Chris Borniger – Civil Procedure Outline – Table of Contents

Claims and Defenses....................................................................................................................................3

Conley v. Gibson (1957):...........................................................................................................................5

Bell Atlantic Corp. v. Twombly..................................................................................................................6

Evidence.........................................................................................................................................9

Summary Judgment (Rule 56)..................................................................................................................10

Celotex Corp. v. Catrett...............................................................................................................13

Tactical considerations.................................................................................................................15

The Jury Trial............................................................................................................................................17

Beacon Theatres Inc. v. Westover.................................................................................................18

Dairy Queen v. Wood...................................................................................................................19

Tanner v. United States and Rule 606(b)......................................................................................20

Choosing the Court and Law....................................................................................................................21

Subject Matter Jurisdiction.......................................................................................................................21

General Federal Question Jurisdiction..........................................................................................22

Diversity Jurisdiction (DJ) and Removal Based on DJ................................................................23

Supplemental Jurisdiction – § 1367.............................................................................................25

Territorial Jurisdiction and Choice of Law...............................................................................................29

Collateral attack...................................................................................................................................29

Minimum contacts................................................................................................................................30

General jurisdiction..............................................................................................................................32

Specific jurisdiction.............................................................................................................................32

World-Wide Volkswagen v. Woodson...................................................................................................33

Purposeful contacts and purposeful availment.....................................................................................33

Other theories.......................................................................................................................................33

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 Asahi Metal v. Superior Court..............................................................................................................34

Choice of Law......................................................................................................................................36

The Erie Problem.....................................................................................................................................37

The outcome determination test...................................................................................................39

The Byrd balancing test................................................................................................................39

Hanna v. Plumer..........................................................................................................................40

“Arguably procedural, ergo constitutional”..................................................................................40

The “direct collision” test.............................................................................................................41

Validity of Federal Rules.........................................................................................................................41

Venue and Forum Non Conveniens.........................................................................................................44

Transfer of Venue: § 1404(a).......................................................................................................45

Venue and Choice of Law in Federal Court.................................................................................45

The basic rule: Klaxon v. Stentor Electric Mfg. Co......................................................................45

Size of the Litigation..................................................................................................................................48

Preclusion.................................................................................................................................................48

Claim Preclusion..........................................................................................................................49

Issue Preclusion............................................................................................................................50

Nonmutual Collateral Estoppel....................................................................................................51

Joinder .....................................................................................................................................................53

The Rules of Joinder.....................................................................................................................53

Rule 20: Permissive Joinder of Parties.........................................................................................55

Rule 19: Mandatory Joinder.........................................................................................................55

Interpleader..................................................................................................................................57

Class Actions...........................................................................................................................................57

CIVIL PROCEDURE
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I. Introduction

A. Anatomy of Claims and Defenses

 Every rule of substantive law can be put in the form of a conditional imperative. Litigators
translate conditional imperatives into claims and affirmative defenses.
 Valid claim = a set of facts that gives rise to a right to relief in the courts.
o “If” = element material to the claim
o “Unless” = affirmative defense
B. Determining Validity of a Claim or Affirmative Defense
 Validity of claim
o Do the “if/then” clauses accurately state a rule of substantive law?
o Do the actual facts fit the conditional imperative?
 Affirmative defense: D’s only option if the claim is valid
o Does the “unless” clause provide a defense to liability under the substantive law?
o If it does, do actual facts correspond to the “unless” clause?
C. Burdens for Asserting/Proving Elements of a Claim/Affirmative Defense
 Burden of Pleading (BoPle): Responsibility for alleging an element in the pleading
o If on P: If complaint doesn’t state a claim, D can file motion to dismiss (12(b)(6)).
o If on D: If answer lacks an affirmative defense, the issue is out of the case.
o Caveat: Pleadings can be amended, even at trial, even after other party has made motion
to dismiss.
 Burden of Production (BOPro): Who loses if no evidence is produced with respect to a particular
element?
o Party meets this burden only if reasonable jury could find for that party. If not, court can
grant judgment as a matter of law.
 Burden of Persuasion (BoPer): Risk of not persuading the factfinder
o Can only be understood in the Standards of Proof
 Preponderance of the evidence: More likely than not (civil)
 Clear and convincing evidence: (some civil)
 Beyond a reasonable doubt (criminal)
D. Allocation of Burdens
 Linguistic clues: Look to statute’s enacting clause (but may not be clues)
 Gomez v. Toledo:
o Issue: How to allocate elements material to a §1983 claim (civil rights)
o Elements of a §1983 claim:
 Deprivation of federal rights
 Under color of state law (actions by official in official capacity)
 Only if official acted in bad faith (read in by SC).
o Question: Was burden of pleading on P (to allege bad faith), or on D (to plead as an
affirmative defense)?
o Facts: P claims he was fired without procedural due process.
o Procedural history:

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  P files complaint alleging first two elements of §1983; D answers with denial and
asserts several affirmative defenses. D moves to dismiss under 12(b)(6).
 Inappropriate here. D has to make motion before answer.
 Should have gone for 12(c): Motion for judgment on pleadings
 P loses on 12(b)(6) motion. 1st Circuit affirms. P appeals to SC.
 Risky move – P didn’t amend his pleading. He didn’t want to have to
prove bad faith at trial, but he let trial court enter judgment against him. If
P had lost at SC, that would have been the end of his case.
o Majority opinion: D has to plead good faith as an affirmative defense.
 D’s good/bad faith is entirely within D’s knowledge; subjective. (But similar
issues often allocated to P, like in fraud: intent to deceive)
 Plain language of §1983 and legislative history (But qualified immunity was
nowhere in statute; it was read in. So if you rely on QI, you’re not relying on
statute.)
 Precedent: Ambiguous and not helpful here
 Established practice in analogous legal areas (issue treated as AD)
 Real driver may be policy: In close cases involving qualified immunity, tip the
scales in favor of the P.
o Concurrence by Rehnquist: Aims to limit scope of the decision. Wants to leave open the
issue of the burden of persuasion.
 Affirmative defenses vs. negative defenses
o Affirmative: D has to assert it or it’s out of the case
o Negative: D’s obligation to admit or deny allegations by P
o Rule 8(c)(1): Matters to be asserted as affirmative defenses in a pleading
 Other considerations in allocation: Fairness, precedent, policy

II. Pleading Claims and Defenses

A. Pleadings vs. Motions

 Pleadings frame the dispute (requirements: Rule 7(a))
 Motions ask judge for action (requirements: Rule 7(b))
B. Rule 11
 Deters frivolous pleadings: Go no further than a reasonable lawyer would
 Must engage in a reasonable inquiry into law and facts before pleading.
 Failure to plead honestly, or pleading honestly without a reasonable inquiry, violates Rule 11.
 11(b): rules for determining if pleadings or motions are valid

C. Pleading Philosophy of the FRCP

 Pleadings much less important than they used to be (because of discovery)
 Early procedural systems had little to no mechanism of discovery; relied on pleadings. Thus,
pleading rules were much stricter.

D. Amending the Pleadings

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  Purpose: Make pleading errors less critical. FRCP aim to resolve lawsuits on the merits instead of
technicalities of pleading.
 Rule 15(a)(1): Right to amend pleading once as a matter of course
 If pleader doesn’t satisfy conditions of (a)(1), 15(a)(2) says a party may amend with opponent’s
consent or with court’s leave
o Court should freely give leave when justice so requires
o Unless pleader is abusing process, an amendment will be allowed unless the other side
would be prejudiced (i.e., opposing party would suffer because pleader got it wrong the
first time.
 Example: Beeck v. Aquaslide. A admitted it had made defective waterslide, but it
actually hadn’t. Company president learns mistake while examining slide during
deposition. Court allowed A to amend its answer even though it created major
statute of limitations problems for B.
 Woolley: Court should have held A to its admission.
 If undue/unjustified delay in seeking to amend: The greater the lack of diligence in seeking to
amend, the less prejudice the other side will have to show to defeat the amendment.

E. Construction of the Pleadings

 In old procedural systems: Pleadings strictly construed. No benefit of the doubt.
 Today: Rule 8(e): Pleadings should be construed so as to do justice.

F. The Complaint
 What must be pleaded in the complaint?
o Rule 8(a)(2): Pleading must contain a short and plain statement of the claim showing that
the pleader is entitled to relief.
o Conley v. Gibson (1957):
 SC: Don’t have to detail all the facts; just give a short and plain statement of the
claim that gives the D fair notice of what P’s claim is and grounds on which it
rests.
 Complaint shouldn’t be dismissed unless P can prove “no set of facts in support
of his claim that would entitle him to relief.”
 But Conley and Rule 8 can’t mean that an abstract statement is OK. Complaint
has to give some discussion of the facts giving rise to the claim. Old Form 9
shows what level of specificity can be required at least in a simple negligence
claim.
 Old Form 9 (now Form 11): Rule 84 said this is sufficient to state a claim
for negligence, though it doesn’t expressly allege all the elements. Duty
and breach are implied.
 Twombly case answers some questions, raises more.
o 8(a)(2) is enforced through 12(b)(6). Use 12(e) (motion for a more definite statement) if
it’s a vague claim that D has no idea how to answer.
o Policy considerations for what must be pleaded in the complaint
 Advocates of loose pleading standards: P with a good case shouldn’t be tossed
out of court before the discovery process can show that the case is good.

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  Advocates of tighter pleading standards: Discovery processes and summary
judgment motions are very expensive ways of finding out whether a claim has
merit. Requiring a P to plead every element of a claim and provide some factual
basis eliminates the wait for discovery, if the P in good faith under Rule 11 is
unable to plead.
 Appropriate resolution may depend on complexity of the case. Discovery and SJ
practice cost more as a case becomes more complex; more specificity and better
pleading may make sense.
 Amendment of pleadings is another reason why dismissal may waste judicial
resources.
o Bell Atlantic Corp. v. Twombly
 Key allegation: Ds agreed to avoid competition among themselves and stifle
competition from others in order to inflate prices. (Agreement + parallel conduct)
 Procedural history: Fed.Dist.Ct. granted 12(b)(6). Fed.App.Ct. reversed.
 Issue: Did pleading state a claim for which relief could be granted?
 Majority opinion:
 12(b)(6) was properly granted. Allegations of parallel conduct alone are
insufficient under 8(a)(2) to show pleader is entitled to relief.
 Gives no weight to allegations of agreement; says complaint is really just
restating allegation of parallel conduct by saying there was an agreement.
Bare allegation of agreement doesn’t give the notice required by Rule 8.
 Majority clearly trying to replace the Conley standard. Under “no set of
facts” standard, allegations of parallel conduct should have been enough
if complaint includes allegation of agreement.
 Courts typically say all elements of a claim must be pleaded expressly or
impliedly. Twombly arguably says that if the element is pleaded in
conclusory form, that’s insufficient.
 Twombly will lead to significant heightening of pleading standards. It insists that
the pleader show he’s entitled to relief.

G. Responding to the Complaint: Rule 12 (see handout)

 D must respond in timely manner or risk default judgment.
o May first file a pre-answer motion to dismiss under 12(b)
o Or may answer the complaint
 Precision in terminology: A motion is not a pleading. And Rule 12(b)(1)-(7) aren’t motions,
they’re defenses that can be set forth in a number of vehicles:
o Motion to dismiss
o Motion for judgment on the pleadings (if not waived)
o Responsive pleading
 Rule 12 sets forth four disfavored defenses:
o Personal jurisdiction
o Insufficient service of process
o Insufficient process
o Venue
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  Three favored defenses (can be asserted in motion for judgment on the pleadings or in the
answer):
o Lack of subject matter jurisdiction (can be raised at any time)
o Failure to state a claim on which relief can be granted
o Failure to join a party
 If D forgoes a pre-answer motion on any ground in Rule 12, D loses any of the 4 disfavored
defenses that were available and that D failed to assert in the answer or in an answer amended as a
matter of course under 15(a).
o 12(e) [more definite statement] and 12(f) [strike]: Can’t make these motions once you’ve
made a pre-answer motion. They must be part of the pre-answer motion.

H. Responding to the Complaint: The Answer

 Overview
o Contains response to P’s claim + any counterclaims or third-party claims
o Claim vs. counterclaim: Depends on who sues first
 Counterclaims:
o Compulsory: Arises out of the same transaction or occurrence. If D doesn’t raise a
compulsory counterclaim in the answer, it’s lost for good.
o Permissive: Allowed if they’re not asserted in the answer; D could bring a separate suit.
 Defenses: Almost always included (or else D might as well fork over money)
o 12(b) defenses
o Affirmative defenses: elements material to a claim; D has BoPl.
 Counterclaims vs. affirmative defenses
o Counterclaim: seeks relief against P
o Affirmative defense: asserted to defeat P’s claim, even if it’s true
 Admissions and denials
o Must admit or deny point by point. General denials OK only if Rule 11 (honest pleading)
is satisfied.
o 8(b)(3) lays out rules of general denial; D has to deny in good faith.
o Fuentes v. Tucker: effect of admissions
 Facts: On day of trial, D amends answer to admit liability in deaths of 2 kids in
auto accident; D doesn’t want jury to hear evidence about circumstances of
accident (he was drunk driving) when deciding on damages.
 Trial court let in the evidence anyway. CA.Sup.Ct. affirmed, saying evidence
admission was harmless error that didn’t prejudice the D (a dubious judgment).
 Two points:
 Matters admitted by D are omitted from case.
 Sometimes a good tactic to admit where not required by Rule 11.

I. Responding to the Answer

 Motion to strike: Rule 12(f)
o Challenges a defense’s legal sufficiency.

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 o You never lose the right to have court conclude that a defense is legally insufficient. But
you have to bring 12(f) motion within 20 days of pleading.
 But 12(h)(2) lets P argue failure to raise a defense – in motion for judgment on
the pleadings.
 Or P can argue at trial that defense hasn’t been made out.
 Replying to affirmative defenses
o Use a 12(f) motion
o Generally, no reply to D’s affirmative defenses is required, but court may order one (very
rare).
o If reply isn’t required, 8(b)(6) says an allegation is considered denied or avoided.
 Answering a counterclaim
o P is always required to assert any defenses to D’s counterclaim, in the answer to the
counterclaim.
o Same rules govern answer to counterclaim as govern answer to complaint.
o And same rules govern pre-answer motions in both cases.

Pleading practice – a summary

Claim [] Counterclaim []
Complaint [] Answer []
Rule 12 pre-answer motion [] Rule 12 pre-answer motion []
Answer [] Answer to the CClaim []
12(f) motion to strike [] R. 12(f) motion to strike []
[Rule 12(e) motion for more definite [Rule 12(e) motion, if court
statement, if court orders a reply] [] orders a reply] [Δ]
[Reply, if ordered by the court] [] [Reply, if ordered] [Δ]

III. Substantiality of Claims and Defenses

A. Introduction
 Merits: 12(b)(6) is the only pre-trial motion that goes to merits
 Pleadings vs. proof
o Trial goes beyond allegations and examines evidence of the issues.
o Pre-trial motions address BOPle; trial motions address BOPro and BOPer.
 Burdens of production/persuasion: Judge and jury look to the evidence:
o BOPro: Jury control device. Ensures party won’t be allowed to prevail on an element for
which it has burden unless reasonable jury could find for it.
 Pre-trial: summary judgment (SJ); based on affidavits
 Pre-verdict: judgment as a matter of law (JAMOL); formerly DV; vased on
witnesses.
 Post-verdict: renewed judgment as a matter of law (RJAMOL); formerly JNOV.
 If BOPro is met, jury decides BoPer.
o BOPer: If a party has met BOPro, jury has the final say.

