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Civil Procedure Bible-Professor Vitiello

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Civil Procedure Bible-Professor Vitiello Powered By Docstoc
					Some of the information contained on this outline is outdated. Most of the topics discussed this term is up to date and has not changed. Next term some of the federal rules you will study are different from the ones that are contained in this outline. Good luck and make sure that you use this to study….it is very helpful. CIVIL PROCEDURE I. PERSONAL JURISDICTION A. DEFINITION AND RATIONALE FOR PERSONAL JURISDICTION REQUIREMENT 1. DEFINITION – BEFORE CTS (STATE OR FEDERAL) CAN ENTERTAIN A SUIT INVOLVING PARTIES, THEY MUST HAVE THE POWER AND THE RIGHT TO AFFECT THOSE PEOPLES RIGHTS. THIS POWER OF PERSONAL JURISDICTION (PJ) IS DETERMINED BY A 2 PART ANALYSIS, FIRST-THE CT MUST HAVE THE STATUTORY POWER AS GRANTED BY THE APPLICABLE STATUARY LAW (STATE OR FEDERAL) AND SECOND-THE CT MUST HAVE THE CONSTITUTIONAL POWER (SO AS TO NOT VIOLATE AN INDIVIDUALS DUE PROCESS) AS DETERMINED BY THE APPLICATION OF ONE OF THE MANY CONSTITUTIONAL TESTS LAID OUT IN CASE LAW. RATIONALE FOR PJ REQUIREMENTA) STATE SOVEREIGNTY ???-NO-EARLY DECISIONS SUGGESTED THE PJ REQUIREMENT WAS DESIGNED TO PROTECT STATE SOVEREIGNTY. I.E. IT PROTECTED STATES FROM OTHER STATES TRYING TO RENDER JUDGMENTS OR INFRINGE UNJUSTLY ON RIGHTS OR PROPERTY OF PEOPLE IN IT’S BORDERS. THIS THEORY HAS BEEN PROVEN INCORRECT BASED ON THE FACT THAT THE INDIVIDUAL PERSON HAS THE POWER TO WAIVE THE PJ REQUIREMENT. THIS SUGGESTS IT IS ONLY AN INDIVIDUAL RIGHT. B) PROTECTION OF INDIVIDUALS BY THE DP CLAUSE 14 TH AMENDMENT?-YESTHIS BASICALLY IS PROVEN BY THE FACT THE PERSON CAN WAIVE THE PJ REQUIREMENT.

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1) DUE PROCESS-THIS MEANS A COURSE OF LEGAL PROCEEDINGS ACCORDING TO THOSE RULES AND PRINCIPLES WHICH HAVE BEEN ESTABLISHED IN OUR LEGAL SYSTEM FOR THE PROTECTION AND ENFORCEMENT OF PRIVATE RIGHTS. B. STATUTORY AUTHORIZATION FOR PJ (THE FIRST STEP) 1. DEFINITION-BEFORE A CT, STATE OR FEDERAL, CAN EXERCISE PJ OVER A PARTY IT MUST HAVE THE STATUTORY AUTHORIZATION TO EXERCISE SUCH JURISDICTION. IN ANALYZING ANY PJ PROBLEM FINDING THIS STATUTORY AUTHORIZATION IS THE FIRST STEP. (SECOND STEP IS NEXT SECTION ON DP REQUIREMENT, EXCEPT SEE SPECIAL EXCEPTION IN FED CTS.) STATE STATUTORY AUTHORIZATION-STATE CTS EXERCISE OF PJ IS LIMITED BY THAT PARTICULAR STATE’S STATUTE WHICH GRANTS PJ AUTHORIZATION. ALL 50 STATES HAVE THEIR OWN INDIVIDUAL STATUTES WHICH AUTHORIZE CERTAIN TYPES OF JURISDICTION.

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A) LONG ARM STATUTES-THESE ARE STATUTES WHICH GIVE THE STATE CTS THE POWER TO EXERCISE PJ OVER CERTAIN PARTIES LOCATED IN AND OUT OF THE STATES BORDERS. THERE ARE MANY TYPES OF LONG ARM STATUTES. 1) NARROW LAUNDRY LIST LONG ARM-THESE STATUTES LAY OUT SPECIFIC ACTIVITIES WHICH GIVE THE STATE CT THE RIGHT TO

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EXERCISE PJ OVER THE PARTIES. THEY ONLY CARVE OUT PART OF THEIR CONSTITUTIONALLY GRANTED AUTHORITY. EX. A STATUTE MAY AUTHORIZE PJ OVER A PERSON WHO COMITS A TORTIOUS ACT WITHIN THE STATE 2) BROAD LONG ARM-THIS TYPE OF STATUTE IS ALL ENCOMPASSING AND GRANTS THE CT THE POWER TO EXERCISE PJ TO THE EXTENT GRANTED BY THE DUE PROCESS. BASICALLY THIS TYPE OF STATUTE TURNS ALL PJ QUESTIONS INTO A DUE PROCESS/CONSTITUTIONAL QUESTION. 3) STATUTORY INTERPRETATION-ONE PROBLEM FACED IN MANY STATES IS INTERPRTING THE MEANING OF STATUTES. (A) GRAY V. AMERICAN RADIATOR- (1961) FOCUSED ON COMMITTING A TORTIOUS ACT WITHIN THE STATE. THE GRAY CT INTERPRETED IT AS MEANING THAT THE D WAS SUBJECT TO PJ UNDER THE STATUTE IF THE INJURY TO THE P TOOK PLACE WITHIN THE STATE. IT FOUND PJ OVER THE D FOR SENDING A DEFECTIVE RADIATOR PART INTO THE STATE WHERE IT EXPLODED AND INJURED SOMEONE. WHILE THE NEGLIGENCE MAY HAVE TAKEN PLACE OUT OF THE FORUM STATE, THE INJURY TOOK PLACE WITHIN IT. C. TRADITIONAL BASES OF JURISDICTION (THE DP REQUIREMENT OF THE CONSTITUTION) (THE TRADITIONAL SECOND TEST)-THESE WERE THE EARLY METHODS BY WHICH A CT COULD CONSTITUTIONALLY ASSERT PJ OVER A PERSON. MANY OF THESE NO LONGER APPLY IN LIGHT OF THE MODERN APPROACH OF MIN CONTACTS. 1. PRESENCE-(PENNOYER V. NEFF)-THE TRADITIONAL RULE, RECENTLY BROUGHT INTO DOUBT BY BURNHAM V. SUPERIOR COURT (1990), IS THAT THE STATE HAS PJ OVER ALL PERSONS INCLUDING (NONRESIDENTS AND NONCONSENTING PARTIES) AND PROPERTY (WHO ARE VOLUNTARILY) WITHIN IT’S BORDER AND IF A PERSON, CAN BE TAGGED WITH SERVICE WHILE HE IS IN THE STATE, PJ OVER THAT D FOR ANY C/A WHETHER RELATED OR UNRELATED IS PROPER. I.E. ALLOWS GEN JURIS AS WELL AS SPECIFIC. A) THE MODERN ANALYSIS UNDER BURNHAM FACTS-BURNHAM WAS A CASE WHERE THE D HAD VISITED CALIFORNIA FOR 3 DAYS TO DO BUSINESS AND SEE HIS DAUGHTER. WHILE HE WAS IN THE STATE HE WAS SERVED WITH PROCESS. HE CLAIMED THAT IT VIOLATED DUE PROCESS AS ESTABLISHED BY I-SHOE TEST SINCE THE CAUSE BEING SUED UPON WAS UNRELATED TO HIS VERY MINIMAL CONTACTS WITH THE STATE. ALTHOUGH THE CT FOUND PJ PROPER THEY SPLIT OVER THE TESTS WHICH SHOULD BE USED. THE U.S.S.C. WAS SPLIT 1) SCALIA’S VIEW (3 JUSTICES JOINED HIM BUT PROF. THINKS IT’S ACTUALLY ONLY 2 ½ B/C WHITE DID NOT CONCUR W/ SCALIA IN THE WHOLE OPINION)-WAS THAT THE TRADITIONAL RULE OF PRESENCE WAS VALID AND THAT A D WHO IS SERVED WITH PROCESS IN THE STATE WILL ALWAYS BE SUBJECT TO PJ THERE. PJ WAS PROPER HERE. (THE ONLY LIMITATION ON EXERCISING PJ BY TAG IS THAT THE D WAS NOT FRAUDULENTLY LURED INTO STATE LIKE WYMAN CASE) 2) BRENNAN’S VIEW (3 JUSTICES JOINED HIM)-AGREED THAT NORMALLY THE EXERCISE OF PJ OVER A D BASED ON HIS VOLUNTARY PRESENCE IN THE FORUM WILL SATISFY THE REQUIREMENTS OF DP BUT THAT THE TRUE TEST MUST BE AS SHAFFER V. HEITNER SAID THAT THE ASSERTION

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OF JURIS IS VALID UNDER THE I-SHOE MIN CONTACTS TEST. (I.E. THE D PURPOSELY AVAILED OF STATE) NOTE-IN BURNHAM, BRENNAN’S GROUP THOUGHT PJ WAS PROPER BASED ON THE VERY MINIMAL CONTACTS THE D HAD. THIS MIGHT SUGGEST THAT WHEN THERE HAS BEEN A TAG, THE REQUIREMENTS FOR CONTACTS MAY BE MORE LENIENT. 3) STEVEN’S VIEW-AGREED THAT PJ WAS PROPER IN THIS CASE BUT SAID HE AGREED WITH SCALIA’S TRADITIONAL ARGUMENT, BRENNAN’S FAIRNESS ARGUMENT, AND WHITE’S CONCERNS OVER D BEING VOLUNTARILY W/I THE STATE. 4) WHITE’S OTHER ½ VIEW-PROF. SUGGESTS THAT WHILE WHITE DID AGREE W/ SCALIA, HE SAID THAT PRESENCE IS NOT ENOUGH WHEN D IS INVOLUNTARILY W/I THE STATE. (EX.-LIKE WHERE HE IS UNKNOWINGLY DRIVEN INTO STATE WHERE HE IS SERVED.) BOTTOM LINE RULE-IT SEEMS IT SEEMS THAT AS LONG AS D WAS NOT INVOLUNTARILY IN THE STATE WHERE HE WAS SERVED, SCALIA AND THE 3 JUSTICES WHO JOINED HIM, INCLUDING WHITE, AND STEVENS WOULD BE SATISFIED THEREBY GIVING US 5 JUSTICES (AGAINST BRENNAN’S 4) WHO WOULD HOLD PRESENCE IN THE FORUM IS SUFF FOR PJ. NOTE ON EXAMS-PROF. SAYS BE SURE TO REALIZE THAT THE PRESENCE RULE IS REALLY BASED ON STATE SOVEREIGNTY. BUT THEN WE MUST SQUARE THAT FACT WITH WHAT WHITE SAID IN INSURANCE CORP. OF IRELAND ABOUT STATE SOVEREIGNTY NOT BEING RELEVANT TO P.J. SINCE IT IS REALLY AN INDIVIDUAL LIBERTY INTEREST THAT IS PROTECTED AND MAY BE WAIVED. MIGHT THIS HURT SCALIA’S VIEW THAT PRESENCE IS ENOUGH?? B) TRANSIENT JURISDITION-A MAN FLYING IN AN AIRPLANE OVER ARKANSAS WAS TAGGED, I.E. SERVED WITH PROCESS. THE CT UPHELD PJ IN ARKANSAS. (PROBABLY NOT VALID PJ UNDER BURNHAM) C) PRESENCE IN LITIGATION-(ADAM V. SANGER)-A P WHO BRINGS A SUIT IN A FORUM MAY THEN BE SUBJECT TO THE PJ OF THOSE CTS FOR A RELATED CC BROUGHT BY THE K. THIS IS THE PRICE THE STATE MAY EXACT AS THE CONDITION FOR OPENING ITS CTS TO THE P. 2. DOMICILE-DOMICILE IN THE STATE IS ALONE SUFF TO BRING AN ABSENT D W/I THE REACH OF THE STATE’S JURISDICTION FOR PURPOSES OF PJ. (MILLIKEN V. MEYER) A) U.S. CITIZEN-BLACKMER V. U.S. ESTABLISHED THAT A U.S. CITIZEN IS SUBJECT TO THE PJ OF THE U.S. NO MATTER WHERE HE IS. 3. EXPRESS CONSENT-STATES MAY REQUIRE A PERSON OR CORP TO FILE A FORMAL INSTRUMENT CONSENTING TO PJ OR APPOINTING AN AGENT TO RECEIVE PROCESS EVEN FOR ACTIONS UNRELATED TO THERE BUSINESS OR CONTACTS THERE A) LIMITATION REQUIRING MIN CONTACTS-RECENTLY IN RATLIFF V. COOPER LABS (1971) THE COA HELD THAT A D WHO HAD FILED A DOCUMENT CONSENTING TO JURIS IN THE FORUM STATE WAS NOT SUBJECT TO PJ THERE B/C HE HAD NOT ACTUALLY MADE DONE BUSINESS THERE TO MAKE CONTACTS THERE TO MEET THE MIN CONTACTS TEST.

