I.

Intro to Federal and State Judicial Systems

A. Introduction to federal and State judicial Systems / Motions and Discovery Practice
1. 721 F. Supp 906 (S.D. Ohio 1989)
a) 721
(1) Volume
b) F Supp
(1) Which Court / Reporter
(a) F. Supp
(i) Federal Supplement
(ii) District Courts
(iii) Too many to publish all cases
(b) F.
(i) Federal Reporter
(ii) Circuit Courts
(iii) Publish most cases
(c) U.S.
(i) U.S. Reports
(ii) SCOTUS
(iii) Publish every case
(2) 2/3d
(a) After reach 1000 volumes
(3) Also a S.C. Reported
(a) This is a private publication so comes out quicker
c) 906
(1) Page
d) S.D. Ohio
(1) Venue
(2) Subdivision of District Court
2. What is Civil Procedure – The litigation process (it is not only trials)
a) The process of resolving private disputes in judicial proceedings
(1) Extensive use of statues and rules
(2) Civil
(a) The area of law that defines the rights and obligations the people owe to one another
and that they enforce through privately initiated actions
(b) A Contrast to criminal law
(i) Governs the rules of conduct that a state imposes upon people and enforces
through state- initiated prosecutions
(c) Main difference between the two is the immediate object of the suit
(i) Object of criminal
(a) Punishment through fine or imprisonment
(ii) Civil
(a) Remedy for an injury in the form of a judgment
(iii) Also governed by different sets of procedures
(a) Federal Civil
(i) Federal Rules of Civil Procedure
(ii) Several categories where no jury trial is available
(b) Federal Criminal
(i) Federal Rules of Criminal Procedure
(ii) Has the right to a jury trial
(c) Both are governed by the same Federal Rules of Evidence
(iv) Different Burdens of Proof
(a) Criminal
(i) State has the burden of proof
(ii) Beyond a reasonable doubt

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 (b) Civil
(i) Less demanding
(ii) A fair preponderance of the evidence
(iii) Somewhat more Demanding
(iv) Clear and convincing evidence
(3) Procedure
(a) Procedural law
(i) As opposed to substantive law
(b) The system of resolving disputes usually in a judicial forum
3. Dispute Resolution by courts v. Other Agencies
a) Courts do make policy decisions
b) Principle sources of policy are legislatures and executive
c) Many disputes though are settled in non-judicial tribunals
(1) Administrative agencies staffed by non-judicial personal tasked with administering a
particular scheme
(a) Welfare
(b) Social security
(i) Usually can appeal decision of these agencies to a court
d) There also is Alternative dispute resolutions and mediation
4. State V. Federal Systems
a) Plenary
(1) Unqualified; absolute
b) Each state and Federal has own system of Courts
(1) Typically, three tiers
(a) Trails Courts
(i) Federal: District Courts
(b) An intermediate court of appeals
(i) Federal: Court of Appeals
(a) Responsible for a geographic location called a circuit
(c) Supreme Court
(i) Federal
(a) The final appellate authority over cases brought in the federal courts
(b) Also cases brought in the state courts on questions governed by federal law
c) State courts
(1) considered to have plenary authority – General Subject Matter Jurisdiction
(a) Can hear cases about any subject matter not reserved to the federal courts
d) Federal Courts
(1) Are courts of limited subject matter authority
(a) Can hear cases only if authorized to do so by federal statute or
(b) If the case fall within the judicial power laid out in AR III of Const
5. Stages of a Lawsuit
a) Investigation
(1) Litigation initiated when client consults attorney
(2) Attorney has a responsibility to make sure the client has in fact suffered some wrong for
which the courts can offer a remedy
(3) Code of ethics require attorney to make sure client has a claim before initiating litigation
(a) Rule 11
(i) Questionable claims and bad strategy are dealt with in rule 11
(ii) Cannot just sue everyone
(a) This looks bad to the judge and is against rule 11
(iii) Attorney must certify under rule 11 that the claims are reasonable under the
circumstances
(4) Rules of Federal and some state require that attorney certify that they have done an
investigation into the facts and law

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 (a) See Pg. 11
(5) Suing the individual in what capacity?
(a) As an individual
(b) As an agent of an entity or corporations
(i) Deeper pockets here
(ii) How can a corp be liable
(a) In some instances, corp can be liable for the actions of employees
(iii) Must prove that the individual was acting in the capacity of their employment
(a) Vicarious Liability
(i) Respondeat Superior
b) Fee Arrangements
(1) American Rule Controls
(a) Each side pay own fees regardless of outcome
(2) English Rules
(a) Fee can be recovered from losing party
(3) In many cases the fee is a contingent fee
(a) Client pays a percentage of the recovery to attorney, but pays nothing if loses
(4) Statute may provide for fee shifting to encourage certain cases to be brought
(a) Federal and State civil rights laws authorize Plaintiff to recover from defendants
(i) See 42 U.S.C § 1988
(5) Can also make third party arrangements
(a) Alternative Litigation Funding (ALF)
(i) Non-recourse loans
(a) Lender is repaid only in the event that plaintiff recovery some monetary
award or settlement
(ii) The sale of claims to third parties
(iii) Lending by attorney to client
(b) These raise many ethical questions over privilege and compromised control over
litigation
c) What Court are we going to File In?
(1) Subject Matter Jurisdiction— Federal Court or State Court
(a) Does the court have the authority to hear lawsuits of this type?
(i) 28 U.S.C. §§ 1331-1332
(b) In General determined by examining the complaint only.
(c) What kind of cases does this court have the authority to adjudicate?
(d) Must ask what the case is about, who is subject to the case?
(e) State Courts
(i) Are courts of General Subject Matter Jurisdiction
(a) Somewhere within the state judicial system there is a court with authority to
hear every kind of case
(i) The exception is a small category of claims that must be heard by
federal courts
(ii) Federal Securities
(iii) Antitrust
(iv) Patent
(v) Trademark
(b) State courts usually provide for a trial court of general subject matter
jurisdiction plus courts of more specialized responsibility
(ii) Are also courts of Original Jurisdiction
(a) Courts where a lawsuit can originate
(b) This is a distinction to appellate courts
(i) Cannot originate lawsuits in appellate
(iii) Subdivisions of the courts are the determination of Venue
(a) Bring suit in New York county

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 (b) King county
(c) Southern District
(d) Eastern District etc.
(f) Federal Courts
(i) Are courts of Limited Subject Matter Jurisdiction
(a) Most cases cannot be brought to Federal
(b) There must be Federal Subject Matter Jurisdiction (2)
(i) “Arising Under” Jurisdiction
(ii) Federal Question
(iii) Const
(iv) Federal Statute
(v) Treaty
(vi) See 28 U.S.C. §1331
(vii) Federal law (statute) must deem the defendants conduct wrongful
and give plaintiff a right to judicial remedy
(viii) When a federal court has subject matter jurisdiction this means
that all courts in the federal system have subject matter jurisdiction.
(ix) This does not mean that all the courts have personal jurisdiction
(x) Diversity Jurisdiction
(xi) See 29 U.S.C. §1332
(xii) Diversity of Citizenship jurisdiction
(xiii) When suit is between citizens of different states AND
(xiv) The amount in controversy is in excess of $75,000
(xv) This is read to require complete diversity
(xvi) ALL plaintiffs must be diverse from all defendants
(xvii) Even with diversity, still have choice of State or Federal
(ii) Most of the federal court’s jurisdiction is CONCURRENT the state courts
(iii) Very small number of cases that must be heard in Federal
(a) Federal has EXCLUSIVE jurisdiction
(i) Federal Securities
(ii) Antitrust
(iii) Patent
(iv) Trademark
(b) In most cases State has Exclusive Jurisdiction
(iv) Some cases filed in State court can be REMOVED to federal by defendant if
plaintiff could have originally files in Federal
(a) SEE 28 U.S.C §1441
(2) Sullivan v.
(a) Added reverends to keep the case in state
(i) This has a major impact if NY tries to Remove to federal
(a) 28 U.S.C.1441
(b) Directly filed in State court
(i) At the time (Civil Rights movement) Sullivan could get a sympathetic jury with
a state court
(c) Why NYT not take this immediately to Federal Court on 1st Amend?
(i) If argue to remove must do so quickly and must argue Fed has original
jurisdiction.
(ii) Does libel count as arising under Federal statue under 1331?
(a) Libel is a State tort law not a federal question
(iii) 1st was used as an affirmative defense in the state tort case.
(a) This would go in the answer
(iv) Sullivan’s complaint did not arise under Federal law via 1331 and no diversity
under 1332
(d) How did this end up in SCOTUS
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 (i) NYT lost at trial court
(ii) Alabama State court says 1st amend not an affirmative defense to libel
(iii)Appealed to Alabama Supreme Court arguing that 1st is an affirmative defense
(iv) Lost on appeal at Alabama Supreme
(v) Scotus has appellate Jurisdiction of questions of Federal law adjudicated in a
state’s highest court ????
(a) Procedure?
(b) SCOTUS has Appellate Jurisdiction for questions of federal law
(c) Art III Sec. 2
(d) This is distinct from 1331
(e) District Court has original jurisdiction of case rising under federal law via
1331
(vi) 2 ways to get to SCOTUS
(a) State Trial Court > State Intermediate Court of Appeals > State Supreme
Court > SCOTUS
(b) Federal District Court > Federal Circuit Court > SCOTUS
(e) Why are we reading this case?
(i) Matters of state law must be determined in state court if not removed
(ii) Can only remove is there is complete diversity
(iii) If adjudicated in state court may claim affirmative defenses that fall within the
prevue of federal question
(a) These affirmative defenses can be appealed to Federal but only after
adjudication in the highest state court
(3) Rose v.
(a) Preliminary Relief
(i) If you can shoe inevitable harm the court will stop that harm
(ii) This is temporary until a final decision of the court
(b) Injunctive relief
(i) A command to do or not do something
(ii) This is a final decision
(iii) Is permanent
(c) Attempted to remove to federal court
(i) USC 1441
(a) Does the federal district court have original jurisdiction?
(i) Who determines this?
(ii) The Federal Courts determine if they have original subject matter
jurisdiction
(iii) BUT only if a Motion to remand is filed
(ii) Must file a motion to remove within 30 days of receipt of service
(iii) Removal motion must be from the defendant
(iv) Remand must be from the plaintiff
(a) Required to question the jurisdiction of the federal court on removal
(b) Also determined by the federal court
(v) If there is no motion for remand the removal ends up in federal after motion to
remove
(d) Federal Question Jurisdiction
(i) FTNT 1 pg 50
(ii) Common law Due Process
(a) So why did rose’s attorneys not claim a federal question to get to federal
court
(i) Common law due proves is state due process not federal
(ii) So, did not arise under a federal question
(iii) Must argue diversity to get to federal court
(e) Giamatti argument
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 (i) MLB and Reds not “Juridical entity” and has not citizenship for diversity
purposes
(f) Empirical Judges
(i) Umpire does not tell the player how to play or what to do
(ii) Just calls balls and strikes
(iii) Makes decisions on the things that lawyers bring to them
(g) Why Judges write so expansively
(i) Makes a persuasive argument to parties and other judges and the public
(h) Why are we reading this case
(i) In evaluating diversity jurisdiction, a federal court may disregard the
citizenship of defendants that the plaintiff does not have a real dispute with.
(4) Personal Jurisdiction
(a) The court has the power to make binding decrees on the parties
(i) Do not have to bring suit in the state where the harm occurred but court must
have PJ
(b) A court has personal jurisdiction if the parties fall within the geographic reach of the
court’s authority.
(i) Federal??
(a) Must reside within the district? Circuit?
(c) A state decides the reach of its personal Jurisdiction
(i) If an individual believes that the state’s assertion of Personal Jurisdiction is
unfair, can bring suit that the Federal Const. prevents as a matter of “due
process of law”
(d) This generally comes into play in regard to the defendant
(i) B/C it was the plaintiff who brought the suit they presented themselves to a
particular court
(e) Can the defendant be sued within the geographical territory over which the court has
authority?
(i) Easy if defendant lives within the territory
(ii) More complex for out of state
(f) General Personal Jurisdiction
(i) Is an old doctrine
(ii) A corporation can be sued anywhere it is doing business
(iii) This has changed a bit recently
(g) BIKE Hypo
(i) This is not a federal suit because there is not complete diversity
(a) Plain and Def both from NJ and YU a NY corp
(ii) What if you really wanted to get into federal court?
(a) Do not sue dean only sue YU
(iii) Could bring 2 separate suits
(a) One against dean in State and another against YU in federal
(i) One of them would most likely STAY their case awaiting the
outcome of the other
(h) Choice between State and Federal
(i) Choice of forum always with the plaintiff who files the complaint with the
court
(ii) Advantages or Disadvantages between State and Federal
(a) State Court
(i) These courts are overworked
(ii) Are more willing to dismiss
(iii) May not have as much time to devote to complicated cases
(iv) These judges are elected
(v) They are part of a network of partisanship
(b) Federal Court

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 (i) These judges have more help
(ii) Clerks, financial resources, etc.
(iii) These judges are appointed
(iv) This means they are usually well respected and more experienced
(c) Jury Pools
(i) Federal pulling from a broader jury pool
(ii) State is pulling only from the small locality the court is in
(iii) Must ask yourself what are the total demographics of the jury pool
case is pulling from
(d) Procedures
(i) Federal procedure is broader in terms of discovery
(ii) Feds and state are distinct processes so must know both
(i) Tort law is a state law
(i) In fed or state court the state law will apply to tort
(j) After choosing a venue…
d) Pleadings
(1) FRCP 7
(2) The documents that set out in writing the claims and defenses of the parties
(3) Functions of pleadings (depends on the rules of the particular system)
(a) Apprise the opponent of the general nature of the pleader’s claims or defenses
(b) Present a detailed account of the factual legal grounds for the relief sought
(c) State exactly what the party intends to prove at trial
(d) What issues are going to be litigated in this case
(i) This is the purpose of the complaint and answer
(4) Level of detail required in pleading depends a function of the purpose the system intends to
further.
(a) Simply notify other side or
(b) Narrow issue early to perhaps reach a disposition without trial
(c) Federal
(i) Follow as rule of Notice of Pleading
(a) Requiring only a short and plain statement of the claim showing that pleader
is entitled to relief, and the courts jurisdiction
(b) See FRCP 8a
(c) SCOTUS ruled that must at least contain enough factual evidence to render
the claims “plausible” in the eyes of the court.
(ii) Issue narrowing thought to be better served by a process of pretrial discovery
rather than pleadings
(5) They are
(a) A complaint
(b) An Answer to a complaint
(c) And answer to a counterclaim designated as a counterclaim
(i) A counterclaim is a claim by a defendant against a plaintiff.  
(a) The responsive pleading to the complaint may include a counter-claim
(d) An answer to a crossclaim
(i) A cross-claim is a claim by one party against a co-party 
(a) e.g., a defendant claiming against another defendant, or a plaintiff claiming
against another plaintiff, arising out of the original complaint.
(e) A third-party complaint
(f) And answer to a third-party complaint
(g) If so ordered by the court a reply to an answer
(6) Complaint
(a) First must file a Complaint
(i) The initial pleading
(ii) A statement of claims in a way that shows the plaintiff is entitled to relief

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 (iii) A set of factual allegations with an eye towards the legal theory of the case
(a) Does a legal conclusion follow from these allegations
(b) If I can prove them then I am due some relief
(iv) Informs the defendant of the allegations made against them
(a) May be a simple assertion or
(b) May detail a precise chain of events
(v) RULE 15
(7) Motions
(a) FRCP 7
(8) Summons
(a) FRCP 4
(b) Says Def has 21 days to answer
(c) Take bot complaint and summons to clerk
(d) Clerk signs and seals
(e) Could try to settle before filing the summons and complaint with the clerk
(f) Personal service of the summons can provide both notice as well as a basis for personal
jurisdiction if process is served within the state is which the suit was filed
(g) BIKE HYPO QUESTIONS
(i) If filed in Federal Court in CT what action would you take no if you are dean
leslies Attorney?
(a) Motion for dismissal for lack of personal Jurisdiction
(b) She has not relation to CT
(c) This is not on the merits of the case
(ii) With Prejudice
(a) Bars further litigation ion the case
(iii) Without Prejudice
(a) Permits further litigation in the case
(h) Brief
(i) A set of legal arguments, facts, precedents, asking the judge to do something.
e) Service of Process
(1) Notification to defendant of the commencement of a lawsuit
(2) Usually consists of Service of the Summons
(a) An official document issued by the court in which the action has been files and is the
served to defendants, advising that a lawsuit has been stared
(3) Can be accomplished by several methods
(a) Personal Service
(i) A Marshall or sheriff, or a private person authorized by law hands the
defendant a summons and complaint
(b) Many states and federal now permitting service through mail
(i) As long as defendant returns a signed receipt acknowledging actual receipt of
the summon and complaint personal service is not required
(4) Waive Service
(a) Individuals being sued have a duty to avoid unnecessary cost associated with service
(b) Plaintiff may notify defendant of suit and request for a waiver of service.
(c) See Rule 4(d)
f) Defendant’s Choice of Responses
(1) Can Make a Dispositive Motion before serving an answer
(a) This may result in a dismissal of the claim
(i) Motion to dismiss for lack of personal or subject matter jurisdiction
(ii) Demurrer (Motion to dismiss for failure to state a claim)
(a) Defendant believes cannot be held liable under applicable law
(b) See FRCP 12(b)(6)
(c) RULE 12
(d) Can only make one 12b motion

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 (e) If not in the original motion then it is waved
(f) This tests the legal sufficiency of the complaint
(g) It assumes the fact of the complaint but says “so what” even on those facts
there is no legal basis for relief.
(iii) The court must resolve these motions before the defendant has even taken a
position on the facts of the case
(b) If above denied Defendant will file and serve ANSWER
g) Answer
(1) A response by the defendant
(2) Contains response that either admit or deny, or I do not know, to the allegations of the
complaint
(a) What happens if admit?
(i) Some facts are not dangerous or are indisputable
(ii) This establishes facts for litigation
(b) If Deny?
(i) These are then disputed issue of fact for the trial
(c) I do not know?
(i) Treated as a denial for pleading purposes
(3) To preserve Affirmative Defenses to claims, defendant may have to specify the nature of the
defense in the answer
(a) See FRCP 8(c)
(4) Defendant may also assert Counterclaims
(a) Alleging plaintiff’s wrongful conduct injured the defendant
(b) In Federal some counter claims, if closely related to the transaction giving rise to the
complaint, must be raise or that are waved
(i) See FRCP 13(a)
h) Reply
(1) From the plaintiff in response to the answer
i) Pretrial Discovery
(1) A process of obtaining information form the opposing party and witnesses
(a) Trial by surprise is unfair
(b) This helps narrow issues
(c) Fully informed adversaries more likely to settle
(d) Sometime this though is a waste of time and money
(2) All have to do is ask
(3) Methods of Discovery
(a) Dispositions
(i) Recorded examination of witnesses (Deponent) under oath
(ii) This is before a court reporter
(b) Request for production of documents
(i) This is most of discovery
(c) Interrogatories
(i) Written questions
(ii) Can only go to parties
(d) Subpoena
(i) Compel response of Discovery directed at nonparties
(e) See FRCP 26-37
(4) On what grounds can you object to discovery
(a) Expensive
(b) Time Consuming
(c) Irrelevant
(d) Privileged
(5) Motion to compel Discovery
(a) Ask judge when other side is not complying with discovery rules

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 (6) Summary Judgement
(a) Avoid trial by showing that there is no genuine material issue for trial
(b) Pretrial motion for Summary Judgment
(i) Judgement without trial
(ii) See FRCP 56
(iii) Lets moving party test the factual sufficiency of the opposing party’s position
(iv) Can uses information obtained in discovery to support this
(v) Can also use affidavits of personas having personal knowledge
(vi) All meant to show that the allegations in the pleadings have no factual
foundation
(vii) Opposing party can counter affidavit to try and show that there are material
factual issues that require a trial
(7)
j) Trial
(1) Fact finder is a judge or a jury
(a) VII Amed. Const. assures a right to jury in certain cases
(2) Most Federal cases seeking damages give rise to a right jury trial
(a) See equity pg. 9
(b) Either party may demand jury trial
(i) If federal is not seasonable requsted Jury trial is waived
(a) See FRCP (38)
(ii) Must ask early
(a) generally in the complaint
(iii) even if one party does not want a jury, other party has a right to have one.
(c) May be less that 12 people, but must be unanimous verdict
(i) Rules n State may be different
(3) Voir Dire
(a) Questioning of potential jurors to determine impartiality (or partiality)
(i) In federal conducted by Judge
(ii) In many states done by attorneys
(b) If deemed impartial court can dismiss for cause
(c) Parties are also allowed a limited number of Preemptory Challenges
(i) Strike juror without cause
(4) Plaintiff opening statements
(a) Plaintiff is party with the Burden of Persuasion
(i) The burden of persuading the trier of the facts by the requisite degree of
certainty
(a) Generally, a fair preponderance of the evidence
(5) Defense opening statement
(6) Plaintiff puts on case
(a) Calls witness for Direct Examination
(b) Defense then cross examination of witness
(c) Redirect question of witness
(d) Re-cross
(7) Lawyers responsible for objecting to evidence that is not permissible under the applicable rule
of evidence
(a) Failure to make a timely objection constitutes a waiver
(8) After Plaintiff, but before defense has put on its case. Defense may claim that plaintiff has
failed to establish a case for relief
(a) May motion for a Judgment as a matter of law (previously called Directed Verdict)
(i) See FRCP 50(a)
(ii) Jury is meant to be trier of facts in cases where reasonable persons may differ.
(iii) If the evidence is such that a reasonable jury could come out only one way, the
court should not allow the case to got to the jury

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 (a) Judge usually will want to hear other side
(b) Defense then puts on case, after which
(i) A renewed motion for summary judgement as a matter of law
(ii) Obviate
(a) Avoid, remove
(9) Counsels closing arguments
(10) Counsels and judge confer as to jury instructions
(a) Lawyers submit proposed Jury Instructions
(11) Judge may offer alternative views of the facts and instruct the jury on the legal consequence
that attach alternative views
(12) Verdict
(a) Can be general
(i) Who won and how much awarded?
(b) Can be Special Verdict
(i) Requires the jury to answer certain questions
(a) Was the defendant driving at an excessive speed at the time of the accident
(i) The judge then must determine how to apply the law to the jury’s
answer
(13) Post-Verdict Motions
(a) Renewed Motion Judgment as a matter of law (Previously Judgment notwithstanding
the verdict—JNOV)
(b) Motion for a New Trial
(i) I.e. the judge made some error requiring a new trial, or
(ii) The verdict was against the clear weight of the evidence
k) Remedies
(1) E.G. Final remedies
(a) Most common form is Damages
(b) Also injunction
(i) A judicial directive that defendant act or refrain from acting in a particular way
(c) Declaration of
(i) Rights
(ii) Status
(iii) Or other legal relationship
(a) E.G. Declaratory Relief
(i) that a party is not under an obligation to another party
(2) E.G. Interim Relief
(a) Restrain on assets
(b) Temporary Restraining order
(i) May be grated Ex Parte
(a) Without consulting the other side
(ii) Limited Duration
(a) About 10 days
(c) Preliminary Injunction
(i) This is more typical
(ii) Court directs party to perform specified acts or refrain from certain action until
the court decides the full merits of that action
l) Appeal
(1) Federal
(a) General rule is that appeals are only available from Final Decisions
(i) See 28 U.S.C §1291
(a) If plaintiff wins a motion to dismiss
(i) Not a final order WHY???
(b) If Defendant wins a motion to Dismiss
(i) This is a final order and is apealable