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B. Evidence
 Role of evidence in Civ Pro
o Determining whether BOPro has been satisfied depends on evidence.
o Key in summary judgment motions and motions for JAMOL.
 Rules of evidence
o Main points
 Direct vs. indirect
 Hearsay and multiple hearsay
 Exam won’t ask about admissibility under hearsay rules. Task is to see if
type of hearsay allowed for summary judgment is the kind we’re dealing
with. And if evidence is direct or indirect.
o Admissibility
 Evidence is introduced in 2 basic forms:
 Witness testimony
 Documents
 Personal knowledge (FRE 602)
 Witness must have personal knowledge of matter in testimony.
 Must have a foundation for that testimony.
 Authentication (FRE 901(a) and (b)(1))
 Documents in evidence must be authenticated. Must support a finding
that the matter in question is what its proponent says.
 Simplest way of authenticating: Testimony by a witness with knowledge,
like the person who prepared it.
 Relevance (FRE 401)
 Testimony and documentary evidence are admissible only if relevant.
Relevant testimony has some tendency to make what you’re claiming
more or less true.
 Don’t assume that just because evidence is relevant, it’s admissible;
much of evidence law is about exclusion of relevant evidence.
 If it’s relevant: Is it direct or indirect (circumstantial) evidence?
o Direct: Eyewitness testimony about a fact in question
o Indirect: Trier of fact has to infer a fact.
 Chains of inferences can be longer. But if there’s direct
evidence, it’s just a question of believing the witness.
 Jury doesn’t have to credit direct evidence over indirect.
 Hearsay (FRE 801(c))
o May be relevant but not necessarily admissible.
o Statement must be made at trial or at a hearing in order for it not
to be hearsay.
o Exceptions to the Hearsay Rule
 Over 20 exceptions listed in FRE 803, 804, 807, as well
as in FRCP 56 (in SJ motion).

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  Admissions of a party-opponent are not hearsay (FRE
801(d)(2)(A), (D)).
 Multiple hearsay (FRE 805): Hearsay within hearsay
isn’t excluded if each part conforms with an exception to
the hearsay rule.
o Hearsay vs. personal knowledge: Don’t confuse.
o Impeachment
 Casts doubt on credibility of testifying witness.
 May demonstrate that a witness is biased or otherwise
can’t be trusted.
 May also call a witness to contradict 1st witness. Jury
determines who is more credible.

C. Summary Judgment (Rule 56)

 Differentiate from summary adjudication
o Summary adjudication: Resolves an issue less than the whole. (AKA motion for partial
summary judgment.)
o Summary judgment: Resolves everything.
 Moving party is entitled to SJ if a reasonable jury would be compelled to find for the moving
party. (Not warranted if jury could find for either party.)
 Moving party is entitled to SJ if there’s no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.
o What is a “genuine issue of material fact”?
 There’s a genuine issue if a reasonable jury could find for either party. No
genuine issue if a reasonable jury could find only for one.
 For P to win, all issues of material fact must be decided in P’s favor. D can win if
either issue is decided in D’s favor.
 Very closely tied to question of who would have BOPro at trial.
 Whether there’s a genuine issue of material fact on disputed elements of a claim
can be determined only by looking at evidence introduced by the parties.
o When is a movant entitled to “judgment as a matter of law”?
 Occurs in most cases when there is no genuine issue of material fact. But there
may be a dispute about the legal effect of those facts.
 In this situation, an SJ motion may be most economical vehicle for deciding a
case.
o In negligence cases
 Sometimes neither party may be entitled to SJ even if there are no genuine issues
of material fact. Reasonable jury could find for either party even on the
undisputed facts.
 We often let jury decide whether there’s been negligence, even if there’s no
disagreement between parties as to relevant facts.
 SJ materials
o Identified in Rule 56
 Pleadings: Can’t make issues genuine, but can determine what issues are material.

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  SJ motions “pierce the pleadings” – sees what actually is at issue in the
case; what the parties actually contest and can prove.
 Discovery and disclosure materials
 Interrogatory devices (Rule 33)
 Requests for admission (Rule 36)
 Requests for documents (Rule 34)
 Depositions (Rule 30/31)
o To subpoena a nonparty for deposition: Rule 45
 Affidavits: Preferable to get an affidavit from a friendly party instead of taking
deposition, which would make witness vulnerable to questions from other party.
 Rule 56 exceptions to the hearsay rule: Affidavit, interrogatory response, or
deposition transcript may all be out-of-court statements.
o 26(a)(1)(A)(i): Without awaiting a discovery request, party must provide to other parties
information on each individual likely to have discoverable information, along with
subjects of that information, that the disclosing party may use to supports its claims or
defenses, unless the use would be solely for impeachment.
 SJ: When moving party has BOPro at trial
o Conceptual framework
 Moving party must produce evidence that would compel a reasonable jury to find
for the movant. Jury isn’t compelled unless:
 Evidence, if believed, would require jury to find for that party
 And there’s no basis for disbelieving the evidence
o No basis for disbelieving testimony
o Inferences drawn from indirect evidence could only support the
party’s case.
 If movant meets burden, BOPro shifts to opposing (nonmoving) party.
 Nonmoving party then has to come up with affirmative evidence that
would let reasonable jury find for it.
 Exceedingly rare for BOPro to shift in this way.
o Movant’s indirect evidence often susceptible to other
interpretations.
o And there’s often a basis for questioning witness credibility.
o Motion papers in opposition of SJ: Nonmoving party can:
 Argue that movant’s evidence, even if believed, wouldn’t compel a reasonable
jury to find for the movant.
 Argue that there’s a basis for jury to disbelieve the testimony.
 Produce evidence that would allow reasonable jury to find for it.
 Moving party can then reply to opposition papers.
 15(a) only applies to pleadings, but courts typically allow parties to
amend motions as well.
o Credibility: Nonmoving party without BOPro at trial can defeat SJ motion by raising a
credibility issue about moving party’s evidence.
 Credibility of evidence is a matter for the jury, not the judge.
 So when credibility is open to question, SJ is inappropriate.
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 o Question of biased testimony
 Moving party w/ BOProT may rely on biased witness’ testimony if:
 Testimony is uncontradicted and otherwise unimpeached
 And nonmovant could easily rebut testimony but doesn’t.
 Limits the notion that if there’s a basis for disbelieving testimony, SJ should be
denied to a moving party with BOProT.
 SJ: When moving party does not have the initial BOProT
o Traditional approach: Negation
 Conceptual framework
 Nonmovant isn’t required to show anything before trial unless movant
submits affirmative evidence negating nonmovant’s claim or affirmative
defense.
 So a D moving for SJ could force P to demonstrate that P could satisfy its
BOProT only if D first produced evidence that, if believed, would compel
a reasonable jury to find for D.
 Doesn’t let D force P to “put up or shut up.”
o Motion papers in opposition of SJ: Nonmoving party could:
 Argue that movant’s evidence, if believed, wouldn’t compel a reasonable jury to
find for the movant.
 Produce evidence that would let a reasonable jury find for it.
o Adickes v. S.H. Kress & Co.
 Facts: White P is denied service because she ate with blacks; she leaves and is
arrested for vagrancy. She files 42 U.S.C. §1983 claim, alleging conspiracy
between D and local officials.
 Issue: D and police conspired to deny P equal protection rights. (P would have
BOProT.)
 D’s showing on SJ motion
 Deposition from store manager, affidavits from police, all saying there
was no conspiracy.
 Court says this wasn’t enough to negate P’s claim; presence of an officer
in store would be enough to infer conspiracy.
 P’s showing: She got lucky. If D had satisfied BOPro on SJ, P would have been
in serious trouble.
 Complaint asserted policeman’s presence, but pleadings aren’t evidence,
just assertions; this wouldn’t have helped P meet BOProT.
 P’s deposition statement that student saw officer is hearsay; should have
gotten deposition/affidavit from the student.
 Store employee’s unsworn statement: Traded a “hello greeting” with an
officer.
o Today, probably would be treated as admission by party-
opponent. But not at the time.
o At time, it wasn’t an admission, so it’s hearsay (because
unsworn); would need deposition or affidavit.

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  P’s affidavit denying situation in store was “explosive”: Casting doubt on
store manager’s credibility not enough; P would need affirmative
evidence. Affidavit wouldn’t have satisfied P’s BOProT.
 P could have moved for continuance under 56(f) to get affidavits,
depositions, other kinds of discovery.
o Would have made admissible for SJ the evidence that didn’t help
her.
o Courts have held that if evidence can be reduced to admissible
form, continuance should be granted, even if no request has been
made.
o Modern approach
 Celotex Corp. v. Catrett
 Facts: Catrett filed wrongful death suit alleging husband died from
exposure to asbestos products. (P has BOProT.)
 Issue on D’s motion for SJ: Was Mr. Catrett ever exposed?
o D says P produced no evidence that Mr. C was exposed.
o P’s response:
 Mr. C’s deposition in a workman’s comp proceeding
(sometimes admissible under FRE 804(b)(1), but not this
particular one).
 Letter from Hoff, potential witness
 Letter from insurer (hearsay)
 Procedural history:
o Trial court granted SJ. Appellate court reversed, saying D hadn’t
negated P’s claim (relying on Adickes).
o Supreme Court reversed appellate court, emphatically rejected
the view that a D has to negate P’s claim to make P show that she
could satisfy BOProT.
 Decision only relevant in cases where movant doesn’t have BOProT.

 The approach after Celotex

 Negation is sufficient but not necessary to satisfy the movant’s initial
responsibility.
 Inquiry may be limited to whether nonmovant with the BOProT can
satisfy its burden.
 Movant’s focus is on attacking evidence of nonmoving party with the
BOProT.
 Justifications
 Language of Rule 56: Weak; it doesn’t say affidavits required.
 Courts’ power to grant SJ sua sponte: Stronger; negation standard is
inconsistent with this party.

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  Proper role of SJ in notice pleading system: Most persuasive. But does
assumption that motions to dismiss are fairly useless survive Twombly
(which made them far more important)?
 Reconciling Adickes
 Court says Adickes would have been decided the same way under the
Celotex standard, but doesn’t explain why.
 How to make sense of this? It may be that even if Celotex standard were
used in Adickes, SJ would have been denied and a 56(f) continuance
granted to put in admissible form the evidence that would have satisfied
her BOPro on SJ and at trial.
 So what is required to satisfy initial responsibility for SJ?
 Different ways of reading Celotex:
o The accurate representation view: Moving party only has to
make an accurate representation that there’s no admissible
evidence in the record that would permit reasonable jury to find
for nonmoving party. Discovery not required.
o The duty to investigate view (White/Brennan): Discovery
required before a party can satisfy its initial responsibility.
o Rehnquist’s majority opinion is arguably consistent with both. It
may be that it requires identification of pleadings, depositions,
motions, answers to interrogatories and admissions if they point
to absence of a genuine issue of material fact.
 What’s the appropriate standard?
o On the spectrum: Negation  Duty to investigate  Accurate
representation  “put up or shut up”
o Which is better?
 From policy perspective: AR; focuses attention on
whether party with BOProT can satisfy its burden.
 DI may distract from key issue by focusing on whether
moving party conducted an adequate investigation; but it
meshes with an intuition against requiring a nonmoving
party to demonstrate before trial that it will be able to
satisfy its burden at trial.
 Tactical considerations
 Regardless of Celotex, good lawyer wants to preview and shake other
side’s evidence. Take thorough discovery and negate the nonmoving
party’s claim even if you don’t have to.
 Don’t just do what is required under the law; make the most persuasive
case possible.
 Celotex: The admissibility question and the “will-call” view
 It used to be clear that the nonmoving party, once put to its BOProT,
must produce evidence admissible for purposes of defeating SJ.
 Since Celotex, many courts follow the “will-call” view

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 o “Will call”: Nonmoving party can rely on inadmissible evidence
if:
 Evidence would be reducible to admissible form at trial
 And nonmovant can persuade court that evidence will in
fact be reduced to admissible evidence at trial.
o But despite language in Celotex, it’s questionable whether court
intended to relax evidentiary standard on an SJ motion.
 The two ambiguities in Celotex:

D. Possible approaches E. Movant’s initial F. Quality of evidence

responsibility that the nonmovant
must submit
G. “Defense-oriented” H. Accurate representation I. Admissible evidence
views of the record
J. Alternative approaches K. Duty to investigate L. “Will-call”
(White/Brennan)

 Anderson v. Liberty Lobby

 Issue: What’s the relevance of the standard of proof on an SJ motion?
 Holding: Whether a genuine issue of material facts exists must be judged
against the relevant standard of proof. Quantity and quality of evidence
required to meet BOPro goes up as SOP rises.
 Paradox: Anderson says it’s up to the jury to make credibility
determinations, weigh evidence, and draw legitimate inferences from
facts. But how can court decide whether required quantum and quality of
evidence has been produced without actually weighing the evidence? It
can’t.
o So court must mean that a judge should weigh evidence in the
same way a jury would – apply applicable standard of proof as to
whether party has met BOPer.
o Judge isn’t a super-juror; appropriate question is whether it
would be within the realm of rason for a jury to find for a party
with the BOProT.
 Anderson’s real meaning: Relationship between direct and indirect
evidence.
o Direct is almost always sufficient to satisfy BOProT. But
testimony may be ruled incredible as a matter of law (if
contradicted by indisputable physical facts or law of nature).
o Indirect: Anderson’s major impact
 Says judges will decide what inferences are permitted,
and jury will decide whether to draw those inferences.
 Seems to say that permissibility depends on the SOP; the
higer the SOP, the more persuasive the chain of
inferences must be.

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  Strength of indirect evidence on a material issue of fact
must be considered as whole to determine whether
BOProT has been met. (On exam: Analyze‼!)
 Credibility and the BOProT
 Most courts agree that disbelief of the other side’s witnesses usually isn’t
enough to satisfy a party’s BOProT.
 Reeves v. Sanderson Plumbing (2000): Leaves open the possibility that
the existence of a basis for concluding that a party testified dishonestly –
while insufficient in itself – may help the opposing party satisfy its
BOProT.
o But Woolley is skeptical that courts will read this as having any
effect on what’s needed to satisfy the BOProT.
 On exam: Remember:
o It’s tempting to say that for a party with BOProT, if there’s a
conflict of evidence, it’s a credibility issue and SJ has to be
denied.
o Question of whether a nonmoving party can satisfy BOProT has
nothing to do with credibility; it’s about whether there’s direct
evidence, or indirect evidence that is sufficiently persuasive.
o Credibility does play a role when the party moving for SJ has the
BOProT.

The Jury Trial

I) The Right to a Jury Trial

A. Introduction
 Jury trial hugely important in the American procedural system. In SJ: Availability of SJ is cabined
by problems with taking issues away that a jury could decide either way.
 Don’t confuse structural importance with frequency (jury trials are relatively rare). It’s the effect
of the jury on the system that’s important.
 Availability of a jury trial and unpredictability of juries also has an impact on things like
settlement value of a case.
 What is the jury’s proper role? Involves:
o Right to jury trial under the Constitution
o Allocation of decision-making authority (between judge and jury)
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B. Juries and the 7th Amendment
 Overview
o Two clauses:
 Right to jury in suits with amount in controversy (AIC) over $20.
 No re-examination of any fact tried by a jury.
th
o 7 Amendment hasn’t been incorporated against the states. Applies only to federal courts.
o It’s been interpreted in light of English law existing in 1791. Two types of courts existed
at the time:
 Common law courts – legal remedies (money damages, usually – restitution
would be equitable)
 Courts of equity – equitable remedies (injunctions)
 Curtis v. Loether
o Issue: In a suit seeking damages on a statutory claim, is it a suit “at common law” within
meaning of the 7th Amendment?
 Holding: Yes.
 Power of the jury
o Civil juries not as powerful as criminal juries, but still a lot of sway.
 If facts are to be decided by a jury, court can do no more than instruct the jury as
to the law and hope the jury obeys.
 If jury returns general verdict (the usual practice, but not in Texas), there’s no
way for court to even consider the jury’s reasoning.
o Professor Moore: “The general verdict, at times, achieves a triumph of justice over law.”
 Selecting the jury
o Somewhat conflicting goals: Achieve a panel that …
 Comprises a fair cross-section of community
 And is impartial

o Two kinds of challenges to be exercises against jurors:

 For cause: When a party can show juror is biased or in a category deemed to
biased as a matter of law (wife of the D, for example)
 Peremptory: Any reason (other than race or sex)
 Understanding the 7th Amendment
o Origins
 Founders viewed jury as protecting people against government abuses.
 But Framers provided that juries wouldn’t act as a check in matters of equity
(which had different rules of civil procedure)
o Federal courts and the FRCP
 Before the FRCP: Juries decided factual issues on law side; judges decided
factual issues on equity side.
 Equitable cleanup doctrine: If equity suit was filed, “incidental” legal claims
could be tried on the equity side to avoid separate suits.