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B) FORUM SELECTION CLAUSES-PARTIES TO A K WILL OCCASIONALLY AGREE TO CONSENT TO A PARTICULAR CTS JURIS IN THE EVENT OF PROBLEMS. THE USSC SAYS THESE SELECTION CLAUSES ARE VALID AND ONLY RESTRICTED BY FAIRNESS. 1) M/S BEMEN V. ZAPATA (1972)-USSC HELD THAT A FORUM SELECTION CLAUSE CONTROLLED AND ONLY THAT STATE CT ASSERT PJ OVER D 2) CARNIVAL CRUISE LINES V. SHUTE (1991)-HERE THE USSC AGAIN SAID THE FORUM SELECTION CLAUSE CONTROLLED EVEN IN NONCORPORATION BUSINESS RELATIONSHIPS. NOTE-THE LOWER CT IN CARNIVAL FOUND PJ IN WA (DESPITE THE CLAUSES CALL FOR FLA ONLY) PROPER BASED ON A BUT FOR CONTACT RELATIONSHIP. PROF. SAYS THINK ABOUT HOW IT MIGHT HAVE BEEN ARGUED AS DISSENT IN HELICOL SUGGESTED THAT THE D’S CONTACTS WERE RELATED TO THE C/A HERE. 4. IMPLIED CONSENT-THE USSC HAS SAID THAT A STATE MAY IN THE REGULATION OF CERTAIN ACTIVITIES (LIKE DRIVING OR BUSINESS) ESTABLISH PROCEDUES BY WHICH INDIVIDUALS OR COPRS IMPLIEDLY CONSENT TO PJ FOR ACTIONS ARISING OUT OF THE ACTIVITY WHICH CREATED THE IMPLIED CONSENT A) HESS V. PAWLOSKI-IN THE PUBLIC INTEREST THE STATE OF MASSACHUSETTS SAID THAT DRIVERS ON IT’S ROADS IMPLIEDLY CONSENTED TO PJ FOR CAUSES OF ACTION OUT OF THEIR DRIVING 5. PRESENCE/DOING BUSINESS-THIS THEORY HELD THAT A CORP DOING BUSINESS IN A STATE TO SUCH A DEGREE THAT THE INFERENCE IS THAT IT IS PRESENT THERE MAY BE SUBJECT TO PJ THERE. ONCE THE CORP STOPPED DOING BUSINESS THERE, IT WAS NO LONGER SUBJECT TO SUIT THERE.

D. A NEW THEORY OF PJ-THE MODERN DP APPROACH (THE MODERN SECOND TEST)-THIS MODERN PJ ANALYSIS CONSISTS OF SEVERAL IMPORTANT USSC CASES WHICH HAVE LAID OUT THE PATH FOR ALL PJ QUESTIONS TO TAKE. IT IS AN ANALYSIS THAT FOCUSES ON AND REQUIRES SATISFACTION OF 2 BRANCHES (PROF. CALL THEM 2 HURDLES), FIRST-MINIMUM CONTACTS, SECOND-FAIRNESS OR CONVENIENCE. RATIONALE FOR NEW THEORY-W/ THE INCREASING NATIONALIZATION OF THE WORLD ECONOMY AND COMMERCE, THE INCREASED INTERSTATE BUSINESS AND INCREASING CONTACT B/T PEOPLE WITH MANY STATES, THE TRADITIONAL BASES NEED TO BE UPDATED TO DEAL W/ THESE CHANGES.

FIRST-THE MINIMUM CONTACTS HURDLETHIS BRANCH FOCUSES SOLELY ON THE D’S CONTACTS WITH THE FORUM STATE AND THE BASIC REQUIREMENTS AS LAID OUT BY THE USSC IN 3 BIG CASES. 1. MINIMUM CONTACTS TEST-(INTERNATIONAL SHOE (1945))-THIS CASE SET FORTH THE MODERN TEST TO USE IN DETERMINING THE CONSTITUTIONALITY OF PJ UNDER THE DP CLAUSE. TEST-A D MUST HAVE CERTAIN MIN CONTACTS WITH THE FORUM STATE SUCH THAT MAINTENANCE OF THE SUIT DOES NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE. KEY CONTACTS IN I-SHOE-PJ WAS PROPER OVER THE NONRESIDENT D B/C IT HAD SALESMEN IN WA, IT SENT SHOES TO WA AND BENEFITTED SUBSTANTIALLY FROM ITS BUSINESS IN WA.

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PURPOSEFUL AVAILMENT-(HANSON V. DENCKLA (1958))-THIS CASE DEFINED THE MIN CONTACTS TEST GIVEN IN I-SHOE AS REQUIRING THAT IN ORDER TO EXERCISE PJ OVER THE D, IT HAD TO BE SHOWN THAT THE D PURPOSELY AVAILE HIMSEFL OF THE PRIVILEGES OF CONDUCTING ACTIVITIES WITHIN THE FORUM STATE, THUS INVOKING THE BENEFITS AND PROTECTIONS OF IT’S LAWS. A) VOLUNTARY ACT-LOOK FOR SOME VOLUNTARY ACT BY THE D IN SEEKING THE CONTACTS AND BENEFITS OF THE FORUM STATE. B) UNILATERAL ACT OF THIRD PARTY OR D-CANNOT SATISFY THE REQUIREMENT OF CONTACTS WITH THE FORUM STATE. C) RATIONALE FOR PURPOSEFUL AVAILMENT REQUIREMENT-IT GIVES THE D CLEAR NOTICE AND THE EXPECTATION THAT HE MAY BE HALED INTO CT THERE. FACTS FOR ANALOGY-THE USSC HELD FLORIDA HAD NO PJ OVER THE DELEWARE D TRUST CO. B/C IT (1) HAD NO OFFICE THERE (2) DID NOT TRANSACT OR SOLICIT BUSINESS THERE (3) THE ACT OF MS. DONNER IN MOVING TO FLORIDA WAS A UNILATERAL ACT OF WHICH THE D HAD NO CONTROL. THE D HAD NOT PURPOSEFULLY AVAILED ITSELF OF FLORIDA.

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UNILATERAL ACTIVITY, SEEKING TO SERVE, AND FORSEEABILITY-(WORLD WIDE VOLKSWAGEN CORP. V. WOODSON (1980))-THIS CASE CONTINUED TO BUILD ON I-SHOE BY MAKING SEVERAL KEY POINTS. A) UNILATERAL ACT-THE UNILATERAL ACTIVITY OF THOSE CLAIMING SOME RELATIONSHIP WITH A NONRESIDENT D OR OF A P TAKING D’S PRODUCT TO ANOTHER STATE CANNOT BY ITSELF SATISFY THE DP REQUIREMENT OF CONTACT WITH THE FORUM STATE. B) SEEKING TO SERVE-IF THE D MAKES EFFORT OR SEEKS TO SERVE THE FORUM STATE THEREBY BENEFITTING INDIRECTLY OR DIRECTLY FROM THAT STATES MARKETS PJ MAY BE PROPER. EX. BODINES V. SUNNY -O- THE CT FOUND PJ OVER THE NONRESIDENT D WHO PURPOSELY DIRECTED HIS ACTIVITIES AT THE FORUM STATE AND SOUGHT TO SERVE IT’S MARKETS. C) FORSEEABILITY-(DO NOT CONSIDER FORSEEABILITY AS AN INDIVIDUAL FACTOR BUT USE IT TO DISCUSS THE PURPOSEFUL AVAILMENT FACTORS) THE FORSEEABILITY THAT IS CRUCIAL IS THAT FORSEEABILITY THAT THE D’S CONDUCT AND CONNECTION WITH THE FORUM STATE ARE SUCH THAT HE SHOULD REASONABLY ANTICIPATE BEING HALED INTO COURT THERE. FORSEEABILITY THAT A P MAY BE INJURED IN A PARTICULAR FORUM IS NOT BY ITSELF ENOUGH TO GET PJ. FACTS FOR ANALOGY-THE SC FOUND NO PJ OVER D WHO SOLD A CAR TO D. THE SALE TOOK PLACE IN N.Y. AND THE INJURY TOOK PLACE IN OKLAHOMA. THE D’S NEVER ADVERTISED IN OKLAHOMA NOR DID THEY SEEK TO SERVE THE MARKET THERE. IT WAS A UNILATERAL ACT OF THE P’S TO DRIVE THERE.

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PJ IN K CASES (BURGER KING CORP. V. RUDZEWICZ (1985))FACTS-THIS CASE INVOLVED A K B/T RUDZEWICZ IN MICHIGAN AND BURGER KING IN FLA. FLA WAS TRYING TO ASSERT PJ OVER D. THE COURT USING THE TESTS OUTLINED BELOW FOUND PJ PROPER.

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FIRST STEP-THE COURT APPLIED THE 3 PART ANALYSIS OF I-SHOE, HANSON, WOODSON IN DETERMINING THAT THE D HAD MIN CONTACTS WITH THE P AND HAD PURPOSEFULLY AVAILED HIMSELF OF THE PRIVILEGES OF FLA LAW. A. BIG RULE-THE BIGGEST THRUST OF THIS CASE WAS TO PROPOSE A 4 PART TEST IN K CASES TO DETERMINE WHETHER THE D HAD PURPOSEFULLY ESTABLISHED MIN CONTACTS WITHIN THE FORUM. ANALYZE – 4 PART TEST 1. PRIOR NEGOTIATIONS 2. CONTEMPLATED FUTURE CONSEQUENCES 3. THE TERMS OF THE K 4. THE PARTIES ACTUAL COURSE OF DEALING B. CHOICE OF LAW PROVISION-BURGER KING HELD THAT WHILE A CHOICE OF LAW PROVISION BY ITSELF WAS NOT ENOUGH TO GRANT PJ, IT MAY WHEN COMBINED WITH OTHER CONTACTS THAT HELP REINFORCE THE CONCLUSION THAT THE D PURPOSEFULLY AVAILED HIMSELF OF THE FORUM STATE’S LAW. C. NOTE ON BRENNAN’S OPINION-HE SEEMED TO SUGGEST THAT IN SOME CASES OF GREAT FAIRNESS, THERE MAY BE A LESSER REQUIREMENT OF MIN CONTACTS. 5. STREAM OF COMMERCE CASES-(ASAHI V. SUPERIOR COURT (1987))-THIS CASE DEALT WITH A FOREIGN D WHO MANUFACTURED A VALVE PART WHICH WAS INCORPORATED INTO A TIRE AND THEN PUT INTO THE STREAM OF COMMERCE AND SHIPPED OFF TO THE U.S. WHILE IT MAY HAVE BEEN PROVEN THAT THE D HAD KNOWLEDGE THAT THE FINAL PRODUCT WAS BEING MARKETED IN THE FORUM STATE, HE DID NOT HAVE ANY OTHER CONTACTS WITH THE STATE. THE COURT WHILE AGREEING THAT THIS WAS A CASE WHERE CONVENIENCE DEMANDED NO EXERCISE OF PJ SPLIT IN IT’S VIEW ON THE PROPER MIN CONTACTS TEST.