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 (b) Appeals governed by the Federal Rules of Appellate Procedure
(2) Appellate court decides case on the basis of the written record of the trial
(a) Contains the pleading and at least a portion of the trial transcript
(b) Does not hear witnesses
(3) Standard of Review
(a) The level of deference the appeals court gives the trial court’s ruling
(4) Appellate reviews most questions of law on Plenary basis
(a) It evaluates such questions De Novo
(i) Anew
(ii) Give no weight to the trial courts legal conclusions
(5) Questions of fact
(a) More deference to the trial court
(b) Cannot be overturned unless Clearly erroneous
(i) See FRCP 52(a)(6)
(6) Court has power to
(a) Affirm
(b) Reverse
(i) If the appleat court does this is may enter judgemtn accordingly or
(ii) May remand the case to trial for futher proceddings
(c) Vacate
(d) Modify
(7) Standards of Appellate Review
(a) Question of Law
(i) De novo
(a) Anew
(b) Question of Fact
(i) Clearly Erroneous
(a) Deference to the lower court
(c) Discretionary (Balancing)
(i) Abuse of Discretion
m) Enforcement of Judgments
(1) Enforcement proceedings
(a) State law governs this process (even in federal proceedings ????)
(i) Termed Execution
(a) May exempt certain assets of the losing party from execution
(2) State and Fed owe obligation to give full faith and credit to judgment of other American
courts
n) Finality
(1) Res Judicata
(a) Also called Claims preclusion
(b) The Thing has been decided
(c) Once court established right of litigants, the parties are not permitted to relitigate their
claims or defenses
(d) The bars claims between the same parties that were, or should have been, asserted in a
judicial proceeding that was resolved on the merits.
(2) Collateral Estopple (Issue Preclusion)
(a) Prohibits parties from relitigating particular factual or legal assertions that were decided
against the party in a prior proceeding
(b) Unlike Res judicata Collateral Estopple only preclude assertions that were actually
litigated and decided in earlier proceedings.
(c) In many jurisdictions this may be asserted against a former party by a new litigant who
did not participate in the earlier adjudication.
(3) Stare Decisis
(a) Abide by the decision

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 (i) A commitment to resolving similar cases consistently
(b) The factual differences between cases must be evaluated in reference to the legal
principle for which the earlier case was cited.
II. Service of Process
A. Mechanics of Service of Process
1. How to commence
a) File with the clerk
b) Clerk signs and seals
2. Service of Process
a) A party is given notice of the commencement of a lawsuit by a procedure referred to as service of
process
b) Service
(1) The delivery to the party
c) Process
(1) The thing being served
(2) A paper giving the party information about the suit
(3) May be only a summons
(a) A document informing the party of the name and location of the court in which the suit
is being brought and the general nature of the action, and requiring the party to appear in
court on a specified day or to serve a response within a specified time period
(4) In many Jurisdictions (Including Federal) process must also include the complaint
(a) A more detailed description of the claims being brought, the parties involved, and the
basis of jurisdiction.
3. The Summons and provisions for Service
a) FRCP Rule 4 FEDERAL
(1) Uniform federal form of Summons
(2) Think
(a) Nexus and notice
(3) A summons must
(a) Contents
(i) Rule 4(a)
(a) Name the court and the parties
(b) Be directed to the defendant
(c) State the name and address of the plaintiff’s attorney— or is not represented
—the name and address of the plaintiff
(d) State the time within which the defendant must appear and defend
(e) Notify the defendant that the failure to appear will result in a summary
judgement against the defendant for the relief demanded in the complaint
(f) Be signed by the clerk and
(g) Bear the court’s seal
(b) Issuance of Summons
(i) Rule 4(b)
(a) Upon or after filing the complaint, the plaintiff may present the summons to
the clerk for signature and seal. If the summons is properly completed the
clerk must sign and seal and issue it to the plaintiff for service. A summons
or a copy of the summons must be completed for each defendant to be
served.
(c) Service
(i) Rule 4(c)
(a) Summons must be served with a copy of the complaint
(b) Plaintiff is responsible for serving the summons within the time allowed by
4(m)
(i) 90 Days
(ii) If cannot find within timeframe must motion the court to extend

13
 (iii) Def can motion if serviced after 90 days
(iv) This is a dismiss with Prejudice (??????)
(c) Can be served by anyone over 18 who is not a party
(i) Lawyer is not a party
(d) Can be specially served by a marshal or someone specially appointed by the
court
(e) Forma pauperis
(i) a Latin legal term meaning "in the character or manner of a pauper".
It refers to the ability of an indigent person to proceed in court
without payment of the usual fees associated with a lawsuit or
appeal.
(f) What
(ii) Rule 4(e)
(a) Service upon individuals (may be served by…)
(i) Following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or
(ii) 4 (e)(2)Any of the following
(iii) Delivering a copy of the summons and of the complaint tot eh
individual personally
(iv) Leaving a copy of each at the individuals dwelling or usual place of
abode with someone if suitable age and discretion who resides
there
(v) Delivering a copy of each to an agent authorized by appointment or
by law to receive service of process.
(b) Is personal in hand service required?
(i) No
(c) Can service by mail?
(i) Not under Rule 4,
(ii) However if state allows or requires mail can use 4(e)(1)
(d) Can service by Email?
(i) 4 d 1 G
(ii) Says by other Means. Bu this is the waiver provision
(iii) Noting says yes nothing says no to email in this context
(iii) Rule 4(g)
(a) Service upon minor and incompetent persons
(i) Must be served following the state law in actions brought in courts of
general jurisdiction of the state where service is made.
(iv) Rule 4(h)
(a) Serving a Corporation, Partnership or association
(i) Unless federal law provides otherwise, or defendants waiver has been
filed
(ii) In a judicial district of the United States
(iii) In the manner proscribed in 4(e)(1) for serving an individual; or
(iv) BY delivering a copy of the summons and complaint to an officer, a
managing or general agent, or any other agent authorized by
appointment or law to receive service of process and— if the agent
is one authorized by statute and the statute so requires— by also
mailing a copy of each to the defendant; or
(v) At a place not within any judicial district of the United States in any
manner proscribed by Rule 4(f) for serving an individual except
f(2)(c)(i)
(b) Must this be in the state where the court is located?
(i) Can take place outside district or country.

14
 (v) Serving the United States
(a) Rule 4(h)
(i) Deliver a copy of summons and complaint to the United States
Attorney for the district where the action is brought, or an Assistant
US attorney or clerical employee whom the US attorney designates
in a writing filed with the court clerk; OR
(ii) Send a copy of each by certified or registered mail to te civil process
clerk at the US attorney office
(iii) Send….to the Attorney General of the US at Washington D.C. and
(iv) If the action challenges an order fo a nonparty agency a copy of
each by… to the agency or officer.
(vi) Serving a foreign, State, or Local government
(a) 4(j)
(i) Foreign
(ii) In accordance with 28 U.S.C. § 1608
(iii) State or local
(iv) Delivering a copy of both to its executive officer; or
(v) Serving each in a manner prescribed by that state’s law for serving
or like process on such a defendant
(vii) Proving Service
(a) 4(l)
(i) Unless service is waived proof of service is required
(ii) Unless served by Marshal or deputy proof must be by the server’s
affidavit
(iii) Failure to prove service does not invalidate the validity of service.
(iv) Court may allow proof of service to be amended
(viii) Time Limits
(a) 4(m)
(i) Must serve defendant within 90 days after complaint is filed court
must then dismiss unless cause is shown
b) Waiver of Service
(1) An additional method for affecting service on individual, corporations, and associations
(2) Intended to save time, effort and money.
(3) This provision has procedural effects only and does not effect on defendant’s rights to object
to improper jurisdiction or venue
(4) Does however foreclose objections to the sufficiency of the form and method of service
(5) This is not available to service upon the United States
(6) Must follow the form provided
(a) Included
(i) Notice and request
(ii) Waiver (2)
(7) Rule 4(d)
(a) Anyone subject to Rule 4(e), (f), or (h) has a duty to avoid unnecessary exposes in the
service of summons.
(b) A plaintiff may notify the defendant that a action has commenced and request a waiver
of process.
(c) The notice and request must:
(i) Be in writing and be addressed to the individual defendant or for a 4(h)
defendant to an officer, managing or general agent, or any other agent
authorized by appointment or by law to receive service of process.
(ii) Name the court where the complaint was filed
(iii) Be accompanied by a copy of the complaint, two copies of the waiver form, and
a prepaid means for returning the form
(iv) Inform the defendant of the consequences of waiving and not waiving service

15
 (v) State the date when the request was sent
(vi) Give the defendant a reasonable time, at least 30 days, after the request was
sent (60 if outside the US) to return the waiver; and
(vii) Be sent by first class mail or other reasonable means
(d) Failure to waive
(i) If defendant is in the US and fails to waive without good cause the court must
imposed upon the defendant
(a) The expenses incurred in making service
(b) Reasonable expenses, including attorney’s fees of any motion requited to
collect those funds
(ii) Must file a motion for the collection of expanse
(a) This gives defense notice of the motion and a chance to submit arguments
against the imposition of expenses
(i) “did not receive service”. etc
(e) Time to answer a waiver
(i) A defendant who, before being served with process, returns the waiver need not
serve an answer tot eh complaint until 60 days after the request was sent (90 if
outside the US)
(f) Proof of service is not required and these rules apply as if summons and complaint had
been served
(g) Waving of service does not waive an objection to personal jurisdiction or venue
c) Service of Process in a foreign Country
(1) Generally Governed by Hauge Convention 4(f)(1)
(2) If not
(a) Rule 4(f)(2)
(i) As prescribed by the foreign country’s law for service in that country in an
action in its courts of general jurisdiction
(ii) As the foreign authority directs in response to a letter rogatory; or
(a) Letters rogatory or letters of request are a formal request from a court to a
foreign court for some type of judicial assistance. The most common
remedies sought by letters rogatory are service of process and taking of
evidence.
(iii) Unless prohibited by the foreign country’s law
(a) Delivering a copy of the summons and complaint to the individual
personally; or
(b) Using any form of mail that the clerk address and sends to the individual
that requires a signed receipt.; or
(c) By other means not prohibited by international agreement
d) Territorial Limits of Process
(1) Rule 4(k)
(2) Generally, summons or filing a waiver establishes personal jurisdiction over a defendant
(a) Who is subject to a court of general jurisdiction in the state where the district court is
located
(i) Borrows state long arm statute
(b) Who is a party under rule 14(third party practice) or 19(Compulsory joinder of parties_
and is served within a judicial district of the US and not more than 100 mile from where
summons was issued; or
(c) When authorized by federal statute
(3) Federal Claim outside State-Court Jurisdiction
(a) For a claim that arise under federal law, serving summons or filing a waiver of service
established personal jurisdiction over a defendant if
(i) The defendant is not subject to jurisdiction in any state’s courts of general
jurisdiction; and
(ii) Exercising jurisdiction is consistent with the US Const and laws

16
 (4) Asserting Jurisdiction over Property or Assets
(a) Rule 4(n)
(i) Federal Law
(a) Court may assert jurisdiction over property if authorized by federal statute.
Notice must be given as provided by statute or by serving summons under
4(n)
(ii) State Law
(a) On a showing that personal jurisdiction may not be obtained in the district
where the action is taking place, by reasonable efforts to serve summon, the
court may aster jurisdiction over assets found in the district. Juris is
acquired by seizing the assets under the circumstances and in the manner
provide by state law in that district
B. New York State
1. See Sup NY CPLR 308
2. Personal Service up on a natural person
a) By delivering the summons within the state to the person to be served; or
b) Delivering within the state to a person of suitable age and discretion at the place of business, dwelling
place, or usual place of abode of the persona to be served, AND by either mailing to persona at
last know residence or by mailing by first class mail to the person actual place of business in an
envelope bearing the legend” Personal and confidential, and not indicating by return address or
otherwise that the communication is from an attorney
C. Misc. Class Notes
1. Actual Notice ≠ a Valid service of process
a) Actual Notice
(1) Are they aware?
b) Service of Process
(1) Legally Binding
(2) Personal Jurisdiction
c) 4 e 2 b
(1) This is valid legally binding service of process but s not actual notice
(2) Actual Notice is not an absolute necessity but also not a case killer
2. If Def not answer summons and complaint
a) This is a default
b) Must motion for a default judgement
c) Def can seek to reopen a default judgment
(1) It is rare that this works
3. Substantial Service
4. HYPO 308
a) Motion without Notice (???)))
b) No Service Needed for valid service (????)
D. Constitutional Limits of service of Process
1. In order to acquire Personal jurisdiction
a) The defendant must have some relationship with the forum in which the court sits
(1) Power
(2) Contacts
b) The defendant must be given notice of the commencement of an action
(1) Notice
c) The basis (minimum) for acquiring both nexus and notice is within the Due Process clause of 14 th
d) Due process requires that a state acting coercively on a defendant must have the proper authority
(1) Penoyer
(a) Ruled that jurisdiction turns primarily on the individuals connection ot the forum
(b) This is about whether a state may exercise authority+
2. Mulane V.
3. 2 ways to get to SCOTUS
17
 a) State Trial Court > State Intermediate Court of Appeals > State Supreme Court > SCOTUS
b) Federal District Court > Federal Circuit Court > SCOTUS
4. A trust separates legal ownership of properties
a) Sellor
(1) Establishes the trust
b) Beneficiary
(1) Receives the trust in some form in the future
c) Trustee
(1) Has legal ownership and control over the trust
5. An Accounting
a) Report the result of the trust
b) This is a judicial processing in NY under Banking Law § 100
(1) The trustee shows up and says here are the results of the trust
(2) The judge asks are there any objections
(3) Proceeding complete
(4) The beneficiary’s can attend this proceeding
(a) But the must receive notice
c) Settlement of Account means the judicial settlement of the accounting
6. Interest Beneficiaries
a) Interest is in receiving income from the trust
7. Principle beneficiaries
a) Interest was in receiving the principle (with interest if applicable) from the trust at some point
b) E.g. receive actual land at some point
8. NYBL §100
a) Provided for a method of notice distinct from 308
(1)
b) Lawsuit was a challenge to the constitutionality of the notice provision in §100
(1) Only required an ad in the newspaper (min) once a week for four weeks
9. What is guaranteed under 14th in this context
a) It is a protection against the deprivation of property without due process
b) This is a minimum standard not a maximus standard
c) A right to a minimal level of due process
d) Const. sets a minimum standard
10. Why are we reading this case?
a) Notice as a procedural aspect of 14th amend Due Process
b) General Principles of Due Process. (239)
(1) “notice reasonably calculated, under all the circumstances, to appraise interested parties of
the pendency of the action and afford them an opportunity to present their objections”
(2) The notice must be of such a nature as reasonably to convey the required information
(3) And it must afford reasonable time for those interested to make an appearance
(4) Rule Restatement
(a) Within the limits of practicability notice mush be such as is reasonably calculated to
reach interested parties(241)
c) Actual Notice not required
(1) But is a requirement of notice to at least make a reasonable attempt
(2) Attempts must not be “means less likely than the mails to appraise them of its pendency”
(241)
d) Due Process Minimum Standard
(1) Notice
(2) Nexus (Personal Jurisdiction)
(a) The minimum standard of what is a state’s Personal Jurisdiction
e) Holdings
(1) Those whose interest or whereabouts could not with due diligence be ascertained the
statutory notice (ad in the paper) was adequate (241)

18
 (2) Where the name and addresses affected by the proceeding are at hand the statutory notice is
inadequate.
III. Personal Jurisdiction Specific Jurisdiction`
A. Types of Personal Jurisdiction
1. General
2. Specific
3. Also
a) In Personam
b) In Rem
c) Quasi In Rem
B. Traditional basis of Jurisdiction (Pennoyer v Neff)
1. Power over Persons or Property of the Defendant
a) Both Constitutional and Statutory considerations in determining
(1) State and Federal
(a) Federal Considerations
(i) Full faith and credit clause
(ii) 14th amend Due process clause
b) Personal Jurisdiction
(1) The power to adjudicate in relation to the defendant
(a) Plain filed suit and so place self under jurisdiction of the court
c) Notice and Nexus considerations
(1) Compulsory service is the application of power
(2) You must appear = Personal Jurisdiction
(a) A Territorial (Power) Theory of jurisdiction
(i) Does the state have power of the Def?
(a) Physically in
(b) Domiciled
(c) Prop in state
(d) Agent in state
(i) Via contract
(ii) The legitimacy of governmental authority to act coercively
(iii) Territory and power as reasonableness and fairness
(iv) The territorial limits of a particular sovereign defines its jurisdictional
boundaries
(3) Pennoyer is a Nexus Case not a notice case
2. Pennoyer v. Neff
a) Nexus- relationship to power
(1) Personal
(2) Property
b) Oregon Statute
(1) Juris for non-res if prop in state at time of juris court extends juris over prop by attaching
jurisdiction to that property only
c) Neff
(1) Oregon statues violate due process via 14th
(2) This is not a Due Process case but is an Article 4 case
(a) Full faith and credit
(i) State not have to adhere to a void judgement in a different state
(ii) This only deals with a collateral attack
(a) a separate and new lawsuit is filed to challenge some aspect of an earlier and
separate case when an obvious injustice or unconstitutional treatment
occurred in the earlier case. This is different than an appeal, which is a
challenge to the decision made in the same case.
(b) This si a gamble

19
 (i) Let the first trial reach a conclusion, and then file a new lawsuit
claiming that there was invalid service of process in violation of
your client’s due process rights.
(iii) Due process allows a direct attack on Due process claims
d) About the relationship of defendant and State rising to Personal Jurisdiction
(1) Inhabitant (distinctions)
(a) A resident
(b) Domiciled
(c) Working for the day
(2) Court Noted Two Principles of public law respecting jurisdiction of an independent state
overs persona and prop
(a) Every state possesses exclusive jurisdiction and sovereignty over persons and property
within its territory
(i) Has the power to determine the civil status and capacities of its inhabitants.
(a) Contract
(b) Forms
(c) Rights
(b) No State can exercise direct jurisdiction and authority over person or property outside
its territory
e) In Personam Jurisdiction
(1) Over the person
(a) Domiciled in the state
(b) Not live in state but in state when served
f) In Rem
(1) About or in relation to the property
(a) Not in state but have property in state dispute over that property = Personal Jurisdiction
via in rem
g) Quasi In Rem
(1) Def not in state but has prop in state
(2) Liability only up to the value of the prop in state
(3) The suit is not about the property, but because there is property in the state, state attaches the
property
(a) E.g.
(i) A contract claim with an out of state resident who has property in the state
h) Why am I reading this case?
(1) Historical context
(a) First time SCOUT addressed personal Juris
(b) Provided a standard
(2) Standard
(a) A state has personal jurisdiction of persons and property within the state.
(b) A state may subject non-resident to personal jurisdiction only if that have property in
state, and the court attaches that property in rem as a means of service, in addition to
attempts to service the person personally.
i) Pennoyer exceptions
(1) Stat may determines status if ins state resident in relation to an out of state resident
(2) Non-resident doing business with and in state may be subject to appointment of an agent
C. A New Paradigm
1. Hess v. Pawloski
a) Drive in MA = The appointment of an agent in that state
b) Service on agent in that state confers nexus on out of state people
(1) Statue state must mail the process for actual notice
(2) Agent and mail = sufficient service according to the statute
c) Moved to dismiss for invalid service of process
(1) Says statue is violation of Due Process.

20
 d) Court says implied appointment of an in state agent is not a violation of due process.
(1) This is valid service
e) Common law
(1) Pg 75
f) Policy argument
(1) Took a previous state right (to exclude drivers until they formally appointed an agent) and
expanded it to include this case
2. The Minimum Contacts Standard: The Expansion of Personal Jurisdiction
a) International Shoe v. Washington
(1) Court stated that holding was assuming defendant is not present in the forum
(2) Claims arising out of a specific incident in the state related to the defendant
(3) This is a new theory of Const Juris
(a) Shoe is no longer about presence
(i) is about activity
(a) minimal contacts, fairness and substantial justice
(ii) 2 Activities
(a) Continuous and systematic
(b) Single and isolated
(iii) 2 Claims
(a) Related to claims arising out of activity in the state
(b) Unrelated to activity in the state
(4) According to Pennoyer where is the corp located?
(a) Where is it is created
(i) Domiciled
(5) Terms
(a) Doing Business
(i) Continuous and systematic activity in the state
(b) Transacting Business
(i) A lesser amount
(ii) Single and isolated activities
(6) SCOUS could have made a doctrinal argument but instead changed the conceptions
(a) Could have ruled very narrowly that there was a “Corporate presence”
(b) Instead made a very broad ruling
(c) Neff and Pennoyer were territorial and power considerations
(i) Are you in the state or out
(7) Juris is no longer about Territory and Power (Pennoyer)
(a) Now about minimum contacts, fair play and substantial justice (RULE 79)
(i) Corp is a fiction therefore the idea of presence is also a fiction
(a) A fiction cannot be present
(8) When reading a case, the facts presented in the opinion are the facts that the court deemed
relevant to the issue.
(a) Here
(i) The level of activity in the state
(ii) Relationship between activity and plain allegations
(a) Arise out of
(i) where jurisdiction is based on limited in-state contact, the claim must
arise out of the contact to support personal jurisdiction.
(9) Pg 80
(a) General Juris and Specific Juris Para 2 and 3
(10) Just because something is constitutional does not mean it is in force
(a) States must make a statute
(i) A long arm statute
(a) It gives the state courts a statutory basis for exercising personal jurisdiction
over non-residents who are served while outside the boundaries of the state.