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  FRCP came into effect in 1938  the merger of law and equity. Established one
set of rules for both legal and equitable suits.
o Beacon Theatres Inc. v. Westover
 Issue: Is a declaratory judgment a legal or equitable remedy?
 Facts: Fox pre-emptively sues Beacon seeking two things:
 Declaratory judgment that Fox wasn’t violating antitrust law (equitable
remedy)
 Injunction from litigation.
 Beacon filed counterclaim seeking damages (a legal remedy).
 Procedural history:
 District court ordered Fox’s claims (which it saw as equitable) to be tried
first to a judge, then Beacon’s counterclaim would be tried to a jury.
 Could have meant Beacon wouldn’t have a chance because of principles
of collateral estoppel. So Beacon sought writ of mandamus against
Westover (judge) to change the order. 9th Circuit denied request. SC
granted cert.
 Court’s reasoning:
 It’s an inverted lawsuit – evaluating Fox’s request for declaratory
judgment requires a look at what kind of claim Beacon could have
brought if Beacon had sued first. Because Beacon could have brought suit
for damages first, the declaratory judgment in Fox’s claim is legal, not
equitable.
 Court rejects traditional approach, says it doesn’t survive the merger of
law and equity in 1938 (FRCP took effect). The merger shrinks the scope
of equity.
 Preference for jury trial: When legal and equitable claims have facts in
common, the right to a jury attaches to those fact issues.
 In practice: Normally, legal and equitable claims are heard at the same time. Jury
decides common issues; judge handles remaining equitable issues.

o Dairy Queen v. Wood

 Facts: Demand for a financial accounting between two parties (viewed as
equitable – issues too complex for jury).
 Court’s holding: There’s an entitlement to a jury. Special master could be
appointed to assist jury. No need to confine accounting to the court. Procedural
innovations mean no need for equity to act.
 Makes clear that the Equitable Cleanup Doctrine is dead.
o Ross v. Bernhard
 Facts: Derivative suit by corporate shareholder. Common law didn’t recognize
right to sue on behalf of corporation; could only be done in equity. (Didn’t matter
if suit was for money damages; the issue was who actually sued the third party.)
 Court’s holding: What matters after the merger of law in equity is the claim
being asserted in the derivative suit.
 Derivative suit is just a procedural device to get into court.

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  Nature of the procedural device no longer determines the form.
o Parklane Hosiery Co. v. Shore
 Facts: SEC sued Parklane seeking an injunction – equitable claim, so judge made
all findings. Then investors sued Parklane for money damages. Both suits
involved same underlying facts. Parklane seeks to retry facts that had been
resolved under equitable claim, saying collateral estoppel shouldn’t apply.
 Issues:
 Does collateral estoppel apply when parties differ in next suit?
 Does the earlier equitable suit change need for jury determination of
factual issues?
 Court’s holding: Beacon rule (factual issues common to legal and equitable
claims must be tried to a jury) applies only if the equitable and legal claims are
brought in the same proceeding.
o Lytle v. Household Manufacturing
 Facts: P sued under § 1981 (civil rights statute providing money damages remedy
– legal) and under Title VII (providing back-pay remedy – equitable)
 Procedural history: District judge found that § 1981 did not provide a legal
remedy (he was wrong!), and essentially dismissed that claim; then used factual
finding to enter judgment against P on Title VII claim.
 Issue: Should judge’s factual findings on Title VII claim be given collateral
estoppel effect with respect to the § 1981 claim?
 Court’s holding: If a judge erroneously denies a party a jury trial on the common
issues, the party isn’t bound by the judge’s findings.
o Beacon and state courts: Beacon rule is the minority approach in the states.

II) Judge and Jury

A. Motions for Judgment as a Matter of Law – vs SJ

 Standards
o Essentially the same for JML and SJ. But there’s a practical difference.
 Fact that you don’t get SJ doesn’t mean you can’t get JML, even if evidence is
identical.
 Latest revision to Rule 56(c) clarifies that SJ is within court’s discretion; may be
appropriate not to grant it even though the standard arguably has been met.
o The key distinction: SJ motions are on the papers; JML motions are based on the evidence
at trial. In JML, don’t have to worry about:
 Whether party with BoProT can meet its burden.
 Whether evidence will be admissible – it either was or wasn’t.

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B. Post-verdict motions: Renewed JML and new trial motions
 Either motion has to be filed within 10 days of entry of judgment.
 RJML motion may be brought only if JML motion made pre-verdict.
o Pros/cons
 Con: JML terminates trial, so jury is excused without a verdict. If appellate court
concludes JML was improper, have to have a whole new trial.
 Pro: If it’s crystal clear that JML is proper, may save some time.
 New trial motions (NT): Broader scope than JML
o NT based on errors/irregularities in trial process: Governed by Rule 61 (“harmless error”
rule)
o NT based on weight of the evidence.
 Less drastic than JML; you just have another jury weigh in.
 Standard in federal rules: No NT based on insufficient evidence unless verdict
goes against “great weight of the evidence.”
o NT based on lack of evidentiary support for damages
 If court thinks damages were excessive, it can either reduce the amount
(remittitur) or grant NT. Verdict winner can accept either.
 If damages were inadequate: Court can order NT.
o NT motions by verdict winner: Attacks things like errors or irregularities in the trial, not
sufficiency of evidence.
 Tanner v. United States and Rule 606(b)
o Facts: Jurors getting drunk, high, etc.
o FRE 606(b): Inquiry of validity of verdict or indictment: juror can’t testify on:
 Any matter or statement occurring during deliberation
 Effect of anything on juror’s mind/emotions as influencing assent/dissent.
 Anything concerning juror’s mental processes.
 Exceptions: outside influence, newspaper articles, mistakes; and the rule doesn’t
apply to an inquiry before a verdict.
o Court’s holding: Reads provisions broadly to exclude any evidence about anything that
happened in the trial, once a verdict has been rendered.
 Court’s policy considerations, and some critiques:
 Frankness in deliberations: How would it be affected by allowing
testimony as to conduct during trial?
 Avoid harassment: But other ways to avoid this, like forbidding counsel
from contacting jurors.
 Community trust: But hiding problems worse in the long run.
 Finality of verdicts: Does hold some water.
 Court focused on argument that drugs/alcohol aren’t outside influences under the
meaning of 606(b)
 But this doesn’t seem to be a reading required by text of 606(b).
 Question remains: What’s the basis for excluding the evidence?
o A defense of Rule 606(b)
 Doubtful that Tanner court properly weighed the matters.
 But that’s not to say that 606(b) doesn’t serve functions.
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  Maintains privacy of juror deliberations; keeps jury independent
 Allows jury, within limits, to ignore court’s instructions.
 Even if court learns of irregularities during deliberation or jury misconduct
before verdict, court can order a new trial.

Choosing the Court and Law

I) Introduction

A. Four Requirements for Bringing a Case in a Particular Court:

 Subject matter jurisdiction (SMJ): Court’s power to hear a certain type of case
 Territorial/personal jurisdiction (TJ): Court’s power to make a party appear.
 Venue: Provides more precise geographical location for suit than TJ
 Forum non conveniens (FNC): If federal court isn’t best forum, then dismiss.
B. Choice of law (federal or state), along with other considerations (convenience, characteristics of jury,
etc.) may determine what course of action a lawyer will choose.

II) Subject Matter Jurisdiction

A. Introduction: The Relationship Between Federal and State SMJ

 Every state has court of general jurisdiction that can hear federal or state claims.
 Federal courts have limited jurisdiction; can only hear cases where jurisdiction has been conferred
by the Constitution and by statute.

B. Federal SMJ
 Three bases:
o General federal question jurisdiction (“arising under” jurisdiction)
o Diversity jurisdiction
o Supplemental jurisdiction
 Also consider when a case that could be brought in federal court is removed from state court to
federal court.

C. General Federal Question Jurisdiction

 Introduction
o Constitutional basis: Article III, § 2
 Authorizes Congress to grant jurisdiction to federal courts in types of cases
identified in first paragraph of § 2.
 Suit must “arise under laws or treaties of the United States”
 Osborn v. Bank of U.S.: Read broadly, stands for the proposition that a
case “arises under” within meaning of §2 whenever a question of federal
law might arise in the case.
o Statutory basis: 28 U.S.C. § 1331 (narrower than constitutional basis)

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  Grants original jurisdiction over all civil actions “arising under” the Constitution,
laws or treaties of the U.S.
 Scope of “arising under” here is limited in two major ways:
 Fed. question must appear on face of a well-pleaded complaint.
o Federal affirmative defense to a claim created by state law isn’t a
basis for satisfying the WPC rule.
 Even then, in a certain type of case it’s likely there’s no statutory “arising
under” jurisdiction
o Louisville & Nashville RR Co. v. Mottley
 Facts: Ps injured by RR’s negligence. Compensation was free transportation for
life (contractual). Later, a federal statute bans free rail passes, so RR refused to
renew Ps’ pass. Ps seek specific performance. Railroad defends on federal issue.
 Ps won in circuit court. SC remanded because of lack of SMJ, and gave
instructions to dismiss.
 Court itself raised the issue of SMJ. Case makes clear that if SMJ comes to
court’s attention, court must dismiss even if the issue wasn’t raised by the parties
or even on appeal, as here.
 No SMJ because Ps were anticipating a federal question defense.
 SC’s jurisdiction: § 1257(a): SC has appellate jurisdiction whenever an issue of
federal law might be dispositive of the case.
o Federal question jurisdiction over hybrid claims
 Federal law is incorporated into a state-created claim when:
 State law created the cause of action
 And liability under state law is determined by applying fed. law
 Relevant state law usually doesn’t expressly refer to federal law.
 Hybrid claims vs. “legislative plagiarism”: A state supreme court is the final
authority on meaning of legislation using same words as federal law.
o Federal question jurisdiction over declaratory judgment claims
 In an “inverted lawsuit”: court will consider what D’s complaint would have
looked like if P hadn’t anticipated the suit.
 So no federal question jurisdiction in this sense unless D’s case (as a potential P)
would have contained a federal question.
 Removal based on a federal question
o Introduction: §§ 1441(a), (b), 1446(a), (b), (d): Actions removable generally
 Removal OK if case could have been brought under §1331. All Ds have to
consent to removal. (§ 1441(a))
 Notice of removal must be filed within 30 days after D has received service of
summons. (§ 1446(b))
 Notice must contain short and plain statement of grounds for removal (§ 1446(a)).
 If right papers are filed in fed./state court, state court is stripped of jurisdiction (§
1446(d))
o Well-pleaded complaint rule and the complete pre-emption doctrine
 WPC applies to removal; P usually can determine where suit is triable based on
whether claim relies solely on state law ground.

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  Complete pre-emption doctrine is an exception to WPC.
 Pre-emption: Federal law supersedes state law.
 State law is completely pre-empted only when Congress creates an
exclusive federal remedy that displaces state law.
 Distinguish from exclusive jurisdiction: If D fails to remove in a situation of
complete pre-emption, but there’s no exclusive jurisdiction, a state court can
adjudicate the claim using federal law.

D. Diversity Jurisdiction (DJ) and Removal Based on DJ

 Ordinary Litigation [Art. III § 2, 28 U.S.C. §§ 1332(a)(1)-(3), 1332(c), 1441(b); Rule 21]
 Need complete diversity on both sides of the “v.” (Strawbridge)
 Mas v. Perry
o Facts: Ps (husband = citizen of France; wife = citizen of MS) sue landlord D (citizen of
LA).
o D raises objection to DJ. 5th Circuit analyzes Ps’ statuses separately:
 Husband: OK under §1332(a)(2): Jurisdiction between citizens of a state and
citizens of a foreign state. (Today, husband would be deemed a citizen of LA;
Congress amended the statute.)
 Wife: OK under §1332(a)(1): Jurisdiction between citizens of different states.
o Would make more sense to analyze under §1332(a)(3): Jurisdiction between citizens of
different states and in which citizens of a foreign state are additional parties.
 But: If landlord was a citizen of France: Still OK under (a)(3). Complete diversity
required only between citizens of U.S. states.
 DJ and Rule 21: Court can drop a nondiverse party instead of dismissing the entire claim.
 The amount-in-controversy requirement
o Under 1332(a)(2):
 AIC minimum = $75,000
 Has been read to require claims of each P against each D meet the AIC
requirement.

o Aggregation rules
 All claims against a party can be aggregated to satisfy AIC requirement.
(Woolley: A ridiculous fork in the law.)
 Example: A sues B for $50K contract claim and $30K tort claim. AIC
requirement is satisfied.
o The legal certainty test
 In Mas: D couldn’t show to a legal certainty that either husband or wife would be
unable to recover more than AIC minimum on their claim. So AIC was satisfied.
 Court will credit P in good faith.
 Test easily satisfied when amount is capped under AIC minimum.
 Removal
o Mases removed under §1332. If Ps had filed in state court, could D remove?
 No. §1441(b): D is a citizen of state where suit was filed.

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 o §1446: One-year deadline for removal in a diversity case if initial pleading wasn’t
removable.
 Citizenship of artificial entities
o Person = citizen of state where domiciled
o Corporation = citizen both of state where it’s incorporated and state where it has its
principal place of business.
o Unincorporated entities = citizen of all states where members are citizens.
 DJ and removal in class-action litigation
o Normally
 Only named Ps had to be completely diverse from Ds (Supreme Tribe of Ben-Hur
v. Cauble).
 But each member of the class had to satisfy AIC requirement (Zahn v.
International Paper).
o The Class Action Fairness Act (§§ 1332(d), 1453) of 2005
 Provides alternative basis for DJ over class suits.
 §1332(d) authorizes two major changes: DJ is OK if:
o There’s minimal diversity instead of complete diversity (only one
class member has to be diverse from one D)
o Individual claims of less than $75K are OK as long as the
aggregate sum exceeds $5M.
 But you have to have more than 100 class members to take advantage of
§1332(d).
 And §1453 makes it easier to remove suits in three ways:
 1-year limitation in §1446(b) doesn’t apply
 No requirement for citizenship of Ds in state where suit brought
 Consent of all Ds for removal not required.

E. Supplemental Jurisdiction – § 1367

 Introduction
o Court can assert jurisdiction over a claim that’s closely linked to a claim over which it has
FQJ or DJ.
o In 1990, Congress passed statute codifying SuppJ: §1367.
 United Mine Workers v. Gibbs
o Facts: P (Gibbs) filed two claims – one based on Labor Management Relations Act, the
other on TN common law.
o Issue: Can federal court exercise SuppJ over the state common law claim?
 DJ not possible because some members of UMW (unincorporated group) were
from TN, as was P.
 So case would have to fall under FQJ.