VIEWS ON THE STREAM OF COMMERCE CAME FROM ASAHI. 1. O’CONNOR’S VIEW-PURPOSEFUL AVAILMENT REQUIREMENT-(4 JUSTICES AGREED)-THE MERE AWARENESS THAT THE STREAM OF COMMERCE MAY SWEEP THE D’S PRODUCT INTO THE FORUM STATE IS NOT ENOUGH TO GET PJ. THERE MUST BE SOME ADDITIONAL ACT OF PURPOSEFUL AVAILMENT DIRECTED AT THE FORUM STATE. THEY WOULD NOT HAVE FOUND MIN CONTACTS PROPER HERE. EXAMPLES OF ADDITIONAL ACTS 1. DESIGNING THE PRODUCT FOR THE MARKET IN THE FORUM STATE 2. ADVERTISING IN THE FORUM 3. ESTABLISHING CHANNELS FOR ADVICE TO CUSTOMERS IN FORUM 4. HAVING A SALES AGENT IN THE FORUM 2. BRENNAN’S VIEW-KNOWLEDGE IS ENOUGH (4 JUSTICES AGREED)-AS LONG AS THE D IS AWARE THAT THE FINAL PRODUCT IS BEING MARKETED IN THE FORUM STATE, THE POSSIBILITY OF A LAWSUIT THERE CAN COME AS NO SURPRISE. WOULD HAVE FOUND MIN CONTACTS GOOD HERE. 3. STEVENS’ VIEW-ARGUED THAT PURPOSEFUL AVAILMENT COULD BE SHOWN BY THE VOLUME, VALUE AND HAZARDOUS CHARACTER OF THE COMPONENTS. 4. CONCLUSIONS AND MAJORITY VIEW??-PROF.’S VIEW* IS THAT IF A COURT COULD MEET STEVENS’ 3 PART TEST AND SHOW THAT THE D WAS AWARE UNDER BRENNAN’S VIEW THE COURT COULD ASSERT PJ OVER THAT COMPANY DESPITE THE FACT THAT IT HAD NOT PURPOSEFULLY AVAILED ITSELF UNDER THE O’CONNOR APPROACH.

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5. ALTERNATE APPROACH-B/C OF THE UNCERTAINTY IN ASAHI, COURTS LIKE THE ONE IN IRVING V. OWENS CORNING DECIDED TO FOLLOW THE STREAM OF COMMERCE VIEW FROM WORLD WIDE. THEY FOCUS ON WHETHER THE D SHOULD REASONABLY HAVE ANTICIPATED BEING HALED INTO THE FORUM STATE’S COURT GIVEN IT’S CONTACTS WITH THAT FORUM. NOTE-MOST COURTS THINK WOODSON DOES NOT WORK AS A STREAM OF COMMERCE CASE B/C IT DEALT WITH A END RETAILER. 6. CASES WHICH DEMONSTRATE THE PREVIOUS CASESA. CASES DEMONSTRATING MIN CONTACTS/PURPOSEFUL AVAILMENT CONCEPTSKEETON V. HUSTLER (1984)-KEETON SUED HUSTLER IN NEW HAMPSHIRE B/C IT HAD THE LONGEST SOL. THE COURT FOUND PJ OVER HUSTLER BASED ON THE LARGE NUMBERS OF MAGAZINES IT SOLD THERE MONTHLY. IT HAD PURPOSEFULLY AVAILED ITSELF OF THE PRIVILEGES OF CONDUCTING BUSINESS IN THAT STATE. THE COURT ALSO NOTED THAT THE FACT THAT THE P HAS HAD NO CONTACTS WITH THE FORUM WAS NOT A REQUIREMENT TO ASSERT PJ OVER D. P’S RESIDENCE WOULD, HOWEVER, BE TAKEN INTO CONSIDERATION IN EVALUATING THE D’S CONTACTS WITH THE P THERE IF APPLICABLE. KULKO V. SUPERIOR COURT (1978)-THE USSC DENIED PJ OVER A FATHER WHO’S ONLY CONTACT WITH THE FORUM STATE OF CA WAS SENDING HIS KIDS THERE TO BE WITH THEIR MOTHER. THE COURT SAID HE HAD NOT PURPOSELY AVAILED HIMSELF OF THE BENEFITS AND PROTECTIONS OF CA LAW. THE KLKO COURT ALSO REJECTED THE APPLICABILITY OF THE EFFECTS TEST WHICH SAYS A PERSON WHO COMMITS A WRONGFUL ACTIVITY OUTSIDE THE STATE WHICH CAUSES INJURY INSIDE THE STATE IS SUBJECT TO PJ (AS LONG AS IT IS REASONABLE) THEREIN. B. CASES WHICH REJECTED THE NOTION THAT THE FIRST AMENDMENT IMPOSED A LIMITATION UPON THE EXERCISE OF PJ OVER DEFENDANTS WHOSE RIGHTS OF EXPRESSION MAY BE THEREBY COMPROMISED. CALDER V. JONES (1984)-USSC HELD PJ WAS PROPER OVER D NATIONAL ENQUIRER IN CA B/C THE D’S HAD PURPOSELY AVAILED ITSELF OF CA MARKETS AND HAD ACTED INTENTIONALLY IN PRODUCING THE ARTICLE FOR CA. C. CASES ADDRESSING THE STREAM OF COMMERCE THEORY PARRY V. ERNST HOME CENTER CORP. (1989)-THE COURT REJECTED PJ B/C THE D HAD NOT MET THE O’CONNOR ADDITIONAL ACT TEST AS SHE OUTLINED IN ASAHI. SECOND-THE FAIRNESS OR CONVENIENCE HURDLE – THIS IS THE SECOND HURDLE IN A PJ ANALYSIS. ONCE WE HAVE CLEARED THE MIN CONTACTS HURDLE WE ANALYZE THE FAIRNESS OR CONVENIENCE FACTORS. IF IT WOULD BE INCREDIBLY UNFAIR OR INCONVENIENT TO ASSERT JURISDICTION OVER THE D, PJ MAY BE IMPROPER. NOTE-WOODSON SAID-EVEN IF IT WOULD BE GREATLY FAIR AND CONVENIENT TO ASSERT PJ OVER THE D, WE CAN NOT DO THAT IF WE HAVE NOT FIRST ESTABLISHED MIN CONTACTS. NO MIN CONTACTS MEANS NO PJ. 1. CONVENIENCE/FAIRNESS FACTORS TO CONSIDER A) THE BURDEN OF THE D B) THE STATE’S INTEREST IN ADJUDICATING THE DISPUTE C) THE P’S INTEREST

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D) THE INTERSTATE JUDICIAL SYSTEMS INTEREST IN OBTAINING THE MOST EFFICIENT RESOLUTION OF CONTROVERSIES E) THE SHARED INTEREST OF THE SEVERAL STATES IN FURTHERING FUNDAMENTAL SUBSTANTIVE SOCIAL POLICIES 2. CAUTION IN DEALING WITH FOREIGN DEFENDANTSASAHI CAUTIONED THAT THE COURT SHOULD PAY EXTRA ATTENTION TO THE FAIRNESS FACTORS WHEN DEALING WITH A FOREIGN D B/C OF THE UNIQUE PROBLEMS THERE. E. SPECIFIC VS. GENERAL JURISDICTION IN ANALYZING ANY PJ PROBLEM COURTS HAVE MADE A DISTINCTION B/T CASES WHERE THE C/A BEING SUED UPN ARISES OUT OF THE CONTACTS THE D HAS WITH THE FORUM STATE (SPECIFIC JURISDICTION) AND CASES WHERE THE C/A BEING SUED UPON DOES NOT ARISE OUT OF THE CONTACTS THE D HAS WITH THE FORUM STATE: EACH CATEGORY MAY BE FURTHER BROKEN DOWN BY CASES WHERE THE CONTACTS ARE CONTINUOUS AND SYSTEMATIC OR SPORADIC, SINGLE AND ISOLATED. ***THE BASIC RESULT OF SUCH CATEGORIZATION IS THAT IN APPLYING THE MIN CONTACTS ANALYSIS THERE WILL BE DIFFERENT CONTACT REQUIREMENTS*** 1. SPECIFIC JURISDICTION-THE C/A BEING SUED UPON ARISES OUT OF THE CONTACTS THE D HAS WITH THE FORUM STATE. A) CONTACTS ARE CONTINUOUS AND SYSTEMATIC-IN THESE CASES THE COURT HAS HAD NO PROBLEM FINDING JURISDICTION. EXAMPLES OF CASES WHERE THE CONTACTS WERE CONTINUOUS AND SYSTEMATIC AND THE C/A AROSE OUT OF THOSE CONTACTS INCLUDE INTERNATIONAL SHOE V. WASHINGTON-WHERE THE CAUSE BEING SUED ON (UNPAID UNEMPLOYMENT COMPENSATION CONTRIBUTIONS) AROSE OUT OF THE D’S CONTACTS (BUSINESS WITHIN THE STATE). SPECIFIC JURISDICTION WAS PROPER. B) CONTACTS ARE SINGLE OR ISOLATED-IN THESE CASES THE C/A PROBABLY AROSE DIRECTLY FROM THAT D’S SINGLE OR ISOLATED CONTACT WITH THE FORUM. EXAMPLES OF SUCH CASES ARE: McGEE V. INTERNATIONAL LIF INSURANCE-D’S ONLY CONTACT WITH THE P IN CALIFORNIA WAS A K WHICH WAS DELIVERED THERE BY THE D. THE C/A AROSE DIRECTLY FROM THAT K. SPECIFIC JURISDICTION WAS FOUND BY THE USSC TO BE PROPER. 2. GENERAL JURISDICTION – THEC/A BEING SUED UPON DOES NOT ARISE OUT OF THE CONTACTS THE D HAS WITH THE FORUM STATE, WHILE THE SC HAS NOT YET ADDRESSED THIS YET, IT APPEARS THAT IN ANALYZING A GENERAL JURISDICTION PROBLEM YOU APPLY THE SAME TWO STEP (MIN CONTACTS & FAIRNESS) APPROACH AS YOU DO IN SPECIFIC JURISDICTION. A) CONTACTS ARE HIGHLY CONTIUOUS AND SYSTEMATIC-HERE THE COURT HAS NOT HAD TOO MANY DECISIONS AND HAS NOT PROVIDED MUCH GUIDANCE IN DETERNIMING WHAT TYPE OF CONTINUOUS AND SYSTEMATIC CONTACTS WILL BE REQUIRED BY THE COURTS. PERKINS V. BENGUET CONSOLIDATED MINING CO.(1952) HERE THE D COMPANY HAD CONTINUOUS AND SYSTEMATIC CONTACTS WITH OHIO. WHILE THE C/A BEING SUED UPON AROSE OUT OF

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SOMETHING THAT HAPPENED IN THE PHILLIPINES. THE COURT UPHELD PJ OVER THE D BASED ON GENERAL JURISDICTION IN REACHING IT’S DECISION THE COURT FOCUSED ON THESE CONTACTS WHICH TAKEN AS A WHOLE IT CONSIDERED HIGHLY CONTINUOUS AND SYSTEMATIC. 1. D HAD AN OFFICE IN FORUM 2. D KEPT OFFICE FILES THERE 3. HE CARRIED ON CORRESPONDENCE FROM FORUM 4. DREW MONEY AND PAID SALARIES THERE 5. D HAD BANK ACCOUNTS THERE 6. A BANK IN FORUM ACTED AS AN AGENT FOR STOCK TRANSFER IN COMPANY 7. D HELD MEETING THERE 8. D SUPERVISED REHAB OF COMPANY FROM FORUM *NOTE-SOME ARGUE THAT THIS WAS REALLY JURISDICTION BY NECESSITY SINCE THE P COULD NOT SUE D IN PHILLIPINES B/C OF THE JAPANESE OCCUPATION. HELICOPTEROS V. HALL (1984)-THE C/A BEING SUED UPON (THE DEATH OF PASSENGERS IN HELICOPTER IN PERU) DID NOT ARISE OUT OF THE CONTACTS THE D HAD WITH THE FORUM STATE OF TEXAS. THE COURT REVIEWED EACH OF THE D’S CONTACTS WITH THE FORUM STATE INDIVIDUALLY IN DETERMINING THAT THEY WERE NOT OF THE CONTINUOUS AND SYSTEMATIC NATURE REQUIRED FOR GENERAL JURISDICTION. NOT ENOUGH CONTACTS: 1. NEGOTIATION IN TEXAS BY D’S EXECUTIVE 2. BOUGHT HELICOPTERS IN TEXAS 3. TRAINED PILOTS THERE 4. SENT OTHER MGMT FOR TRAINING THERE 5. PAYMENTS WERE MADE FROM THERE (A DISSENTER ARGUED THE C/A WAS RELATED AND THAT THE CONTACTS WERE SUFFICIENT) ***EXAM POINTS***THERE MAY BE SOME UNCERTAINTY ON WHETHER THE REQUIREMENT IS THAT THE C/A AROSE OUT OF THE CONTACTS OR THAT IT MERELY BE RELATED TO THOSE CONTACTS AS BRENNAN SUGGESTED IN HIS DISSENT IN HELICOL. ARGUE THE POSSIBLE IMPLICATIONS OF EACH INTERPRETATION ON AN EXAM. ***IMPORTANT DISTINCTION***NOTE ON EXAM THAT IN PERKINSTHE COURT ANALYZED THE CONTACTS AS A WHOLE IN FINDING GENERAL JUISDICTION WHILE IN HELICOPTEROS THE COURT ANALYZED EACH CONTACT INDIVIDUALLY IN REJECTING GJ. PROF. SUGGESTS1. LOOK TO PERKINS FOR POSSIBLE MIN CONTACTS REQUIREMENT 2. LOOK TO HELICOL TO SEE WHAT TYPE OF CONTACTS ARE NOT ENOUGH. OUR ANALYSIS SHOULD FALL SOMEWHERE IN THE MIDDLE.