21
 (b) Long-arm statutes vary from state to state, and fall into two categories:
(i) those that list the contacts required, e.g., domicile, use, or ownership
or possession of in-state property, actions arising out of in-state
tortious acts, insuring in-state people or property, contracts to be
performed in whole or in part in-state, etc.; and
(ii) those that simply permit the exercise of jurisdiction to the limits
permitted by the U.S. Constitution.
(c)
(11) The relevant contacts with the forum are the defendant’s contacts
(12) Does not overrule Pennoyer
(a) Test if defendant is not present on the state
D. Constitutional Limits on Long Arm Statues
1. Stream of commerce cases
a) These start at Grey
(1) Manufacture out of state and product ends up in the state.
2. Some State Long Arm Statutes
a) NY §302
(1) § 302. Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the
acts enumerated in this section, a court may exercise personal jurisdiction over any non-
domiciliary, or his executor or administrator, who in person or through an agent:
(i) transacts any business within the state or contracts anywhere to supply goods or
services in the state; or
(ii) commits a tortious act within the state, except as to a cause of action for
defamation of character arising from the act; or
(iii) commits a tortious act without the state causing injury to person or property
within the state, except as to a cause of action for defamation of character
arising from the act, if he
(a) (i) regularly does or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from goods used or
consumed or services rendered, in the state, or
(b) (ii) expects or should reasonably expect the act to have consequences in the
state and derives substantial revenue from interstate or international
commerce; or
(iv) 4. owns, uses or possesses any real property situated within the state.
(b) Personal jurisdiction over non-resident defendant in matrimonial actions or family court
proceedings. A court in any matrimonial action or family court proceeding involving a
demand for support, alimony, maintenance, distributive awards or special relief in
matrimonial actions may exercise personal jurisdiction over the respondent or defendant
notwithstanding the fact that he or she no longer is a resident or domiciliary of this state,
or over his or her executor or administrator, if the party seeking support is a resident of
or domiciled in this state at the time such demand is made, provided that this state was
the matrimonial domicile of the parties before their separation, or the defendant
abandoned the plaintiff in this state, or the claim for support, alimony, maintenance,
distributive awards or special relief in matrimonial actions accrued under the laws of this
state or under an agreement executed in this state. The family court may exercise
personal jurisdiction over a non-resident respondent to the extent provided in sections
one hundred fifty-four and one thousand thirty-six and article five-B of the family court
act and article five-A of the domestic relations law.
(c) Effect of appearance. Where personal jurisdiction is based solely upon this section, an
appearance does not confer such jurisdiction with respect to causes of action not arising
from an act enumerated in this section.
(d) Foreign defamation judgment. The courts of this state shall have personal jurisdiction
over any person who obtains a judgment in a defamation proceeding outside the United

22
 States against any person who is a resident of New York or is a person or entity
amenable to jurisdiction in New York who has assets in New York or may have to take
actions in New York to comply with the judgment, for the purposes of rendering
declaratory relief with respect to that person’s liability for the judgment, and/or for the
purpose of determining whether said judgment should be deemed non-recognizable
pursuant to section fifty-three hundred four of this chapter, to the fullest extent permitted
by the United States constitution, provided:
(i) the publication at issue was published in New York, and
(ii)  that resident or person amenable to jurisdiction in New York (i) has assets in
New York which might be used to satisfy the foreign defamation judgment, or
(ii) may have to take actions in New York to comply with the foreign
defamation judgment. The provisions of this subdivision shall apply to persons
who obtained judgments in defamation proceedings outside the United States
prior to and/or after the effective date of this subdivision.
b) NJ 4:4-4
3. McGee v. International Life Insurance Co. (1957)
a) Minimum contacts are distinct from fairness and substantial justice
(1) Three elements
b) Court 3 points
(1) Defendant solicited the contract
(2) Notion of relatedness
(a) Plaintiffs claim arises from the defendants contact with the forum state
(3) States interest
(a) CA had an interest in allowing its citizens to bring suit
(b) Had an interest in defending its citizens
c) One contract was enough for Juris
4. Hanson
a) Purposeful Availment
5. Grey v. American Radiator
a) Specific act statutes
(1) IL court
(a) If corp elects to sell its products knowing they will go to another state they are liable for
the tortuous acts within that state.
6. World Wide Volkswagen v. Woodson 1980
a) Filed in state court likely added WW and Seaway so that there was not complete diversity and could
not get removed
b) District court rejected a motion for dismissal
(1) This is not a final order
c) Def sought an interlocutory appeal
(1) An interlocutory appeal is an appeal of a ruling by a trial court that is made before the trial
itself has concluded. It asks an appellate court to review an aspect of the case before the
trial has concluded.
(2) Writ of Mandamus
(a) Mandates
(3) Writ of Prohibition
(a) Prohibit
d) Nature of the contacts
(1) Def did not avail themselves of Okla. law
e) In place of foreseeability
(1) Purposeful activity directed at the state
(2) Conduct and connections with the state that a corp should reasonable anticipate being hailed
to court in that forum
f) Dissent
(1) Brennen happy with the elements of shoe standard

23
 (a) Fair play and reasonableness
g) What if know, or should reasonably know product will get to the state
(1) Does this count as “Purposeful availment”?
(a) Via WW. Volks
h) Later note: However, there must be more than reasonably foresee for jurisdiction
i) "foreseeability" alone has never been a sufficient benchmark for personal jurisdiction
j) the foreseeability that is critical to due process analysis is not the mere likelihood that a product will
find its way into the forum State. Rather, it is that the defendant's conduct and connection with
the forum State are such that he should reasonably anticipate being haled into court there
7. Asahi v. Superior Ct of CA (1987)
a) Two theories but no law
(1) If put product in the SOC and reasonably anticipate it will reach the forum state then it is a
relevant contact (Breyer)
(2) Need more than SOC (O’Conner)
b) FRCP 14
(1) Cross complaint
(a) Case become a “Third Party Complaint”
(2) Contributor
(a) Pay a part
(3) Indemnification
(a) Pay All
c) Asahi could not explicitly say did not know valves were getting into he US
(1) Said instead could not have seen self-haled to court in the US
(2) Likely is “foreseeable” that they were likely to be haled
(a) Me, Foreseeable from which case?
(3) Does foreseeability = is purposeful activity directed at the state?
(a) AS in, they have placed their product in the stream of commerece
d) O’Conner opinion
(1) Is not the precedent of the court
(2) 2 Theories
(a) Place in Stream
(b) Place in Stream +
(i) Mere foreseeability is not enough
(ii) Must be action purposely directed at the forum
(a) Designing the product for the market
(b) Advertising int eh forum state
(c) Establishing channels for providing regular advice to customers in the forum
state
(d) Marketing the product through a distributor who has agreed to serve as the
sales agent in the state
(3) Language of Shoe
(a) Defendant must have minimum contacts. . . .
e) Asahi rejects foreseeability as insufficient basis for jurisdiction (HOLDING)
(1) Sets a new standard (along with WW Volks)
(a) There are no minimum contacts in this suit
(i) No definition as to what minimum contacts are
(b) Is this the right place for this suit
(i) “fair play and substantive Justice”
(a) O’Conner lists things the court must take into account in determining
whether this is the right place for the suit
(i) Burden on the Defendant
(ii) Interest of the forum state
(iii) Plaintiff’s interest in obtaining relief

24
 (iv) The interstate judicial system’s interest in obtaining the most
efficient resolution
(v) Shared interest of the several states
(2) Both are now necessary for Personal Jurisdiction
f) Transition to get to the Two-Part Asahi Test
(1) Shoe >>> WW. Volks >>>>>>>>>>> Asahi
(2) Fairness - Minimum Contacts. Both are necessary
(a) These are separate inquiries
(b) Purposeful availment is a necessary, but not sufficient condition for the
constitutionality of personal jurisdiction
(c) In this case it was unreasonable to adjudicate so was tossed
g) Why am I reading this case
(1) Sets a new standard for the necessary elements of Personal Jurisdiction over a foreign/out- of
state Corp
(a) Did not overrule WW Volks
(i) Minimum Contacts
(b) But used Fair play and Substantive justice
(i) Fairness
(c) Now a two-part test.
8. McIntyre v. Nicastro
a) Is only a judgment
b) There is not opinion and no precedent.
c) does NJ have an interest in this case
(1) Yes
(a) Injury occurred in the state to a state resident
d) Minimum Contacts
(1) Says directed activity only
e) List of the Stream of Commerce cases
(1) International Shoe (1945) >>> Gray (1961) > WW Volks (1980) > Asahi (1987) > McIntyre
(2011)
(a) These are determining where the boundaries are
(i) Contact
(ii) Fairness
f) Cali note
(1) the Court has suggested that in cases in which the intermediary was acting at the express
direction of the defendant, it would not be unfair to impute the intermediary's contacts to
the defendant.
E. Targeted Intentional Torts
1. Targeted as a distinction from purposeful availment
a) Cali Note
(1) purposeful availment and targeting share a common thread: the principle that a defendant's
connection with the forum be deliberate. Although many cases describe the need for
"purposeful availment," in light of Calder, it is perhaps more accurate to say that the
defendant must have a "purposeful connection" to the forum. That connection may be either
the defendant's choice to seek a benefit from the forum, or an intent to cause harm there.
Both are consistent with the due process concern that a defendant must be able to control
where it is amenable to jurisdiction.
2. Calder v. Jones
a) Effects test cannot ne the only test.
b) In this case an intentional Tort was directed at a CA individual
3. Walden v. Fiore
a) A plaintiff’s contacts with the forum state cannot be decisive in determining whether defendant’s due
process rights were violated
b) Minimum contacts analysis must look to the def contact with the state, not with a person in the state
25
 c) FRCP 42 USC 1983
(1) A private right of action
d) Why use a Bivins (Common Law) complaint and not 1983(statute)?
(1) 1983 only applies to state agents
(2) Biven is for federal agents
(a) A Bivens action
e) Why not sue DEA
(1) Gov has qualified immunity from violations
(2) Gov cannot violate
f) Personal Availment v. Purposeful availment Plus (?????) Via O’Conner, (Is this a standard) I thought
O’Conner Purposeful avail + was not accepted by the court ?
(1) Which prong on the standard here?
(a) Purposeful availment
F. Commercial Contracts
1. Fed court standard of jurisdiction narrower or broader than the state?
a) Same standard as the state court
2. Franchisee contracts
a) General Pr Specific Juris
(1) Specific
3. FRCP 4K
a) 4Kb
(1) Indemnification rule 14
(2) Joined under rule = Jurisdiction
b) 4k2b
(1) Bulge Rule
(2) Arises under State Claim v. Federal Claim??
c) How many and what test per rule
(1) K2 Fed claim
(a) Not subject to state juris
(b) Purposeful and directed actions
(c) Fair and justice
d) GET THE BOOK OUT
4. Burger King
a) Yes Shoe is a two part test
b) A stronger showing of fairness could overcome a lower amount of contacts
c) Burden on the defendant to show that a forum is not convenient
(1) Wealth of parties is irrelevant
IV. Personal Jurisdiction General Jurisdiction
A. Pennoyer (1877)
1. In Pennoyer what gives rise to General Jurisdiction (the assertion of authority over any claim, whether or
not related to defendants’ activities in the forum) (Corp or Individual)
a) Presence
(1) Appointment of an agent
b) Domicile
c) Consent
2. For general jurisdiction cases involving a corporation the test was to first determine if the activity was
systematic and continuous
3. Second test did jurisdiction comport with Due Process
4. The focus of Pennoyer was Territory
5. Shoe moves from territory to fairness
a) Said a corp in state if continuous and systematic activity then = GJ
B. Goodyear v. (2011)
1. Restricts the necessary relationship for there to be General Jurisdiction
a) Continuous and Systematic essentially out

26
 b) A form of domicile is back in
2. “Continuous and Systematic as to render them essentially at home”
a) This is a New Test
(1) “A court may assert general jurisdiction over a foreign corporation to hear any and all claims
against them when their affiliation with the state are so continuous and systematic as to
render them essentially at home in the forum state”
(2) The paradigm for general jurisdiction over a corporation with the domicile of a natural person:
for an individual the paradigm forum for the exercise of general jurisdiction is the
individual’s domicile;
(3) For a corporation it is an equivalent place one in which the corp is fairly regarded as being at
home; place of incorporation and principle place of business.
3. Presence and an agent are no basis for GJ
C. Daimler v Baunman
1. “Even if we were to assume MBUSA is at home in CA, and further assume that MBUSA contacts are
imputable to DAG, there would still be no basis to Subject Daimler to General Jurisdiction in CA, for
DAG slim contacts with the state hardly render it at home there.
a) Considering that MBUSA was and agent of DAG…
(1) This leaves only Domicile from Pennoyer
2. Transnational
a) Comity
(1) The international Version of full faith and credit
3. Goodyear says essentially at home
4. Not at home so not comport to Fair play and Substantial Justice.
D. Bristol-Myers Squibb v.
1. Mass actions
a) Not all claims could come to court individually
2. Why Join?
a) More people harm looks worse
b) More people equal more settlement pressure
3. Daimler was a huge shift
a) The effect was no General Jurisdiction on BMS
b) BMS had purposeful and Directed contact with CA
4. The sliding scale
a) Claims more related to forums contacts
(1) A scale of relatedness
b) Is the relationship for Jurisdiction purposes more like an on/off switch or is it more like a scale
(1) If it is more “fair” can a weaker relationship suffice for Jurisdiction
c) The strnght of the connection between the forum and the specific claims is relaxed if the defendant
has extensive forum contacts that are unrelated to the claim
5. The CA court argued there was more activity
6. SCOTUS says Either related or not
a) Arises out of and Relatedness are distinct inquiries
(1) Is sufficient activity directed at the state
(2) Is sufficient activity related to the state
7. The distributor was domiciled in the state
a) = General jurisdiction
8. RULING
a) Why are we reading this case?
(1) Court says
(a) For specific jurisdiction general contacts are not enough
(b) In order for a court to exercise jurisdiction there must be “an affiliation between the
forum and the underlying controversy, principality, and activity or occurrence that takes
place in the forum state” (Goodyear)
(2) Holding

27
 (a) The CA court may not exercise specific jurisdiction over a company when the plaintiff
is not a resident of the forum and the injury did not occur in the forum
(b) There must be a connection between the forum and the claim for there to be jurisdiction
9. Cali Note
a) Because Patricia's claim is related to, but did not directly arise from Acme's contacts with Illinois, the
key question for the court will be whether the claim is sufficiently related to defendant's forum
contacts to support specific jurisdiction
E. Burnham v. Superior Ct CA
1. No majority opinion – No Law
a) Agreed on juris but not on reason why
2. Personal Service of a non-resident in the state for General Jurisdiction
a) Tag Jurisdiction
b) Upheld personal in state jurisdiction (General Jurisdiction when present)
3. Also a fight between Scalia and Brenan over the role of judges
a) Scalia
(1) Rules based on history of the court
(2) Pennoyer
b) Brennan
(1) Rules on the new concepts of Fairness and justice - Shoe
(2) Must apply minimum contact test
4. When a natural-person defendant is served with process while in state, no matter how briefly,
you don’t have to worry about “minimum contacts.” The doctrine of “minimum contacts” applies only
to non-present natural-person defendants.
V. Property Based Jurisdiction
A. Traditional Concepts
1. In Rem
a) [Latin “against a thing”] (18c) Involving or determining the status of a thing, and therefore the rights
of persons generally with respect to that thing. —
(1) “An action in rem is one in which the judgment of the court determines the title to property
and the rights of the parties, not merely as between themselves, but also as against all
persons at any time dealing with them or with the property upon which the court had
adjudicated.” R.H. Graveson, Conflict of Laws 98 (7th ed. 1974).
b) Declare the rights of all persons to a thing
c) A dispute directly related to the property
(1) Domicile not matter in a claim to that property
2. Quasi In Rem
a) Judgements affecting of particular personas in a thing
b) Quasi 2 seeks to obtain personal judgment on a claim unrelated to the property
(1) Recovery can only be up to the value of the property
c) Claim not necessarily or particularly related to the property
(1) Traditionally
(a) Prop in State = Jurisdiction
3. NYCPLR
a) § 301. Jurisdiction over persons, property or status A court may exercise such jurisdiction over
persons, property, or status as might have been exercised heretofore.
4. Pennoyer
a) Claim could be about the property or not for Jurisdiction
(1) The property in Pennoyer was Real Property
5. Intangible property
a) Chose in Action
(1) Thing
b) An intangible asset
(1) A bank deposit
(2) A debt

28
 (3) A stock
(4) An option
6. Where the Chose in Action is located is very signifigant
7. Harris v. Balk
a) The intangible obligation travels with the obligor
(1) The obligation of the debtor claims to self
(2) The intangible at a bank is possibly available in any place the bank is
8. Traditionally
a) In rem
(1) meant General Jurisdiction
b) Quasi In Rem
(1) State could attach the prop even in cases that had nothing to do with the prop in order to get
Personal Jurisdiction.
9. Part of Pennoyer still god
a) If in state and served subject to General Jurisdiction
B. Shaffer v. Heitner (1977)
1. Quasi In Rem
a) A form pf personal jurisdiction based on attaching an individuals in-state property that has nothing to
do with the claim
2. A stockholder derivative suit
a) A claim from shareholders for harm done to the corporation by the officer and directors
(1) Suit #1 stock holders sue corp for relief
(2) Forces corp to sue the directors for injunctive relief
(a) Stockholders sue >>>Greyhound sues >>> Officers and Directors
(i) If director lose pay goes to greyhound
3. Greyhound had been subject to an Antitrust suit
a) Monopoly
(1) 2 ways
(a) One company control all or
(b) 3 companies get in a room and set prices
4. Enjoined
a) Stopped
(1) Court files and order
(2) If violate then in contempt
C. Bullets
1. SINGLE (OR SPORADIC) CONTACT WITH FORUM STATE: Not enough, unless the claim arises from
that contact, e.g., car accident in-state, issuance of insurance policy to resident. This jurisdiction is
called “specific” jurisdiction.
2. CLAIM UNRELATED TO CONTACT WITH FORUM STATE: The defendant’s contact with the forum
state must be so systematic and continuous as to make the defendant essentially “at home” in the forum
state in order to subject the defendant to forum state jurisdiction (this is called “general” jurisdiction).
3. TORT CLAIMS: Jurisdiction exists if either:
a) The defendant (or her agent) commits a tortious act inside the forum, and the cause of action arises
from that act; or
b) The defendant’s conduct out-of-state causes foreseeable injurious consequence in the forum.
4. PRODUCT LIABILITY CLAIMS: The defendant must have made an effort to reach the forum state’s
market, not merely by injecting the product into the stream of commerce, but by some act purposefully
directed toward the forum state, e.g., advertising aimed at forum state market.
5. A state always has personal jurisdiction over a non-resident natural-person defendant if the defendant is
served with process while she’s in the state, no matter how briefly. Burnham v. Superior Court (1990).
VI. Choice of Law Rules
A. Laws about laws
B. State by state analysis of what laws are to be used in an adjudication with a relationship to another state
1. These are state common law rules

29
 2. This is an analysis independent of Personal Jurisdiction
C. Example
1. Apply law of the state where the accident occurred
2. Apply the laws of the state with the greatest interest in having its law applied
3. Apply the laws of the tort law of the forum state
4. Contract?
a) Where signed
b) Where performed
c) In a clause
(1) A choice of law clause
(a) This is distinct from a choice of forum clause
(i) This is consent to jurisdiction
(2) Is Very common
d) There is also a distinction between contract and tort for forum of law clauses
D. Transfer Venue Example
1. CA >>> PA
2. PA evaluates CA choice of law rules to determine what law will rule the PA court after the transfer
a) This does not include procedural
E. Is another opportunity for an argument
F. Allstate v. Hague
1. MN Courts stated MN has interest and a better law
2. SCOTUS
a) Allstate had significant contacts to create state interests
3. Is there a stricter Due Process Standard than a Choice of Law standard?
a) Assertion of PJ over an out of state defendant or
b) Application of own law to events occurring outside of state
VII. Venue
A. The subsection of the court appropriate for bringing a case
1. Easy to wave venue
2. Easy to transfer within system
3. Difficult to transfer out
B. For state cases
1. State venue rules determine where action should be heard
2. NY CPLR 503
C. Federal Courts
1. §1391
a) Venue Generally
(1) Must be applied along with a Personal Jurisdiction analysis
(2) Section b (3)
(a) 1 and 2 cannot be available
(b) If there is personal Jurisdiction issue then split the cases
(3) To argue venue improper must be part of a 12 h motion
(a) If not then waived
(b) Must be applied with regard to 12 b and h
(c) If not motion before then in order to preserve as a defense must be a part of affirmative
defense in the answer
2. §1404
a) Change of venue
(1) Can change venue but not necessarily get to change law
(a) Choice of law is a separate analysis
b) Klaxon
(1) Ruled that in diversity cases court must apply whatever law the state in which it sits would
apply
c) Van Dusen

30
 (1) The law selected by the transferor court would continue to apply after a 1404 transfer
D. Forum Non Conveniens
1. In state courts and in the international context in federal courts the doctrine attempt to direct the litigation to
a convenient if not the most convenient forum.
2. Piper Aircraft v. Reyno
a) Piper motion to Remove USC 1441
b) Once in Federal Court
(1) 1404 Change of venue motion by Piper
(a) Witnesses and parties are at the palce of business not in CA
(2) Plaintiff’s
(a) Are from Scotland so were already traveling
(3) Interest of justice procedural info
(a) Hartzell
(i) Motioned for dismiss for lack of personal jurisdiction
(a) If dismissed in CA there is only one def in CA (Piper) and the Hartezel case
must be refiled in a suit in OH.
(ii) Two trials are inefficient and potential inconsistent outcomes
(iii) If having the trial in the US it is more efficient to have one trial
(iv) No PJ over Hartzell in CA but was amendable to process in PA with Piper
(4) Once change of venue to PA Motioned for Forum Non Convenies
(a) This is a dismissal
(b) Standard Analysis
(i) Is there an alternative Forum
(a) More reasonable
(b) More Convenient
(ii) Private Interests
(a) Where are the witness located?
(i) Availability of compulsory process
(ii) Cost of obtaining attendance of those who are willing
(b) Relative ease of access to the sources of proof
(c) Amount of travel for the parties
(d) Possibility of viewing the premises
(e) All other practical problem that make the case easy
(iii) Public interests
(a) Administrative difficulties of having the case presented
(b) Burden and interest of jury duty on the local residents who may have no ties
to the injury
c) SCOTUS
(1) Third circuit wrong as a matter of law to apply Van Dusen (Law of Transferrer analysis) test,
must apply the Gilbert test instead.
(a) Gilbert
(i) A dismissal may not be barred solely because of the possibility of an
unfavorable change in law for the plaintiff
(ii) Dismissal will ordinarily be appropriate where trial in the plaintiff’s chosen
forum imposes a heavy burden on the defendant or the court
(b) The possibility in an unfavorable change in law to either Plaintiff or defendant should
not, by itself, bar dismissal
(i) Does not rule it play no role
(a) If the remedy in the alternative forum is so clearly inadequate that it is not
remedy at all the unfavorable law may be given substantial weight
(c) Central Purpose of any FNC inquiry is to ensure that the trial is convenience
VIII. Subject Matter Jurisdiction
A. Introduction

31
 1. The first requirement for initiating litigation is bringing an action in a court that has jurisdiction over the
subject matter.
2. State Courts
a) Not generally a problem
b) State courts are courts of Plenary Subject matter jurisdiction
(1) Unless a state law has limited the court’s jurisdiction to a particular subject matter or a
particular federal claim is the matter the state court can resolve disputes over any subject
mater
3. Federal Courts
a) Courts of limited subject matter jurisdiction
(1) Have jurisdiction only over categories of cases or controversies set forth in Article III
b) Lower federal courts have juris only if congress has passed legislation authorizing juris for the court
to hear the particular category of disputes
c) B/C state have responsibility over the primary behavior of the citizens
d) Court’s power confined to Article III
e) Because lower federal courts must be established via congressional act the subject matter jurisdiction
of those courts must be affirmatively conferred by legislation
f) Federal Subject matter Jurisdiction inquiry requires two steps
(1) Finding congressional authorization of Jurisdiction
(2) Finding that such jurisdiction is within the Article III grant of judicial power
g) The court addresses this sua sponte
(1) On its own motion
(a) The courts will often address this problem on their own even if it is not brought up by
either party
(b) Why
(i) Must have jurisdiction to adjudicate
(2) These defects cannot be waived by either party
(3) If it is determined that court did not have jurisdiction that nullifies the entire litigation
B. Justiciability
1. Article III imposes two sets of limits on cases that may be heard in federal court
a) Judicial power of the U.S. may only operate on particular types of cases
(1) Diversity
(2) Federal Law
b) There must be a “justiciable” “case” or “Controversy”
(1) Doctrine of justiciability serves a twofold purpose
(a) The Judicial Competence Rational
(i) Limits the business of the federal courts to questions presented in an adversary
context and in a form historically viewed as capable of resolution through a
judicial process
(b) Separation of Powers Rational
(i) Define the role assigned to the judiciary in a tripartite allocation of power, so as
to assure that the federal courts will not intrude into the areas committed to the
other branches of government
2. Justiciability Component 1 - Standing
a) Standing to Sue
(1) In order to fall within the “cases and controversies” scope of judicial power a case must
usually be brought by a plaintiff seeking remedy for an injury that he himself has actually
suffered
(a) The injury must be real
(b) It must be particular tot the plaintiff
(i) This can be a problem in public law cases where the conduct of the defendant
typically the government may affect a widely diffuse public
(2) Personal Stake in the Controversy

32
 (a) In cases presenting constitutional challenges to Article III standing the court has
insisted that the plaintiff allege both (2)
(i) That they have a personal stake in the controversy because they have suffered a
“Direct Injury” as a result of the defendant conduct; and
(ii) That the relief the plaintiff seeks is likely to redress that injury
(b) Effects is to limit standing to litigant who can allege that they have been injured in a
particular manner that distinguished their claim from a generalized interest in good
governess or law compliance
(c) This has been criticized on a number of grounds
(i) Some constitutional violations cause injury to the general public
(ii) Ideologically committed litigants who suffered no particular harm may
nonetheless be effective advocates
(d) The Court’s Jurisprudence on what constitutes a judiciable injury has been inconsistent.
(i) See pg. 288
(3) “Causation” and “Redressability”
(a) The court has added requirements that the injury be “fairly” tracible to the challenged
conduct and likely to be redressed by a favorable decision.
(i) Again, the jurisprudence on this is inconsistent.
(a) See pg. 288-289
(b) SCOTUS
(i) With very few exceptions standing cannont be based on a plaintiff’s mere status
as a taxpayer
(4) Prudential Barriers
(a) Prudence
(i) the ability to govern and discipline oneself by the use of reason
(ii) sagacity or shrewdness in the management of affairs
(iii) skill and good judgment in the use of resources
(iv) caution or circumspection as to danger or risk
(b) The court has occasionally recognized additional limitations on standing that are not
required by Article III (Is only a minimum)
(i) A general presumption against allowing litigants to assert the rights of third
parties
(a) It has permeated exceptions
(ii) A prohibition against plaintiffs raising “Generalized grievances”
(a) The injury of the plaintiff must be different from the injury suffered by the
general population
(iii) SCOTUS has recently suggested that this is a misnomer
(a) The courts task in determining whether a legislative conferred casue fo
action encompassed a particular plaintiff’s claim required the use of
“Traditional Tools of Statutory interpretation”
(i) Scalia
(ii) Just as a court cannot apply its independent policy judgement to
recognize a cause of action congress has denied, it cannot limit a
cause of action that congress has created merely because prudence
dictates.
(5) Role of Congressional Legislation
(a) the significance of whether a standing rule is prudential vs constitutional is that
congress may have the power to override prudential, but not constitutional limitations on
standing via Statute
(b) Terms again
3. Disputes Not Appropriate for Judicial Resolution
a) Other SCOTUS recognized justiciability barriers that define the appropriateness of the suit of judicial
resolution
b) Advisory Opinions