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 o Holding: Court can act if there’s FQJ and a common nucleus of operative fact with the
state claim.
o Constitutional power
 Supplemental claim must be part of same case or controversy over which court
already has jurisdiction.
 Osborn said there’s jurisdiction if there’s a federal ingredient.
o The freestanding claim test
 Can be no SuppJ in absence of a freestanding claim with “arising under” or
diversity jurisdiction.
 Federal claim has sufficient substance if it’s not frivolous – an attempt to get out
of state court and into federal court.
 Substance requirement doesn’t apply if diversity is the basis.
o “Common nucleus of operative fact”
 Test is satisfied when there’s substantial overlap among the federal and state
claims.
 But overlap isn’t required; the trend is toward requiring a logical relationship.
o The logical relationship test: Do fairness and considerations of convenience and judicial
economy indicate that it makes sense to try claims together?
o Statutory basis for SuppJ: Before 1990, courts generally inferred authority from §§ 1331
and 1332.
o Discretion
 Two-part inquiry: Judicial power and judicial discretion.
 Gibbs court insists courts have discretion not to exercise SuppJ.
 Ask: Even if claims are sufficiently related as part of one constitutional case, are
there other considerations that would warrant not exercising jurisdiction over the
state-law claims?
 Factors for a court to consider: § 1367(c)
 Owen Equipment & Erection Co. v. Kroger
o Facts: Kroger (citizen of Iowa) sued OPPD (of Nebraska) over fatal electrocution. OPPD
impleaded Owen as a third party. Kroger amended complaint to add Owen.
o Procedural history: Kroger’s claim against OPPD is dismissed; K’s claim against Owen
proceeds. But it’s discovered that Owen is a citizen both of Nebraska and Iowa –
destroying DJ.
o Issue: Is there SuppJ, since K waited to implead Owen until OPPD had?
 K in a difficult position; may have to re-litigate issues in state court.
 But Iowa SOL may have expired while K was in federal court.
o Majority’s analysis
 Ps can’t avoid requirement of complete diversity (since no FQJ).
 P had a chance to have all claims heard – in state court.
 Dismissal of K’s claim against OPPD didn’t provide an alternative basis for the
holding. Power to exercise SuppJ didn’t disappear, but Gibbs tells us that if
federal claims are dismissed, the claim that gave an independent basis for SMJ
has disappeared, and the court should exercise discretion and not hear the state
claim.

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 o “Context” rationale
 Court says context didn’t justify SuppJ over Kroger’s claim.
 But if Owen filed claim against Kroger:
 That claim would be procedurally proper under Rule 14, and
jurisdictionally proper for SuppJ purposes – because Owen should be
able to resolve all its rights arising from the incident in one lawsuit.
 Suggests that “context” rationale will always be available to a D.
 If Kroger had a compulsory counterclaim against Owen:
 K could have brought entire suit in state court. But she didn’t choose to
have Owen file claim against her in federal court.
 So in this situation, SuppJ appropriate over the counterclaim.
 But: Don’t have to read the case as authorizing such a claim.
o Two readings of Kroger: Claims by Ps
 Discussion of “context” just provides justification for treating Ds and other
parties different from Ps for purposes of SuppJ.
 Or maybe court wasn’t thinking about a reactive suit by Kroger against Owen; it
was thinking about Kroger vs. OPPD.
 The SuppJ statute – 28 U.S.C. § 1367
o Subdivision (a):
 Gives federal courts power of SuppJ within limits of the Constitution, except as
provided in (b) or (c) or another federal statute, provided the court has original
jurisdiction over a civil action.
 Essentially, there’s SuppJ over any other claims part of the same constitutional
case.
 Also applies if court has DJ – diversity suit is a civil action.
o Subdivision (b):
 Limits only SuppJ over claims by Ps and persons proposed to be joined as Ps.
 The text: “In any civil action of which the district courts have original jurisdiction
founded solely on §1332 of this title, the district courts shall not have
supplemental jurisdiction under subsection (a):
 over claims by plaintiffs against persons made parties under Rule 14, 19,
20, or 24 of the Federal Rules of Civil Procedure, or
 over claims by persons proposed to be joined as plaintiffs under Rule 19
of such rules, or seeking to intervene as plaintiffs under Rule 24 of such
rules,
 when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332.”
 The meaning of “civil action” under § 1332
o Under §1331 (FQJ), it’s clear. More difficult under §1332 (DJ). Two possible ways of
understanding it:
 The “single claim” approach
 Are diversity and AIC requirements met for at least one claim? If so,
court may exercise SuppJ over other claims in the suit if authorized by
law to do so.
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  So complete diversity and AIC requirements are really limits imposed by
§1332 on SuppJ. It’s §1367(b) that enforces them.
 The “whole complaint” approach
 Complete diversity and AIC are required across the board.
 In this approach, you never get to §1367(b) in Kroger because of the lack
of complete diversity.
 Huge consequences in the differences between the approaches
 Under whole complaint approach, §1367(b) is a lot less important.
 That matters because there are gaps in §1367(b), which was sloppily
drafted. Single claim approach gives §1367(b) heightened significance.
 Gaps in §1367(b)
 Gap in Rule 20 (permissive joinder):
o Two Ps join in one suit against one D. One P meets diversity and
AIC requirements; other doesn’t.
 Under whole complaint approach: No SuppJ because
diversity and AIC requirements aren’t met by all Ps.
 Under single claim approach: No bar by § 1367, so
there’s DJ over first P’s claim and SuppJ over second P’s
claim.
o One P sues two Ds in the same suit. P is diverse from one D and
that claim satisfies AIC, but P is not diverse from other D and
that claim doesn’t satisfy AIC.
 Under whole complaint approach: Clearly no SuppJ.
 Under single claim approach: No SuppJ, because there’s
a D joined under Rule 20 – conflicts with §1367(b).
 Gap in Rule 23 (class actions):
o Named P sues single D on behalf of absent class members.
Aggregate AIC is less than $5M. Named P has a claim for more
than $75K, but none of the absent class members does.
 Since AIC is less than $5M, P’s main hope is §1332(a).
 Under whole complaint approach: No SuppJ. There’s
diversity, but every class member has to meet AIC
requirement. So no original jurisdiction under §1332(a).
 Under single claim approach: Named P meets diversity
and AIC requirements. Class members are part of same
constitutional case. So there will be SuppJ unless there’s
a bar by §1367(b); but that’s no problem, since it’s
claims by class members against a single D, not against
persons made parties under Rules 14, 19, 20 or 24.
o 1367(b) doesn’t mention Rule 23 at all. But note that the gap is
limited to single Ds; if there were multiple Ds, §1367(b) would
apply.
 Allapattah v. Exxon Mobil
o Facts: two suits:

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  Exxon: All named Ps in class diverse, but not all satisfy AIC.
 Star-Kist: Girl’s claim satisfies AIC, but family’s claim doesn’t.
o Issue: Is there jurisdiction even though AIC requirement from §1332(a) isn’t satisfied?
o Court’s holding: Yes
 SC uses single claim approach toward AIC requirement
 Uses whole complaint approach toward diversity requirement
o Reasoning: Dismissal of legislative history
 Court argues (incredibly) that §1367(b) isn’t ambiguous, but says congressional
intent is unclear.
 Woolley: Best reading of intent suggests that Congress didn’t intend to change
the complete diversity or AIC requirements. It certainly didn’t want to create any
single-D gaps. So the whole complaint approach is much closer to what Congress
actually intended.
 SuppJ and removal
o §1441 (removal statute) has been read to require removal of entire cases. So there has to
be jurisdiction over every claim in the state court action before that action/case can be
removed.
o If P doesn’t file to remand, court should remand sua sponte.
o If complete diversity is lacking in state court and there’s not another reason for removal
(i.e., FQJ), you can’t remove.
o If there’s complete diversity and AIC requirement is met in at least one claim, there’s
SuppJ unless barred by §1367(b).
o Because FRCP don’t apply to state courts, §1367(b) shouldn’t bar any claim asserted
while in state court. But claims asserted after removal are subject to limitations of
§1367(b).

III) Territorial Jurisdiction and Choice of Law

A. Introduction: TJ
 SMJ is about authority to hear certain kinds of cases.
 Territorial jurisdiction (TJ) involves authority to adjudicate the rights of person, including the
rights of a person in a thing.

B. TJ in the Federal Courts—Rule 4(k)(1)(A)

 Serving a summons or filing a waiver of service establishes TJ over a D who is subject to the
jurisdiction in the state where the district court is located.
 Federal courts have same TJ as the states that have general SMJ.
 Two-step inquiry under the rule:
o Does state law authorize the exercise of TJ?
o Would assertion of TJ by a state court be consistent with 14 th Amendment’s Due Process
Clause?
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 (If answer to both is yes, TJ is OK under Rule 4(k)(1)(A).)

C. Pennoyer v. Neff
 Facts: Involves 2 separate suits
o Mitchell v. Neff: Mitchell sued for attorney’s fees and won a default judgment; Neff
never showed up.
 N’s land was auctioned off; proceeds go first to satisfy N’s debt to M, then the
rest of land goes to M.
 M sells land to Pennoyer. N sues in federal court.
o N v. P
 P defends, saying he had a sheriff’s deed obtained as result of judgment in M v.
N. N says deed was improperly obtained because there was improper service of
the first suit and state court lacked power to render a binding judgment against N.
 This is a “collateral attack” on the first judgment – judgment in the first suit is
contested in a separate suit instead of an appeal.
 Collateral attack: the basics (Art. IV, §1; 28 U.S.C. §1738)
o Generally not permitted; usually have to appeal, not bring a second action.
 Exception: Party who didn’t appear can attack if court didn’t have TJ.
 Appearance = participation (i.e., filing a motion to dismiss for lack of TJ)
o It’s risky: If you take a default judgment but are wrong about whether court had TJ, you
give up the right to defend on the merits. But if you don’t know about the first action, you
have no choice but to mount a collateral attack.
 The Pennoyer Theory of Jurisdiction
o Court applies two principles of 19th-century public international law:
 Each state has jurisdiction over persons and property within it.
 State can’t exercise jurisdiction over a nonresident outside the state.
 Presence is the key element.
o Types of jurisdiction
 In personam: Jurisdiction over the body of the person.
 Two ways to accomplish it:
o Service of process on an individual within the state
 If D happens to be in state = “transient jurisdiction”
o Consent (including a “voluntary appearance”)
 Agreeing to have disputes litigated in a certain forum
 Arranging to have a lawyer in the state appear on behalf
 If D “appears” without properly asserting a personal
jurisdiction defense, there’s a problem.
 Quasi in rem: Court’s authority to render judgment up to the value of D’s
property within court’s power.
o Can’t assert it unless property has been attached (legally seized)
at the outset of the litigation.
o D can make a limited appearance to defend property.
o Attachment has due process limitations.
 Pennoyer’s exceptions to its theory of jurisdiction
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  Cases affecting the personal status of resident Ps (i.e., divorce)
 Out-of-state corporations can be required to appoint an agent for service
of process (responds to an important jurisdictional problem)
 Achievement of Pennoyer
o Brings principles of international law into the Due Process Clause
 A judgment obtained in violation of these principles wasn’t entitled to full faith
and credit outside the state, but also not within the state as a matter of due
process.
 State could exercise jurisdiction within its borders as it saw fit; only limitation is
when you had to go out of state to enforce it.
o Much of the case has been overruled, but it embedded TJ in the DP Clause.
 Defects of Pennoyer
o Problems applying the basic principle increased over time (i.e., out-of-state motorists;
early statutes required consent to TJ).
o Fatal flaw: With corporations, relying on consent and presence.
 It’s not really consent if a corporation merely does business in state.
 And it’s not clear that the state has the power to prevent out-of-state corporations
from doing business within the state.

D. International Shoe v. Washington

 Intro:
o Narrow view: IS v. W merely handles the fact that Pennoyer’s requirements of consent
and presence don’t work well when evaluating corporations.
 Provides an additional basis for TJ: “minimum contacts”
o Broader view: It redefines thrust of the DP clause from presence to fairness.
 Fairness isn’t always present if you use TJ on basis of presence within a state
(i.e., person served with process on airplane).
 Facts: International Shoe, headquartered in St. Louis, has a few salesman in Washington state. IS
didn’t pay into WA employment fund and was sued. IS argues its activities weren’t enough to
manifest presence in WA.
 Holding: SC finds that there was TJ.
o “Due process requires only … substantial justice.”
o What’s at stake: Whether the suit offends traditional notions of fair play and substantial
justice.
 Shaffer v. Heitner – broader view. Said all assertions of state court jurisdiction must be evaluated
according to standards set forth by International Shoe and its progeny. Presence of property, by
itself, doesn’t allow TJ.
o Two levels of analysis:
 Statutory prong (maybe, but not often, common law)
 Constitutional prong
o Presence (Pennoyer) vs. minimum contacts (IS)
 Presence: Makes no difference whether the cause of action has any relationship to
the state at all.

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  Minimum contacts: State’s lack of connection to a claim may be fatal to an MC
analysis.
o One reading of Shaffer: If you have MC, you satisfy constitutional prong. Then the reach
of the long-arm statute matters less.
 Burnham v. Superior Court
o SC unanimously affirmed constitutionality of transient (“tag”) jurisdiction.
o Court holds that service of process on individual within state is sufficient to grant state
general jurisdiction over the individual.
o Scalia opinion (4 justices) = traditional view
 Transient jurisdiction OK because it was accepted at time of the 14 th Amendment.
 Contacts are only one basis for territorial jurisdiction.
o Brennan opinion (4 justices) = service of process is sufficient, but fairness is key.
Transient jurisdiction consistent with fairness and concepts underlining the minimum
contacts test. Might be open to strike down worst examples of exercising transient
jurisdiction (i.e., on plane).
o Stevens agrees with both.
 Summary: The law today: Seizure of property usually doesn’t satisfy the territorial prong of
jurisdiction; transient jurisdiction is a sufficient basis for exercising territorial jurisdiction.

E. Minimum Contacts—A Framework for Analysis

 Two key questions:
o What contacts count? Only D’s purposeful contacts.
o Do the contacts that count justify TJ?
 Whether DP is satisfied depends on quality and nature of activity.
 Kulko: The test isn’t mechanical; facts of each case must be weighed to determine
whether the requisite affiliating circumstances are present. Few answers are black
and white; “the greys are dominant and even among them the shades will be
innumerable.”
 General jurisdiction (GJ)
o Intro
 GJ = TJ over the D that doesn’t depend on whether D’s claim has a relationship
to the forum.
 Pre-International Shoe: All jurisdiction was GJ, theoretically. (If persons or
property were within state, state could authorize TJ.)
 Shoe complicates matters – says jurisdiction sometimes may depend on
connection of the claim to the forum state.
o GJ in a minimum contacts analysis
 Points of agreement: Who has GJ?
 State in which individual is domiciled.
 States in which corporation has principal places of business.
 Harder questions: Less pervasive connections with forum
 Do corporations with less substantial continuous and systematic contacts
qualify for jurisdiction?