B) CONTACTS ARE SINGLE OR ISOLATED-HERE THE COURT HAS NEVER FOUND GENERAL JURISDICTION TO BE PROPER. F. JURISDICTION BASED ON POWER OVER PROPERTY

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TYPES OF PROCEEDINGS A) IN REM-THIS TYPE OF PROCEEDING INVOLVE AN ACTION WHERE THE OBJECT OF THE LITIGATION IS TO DETERMINE THE RIGHTS OF ALL CLAIMANTS TO THE PROPERTY. A JUDGMENT IN REM IS GOOD AGAINST THE WHOLE WORLD. B) QUASI IN REM TYPE 1-THIS RESULTS WHEN THERE IS SOME DISPUTE B/T THE PARTIES AND THE PROPERTY UNDER THE COURTS CONTROL SOMEHOW RELATES TO THAT C/A. A JUDGMENT IN QUASI IN REM TYPE 1 ONLY AFFECTS THE ADVERSE PARTIES RIGHTS NOT THE WHOLE WORLD. C) QUASI IN REM TYPE II-THIS ACTION INVOLVES PERSONAL DISPUTES TO WHICH THE PROPERTY IS ENTIRELY UNRELATED BUT IS SEIZED BY THE P TO SATISFY ANY JUDGMENT AGAINST THE D. SHAFFER V. HEITNER SEVERELY LIMITED THIS ONE.

2.

COMMON LAW RULE-AS ESTABLISHED IN TYLER V. JUDGES (1900)-HELD THAT THE STATE HAD JURISDICTION OVER ALL PROPERTY LOCATED WITHIN ITS BORDERS. ALL THAT WAS REQUIRED WAS 1. PRESENCE OF THE RES WITHIN THE FORUM’S BORDERS, 2. ITS SEIZURE AT THE COMMENCEMENT OF PROCEEDINGS, AND 3. THE OPPORTUNITY OF THE OWNER TO BE HEARD. MODERN RULE ON JURISDICTION OVER PROPERTY-SHAFFER V. HEITNER (1977)-ESTABLISHED THE CURRENT RULES ON THIS TOPIC. A) FACTS OF SHAFFER-THE P IN THAT CASE WAS A SHAREHOLDER WHO BROUGHT SUIT IN DELAWARE AGAINST NONRESIDENT DIRECTORS WHO OWNED STOCK ON A UNRELATED CAUSE. THE P HAD THE COURT SEIZE THE STOCK. THIS WAS QIR TYPE II CASE. THE USSC DENIED JURISDICTION OVER THE SHARES BASED ON THE FOLLOWING RULE. B) *RULE OF SHAFFER-ALL ASSERTIONS OF STATE COURT JURISDICTION MUST BE EVALUATED ACCORDING TO THE STANDARDS SET FORTH IN INTERNATIONAL SHOE AND ITS PROGENY. RATIONALE-THE USSC SAID THAT EXERCISING JURISDICTION OVER PROPERTY IS IN FACT AFFECTING INDIVIDUALS RIGHTS AND INTEREST. THEREFOR, I-SHOE RULES SHOULD APPLY. C) EFFECT OF SHAFFER IN PERSONAM-THE ONLY TYPE OF CASE WHICH MAY HAVE BEEN AFFECTED BY SHAFFER IS PHYSICAL PRESENCE OR TRANSITORY JURISDICTION. SEE BURNHAM V. SUPERIOR COURT. IN REM-THESE CASES WILL BE LITTLE AFFECTED BY THE HOLDING B/C PROPERTY LOCATED IN THE STATE USUALLY BRINGS SUFFICIENT MIN CONTACTS WITH IT. QIR TYPE I-THIS TYPE OF CASES WOULD ALSO GO RELATIVELY UNAFFECTED B/C AGAIN THE PROPERTY USUALLY HAS SOME STRONG RELATIONSHIP TO THE PARTIES CONTACTS WITH THE STATE. QIR TYPE II-THIS TYPE OF CASE WOULD BE SEVERELY LIMITED BY SHAFFER. GENERAL VIEW IS THAT IN REM AND QIR TYPE I CASES WILL STILL BE GOOD B/C THE PRESENCE OF THE PROPERTY BEARS ON THE MIN CONTACTS, BUT IT IS NOT CONCLUSIVE. EX. RUSH V. SAVCHUK (1980)-THE USSC HELD THAT A COURT MAY NOT CONSTITUTIONALLY ATTACH AN INSURANCE POLICY OF D’S TO ESTABLISH QIR TYPE II JURISDICTION WITHOUT FIRST ESTABLISHING

3.

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MIN CONTACTS OF D TO THAT FORUM STATE WHERE INSURANCE POLICY IS ATTACHED. NOTE-COURTS HAVE OCCASIONALLY ALLOWED QIR TYPE II JURISDICTION WHEN THERE IS ABSOLUTELY NO OTHER WAY TO GET THE D (LIKE HE IS HIDING) OR IN CERTAIN ADMIRALY CASES. G. JURISDICTIONAL REACH OF THE FEDERAL COURTS 1. PJ-FEDERAL COURTS ALSO MUST HAVE THE PJ OVER PARTIES BEFORE ITS COURT. THERE ARE SEVERAL WAYS A FEDERAL COURT CAN ACQUIRE PJ WHICH ARE LAID IN RULE 4(F) AND (E). A) RULE 4 LAYS OUT THE METHODS BY WHICH A FEREAL COURT CAN ACQUIRE PJ OVER D – THEY SAY IN RULE 4(E) THAT PJ IS GOOD OVER A PARTY NOT INHABITANT OR FOUND WITHIN STATE WHERE 1) (NATIONWIDE SERVICE OF PROCESS) A FEDERAL STATUTE AUTHORIZES NATIONWIDE SERVICE OF PROCESS OR 2) SOME PART OF RULE 4 ALLOWS IT (AS IN 4(F)) OR 3) (STATE BORROWING) A STATUTE OR RULE OF THE STATE COURT WHERE THE DISTRICT COURT SITS ALLOWS IT. B) RULE 4(F) HOLDS THAT THE TERRITORIAL LIMITS OF EFFECTIVE SERVICE ARE1) WITHIN THE STATE WHERE TIHE DISTRICT COURT SITS 2) ANYWHERE AUTHORIZED BY A STATUTE OF THE U.S. OR BY THESE RULES (AS IN 4(E) I.E. NATIONWIDE SOP OR STATE BORROWING) (EX. INTERPLEADER) OR 3) WITHIN 100 MILES OF DISTRICT COURT IN SPECIAL RULE 14 OR 19 CASES. (EX. IMPLEADER OR NECESSARY & INDISPENSABLE PARTIES) 2. STEPS IN ANALYZING FEDERAL COURTS JURISDICTION FIRST STEP-IS THERE A FEDERAL STATUTE OR RULE AUTHORIZING JURISDICTION (I.E. SERVICE) OR CAN THE FEDERAL COURT GET TO THE D BY BORROWING A STATE STATUTE IN WHICH IT SITS. A) FEDERAL STATUTE-IF IT IS A FEDERAL STATUTE WHICH AUTHORIZES NATIONWIDE OR EVEN WORLDWIDE SOP, THEN THE NEXT STEP IS TO ANALYZE DUE PROCESS VIA THE 5TH AMEND. WHICH CONSIDERS MIN CONTACTS OF THE D TO THE U.S. AS A WHOLE. B) FEDERAL COURT BORROWS STATE LONG ARM- HERE THE FEDERAL COURT SIMPLY SEEKS TO BORROW THE STATE LONG ARM IN WHICH IT SITS . DOES IT ALLOW JURISDICTION OR SERVICE OVER D. THE DUE PROCESS TEST REMAINS THE SAME AS IT WOULD IN A STATE COURT UNDER THE 14TH AMEND.

EX. WHERE A COURT DID NOT FIND STATUTORY AUTHORIZATION ANYWHERE-OMNI CAPITAL V. WOLF-THERE WAS NO STATUTORY AUTHORIZATION NOR COULD THE COURT REACH THE D BY BORROWING THE STATE’S LONG ARM. SECOND STEP-DOES THE STATUTE MEET THE DUE PROCESS TEST THAT IS REQUIRED (EITHER BY 5TH AMEND. OR 14TH). A) WHEN IT IS A FEDERAL STATUTE AUTHORIZING NATIONWIDE SOP-HERE DUE PROCESS WILL BE TESTED BY THE 5TH AMEND.

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1) MIN CONTACTS BRANCH-THAT ARE LOOKED FOR ARE ANY CONTACTS WITH THE U.S. AS A WHOLE. RATIONALE FOR LOOKING AT CONTACTS WITH U.S. INSTEAD OF STATE WHERE DISTRICT COURT SITS IS THAT SINCE THE U.S. CREATED THE COURT IT IS THE RELEVANT PLACE TO MEASURE CONTACTS FROM. EX. FTC V. JIM WALTERS (1981)-HERE THE D WAS SERVED WITH PROCESS UNDER A FEDERAL STATUTE WHICH AUTHORIZED NATIONWIDE SOP. THE COURT REJECTED D’S ARGUMENTS THAT HIS DUE PROCESS WAS VIOLATED BY ASSERTING PJ AND SAID THAT IN THESE NATIONWIDE SERVICE CASES DUE PROCESS OF 5TH AMEND. REQUIRES ONLY THAT A D HAVE MIN CONTACTS WITH THE U.S. THE SOVEREIGN THAT CREATED IT. 2) FAIRNESS BRANCH-THE FAIRNESS HURDLE IN THESE STATUTES HAS NOT BEEN REQUIRED BY SOME COURTS. (SEE JIM WALTERS) MANY SAY ONCE YOU SHOW MIN CONTACTS WITH U.S. PJ IS GOOD MINORITY APPROACH REQUIRING FAIRNESS-OTHERS AS REPRESENTED BY OXFORD V. PNC (1974)-WHERE THE APPELLATE COURT SAID AFTER MIN CONTACT FEDERAL COURTS MUST LOOK AT 5 FAIRNESS FACTORS 1. THE EXTENT OF THE D’S CONTACT WITH THE PLACE WHERE THE ACTION WAS BROUGHT THE INCONVENIENCE OF DEFENDING IN A DISTANT FORUM JUDICIAL ECONOMY THE PROBABLE LOCUS OF DISCOVERY THE INTERSTATE CHARACTER AND IMPACT OF D’S ACTIVITIES

2. 3. 4. 5.