33
 (1) The court early on made clear that the “Judicial Power” within the meaning of Article III
requires that judicial action resolve the underlying dispute
(a) As such the courts are prohibited from issuing advisory opinions concerning the legality
of proposed legislation or executive action
(b) Also barred from judgment subject to change by another branch of government
(i) Cannot screen claims against the federal government if the ultimate decision
whether to honor the claims was made by the executive branch
c) Political Questions
(1) Some matter not justiciable because the courts are not viewed as the appropriate institution to
construe the underlying law.
(a) The constitution thought o commit enforcement of some legal provisions to the
exclusive authority of the coordinate political branches.
(i) Article I assigns the senate exclusive authority to try the ompeachment of
federal judges
4. Mootness
a) A dispute may at the outset be justiciable but because of subsequent events may later cease to be a
“Live Controversy” before the court.
(1) Example
(a) If a plaintiff is seeking injunctive relief, but the defendant has already provided releife
there is no longer a “Case” or “Controversy” for the court to adjudicate.
(2) New case law seems to point to this as being a prudential limitation though instead of a
constitutional one.
(a) Friends of Earth the court allowed the suit to enjoin the defendant even though the
polluting site had been torn down during the litigation, the only sanction still available
was a fine payable to the government, not the plaintiffs
C. Diversity of Citizenship Jurisdiction
1. For a federal Court to have subject Matter Jurisdiction the controversy must be
a) Justiciable
b) Must be within the heading of the federal jurisdictional power in Article III Section 2 and
c) Within the statutory grant of Jurisdiction
(1) Diversity
(2) Federal Question
2. The Complete Diversity Requirement; Rational
a) The diversity must be between each side of the v.
(1) NY > CT, CT = Div
b) Strawbridge v. Curtiss
(1) Ruled each distinct interest should be represented by persons all of who are entitled to or may
be sued in the federal courts
(2) ????
c) Is Strawbridge Constitutionally Compelled
(1) Court in 1967 (Tashire) stated that Strawbridge was an interpretation of the statute (1332)
rather than the reach of Article III
(2) As such congress and some of the lower courts had made use of “Minimal Diversity.”
(a) Congress passed
(i) Multiparty, Multiform Trial Jurisdiction Act and
(ii) Class action fairness act
(b) There are criticisms of this use of Article III
(c) And criticisms to diversity jurisdiction in general See pgs. 293-295
d) Exceptions to Diversity Jurisdiction
(1) Federal will not exercise adjudication even if diversity is met.
(a) Domestic Relations
(i) Ankenbrandt
(a) Exception encompasses only cases involving divorce, alimony, or child
custody cases

34
 (ii) Modern justification is that this is an area of state expertise often involving
state resources
(b) Probate
(i) Markham
(a) A federal court has no jurisdiction to probate a will or administer an estate
(i) To stop the court from endeavoring to dispose of property that is in
the custody of a state probate court
3. Variations on Diversity Jurisdiction
a) Fraudulent Joinder
(1) A federal court may disregard the citizenship of some parties in determining whether the
requirement of complete diversity is satisfied when it appears that the plaintiff has noi real
controversy with the non-diverse plaintiffs
(2) A Real-Party-in-interest analysis
(a) Whether a given association or other entity should be disregarded
b) The Strawbridge Rule
(1) Complete Diversity
c) §1441 Removal
d) The Ultimate Interest Test
(1) Realigning of parties in accordance with an understanding of the ultimate interests of the
parties before determining if complete diversity exists
(a) Tort Claimant Sues > Insured Sues >> Insurance company
(b) Tort Claimant and Insured Co-Plaintiffs for diversity considerations
(2) Shareholder derivative actions can make this difficult to apply because there are shared
interests
(a) SCOTUS has ruled that the company can be treated as a defendant for diversity
purposes when it is joined as an indispensable party.
e) Ben-Hur Rule
(1) Each named class representative must be of diverse citizenship from each defendant, but the
citizenship of the unnamed class members is not relevant in determining diversity
f) FRCP 21
(1) A plaintiff who finds that it has joined a party that destroys diversity may ordinarily drop that
party in order to preserve the court’s jurisdiction
(a) A plaintiff may invoke this even after judgment or at the appellate level
4. Alienage Jurisdiction
a) §1332 (a)
(1) Jurisdiction over citizens of a state and citizens or subjects of a foreign state…
(a) Must be citizens or subjects of a foreign state
b) Rational
(1) Local bias against foreigners may be mitigated by enabling that foreigner to remove (1441) to
the federal courts
(2) To compel foreigners to litigate in state courts would be an affront to the sovereign nations
from which they come
c) An alien admitted to the U.S> for permanent residence shall be deemed a citizen of the state in which
they are domiciled
(1) Green card etc.
d) Courts have determined that diversity was destroyed by aliens on each side regardless of which side
the Citizen was on.
(1) However, courts have held that where there are citizen on each side there is diversity per
§1332
e) Citizens of States not recognized by the U.S.
(1) Persons who are citizen of state not recognized as free and independent sovereigns are
similarly excluded from diversity
(2) However;

35
 (a) Courts have ruled that one a country has been recognized individuals from a country do
have alienage jurisdiction even if the US has severed diplomatic ties with that country
f) American Citizen Living Abroad
(1) Are not aliens for the purpose of diversity
(2) Are not citizens of any particular state
(3) Do not fall within any of the categories of diversity 1332
(a) Thus cannot sue or be sued on the basis of diversity
(4) When that citizen is the member of a firm, that membership can render the firm stateless for
the purpose of diversity
(a) Preventing a foreign plaintiff from bringing suit against the partnership in federal court
g) Dual Nationals
(1) Only the US citizenship is relevant for the purpose of diversity
(a) If they were allowed to use their alienage for jurisdiction this would give that class
superior access to the federal system.
h) Alien Corporations
(1) A corp is a citizen of every State and foreign state where it has its principle place of business
(2) Which law determine whether a foreign entity is a citizen or subject to for the purposes of
alienage provision of 1332?
(a) SCOTUS
(i) Look to the foreign law to determine what functional characteristics a foreign
entity possess, but it relies on US law to decide whether those characteristics
make the entity a citizen or subject to the foreign state
i) Foreign States Under 1332 a4
(1) Provides for action when the action is between the foreign state as a plaintiff and citizen of a
State or different states
5. Amount In Controversy
a) Calculating the amount in controversy
(1) The Legal Certainty Test
(a) Unless the law gives a different rule, the sum claimed by the plaintiff controls if the
claim is apparently made in good faith. It must appear to a legal certainty that the claim
is really for less than the jurisdictional amount to justify dismissal.
(i) Def probably must demonstrate the existence of a statutory or contractual
limitation on recovery
(2) The amount is to be calculated at the commencement of the lawsuit and subsequent events—
such as the actual recovery— will not destroy the courts jurisdiction
(3) The general Rule is
(a) Look to the value to the plaintiff of the sought for relief rather than the cost to the
defendant
(i) However
(a) When relief is injunctive
(i) Some authority for the proposition that The amount in controversy is
the pecuniary result to either party which the judgement would
directly produce
(4) Ad Damnum Clause
(a) State the amount of damages claimed by the plaintiff
(b) Some state do not require and some forbid this in the claim
(i) Federal Requires it FRCP 8a3
(c) IF trying to remove def now must show that plain is seeking more than 75,000 in relief
(i) Sometimes use pretrial settlement negotiations to prove this
(d) This creates a distinction between Plain bringing a case into federal court where they
state a good faith claim, and the Def has to prove to a legal certainty that amount is
below, and a def trying to remove to federal where there is no stated amount in
controversy now def must prove amount is above.

36
 (i) 1446 requires that defendant trying to remove prove the requisite amount in
controversy by a Preponderance of the evidence
(a) There is a bad faith clause that extends the one year limited on removal if
plaintiffs withhold the amount in controversy
(5) The Pertinence of Counter Claims
(a) There is little case law on whether counterclaims should be included in this calculation
(b) Some lower courts have looked beyond the complaint to include counterclaims
(6) Attorney’s Fees
(a) Courts are divided on whether to include this in the calculation when the fees are
obtained in the event of a positive outcome for the Plaintiff.
(b) Majority seems to say that fees may be included only when they are provided for by
contract or statute.
(7) Aggregation of Claims
(a) When a single plaintiff asserts more than one claim against a single defendant the
amount of the two claims may be aggregated to get to the jurisdictional amount
(i) The test of jurisdiction is the joint or several character of the liability to the
plaintiff
(b) Claims of separate plaintiffs seeking similar but distinct relief cannot be aggregated
even if they are transitionally related
(i) Claims by separate plaintiff can only be aggregated when several plaintiffs
unite to enforce a single tile or right, in which they have a common and
undivided interest
(a) When though are the underlying rights Common and undivided??
(c) A single plaintiff cannot usually aggregate claims against multiple defendants.
(8) Class Actions
(a) Diversity
(i) Each named class plaintiff must be of diverse citizenship from each defendant,
and the citizenship of unnamed class members is not taken into account
(b) Amount in Controversy
(i) SCOTUS
(a) Each individual plaintiff—including each unnamed absent class member—
must have a claims that satisfies the requisite jurisdictional amount
(i) Follows the traditional Rule?
(ii) Multiple plaintiffs cannot aggregate claims unless there is a common
and undivided interest with respect to the plaintiffs claims.
6. Examples
a) NY >>> CT, CT = Div
b) NY >>> CT, NY ≠Div
c) NY >>> CT, Coke (DE INC, GA Principle) = Div (1332 (c))
d) NY >>> CT, France = Div a(3)
e) NY >>> NY, France ≠ Div
f) France >>> Britain ≠ Div
g) NY >>> British ≠ Div
h) NY >>> CT for child support ≠ Div
(1) Domestic Exception
i) NY >>> TX in NY for a prop in OK received by TX in a will and in probate ≠ Div
(1) Probate Exception
j) NY >>> CT, CT in NYSD = Div
(1) CT can remove 1441
(2) D can file to remand
k) SEE HYPO SHEET FOR 1441 hypos after this
D. Notes on Concurrent Jurisdiction
1. Federal Courts play the dominant role in the adjudication of disputes governed by federal statue
a) It is a mistake thought o read the state courts out of the picture

37
 b) State courts remain involved stemming from two principle sources
(1) In a great may cases federal law appears in a case as a defense to a claim or other preceding
based on state law.
(a) If there is a clash between state and federal the supremacy clause requires federal to
prevail.
(2) Even where a plaintiff is asserting a right to recover directly under a federal statute the
assumption of the system is that absent a clear intention on congresses part to commit the
statute to the exclusive jurisdiction of the federal courts, the state court have concurrent
jurisdiction over claims based on federal law
(3) Examples of exclusive federal jurisdiction are rare
(a) Admiralty
(b) Bankruptcy
(c) Patent and copywrite
(d) Tort claims against the US
(4) Congress can stipulate a rule will be adjudicated by state courts
(5) Courts are reluctant to interpret federal statues as limiting juris only to states courts in the
absence of explicit language foreclosing federal juris
c) SCOTUS
(1) Federal district court will retain 1331 juris over any federal cause of action unless the federal
statute “expressly or by fair implication excludes” such jurisdiction.
(2) Like the presumption of strong state court concurrent jurisdiction a similar presumption exists
favoring concurrent federal court jurisdiction on claims that otherwise meet the
requirements of t§1331 federal question jurisdiction
(a) I.e. whenever a federal statue creates a cause of action satisfying the Holmes test,
divestment of federal court jurisdiction should be found no more readily than divestment
of state court jurisdiction with concurrent jurisdiction presumed to exist in the absence
of explicit language to the contrary
(i) Holmes (Creation) Test: A suit arises under the law that creates the cause of
action. American Well Works, 303  Exception: If federal statute creates cause
of action, but the suit does NOT require interpretation of the Constitution or
laws of the United States. Shoshone, 304. • Federal question jurisdiction
requires the interpretation of federal law or at least the implication of federal
policy
(ii) the action or process of selling off subsidiary business interests or investments
(b) These state cannot close their doors to federal claims
(3) Advantages
(a) Permits some sharing of the workload and thus limits the growth of the federal judiciary
(b) Local and state courts may be more continent locus for certain litigants than one or two
federal courts in a state
(c) Promotes commitment to national law and fosters a unitary legal community
E. Arising Under Jurisdiction
1. Article III
a) Arising Under
(1) Very Broad
2. 1331
a) Arising Under
(1) Very much narrowed by its statutory language
3. Mottley
a) The well pleaded complaint Rule
(1) The Federal Question must arise on the complaint for it to “arise under” for either 1331 or for
1441 removal via (c)(1).
(2) The Federal Question cannot be an actual or an anticipated defense.
(a) If so, the defense must be adjudicated in the state court first before seeking Federal
adjudication.

38
 (3) Well pleaded means states the claims well.
4. SCOTUS a case arises under federal law whenever a federal question forms an ingredient of the original
case.
5. Question
a) Can this be only an element of the complaint, or must it be that important federal interests are at stake
as a central if not the singular controversy in order for the question to “arise under”
(1) The courts are inconsistent
6. Declaratory Judgment (347)
a) §2201-2202
b) A suit for declaratory relief often reverses the usual order of the lawsuit by permitting the party who
would have been the defendant in the traditional coercive action, to initiate the proceeding and
obtain a declaration of rights rather than wait to find itself a defendant in a lawsuit
c) In Motley, the federal question would appear on the face of the R.R. declaratory judgment complain
d) It appears as if this only arises under federal law when the coercive action (Plaintiff files the
complaint) that it anticipates itself arise under federal law
(1) Skelly
7. There is a gap between Constitution, Statutory (1331, 1332) and case law
a) Case law is somewhat narrower than the grant of powers in the constitution
(1) Statutory narrowing of the district court Subject matter jurisdiction
(a) Limitations
(i) Amount in Controversy
(2) Judge Made
(a) Complete diversity
(i) Strawbridge
b) Also judge made expansions to district courts Subject matter Jurisdiction
(1) § 1367
(a) Supplemental Jurisdiction
F. Supplemental Jurisdiction § 1367
1. Pendant Jurisdiction (old designation that was codified under 1367 Supplemental Jurisdiciton)
a) Plaintiffs joined of a state claim with a claim based on federal question
(1) Only federal question not diversity
2. Ancillary Jurisdiction (old designation that was codified under 1367 Supplemental Jurisdiction)
a) Federal court adjudicated an entire case when it had subject matter jurisdiction over only part of it.
b) When court had subject matter jurisdiction over certain claims it can adjudicate non-federal claims
when they are incidental or related to the federal claims
(1) When they arise out of the same transaction or occurrence.
(2) Diversity or Federal Question
3. UMW v Gibbs (Pendant Example)
a) Based on a §303 violation and some state claims
b) Federal §1331
(1) Arising under jurisdiction
c) Court rules that there was no federal claim
d) Where dose authority come from to continue on and adjudicate the state claims.
e) Hurn (352)
(1) Hurn Test
(a) State law claims are appropriate for federal courts determinization if they form a
separate but parallel ground for relief sought in a substantial claim based on federal law.
(2) Pre federal Rules
(3) Joinder, can join but SMJ must come from somewhere.
f) Gibbs dismisses Hurn
(1) Judicial power exists whenever state claim “arising under the constitution law of the US etc…
AR III § 2 and the relationship between that claim and the state claim permits the
conclusion that the entire action before the court compromises but one constitutional case
(a) Rule pg 353

39
 (i) “The state and federal claim must derive from a common nucleus of operative
fact”
(b) Holding
(i) If considered without regard to their state or federal character, a plaintiffs
claim are such that he would ordinarily be expected to try them all in one
judicial proceeding, then, assuming the substantially of the federal issues, there
is power in the federal courts to hear the whole
(2) Pendant is a doctrine of discretion
(3) This is an expansion of judicial power
g) Moor v NY CE (355) (Ancillary Example)
(1) 1331
(2) Counterclaim from NYCE for theft (Conversion)
(a) This is a state TORT
(3) RULE 13 (a) + (b)
(a) Compulsory
(i) Arises out of transaction or occurrence of original claims
(ii) Does not require adding another party over whom the court cannot acquire
jurisdiction
(iii) (No independent Basis Need)
(b) Permissive unrelated claims
(i) Needs an independent basis for 1331 SMJ
(4) FRCP provides for lots of expanded jurisdictional claims
(a) Never though confers Subject matter jurisdiction
(i) Generally only Federal Statute confers jurisdiction
(a) 1331
(i) Federal Claims
(b) 1332
(i) Diversity
(c) 1367
(i) Supplemental
4. Joinder of Claims
a) FRCP 18
(1) See notebook 10/16/19 for hypo notes
5. Joinder of Parties
a) FRCP 20
(1) see hypo notes 10/16/19
b) Process
(1) Is there Proper Joinder
(2) 1367 (a) federal claim?
(3) 1367 (b) exception?
6. Exxon Mobile v Allapattah and Rosario Ortega v. Starkist Foods. (Opinion)
a) Article III broader than statute 1331 1332 allowing room for supplemental Jurisdiction
(1) Exon
(a) Class action
(b) Not all P have AIC
(2) Ortega
(a) Gilr has AIC
(b) Family does not have AIC
b) Class actions left out of 1367
(1) What is the statutory interpretation of 1367 (b)?
(a) There are some restrictions to supplemental Jurisdiction relating to joinder
c) Discussion starts with the dissent
(1) Says (b) is ambiguous
(a) Me

40
 (i) Can an omission create ambiguity
(2) Dissent is trying to bring in the past ideas of Pendant and ancillary jurisdiction
(a) Cannon
(i) No hide elephants in mouseholes
(3) interpretation of 1367 (a) as it relates to diversity cases
(a) Absolute
(b) Can separate diversity and AIC
d) Holding
(1) So long as the other elements of Jurisdiction are present and at least one plaintiff satisfies AIC
1367 authorized supplemental jurisdiction over the claims of the other plaintiffs in the same
Article III case or controversy, even if those claims do not meet AIC
(2) PROCESS
(a) Jurisdiction over the civil action?
(b) Constitutional and Statutory basis for supplemental jurisdiction over the other claims in
the action
(i) 1367 (a) ?
(ii) Is there and exception
(a) 1367 (b)?
e) Class Action Fairness Act
(1) Confers federal diversity Jurisdiction over class actions (Rule 23) where the aggregate amount
in controversy exceeds 5 million
(a) This is defendant friendly
(b) Can remove
IX. Law Applied in Federal Court
A. Which Jurisdiction’s law will be applied in a given case?
B. Federal court too must decide whether to apply federal or state law
1. Considerations
a) 10th amend
(1) Power not given to the federal nor prohibited to it are reserved to the state or the people
b) Article III
(1) Judicial power vested in one supreme court and the inferior courts that congress shall ordain
and establish
(a) Judicial power includes
(i) The authority to resolve certain kinds of cases and controversies
(a) Via statute
(i) Arising under
(ii) Diversity
(ii) Does this include the power to create common law?
(iii) What about in diversity cases on state claims
(a) Torts etc…
(b) A contract unenforceable in state court may be enforceable in federal court
within the same state.
(iv) If the federal cannot establish common law as such where should it go for legal
rules to adjudicate cases?
(a) 10th amend
(i) Power not given to the federal nor prohibited to it are reserved to the
state or the people
(b) Congress statutory guidance
(i) Was Judiciary act of 1789
(ii) NOW
(iii) 28 U.S.C 1652
2. 28 USC Sec§ 1652

41
 a) The laws of the several states, except where the constitution or treaties of the united states or acts of
congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.
b) The Rules of Decision Act
c) What is meant by “Laws”
d) Swift and Erie
(1) Swift
(a) Laws means legislatively pass statute but not state common law
(b) Absent a state statute judges deferred to “reason” and the common law that came from
it.
(c) Sate common law was not binding on the federal court
C. Erie v. (1938)
1. Overturns Swift
2. Horizontal and vertical forum shopping
a) Vertical
(1) Federal State
(a) Federalism issue when there are inconsistent laws
(2) NY Federal
(3) || (If there are different common law contract laws then no uniformity)
(4) NY State <><> State PA
b) Horizontal
(1) State to State
(a) How Brandies says it should be
(i) NY State <><> PA State
(a) This is choice of law shopping
(b) Why
(i) State sovereignty
(a) Fed courts were making common law even congress did not have the
authority to pass
(b) Article I Section 8 (Enumeration of powers) vs 10th Amend (reserved to the
states) v. Article VI (supremacy Clause)
(c) He was a promoter of states rights
(c) Proff
(i) These are good constitutional reasons
(ii) Believes this is the fundamental claim made by brandies
3. Holding
a) Federal courts must apply the same substantive state law as state court
(1) Statutory and common law
(2) In diversity and in supplemental cases of state claims
b) “Except in matter governed by the Federal Constitution or by acts if congress, the law to be
applied in any case id the law of the state. And whether the law of the state shall be declared
by the legislature in a statute or by the highest court in a decision is not a matter of federal
concern.”(414)
c) Proff Quote from 414
(1) “Congress has no power to declare substantive rules of common law applicable in a state
whether they be local in their nature or “general,” be they commercial law or a part of the
law of torts.
d) Brandeis
(1) Swift rendered impossible the equal protection of the laws
(2) It introduced grave discrimination by noncitizens against citizens because the non-sicitens
have the choice of court via removal.
e) Purpose of Erie
(1) To discourage forum shopping and
(2) The equitable administration of law