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 o Likely depends on fairness generally requires a relationship
between clami and forum
o How pervasive or significant are the contacts?
 Case law is all over the place, but courts increasingly lower the bar for
the exercise of GJ.
 Special jurisdiction (SpecJ)
o Intro
 SpecJ = requisite relationship exists between the D, the forum and the cause of
action.
 But there’s disagreement over what kind of relationship is required.
o The “substantive relevance” test – strictest test for SpecJ
 Requires that the D’s purposeful contacts with the forum be substantively
relevant to the dispute.
 If so, do the relevant contacts justify assertion of jurisdiction with respect to the
claim being asserted by the P?
 Generally, if the test is satisfied, there’s SpecJ.
 Problem is that the SR test may be underinclusive. May be no substantive
relevance in a case, but state may have a legitimate interest in providing a forum
for those injured as a result of something else within the state.
o The “but for” test
 Is there a “but for” relationship between cause of action and forum?
 Can be overinclusive. The mere fact that there’s a but-for relationship isn’t
enough to justify SpecJ; necessary, not sufficient.
 Focus on whether the nature and quality justify assertion of TJ (a judgment call).
o A “Jurisdictional Sliding Scale”
 Why must TJ be specific or general? Maybe court should be able to weigh related
and unrelated contacts that D has with forum.
 As quantity and quality of D’s contacts increase, you could allow a weaker
connection between P’s claim and those contacts, and vice versa.
 Camelback: Rare case to specifically endorse sliding scale.
 SC hasn’t weighed in. Woolley: Cases don’t need to be read as imposing a rigid
dichotomy on specific and general jurisdiction.
 World-Wide Volkswagen v. Woodson
o Facts: Family bought car in NY; while moving to AZ, there’s an accident in OK, and fire
causes severe injuries. Family alleges product defect and sues:
 Audi (manufacturer)
 Volkswagen of America (national distributor)
 World-Wide Volkswagen (regional distributor – NY, NJ, CT)
 Seaway (dealership in NY)
o Family members are NY citizens; they want WWV and Seaway in the suit to destroy
complete diversity and keep suit in OK court, to prevent removal.
o 2 questions:
 Does state law allow exercise of TJ?
 Would exercise of TJ here violate the 14th Amendment’s Due Process clause?

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 o Case was removed to federal court and Ds prevailed.
 But there’s no way Ds’ strategy would work today. Currently, under §1446(b),
case may not be removed on basis of §1332 jurisdiction more than 1 year after
commencement of the action.
o Key issues: Purposeful contacts and purposeful availment
 Ps argued purposeful contacts – it was foreseeable that car sold in NY might
cause injury. (SC: Foreseeability isn’t enough.)
 Court requires purposeful availment – focus is on whether the D purposefully
availed itself of the privilege of conducting activities within the forum state, so
that it has clear notice that it’s subject to suit there. (SC: No contacts that count
between Ds and OK.)
o Other theories
 A “reasonable anticipation” test?
 Courts sometimes focus on whether Ds’ conduct and connection to a state
should make him reasonably anticipate being haled into court there.
 But this doesn’t do much work. Purposeful availment is the test.
 Stream of commerce theory
 Provides just one basis for concluding that a D established purposeful
contacts of such a nature and quality as to justify the exercise of TJ.
 Relevant only if a D delivers goods into a state through a chain of
distribution.
 Court seems to endorse this theory, but it doesn’t do enough to justify TJ
in this case. Need purposeful availment.
 Similarity test – for courts sympathetic to the “but for” test
 Another way of finding specific jurisdiction. If P’s claim easily could
have arisen out of D’s contacts in a state, D has to defend there. But
fairness notion needs to do a lot of work to prevent ridiculous claims.
 Example: Audi and Volkswagen of America sell cars in OK. Even though
Ps’ car was sold in NY, it’s likely that Audi and Volkswagen should be
prepared to defend a product-liability case in OK.
o Could work if Audi and Volkswagen of America had objected to
TJ; but they didn’t.
o If they had: Stream of commerce theory helps establish
purposeful contacts. But is there the right relationship for specific
jurisdiction?
 Substantive relevance: No, since car was sold in NY and
wasn’t manufactured or designed in OK.
 But-for: No, since none of Ds’ actions in OK could be
viewed as a but-for cause of the accident.
 Helps solve problem of underinclusiveness. Can solve problem of the
“but for” test’s overinclusiveness by asking the second question in
contacts analysis: Whether relevant contacts justify assertion of
jurisdiction over the D with respect to the claim.
 Asahi Metal v. Superior Court

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o Facts: Tire explosion causes motorcycle accident. Cyclist sues tire-tube maker Cheng
Shin (from Taiwan), which brings valve-maker Asahi (from Japan) into the case, seeking
indemnification. Cyclist settles with Cheng Shin; only claim left is Cheng Shin v. Asahi.
o Issues:
 Were there purposeful contacts?
 Was there purposeful availment?
o Long-arm statutes: allow state jurisdiction over persons not served in state. Three types:
 Specifically authorizing jurisdiction to the full limits of the Constitution (CA)
 Drafted and interpreted more narrowly than Constitution (NY)
 Drafted more narrowly, but interpreted to permit jurisdiction when that’s
constitutional (TX).
o The stream of commerce issue
 CA sought to exercise jurisdiction over Asahi based on delivery of valves to CA
by stream of commerce.
 O’Connor 4: Placing item in the stream isn’t enough to show purposeful
availment. Must be additional conduct showing purpose or intent to serve the
market in the forum state.
 Brennan 4: When a D benefits, placing goods into the stream with awareness that
goods would end up in forum state is enough to to establish purposeful minimum
contacts with the forum.
 Stevens: Rejects O’Connor’s firm line between mere awareness and purposeful
availment. Existence of purposeful availment is affected by
volume/value/hazardous nature of the component.
o Relevance of Asahi – the minimum contacts prong
 Not limited to stream of commerce cases.
 Is O’Connor right that serving a market isn’t enough to establish purposeful
availment?
 Or is Brennan right that awareness is sufficient when there are systematic and
continuous contacts from which D derives a benefit?
o Asahi—the reasonableness prong
 Justices split 4-4-1 over minimum contacts prong. But it was 8-1 on
reasonableness prong – that it was unreasonable for CA to exercise jurisdiction
over Cheng Shin’s action against Asahi.
 Purposeful availment requirement protects individuals, not states, from exercise
of power by states that lack an appropriate connection.
 Appropriate connection is distinct from convenience.
 The state suit is filed in matters because of choice-of-law rules.
 Reasonableness prong asks whether the assertion of TJ would comport with fair
play and substantial justice, which requires a balancing test.
 Development of reasonableness factors hinted at in World-Wide Volkswagen:
 Burden of defending in the forum VS:
 Forum’s interest in adjudicating the dispute
 P’s interest in obtaining convenient and effective relief

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  Interstate judicial system’s interest in obtaining the most efficient
resolution of the controversy.
 Shared interest of the several states in furthering substantive social
policies.
 Application of the reasonableness prong
 Focus is on whether the inconvenience or burden of defending in the
forum is so disproportionate in light of the other interests at stake that the
Ds’ due process rights would be violated if the forum asserts jurisdiction.
 Court in Burger King v. Rudzewicz indicated that it’s very difficult to
defeat jurisdiction under this prong and that a D should rarely be able to
do so.
 If P is able to satisfy the minimum contacts prong, the burden shifts to the
D to demonstrate that jurisdiction would be unreasonable.
 The two tests are separate. Just because the minimum contacts test is satisfied
doesn’t mean the reasonable test will be satisfied.
o General jurisdiction and the reasonableness prong
 By definition, if GJ is appropriate (because D has contacts so substantial with the
state), there can’t be a question of whether the forum is seriously inconvenient to
the D.
 If court’s threshold for GJ is very low, maybe the reasonableness prong cures
some of the damage. But if you apply the reasonableness prong to GJ cases,
you’ve essentially abolished GJ, which doesn’t depend on circumstances of the
case.
 The effects test
o D need not act within a state to be subject to TJ there; causing an effect within the state
may subject him to TJ, but that’s not enough by itself.
o D who has caused effects is usually subject to TJ in that state only if D has purposefully
availed itself “of the privilege of conducting activities within the forum state, thus
invoking the benefits and protections of its laws.” (Calder v. Jones; but Calder court
recognized exception to the rule that benefit is required.)
o Calder v. Jones
 Suggests that a D who allegedly commits an intentional tort might be subject to
jurisdiction if he or she knew the P would be seriously affected in the forum.
 Effects test applied here focuses on whether D has purposefully caused effects in
the state.

F. Choice of Law
 Phillips Petroleum v. Shutts
o Facts: Dispute over whether gas royalty owners are entitled to interest on suspended
payments for their royalties. Named Ps sued on behalf of a large class in KS court.
Typical claim is only $100 (a negative value class suit)
o D objects to TJ over absent class members – absent Ps (unusual). D argues that court
lacked minimum contacts with many of the Ps and that out-of-state Ps had to
affirmatively consent.

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 o Court’s analysis
 Did KS have TJ?
 Minimum contacts: Enough
 Consent: Failure to opt out is OK, as long as absent class members had
adequate representation. Class Ps are in a different position from Ds;
they’re not at the same kind of risk.
 So court says there was TJ.
 Choice of law: Could KS apply its law to all claims in this suit?
 Two-part analysis:
o Is there a conflict with law of another state?
o If so, does the forum state have a significant contact or
aggregation of contacts creating state interests such that choice of
its law is neither arbitrary nor unfair?
 Court says there might be and remands.
 Distinguish choice of law from minimum contacts. Tests have a lot in common,
but focus is different:
 For MC: purposeful availment
 For COL: state interests
 Allstate Insurance Co. v. Hague
o Facts: Man killed in motorcycle accident in WI with 3 Ds. P files suit in MN, where
stacking of insurance coverage was allowed.
o Issue: Can MN apply its law, even though nearly all contacts are with WI?
o Court’s holding: Yes. Three factors, put together, were sufficient to justify application of
MN law:
 Man worked in MN
 Widow moved there for unrelated reasons
 D does business in MN
o Case makes clear how much latitude a state has to apply its own law to a controversy
under the choice-of-law standard seen in Shutts.
 Sun Oil Co. v. Wortman—The False Conflict Stage
o Facts: Involved same issue as Shutts, but with a different D.
o Procedural history: KS court essentially concluded that there’s a false conflict between
KS law on interest rates and other states’ laws – though there probably were real conflicts.
o Court’s holding: Affirmed KS court.
 Says a misconstruction is OK unless:
 It contradicts a law of the other state that is clearly established
 And has been brought to the court’s attention by the party seeking
application of the other law.
 Also says that a forum can apply its own longer statute of limitations to a claim
even if it doesn’t have sufficient connection to the claim to justify application of
its own law. So on issue of SOL, “significant contacts” aren’t required.
 The Constitution and choice-of-law rules

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 o Sun Oil dealt only with SOL, but it suggests a state can apply its own law to any matter
viewed as procedural when Constitution came into force (as SOL were.)
o So Sun Oil says that the significant contacts test applies only to matters of substantive
law. Vindicates Stevens’ view in Shutts.
o Bottom line: Court has interpreted Constitution to allow states enormous latitude in
choice of law; states just can’t run afoul of the Constitution.

IV) The Erie Problem

A. Introduction
 Both federal and state courts apply federal and state law.
 Erie Problem is about when a federal court may apply federal law even though a state court would
apply state law.
 Erie is about vertical choice of law – state or federal (as opposed to horizontal – choosing
between law of different states).
 Not rooted in the Constitution; it’s a policy of restraint.

B. Erie Railroad Co. v. Tompkins

 Intro
o Involved an interpretation of the Rules of Decision Act (28 U.S.C. §1652).
o Issue is how to interpret “laws of the several States.” In doing so, court overrules Swift v.
Tyson.
o At time of Swift v. Tyson, law had three parts:
 General law: Principles in common among states and nations
 State courts weren’t bound by federal decisions about what general law
required, and vice versa.
 State (“local”) law: Could displace general law by passing something inconsistent
with the general law.
 Federal law: Binding on everyone, when it applies.
 Swift v. Tyson
o Interpreted reference to “laws of several States” in the RDA to refer to state/local law.
o Since “general” law was distinct, Swift read the RDA to let federal courts apply their own
version of general law instead of state’s.
 Erie
o Facts/procedural history
 P files negligence suit. D argued that P couldn’t recover because P was
trespassing (an interpretation of Pennsylvania law).
 P files in NY in hope that court will apply its version of general law over PA’s
pro-D law. Trial court ruled for P; appeals court affirmed.
o Holding: Court reverses.
 No more general law; federal courts must use state statutes and common law.
 Collapses into two categories – state and federal law. Matters of general law, for
the most part, become matters of state law.

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  Significantly limited authority of federal courts by expanding the domain of state
law, and bound federal courts to the decisions of a state’s highest court on matters
of state law.
o Federal general common law vs. federal common law
 FGCL
 Dead and buried.
 Refers to federal courts’ application of principles that have force of law
separate from a particular sovereign.
 FCL
 Alive and well.
 Judge-made law that addresses matters of special fed. concern. Derives
authority from the U.S; binding in both state and federal court under the
Supremacy Clause.
 If FCL falls within §1331 (statutory “arising under” jurisdiction – FQJ
stattue), it may be jurisdiction-conferring.
o Court’s reasoning
 Swift misinterpreted the RDA: Court almost certainly wrong here.
 Practical considerations – Genesis of “the Erie Policy”
 Swift led to lack of uniformity between fed and state courts.
 Forum-shopping caused by Swift rendered impossible “equal protection
of laws.” [Not 14th Am. EPC – that applies to states]
 Constitutional aspect
 Federal government is one of limited powers, and nothing gives Congress
or courts right to impose a rule applicable only in federal court.
 Congress clearly had power to legislate on issue, but it didn’t.
 It’s not clear that federal courts, without authorization from Congress,
can announce a rule of FCL.
 But it is clear that federal court can’t constitutionally apply a rule of
FGCL, binding in federal but not state courts.
o Critiquing the constitutional reasoning
 There’s little to no criticism of Erie.
 But there’s Art. III, §2: Why doesn’t reference to judicial power there include
right to decide what common law should be in diversity cases? There’s support
for the view that 18th-century Americans had a concept of general law that
extended beyond boundaries of any single sovereign. So maybe Article III was
meant to protect out-of-staters from idiosyncratic interpretations of the common
law by state courts – and maybe Swift was correct.

C. Guaranty Trust Co. v. York

 Issue: Where federal courts have equitable jurisdiction, should they be required to apply a state
SOL? (Is this the type of case governed by Erie?)
 Court’s holding: Yes
 Analysis:

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 o Federal courts aren’t bound by Erie with respect to procedure. But how do you determine
whether something is “substance” or “procedure”?
o The outcome determination test: If difference between federal and state law would be
outcome-determinative, the issue is substantive. If not, it’s procedural.
 Asks: Would it significantly affect the result of litigation for federal court to
ignore a state law that would be controlling in an action on the same claim by the
same parties in a state court?
 Scope of the test is very broad.

D. Byrd v. Blue Ridge Rural Electric Cooperative

 Facts/issue: South Carolina law let a judge decide definition of “employee” within meaning of
worker’s comp statute. Federal law let a jury decide. Which one should decide here?
 Holding: Byrd was entitled to a jury determination of whether he’s “employee.”
 Is the choice of decision-maker “outcome determinative”?
o Court suggests it isn’t; no certainty that a different result would follow.
 Distinguish issue here (who should the decision-maker be?) from issue in York
(would a legal rule compel a particular result?).
 But in rest of opinion, court assumes choice is determinative. Hmm.
o What makes this case important: Court treats outcome determination as just one part of
the process; it’s not absolute.
 The Byrd Balancing Test: a two-step analysis:
o Is the choice between federal and state law outcome-determinative?
 If no, Erie doesn’t require state rule to be applied.
 If yes, then the federal interest in uniformity of outcome must be weighed against
the federal interest in applying the federal rule at stake.
 Court assumes OD test would be satisfied, then weighs federal interest in uniformity of outcome
(Erie) against federal interest in applying its jury rule (letting a jury decide the case).
 Problem with the balancing test: How much weight to give these federal interests. Court gives no
guidance.