B) WHEN THE FEDERAL COURT BORROWS THE STATE LONG ARM STATUTE-DUE PROCESS IS TESTED BY THE 14TH AMEND. 1) MIN CONTACTS BRANCH-THE FEDERAL COURT MUST DECIDE IF THE STATE COURT COULD CONSTITUTIONALLY EXERCISE PJ OVER D BY LOOKING AT THE TRADITIONAL I-SHOE MIN CONTACTS THAT THE D HAD WITH THE FORUM STATE. 2) FAIRNESS BRANCH-JUST LIKE A STATE COURT WOULD, THE FEDERAL COURT WILL ALWAYS CONSIDER THE FAIRNESS FACTORS HERE. H. CHALLENGING A COURTS JURISDICTION OVER THE PERSON OR PROPERTY 1. SPECIAL APPEARANCES A) IN STATE COURTS TYPE 1-1ST THE D FILES A MOTION TO MAKE A SPECIAL APPERANCE. IF HE LOSES HE MAY THEN GO DIRECTLY TO DEFEND ON THE MERITS AND FOREGO ANY RIGHT TO APPEAL PJ DECISION OR HE MAY TAKE A DEFAULT JUDGMENT AND APPEAL THE PJ DECISION. IF HE LOSES THAT, HE CAN’T APPEAL ON MERITS. TYPE 2 (CA VIEW)-D MAKES A MOTION FOR A SPECIAL APPEARANCE. IF IT IS DENIED, D CAN SUBMIT TO PJ ON THE MERITS BUT FORFEITS APPEAL OR D CAN TAKE AN INTERLOCUTORY APPEAL (APPEAL FROM NON FINAL ORDER). IF HE LOSES THERE, HE IS STILL ALLOWED TO GO BACK FOR A TRIAL ON THE MERITS.

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B) FEDERAL COURTS-THERE ARE NO SPECIAL APPEARANCES IN FED COURT. D CAN ONLY FILE A MOTION UNDER 12(B)(2) CONTESTING PJ. THIS IS DONE IN 1. PRE-ANSWER MOTION, OR IN THE 2. ANSWER ITSELF AS AN AFFIRMATIVE DEFENSE. 1) WAIVER-UNDER 12(b). IF YOU FAIL TO CHALLENGE PJ IN FIRST MOTION, YOU ARE CONSIDERED TO HAVE WAIVED IT. 2) APPEAL-IF YOU LOSE PJ AND YOU GO TO TIAL ON THE MERITS, YOU MAY LATER APPEAL THE DISTRICT COURT’S PJ RULING. II. NOTICE AND OPPORTUNITY TO BE HEARD A. INTRO-AFTER DETERMINING THAT THE COURT HAS PJ OVER THE PARTIES (I.E. SUBSTANTIVE DUE PROCESS IS MET) WE MUST NEXT CONSIDER IF PROCEDURAL DUE PROCESS HAS BEEN MET. B. PROCEDURAL DUE PROCESS-IT REQUIRES THAT A PERSON MAY NOT BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY IN A COURT WITHOUT FIRST HAVING PRIOR NOTICE OF THE SUIT (SUMMONS AND COMPLAINT) AND THE OPPORTUNITY TO BE HEARD. LIKE PJ, THE D MAY WAIVE THIS REQUIREMENT. C. THE TEST FOR PROCEDURAL DUE PROCESS-MULLANE V. CENTRAL HAVOVER BANK AND TRUST CO. (1950)-THE NOTICE OF THE PENDING SUIT MUST BE REASONABLY CALCULATED UNDER ALL THE CIRCUMSTANCES, TO GIVE ACTUAL NOTICE AND AFFORD THEM A REASONABLE TIME TO BE HEARD. (IF THIS TEST IS MET, THE CONSTITUTIONAL REQUIREMENTS ARE MET.) 1) BALANCING TEST-IN DETERMINING WHAT IS REASONABLE NOTICE, WE MUST BALANCE IT AGAINST THE ECONOMIC BURDEN ON THE P. NOTE-PRIOR TO THE MULLANE TEST, COURTS OFTEN REQUIRED NOTICE MOST LIKELY (INSTEAD OF REASONABLY CALCULATED) TO GIVE NOTICE. MULLANE DOES NOT REQUIRE THE BEST SERVICE. 2) CASES ON PROCEDURAL DUE PROCESS A) D IS MISSING OR UNKNOWN/PUBLICATION-DOBKIN V. CHAPMAN-HELD SERVICE BY MAIL COUPLED WITH PUBLICATION WAS REASONABLY CALCULATED TO GIVE ACTUAL NOTICE WHERE THE D’S WHEREABOUTS WERE UNKNOWN 1. MULLANE STATED THAT IN CASES WHERE THE D IS MISSING OR UNKNOWN, SERVICE BY PUBLICATION IS CONSTITUTIONALLY SUFFICIENT.

B) ATTACHMENT OF REAL PROPERTY-MULLANE SUGGESTED WHERE THE PROPERTY HAS BEEN ATTACHED. PUBLICATION MAY BE SUFFICIENT TO PUT OWNERS ON ACTUAL NOTICE. 1. SOP/NOP GOOD IN WALKER V. CITY OF HUTCHINSON-THE COURT HELD NOTICE USED IN A STATE CONDEMNATION PROCEEDING DID NOT MEET DUE PROCESS REQUIREMENTS WHEN THE ONLY NOTICE TO THE PROPERTY OWNERS WAS BY PUBLICATION. NOP GOOD IN MENNONITE BOARD OF MISSIONS V. ADAMS-NOTICE BY PUBLICATION AND POSTING DOES NOT MEET MULLANE WHERE A MORTAGAGEE IS IDENTIFIABLE IN PROPERTY RECORDS.

2.

C) POSTING NOTICE ON PROPERTY-IN GREENE V. LINDSEY THE COURT SAID THAT POSTING NOTICE ON REAL PROPERTY MAY BE GOOD IN SOME CASES DEPENDING ON THE FACTS, BUT THE REASONABLENESS OF THE NOTICE PROVIDE MUST BE TESTED WITH REFERENCE TO FEASIBLE ALTERNATIVES.

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D) NOTICE TO CREDITORS-PUBLICATION IS NOT SUFFICIENT WHERE THE CREDITORS INDENTITY WAS REASONABLY ASCERTAINABLE (TULSA V. POPE). E) D IS INSANE-IN COVEY V. TOWN OF SOMERS THE COURT HELD SERVICE BY MAIL WAS NOT GOOD UNDER MULLANE’S TEST WHERE THE D WAS INSANE. F) NOTICE ACTUALLY GIVEN-IN WUCHTER V. PIZZUTTI THE COURT HELD THAT THE STATUTES MUST REQUIRE ACTUAL NOTICE TO THE D AND THAT EVEN IF THE D RECEIVED IT, IT WOULD NOT BE GOOD IN THE ABSENCE OF SUCH A STATUTE. G) SUBSTANTIAL COMPLIANCE WITH STATUTE-MANY COURTS WILL UPHOLD SERVICE AS VALID WHERE D GETS ACTUAL NOTICE EVEN THOUGH THE STATUTE WAS NOT FOLLOWED EXACTLY. D. METHODS OF GIVING NOTICE/SERVICE OF PROCESS-THE SUMMONS AND THE COMPLAINT MUST BE SERVED ON THE D IN ACCORDANCE WITH MULLANE’S REASONABLY CALCULATED TEST. THIS MAY BE DONE IN A NUMBER OF WAYS DEPENDING ON THE STATE’S REQUIREMENTS FOR STATE COURTS OR FEDERAL RULE 4 FOR FEDERAL COURTS. 1. STATE COURTS-LOOK TO THAT PARTICULAR STATE’S STATUTE 3. FEDERAL COURTS-RULE 4 A) WHO CAN SERVE-4(c)(2)(A)-A SUMMONS AND COMPLAINT SHALL, EXCEPT AS PROVIDED IN (B) AND (C), BE SERVED BY ANY PERSON WHO IS NOT A PARTY AND IS NOT LESS THAN 18 YRS. OF AGE. B) HOW MAY P SERVE-4(c)(2)(C)-A SUMMONS AND COMPLAINT MAY BE SERVED UPON THE D OF ANY CLASS REFERRED TO IN (1) OR (3) OF SUBDIVISION (d) (ABODE SERVICE AND CORPORATIONS) OF THIS RULE BY 1) FOLLOWING STATE LAW-4(c)(2)(C)(i)-A FEDERAL COURT MAY SERVE ACCORDING TO THE LAW OF THE STATE IN WHICH THE DISTRICT COURT SITS, OR 2) BY MAIL-4(c)(2)(C)(ii)-THE FEDERAL COURT MAY EFFECT SERVICE BY MAILING A COPY OF THE COMPLAINT AND SUMMONS TO THE PERSON TO BE SERVED. TOGETHER WITH 2 COPIES OF AN ACKNOWLEDGMENT FORM WITHIN 20 DAYS AFTER THE DATE OF MAILING SERVICE OF SUCH SUMMONS AND COMPLAINT SHALL BE MADE UNDER SUBPARAGRAPH (A) OR (B) OF THIS PARAGRAPH IN THE MANNER PRESCRIBED BY SUBDIVISION (d)(1) OR (d)(3). (ABODE SERVICE OR DELIVERY TO CORP. AGENT) ****PROF.’S KEY NOTES***PRIOR TO 1994-IF YOU TRY AND USE 4(c)(2)(C)(ii) AND IT FAILS, YOU CAN NOT USE 4(c)(2)(C)(i) B/C THE LANGUAGE SUGGESTS THAT YOU USE (i) FIRST THEN (ii). THEREFOR IF I USE 4(c)(2)(C)(ii) AND FAIL I MUST THEN TRY4(d)(1), SERVICE ON ABODE, OR 4(d)(3), SERVICE ON CORP. AGENT. MASONV. GENISCO-HELD THAT A DEFECTIVE MAILING UNDER 4(c)(2)(C)(ii) IS NOT VALID EVEN IF D HAD ACTUAL KNOWLEDGE AND THAT IT CAN NOT RETROACTIVELY BE USED TO SATISFY STATE LAW PURSUANT TO 4(c)(2)(C)(i). ****UPDATE AS OF 1/1/94****THE PROPOSED NEW DRAFTS OF 4(e) AND 4(d) (WHICH TOOK EFFECT ON DECEMBER 1, 1993) SUGGEST USING 4(c)(2)(C)(ii) DOES NOT FORECLOSE USING 4(c)(2)(C)(i). IN ADDITION TO THE PRIVIOUS METHODS OF SERVICE, FEDERAL COURTS MAY EFFECT SERVICE BY DELIVERING THE COMPLAINT AND SUMMONS TO:

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3. PERSONAL DELIVERY OR ABODE SERVICE-4(d)(1)-AN INDIVIDUAL, OTHER THAN AN INFANT OR AN INCOMPETENT PERSON, BY DELIVERING A COPY OF THE SUMMONS AND COMPLAINT TO THE INDIVIDUALLY PERSONALLY (PERSONAL SERVICE) OR BY LEAVING COPIES AT THE INDIVIDUAL’S DWELLING HOUSE OR USUAL PLACE OF ABODE (ABODE SERVICE) WITH SOME PERSON OF SUITABLE AGE AND DISCRETION THEN RESIDING THEREIN OR BY DELIVERING A COPY TO AN AGENT AUTHORIZED TO ACCEPT SERVICE (DELIVERY TO AUTHORIZED AGENT). EX. ROVINSKI V. ROWE-SERVICE ON ABODE WAS PROPER WHERE THE D WAS SERVED AT HIS LAST KNOWN RESIDENCE HE HAD GIVEN IN HIS AFFIDAVIT. EX. NATIONAL EQUIPT. V. SZUKHENT-INTERPRTING 4(d)1 THE COURT HELD THAT PARTIES TO A K MAY APPOINT AN AGENT TO RECEIVE SOP WHERE THE AGENT IS NOT PERSONALLY KNOWN TO THE PARTY AND IS NOT EXPRESSLY REQUIRED TO TRANSMIT NOTICE TO THE PARTY BUT DOES PROMPTLY ACCEPT AND TRANSMIT NOTICE. LIMITATION-THE APPOINTMENT MAY NOT BE GOOD WHERE THE AGENT IS THE P. 4. UPON INFANT OR INCOMPETENT BY THE LAWS OF THE STATE WHERE SERVICE IS MADE. 4(d)(2). 5. CORPORATIONS/PARTNERSHIPS-BY DELIVERING A COPY TO AN OFFICER OR MANAGING OR GENERAL AGENT OR TO ANY OTHER AGENT AUTHORIZED TO RECEIVE PROCESS AND IF THE AGENT AUTHORING STATUTE REQUIRES BY ALSO MAILING A COPY TO THE D. 4(d)(4). C) TERRITORIAL LIMITS OF EFFECTIVE SERVICE 4(F)-SERVICE MAY BE MADE ANYWHERE WITHIN THE TERRITORIAL LIMITS OF THE STATE WHERE THE DISTRICT COURT SITS AND WHEN AUTHORIZED BY A STATUTE OF THE U.S. (NATIONWIDE SOP) OR BY THESE RULE (4(F)) BEYOND THE TERRITORIAL LIMITS OF THE STATE. (EX. INTERPLEADER). BULGE PROVISION-PEOPLE BROUGHT IN UNDER RULE 14 OR RULE 19 MAY BE SERVED AS DESCRIBED IN 4(D) AT PLACES OUTSIDE OF THE STATE THAT ARE WITHIN 100 MILES OF THE COURTHOUSE. (EX. 1. IMPLEADING AND 2. NECESSARY & INDISPENSABLE PARTIES). RULES-RULE 4(K) CONTAINS THE PROVISIONS MENTIONED ABOVE AND PROVISION 4(K)(2) WHICH SAYS: IF THE EXERCISE OF JURISDICTION IS CONSISTENT WITH THE U.S. CONSTITUTION AND LAWS OF THE U.S. (5TH AMEND. ANALYSIS), SERVING A SUMMONS OR FILING A WAIVER OF SERVICE IS ALSO EFFECTIVE, WITH RESPECT TO CLAIMS ARISING UNDER FEDERAL LAW (1331 CLAIMS), TO ESTABLISH PJ OVER THE PERSON OF ANY D WHO IS NOT SUBJECT TO THE JURISDICTION OF THE COURTS OF GENERAL JURISDICTION OF ANY STATE. (D MAY WAIVE SERVICE/NOTICE). SUMMARY OF REQUIREMENTS (1) MUST BE A 1331 CLAIM (2) THE D IS NOT SUBJECT TO PJ IN ANY STATE