42
 f) Me : What power does congress have in this context
(1) Article 1 Sec 8
(a) To constitute tribunal inferior to the supreme court
(b) To make all laws necessary and proper to carry into execution the foregoing powers,
and all other powers vested by this constitution in the government of the united states or
any department or officer thereof.
(2) Article III Sec 1
(a) The judicial power of the United States shall be vested in one supreme court, and such
inferior courts as the congress may from time to time ordain and establish
(3) Article VI
(a) The constitution and the laws of the United States which shall be made I pursuance of;
and all treaties made, or which shall be made, under the authority of the United States,
shall be the supreme law of the land; and the judge in every state bound thereby,
anything in the constitution or laws of any state to the contrary notwithstanding
(4) 10th Amendment
(a) The powers not delegated to the united States by the constitution, nor prohibited to it by
the states, are reserved to the states respectively, or to the people.
4. Overruled Swift
a) “Swift introduced grave discrimination by noncitizens against citizens. It made rights (Me: these are
substantively provided by the state) under the unwritten ‘general law’ vary according to whether
enforcement was sought in the state or the federal court. And the privilege of selecting the court
in which the right should be determined was conferred upon the noncitizen”
5. This does not affect the choice of law rules
a) is an additional step
(1) Fed apply state substantive law
(a) Which one?
(2) Look to the state’s choice of law rules
(a) Diversity case in NY
(b) Apply NY state choice of law rule
(i) This may require the application of a e.g. PA law in a federal district court of
NY
D. Determining Procedural Law Applicable in Federal Courts
1. Guaranty Trust v. York
a) The courts of Equity and law have merged
(1) Equity
(a) Had a loose approach to limitations (Laches)
(i) A claim in equity would not be dismissed as untimely unless the defendants had
been unfairly prejudiced by the plaintiffs delay in bringing suit.
(2) Law
(a) Had a strict approach to limitations
b) Procedure v Substance
c) Frankfurter
(1) “The Outcome Determination” Test 427-428
(a) “The question is not whether a statute of limitations is deemed a matter of procedure in
some sense. The statute was whether such a statute concern merely the manner and a
means by which a right to recover, as recognized by the state, is enforced, or whether
such statutory limitation is a matter of substance in the aspect that alone is relevant to
our problem, namely does is significantly affect the result of the litigation for a federal
court to disregard the law of a state that would be controlling in an action upon the same
claim by the same parties in a state court?
(2) Typface Hypo
(a) A SUES B FOR A NEGLIGENCE ACTION IN THE SDNY BASED ON DIVERSITY. THE
SUBSTANTIVE LAW OF NEW YORK IS APPLICABLE. A FILES HIS COMPLAINT IN FEDERAL
COURT TWO DAYS BEFORE THE STATUTE OF LIMITATIONS HAS RUN. THE COMPLAINT IS
WRITTEN IN 10 POINT TYPE. CPLR 2101 REQUIRES ALL PLEADINGS TO BE IN AT LEAST 12
43
 POINT TYPE. THE LOCAL RULES OF THE SDNY CONTAIN NO SUCH REQUIREMENT. B
MOVES TO STRIKE THE PLEADING FOR BEING IN IMPROPER FORM. WHAT RESULT UNDER
THE STANDARD OF YORK?
(b) Where to draw the line?
2. Byrd v. Blue Ridge
a) Employment law
(1) State law
b) Workers Comp
(1) State administrative
c) 7th amendment
(1) Right to a jury is a constitutional principle
(a) Not yet incorporated on the states
(2) Me
(a) Determine the answer to FN 10 on pg 436
(b) How did this not reach the constitutional question? 7th was discussed as a part of the
analysis
d) Holding
(1) In the circumstances the federal court should not follow the state rule
(2) It cannot be gainsaid (denied) that there is a strong federal policy against allowing state rules
to disrupt the judge-jury relationship in the federal courts
e) The Byrd Balancing Test
(1) Balance the state court interest in having their rule applied v. the federal court’s interest in
having their rule applied
3. Hanna v Plumer
a) The effect of the Federal Rules of Procedure on the aforementioned cases that require Federal court’s
to apply state substantive law but not procedural
b) Service of Process case
(1) State law
(a) required personal service
(2) Federal Rules of Civil Procedure
(a) at the abode with an adult who resided there.
c) If York applied
(1) Outcome determinative
(a) Federal would be determinative because under federal was proper service and the case
could be adjudicated
(i) Proff pg 447
(b) Me
(i) So would state because then it could not be adjudicated.
d) Balance test
(1) Could go either way
(a) There is no constitutional question but it is a diversity case
(b) State interest though in that Def was a resident of the forum state
e) Where do FRCP come from
(1) §2072-73
(a) Congress passed law delegating authority to the court to create the FRCP
(b) 2072 (b) is a constraint
(i) May not “abridge, enlarge or modify any substantive right. All laws in conflict
with such rules shall be of no further force or effects after such rules have taken
effect.
(a) i.e if it is a valid federal rule (valid meaning not abridge…etc) then the
federal rules preempt the contravening state rule.
f) Test
(1) When a situation is covered by one of the federal rules, the question facing the court is a far
cry from the typical relatively unguided Erie choice. The court has been instructed to apply
the federal rule, and can refuse to do so only if the advisory committee, this court and
44
 congress erred in their prima face judgment that the rule in question transgresses neither the
terms of the enabling act nor constitutional restrictions.
(2) Proff pg 449
(3) Whereas the unadulterated outcome and forum-shopping tests may err to far towards honoring
state rules, I submit that the court’s “arguably procedural, ergo constitutional test, moves
too fast and far in the other direction.
g) If there is a federal rule of procedure defer to the federal
h) If there is a substantive Federal rule v State rule defer to state
i) Where does outcome determination test kick in?
(1) For non-FRCP conflict with state law
(2) Moment at which forum selection is being made
(3) The Choice of outcome forum evaluation test
(a) If the choice between federal or state at this time affects the outcome defer to state.
4. General Notes to this point
a) Erie
(1) Twin Aims Erie
(a) Limit Forum Shopping
(b) Equality in treatment of the law
(c) Proff Note
(i) thinks the Choice of Forum Outcome Evaluation test contains the erie aims
(2) Erie Holding
(a) Except in matter governed by the Federal Constitution or by acts if congress, the law to
be applied in any case id the law of the state. And whether the law of the state shall be
declared by the legislature in a statute or by the highest court in a decision is not a matter
of federal concern.
(3) §1652
b) Hannah
(1) Only applies when there is a direct collision of state and federal law
(2) Holding
(a) Thus, though a court, in measuring a Federal Rule against the standards contained in the
Enabling Act and the Constitution, need not wholly blind itself to the degree to which
the Rule makes the character and result of the federal litigation stray from the course it
would follow in state courts, Sibbach v. Wilson & Co., supra, 312 U.S. at 13—14, 61
S.Ct. at 426—427, it cannot be forgotten that the Erie rule, and the guidelines suggested
in York, were created to serve another purpose altogether. To hold that a Federal Rule of
Civil Procedure must cease to function whenever it alters the mode of enforcing state-
created rights would be to disembowel *474 either the Constitution's grant of power over
federal procedure or Congress' attempt to exercise that power in the Enabling
Act.17 Rule 4(d)(1) is valid and controls the instant case.
(3) 2 Tests
(a) Ergo Constitutional
(i) When a situation is covered by one of the federal rules, the question facing the
court is a far cry from the typical relatively unguided Erie choice. The court has
been instructed to apply the federal rule, and can refuse to do so only if the
advisory committee, this court and congress erred in their prima face judgment
that the rule in question transgresses neither the terms of the enabling act nor
constitutional restrictions.
(b) Another for everything else
(i) Outcome
(ii) Erie
(4) If there is a federal rule of procedure defer to the federal
(5) If there is a substantive Federal rule v State rule defer to state
c) Walker (pg 457)

45
 (1) Rule 3 not broad enough to displace the state tolling rule that the defendant must be served
before ore the statute of limitations runs out.
(a) Not a direct collision per Hannah because Rule 3 is not broad enough to cover the
point in dispute.
(i) I.E There was notindication that Rule three was intended to touch upon the
statute of limitations and therefore did not DIRECTLY collide with the state
law, as such the state’s interest in having its law applied was greater.
d) If the federal Rule Violats Sec 2072 (shall not abridge…) can differ to the state rule
5. Gasperini v. Center for Humanities (1996)
a) FRCP 59
(1) Motion for a new trial
b) APP Ct.
(1) Looked to state law to apply in determining if the award was excessive
c) SCOTUS
(1) G Argument
(a) Not want N.Y. Sec. 5501 to apply, but wanted federal common law “shock the
conscious of the court” test. Said 5501 cannot be applied because fo VIIth amend.
d) Choice of Forum test (Via …)
(1) If there s a different standard between federal and state does it affect the choice of Forum
(2) If yes then must apply the state rule. To adhere to Erie 2 aim test
e) Dissent
(1) Scalia argues there is an independent federal standard and it is a direct collision
(a) Then the Hannah test 1 must apply
f) Ginsburg
(1) This is not a direct collision because can apply the state rule at the district court level in
adherence to the state law as per Erie, but must also applied the federal interest in reviewing
the district courts discretion
(2) Three Standards of Appellate Review
(a) Law
(i) De novo
(b) Facts
(i) Clearly Erroneous
(c) Discretionary
(i) Abuse of Discretion
6. READ SHADY GROVE 478
7. Boyle v. United Technologies
a) There does remain some federal common law
(1) When the U.S. sues or is sued, it cannot be bound toe state law
(a) Is a 1331 claim?
(2) Federal Common law applies
b) Extends a liability exception to military contractors in a conflict and a unique federal interest
c) Holding
(1) In a few areas involving “uniquely federal interests,” state law is pre-empted and replaced,
where necessary, by federal law of a content prescribed (absent explicit statutory directive)
by the courts. The procurement of equipment by the United States is an area of uniquely
federal interest. A dispute such as the present one, even though between private parties,
implicates the interests of the United States in this area. Once it is determined that an area
of uniquely federal interest is implicated, state law will be displaced only where a
“significant conflict” exists between an identifiable federal policy or interest and the
operation of state law, or the application of state law would frustrate specific objectives of
federal legislation
d) This is the … of Erie
(1) Even if congress has not acted, if there are unique federal interest the courts can act and create
federal common law

46
 e) Is there a unique federal interest?
f) Do contractors to the federal government have a unique federal interest.
g) Scalia
(1) The contract the U.S. Signs are a unique Federal interest, and so he extends that to include the
contractors as a unique federal interest
(2) Analysis
(a) Analyze the state interests (here in the form of a tort action) and would they frustrate
the unique federal interests ( a federal contract to provide helicopters)
(3) “the imposition of liability on government contractors will directly affect the terms of the
government contract; either the contractor will decline to manufacture the design specified
by the government, or it will raise the price. Either way the interest of the united states will
be directly affected.
X. PLEADINGS
A. Serve to define the parameters of the lawsuit
1. Set forth each parties factual and legal contentions and thus will help focus discovery and trial and
occasionally facilitate the disposition of the lawsuit without trial
2. To put the other parties on notice and enable them to prepare for the case against them
B. Pleadings allowed
1. Rule 7
a) A complaint
b) An answer to a complaint
c) An answer to a counterclaim designated as a counterclaim
d) An answer to a cross claim
e) A third-party complaint
f) And answer to a third-party complaint
g) If so ordered by the court a reply to an answer
2. Rule 8
a) General Rules of Pleading
(1) Claim for relief
(2) Defenses: admissions and Denials
(3) Affirmative Defenses
C. Litigation starts with
1. Complaint
a) This is the first introduction to the action
b) You have an audience, so tell a good story
(1) Judge
(a) This si the first document the judges or clerks will read
(2) Other attorneys
(3) The Public
c) You are setting forth the allegations which if proven will state a claim for which relief may be
granted
d) Purpose
(1) Define the issues
(2) Advocacy
(a) First doc in the case
(b) So tell a persuasive story
(c) Short and plain my ass
(3) Notice
(a) Nexus v. Notice
(b) Let people know about the suit
(4) Gatekeeper
(a) Against frivolous suits and cost for cases that should eb eliminated early because they
have no merit
(i) A la 12(b)

47
 (ii) Us the legal theory sound
(iii) Are the facts sketchy
(a) How much specificity on the facts?
e) Amend the Pleadings
(1) Rule 15
D. If going to use 12(b) defenses must motion before the answer is served
1. If successful suit is done and no answer needed.
E. Answer
1. Must serve within 21 days of being served
a) Or if service waived 60 days after the requrst for waiver
2. Admit
3. Deny
4. Lack knowledge or information sufficient to form a belief
a) Treated as a denial
5. Defense
F. FRCP
1. 7 / 8 / 12 / 15
G. 7
1. Pleadings allowed
H. 8
1. General Rules of Pleading
a) 8 (1)
(1) This is subject matter jurisdiction
(2) Must state
(a) Factual allegations
(b) Cause of action
(i) SL
(ii) Negligence
(iii) Wrongful death
(c) Relief Sought
(d) If you want a jury trial must request early, now is a good time to do so.
I. 9
1. Pleading Special Matters
J. 10
1. Form of Pleadings
K. 11
1. Signing the pleadings, motions, and other forms; representations to the court; sanctions
L. 15
1. Amended and Supplementals Pleadings
M. Christian v. Mattel
1. Rule 11 against Plaintiff’s lawyer
a) Based on factual or legal allegations
(1) There is legal invalidity because of the facts
(2) Hicks should have discovered there was no copywrite infringement
2. What is the sanction
a) Here
(1) Hicks oaid the Def lawyers fees
3. Standard of review
a) Discretionary / Clearly Erroneous
(1) Standards Are
(a) Law
(i) De Novo
(b) Fact
(i) Clearly Erroneous

48
 (c) Discretionary
(i) Abuse of Discretion
b) Court here
(1) “would be justified in concluding that the court had abused its discretion in making the
findings only if they were clearly erroneous”
(2) So
(a) Infers the Rule 11 hearing has some elements of both fact and discretion
(i) Fact finding and
(ii) Discretionary finding
4. Violation of 11 via bad law is a sanction against the lawyer not the client
a) 11(5)(a)
5. 11 is limited
a) Pleadings
b) Written motion
c) Other papers
6. 11 b 1
a) Subjective
7. 2 and 3
a) More objective
8. Can use rule 11 to educate the judge as to the weak points of the opponent’s complaint
9. Mattel Remand
a) Conduct outside the scope of Rule 11 cannot eb a consideration of rule 11 sanctions
b) 11 limited to pleading etc
10. Authority(ies) of the Court to Sanction (3)
a) Rule 11
b) Inherent Authority
(1) Court must make and explicit finding that conduct constituted or was tantamount to a bad
faith
c) 28 U.S.C.1927
11. Safe harbor provision
a) 21 day for lawyer to amend.
12. Burden of Proof (2)
a) Burden of Production
(1) Burden of going forward
(2) Who has to raise the issue
b) Burden of Persuasion
(1) A preponderance of the evidence
(2) Common law
(a) Is not statutory
XI. The Plausibility Standard.
A. Bell v. Twombly
1. Form 11 pg. 133
a) Is rather broad
2. The Plausibility Standard
a) One a claim has been stated adequately, it may be supported by showing any set of facts consistent
with the allegations of the complaint (569)
b) We do not require heightened fact pleading of specific, but only enough facts to state a claim to relief
that is plausible on its face. (573)
c) Restatement of elements and conclusory remarks is not enough (Cite?)
(1) conspiracy was not suggested by the facts adduced under either theory of the complaint,
which thus fails to state a claim.
d) This rests somewhere between possibly conceivable and Specific Allegations
(1) Where is the line?
(2) Specific Factual Allegations

49
 (a) But only enough facts
B. Ashcroft v. Iqbal
1. Claim
a) A Bivens action
(1) Government infringes on rights
b) The claim was the government infringed on Iqbal’s rights
2. “Rule 8 does not require a detailed factual allegations, but it demands more than an unadorned , the
defendant unlawfully harmed me accusation.”
3. Analysis of the complaint
a) To survive a mission to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state claim to relief that is plausible on its face… a claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged…the Plausibility standard is not akin to the is not
akin to a probability requirement but it asks for more than a sheer possibility that the defendant
has acted unlawfully. where a complaint pleads the facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to
relief (583)
4. Two working principles
a) Twombly
(1) A court must accept as true all of the allegations contained in the compliant is inapplicable to
legal conclusions
(a) Threadbare recital of elements of a cause of action, supported by mere conclusory
statement do not suffice
(b) “we are not bound to accept as true a legal conclusion couched in factual allegations”
b) Only a complaint that states a plausible claim for relief survives a motion to dismiss
(1) This is a content specific task requiring the reviewing court to draw on its judicial experience
and common sense.
5. Rule 9
a) Pleading Special Matters
6. Qualified Immunity
7. Supervisors Liability
a) Court Rejects this
8. Phased Discovery
a) 2 Approaches
(1) issues
(2) Interrogatories, Documents, Depositions spit each one over time
9. Governed by Rule 8 or Rule 9
a) Rule 8
(1) Knowledge and intent
(2) Generally
b) Rule 9
(1) Fraud
(2) Specificity
XII. Answers
A. Rule 8
1. Admit
a) Is established for litigation
2. Deny
a) Needs to be resolved at trial
b) Facts are discernable
3. Lack knowledge
B. Rule 8 (c)
1. Affirmative defenses
C. 2 way to win a case

50
 1. Show the factual allegations are not true
2. Affirmative defense
a) Even if the facts are true there is a new facts that undermined the original fact
b) A factual proposition with legal implications
c) The implication being, if I prove the affirmative fact, I win
D. Hypo
1. You are not you the lawyer, you are the client
E. Defenses
1. A statutory cap on damages a defense?
a) Courts are split
F. 8 (d) and 15(c)
1. Amend a pleading
2. Relation back of amendments
G. C 1 (c) (ii)
1. Know or should have knows = is amended party aware of the suit
a) If not the statute of L has run plain likely not allowed to relate back and add the party
H. Statute of L
1. 21
a) Rule 15
2. 90
a) 4 m
b) So long as C(1)(c) (ii) is met
I. Not know the name of Def but know the web address??
XIII. Discovery
A. Rules
1. 26
2. 33
3. 34
4. 35
B. Interrogatories
1. 33
C. Depositions
1. 30-32
2. 2 objections
a) Form
(1) Asked the question in the wrong way
b) Privileged
D. Documents
1. 34
E. Disclosure v Discovery
1. 26a
a) Disclosure
(1) Certain information should eb shared without asking
(2) Only requires the disclosure of info that helps own case, will use in defenses and arguments
b) Discovery
(1) Must ask for
(2) 34
(3) 502 b evidence
2. 34 limits 26 a
3. Upjohn (pg 364)
a) Lawyer communication with firm’s employees is privileged
F. Hickman v. Taylor
1. Work product v. Attorney Privilege

51
 2. There is some level of protection even for third party correspondences b/c the third party is avail to all
parties to speak with.
3. Not have parties interfere with other case
4. The burden to prove the discovery of work product is necessary is on the one who would invade the work
product
5. Work product protection
a) Rule 23 (3)
b) In anticipation of litigation
6. Rule 30
a) Not only a party but any person
7. Subpoena
a) Rule 45
8. 2 type of Work product
a) Mental Impressions
b) Fact work product
(1) Oral statements / Memorandum
9. Impeachment
a) Undermine the credibility of a witness or evidence
G. E-Discovery
1. 26 b2b
2. 37e
3. Zubalake v.
a) Def motion for a 36(c) protective order
b) Per inaccessible document
(1) Judge says certain number of emails may be turned into word sercable documanert as a
sample to determine if there may be anything of value in those documents
(2) Point of sample
(a) See what the possibility is is actually finding relevant information
c) Cost shifting Factors
(1) 1 and 2 the more critical factors
(a) Proff
(i) Obviously 2 key factors
(a) What are these (???)))_
(2) On what basis were cost shifted?
(a) There was relevant info but no smoking gun in the discovery
(b) On May 13, 2003, I ordered defendants UBS Warburg LLC,UBS Warburg, and UBS
AG (collectively “UBS”) to restore and produce certain e-mails from a small group of
backup tapes. Having reviewed the results of this sample restoration, Laura Zubulake
now moves for an order compelling UBS to produce all remaining backup e-mails at its
expense. UBS argues that based on the sampling, the costs should be shifted to
Zubulake. For the reasons fully explained below, Zubulake must share in the costs of
restoration, although UBS must bear the bulk of that expense. In addition, UBS must
pay for any costs incurred in reviewing the restored documents for privilege.
4. Cat 3 v.
a) Altering docs before turning them over for discovery
b) 30 b6
c) Standard of Persuasion (proof)
(1) Here
(a) Clear and convincing
(i) Less than beyond a reasonable doubt
(ii) A bit more that a preponderance of the evidence
d) Intentional spoliation v. altered
e) Rule 37
(1) Restore and replace

52
 f) Inherent power of the court
(1) Power of contempt
5. O’Berry v.
a) Spoliation Letter
b) 26 c v. 37 a
(1) Protective order v. compel and sanctions
XIV. Motions
A. In general
1. Dispositive Motions
a) What motion to file changes as the case move forward b/c what facts are available changes
2. After Complaint but before answer
a) 12(b) motions
3. After Answer
a) 12(c)
(1) Motion for judgment on the pleadings
b) 12(d)
(1) Presenting matters outside the pleadings
(2) Will be treated as a motion for summary
B. Rule 56 Summary Judgment
1. 12(c) v. Rule 56
a) Not much difference
2. Is evidence so weak a reasonable jury could not reasonably find for the non-mover
3. Celotex v. Carett
a) Sets a new precedent in how summary is grated an applied or not, even on cases where facts are in
dispute
b) Can D raise the question of inadequate evidence in a summary motion?
c) Test
(1) 56 mandates entry of summary judgment against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial. In such a situation, *323 there can be “no
genuine issue as to any material fact,” since a complete failure of proof concerning an
essential element of the nonmoving party's case necessarily renders all other facts
immaterial. The moving party is “entitled to a judgment as a matter of law” because the
nonmoving party has failed to make a sufficient showing on an essential element of her case
with respect to which she has the burden of proof. “[T]h[e] standard [for granting summary
judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure
50(a)....” 
d) Prof 661
(a)
e) Holding
(1) The Court of Appeals' position is inconsistent with the standard for
summary **2550 judgment set forth in Rule 56(c), which provides that summary judgment
is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”
(a) The plain language of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial. In such a situation, there
can be “no genuine issue as to any material fact,” since a complete failure of proof
concerning an essential element of the nonmoving party's case necessarily renders all
other facts immaterial. The moving party is “entitled to a judgment as a matter of law”
because the nonmoving party has failed to *318 make a sufficient showing on an
essential element of its case with respect to which it has the burden of proof.
53
 (b) There is no express or implied requirement in Rule 56 that the moving party support its
motion with affidavits or other similar materials negating the opponent's claim. On the
contrary, Rule 56(c), which refers to the affidavits, “if any,” suggests the absence of
such a requirement, and Rules 56(a) and (b) provide that claimants and defending parties
may move for summary judgment “with or without supporting affidavits.” Rule 56(e),
which relates to the form and use of affidavits and other materials, does not require that
the moving party's motion always be supported by affidavits to show initially the
absence of a genuine issue for trial. Adickes v. S.H. Kress & Co., supra, explained.
(c) No serious claim can be made that respondent was “railroaded” by a premature motion
for summary judgment, since the motion was not filed until one year after the action was
commenced and since the parties had conducted discovery. Moreover, any potential
problem with such premature motions can be adequately dealt with under Rule 56(f). Pp.
2554–2555.
(2) The questions whether an adequate showing of exposure to petitioner's products was in fact
made by respondent in opposition to the motion, and whether such a showing, if reduced to
admissible evidence, would be sufficient to carry respondent's burden of proof at trial,
should be determined by the Court of Appeals in the first instance. P. 2555.
f) After p puts on case
(1) Judgment as a matter of law
(a) Rule 50
g) Burden of production and persuasion on the motions on the mover but
(1) Test
(a) 56 mandates entry of summary judgment against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case and on
which that party will bear the burden of proof at trial. In such a situation, *323 there can
be “no genuine issue as to any material fact,” since a complete failure of proof
concerning an essential element of the nonmoving party's case necessarily renders all
other facts immaterial. The moving party is “entitled to a judgment as a matter of law”
because the nonmoving party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof. “[T]h[e] standard
[for granting summary judgment] mirrors the standard for a directed verdict under
Federal Rule of Civil Procedure 50(a)....” 
h) Here
(1) “There was no showing that the plaintiff was exposed top the defendant Celotex’s product in
the District of Columbia or elsewhere within the statutory period.
i) Dissent
(1) Summary judgment is appropriate where the Court is satisfied “that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed.Rule Civ.Proc. 56(c). The burden of establishing the nonexistence of a “genuine
issue” is on the party moving for summary judgment. 10A C. Wright, A. Miller, & M.
Kane, Federal Practice and Procedure § 2727, p. 121 (2d ed. 1983) (hereinafter Wright)
(citing cases); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 56.15 [3] (2d
ed. 1985) (hereinafter Moore) (citing cases). See also, ante, at 2551; ante, at 2553 (WHITE,
J., concurring). This burden has two distinct components: an initial burden of production,
which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden
of persuasion, which always remains on the moving party. See 10A Wright, Miller & Kane
§ 2727. The court need not decide whether the moving party has satisfied its ultimate
burden of persuasion2 unless and until the Court finds that the moving party has discharged
its initial  burden of production. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157–161, 90
S.Ct. 1598, 1608–10, 26 L.Ed.2d 142 (1970); 1963 Advisory Committee's Notes on
Fed.Rule Civ.Proc. 56(e), 28 U.S.C.App., p. 626. The burden of production imposed by
Rule 56 requires the moving party to make a prima facie showing that it is entitled to
summary judgment. 10A Wright, Miller & Kane § 2727. The manner in which this showing
can be made depends upon which party will bear the burden of persuasion on the challenged
54
 claim at trial. If the moving party will bear the burden of persuasion at trial, that party must
support its motion with credible evidence—using any of the materials specified in Rule
56(c)—that would entitle it to a directed verdict if not controverted at trial. Ibid. Such an
affirmative showing shifts the burden of production to the party opposing the motion and
requires that party either to produce evidentiary materials that demonstrate the existence of
a “genuine issue” for trial or to submit an affidavit requesting additional time for
discovery. Ibid.; Fed.Rules Civ.Proc. 56(e), (f). If the burden of persuasion at trial would be
on the non-moving party, the party moving for summary judgment may satisfy Rule 56's
burden of production in either of two ways. First, the moving party may submit affirmative
evidence that negates an essential element of the nonmoving party's claim. Second, the
moving party may demonstrate to the Court that the nonmoving party's evidence is
insufficient to establish an essential element of the nonmoving party's claim. See 10A
Wright, Miller & Kane § 2727, pp. 130–131; Louis, Federal Summary Judgment Doctrine:
A Critical Analysis, 83 Yale L.J. 745, 750 (1974) (hereinafter Louis). If the nonmoving
party cannot muster sufficient evidence to make out its claim, a trial would be useless and
the moving party is entitled to summary judgment as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, ––––, 91 L.Ed.2d 202 (1986). Where the
moving party adopts this second option and seeks summary judgment on the ground that the
nonmoving party—who will bear the burden of persuasion at trial—has no evidence, the
mechanics of discharging Rule 56's burden of production are somewhat trickier. Plainly, a
conclusory assertion that the nonmoving party has no evidence is insufficient. See ante, at
2551 (WHITE, J., concurring). Such a “burden” of production is no burden at all and would
simply permit summary judgment procedure to be converted into a tool for harassment. See
Louis 750–751. Rather, as the Court confirms, a party who moves for summary judgment
on the ground that the nonmoving party has no evidence must affirmatively show the
absence of evidence in the record. Ante, at 2553. This may require the moving party to
depose the nonmoving party's witnesses or to establish the inadequacy of documentary
evidence. If there is literally no evidence in the record, the moving party may demonstrate
this by reviewing for the court the admissions, interrogatories, and other exchanges between
the parties that are in the record. Either way, however, the moving party must affirmatively
demonstrate that there is no evidence in the record to support a judgment for the nonmoving
party. If the moving party has not fully discharged this initial burden of production, its
motion for summary judgment must be denied, and the Court need not consider whether the
moving party has met its ultimate burden of persuasion. Accordingly, the nonmoving party
may defeat a motion for summary judgment that asserts that the nonmoving party has no
evidence by calling the Court's attention to supporting evidence already in the record that
was overlooked or ignored by the moving party. In that event, the moving party must
respond by making an attempt to demonstrate the inadequacy of this evidence, for it is only
by attacking all the record evidence allegedly supporting the nonmoving party that a party
seeking summary judgment satisfies Rule 56's burden of production.3 Thus, if the record
disclosed that the moving party had overlooked a witness who would provide relevant
testimony for the nonmoving party at trial, the Court could not find that the moving party
had discharged its initial burden of production unless the moving party sought to
demonstrate the inadequacy of this witness' testimony. Absent such a demonstration,
summary judgment would have to be denied on the ground that the moving party had failed
to meet its burden of production under Rule 56.
j) SCOTUS looks at non-moving party evidence and claim and there is nothing there
(1) An allegation alone is not enough to raise a disputed issue of fact
(2) need something to support the allegations
k) Evidence v. Proof. – To support an allegation
(1) Evidence
(a) Is admissible at trial
(b) The narrower requirement (???)
(2) Proof