E. Hanna v. Plumer
 Facts: OH citizen sued MA citizen in MA. P’s lawyer served D in compliance with federal rule,
but not state rule (which required in-hand service). Court grants SJ for D, saying state law
governed.
o Notice: P’s lawyer could have prevented problem by serving in compliance with state and
federal rules. May have been malpractice.
 Holding: Supreme Court reversed, saying there’s a “direct collision” between Rule 4(d)(1) and
state law. (Because the rule is valid under the Rules Enabling Act, it applies.)
 Importance of the case:
o Makes clear the constitutional breadth of federal power over procedure in federal courts.
The outcome determination test isn’t constitutionally required; it’s not a talisman.
o Seeks to help draw a line between substantial differences in outcome that matter and those
that don’t. (The problem with York)

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 o Makes clear that applicability of the FRCP over diversity cases doesn’t depend on the
outcome determination test.
 The Constitution and federal power over procedure
o Majority opinion:
 Court emphasizes that you always have to be able to tie back federal law to some
authorizing provision of the Constitution (such as the Commerce Clause).
 If you can make a reasonable argument that a matter is procedural – that it was
traditionally procedural, or wouldn’t affect outcome, or that conflict-of-laws
doctrines treat it as procedural – there is authority in the Constitution that would
let Congress enact the rule.
 So Congress has plenary power over federal procedure; the outcome
determination test is irrelevant when Congress has spoken.
o Harlan’s concurrence
 “Arguably procedural, ergo constitutional” – Harlan thought the court
standard isn’t deferential enough to state interests. Accuses court of finding a
grant of substantive legislative power in the constitutional provision for a federal
court system (Article III).
 But he wouldn’t constitutionalize the OD test.
 Harlan’s proposed test:
 Inquire if the choice of rule would substantially affect “primary
decisions” of human conduct normally left to state regulation – decisions
not related to the actual conduct of the litigation.
 Decision to file suit is a matter of “private, primary activity.” Once you
file, conduct of the litigation isn’t primary activity.
 Places greater limits on federal government’s power than the majority’s
test.
 Hanna: Overview of the law applied in federal court
o If federal law is binding on states, there’s no choice to be made. But federal power over
procedure in federal courts doesn’t extend to state courts.
o Four sources of federal power over procedural law: Are they subject to the Erie Analysis?
 Constitution: no
 Federal statutes: no
 Federal rules: pursuant to Rules Enabling Act, so: no.
 Federal common law of procedure: yes
 The “direct collision” test
o Erie Analysis doesn’t apply if there’s a direct collision between a federal text
(Constitution, statutes or a rule) and state law.
 If there’s a direct collision (a federal text covers the point), you apply the federal
text.
 If no direct collision, then apply Erie Analysis (outcome determination and
balancing tests).
 Hanna—The Erie Analysis
o Modified outcome-determination test
 Many if not most procedural variations can be outcome-determinative.

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  So Hanna narrows the OD test. Choice is “outcome determinative” in the Hanna
sense if the choice between federal and state law is outcome-determinative and
would lead either to
 forum shopping at the outset of litigation
 or inequitable administration of laws.
o Depends on how substantial the difference between federal and
state laws is. Not clear how much more of a difference in
outcome is required, though.
o But mushiness here isn’t a problem because forum-shopping
prong will capture most of the cases in which application of
different rules would lead to inequitable administration.
o So the “inequitable administration” prong is a catch-all, for when
forum-shopping prong isn’t reliable and it would be troubling to
let federal law apply.
 Hanna and Byrd: The Byrd balancing test is still alive and well.

F. Validity of Federal Rules

 The Rules Enabling Act (28 U.S.C. § 2072)
o FRCP are promulgated under the REA, which passes muster under the “arguably
procedural, ergo constitutional” standard from Hanna.
o §2072 appears to state two requirements for validity of federal rules:
 Must address a matter of practice and procedure
 And the rule must not abridge, enlarge, or modify any substantive right.
 REA Analysis: Three key points – important!
o REA analysis is distinct from Erie Analysis. (Erie applies only when there’s no direct
collision between federal text and state law.)
o SC has never found that a federal rule of civil procedure transgressed REA.
o FRCP enjoy a presumption of validity.
 But some courts say rules couldn’t be applied consistently with REA in some
cases.
 Professor Ely’s take
o Intro:
 Critical question is whether the state right was “granted for one or more
nonprocedural reasons.” (Focus is on purpose of the state law.)
 If so, under §2072(b) the federal rules give way to state law in the event of
interference with the state law.
 Example: Federal rule creating a SOL in diversity cases probably would
have to give way to a state law under §2072(b). SOLs are passed in part
to give Ds repose after a certain amount of time has elapsed – a purpose
typically viewed as substantive.
 Narrowly defines procedural as “connected to the actual conduct of the
litigation.”
o Rules valid on their face may be invalid as applied
o A critique (from Woolley)
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  Under the Ely approach, federal rules give way when state has a substantive
purpose. But that seems to conflict with a principal goal of the REA: promoting
uniformity in rules of procedure among federal courts across the country.
 Ely approach gives too much latitude to state law.
 But then, Erie Policy promotes vertical uniformity among federal and
state courts sitting in the same state, which Ely’s approach also does.
 Given policy of uniform FRCP, why should REA’s goal of uniformity across
federal courts be frustrated by a state’s idiosyncratic decision to use a mechanism
usually thought of as procedural to achieve a substantive purpose?
 Better view: REA is intended to cordon off from federal rulemaking certain
sensitive areas – limitations periods, remedies, burdens of production and
persuasion – to tell the courts and the Advisory Committee not to create rules in
these areas because they’ll modify, enlarge or abridge substantive rights.
 REA Analysis and the Supreme Court
o SC has given little guidance about proper interpretation of REA.
o Court has basically said that:
 A rule is valid under § 2072(a) only if it “really regulates procedure” (Hanna)
 And rules that incidentally affect litigants’ substantive rights don’t violate
§2072(b) if reasonably necessary to maintain the integrity of that system of rules.
[Burlington Northern R. Co. v. Woods]
o Court has applied these standards with little analysis; can’t tell whether it agrees with
Ely’s state-centered approach.
 REA Analysis in the lower courts
o Some lower federal courts have concluded that a particular rule of civ pro couldn’t be
applied to a particular case. Ely’s approach gives rise to that kind of argument.
o These courts typically use something like the Ely approach to determine whether a federal
rule would modify, abridge, or enlarge state substantive rights. But they take the
following into account: While Ely would have a federal rule give way if the rule “affects
state substantive rights,” lower courts recognize that Hanna and Burlington are more
protective of the federal rules than Ely would be.
o So there’s no doubt that Ely’s approach isn’t applied full-force by courts.

G. Construing Federal Rules—An Advanced Look at the “Direct Collision” Prong

 Remember:
o Question of whether there’s a direct collision is all about the interpretation of the federal
text.
o If we conclude that a federal rule covers the point, the federal rule will apply unless it was
invalid on its face or invalid as applied.
 Walker v. Armco Steel Co.
o Court says in a footnote that the FRCP should be given their plain meaning. But the court
failed to follow that and read the rule narrowly in order to avoid a direct collision between
the federal rule at issue and state law.
o One can read the footnote so as to avoid a DC analysis, which might require court to
strike down the rule under the REA.
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  Semtek v. Lockheed Martin Co.
o A more recent decision in this area. Suggests that federal rules should be interpreted
narrowly not just to avoid conflict with REA, but also to avoid conflict with federal rules
and outcome-determinative state law.
o Interpreting rules:
 Keep in mind: Erie Analysis isn’t used to determine validity of a federal rule. It’s
just one tool in construing the rules.
 If federal rule has always been given a particular meaning, fact that the
rule would conflict with OD state law isn’t going to carry the day in
terms of interpretation of the rule.
 But if the rule is ambiguous, the fact that it might conflict with OD state
law will be a factor in interpretation.
 Many scholars rejection the notion that rules should be read narrowly to avoid
conflict.
 REA is designed to promote uniformity across federal courts; narrow
readings in this sense instead create uniformity between state and federal
courts sitting in the same state.
 Reading the rule narrowly to avoid interference with OD state law
shrinks the scope of operation of the FRCP and turns matters over to the
states under the Erie Analysis.
 But you can also argue for construing federal rules in light of the Erie Policy.
Scalia, dissenting in Stewart v. Ricoh, says court should assume that Congress is
just as concerned with avoiding significant difference between state and federal
courts. So a broad reading of a rule that would create significant disuniformity
should be avoided if the text permits.
o In Semtek: Court unanimously agreed with Scalia that Erie Policy is relevant to
interpretation of the FRCP. But Semtek can also be criticized for misapplying the
principle set out in Stewart.
 Rule 41(b), dismissal of actions: “Dismissal on the merits” has a commonly
understood meaning among lawyers. But Scalia adopted a truly bizarre
interpretation, in part to avoid a conflict with OD state law.
 No justification for reading a federal rule of civ pro in such a strained way.
 PW: Even if you say the Semtek court went too far, it’s a harder question whether
Erie Policy should be used as a rule of construction for ambiguous federal rules.
 Don’t forget other tools of interpretation (plain language, leg. history, etc)
 If federal court is bound by state law, in determining what state law is, federal court seek to
predict what the state supreme court would do.

V) Venue and Forum Non Conveniens

 § 1391 – the venue statute
o §1391(a): Claims arising solely out of diversity; (b) for all other claims.
o §1391(a)(1) and (b)(1): There is venue in a judicial district where any D resides, if all Ds
reside in the same state.
 Some courts hold that an individual D only resides in state of domicile.

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  Others say individual D can reside in several districts.
 Ds only need to be from same state; can be from different judicial districts within
a state.
o §1391(a)(2) and (b)(2)
 Venue in judicial district in which substantial part of events or omissions giving
rise to the claim occurred, or
 A substantial part of the property that is subject to the action is situated.
 Not satisfied if claim arose solely in foreign country (not judicial district)
 Provisions will often authorize venue for a particular suit in several dists.
o §1391(a)(3) and (b)(3):
 Fallback provisions; only look to these if a district in which venue is proper can’t
be found under §1391(a)(1),(2), or (b)(1),(2).
 Diversity cases: Venue is proper in districts where any D is subject to TJ.
 But action must be brought against each D in the venue that has TJ over
it.
 Non-diversity cases: Venue is proper in district where any D is found.
o Doesn’t apply for removal (from state to federal)
 State venue rules are not necessarily the same as federal venue rules.
 §1441(a): Suits filed in state court can only be moved to a federal district court
that embraces the place where the state court sits.
 §1391: General venue statute doesn’t apply to removed cases.
o Venue is a personal privilege of D, just like TJ.
 Can be waived.
 D waives objection to venue by failing to raise it when she responds to P’s
complaint (either by a 12(b) motion or in the answer).
 Transfer of Venue: § 1404(a)
o Overview
 Provides for transfer from one federal district to another.
 If SMJ, TJ and venue are proper, but venue is inconvenient, §1404(a) provides for
transfer to a forum where suit might have been brought.
 Factors that court considers are similar to those considered under reasonableness
of TJ. Similar also to forum non conveniens factors. (Listed on pg. 430, note 2)
o Hoffman v. Blaski
 Construes §1404(a) language: “where suit might have been brought”
 Court held that this means that a suit may be transferred only if venue would be
proper in the transferee district under the general venue statute, §1391, or one of
the more specialized venue statutes; or because consent was obtained before suit
was brought.
 D’s willingness to waive objection once suit has been brought is
irrelevant.
 In addition, Hoffman has been interpreted to require that TJ be proper in the
transferee court.
 Transfer vs. Forum Non Conveniens
o Transfer under §1404(a) is available only between federal courts.

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 o If a state court concludes that the state is an inconvenient forum, the only remedy is
dismissal under state law on grounds of FNC..
o But federal courts dismiss on FNC only when they conclude that the United States would
be a seriously inconvient forum. If the question is whether the suit should be heard in a
federal court in another district, the case must be transferred, not dismissed on FNC.
o Transfer is obviously a less dramatic mechanism than FNC dismissal.
 Venue and Choice of Law in Federal Court
o How do horizontal and vertical choice of law intersect
o The basic rule: Klaxon v. Stentor Electric Mfg. Co.
 Klaxon held that under Erie a federal court must apply the choice-of-law rules of
the state in which it sits.
 “Vertical uniformity and horizontal chaos” – Glannon
 This is how it works in a diversity case. Different for transfer.
o Choice of law and transfer: Van Dusen v. Barrack
 Holding:
 Klaxon rule isn’t mechanically applied to transfers.
 Van Dusen held that if a federal court in which suit was brought had TJ
over the D and venue was proper in that case, then after transfer, the
transferee court must apply the choice-of-law rules of the state from
which suit was transferred.
 This is consistent with Erie Policy; courtrooms change, law doesn’t.
 When Van Dusen doesn’t apply
 If transferor court didn’t have TJ, or venue wasn’t appropriate there, it
can transfer to an appropriate forum instead of dismiss.
 Then the transferee court applies the choice of law rule of the state in
which it sits.
o When P Moves for Transfer: Ferens v. John Deere Co.
 Issue: Does the Van Dusen rule apply when the P, rather than the D, makes the
transfer motion?
 Facts/procedural history: P brought contract claim in PA and tort suit in MS.
(SOL for tort suit had expired in PA.)
 MS:
o Venue is proper for D
o And there’s TJ over D under stream of commerce theory.
 Then Ps file motion to transfer to PA under §1404(a), which requires
transfer to a district where suit “might have been brought.” D doesn’t
object.
o Under Hoffman: You need TJ in PA. There is:
 P lives there
 D does business there.
o Venue: Yes under §1391.
 Holding: Van Dusen rule still applies when P seeks transfer.
 PA has to apply choice-of-law rules from MS.

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  MS could apply its longer SOL, even if it couldn’t apply its own
substantive law. (See Sun Oil)
o Piper Aircraft Co. v. Reyno
 Facts/procedural history: Plane crash in Scotland. P sues Piper and Hartzell in CA
state court; Ds file notice of removal to federal court.
 Jurisdictional basis for removal:
o Complete diversity (§1441)
o §1441(a): Fed. court has original jurisdiction, and AIC
requirement is met.
o §1441(b) And no D is from the state where suit was brought.
 Once in federal court, Piper moved for transfer under §1406(a); Hartzell
moved for dismissal based on lack of jurisdiction, or for transfer in the
alternative.
o Goldlarr v. Heiman: Transfer proper under §1406(a) when both
venue and TJ are lacking.
 But many courts have permitted transfer under §1406(a)
when it’s not venue that’s lacking, but TJ.
 Others say you have to rely on §1404(a).
 Still others say it doesn’t matter.
 CA federal court held that it didn’t have TJ over Hartzell and transferred to
federal district in PA.
 Only OK if PA is where suit might have been brought. (Has to be TJ and
venue/consent.)
 Both Ds have TJ and venue in PA.
 Which state’s COL rules apply?
 Piper: CA COL rules – which lead to application of PA law
o TJ and venue were proper in transferor court, so Van Dusen rule
applied.
o Piper could have objected to TJ in CA; it’s not a slam dunk. But
if failed to object, so it consented to TJ in CA court.
 Hartzell: PA COL rules – which lead to application of Scottish law.
o CA court said there was no TJ, so COL rules of transferee court
applied.
 Piper and Hartzell moved to dismiss on grounds of FNC. Court grants, says the
proper forum is Scotland.
 Piper and FNC law: federal vs. state
 Piper is the leading case on FNC in federal court.
 Are federal courts required to follow state FNC rules?
o It’s an Erie question. Federal law of FNC is federal common law.
But the court ducks the issue, says state and federal FNC laws
were the same (not true!).
o SC still hasn’t really resolved the question.
 Authority for federal FNC

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 o Any authority to create federal common law of FNC is going to
be based in Article III.
o Other possibility: Federal FNC, which applies only when the
U.S. isn’t the appropriate forum, should be viewed instead as a
rule dealing with foreign relations of the U.S. So FNC doctrine
would be deemed common law of foreign relations.
 If so: Federal FNC law would be binding on federal and
state courts, under the Supremacy Clause.
 FNC law wouldn’t be a federal law of procedure.
 Woolley: Probably not how the SC will go.
 Without an alternative forum, a federal court can’t dismiss on grounds of
FNC. Figuring out whether there’s an alternative forum isn’t always easy.
o Fact that alternative forum would apply different or less
favorable law than in the U.S. doesn’t really matter.
o If alternative exists, court has to consider public and private
interest factors in deciding whether to dismiss on FNC.
o There’s a strong presumption favoring P’s choice of forum.