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(3) TO SEE IF JURISDICTION WOULD BE CONSITENT WITH THE CONSTITUTION, WE MUST SEE IF THE AGGREGATE CONTACTS WITH THE U.S. AS A WHOLE MEET THE 5TH AMEND. DUE PROCESS ANALYSIS. (4) MAJORITY OF COURTS WOULD THEN REQUIRE A FAIRNESS ANALYSIS (JIM WALTERS). MINORITY – NO FAIRNESS ANALYSIS NEEDED. D) CONCLUSIVENESS OF RETURN OF SERVICE-THE COURT HAS STATED THAT IN MOST CASES THE PROCESS SERVERS RETURN OF SEVICE VERIFICATION IS CONCLUSIVE EVEN IF IT WAS SEWER SERVICE B/C WE WANT TO PROTECT THE PARTIES WHO RELIED ON SUCH SERVICE. BUT SOME COURTS SAY IT IS ONLY EVIDENCE. E) WHEN IS A SUIT COMMENCED FOR STATUTE OF LIMITATIONS? 1) STATE COURTS-SIMPLY BY FILING THE COMPLAINT WITH THE COURT 2) FEDERAL COURTS-IF THE UNDERLYING CAUSE IS FEDERAL IT IS COMMENCED WHEN THE COMPLAINT IS FILED IN FEDERAL COURT. IF IT IS STATE CAUSE BASE, STATE LAW GOVERNS. E. IMMUNITY FROM SEVICE OF PROCESS-A COURT WILL SOMETIMES IMMUNIZE A PARTY FROM SOP EVEN THOUGH THE CONSTITUTIONAL AND STATUTORY REQUIREMENTS OF PJ AND SOP HAVE BEEN MET. A) RATIONALE-TYPICALLY IMMUNITY IS GRANTED TO PROMOTE THE ADMINISTRATION OF JUSTICE B) IMMUNITY FOR CERTAIN PEOPLE-WITNESSES, PARTIES AND ATTORNEYS WHO COME TO A STATE TO PARTICIPATE IN A LAWSUIT OFTEN ARE GRANTED IMMUNITY FROM SOP IN OTHER SUITS. EXCEPTION-IF A PERSON IS ARRESTED WHILE HE IS VOLUNTARILY WITHIN THE STATE HE IS SUBJECT TO SOP WHILE INCARCERATED. SEE SIVNKTY V. DUFFIELD. C) ETIQUETTE OF SERVICE-A PARTY WHO IS FRAUDULENTLY LURED INTO A FORUM WHERE HE IS SERVED WITH PROCESS WILL NOT BE HELD TO THAT SERVICE. IT IS VOID. WYMAN V. NEWHOUSE (1937)-D WAS LURED TO FLORIDA WHERE HE HAD NEVER BEEN BEFORE AND HE WAS SERVED. THE SERVICE WAS HELD VOID B/C HE WAS FRAUDULENTLY INDUCED TO COME THERE (ALSO B/C THERE WERE NO CONTACTS, PROF. NOTES THERE WOULD BE NO PJ). TICKLE V. BARTON (1956)-HERE THERE WAS PJ OVER D, BUT THE SERVICE (PROCEDURAL DUE PROCESS) WAS VOID B/C THE D HAD BEEN FRAUDULENTLY LURED INTO THE STATE. III. SUBJECT MATTER JURISDICTION A. INTRO-IN ADDITION TO THE REQUIREMENTS THAT A COURT HAVE PJ OVER THE D, IT MUST ALSO BE SHOWN THAT THE COURT HAS SUBJECT MATTER JURISDICTION (SMJ) (I.E. THE POWER TO HEAR THE SUBJECT MATTER OF THE CASE). B. STATE COURT SMJ-THE PRESUMPTION IS THAT STATE COURTS HAVE VERY BROAD SMJ AND THEREFORE CAN HEAR ALMOST ANY TYPE OF CASE. 1. TEST FOR STATE COURT SMJ-ASSUME THERE IS SMJ UNLESS A STATUTE TAKES A CASE OUT OF STATE COURT SMJ. (EX. EXCLUSIVE FEDERAL COURT JURISDICTION CASES.)

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2. FULL FAITH AND CREDIT-A STATE COURT IS REQUIRED TO HEAR CASES THAT MAY HAVE ARISEN IN OTHER STATES. 3. SUPREMACY CLAUSE-STATE COURTS ARE OBLIGATED TO ACCEPT CASES BASED ON FEDERAL LAW AND APPLY THE FEDERAL LAW AS INTENDED EXCEPT IN CASES WHERE THE FEDERAL COURTS HAVE EXCLUSIVE JURISDICTION. C. FEDERAL COURT SMJ- DIVERSITY OF CITIZENSHIP. 1. INTRO-FEDERAL COURTS ARE OF LIMTED JURISDICTION THEREFORE THEY WILL ONLY HEAR CASES THAT THE CONSTITUTION AND CONGRESS HAVE SPECIFICALLY ALLOWED THEM TO HEAR. DIVERSITY CASES ARE ONE OF THESE CLASSES. IN MOST CASES FEDERAL COURTS HAVE CONCURRENT JURISDICTION WITH STATE COURTS. IN SOME CASES, CONGRESS HAS GIVEN FEDERAL COURTS EXCLUSIVE JURISDICTION. RATIONALE FOR DIVERSITY OF CITIZENSHIP JURISDICTION (1) PROTECTION AGAINST STATE COURT PREJUDICE AGAINST NONRESIDENTS (2) PROVIDES SECURITY TO INVESTORS (3) FEDERAL COURTS ARE SUPERIOR TO STATE COURTS B/C OF JUDGES EXPERIENCE, ETC. 2. TWO HURDLE TEST FOR DETERMINING DOC JURISDICTION FIRST-ARTICLE III OF THE CONSTITUTION-EXTENDS THE JUDICIAL POWER OF THE U.S. TO CONTROVERSIES B/T CITIZENS OF DIFFERENT STATES*** AND B/T A STATE OR CITIZENS THEREOF, AND FOREIGN STATES, CITIZENS OR SUBJECTS. SECOND-CONGRESSIONAL LIMITATIONS BY STATUTE-§1332 IS THE STATUTORY LIMITATION ON FEDERAL COURTS SMJ. IT REQUIRES THAT THE AMOUNT IN CONTROVERSEY BE GREATER THAN $75,000, EXCLUSIVE OF INTERESTS AND COSTS. RATIONALE FOR CONGRESSIONAL LIMITATION ON ARTICLE III-B/C ARTICLE III ONLY CREATED THE SUPREME COURT, IT GAVE THE POWER TO CREATE LOWER COURTS TO CONGRESS. THEREFORE CONGRESS HAS THE POWER TO CURTAIL JURISDICTION. 3. REQUIREMENT OF COMPLETE DIVERSITY-THE RULE OF STRAWBRIDGE V. CURTIS-ALTHOUGH NOT REQUIRED BY ARTICLE III, THE SC HAS REQUIRED THAT NO P IS A CITIZEN OF THE SAME STATE AS ANY D, NO MATTER HOW MANY PARTIES ARE IN THE LITIGATION. IN STATE FARM V. TASHIRE THE COURT STATED THAT THE COMPLETE DIVERSITY REQUIREMENT WAS NOT REQUIRED BY ARTICLE III, BUT WAS A CONGRESSIONAL INTERPRETATION. THIS REQUIREMENT WILL NEVER BE ABANDONED B/C IT WOULD FLOOD FEDERAL COURTS. 4. DETERMINING CITIZENSHIP FOR DOC-IN ORDER TO DETERMINE WHERE A PERSON IS A CITIZEN FOR DOC, COURTS FOCUS ON HIS DOMICILE. A) WHEN TO DETERMINE-LOOK ONLY AT DOMICILE AT THE TIME THE COMPLAINT IS FILED. B) TEST FOR DOMICILE-LOOK TO WHERE THAT PERSON HAS A (1) PERMANENT HOME AND (2) INTENT TO RETURN. (INTENT TO REMAIN INTO THE INDEFINITE FUTURE.) EX. MAS V. PERRY-COURT FOCUSING ON THE P’S DOMICILE AT THE TIME THE COMPLAINT WAS FILED FOUND DOC PROPER. 5. ALIENS-

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A) ALIENAGE JURISDICTION-§1332 PROVIDES THAT AN ALIEN ADMITTED TO THE U.S. FOR PERMANENT RESIDENCE SHALL BE DEEMED A CITIZEN OF THE STATE IN WHICH SUCH ALIEN IS DOMICILED. B) STATELESS ALIENS-SINCE §1332 ADDRESSES CITIZENS AND SUBJECTS OF A FOREIGN STATE, A PERSON WHO IS STATELESS CONNOT BE BROUGHT INTO FEDERAL COURT UNDER DOC. IMPORTANT RESULT-P, A CITIZEN OF U.S., ABANDONS HER HOME IN OREGON AND MOVES TO FRANCE. SHE WOULD NOT BE ABLE TO GET INTO FEDERAL COURT UNER §1332 B/C SHE IS NOT A CITIZEN OF A STATE, NOR IS SHE A CITIZEN OR SUBJECT OF A FOREIGN STATE. VIOLATION OF ARTICLE III-PROF. RAISED HYPO WHERE UNDER §1332 IT WOULD BE PROPER FOR A PERMANENT RESIDENT ALIEN LIVING IN CA (WHO WOULD BY §1332 BE DEEMED A CITIZEN OF CA) TO SUE A CITIZEN OF SPAIN IN FED CT BASED ON DOC. WHILE THIS IF PROPER UNDER §1332, IT WOULD VIOLATE ARTICLE III B/C ARTICLE III DOES NOT HAVE A SPECIAL RECOGNITION OF PERMANENT RESIDENT ALIENS. 6. CORPORATIONS-FOR DIVERSITY PURPOSES, CORPORATIONS ARE CITIZENS OF STATES WHERE THEY ARE INCORPORATED AND WHERE THEY HAVE THEIR PRINCIPAL PLACE OF BUSINESS. §1332(C)(1) HOLDS A CORPORATION SHALL BE DEEMED A CITIZEN OF A) INCORPORATION-ANY STATE BY WHICH IT HAS BEEN INCORPORATED MINORITY VIEW-―ANY STATE‖ MEANS THAT THERE CAN BE MORE THAN ONE STATE OF INCORPORATION, ALL OF WHICH WILL BE CONSIDERED FOR DOC. *MAJORITY VIEW* - THERE CAN ONLY BE ONE STATE OF INCORPORATION. AND B) PRINCIPAL PLACE OF BUSINESS-IT IS GENERALLY HELD THAT A CORP CAN HAVE ONLY ONE PPOB UNDER §1332. TO DETERMINE WHERE THIS IS, COURTS HAVE USED 3 TESTS: 1) NERVE CENTER TEST: UNDER THIS TEST THE PPOB WOULD BE WHERE THE CORP HAD ITS DECISION MAKING AUTHORITY AND OVERALL CONTROL. I.E. CORP HEADQUARTERS 2) DAY TO DAY ACTIVITY TEST: PPOB WOULD BE WHERE THE CORP DID MOST OF ITS PRODUCTION OR SERVICE. 3) TOTAL ACTIVITY TEST: PPOB WOULD BE WHERE CONSIDERING ALL ACTIVITIES A CORP DOES MOST OF ITS BUSINESS. 7. UNINCORPORATED ASSOCIATION-TO DETERMINE CITIZENSHIP FOR DOC PURPOSES WE MUST CONSIDER THE CITIZENSHIP OF ALL OF ITS MEMBERS. EX. LIMITED PARTNERSHIP. INFANTS, INCOMPETENTS, OR DECEDENTS-§1332(c)(2)-THE REPRESENTATIVE OF THESE PARTIES SHALL BE DEEMED A CITIZEN OF THE SAME STATE AS THE PARTY HE REPRESENTS. INVALID ATTEMPTS TO CREATE DOC-KRAMER V. CARRIBEAN MILLS AND §1359 HOLD THAT A DISTRICT COURT SHALL NOT HAVE JURISDICTION OF A CIVIL ACTION IN WHICH ANY PARTY, BY ASSIGNMENT OR OTHERWISE, HAS IMPROPERLY OR COLLUSIVELY MADE OR JOINED TO INVOKE THE JURISDICTION OF SUCH COURT.