55
 (a) Is the proof enough to rise to the level of evidence
(3) (CLARIFY THIS!!!!!)
(4) Is the evidence such that no reasonable jury could reasonably find for the non-mover
(a) Yes
(i) Summary for the mover
(5) The form of the evidence in the motion does not need to be in the same form as presented at
trial
(a) Affidavit is not admissible at trial
C. Rule 50 Judgment as a matter of Law
1. Dixon v. Walmart pg 710
a) D after p put on case
b) JMOL for P must happen after D put on their case
c) Either D or P can renew the motion after a verdict 50(b)
d) Here who had the burden of Proof?
(1) P
e) Was that relevant to the court’s decision
(1) Yes
(a) Burden not met in presenting case
f) Standard
(1) “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party on that issue.”
(2) The “Sufficiency of the evidence” standard
(a) Consider all the evidence in the light most favorable to the opposing party, and draw all
reasonable inferences in favor of the opposing party not making credibility
determinations or weigh any evidence which are fact finding judgments to be made by
the courts, and if the facts and inferences point so strongly and overwhelmingly in favor
of the moving party that the reviewing court believes that reasonable jurors could not
have arrived at a contrary verdict the that motion should be granted.
g) Constructive v. Actual knowledge of the trash?
(1) Court said Walmart had neither
h) Any binder dropped in the AM could not have logically been there when P was injured therefore
JMOL
2. Post-trial motion
a) Must make a 50 motion in order to reserve the right to make a 50(b0 motion
(1) Via VII amend
3. General Rule
a) Juror statements about deliberations usually not admissible
4. Rule 59 New Trial
5. Post-trial motions
a) Dismiss
(1) Summary
(a) Rule 56
(2) JMOL
(a) Rule 50
(i) No reasonable jury could reasonably find
(3) New Trial
(a) Rule 59
(i) Against the weight of the evidence
6. Lexis
a) RULE:
(1) In Texas, a customer is an invitee. As such, business owners owe a duty to exercise
reasonable care to protect her from dangerous conditions in the store known or discoverable
to it. Notably, this is a duty requiring only reasonable care by the business owner: Texas
courts have repeatedly stated that businesses are not insurers of an invitee's safety.

56
 Therefore, to prove premises liability on the part of a business owner, a plaintiff must show:
(1) Actual or constructive knowledge of some condition on the premises by the
owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the
owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the
owner/operator's failure to use such care proximately caused the plaintiff's injuries.
b) FACTS:
(1) A woman brought a negligence suit against a corporation after she tripped on a strip of plastic
that was lying on the floor near a check-out register at a store owned by the
corporation. The corporation disputed only the customer's allegation that it had constructive
knowledge of the presence of the plastic binder on the floor. The customer argued that the
corporation had constructive knowledge of the binder's presence, given its proximity to its
employees and the length of time--at least eight hours--that inferentially it had been at that
spot on the floor. The trial court entered a judgment in favor of the customer.
c) ISSUE:
(1) Did the customer establish sufficient evidence to prove that the corporation had constructive
knowledge of the item on the floor?
d) ANSWER:
(1) No
e) CONCLUSION:
(1) The Court held that the customer's proximity argument and her reliance on proximity
evidence failed the legal standard under Texas law for determining a premises owner's
constructive knowledge. It defied common sense, and was against all logic, to infer that the
binder could possibly have laid on the floor, just two feet away from the check-out registers,
for over eight hours, without being noticed by at least one of the thousands of individuals
traversing that spot, including the many employees who were actively surveying it for the
very purpose of detecting and eliminating any risk to customer safety.
7.
XV. Remittitur
A. Reduction of Damages
1. Judge usually offers P a choice
a) Take the lower amount or we start a new trial
2. Grant of new trial is. Not an appealable order
a) Is not a final judgement
B. Williams v Philip Morris (Handout)
1. Putative damages
a) Deter Behavior
2. Case is about what the extent of what Juries can do
3. Federal Due Process
a) Was the awards a breach of Due Process via the taking clause
4. Precedents
a) State Farm
b) BMW
(1) Cannot take harm to those not in the suit into account for punitive damages
(2) Can only take reprehensibility of the D action into account
(3) No firm rule but ratio of 10-1 is general but not in this one
5. Lexis
a) RULE:
(1) The Due Process Clause of the U.S. Constitution forbids a state to use a punitive damages
award to punish a defendant for injury that it inflicts upon nonparties or those whom they
directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the
litigation. For one thing, the Due Process Clause prohibits a state from punishing an
individual without first providing that individual with an opportunity to present every
available defense. Yet a defendant threatened with punishment for injuring a nonparty
victim has no opportunity to defend against the charge by showing, for example, that the

57
 other victim was not entitled to damages. For another, to permit punishment for injuring a
nonparty victim would add a near standardless dimension to the punitive damages equation.
b) FACTS:
(1) Plaintiff, Jesse Wiiliams’ widow, brought suit in an Oregon state court against defendant
Philip Morris USA, the tobacco company that manufactured the brand of cigarettes that
Williams had favored. During the trial, the plaintiff's attorney told the jury to think about
"how many other" Oregon smokers there might have been whose deaths might be traced to
the company's products. The trial court did not accept a jury instruction, proposed by the
tobacco company, that would have told the jury that it was permissible to consider the
extent of harm suffered by others in determining the amount of punitive damages, but the
jury was not to punish the company for the impact of its alleged misconduct on other
persons. Instead, the court instructed the jury that punitive damages were awarded against a
defendant to punish misconduct and to deter misconduct and were not intended to
compensate the plaintiff or anyone else for damages caused by the defendant's conduct.
Subsequently, the jury found that smoking had caused Williams’ death, and that Philip
Morris had knowingly and falsely led Williams to believe that it was safe to smoke. With
respect to the plaintiff's deceit claim, the jury awarded about $821,000 in compensatory
damages and $79.5 million in punitive damages. Philip Morris challenged the judgment,
asserting that the jury was impermissibly permitted to calculate punitive damages based on
harm to parties who were not parties to the litigation.
c) ISSUE:
(1) Was the jury impermissibly permitted to calculate punitive damages based on harm to parties
who were not parties to the litigation?
d) ANSWER:
(1) No determination. The case was remanded for the reconsideration of the award.
e) CONCLUSION:
(1) The judgment upholding the punitive damages award was vacated and remanded to the lower
court for the reconsideration of the award. The U.S. Supreme Court held that, if the punitive
damages award was based in part on the jury's desire to punish the manufacturer for
harming nonparties, such an award amounted to a taking of property from the manufacturer
without due process. While it was permissible to consider nonparty harm in determining
reprehensibility, the punitive damages award to punish a manufacturer for injury inflicted
on strangers to the litigation, without an opportunity to defend the charge, violated due
process. Thus, procedures were required to inform the jury that, while harm to nonparties
was relevant to reprehensibility, punitive damages could not be awarded to punish the
manufacturer for such harm.
f)
XVI. Injunctions
A. Rule 65
B. Are equitable forms of relief
1. Non-monetary forms of relief
2. A distinction from at law forms of relief
3. There are additional Requirements that must be met before a plaintiff can be granted injunctive relief and
there are special defenses that apply to such proceedings
4. These require flexibility
a) SCOTUS
(1) “The essence of equity jurisdiction has been the power of the chancellor to do equity and to
mould each decree to the necessities of the particular case. Flexibility rather than rigidity
has distinguished it. The qualities of Mercy and practicality have made equity the
instrument for nice adjustment and reconciliation between the public interest and private
needs as well as between competing private claims”
b) There is an emphasis on the trial court’s independent judgement in determining what remedy will
serve the need of the public while doing justice between the parties
5. Is always a question of law

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 6. Are meant to stop irreparable harm
7. Some historical equitable relief
a) Latches
(1) Plain sat on their right
b) Unclean Hands
(1) Some level of misconduct
8. Before you can motion for preliminary relief or a Temporary restraining order there must be a lawsuit
a) I.e.
(1) You ust draft a complaint
(2) File the complaint as well as file a moitn for a Preliminary injunction or a Temporary
restraining order
9. Preliminary injunction
a) What is the relief sought
(1) This is the same as the permanent injunction you are likely seeking at trial, but is put in force
during the trial in order to adjudicate
b) Covers activity during the run of the case
c) Must seek at a PI hearing
(1) First Requirement
(a) Must demonstrate that they’re likely to succeed on the merits of the case
(i) Must show
(a) “Some likelihood” or
(b) “Substantial Probability”
(ii) Of establishing the facts that would entitle to a permanent injunction
(2) Second Requirement
(a) Demonstrate that will suffer “Irreparable Injury” if request is not granted
(b) Must show that in danger of suffering imminent harm that could not be reminded by
monetary compensation or even the eventual issuance of a permanent injunction
d) Before a preliminary injunction, in order to stop harm from occurring before the PI hearing can
motion for a temporary restraining order
e) Both of these must generally be granted at the outset of a civil suit.
(1) TRO protects form action before the Preliminary Injunction hearing
(2) The Preliminary injunction protect form activity during the trial and before th potential
Permanent injunction
f) A federal court may never issue a Preliminary injunction Ex Parte
(1) Party must receive notice and an opportunity to participate in a hearing
g) A TRO may sometime be issue ex parte but only when the sworn evidence submitted makes it clear
that the “immediate and irreparable injury, loss or damage, will result to the movant before the
adverse party can be heard in opposition
(1) There is a limited timeframe for the force of a TRO
h) Need to expedite a Preliminary Injunction motion
(1) Court can also sigh a motion to show cause
(2) In NY
(a) An Order to Show Cause is way to present to a judge the reasons why the court should order
relief to a party. For example, a party can seek an order granting discovery, or dismissing all
or part of an action by bringing an Order to Show Cause. The Order to Show Cause differs
from a motion, because it can shorten the required notice time to the other parties. Since
there are strict requirements as to how to make a motion, it is much easier to come to court in
person and fill out an Order to Show Cause. However, you may click on Motions, if you
would like to read about the procedure. The Order to Show Cause tells the other side of the
nature of the request and states the date, time and location where the request will be made.
The Order to Show Cause often contains a direction to the parties that they stop some
specific activity until the court hears or decides the motion. The Order to Show Cause is
supported by an "Affidavit in Support," and copies of any documents that support the request
and would help the judge make a decision. The papers must be served on all the parties in the
manner directed in the Order to Show Cause. A party served with an Order to Show Cause
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 may prepare papers to oppose the motion. On the hearing date, all parties must come to court
and the judge will decide the Order to Show Cause.
(3) Tell the other side that they need to answer the motion and state why the moiton should not be
granted in regard to the Preliminary injunction
10. Temporary Restraining Order
a) Get the fact to a judge via affidavit
b) Drafting the TRO and putting that in the motion papers is a good idea.
c) Give the judge all they need and all they have to do is sign
11. Standard for A Preliminary Injunction
a) Is a circuit by circuit test
b) General most standards though incorporate
(1) The merits
(a) The reasonable likelihood of success trial
(2) Irreparable harm
c) The Sliding Scale Approach P 750
(1) The likelihood of succeeding on the merits
(2) That it has not adequate remedy at law and will suffer irreparable harm, if preliminary relief is
denied
(3) Only If the First two are satisfied then the court must consider
(4) The irreparable harm the non-moving party will suffer if preliminary relief is granted,
balancing the harm against the irreparable harm to the moving party if relief is denied and
(5) The public interests
(a) The consequences of granting or denying the injunction to non-parties
(i) The more likely it is the P will succeed on the merits, the less the balance of
irreparable harms need weigh towards its side; the less likely P will succeed,
the more the balance need weigh towards its side.
12. Limitations
a) Generally Security bond must be posted
b) D is not entitled to damages for wrongful injunction if a victory for the plaintiff before the lower
court is later reversed on appeal;
(1) Damages are only avail if D prevails before the trial court.
C. Abbott Lab v. Mead Johnson & CO.
1. Abbot was a monopoly
2. Mead new product (Oral Electrolyte maintenance) and ad campaign damaging Abbot
a) Also IP and Trademark claims
3. Abbot Seeks a permanent injunction a Temporary restraining order and a preliminary injunction
a) Preliminary injunction is not a final order
(1) Interlocutory Appeal
(a) USC 28 §1292
b) Abbots Preliminary injunction was denied in full by the4 lower court
4. 7th Circuit reviews on a discretion standard
a) Abuse of Discretion
(1) Lower court considered only the harm calculation from if mead was knocked out of the
market and abbots’ losses would be limited to past lost sales. But would be returned to a
monopoly
(a) Abbot had a likelihood of succeeding on the merits, but the other three cofactors
favored mead
(b) 7th says
(i) This overlooks the fact Meads promotional campaign could have some lasting
incalculable damage even if mead is forced to leave the market; and
(2) Any shifts in the market between now and the final judgment will affect the competition
between Mead and Abbott in the infant formula market
b) Also District Court
(1) The balance of hardships tilted towards Mead

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 (a) The irreparable harm of granting a PI would outweigh the irreparable harm to abbot of
denying such relief
(i) Based the weigh on the assumption that a PI would eliminate Mead form the
market
(ii) 7th
(a) That is a false assumption
c) Holding
(1) The District court abused its discretion by restricting its focus to the final remedy, to the
exclusion of all others, that would eliminate Mead from the market.
(2) Lanham Act injuries are irreparable
(3) Having found that the district court
(a) Overstate the irreparable harm to mead and the public interest pf granting a PI and
(b) Possibly overlooking the irreparable harm to Abbott of denying an injunction 7 th not
accept lower court conclusions
XVII. Joinder of Claims and parties
A. FRCP are pro Joinder
1. Judges have a great deal of discretion in defining the scope of the litigation
B. Joinder does not confer SMJ
1. A Party must satisfy both requirements
a) Joinder and Jurisdiction independently
b) Federal Question with no diversity?
(1) any state claim joined by plaintiff will be dismissed for lack of juris
C. Rule 13 Counterclaim and Crossclaim
1. Compulsory Counterclaim
a) Must be motioned on
b) There are no compulsorily Counterclaim police
2. Permissive Counterclaim
a) See rules
3. Grumman v Data General Corp (920)
a) Synopsis
(a) Copyright owner moved to dismiss action brought against it under state antitrust laws
on grounds that action was compulsory counterclaim in owner's federal copyright
infringement action against competitor in District of Massachusetts. The District Court,
Fern M. Smith, J., held that claims under California antitrust law against owner of
copyright were compulsory counterclaims in owner's copyright infringement action
against competitor where allegations of monopolization significantly overlapped
copyright issues.
b) Holdings
(1) Claims under California antitrust law against owner of copyright were compulsory
counterclaims in owner's copyright infringement action against competitor where
competitor's allegation of monopolization significantly overlapped copyright issues,
requiring dismissal of competitor's state antitrust law claims against copyright owner in
separate action.
(2) Fact that additional defendants in competitor's state antitrust claim were not amenable to
jurisdiction in federal district court in which copyright owner had commenced copyright
infringement action against competitor did not preclude treating competitor's
monopolization claim as compulsory counterclaim, inasmuch as additional defendants were
alleged to be antitrust coconspirators of copyright owner and thus were not indispensable
parties to an antitrust action
c) 7th circuit test
(1) The logical Relationship Test (921)
(a) Whether the essential facts of the various claims are so logically connected that the
consideration of Judicial economy and fairness dictate that all the issue be resolved on
one lawsuit

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 (2) The essential facts are key
(3) This is a flexible test
(4) This rejects the Mead Test from the 6th circuit
(a) Prof read 923-924
d) 6th Circuit Test
(1) Primary weight to the similarity or Dissimilarity of the legal issue involved
(2) Judicial Economy and efficiency
e) Why dismiss in this case instead of transfer to the MA court
(1) Not much difference
f) What if Grumman had filed in CA first
(1) The Grumman wins
(2) Rule 13 is a first to court wins
g) What if MA already adjudicated the case
(1) Res Judicata
(a) Motion to dismiss
(b) Prof Failure to Join a counterclaim
(i) Is this in the rules ???
(ii) ????Lack of Subject Matter Juris ???
D. Rule 17 Plaintiff and Defendant
1. A lawsuit must be brought in the name of the person in possession of the substantive right to recover
a) The real party in interest rule
(1) Prevents relitigating of the same claims
(2) Proper Res Judicata
b) Doctrine of Privity
(1) that a contract cannot confer rights or impose obligations upon any person who is not a party
to the contract. The premise is that only parties to contracts should be able to sue to enforce
their rights or claim damages as such
c) Implication’s for diversity
(1) Courts look to the citizen ship of the real party in interest to determine if diversity exists.
(2) Attempts to manipulate jurisdiction regulated by §1359
(a) Prohibits improper or collusive devise to create federal jurisdiction
(b) There are no devices to regulate the defeat of jurisdiction
E. Rule 18 Joinder of Claims
1. Does not require a transactional relationship in order to be joined
2. P is free to assert as many claims as they have aginast an opposing party whether related or unrelated
3. Permissive not mandatory
F. Rule 19 Required Joinder of Parties
1. 19 is a process
a) 19 a
b) The if cannot be joined 19b
(1) Court must determine whether actions could/should proceed
2. Is generally co-ownership
a) Raises diversity issues
(1) If so can dismiss and refer to state court
G. Rule 20 Permissive joinder of Parties
1. Guedry v. Marino (932)
a) Seven plaintiffs sue the sheriff for violation of 1st and 14th amendment for pollical activity relating to
his re-election
b) D filed a motion to Sever and Separate
(1) D says P claims in improperly joined
(2) Via 20 and 21
(3) In the alternative claims there is sufficient reason so sever each plaintiff claim via
(a) Rule 42 Consolidate; separate trials
c) Purpose of 20 to promote trial convivence and expedite the final determination of the dispute

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 d) 2 requirements to joinder
(1) A right to relief must be asserted by, or against each plaintiff or defendant relating to or arise
gout of the same transaction or occurrence, or series of transactions or occurrences
(a) A transactional relationship
(2) Some question of law or fact common to all the parties must arise in the action
(a) Not every question of law or fact in the action must be common, only needso to be one
(3) Here the discriminatory activity includes common legal and factual allegations
(a) Here racial discrimination
(i) Contra Walmart (???)
(a) Walmart not joinder but a class action
(b) Distinction in the test or the reason for the distinction(??)
(4) Courts have broad discretion in interpreting the requirements of Rule 20 in an effort reduce
inconvenience, delay and added expense to the parties and the court
e) On Rule 42
(1) Limitation on ordering separation of trials
(a) The issue to be tried must be so distinct and separate from the others that a trial of it
alone may be had without injustice.
(b) Factors
(i) Unnecessary delay
(ii) Additional expense
(iii) prejudice to the parties
2. Once it is clear under rule 20(a) that the parties are properly joined, Rule 18(a) permits additional claims
related or unrelated, by or against all or fewer than all of the parties joined
3. Courts Differ
a) Allowing joinder of parties form the same company but different departments
b) V. some deny same company and same departments
4. Courts will allow Pre-trial joinder even if they are likely to separate at trial
a) This eases the burden of discovery
5. There must be case by case adjudication on the issue
a) There is not a standard and it requires discretion and flexibility
6. Joinder tests vary by jurisdiction
7. Westlaw Notes
a) Synopsis
(1) Former deputies whose commissions were not renewed as of date that sheriff assumed office
after his reelection brought civil rights action against sheriff. Sheriff moved to sever and
separate trials. The District Court, Jones, J., held that: (1) deputies' claims arose out of
similar transactions or occurrences and involved similar questions of fact and law such that
joinder of their claims under permissive joinder rule was proper, and (2) sheriff's motion for
separate trials so as to allow seven individual trials on essentially the same issue would not
be granted.
b) Headnotes
(1) Purpose of permissive joinder rule is to promote trial convenience and expedite final
determination of disputes, thereby preventing multiple lawsuits
(2) Joinder of claims, parties, and remedies is strongly encouraged under the Federal Rules of
Civil Procedure.
(3) There is no strict rule for determining what constitutes the same occurrence or series of
transactions or occurrences for purposes of the permissive joinder rule
(4) Permissive joinder rule does not require that every question of law or fact in action be
common among the parties; rather, rule permits party joinder whenever there will be at least
one common question of law or fact.
(5) Former deputies' § 1983 First Amendment claims against sheriff satisfied permissive joinder
rule since all of deputies' allegations revolved around claims of termination after alleged
violations of First Amendment rights; this included enforcement of the law as to sheriff's
supporters and/or failure to support sheriff in his reelection bid and/or speaking at public