Size of the Litigation

I) Preclusion

A. Introduction
 Legal effect of a judgment is typically divided into two categories:
o Res judicata: Claim preclusion
o Collateral/direct estoppel: Issue preclusion
 Preclusion principles provide a set of common-law joinder rules supplementing Rule 18 of the
FRCP.
o Example: 18(a) is very permissive; allows (but doesn’t require) a P to assert any other
claim that he might have against a D. But common law of RJ requires a P to bring certain
other claims against a D in the same suit or lose those claims forever, if a final judgment
is entered in the lawsuit.

B. Intersystem Preclusion: § 1738

 The principles applied by a judicial system to determine the preclusive effect of a different
judicial system’s judgments.
 For state court judgments:
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 o 28 U.S.C. § 1738: Requires federal courts to give full faith and credit to state court
judgments – to give the same effect that the rendering state court would.
 Constitution (Article IV, § 1) puts this obligation on states only.
 §1738 is binding on both.
o Notice: Erie and Klaxon require a federal court to apply the law of the state in which it
sits. §1738 requires a court to apply the claim- and issue-preclusion law of the state that
rendered the judgment.
 For federal judgments:
o The Supreme Court recently explained in Semtek International Incorporated v. Lockheed
Martin Corp. (2001) that federal common law requires state courts to give a federal
judgment the same force and effect that a federal court would give to the judgment.
o But federal preclusion law isn’t uniform. Semtek says that in determining the preclusive
effect of a federal judgment, sometimes you need to refer to the preclusion law of the
state in which the federal court that rendered the judgment sits.
 What force and effect would a federal court give to a federal judgment? Supreme
Court indicated in Semtek that an Erie analysis may be necessary to answer that.
 Many have interpreted Semtek to mean that in a diversity case, federal courts
ordinarily will borrow the preclusion rules of the state in which the federal court
rendering the judgment sits.
 In other words: Semtek might require reference to preclusion rules of the state
where the federal court rendering the judgment sits when failure to do so would
“produce the sort of ‘forum-shopping’ and ‘inequitable administration of the
laws’ that Erie seeks to avoid,” unless applying state law in those circumstances
would be “incompatible with federal interests.”
o In a case based on federal question jurisdiction: Apply federal common law.

C. Intrasystem Preclusion
 The principles applied by a judicial system to determine the preclusive effect of its own
judgments.
 In federal courts: Semtek
 In state courts: A state court will apply its own preclusion rules to determine the preclusive effect
of its own judgments.

D. Claim Preclusion
 A “final” judgment “on the merits”
o Judgment is final on entry of judgment, unless or until reversed on appeal. To have claim-
preclusive effect, judgment must be on the merits.
 Judgment after trial or JMOL = on the merits
 Dismissal for lack of jurisdiction or venue = not on the merits.
 Depending on the judicial system: may or may not be “on the merits”:
 Judgment that suit is barred by SOL
 Demurrer
 Dismissal for failure to state a claim
 Definition of a “claim” in preclusion context:

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 o § 24 of Second Restatement of Judgments
 Used in federal courts and many (but not all) judicial systems
 Known as the “transactional” approach
 “When a valid and final judgment rendered in an action extinguishes the
plaintiff’s claim, the claim extinguished includes all rights of the plaintiff
to remedies against the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of which the actions
arose.” (HTF, pg. 1172)
 “What factual groupings constitute a transaction, and what constitute a
series, are to be determined pragmatically.”
 Essentially, ask whether there’s a logical relationship between facts
supporting the federal theory of liability and the facts supporting the state
theory of liability.
o The “logical relationship” test operates here much like it does in
terms of supplemental jurisdiction. Claim preclusion and SuppJ
ask the same question: What is an appropriate litigation package?
o But CP and SuppJ approach the question from different
perspectives. There are different considerations and policy
concerns; tests are identical, but same basic idea.
o What should be allowed to be heard vs. what must be tried
together.
 Doesn’t matter whether you win or lose; CP still applies.

o Separate “claims” against each D

 General view is that P has a separate “claim” against each D for claim-preclusion
purposes. (For logical relationship test of jurisdiction, multiple Ds may be part of
the same case or controversy.)
 But there may be a problem with issue preclusion.
 Limited exceptions to Second Restatement approach
 § 26(1)(c): P can split claim if he was unable to rely on a certain theory of
the case, or to seek a certain remedy or form of relief in the first action,
because of the limitations on the subject matter jurisdiction of the courts
or restrictions on their authority. (Deals with jurisdiction)
o Example: State law says an action can only be brought in
municipal court, but municipal court has no jurisdiction over
federal question claims.
 § 26(1)(d): Claim isn’t extinguished if “it is the sense of the scheme that
the P should be permitted to split his claim.”
 § 26(1)(f): Used rarely; refers to a continuing restraint or condition
having a vital relation to personal liberty.

E. Issue Preclusion
 Three basic requirements for IP: Issue must have been:

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 o Actually litigated
o Determined
o And essential to the judgment.
 Was the issue “actually litigated”?
o Doesn’t require trial.
o Second Restatement: “An issue is actually litigated when an issue is properly raised by
the pleadings or otherwise and is submitted for determination and is determined.”
o But if D admits an allegation or fails to raise an affirmative defense, those issues have not
been actually litigated.
 Was the issue “determined”?
o General verdict: Hard to say what elements of the claim the jury decided.
o Special verdict: Specific findings of fact. Clearer to determine what issue was decided.
 Was the determination “essential to the judgment”?
o Competing ideas:
 An alternative determination is no less such for being alternative, especially given
the multi-issue, alternative theory modes of litigation common in modern
procedure.
 An alternative determination is dictum in the sense that a court would have
reached the same result with or without the determination.
o Second Restatement’s weird compromise: An alternative determination is deemed
“essential to the judgment” if a particular finding was reviewed and affirmed on appeal.
(If you get the extra level of review, the determination will be deemed essential to the
judgment.)

 Is the “same issue” involved?

o If issue in second suit isn’t identical to the issue in the first suit, ask: Does it make sense
from standpoint of fairness and efficiency to treat the matter as involving the same issue?
o § 27, comment c: Balance interests – “a desire not to deprive a litigant of an adequate day
in court” and “a desire to prevent repetitious litigation of what is essentially the same
dispute. … Preclusion ordinarily is proper if the question is one of the legal effect of a
document identical in all relevant respects to another document whose effect was
adjudicated in a prior action. And, in the absence of a showing of changed circumstances,
a determination that, for example, a person was disabled, or a nonresident of the state, in
one year will be conclusive with respect to the next as well.”

F. Nonmutual Collateral Estoppel

 Generally
o Occurs when a nonparty to first suit invokes judgment in an earlier suit.
o Trend favors application of nonmutual collateral estoppel, though some scattered
jurisdictions don’t recognize it.
o Due Process: NCE can only apply against a party to previous litigation. Can’t apply
against someone who wasn’t a party to previous litigation.
 Types of NCE
o Defensive: D uses the first judgment as a shield against liability.
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 o Offensive: P uses first judgment as a sword – for liability.
 Offensive NCE:
o Parklane Hosiery Co. v. Shore
 Facts: Shareholders seek to rely on finding in earlier suit that Parklane’s proxy
statement was misleading (earlier finding used as a sword).
 Court’s holding
 Considers two arguments against offensive NCE:
o Offensive NCE doesn’t promote judicial economy
 In defensive NCE, P has an incentive to join all the Ds.
But in offensive NCE, P2 has no incentive to join in the
first suit, because he can take advantage if D loses (a
“free ride”) but isn’t bound if D wins.
o Offensive NCE may be unfair to a D.
 D may have had little incentive to defend against first
suit because it was for small or minimal damages, and
second suit wasn’t foreseeable.
 Also unfair if the judgment relied on by P is inconsistent
with one or more previous judgments.
 Train wreck hypo: Railroad collision injures 50
passengers. All sue. First 25 Ps lose, but 26th
wins. Is it fair to allow Ps 27 through 50 to rely
on that judgment?
 Procedural opportunities may not have been available in
the first action that could have led to a different result.
 Court says it doesn’t want to preclude offensive NCE in every case; it’s
up to the trial court discretion. But no offensive NCE in this case.
 The 7th Amendment issue
o Stewart used pro-jury opinion in Beacon Theatres to deny
Parklane a jury in the second suit. Rehnquist dissents, arguing
that because NCE wasn’t available at the time the 7 th Amendment
was decided, there’s a constitutional problem here.
o Rhetoric is attractive, but it’s not faithful to 7th Amendment’s
development. The amendment hasn’t been used as a barrier to
renewed motions for judgment as a matter of law, for example,
and other things that weren’t around at the time the 7th
Amendment was incorporated into the Constitution. It has never
been viewed as a bar to procedural innovation.
o But Rehnquist is right to point out absurdity of court’s assertion
that presence or absence of a jury should somehow be viewed as
a neutral factor – though implications of the view that juries
aren’t a neutral factor are broad. CE, period, should be
inappropriate if the first suit wasn’t tried to a jury, under Rehn.’s
view.
o The easy joinder limitation on offensive collateral estoppel—a caveat

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  Parklane court: If P who easily could have joined first litigation doesn’t join,
offensive NCE should be denied. (Avoids the “free rider” problem.”)
 But: Most courts have no adopted a principle of compulsory intervention. A party
who didn’t participate in the prior proceeding for sound tactical reasons but
wasn’t just sitting on the sidelines hoping to capitalize on a favorable result
shouldn’t be denied the benefits of collateral estoppel.
 “Easily could have joined” statement is a dead letter, essentially.

 Defensive NCE
o Similar considerations of fairness.
o Example: If P brought series of patent infringement actions in 50 cases, and P wins first
25, but in 26th the patent is found invalid.
o Presumably, a court may consider unfairness with respect to offensive and defensive
NCE.
 NCE—Systemic issues
o Does efficiency justify binding the D in innumerable future trials, based on a loss in the
first trial? Sometimes irrational factors affect jury verdicts.
o Judicial economy was one concern in Parklane; another was the “aura of the gaming
table.” But why isn’t a collective best guess – trying the suit multiple times – more
consistent with avoiding the aura of the gaming table? The more juries you have
addressing an issue, the more likely it is that on average, you’ll reach a fair result.
o Probabilistic analysis: NCE disadvantages a D in a way that may not be appropriate. It
may impose a greater risk on Ds than is appropriate. On the other hand, NCE certainly
saves time and money.
o Woolley’s view: It’s not that NCE isn’t good; its that something is sacrificed when we use
NCE, and in determining whether NCE is appropriate, we need to consider not just
judicial economy but fairness to Ds as well.

II) Joinder

A. Generally
 Two questions to ask about any claim in federal court:
o Is it jurisdictionally proper? (Is there a basis for SMJ over the claim?)
o Is it procedurally proper? (i.e., do the FRCP authorize this claim?)
 Scope of the joinder rules: Two basic principles
o Rules 13 and 14 state only threshold requirements. If a proper cross-claim or third-party
claim is asserted, any other claim may be joined under Rule 18.
 18(a): Party asserting a claim, counterclaim, cross-claim, or third-party claim may
join as many claims as it has against an opposing party. (Once you’ve met the
requirements of 13(a).)
 13(a): If you have a compulsory counterclaim but don’t bring it, it’s gone forever.
But if the claim has already been asserted in another action, you don’t need to
assert it as a compulsory counterclaim.

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 o Parties who aren’t originally “opposing parties” for purposes of the compulsory
counterclaim rule (e.g., co-defendants” may become opposing parties later (if, e.g., a co-D
asserts a cross-claim against another D).
 Venue, counterclaims, and Rule 14 claims
o Courts typically have concluded that venue requirements do not apply to counterclaims,
cross-claims, or Rule 14 claims, with one exception: Venue must be satisfied with respect
to additional parties joined to a permissive counterclaim under Rule 13(h).

B. The Rules of Joinder

 Rule 20: Permissive joinder of parties
o Authorizes plaintiffs to sue together if
 (1) they assert claims arising out of the same transaction or occurrence (or series
of transactions or occurrences)
 (2) their claims against the defendant or defendants will involve a common
question of law or fact.
o Allows plaintiff to sue multiple defendants in a single action if the same criteria are met.
o Does NOT require parties to be met whenever the criteria in the rule are met.
 Counterclaims and Cross-Claims
o Authorize parties, once they are properly joined in a lawsuit, to assert additional claims
against opposing parties.
o Don't forget to make sure that SMJ is also proper
o Rule 13: Once a proper cross-claim has been asserted, Rule 18(a) allows added unrelated
claims.
 Rule 13: Authorizes a defending party in a suit to assert claims back against a
party who has claimed against him
 (a) Compulsory: if it arises from the same transaction or occurrence as
the claim against him. Authorizes any defending party (not just original
defendant) "a pleading" to assert a claim against an opposing party.
 (b) Permissive: may assert claims completely unrelated to the original
claim. Authorizes any defending party (not just original defendant) "a
pleading" to assert a claim against an opposing party.
 (g) provides for assertion of cross-claims arising out of the same
transaction or occurrence as the main claim; asserted by one party against
a co-party (i.e. D v. D, not an opposing party).
 (h) Allows a party who has asserted a counterclaim or cross-claim to join
other parties against whom he or she has a transactionally related claim.
(Rule 13(h) is to counterclaims and cross-claims what Rules 19 and 20
are to ordinary claims.)
o Rule 18
 (a) Party seeking relief from an opposing party may join with his original claim
any additional claims he has against that opposing party.
 No common transaction or occurrence requirement

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  Authorizes "a pleader" (original plaintiff and any party seeking relief against
another party - on a counterclaim, cross-claim, or third-party claim) to assert as
many claims as he has against an opponent
o Rule 14: impleader
 Gives a defendant a limited right to implead new parties against whom she has
claims related to the main action.
 Examples of impleader: contribution, indemnity
 No right to substitute another defendant or add one under Rule 14; different from
situations in which defendant contends that the other person is liable directly to
the plaintiff.
 3rd-party D’s liability will depend on the outcome of the main claim.
 Impleaded party may escape liability by defeating either P’s original
claim or the D’s derivative claim against him
 Impleader claim treated like an original suit for pleading, service, etc.
 Must file a 3rd party complaint against impleaded 3rd party defendant
under pleading rqts (Rules 8-11)
 Served (Rule 4)
 3rd Party Defendant Respond (Rule 12)
 3rd Party D may implead further parties (Rule 14) & plaintiff & 3rd party
D can assert claims against each other if they arise out of the same
transaction or occurrence as the main claim
 Time limit: within 10 days of answering the complaint without obtaining leave of
court.

C. Rule 4(k)(1)(B): Another Ground for TJ Over a Party Joined Under Rule 14
 Generally
o 4(k)(1)(A) is the workhouse for federal TJ.
o 4(k)(1)(B) gives an additional option for courts.
 Service
o Establishes TJ over a D who is a party:
 joined under Rules 14 or 19
 and is served within a judicial district of the U.S.
 and not more than 100 miles from where summons was issued.
o Still have to satisfy the Constitution in order for service to be appropriate, but that’s rarely
a problem under 4(k)(1)(B), because the Fifth Amendment allows jurisdiction so broadly
– the national contacts test. (The nation is the appropriate unit of analysis.)
 There’s controversy over whether the Fifth Amendment jurisdictional tests
includes a reasonableness prong. Many federal courts reject the view that the
Fifth Amendment’s due process clause requires a reasonableness test separate
from the minimum contacts test.

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  4(k)(1)(C) and 4(k)(2) don’t incorporate the 14th Amendment’s DP clause; what
matters is the Fifth Amendment’s DP clause.
o Under 4(k)(1)(A), though you have to look at the state statute and state limits on TJ,
governed by the 14th Amendment Due Process Clause. (The state is the appropriate unit of
analysis.)

