be 28 days after the judgment.
Here the judge is convinced that something went wrong in the case
and we should start over. Limitless possible reasons to cause this.
Anything that convinced the judgemaybe the judge made a mistake,
maybe the jury misconduct, maybe the damages figure was insane.
New trial is less drastic than JMOL because the same party might still
win. Its just a do over.
THERE IS NO PREREQUSITE. You dont have to move for JMOL to move
for new trial.

__________________________________________________________
XI. Appeals
We might want to appeal.

A. Final Judgment Rule

In federal court, when we are looking at appeal, every decision the
judge makes is either final or interlocutory.
What is a final judgment? You can only appeal from the final
judgment, when the merits of the case are done. How do we figure it
out? After making this order, does the trial judge have anything left to
do on the merits of the case? If the answer is yes, it is not a final
judgment, it is interlocutory. Theres only a right to appeal after its
final.

Hypos- (1) Suppose the judge the denies motion for summary
judgment and you know the judge is wrong. Can you appeal? NO. Case
still needs to go to trial.
(2) Weve gone all the way through trial and we won. Except now the
judge grants a new trial. Can we appeal? NO. Still need to have the
new trial.
(3) Suppose judge denies a motion for new trial. Can we appeal? YES.
Final judgment. We can file appeal within 30 days of that appealable
order.

B. Interlocutory Appeals
These are appealable, even though they are not final.
Example: A trial judge may certify an order of interlocutory appeal
when he believes the order involves a controlling question of law as to
which there is a substantial ground for difference of opinion and that
an immediate appeal may materially advance the termination of
litigation.
Statues
1. 1292a: Makes certain interlocutory appealable (injunction)
2. 1292b: Both the district court and the court of appeal have to
agree
FRCP
1. FRCP 23(f): Allows a court of appeal to review class certification
orders
2. FRCP 54(b): Comes up in a case with multiple parties or multiple
claims, here the court may enter final judgment on one of the parties
and one of the claims.
Judge Made
Collateral Order Rule: An order about some issue that has nothing to
do with merits of the case. Something on which we should not delay
review. (11th amendment immunity, state cannot be sued in federal
courts.)

__________________________________________________________
XII. Claim & Issue Preclusion
Terminology is rather confusingdont let it throw you off
2 Preclusion Doctrines:
Claim Preclusion (Res Judicata)
Issue Preclusion (Collateral Estoppel)
Your Professor cannot hide the ball on thisit is always the story of at least
two cases*
Case 1 has gone to judgment

Case 2 is pending & the question is Does that judgment in Case 1 stop us
(preclude us) from litigating anything in Case 2?
The 2 ways the judgment can stop us from litigating in Case 2 are
the 2 Preclusion Doctrines***
The order in which they are entered judgment is most
important
(not the order in which the cases are filed)
We apply the Preclusion law of the system that decided Case 1
If Case 1 was in Federal Crt in CA and Case 2 in state Crt is
New Hampshirethe New Hampshire Judge must use Federal
law of claim & Issue Preclusion

A. Claim Preclusion (Res Judicata)

The rule that says you only get to sue once on a claimif you do the 2nd
case will be dismissed
You cannot assert the same claim twice*
There are 3 requirements for Claim Preclusion
1. Case 1 & Case 2 were brought by the same claimant against the
same defendant
2. Case 1 must have ended in a valid final judgment on the merits:
Rule 41(b): Every judgment is on the merits unless its based on
jurisdiction, venue or indispensable parties.
Even if you litigated nothing (default judgment) its still on the
merits.
3. You have to show that Case 1 & Case 2 asserted the same claim
(this requires the most discussion)
There are different definitions of claim
The majority view: (including Federal law) is that the claim is
the transaction or occurrence t/o You get one lawsuit for a
transaction or occurrence.
The minority view: Primary right you have a different claim for
Each. Right. Invaded.
So we do not look at the transaction we look at the rights
invaded
I.e.: one lawsuit for your body (P.Inj.)
& Another lawsuit for your stuff (Property)
Hypo:
A & B are out driving around & they collide
They both suffer personal injury & property damage
Case #1: A sues B to recover for personal injuries
The case gets litigated & it goes to valid final judgment on the merits
Case #2: A sues B for property damage from the same crash
Do we dismiss this under the doctrine of Claim Preclusion?