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 meeting and such conduct could constitute a single transaction or occurrence for purposes
of permissive joinder rule and the alleged discriminatory activity directly affecting each of
the deputies included common legal and factual questions.
(6) Former deputy's civil rights claim alleging racial discrimination arose out of similar
transactions or occurrences and involved similar questions of law and fact such that joinder
of her claim with the other deputies' claims under permissive joinder rule was proper
(7) Any potential confusion to jury due to its exposure to irrelevant evidence resulting from
joinder of plaintiffs' claims could be remedied at trial through limiting instruction by court.
(8) Courts have broad discretion in interpreting requirements of permissive joinder rule in an
effort to reduce inconvenience, delay, and added expense to the parties and to the court and
to promote judicial economy.
(9) Separation of trials is proper when trial court determines that severance is in furtherance of
convenience or to avoid prejudice or when separate trials will be conducive to expedition or
economy.
(10) Decision to grant separate trials rests within sole discretion of trial court
(11) Although defendant argued that the sheer number of claims presented coupled with
testimony of each of plaintiff's witnesses would cause prejudice and confusion so as to
warrant separate trials, judicial economy and prejudice based on these factors could be
addressed by instructions
(12) Even if bifurcation might somehow promote judicial economy, courts should not order
separate trials when bifurcation would result in unnecessary delay, additional expense, or
some other form of prejudice
(13) Unreasonable delay in case's resolution amounts to prejudice to the one opposing separate
trials and such delay is not in the public interest.
(14) Defendant's motion for separate trials, allowing seven individual trials on essentially the
same, if not identical, issue, would not be granted; goals of judicial economy, convenience
of the parties, and fairness would be best served if there was only one trial.
H. Rule 22 Interpleader Action
1. How to solve the problem of inconsistent obligations
a) The problem of an insurance company with a policy benefit claimed by numerous individuals
(1) Two awards, one to one party and one to antoher creates conflicting legal obligations
b) This is not impleader Rule 14
c) Permists someone in possession of a particular piece of property that is subject to potentially
conflicting claims to join in one proceeding all potential claimants to that property
2. P a stakeholder
a) Is not seeking any particular relief against the claimants other than a guarantee of finality
b) Could deposit the property with the court and then walk away
3. D Claimant
4. 1331 – 1332 – 1367 - 1335
5. Republic Of Philippines v. Pimentel
a) Commenced by the interpleader to determine right of the claimant when under rule 19, necessary
parties had been dismissed from the joined parties
b) District Court
(1) The interpleader case against the republic was not warranted under 19 b because thought they
were necessary parties their claim had little likelihood of success on the merits because the
claim from by the republic was barred by the NY SOL
(2) This court did not consider wheter prejudice to the republic might be lessned in the
interpleader claim
c) Lexis
(1) RULE:
(a) Fed. R. Civ. P. 19(a) instructs that nonjoinder even of a required person does not
always result in dismissal. Subdivision (a) opens by noting that it addresses joinder "if
feasible." Where joinder is not feasible, the question whether the action should proceed
turns on the factors outlined in subdivision (b). The considerations set forth in

64
 subdivision (b) are nonexclusive, as made clear by the introductory statement that the
factors for the court to consider include. Fed. R. Civ. P. 19(b). The general direction is
whether in equity and good conscience, the action should proceed among the existing
parties or should be dismissed. Fed. R. Civ. P. 19(b). The design of the Rule, then,
indicates that the determination whether to proceed will turn upon factors that are case
specific, which is consistent with a Rule based on equitable considerations. This is also
consistent with the fact that the determination of who may, or must, be parties to a suit
has consequences for the persons and entities affected by the judgment; for the judicial
system and its interest in the integrity of its processes and the respect accorded to its
decrees; and for society and its concern for the fair and prompt resolution of disputes.
For these reasons, the issue of joinder can be complex, and determinations are case
specific.
(2) FACTS:
(a) An interpleader action was commenced against the defendants, the Republic of the
Philippines, a commission, a corporation, a bank, and a class of human rights victims.to
determine the ownership of property allegedly stolen by a former president of the
Philippines. The class claimed a right to the assets pursuant to a judgment against the
president and his estate. The Republic and the commission claimed a right to the assets
under Philippine law and were entitled to sovereign immunity under the Foreign
Sovereign Immunities Act of 1976. They also argued that the action could not proceed
without them The district court dismissed the Republic and the Commission based on
sovereign immunity and awarded the assets to the class. The United States Court of
Appeals for the Ninth Circuit affirmed.
(3) ISSUE:
(a) May an interpleader action proceed after necessary parties are discharged?
(4) ANSWER:
(a) No
(5) CONCLUSION:
(a) The Supreme Court determined that the action could not proceed without the Republic
and the commission and dismissal was necessary because (1) under Rule 19(a), they
were required parties, (2) under Rule 19(b), the district court and the appellate court
gave insufficient weight to the assertion of sovereign immunity since the claims of the
Republic and the commission were not frivolous and the decision to proceed in their
absence ignored the substantial prejudice those entities likely would incur, and (3) any
prejudice to the stakeholder was outweighed by prejudice to the absent entities invoking
sovereign immunity.
d) SCOTUS
(1) 9th applied a state law and determined the case could not proceed on those merits
(2) A court cannot analyze the merits of the claim if there is sovereign immunity
(3) Rule 19 says when parties must be a suit
(4) Also say whether to proceed when there is non-joinder (947)
e) Westlaw
(1) Background: 
(a) Holder of assets transferred to Panamanian company by then-President of Republic of
the Philippines brought interpleader action, seeking to resolve conflicting claims to
assets. Following remand, 309 F.3d 1143, the United States District Court for the
District of Hawaiji, Manuel L. Real, J., awarded funds to class of human rights victims.
Appeal was taken. The United States Court of Appeals for the Ninth Circuit,  464
F.3d 885, affirmed. Certiorari was granted.
(2) Holding:
(a) The United States Supreme Court, Justice Kennedy, held that action could not proceed
without Republic of the Philippines and good-government commission created by the
Republic as parties.
(3) Headnotes
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 (a) A court with proper jurisdiction may consider sua sponte the absence of a required
person and dismiss for failure to join.
(4) Decision whether to dismiss case for nonjoinder of a person who should be joined if feasible
must be based on factors varying with the different cases, some such factors being
substantive, some procedural, some compelling by themselves, and some subject to
balancing against opposing interests
(5) Interpleader action brought by holder of assets transferred to Panamanian company by then-
President of Republic of the Philippines could not proceed without Republic of the
Philippines and good-government commission created by the Republic as parties; giving
full effect to sovereign immunity of Republic and commission promoted comity and dignity
interests, no alternative forms of relief were available, going forward without Republic and
commission would not further public interest in settling dispute as a whole since Republic
and commission would not be bound by judgment where they were not parties, and
dismissal of action on ground of nonjoinder would provide asset holder with defense against
piecemeal litigation and inconsistent judgments.
(6) Under the joinder rule, in determining whether a judgment rendered without the absent party
would be adequate, adequacy refers to the public stake in settling disputes by wholes,
whenever possible.
f) Prof
(1) The court worried about extraterritorial effects
g) SCOTUS
(1) Cannot even consider the merits here b/c of sovereign immunity,
(2) Because cannot consider the merits and Philippines and commission necessary parties must
dismiss via 19 required joinder
(3) Unless they are frivolous then cannot look at the merits of sovereign immunity for
adjudicatiom
(a) Can look at the frivolous merits to dismiss = res judicata
I. Rule 24 Intervention
J. Rule 23 Class Action
1. Mass action v. Class Action
a) Mass action
(1) Joinder
(a) Rule 19
(i) Required Joinder
(b) Rule 20
(i) Permissive Joinder
(2) Must get people to sign up to the suit
b) Class Action
(1) Rule 23
(2) Do not need to get people to sign up
(3) The most common methods of litigating claims on behalf of large numbers of individuals
2. Three Discrete Elements that may serve as a means of protecting individual autonomy within the
framework of a representative action
a) Exit
(1) The ability to avoid membership in the class
b) Voice
(1) The ability to participate in the action
c) Loyalty
(1) Assurance that the interests of the named representatives are the same as those who are
absent.
3. Hansberry v. Lee
a) Action by Anna M. Lee and others against Carl A. Hansberry and others, to enjoin the breach of an
agreement restricting the use of land within a described area of the City of Chicago. A decree for
plaintiffs was affirmed by the Supreme Court of Illinois,  372 Ill. defendants bring certiorari

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 b) Headnotes
(1) State courts are free to attach such descriptive labels to litigations before them as they may
choose and to attribute to them such consequences as they think appropriate under state
constitutions and laws subject only to the requirements of the federal constitution
(2) Where the judgment of a state court ascribing to the judgment of another court the binding
force and effect of res judicata is challenged for want of due process, it becomes the duty of
the United States Supreme Court to examine the course of procedure in both litigations to
ascertain whether the litigant whose rights have thus been adjudicated has been afforded
such notice and opportunity to be heard as are requisite to the “due process of law” which
the federal constitution prescribes.
(3) One is not bound by a judgment in personam in a litigation in which he is not designated as a
party or to which he has not been made a party by service of process
(4) A judgment in personam rendered in a litigation in which a person is not designated as a party
or to which he has not been made a party by service of process is not entitled to the full
faith and credit which the federal constitution and statute prescribe, and judicial action
enforcing it against the person or property of the absent party is not that “due process of
law” which the Fifth and Fourteenth Amendments require.
c) All member of a class are bound by the adjudication
(1) There is a similar situation
d) How do you define a class
(1) Hypo
(a) All people on the lake even though they not all agree on proper outcome
e) Common question of law and fact
f) Potential Problems of class action
(1) Actiosn can get too big
(2) Lawyer may settle for too little and not make the harmed whole
g) B1 and B2
(1) It is a natural class created
(a) Hypo, the 1500 homeowners on a lake
(b) The action of the court will necessarily affect all of the homeowners
h) Must make class action allegations as well the claim and relief etc. on the complaint
i) Time period
(1) must take SOL into account
j) Must motion to certify after the complaint
(1) Judge will likely want to certify after the pleadings just in case a good 12(b)(6) arises
(2) Once certified the case represents all members of the class unless it is certified under B3
members have received notice and chosen to leave the class
(a) B1 and B2
(i) No notice and cannot leave
k) 23(g) Appoint council in the motion for certification
(1) There is a lot of judicial discretion unless it is a securities case
l) Diversity in a class (What about different states though)???
(1) Allapata and Exxon Look this up again
(a) As long as a single class member has amount in controversy
(2) And 1367 Supplemental Jurisdiction
(3) And 1332 d2a
(a) Any member of a class of plaintiffs is a citizen of a state different from any defendant
4. Mass Action V Class Action
a) Mass
(1) Need individual actors to sign but cannot certify
(2) Joinder
b) Class
(1) No need for individual action
c) Class Action Rule 23

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 d) Class actions threshold requirements
(1) Numerosity
(a) Class is so numerous that joinder of all members that joinder of all member is
impracticable
(b) Factors
(i) Judicial Economy
(ii) Nature of the action
(iii) Location of the prospective class members
(c) Commonality
(i) Question of law or fact common to all members of the class
(a) Not all questions of law and fact must be common to all class members;
most courts require merely that more than one material issue of law or fact
be held in common
(b) Walmart may rachet up the commonality standard
(d) Typicality
(i) The claims or defenses of the representative parties must be typical of the
claims or defenses of the other members
(e) Adequacy of Representation
(i) Adequacy of representation of the non-present class members
(ii) Two aspects
(a) The adequacy of the named party
(b) Adequacy and competency of counsel
e) Types of class actions
(1) 23(b)(1)
(a) Two situations
(i) When separate actions would create the risk of inconsistent or varying
adjudications with respect to individual members of the class and establish
incompatible standards of conduct for the party opposing the class
(ii) When individual adjudications would, as a practical matter, be dispositive to
the interests of nonparties to the action
(a) Direct appropriate notice to the class
(2) 23(b)(2)
(a) Is directed towards class suit that seek injunctive and declaratory relief.
(i) Big in institutional reform
(a) Direct appropriate notice to the class
(3) 23(b)(3)
(a) Give binding effect to an adjudication brought as a class where the relationship between
the parties is greatly attenuated.
(i) Notice in required
f) Walmart v. (985)
(1) 23(a)(2)
(a) There are questions of questions of law or fact common to the class
(2) Crux of this appeal is commonality
(3) Prof read 987-989
(4) Scotus
(a) “Their claims must depend upon a common contention- for example, the assertion of
discriminatory bias on the part of the same supervisor”
(i) May request pre-certification discovery to fulfill class requirements.
(b) “Sometimes it my be necessary for the court to probe behind the pleadings before
coming to rest on the certification question.”
(c) Other than the bare existence of delegated discretion, respondents have identified no
“specific employment practice” much less on that ties all their claims together
(i) Scalia is requiring a very deep analysis of the merits and requiring a very
narrow and explicit

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 5. Walmart Dissent
a) Predominate is not in 1 or 2
(1) “predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.”
(a) Must predominate over individual causes
b) Decision to certify is discretionary
c) Standard of Review
(1) Scalia
(a) This is law
(2) Dissent
(a) This is fact
(b) Absent an error of law or an abuse of discretion an appellant tribunal has no warrant to
upset the district courts finding of commonality
(i) That Walmart discriminates on the basis of gender in pay and promotions
K. Class Action too Big?
1. Too many people
2. Too many claims
3. The principle agent problem
a) A settlement offer that undervalues the claims of the class in promotion to the risk of going to trial is
one that many class members
b) Might well reject if they were in control of their own individual litigation
c) Payout may look good to the attorney though
d)
L. Bridgestone Tires v. 1013
1. Different types of P with different types of injuries
2. B3 class action but a predominance and superior problem
a) If a class this is the only option
(1) predominance and superior problem
3. The privileges of the whole class is bound in the class action
a) Here Many different injuries in may different places with many different laws and distinct issues
(1) Who drove negligently, who maintained their car, who was in an accident, Who has greater or
lesser personal harm, these are all distinct too.
4. Judge see benefit to piece meal litigation
a) Federalism and more reasonable because of the many distinct claims and injuries
(1) There is a better grasp of info in a smaller adjudicated claims
(a) There is law created in each adjudication
5. Settlements Rule 23 E
a) Preliminary approval 23 e
(1) 23f – 23e
(a) Not applealable
b) All members of the class are bound
c) Must take any settlement to the judge approval
(1) This is unique (??)) WHY???
d) Want tot make sure p layer not selling out the class for the paycheck
e) Alternatively D might be afraid case is too big and feel forced to settle
6. Court
a) A single nationwide class is not manageable
(1) What law will lead??
7. The most serious injured P may benefit the least from such a class proceeding
8. Choice of law
9. Not just a single tire at issue
M. Settlement Classes
1. some class actions are certified solely for settling

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 2. Many Class Actions settle because of enormous costs, but some actions settle at onset of suit and were
designed that way, asking the judge to certify the class for purposes of settling
3. Amchem v Windsor (1026)
a) Ginsburg
(1) This case was never meant to go to trial
b) Under rule 23 sought to obtain a global settlement of current and future asbestos claims
(1) Settlement class evolved in response to asbestos
c) Litigation Classes are
(1) B1
(2) B2
(3) B3
d) Here
(1) The class does not meet the predominance test
(a) Too many different type of injuries
(2) There are also arguments against the superiority of the litigation
(a) Too many different type of cases
e) Conditional Class
(1) B3 For the purpose of settlement only
(2) A settlement class should be treated differently than a litigation class?
(3) Why able to be settlement class but not a litigation class
(a) The novel argument is
(i) More manageable
(ii) Become superior
(a) Once decided it is a class the common issue fair settlement and that become
predominant
(b) Argument against
(i) The court is approving a settlemtn over a case it has no jurisdiction to litigate
(4) Settlement class still has to meet all the certification requirements of a class
(5) But less concern for (b)(3) manageability
(6) New Rule 23(e),(g),(h) to prevent collusion b/w D’s and class counsel
(7) Ex: Amchem Prods v Windsor: Scheme of stipulations for different categories of asbestos
disease. Class was certified for settlement only.
(8) Divided into sub categories – people who haven’t manifested injuries will want to draw on a
fund if they are hurt in the future. Same representation for those who are hurt now and those
who suffer a latent harm.
(9) Problem of notice here – how can you notify someone who hasn’t been hurt? Is it fair to bar
them from future litigation?
(10) Even if this is a “settlement” class they still have to meet the requirements of a class under
rule 23. Protects rights of absentee class members.
(11) Do not meet Rule 23 requirements so no class
f) SCOTUS
(1) There are different analysis standard for a litigation class and a settlement class
(a) Settlement Role
(i) Settlement is relevant to a class certification
(ii) 3rd homed in on the settlement terms in explaining why it found the absentee’s
interests inadequately represented
(iii) circuits close inspection of the settlement in that regard was proper
(b) superior
(i) Need not investigate whether if tried would present intractable management
problems because idea is that it will never go to trial (1032). Circular
reasoning??????
(c) Predominate
(i) Settlement is not a part of the predominance analysis
(d) Adequacy inquiry

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 (i) Also fails here
(a) Too diverse
(e) Not rule on Notice
g) Matsushita v. Epstein (p.964) – absent P’s who didn’t opt out will be bound, can’t raise jurisdictional
objections later – even if 1st suit in state ct and 2nd suit exclusive fed juris  no collateral
attacks on global suits/settlements
4. Ortiz V Fireboard
a) Difference from AMchem
(1) Tried to brin this as a B1 action b/c it was a limited funds case
(2) Again rejected.
XVIII. PRIOR ADJUDICATION
A. Res Judicata – is a broad category encompassing two related but distinct kinds of preclusion
1. Claim Preclusion (res judicata proper) – forbids relitigating of the “claims” in a subsequent proceeding.
a) Basically forbids any claim that was or should have been asserted in a prior proceeding
b) There must be mutuality of parties
2. Issue Preclusion (collateral estoppel) – forbids relitigating of specific factual or legal determinations made
in a prior proceeding.
a) Only estops parties from relitigating issues that were actually litigated in a prior proceeding and were
necessary to the prior judgment.
b) May be asserted on behalf of a litigant who did not participate in the initial proceeding but never
against someone who was not a party in a prior proceeding (or deemed to be in a “privity”
relationship with such a party).
B. Claim Preclusion
1. Other Terms
a) Merger and Bar
b) Res Judicata
2. Forbids the relitigating of the “claims” in a subsequent proceeding
a) Prohibits any claim that was or should’ve been asserted in a prior proceeding
(1) Applies to attempts to relitigate a claim that has already been adjudicated & attempts to split
up closely related claims & litigate them one by one in different proceedings.
b) Generally requires both parties in subsequent proceeding to have been parties to the initial proceeding
(1) (mutuality of parties)
c) There are always 2 actions.
(1) Judgment in 1st claim (final adjudication) bars a new claim based on a different legal theory.
You lose the right to bring that new claim if you don’t bring it in the first.
d) A little Const
e) A little rule
f) Mostly common law
g) Look for people who have not had their day in court
3. Policy reasons:
a) Finality/Repose- has to be an end to litigation
b) Incentive to plead all legal theories in one claim is good thing. (FRCP liberal pleading standards-
room to get it right the first time.)
c) Efficiency- Prevents waste of judicial resources
d) Limits unfairness to harassed D
e) Restricts P from bringing same claim until she gets sympathetic jury
f) Eliminates the risk of inconsistent results
4. Defining Same Claim
a) Defining what constitutes a “single claim” or a “single cause of action” to require joinder in a single
litigation is one of the central questions in the law of prior adjudications.
b) Preclusion law and relaxed joinder rules combine to basically require claim consolidation.
(1) Rush v. City of Maple Heights(1958)
(a) Facts: Rush (Plaintiff), brought suit in one court for damages to her property resulting
from the Defendant, the City of Maple Height’s (Defendant), negligence and another suit

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 in a different court for personal injuries suffered from the same negligent action. City
invokes res judicata.
(b) Held: Whether or not injuries to both person and property resulting from the same
wrongful act are to be treated as injuries to separate rights or as separate items of
damage, a plaintiff may maintain only one action to enforce his rights existing at the
time such action is commenced.
(c) Rule: It is improper to bring different claims for damages to property and person,
which arose, from the same tort
(d) when a person suffers both personal injuries and property damage as a result of one
wrongful act, only a single act of action arises, the different injuries occasioned thereby
being separate items of damage from such an act
(e) Note: FRCP does not provide for compulsory joinder of claims, although there are rules
for compulsory counterclaims (FRCP 13(a)) and compulsory joinder of parties
(FRCP 19)
5. Claim Preclusion Requirements: A judgment in an earlier act as a bar to a consequent action if:
a) The earlier judgment was issued by a court of competent jurisdiction,
b) There was a final judgment on the merits in the earlier action, and
c) both cases includ similar reasons for action and similar parties or their privies.
6. Herendeen v. Champion International Corp.(1875)
a) Brief Fact Summary. Plaintiff, a paper salesman for Nationwide (defendant), resigned from his
position in reliance on a promise from his employer that he would receive a new K and continue
to receive his benefits. Upon non-receipt of contract, he sued Champion (defendant) and
Nationwide. The state court dismissed the case for failure to state a claim. P later sued Ds. The
district court dismissed his claim on the ground of res judicata. P appealed.
(1) Two Actions-same facts,
(a) breach of oral agreement
(b) lost pension benefits .
b) Rule of Law: Under the doctrine of res judicata, a consequent action is not barred by a judgment in a
prior action if the different wrongful conduct is asserted.
c) Held. Under the doctrine of res judicata, a consequent action is not barred by a judgment in a prior
action if the different wrongful conduct is asserted.
d) Overlapping facts, but difference in legal wrongs
(1) Under legal wrongs approach, you only need facts
e) NB: Herendeen is older approach
f) Rights based approach
(1) different rights in the two lawsuits (first- he wasn’t entitled to those rights. The second-
seeking vested pension rights).
(2) This is a law focused analysis.
(3) On the other hand, is the evidence going to be that different, or is basically the same story
going to be told in both cases
(4) Under Restatement: § 24-25 – claim extinguished w/ respect to (series of) transaction(s),
even if new evidence or new theories of claim are presented (795)
(a) RSTMENT Dimensions of a claim for purposes of a merger or bar
(i) When a valid final judgment rendered in an action extinguishes the plaintiff’s
claim pursuant to the rules of merger or bar 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 transactions out of which the action
arose
(ii) What factual grouping constitutes transaction and what constitutes a series are
to be determined pragmatically, giving weight to such considerations as
whether the facts are related in time, space, origin or motivation whether the
form a convenient trial unit, and whether their treatment as a unit conforms to
the parties expectations or business understanding or usage.
(5) P would be precluded under Restatement, but wasn’t here

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 7. IF something was a Compulsory claim FRCP 13b in first action, it cannot be brought in second action.
8. Claim must be dismissed on merits in first action to be precluded in second action (if dismissed for lack of
Subject Matter Jurisdiction in first action, may be able to bring in 2 nd)
9. In Fed courts, when they talk about res judicata of prior fed judgments, they apply fed common law. State
common law applies to state courts.
10. NB for test- see if facts similar to Herendeen
11. Same claim- includes all rights of P to remedies against D w/ respect to all or any part of the transaction,
series of connected transactions, out of which action arose
C. Federated Department Stores, Inc. v. Moitie (1981)
1. Brief Facts. In 1976, seven consumers, including Moitie and Brown (Plaintiffs), filed class action lawsuits
against Federated Department Stores, Inc. (Defendant), alleging that the Defendant illegally fixed the
retail prices of women’s clothing in Northern California.
2. Rule. This court recognizes no general equitable doctrine, such as suggested by the court of appeals, which
countenances an exception to the finality of a party’s failure to appeal merely because his rights are
closely interwoven with those of another party.
a) No exception to finality of judgment when no appeal was mad
b) If P believes judgment based on erroneous view of law, must be directly reviewed, not collaterally
attacked
c) State/fed jurisdictional issues not even important, because preclusion still applies
(1) ONLY CASES finally disposed of “on the merits” will foreclose relitigation of claim.
3. Once Gov sue for one thing for which there is also a private right of action common to see many private
acitons commenced
4. 7 private actions filed
5. Motie one of the seven
a) Begin in State
b) Gets removed
6. private claims dismissed in Dis Ct for lack of standing
7. All appeal except for Brown and Moitie
a) They refile in state on similar state claims
8. Action #2
a) Removed again and motion to dismiss on Res grated
9. Action 1 appeal reversed and remanded Dis Ct for trial on the merits
10. ONLY CASES finally disposed of “on the merits” will foreclose relitigation of claim.
11. Moiote and Brown out of luck because they reached their limit of Res by not appealing
12.
D. The Special Problem of Defenses
1. Claim preclusion extends to both P’s and D’s. D who bypassed opportunity to assert a defense or
counterclaim may be precluding from asserting it in subsequent proceeding.
a) Defense preclusion largely subsumed under comp counterclaim rules like FRCP 13a.
b) No penalty prescribed in rules but courts uniformly enforce rule by preventing a party from asserting
the omitted counterclaim.
E. Mitchell v Federal Intermediate Credit Bank (1932)
1. Brief Fact: The Plaintiff, Mitchell (Plaintiff), brought suit to collect money owed to him by way of a
surplus paid on a note. The Defendant, Federal Intermediate Credit Bank (Defendant), had brought suit
against the Plaintiff in an earlier case arising out of the same facts in which the Plaintiff won, though he
did not seek relief in that case and instead sought it in the case at bar.
2. Rule: A Plaintiff is not allowed to split his causes of action by first using it as a defense in one case and as a
claim in another.
3. Action 1
a) Bank v. Mitchell
(1) Affirmative defense that bank was repaid the $9000 loan in potato’s that earned 18,000
4. Action 2
a) Mitchell V Bank
(1) Bank owes him 9000