8.

9.

10. ONLY CONSIDER REAL PARTIES IN INTEREST-SOME COURTS LOOK ONLY TO THE REAL PARTIES IN INTEREST IN CONSIDERING DOC. ROSE V. GIAMATTI.

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11. EXCEPTIONS-WHERE THE FEDERAL COURTS WILL NOT ACT EVEN THOUGH THERE IS DIVERSITY. (THERE ARE LIMITED EXCEPTIONS.) A) PROBATE MATTERS-A FED CT MAY NOT UNDERTAKE THE ADMINISTRATION OF AN ESTATE, BU IF DOC OR SOME OTHER BASIS OF JURISDICTION IS PRESENT, IT CAN ENTERTAIN ACTIONS AGAINST ADMISTRATORS, EXECUTORS, AND OTHER CLAIMANTS AGAINST AN ESTATE SO LONG AS THE FED CT DOES NOT INTERFERE WITH THE PROBATE PROCEEDINGS OR PROPERTY IN ANY WAY BY DISTRIBUTION, ETC. B) DOMESITIC RELATIONS-THE COURT IN ANKENBRANDT V. RICHARDS (1992) HELD THAT THE FED CT WILL NOT CONSIDER CASES INVOLVING THE ISSUANCE OF A DIVORCE, ALIMONY, OR A CHILD CUSTODTY DECREEE. IN ANKENBRANDT THE COURT UPHELD FEDERAL DOC JURISDICTION OVER A TORT ACTION BROUGHT BY WIFE AGAISNT HUSBAND. D. AMOUNT IN CONTROVERSEY-§1332(a) REQUIRES THAT THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF $75,000, EXCLUSIVE OF INTERESTS AND COSTS. THIS IS NOT REQUIRED BY ARTICLE III BUT MUST BE MET TO PASS THE SECOND HURDLE. 1. RULE FOR DISMISSAL-IT MUST APPEAR TO A LEGAL CERTAINTY THAT THE CLAIM IS REALLY FOR LESS THAN THE JURISDICTIONAL AMOUNT TO JUSTIFY A DISMISSAL. 2. REQUIREMENTS FOR P-HE MUST MAKE A GOOD FAITH CLAIM THAT THE DAMAGES ARE GRATER THAN $75,000. HE MAY CONSIDER PAST AND POTENTIAL LOSSES. 3. AGGREGATION OF CLAIMS A) SINGLE Ps CAN AGGREGATE CLAIMES AGAINST SINGLE Ds (RULE 18). B) TWO Ps MAY NOT AGGREGATE IF THEY HAVE SEPARATE AND DISTINCT CLAIMS C) TWO Ps MAY AGGRGATE IF THEIR CLAIMS ARE FROM A SINGLE INDIVISIBLE HARM. I.E. THEY ARE JOINT OWNERS IN PROPERTY THAT IS DAMAGED. 4. DETERMINING VALUE IN INJUNTIVE RELIEF CASES    5. 1ST VIEW-LOOK TO THE VALUE TO THE P 2ND VIEW-VIEW THE VALUE FROM THE PARTY SEEKING TO INVOKE FEDERAL JURISDICTION 3RD VIEW-LOOK TO EFFECTS ON EITHER PARTY TO SEE IF IT WOULD EXCEED $75,000.

MULTIPLE Ps, ONE OF WHOM MEETS AMT IN CONTROVERSY-THE PATTERSON CASE SUGGESTS THAT IF WE HAVE 1 P WHO CAN MEET THE JURISDICTIONAL AMOUNT AND TWO OTHERS WHO CANNOT, WE MAY STILL BRING ALL THE CLAIMS IN UNDER §1367(B) B/C THAT IS ONLY A LIMITATION WHERE YOU ARE TRYING TO JOIN A PARTY AFTER THE SUIT IS COMMENCED. SINCE ALL Ps HERE CAME IN TOGETHER, SMJ IS PROPER WITH §1367 BEING USED.

A) ALTERNATE VIEW-GRIFFIN CASE REJECTS PATTERSON AND SAYS §1367(B) WOULD NOT ALLOW SMJ AND THE AMT IN CONTROVERSY TO BE AVOIDED HERE. E. FEDERAL COURT SMJ-FEDERAL QUESTIONS 1. INTRO-FEDERAL COURTS HAVE THE POWER TO HEAR CERTAIN CASES, OUTSIDE OF DIVERSITY OF CITIZENSHIP CASES, WHERE THERE IS SOME KIND OF FEDERAL QUESTION AT STAKE. THE POWER TO HEAR THESE CASES IS LIMITED BY 2 HURDLES.

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

FIRST-ARTICLE III-THE JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE U.S., AND TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY***. SECOND-STATUTORY AUTHORITY §1331-THE DISTRICT COURTS HAVE ORIGINAL JUISDICTION OF ALL CIVIL ACTIONS ARISING UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE U.S. RATIONALE FOR FEDERAL QUESTION JURISDICTION (1) UNIFORMITY IN FEDERAL LAW APPLICATION (2) EXPERTISE OF FED CTS (3) PREVENTS PREJUDICE IN STATE COURTS.



*2. ARISING UNDER-THE KEY TO UNDERSTANDING FED QUESTIONS IS INTERPRETING THE ARISING UNDER LANGUAGE BOTH IN ARTICLE III AND §1331. ARTICLE III HAS A MUCH BROADER DEFINITION OF THIS LANGUAGE WHILE §1331 RESTRICTS THE MEANING. 3. STEP-BY-STEP APPROACH IN CONSIDERING ANY FED QUESTION (1) LOOK TO SEE IF THERE IS STATUTORY AUTHORITY AND (2) THEN SEE IF THAT IS CONSTITUTIONAL UNDER ARTICLE III. (B/C ARTICLE III IS SO BROAD, YOU WILL ALMOST NEVER FIND THAT THE STATUTORY AUTHORITY IS UNCONSTITUTIONAL UNDER ARTICLE III B/C STATUTORY AUTHORITY IS GENERALLY NARROWER.) 4. THE CONSTITUTIONAL HURDLE OF ARTICLE III IN OSBORN V. BANK OF THE U.S. (1824)-THE COURT BY JUSTICE MARSHALL LAID DOWN THE VERY FLEXIBLE TEST FOR WHEN A PARTICULAR C/A RAISED A FED QUESTION UNDER ARTICLE III OF THE CONSTITUTION. ***FEDERAL INGREDIENT TEST*** AS LONG AS THERE IS A CONSTITUTIONAL TEST INVOLVED IN THE C/A, THERE IS AUTHORITY UNDER ARTICLE III. EX. IN OSBORN THE FED INGREDIENT WAS THE POSSIBILITY THAT THE BANK’S CONSTITUTIONALITY MIGHT BE CHALLENGED IN THE FUTURE. THE STATUTORY AUTHORITY WAS FOUND IN THE STATUTE CHARTERING THE BANK WHICH AUTHORIZED IT TO SUE AND BE SUED. EX. A OWNS A COPYRIGHT AND SELLS IT TO B AND C. B SUES. THIS WOULD MEET THE FED INGREDIENT TEST B/C OF THE MERE POSSIBILITY THAT THE CAUSE MAY TURN ON THE COPYRIGHT’S CONSTITUTIONAL PROTECTION. 5. THE STATUTORY HURDLE OF §1331-TO DETERMINE IF THERE IS STATUTORY AUTHORITY UNDER §1331 FOR A FED QUESTION, THE COURT HAS, UNLIKE THE ARTICLE III TEST, LONG GIVEN A NARROW MEANING TO THE ―ARISING UNDER‖ LANGUAGE IN §1331. THERE ARE TWO TESTS, EITHER OF WHICH MAY BE USED IN DETERMINING STATUTORY AUTHORIZATION. B) HOLMES ―CREATION TEST‖-A SUIT ARISED UNDER THE LAW THAT CREATES THE C/A. (AMERICAN WELL WORKS). RULE OF INCLUSTION-HOLMES’ TEST IS BEST USED TO DETERMINE WHAT SHOULD BE INCLUDED, INSTEAD OF EXCLUDED. (MOST CASES THAT COME WITHIN FED QUESTION JURIS FALL UNDER HOLMES’ TEST.) EX. THIS CREATION TEST EXPLAINS WHY THERE IS STATUTORY AUTHORIZATION FOR FED CT JURISDICTION IN COPYRIGHT AND PATENT INFRINGEMENT CASES, BOTH OF WHICH WERE CAUSES OF ACTION CREATED BY FED LAW.