Walk the Professor through the 3 requirement

1. Met because both cases are by A against B
2. Met because the cases ended in a valid final judgment on
the merits
3. Split of authority;
Majority view: Yes because both cases were about the same
transaction or occurrence b/c you only get one lawsuit
Minority view: we do not dismiss under the Primary Right view.
Dif. Claim for bodily sanctity & property damage*

B. Issue Preclusion (Collateral Estoppel)

Narrower than Claim Preclusion*
Issue Preclusion does not get rid of case 2 it streamlines it
We are not going to re-litigate an issue we are going to deem it
established in Case #2
(Start w/ Claim Preclusion, if it does not not apply & get rid of Case #2, then
do IP.)
There are 5 requirements for Issue Preclusion
1. Case #1 must have ended in a valid final judgment on the merits
(exactly the same in claim preclusion)
2. You have to show the same issue was litigated & decided in Case #1
(therefore we actually must have litigated in Case #1)
3. That issue must have been essential to the judgment in Case #1
If we did not have the finding on that issue the judgment would
have been different (the issue supports the judgmentthis is
usually clear)
4. Against whom is preclusion used? (Not by whom)
Same answer in every Crt in the Country
It can only be used against somebody who was a party* to case #1
Party includes people who are in privity to a partylargely its
about representation (you were not a party but you were
represented by a partyi.e.: a class action)
This is a Due Process idea*
5. By whom is preclusion asserted? (Not against whom)
Traditional view is mutuality
The Mutuality Rule: You can only use preclusion if you are a party
to case #1
Not required by Due Process* (so courts can reject it)
Therefore, it can be changed!
Non-Mutual Issue Preclusion (Collateral Estoppel)
All non-mutual means is that issue preclusion being used in Case #2
by somebody who was not a party in Case #1
1. Non-Mutual Defensive Issue Preclusion: the word defensive
tells us it is used by the defendant in Case #2 AND WASNT A
PARTY TO CASE #1.

Non-mutual defensive is okay if the person you are

using it against had a full chance to litigate against
Case #1 (majority view, esp. under Fed. law)
2. Non-Mutual Offensive Issue Preclusion: the word offensive
tells us it is the plaintiff in Case #2 who is using it AND
WASNT A PARTY TO CASE #1
Hypo #1:
You own a caryou also have a roommate
You lend your car to your roommate
As you know from torts, you are vicariously liable for what your roommate
does with that car
Your roommate is involved in a collision with Rich
Case #1: Rich sues your roommate
We go to trial & your roommate wins b/c there is a finding in that litigation
that Rich was negligent
Judgment is entered for your roommate and she wins
Case #2: Rich sues you
Can you get it dismissed under claim preclusion? NO! Remember the
first requirement of claim preclusion is that both cases must be by the
same claimant by the same defendant
Can you get it dismissed under issue preclusion? Analyze!
Walk the Professor through the 5 requirements
1. Met because there is a V.F.J.O.M
2. Met because the same issue was litigated & decided
Rich was determined to be negligent!
3. Met because that issue was essential to the judgment
your roommate won that first case b/c Rich was
negligent
4. Met because Rich was a party to Case #1
5. Non-mutual because you are not a party to Case #1
and youre the defendant so its non-mutual defensive
Can we still dismiss it?
Most Crts today say yesif Rich had a full chance to litigate
in Case #1 (certainly the Federal law says yes)
Non-mutual defensive is fair/okay if the person you are
using it against had a full chance to litigate against
Case #1

ThereforeYOU WILL GET ISSUE PRECLUSION AGAINST

RICH in most jurisdictions & certainly under Federal
law
Hypo #2
Same facts
Case #1: Rich sues your roommate
We go to trial & your roommate wins b/c there is a finding in that litigation
that Rich was negligent
Judgment is entered for your roommate and she wins
Case #2: You sue rich
Hey my car is messed upits already been determined its your fault and Id
like to get Issue Preclusion of the finding that the wreck was Richs fault
THIS IS WHAT MAKES IT OFFENSIVE
Requirements #1-4 are all the same as Hypo #1 and met
5. Non-mutual because you are not a party to Case #1
and youre the plaintiff so its non-mutual offensive
Can we still dismiss it?
Most Crts today say noit goes too far
But*
There is an important trend by Federal law to allow it as long
as its use is not unfair.
The leading case that tells us non-mutual offensive issue
preclusion is fair is Parklane Hosiery v. Shore
Parklane Hosiery v. Shore (1979) Says non-mutual offensive is okay but
you have to base it on a bunch of fairness factors.
These factors arent decided on how they should be weighed.
The best you can do is just throw them in & come to a reasonable
conclusion*
Fairness Factors
1. The person against whom you are using non-mutual
offensive issue preclusion had a full chance to litigate in
Case #1
2. The person could foresee multiple suits (When Rich
sued your roommate he knew damn well it was your car
so he knew there was going to be litigation with youhe
had every incentive to win the first case)
3. The person using non-mutual offensive could not have
joined easily in Case #1
If you could have joined easily in Case #1 when Rich
sued your roommate you should have
No ones exactly sure what this meanscould be a
geographical barrier
4. There are no inconsistent judgments

Suppose at one point your roommate was found

negligent in addition to Richit is unfair to pick out the
judgment you like
If the only judgment on the record is where Rich is found
negligentyoure in good shape
So come to a reasonable conclusion on whether to allow this
based on the emerging trend*