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 b) Barred because Res juda under the first claim
c) This was a compulsory counterclaim in action 1
5. There is no compulsory Counterclaim in NY
F. On the Merits
1. Costello v. United States(1961)
a) Brief Facts: INS wants to revoke Costello’s citizenship because he entered his occupation as “real
estate” when he was, in fact, a bootlegger. In earlier denaturalization claim against Costello, INS
never submitted an affidavit of “good cause”, so first claim dismissed but court did not specify
with or without prejudice.
b) Held: Dismissal for failure to file the affidavit of good cause is dismissal for lack of jurisdiction
within the meaning of Rule 41(b) and the government can continue the proceedings.
(1) This is not an adjudication on the merits
c) SCOTUS regards exceptions from dismissals under 41(b) to extend beyond just lack of jurisdiction
over person or subject matter to encompass those dismissals which are based on a plaintiff’s
failure to comply with a precondition requisite to the court’s going forward to determine the
merits of his substantive claim.
(1) Failure to file the affidavit of good cause falls under this category.
d) Rule: Only cases finally disposed of “on the merits” will foreclose relitigating of the claim.
Dismissals in which the merits could not be reached for failure of the plaintiff to satisfy a
precondition are not dismissals on the merits.
e) NB Unless stated otherwise by court, dismissal for procedural oversight is construed as “for lack of
jurisdiction” under exceptions of 41(b)  not adjudication upon the merits  operates as
dismissal w/o prejudice  no preclusion
f) Rule 41(b) treats a dismissal for failure to comply with the Rules or a court order as a dismissal with
prejudice. The default designation for involuntary dismissal under 41(b) is dismissal with
prejudice unles an express exception applies or the court states otherwise.
(1) 41(b) Involuntary Dismissal. cf. Restatement 20(1)(a) – 2nd action not barred for “lack of
jurisdiction, improper venue, or non-/misjoinder of parties”
g) RULE 60
(1) Judgment is void if rendered w/o jurisdiction
(a) SMJ – PJ – Collateral Attack and Default Judgment
h) Note: in Semtek, the court states that dismissal with prejudice is a necessary condition for claim
preclusion but not a sufficient one
(1) Curing Defects in Jurisdictional Dismissals: Dozier v Ford Motor Company (1983)–
dismissal was on the basis of lack of subject matter jurisdiction (amount in controversy too
little)  dismissal without prejudice. However, P can’t refile in federal court but can still
go to state court because the question of jurisdiction was already litigated in federal court.
Dozier was not a curable defect – did not qualify under “the “curable defect” exception
which applies where a “precondition requisite” to the court proceeding with the original suit
was not alleged or proven and is supplied in the second suit”
(2) Costello = curable defect  no preclusion, can refile anywhere
(3) Curable Defects: filing an affidavit of good cause; proper service of process; residency
adequate to invoke diversity jurisdiction. It is ok to permit P multiple chances to comply
with these post-transactional requirements but it is not ok to change his sworn recitation
of past facts.
(4) Generally Court is not consistent in what counts as curable ad what not.
2. Dismissals with prejudice vs. dismissal on the merits
a) Dismissed with prejudice  you can’t file again. Classic example of dismissal with prejudice but
doesn’t get to merits is: failure to prosecute (if P starts lawsuit but lets it drop. D says to make
the lawsuit go away. That kind of motion for failure to prosecute is codified under 41b.) So you
can move to dismiss for failure to prosecute (it would be dismissal with prejudice). That
dismissal is with prejudice but it’s not a dismissal on the merits. Conclusion- merits and
prejudice is not the same thing.

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 3. Dismissal on Merits is definitely claim preclusive. But dismissal with prejudice need not be claim
preclusive.
4. What is the effect of a 12(b)(6) dismissal – Motion to dismiss for failure to state a claim? Federal courts –
based on a reading of 41(b) have consistently held that a 12(b)(6) motion precludes a second action
arising out of the same transaction unless the court sepecifies otherwise.
a) Problem arises under Iqbal and Twombly. If the plaintiff has his claim dismissed under the
plausibility standard and it later becomes clear that the dismissal was unwarranted (because, for
example new facts come to light sufficient to allege a plausible complaint), is it fair for the
dismissal to be preclusive
b) Statutes of Limitations: FILL FROM note 6 on 821
c) Voluntary Dismissals under 41(a): voluntary dismissals are typically without prejudice, though the
Rule requires dismissal with prejudice when the P has already secured dismissal of an earlier
lawsuit that asserted the same claim and it also imposes some limits on voluntary dismissal of
suits where the D has asserted a counterclaim.
G. Collateral Estoppel/Issue Preclusion
1. Applies only to preclude relitigation of an issue that the parties actually litigated and court determined in
first case. (scalpel vs. the bludgeon of claim preclusion)
2. Issue Preclusion Requirements (per restatement )
a) An issue must have been actually litigated & determined in 1st proceeding
(1) Can’t have just had the possibility of litigating that issue (see hypo on p 864)
(2) Must have been valid final judgment on the merits
(3) Actually determined-
(4) Disputed, not merely pleaded/raised (Kaufman, Lilly did not challenge the appropriateness of
the concerted action theory in the prior case, it was not actually litigated so thry could not
be estopped on the concerted action theory, but they were estopped from litigating factual
issues decided by the jury). Inconsistent verdicts/ alternative determinations- more in
Freer 562 and casebook 877)
b) 1st proceeding must have produced a valid final judgment
c) The issue must have been Necessary to that judgment
3. Traditional Approaches
a) An issue in the first proceeding may bind a party in the subsequent litigation if the same issue arises
in the later case.
b) Little v. Blue Goose Motor Coach Co. (1931)
(1) Brief Facts:. Dr. Robert M. Little (Little), now deceased, collided with a passenger bus,
owned and operated by Blue Goose Motor Coach Company (Defendant), in the city of East
St. Louis, Missouri. Defendant filed suit with a justice of the peace to recover for damage to
the bus caused by the collision. Judgment was entered in favor of Defendant in the amount
of $139.35. The case was proceeding before the justice of the peace, while executrix of
Little’s estate, Mabel A. Little (Plaintiff) filed suit in the City Court of East St. Louis to
recover damages for personal injuries alleged to have been suffered by him in the collision.
(2) Rule: Estoppel by verdict arises when a material fact in any litigation has been determined
in a former suit between the same parties or between parties with whom the parties to the
subsequent suit are in privity, when the fact was also material to the issue.
c) actually litigated, necessarily determined & essential to judgment (cf. R2J § 27)
4. Modern Application
a) Kaufman v. Eli Lily & Co.
(1) party pleading claim or issue preclusion must raise it affirmatively (Rule 8c)
(2) even if some issues are precluded, D still has to continue w/ the lawsuit to decide the rest of
the issues (either if they’re novel theories, or just weren’t raised in prior suit) – important
case of nonmutuality
(3) 15 cases filed 14 pending the disposition of Bircher
(4) Lily loses in Bircher
(a) P here moved for partial summary precluding Lily from relitigating 6 issue s decided by
the jury in Bircher jury

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 (5) Lily may not be collaterally estopped from relitigating the jury’s finding that it acted in
concert with other manufacturers because the concerted action liability found in Bircher
was based on a unresolved question of law and should not be give preclusive effect
(6) Collateral estoppel
(a) Precludes apart y from relitigating an issue which has previously been decided against
him in which he had a fair opportunity to fully litigate the point
(b) 2 Requirements (831)
(i) Identical issue necessarily must have been decided in the prior action and be
decisive of the resent action
(ii) The party to be precluded from relitigating the issue must have had a full and
fair opportunity to contest the prior determination
(c) The party seeking the benefit has the burden of demonstrating the identity of the issue
in the present litigation and their prior determination, whereas the party attempting to
defeat it application has the burden of establishing the absence of a full and fair
opportunity to litigate the issue in a prior action.
(7) Considerations
(a) Limitations On Issue Preclusion
(i) RSTMT - Pg 837
(b) Full and Fair Opportunity to Litigate
(i) RSTMT – Pg 837
b) Lexis Notes on Lily
(1) RULE:
(a) The doctrine of collateral estoppel precludes a party from relitigating an issue which
has previously been decided against him in a proceeding in which he had a fair
opportunity to fully litigate the point. It is a doctrine intended to reduce litigation and
conserve the resources of the court and litigants and it is based upon the general notion
that it is not fair to permit a party to relitigate an issue that has already been decided
against it. There are now but two requirements which must be satisfied before the
doctrine is invoked. First, the identical issue necessarily must have been decided in the
prior action and be decisive of the present action, and second, the party to be precluded
from relitigating the issue must have had a full and fair opportunity to contest the prior
determination.
(2) FACTS:
(a) A mother ingested DES while pregnant with the plaintiff. The said drug was supposed
to prevent a miscarriage. When plaintiff turned 18, she discovered that she had cervical
cancer. She blamed her mother’s ingestion of DES as the proximate cause. Since the
plaintiff cannot accurately pinpoint the actual manufacturer of the drug during the time
her mother took it, she joined several pharmaceutical companies in her action, including
the defendant drug manufacturer, and advanced the concerted action theory of liability
against them for bringing a concerted action in testing and marketing DES. The plaintiff
is just one of among several who filed a similar case against the pharmaceutical
companies. In one case, known as the Bichler case, the jurys returned a verdict on the
liability of the defendant drug manufacturer. The plaintiff used this among several other
jury findings to obtain partial summary judgment in her own case. The trial court gave
collateral estoppel effect to jury findings in the Bichler case holding the drug
manufacturer liable to a different plaintiff for acting in concert with the other drug
manufacturers in inadequately testing diethylstilbestrol (DES), which was ingested by
that plaintiff's mother and the injured party's mother during pregnancy. The drug
manufacturer opposed the application of the said doctrine, since the cases involved did
not raise identical issues.
(3) ISSUE:
(a) Should collateral estoppel effect be given to a prior similar case to arrive at a concerted
action finding?
(4) ANSWER:

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 (a) No.
(5) CONCLUSION:
(a) The court held the concerted action finding should not be given such effect because the
appropriateness of this novel theory was an open question not litigated in the prior case
due to failure to object. The drug manufacturer was properly precluded from relitigating
the other issues because they related solely to the facts underlying negligent testing and
the pregnant mothers ingested DES in the same time period and the daughters developed
similar cancers at the same age. Inadmissible hearsay allegations of a compromise
verdict and speculation did not prevent collateral estoppel. The drug manufacturer was
properly denied leave to depose two prior jurors to substantiate its compromise verdict
claim. The trial court did not abuse its discretion in severing to avoid obvious prejudice
to the other drug manufacturers.
c) The Parties bound by preclusion: Privity and “Virtual Representation”
(1) Principle:
(a) Only one who is a party to a litigation and subject to the court’s jurisdiction, or in
privity w/ such a party, can be bound by a judgment.
(2) Mutuality:
(a) Only a party to previous action can take advantage of an earlier adjudication.
d) Taylor v. Sturgell:
(1) Taylor filed suit against FAA seeking info about an old plane. Greg Herrick, Taylor’s friend,
had previously requested info but lost suit. The two men had no legal relationship and there
is no evidence that either controlled the other
(2) Holding:
(a) Court disapprove of the doctrine of preclusion by virtual representation and hold that
judgment against Herrick does not bar Taylor from maintaining suit. Fundamental right
of an individual to their day in court is put in jeopardy by this doctrine.
(b) Some exceptions:
i. Exceptions to parties needing to be bound:
ii. Consent
iii. Actual control of litigation
iv. Substantive legal representation
v. Relitigation of a prior judgment through a proxy
vi. Adequate representation in a properly structured litigation
vii. Statutory schemes that expressly provide for the binding of non parties
ii. Parties Bound and Advantaged
1. One overarching principle: only one who is party to a litigation and subject to the courts
jurisdiction, or in privity with such a party can be bound by a judgment
2. 1st Question: who is classified as a party or “in privity”
3. 2nd Question: who can take advantage of a prior adjudication.
a. Traditionally, for claim and issue preclusion, only a party or one in privity with a party
to the initial claims can take advantage of preclusion doctrines.
i. claim preclusion
1. origins of the mutuality requirement related to the scope of a “single claim”
which was defined in terms of an identity of parties.
ii. issue preclusion,
1. the animating principle requiring identity of parties was one of fairness
2. since a nonparty cannot as a matter of Due Process be bound by an adverse
finding that could be used against him, it was considered unfair for the nonparty
who faced no risk of preclusion himself to be able to use a prior judgment in his
favor by binding a party to the original action to an unfavorable determination.
b. The principle that only a party can take advantage of an earlier adjudication is referred
to as the principle of mutuality.
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 b. Vicarious Representation, Privity, and the Foundations of Preclusion
i. Taylor v. Sturgell (2008)
1. Brief Facts: Taylor’s friend filed a lawsuit seeking information about an old plane and was
denied. Then Taylor filed a similar action & the court bared suit based on the previous
case. The two men had no legal relationship & there is no evidence that either controlled
the other
2. Rule: SCOTUS holds that the doctrine of virtual representation is not a constitutionally
approved method of nonparty preclusion.
3. Holding: SCOTUS disapprove of the doctrine of preclusion by virtual representation &
hold that judgment against Herrick does not bar Taylor from maintaining suit. Fundamental
right of an individual to their day in court is put in jeopardy by this doctrine. Some
exceptions.
ii. Exceptions to parties needing to be bound:
1. Consent
2. Actual control of litigation
3. Substantive legal representation
4. Relitigation of a prior judgment through a proxy
5. Adequate representation in a properly structured litigation
6. Statutory schemes that expressly provide for the binding of non parties
1. Mutuality

 Mutuality (Defensive and Offensive)

o Mutuality (old doctrine): The only people who can use preclusion in Case 2 are people who would be
bound by the judgment in Case 1.
o Non-mutuality - now used where a decision against one party can be brought in and used in another
trial
o Offensive
 Used for
o Defensive
 Use against
o Issue or claim preclusion against someone not in the first action
 Generally no use of collateral estopple against one not in the action
Defense
 Non-mutual Defensive Issue Preclusion
o D uses previous decision to stop case brought by P as its already been tried
o Incentive for P’s to bring all of their Ds in the 1 st case
 A>>>B
o A different due process claim b/c a litigated the issue already
 Had actually litigated
 and the issue was essnential to the judgment
o Basic concept
 Against whom is issue preclusion being used?
 Did that party have their day in court

a) Bernhard v. Bank of America Nat’l Trust & Savings Assoc. (1942)

 Brief Facts: Mrs. Sather is old woman, who has a joint account with Mr. Cook- transferred her money from San
Dimas bank to First National as a gift. And then she dies. Heirs unhappy and go after Mr. Cook, original executor
of the will, to get transferred $$, but court rules it’s a gift. One of the heirs becomes new executor of the will
and tries to sue Cook again for same money The Plaintiff, Bernhard (Plaintiff), brought an action as new

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 administratix of an estate to hold the Defendant Bank liable for recovery of bank withdrawals not approved by
decedent.
o Bank asserts non-mutual defensive issue preclusion and wins. “Where a party though appearing in two
diff suits in diff capacities is in fact litigating the same right, the judgment in one estops him in the other.
 Rule: There is no requirement that the party asserting the plea of res judicata must have been a party, or in privity
with a party, to an earlier litigation so long as the party against whom res judicata was asserted was a party in
privity to a party in that litigation.
 Issue preclusion is NOT always available to someone in Case 2 regardless of whether she was a party (or in
privity with a party) in Case
o Preclusion of any sort, including non-mutual preclusion, requires that the person against whom it is
asserted had a full and fair opportunity to litigate in Case 1.

Offence
 Non-mutual Offensive Issue Preclusion
o New P seeks to take advantage of another party’s victory against a D to preclude D from contesting the
issue of liability - “Since you’ve already been found liable by someone else, you cannot now dispute your
liability to me.”
 Don’t want to allow P to bring claim when they could have easily joined first law suit
 Its not barred but its in the discretion of the court based on certain factors:
 Could P easily joined in initial action? If they could have joined easily and they didn’t, then
they could abuse system and only file if the initial case goes in their favor
 Would it be unfair because of high stakes in forum 1? (sandbagging)
 Danger of inconsistent verdicts
 Great procedural opportunities in Forum 2 (needs to be significant procedural difference
that goes to D’s ability to prepare a defense)

b) Parklane Hosiery and Co v. Shore

 Brief Facts. Complaint alleged D issued false proxy statement in connection with merger- 1 st Case SEC sued D
and injunctive relief was approved on ground that proxy was false and misleading and Appeals confirmed, 2 nd
Case Class Action against D- moved for partial sum judge based on holding in 1 st case . The plaintiff in a securities
fraud stockholder’s class action suit against a defendant sought collateral estoppel following an SEC action
against the same defendant in which the district court reached a factual decision on the merits.
 Rule: A plaintiff should be allowed to employ offensive collateral estoppel unless it would have been easy for the
plaintiff to have joined in the earlier action, or collateral estoppel would be unfair given the circumstances.
Permitted but not required at the discretion of the court
 Holding
o Offensive- Issue Preclusion allowed here- court saw no reason to ban it here b/c didn’t fall into above
reasoning.
o Holding and more on reasoning behind why it’s not unfair in CB 90
 Example
o A>B
 Patient Infringement
 C D and E also infringed
 If the patent is held as valid C, D and E still get their day in court
 This is an incentive for A to sue all at once
 If the patent is held invalid C,D, and E Can use the first action as a defense
 This is an incentive for A to sue all at once
 Some requirements
o Claim Preclusion
 Same occurrence or Transaction
o Issue Preclusion
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  Litigated and necessary to the judgment

B. Inter-Jurisdictional Preclusion
1. Full Faith and Credit and its use in interjurisdictional preclusion

 Interjurisdictional Preclusion (Full Faith and Credit 28 USC 1738

o State to State (Interstate):
 Allstate v.
 Choice of law and reasonable cross use
 Clause (State to State) and Act (Court to Court) require the second state to give the “same full
faith and credit” that the judgment has in the “state from which they are taken.”
 A judgement in NV on NV law will be enforced in NY via Article VUU
o State to Federal Preclusion Effect (Interjurisdictional): The Full Faith and Credit Act (§1738) requires that
the federal courts, even when hearing claims within the federal court’s exclusive jurisdiction, follow the
rendering state’s preclusion law.
 Claim preclusion: Only if the rendering state’s preclusion law bars the federal claim may the
court interpret §1783 to determine whether an exception to the statute applies. Must interpret
the statute as having an intent to override the preclusion law barring relitigation. (Maresse,
remanded back to see whether Illinois preclusion law would bar the federal anti-trust claim)
 “Claim preclusion generally does not apply where the P was unable to rely on a certain
theory of the case or to seek a certain remedy because of the limitations on the SMJ of
the courts.” 2nd Restatement
 Best option for litigant is to bring federal claims originally to federal court, and try to join
state claims (using supplemental jurisdiction), or else risk losing subsequent federal
claims (Court’s do not want litigants splitting causes of action two days in court,
against judicial economy, no repose)
 Issue preclusion: An issue litigated in state court must be given full faith and credit in the second
court pursuant to the command of §1738, unless the party against whom preclusion is sought
did not have a full and fair opportunity to litigate the claim or issue decided by the first court
(Allen, McCurry was received a “full and fair opportunity” to litigate the constitutional issues in
the state criminal court case and is estopped from relitigating them in a subsequent civil case)
a. ALLEN v. MCCURRY (1980)
i. Preclusion law of rendering ct (even if state ct) applies even when 2 nd suit is an arising under
fed claim (§ 1983 not an exception)
b. MARRESE v. AMERICAN ACADEMY (1985)
i. Preclusion law of rendering ct (even if state ct) applies even when 2 nd suit is an exclusive fed
juris claim (fed antitrust claims not exceptions to §1738) SCOTUS said preclusion law of
IL (where first claim in state court was brought)

2. State/Federal Preclusion

a) Allen v. McCurry

 Brief Facts After the issue of illegal search and seizure had been fully adjudicated in his state criminal trial,
McCurry (Plaintiff) brought a federal suit seeking damages for the alleged violation of his constitutional rights
arising from the alleged illegal search and seizure.
 Rule: Collateral estoppel rules apply to prevent an individual from relitigating in a federal suit for violation of
constitutional rights those issues he had a full and fair opportunity to litigate in a prior state criminal trial against
him.

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 b) Marrese v. American Academy of Orthopedic Surgeons (1985)
 Brief Facts The Plaintiffs, two orthopedic surgeons (Plaintiffs), sued the Defendant, the American Academy of
Orthopaedic Surgeons (Defendant) alleging they were refused membership in the Academy without a hearing. In
the course of discovery, the Plaintiffs asked the Defendant for correspondence and other documents relating to
the denial of applications from 1970-1980. Despite a federal court order which would protect the confidentiality
of the documents, the Defendant refused to comply and was held in criminal contempt.
 Rule: A motion made under Federal Rule of Civil Procedure (FRCP) Rule 26(c) to limit discovery requires the
court to use discretion in balancing the nature of the hardships to the parties and the effect of its magnitude.
This gives more weight to interests that have more social value than to purely private interests. In doing so, the
court must consider the possibility of reconciling the competitive interests through a carefully crafted protective
order.

3. Interstate Preclusion

4. Federal/State Preclusion, Diversity Jurisdiction, and the Erie Doctrine

 Federal to State Preclusion Effect (Interjurisdictional): The Full Faith and Credit Clause and §1738 do not apply.
Federal common law governs the preclusive effect of a dismissal by a federal court in both federal question and
diversity cases
o Diversity: Although not required by Erie, the preclusive effect of a federal judgment dismissing a
diversity action is determined by the law of the State in which the federal court sits. However, where
state preclusion law is incompatible with federal interests, the federal reference to state law in
determining the preclusive effect of a federal judgment will not occur (Semtek)

a) Semtek International Inc. Lockheed Martin Corp. (2001)

 Brief Facts. Plaintiff Semtek Intl. Inc. filed suit in California state court against Defendant Lockheed Martin, who
then had the suit moved to Federal court on diversity grounds before filing a motion to dismiss the suit based on
California’s 2-year statute of limitations.
 Rule: Federal common law governs the claim-preclusive effect of a dismissal by a Federal court sitting in
diversity, which in turn will apply the claim- preclusion laws of the state in which the Federal court is located.

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 c. SEMTEK v. LOCKHEED-MARTIN (2001,)
i. Preclusive effect of a fed diversity judgment on SOL is informed by state law of state in
which federal court sits
ii. Def of “on the merits” has changed – some judgments not really on the substantive merits
and thus not claim preclusive
iii. Even if suit couldn’t be brought in one state b/c of SOL, it can still be brought in other states
w/ longer SOL (cf. KEETON)
iv. Can’t abridge this right just b/c you’re in fed ct in diversity
v. This would encourage vertical forum-shopping
vi. 41(b) shouldn’t be read as overarching fed preclusion law – federal courts should still apply
state preclusion law
vii. “dismissed without prejudice” means can refile same claim anywhere
viii. “dismissed with prejudice” only means can’t refile that suit in the EXACT SAME court–
can refile it elsewhere
ix. 41(b) doesn’t speak to preclusion – outside it, fed cts have implied power to determine scope
of their judgments (this is federal common law – in diversity case, informed by state law!)
x. Policy: how do we know if SOL is substantive or procedural?
1. If SOL is for repose  preclusive effect
2. If it is housekeeping & efficiency  no preclusive effect
7. Federal Question: the preclusive effect of a federal judgment dismissing a federal question case is
determined by federal common law.
a. Matsushita and Marresse seem to indicate that SCOTUS sees the full faith and credit statute as a
strict command to give the judgment from case 1 truly the “same full faith and credit” it would
receive in the state courts that decided case 1.
5.

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