D. Rule 20: Permissive Joinder of Parties

 Makes it relatively easy to join Ps and Ds.
 For Ps: 20(a)(1): Persons may join in one action as plaintiffs if:
o (A) they assert any right to relief jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or occurrences;
and
o (B) any question of law or fact common to all Ps will arise in the action.
 For Ds: 20(a)(2): Persons may be joined in one action as Ds if:
o (A) any right to relief is asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction or occurrence or series of transactions or
occurrences; and
o (B) any question of law or fact common to all Ds will arise in the action.
 If joinder is improper under Rule 20: You can drop a party under Rule 21 instead of dismissing
the claim.

E. Rule 19: Mandatory Joinder

 Generally
o Two step inquiry under Rule 19:
 Must a party be joined if feasible? (If so, it’s a “necessary party.”)
 Should the suit be dismissed if joinder is infeasible? (If so, it’s an “indispensable
party.”)
o Common mistake:
 Don’t assume that Rule 19 applies more often than it actually does. For example,
it doesn’t treat jointly and severally liable tortfeasors as necessary parties to be
joined if feasible.
 Temple v. Synthes: P chose not to sue all three Ds in the same action. The
Supreme Court responded, in very summary fashion, to the argument that the
other tortfeasors were necessary parties to be joined if feasible – by granting cert
and reversing summarily without even an oral argument.
 The main point is that Rule 19 is far narrower than novices often assume. It’s read
in light of the very high value our legal system traditionally has placed on party
autonomy in the structure of lawsuits. A P should rarely be required to join
parties he doesn’t wish to join in the litigation.
 19(a)(1)(A): Party must be joined if court can’t afford complete relief.
o Very narrow. Applies if lawsuit seeking conveyance of land were filed against one joint
owner; one owner by himself can’t transfer the property, so the other owner would be a
necessary party.
o Still doesn’t apply to a J&S tortfeasor, or in train wreck hypo (from collateral estoppel).

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  19(a)(1)(B)
o (i): Party must be joined if he has an interest in the subject of the action and disposing of
the action in his absence may impair or impede the person’s ability to protect the interest.
 Practical impairment of a legally protected interest is all that’s required.
o (ii): Party must be joined if he has an interest in the subject of the action and disposing of
the action in his absence may leave an existing party subject to a substantial risk of
incurring double, multiple or otherwise inconsistent obligations because of the interest.
 “Inconsistent” is read narrowly. Basically means a D might be forced to do
something that different judgment might require him not to do.
 Feasibility of Joinder:
o P is required to join a necessary party if it would be feasible to do so. And it’s usually
feasible when:
 The court has TJ over the party
 Joinder won’t destroy SMJ
 And venue is proper (but it’s up to the party being joined to object to venue)
 Remember: A P is usually required to join a necessary party as a
defendant, rather than a plaintiff.
o When joinder is infeasible
 If joinder would be infeasible, the court must decide whether the suit must be
dismissed (Rule 19(b)).
 But the mere fact that a necessary party cannot be joined does not mean the suit
will be dismissed. That decision is made only if the court concludes that in
“equity and good conscience” the suit should be dismissed rather than allowed to
proceed.
 Critical question: Would it be fair to allow the action to proceed despite
the absence of the absentee? (Factors identified in 19(b)(1)-(4).)
 But some cases are clear cut:
 When D would suffer prejudice, and P can obtain full relief by
proceeding in a state court: dismissal is warranted.
 But if D can protect himself by joining the party in question, D can’t
obtain a dismissal just because P failed to join him.
o Important: D’s obligation to act to protect itself is important
because a D often has greater freedom to bring in another party
than a P does.
o Thing about SuppJ: 1367(b) applies only to claims by Ps. And
venue requirements often don’t apply to claims asserted by a D.

F. Interpleader
 Generally
o Interpleader claim or counterclaim requires claimants to fight among themselves about
who is entitled to money or property. (Don’t confuse with “impleader.”)
o If stakeholder doesn’t claim property, the stakeholder essentially ends up on the sidelines,
and the litigation turns into a contest among the claimants
 Two kinds of interpleader:
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 o Rule interpleader: FRCP 22(a)
 The ordinary rules of SMJ, TJ, and venue apply..
o Statutory interpleader: (§ 1335)
 All that’s required to establish SMJ is that the amount in controversy exceed $500
and that only one claimaint be diverse from another claimant.
 Moreover: Under § 2361 and Rule 4(k)(1)(C), federal district courts in statutory
interpleader cases are freed from the limitations of 4(k)(1)(A) and may exercise
personal jurisdiction to the limits of the Constitution, provided the claimant may
be served in the U.S. (because under §2361, there’s nationwide service of
process).
 And under §1397, venue in a statutory interpleader case is proper in a district
where one of the claimants resides.
 Bottom line: Statutory interpleader substantially relaxes requirements for SMJ, TJ
and venue.

III) Class Actions

A. Rule 23 Certification
 Suit brought as a class action may proceed as a class suit only if the court certifies it as a class
suit.
 23(a) sets out four requirements before a class suit can be certified:
o Class is so numerous that joinder of all parties is impracticable
o There are questions of law or fact common to the class
o The claims or defenses of the representative parties are typical of the claims or defenses
of the class.
o Representative parties will fairly and adequately protect the interests of the class (very
important).

B. Importance of Class Counsel

 23(g)(4): Class counsel must fairly and adequately represent the interests of the class.
o May be more important than (a)(4), since as a practical matter class suits are run by
attorneys.
o Class counsel is basically the decisionmaker in a class suit. Case law says class counsel
can disregard instruction of the named Ps if he doesn’t believe those instructions would
be in class’s best interests. Class counsel have settled litigation over named Ps’
objections. So it’s crucial that they be qualified and put class’s interests before their own.

C. Rule 23(b)
 In addition to 23(a), a class suit must fit within one of the subdivisions of 23(b).
 23(b)(1): Similar to 19(a)(1). Addresses same problems as when there are too many potential
parties to make joinder feasible.
 23(b)(2): Allows injunctive or declaratory relief on behalf of the class when the opposing party
has acted or refused to act on grounds that apply generally to the class.

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 23(b)(3): Class suits in general
o Commonly known as “damages class actions” – that’s what they seek.
o To certify a class under (b)(3), a court must find a question of law or fact common to the
class predominates over individual issues, and class adjudication must be superior to other
available methods for fairly and efficiently adjudicating the controversy. (Predominance +
superiority)
 Basically asks: Does it make sense to try this suit as a class action?
 If certain issues aren’t common to the class, it’s possible to avoid the
“predominance” problem by certifying an issue class under 23(c)(4)
 Key question in deciding whether to certify an issue class should be
whether a class suit resolving an issue (i.e., of railroad’s negligence in
train wreck hypo), followed by individual suits (i.e., damages incurred by
train passengers), would be fairer and more efficient than having each P
go out and bring a suit addressing all the issues.
o Types of Rule 23(b)(3) Class Suits
 Negative value class suits: Not worthwhile for any individual P to bring a suit on
his own. But it makes economic sense for an attorney to take on the litigation if
you aggregate the little claims (Shutts). Essentially these are large-scale, small-
claim suits.
 Claims large enough to justify individual litigation, but there are efficiency gains
to be achieved through use of the class device. (Rhone Poulenc)
 In Re Rhone-Poulenc Rorer
o Facts: 300 suits with over 400 Ps filed in state court to determine liability of drug
manufacturer to hemophiliacs.
o Procedural history:
 All cases were transferred to one court for pre-trial proceedings under §1407
(which allows this when you have many suits and resolution would benefit from a
coordinated set of pre-trial proceedings, but cases need to be sent back to district
where they were filed to be tried).
 District judge certifies one of the cases as a nationwide class action
 Effect: Everyone in the nation who fits the definition of the class
becomes part of the class, including those who haven’t filed suit. They’re
members unless they opt out.
o Certification under 23(b)(3)
 Territorial jurisdiction: Class Ps consent to TJ at least if the class members are
adequately represented. No need to opt in (Shutts).
 Common question of law or fact predominating over individual issues: District
court tailored the suit to address only one of the issues that would have to be
litigated before an individual class member could recover against the drugmaker
– the drugmaker’s negligence.
 Done under 23(c)(4): issue class certification
o Relevance of choice of law to certification
 District court relied on Illinois law’s allowance to use Illinois negligence law. So
it didn’t have to interpret and apply the law of all the states.

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  Ds who want to avoid certification will often argue that the law of multiple states
must be applied in the class suit. And class counsel will often argue that one
substantive law may be applied to all the claims in the class suit.
o Choice of law decision
 Analytical framework
 Shutts makes it easier to bring a nationwide class suit than would an opt-
in requirement. But its choice of law holding could make adjudication of
class suits impossible if laws of multiple states apply. (Erie and Klaxon
put federal courts in the same difficult position as the state courts with
respect to choice of law.)
 But Shutts doesn’t create a problem when there are no relevant
differences between the laws of potentially relevant states.
 Sun Oil: State can impose burden of conflict between law of the forums
on the party seeking application of nonforum law (here, the D). To
violate the Full Faith and Credit and Due Process Clauses, it’s not enough
that a state misconstrue the law of another state; the misconstruction must
contradict law of the other state that is clearly established and has been
brought to the court’s attention.
 District Court’s reasoning
 District court was required to apply IL choice of law rules, provided
those COL rules are consistent with the Constitution. And they are; they
create a presumption that IL law applies.
 Court found that the Ds hadn’t met burden of showing that negligence
law of other states was different from IL law. So court concluded that the
suit was manageable.
o Seventh Circuit’s decision
 Appellate review of certification decision: §§ 1291, 1292(b), 1651
 Certification isn’t a final judgment. How did circuit get around the FJR?
 §1291: Appellate court has jurisdiction over appeals of all final decisions
of district courts in the U.S.
 §1292(b): Provides for review of interlocutory decisions. But that’s
available only when the district court and the court of appeals agree that
review would be appropriate.
 Today, a party can seek interlocutory review of a certification decision
under Rule 23(f). Key difference from 1292(b) is that you don’t need the
district court’s decision.
 Mandamus Argument
 Remember Beacon Theatres: Court there said denial of a jury trial is an
appropriate use of mandamus, but otherwise it’s quite hard to get.
 Here: Court of appeals said mandamus is appropriate only if certification
won’t be effectively reviewable at the end of the case, and the ruling is
usurpative. Appeals court decided mandamus would be appropriate
because the certification decision could cause irreparable harm by forcing
Ds to settle and would be an abuse of discretion.

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 o Forcing Ds to stake their companies on outcome of a single jury
trial is improper
o District court’s COL decision violated limits on COL imposed by
Erie
o And the issue class posed 7th Amendment problems.

 7th Amendment issue

 Amendment says “no fact tried by a jury shall otherwise be re-examined
in any court of the U.S. than according to the rules of the common law.”
 Lots of debate over what this means. Woolley: Major reasons to doubt
Posner’s reading of this.
o Makes the re-examination clause much more important than in
the past.
o Posner’s argument:
 Can’t have comparative negligence without re-examining
negligence
 Problem with that: It makes collateral estoppel
impossible to use in certain circumstances that have
never been thought problematic.
 Choice of law issue
 7th Circuit rejected the issue that there are no material differences in
negligence law of the various states.
o Woolley: 7th Circuit may be right as a matter of substantive law;
not all states would agree on the novel legal theory that Ps had in
this case.
o But Sun Oil says that it’s not enough that a state misconstrue the
law of another state; misconstruction must conflict with law of
the other state that is clearly established and has been brought to
the court’s attention.
o And court doesn’t cite to Klaxon – which says a federal court
must apply COL rules of the state in which it sits.
 Was Posner right that it would be unfair to have the claims tried by one jury – the
class jury?
 Posner relies on the fact that 12 of the 13 juries that had addressed the
matter previously had found in favor of the Ds.
 But Ds can look at the whole portfolio of cases; Ps can’t, so Ds have a
strategic edge. Maybe a class is the way to even out the issue.
 Why is nonmutual collateral estoppel not available here? There are
inconsistent judgments.
 Ds’ resistance to class certification
 Class suit can put enormous pressure on Ds. With negative value class
suits, Ds have enormous incentive to resist class certification.
 Rhone-Poulenc and a slew of other cases demonstrate that the federal
courts aren’t a good place to seek class certification. Generally, a P’s

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 attorney will have better luck if he files class suit in a state judicial
system (though some states have a hostile reputation).
 Class Action Fairness Act: Makes it easier for a D to remove a class suit
to federal court – a boon for Ds.

D. Class Suits as a Strategic Tool for Defendants

 A class suit isn’t necessarily bad for a D and beneficial to a class; class members exercise very
little control over class counsel.
 Class counsel have enormous discretion:
o May settle a case over named Ps’ objections, and even over the objections of a majority of
the class, provided that the court approves the settlement (which is required under Rule
23(e)).
 23(e)(2): Court can approve only after a hearing and finding that the settlement is
fair, reasonable, and adequate.
 This is the reason why class suits are always embodied in a judgment, whereas in
ordinary litigation you don’t have a judgment other than dismissal.
o Counsel’s abilities to settle mean that the class device is a useful tool for Ds seeking to
impose a settlement – a way to manage risk.
 Class counsel may even negotiate a settlement before a class suit is filed. You can
bring the settlement to court when you file suit and seek certification.
 Use of class device to impose settlement on large groups of claimants can be
criticized and defended on various grounds. But focus on abusive settlements:
 Abusive settlements: These benefit class counsel who bargain,
essentially, with D for handsome compensation in exchange for agreeing
to a settlement that will benefit D by settling claims more cheaply than
they should be settled for – than would have been possible if class
attorney who was vigorously advocating for class interests would have
been able to obtain.
 In extreme cases, this can give rise to a “reverse auction” – where Ds are
bargaining with a number of class counsel, each of whom is competing to
settle the case more cheaply. Attorneys who lose that auction won’t be
able to recover any of their attorney fees. They essentially won’t be
compensated. Since courts have an incentive to clear dockets, they’re
sometimes less than conscientious in supervising settlements to ensure
they’re fair, adequate and reasonable.
 Traditional rule in the U.S. is that a class judgment is not entitled to full
faith and credit, and can be collaterally attacked if absent class members
aren’t adequately represented. But that traditional rule has come under
sustained attack in recent years and may not survive.
o Summary: You can’t assume that Ds will always be hostile to certification of a class suit.
Sometimes they can achieve objectives through certification.
 In some ways Class Action Fairness Act provides some protection against reverse
auctions (which are facilitated when multiple class suits are filed in multiple

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 jurisdictions that don’t coordinate with one another – then D has some leverage,
because as soon as the judgment is reached and approved in one jurisdiction, it
becomes res judicata and becomes binding on class members, unless collateral
attack is permitted).
 But if class suits are removed to federal court, mechanisms like §1407 (transfer of
suits to one district judge for pretrial proceedings before suit is returned to forum
of origin) and §1404(a) can lead to coordination of class actions brought in
federal courts.
 Also: CAFA includes substantive restrictions on settlements reached in federal
class actions. One provision in 28 U.S.C. 1713 provides protection against class
settlement in federal court that ends up costing absent class members money.
Some protection.
 But CAFA’s removal provision (1453) doesn’t allow absent class members to
remove the suit from state to federal court. That means CAFA may provide no
protection against abusive settlements to the extent that Ps’ counsel and Ds reach
agreement to keep or file class action in state court.
 But if competing class counsel files competing suit in state court before
abusive settlement is turned into state court judgment, it could be argued
(controversially) that federal court has the power to enjoin the state court
proceedings.
 Bottom line: Ds sometimes have strong incentives to resist certification.
But class certification can be an important strategic tool for Ds.

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