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EX. TB HARMS V. ELISCU-THIS COURT DENIED FED QUESTION JURISDICTION BASED ON THE CREATION TEST B/C THE C/A WAS BASED ON K DISPUTES WHICH IS NOT A C/A CREATED BY FED COURTS. C) SMITH V. KANSAS CITY TEST-THERE IS STATUTORY AUTHORIZATION UNDER §1331 WHERE EVEN THOUGH THE CLAIM IS CREATED BY STATE LAW, A CASE MAY ―ARISE UNDER‖ A LAW OF THE U.S. IF THE COMPLAINT DISCLOSES A NEED FOR DETERMINING THE MEANING OR APPLICATION OF SUCH A LAW. (―CONSTRUCTION‖ OF A FED LAW.) RULE AS STATED IN SMITH-WHERE IT APPEARS FROM THE BILL OR STATEMENT OF THE P THAT THE RIGHT TO RELIEF DEPENDS UPON THE CONSTRUCTION OR APPLICATION OF THE CONSTITUTION OR LAWS OF THE U.S., AND THAT SUCH FED CLAIM IS NOT MERELY COLORABLE, AND RESTS UPON A REASONABLE FOUNDATION, THE DISTRICT COURT HAS JURISDICTION. *3 REQUIREMENTS TO MEET IN SMITH TEST* 1) ON THE FACE OF THE COMPLAINT 2) CASE TURNS ON FED LAW 3) CLAIM IS NOT COLORABLE IN SMITH THE CT HELD THE STATE CREATED ACTION NEVER THE LESS ―AROSE UNDER‖ FED LAW. SPECIAL CASE-―THE NATURE OF THE FED INTEREST‖-MERREL DOW V. THOMPSON-IN MERREL DOW THE COURT SUGGEST THAT SMITH’S TEST REALLY IS DEPENDENT ON THE NATURE OF THE FED INTEREST AT STAKE. UNDER THAT THEORY THE COURT HELD THAT THERE WAS NO STATUTORY AUTHORIZATION B/C THE C/A DID NOT FALL UNDER HOLMES’ CREATION TEST NOR WAS IT COVERED BY THE SMITH TEST B/C THE FED INTEREST WAS SMALL B/C THE FED STANDARD IN QUESTION CREATED NO PRIVATE C/A FOR THE STATE ACTION TO RELY UPON. *PROF. THINKS THIS CASE WAS REALLY ABOUT CONTROLLING THE DOCKET. 6. THE WELL PLED COMPLAINT RULE-IN ORDER TO BRING A CASE IN BEFORE THE FED CTS UNDER FED QUESTION JURISDICTION, THE P MUST SPECIFICALLY PLEAD IN HIS COMPLAINT THE C/A INVOLVING IT. HE CANNOT RAISE A FED QUESTION BY CLAIMING THE D WILL RAISE A FED QUESTION IN HIS DEFENSE. LOUISVILLE V. MOTTLEY. RATIONALE FOR MOTTLEY RULE-(1) KEEPS NON-FED CASES OUT OF FED CTS (2) CONTROLS THE HEAVY CASE LOAD OF THE FED CTS. NOTE-ARTICLE III WOULD ALLOW A FED QUESTION UNDER THE FED INGREDIENT TEST WHERE THE FED QUESTION WAS CLAIMED ON THE FACT THAT THE D MIGHT RAISE IT IN HIS DEFENSE. THIS IS AN EXAMPLE WHERE THE STATUTORY AUTHORIZATION WAS MORE LIMITING BY REQUIRING THE WELL PLED COMPLAINT. EXCEPTION TO RULE IN BRIGHT V. BECHTEL-THE 9TH CIRC ALLOWED AN EXCEPTION TO THE WELL PLEADED COMPLAINT RULE WHERE THE P HAD CONCEALED THE FED NATURE OF HIS CLAIM AND D REMOVED IT TO FED CT BASED ON THAT. (THIS CASE MAY BE LIMITED TO FED EMPLOYMENT LAW CASES.) 7. SPECIAL RULES IN DECLARATORY JUDGMENTS A) DEFINITION-DECLARATORY JUDGMENTS ARE ACTIONS DESIGNED TO ANTICIPATE PREBREACH CASES OR TO TEST STATUTES.

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B) DETERMINING FED QUESTION STATUS-TO DETERMINE IF THERE IS FED QUESTION JURISDICTION OVER A DECLARATORY ACTION COURTS HAVE SPLIT. MINORITY VIEW-FRANCHISE TAX BOARD SUGGESTS THAT IT IS ONLY A FED QUESTION IF THE P COULD HAVE BROUGHT A COERCIVE SUIT. I.E. THE P’S COMPLAINT WOULD MEET (1) MOTTLEY’S (2) THE FED INGREDIENT TEST (3) CREATION TEST (THIS CASE IS DISTINGUISHABLE B/C IT DEALS WITH THE STATE AS A P). MAJORITY VIEW-IN DECLARATORY JUDGMENTS, FED QUESTION JURISDICTION IS PROPER IF EITHER PARTY COULD BRING A COERCIVE ACTION. C) THE MIN REQUIREMENT-SKELLY OIL HELD THAT EVEN IN DECLARATORY JUDGMENTS WE MUST MEET THE REQUIREMENTS OF (1) MOTTLEY-WELL PLEADED COMPLAINT (2) FED INGREDIENT TEST (3) CREATION TEST OR SMITH TEST, BUT IT DID NOT SAY WHO HAD TO BRING THE COERCIVE ACTION, IT COULD BE P OR D. F. SUPPLEMENTAL JURISDICTION IN FED CTS 1. INTRO-THERE ARE CERTAIN CASES WHICH THE FED CTS WILL DECIDE EVEN THOUGH THEY WOULD NOT, IF PRESENTED INDEPENDENTLY, PROVIDE A BASIS FOR FED SMJ. THIS IS CALLED SUPPLEMENTAL JURISDICTION AND IS CURRENTLY CONTROLLED BY (1ST HURDLE-CONSTITUTIONAL) ARTICLE III AND (2ND HURDLE-STATUTORY) §1367. RATIONALE FOR SUPPLEMENTAL JURISDICTION-(1) JUDICIAL ECONOMY (2) CONVENIENCE (3) FAIRNESS TO LITIGANTS. 2. 1ST HURDLE-ARTICLE III-GIVES THE FED CTS SMJ TO ALL CASES AND CONTROVERSIES WHICH IS VERY BROAD. A) GIBBS; LIMITATION- GIBBS HELD THAT PENDENT JURISDICTION IS PROPER UNDER ARTICLE III WHERE THE STATE AND FEDERAL CLAIMS DERIVE FROM A COMMON NUCLEUS OF OPERATIVE FACTS SUCH THAT THE ENTIRE ACTION SHOULD BE CONSIDERED BUT ON CONSTITUTIONAL CASE. THIS RULE IS ALSO APPLIED TO PENDENT PARTY JURISDICTION. B) DOCTRINE OF DISCRETION-GIBBS NOTED THAT THE DOCTRINE OF PENDENT JURISDICTION WAS AT THE DISCRETION OF THE FED CT. C) FED CLAIM OF SUBSTANCE-THE COURT NOTED THAT THE FED CLAIM WILL NOT SERVE AS AN ADEQUATE BASIS IF IT IS OBVIOUSLY WITHOUT MERIT OR ITS UNSOUNDNESS CLEARLY RESULTS FROM PREVIOUS DECISIONS OF THE COURT. 3. HISTORICAL BACKGROUND-PRIOR TO THE ADOPTION OF §1367, CTS RELIED ON A SERIES OF CASES THAT DEALT WITH WHAT WAS THEN CALLED PENDENT JURISDICTION AND ANCILLARY JURISDICTION. A) PENDENT JURISDICTION-WHERE THE P, IN HER COMPLAINT, APPENDS A CLAIM LACKING AN INDEPENDENT BASIS FOR FED SMJ TO A CLAIM THAT DOES NOT MEET SMJ. B) ANCILLARY JURISDICTION-WHEN P OR D INJECTS A CLAIM LACKING AN INDEPENDENT BASIS FOR JURISDICTION BY WAY OF COUNTERCLAIM, CROSS CLAIM, OR THIRD PARTY CLAIM. NOW THESE TWO THEORIES ARE COMBINED UNDER SUPPLEMENTAL JURISDICTION IN §1367.

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4.

PRE §1367 STATUTORY HURDLE-THE FOLLOWING CASES CONSIDERED BY THE SC DEALT WITH THE STATUTORY LIMITATIONS ON SUPPLEMENTAL JURISDICTION. ALDINGERV. HOWARD (1976)-THE P SUED 2 Ds, ONE ON A FED QUESTION AND THE OTHERE ON A STATE CLAIM THAT HAD NO INDEPENDENT BASIS FOR FED CT SMJ. THE CT RECOGNIZED THAT THERE WERE 2 HURDLES. FIRST THE CONSTITUTIONAL TEST OF GIBBS WHICH WAS MET, AND SECOND THE STATUTORY AUTHORIZATION WHICH IN THIS CASE THE CT FOUND WAS LACKING. IT REFUSED TO ALLOW THE STATE CLAIM TO BE BROUGHT INTO FED CT WITH FED QUESTION CLAIM B/C IT LOOKED TO THE CASES THAT CONGRESS HAD SPECIFICALLY DENIED SJM TO AND IN THIS CASE THEY SAID CONGRESS HAD SPECIFICALLY DENIED STATUTORY JURISDICTION OVER THE CLAIM. BUT THEY NOTED THAT IN SOME CASES THERE MAY BE STATUTORY AUTHORIZATION AND THEREFORE PENDENT PARTY JURISDICTION WOULD BE PROPER. OWEN V. KROEGER (1978)-P SUED D1 IN FED CT ON DOC. D1 IMPLEADED D2 AND THEN P AMENDED HER COMPLAINT TO INCLUDE D2 WHO WAS NOT DIVERSE FROM P. THE CT REFUSED TO ALLOW SMJ OVER D2 B/C THE P AND D WERE NOT DIVERSE AS REQUIRED BY THE FED STATUTE §1332 AND THERE WAS NO INDIVIDUAL BASIS FOR FED CT JURISDICTION. NOTE HOWEVER THAT THE CONSTITUTIONAL TEST OF GIBBS WAS MET. I.E. COMMON NUCLEUS OF OPERATIVE FACTS. FINLEY V. UNITED STATES (1989)-SAID THAT FOR PENDANT PARTY SMJ TO BE PROPER (1) THE CONSTITUTION MUST ALLOW IT AND (2) STATUTE MUST SPECIFICALLY ALLOW IT. THE CT RECOGNIZED THAT IN THIS CASE THE CONSTITUTIONAL TEST WAS MET BY GIBBS FOR PENDANT PARTY CLAIMS BUT THAT SINCE THE FED STATUTE DID NOT SPECIFICALLY AUTHORIZE PENDANT PARTY JURISDICTION, IT WOULD NOT BE STATUTORILY ABLE TO DO SO IN THIS CASE. THIS VIEW OF CONGRESSIONAL INTENT WAS A NARROWER AND SHARP CONTRAST FROM ALDINGER. B/C IT REQUIRED SPECIFIC AUTHORIZATION IN THE STATUTE ALMOST NO SUPPLEMENTAL CLAIMS WOULD SURVIVE FINLEY.

5.

MODERN STATUTORY HURDLE OF §1367 (AFTER 1990)-THIS SECTION PROVIDED THE STATUTORY AUTHORITY NEEDED TO PASS THE SECOND HURDLE AND WHICH WAS IN DEBATE IN PRIOR CASES. WHAT §1367 DID-(1) GAVE STATUTORY BASIS FOR GIBBS (2) OVERRULED FINLEY (3) CODIFIED OWEN.* (1) IT RESTATES ARTICLE III/GIBBS TEST WHEN IT SAID IN §1367(a) ―EXCEPT AS PROVIDED IN (b) OR (c) OR AS EXPRESSLY PROVIDED OTHERWISE BY FED STATUTE (LIKE ONE GRANTING EXCLUSIVE JURISDICTION), IN ANY CIVIL ACTION OF WHICH THE CTS HAVE ORIGINAL JURISDICTION, THE DIST CT SHALL HAVE SUPPLEMENTAL JURIS OVER ALL OTHER CLAIMS THAT ARE SO RELATED TO CLAIMS IN THE ACTION W/I SUCH ORIGINAL JURIS THAT THEY FORM PART OF THE SAME CASE OR CONTROVERSY UNDER ARTICLE III.‖ (THIS SIMPLY GIVES THE STATUTORY AUTHORITY TO GO TO THE EXTENT OF ARTICLE III AND GIBBS.) (2) IT REJECTS FINLEY IN §1367(a) WHEN IT SAYS ―SUCH SUPPLEMENTAL JURISDICTION SHALL INCLUDE CLAIMS THAT INVOLVE THE JOINDER OR INTERVENTION OF ADDITIONAL PARTIES.‖ (STATUTORY AUTHORIZATION FOR PENDANT PARTY JURISDICTION.) (3) IT CODIFIES OWEN V. KROEGER WHEN IT SAYS IN §1367(b) ―IN ANY CIVIL ACTION FOUNDED SOLELY ON §1332 (DIVERSITY OF CITIZENSHIP) OF THIS TITLE, THE DIST CT SHALL NOT HAVE SUPP JURIS UNDER SUBSECTION (a) OVER CLAIMS BY Ps AGAINST PERSONS MADE PARTIES UNDER RULE 14, 19, 20, 24 OF THE FRCP: OR OVER CLAIMS BY PERSONS PROPOSED TO BE JOINED AS Ps UNDER RULE 24, WHEN EXERCISING SUPP JURIS OVER SUCH CLAIMS WOULD BE INCONSITENT W/ THE JURISDICTIONAL REQUIREMENTS OF §1332.

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2 VIEWS ON THE MEANING OF §1367(b) 1ST VIEW-PATTERSON V. BRIDGESTONE-INTERPRETED HELD THAT §1367 IS AN EXCLUSION ONLY IF THE Ds ARE ADDED AFTER THE ACTION IS FILED 2ND VIEW-SOME CTS SAY THE LEGISLATIVE INTENT WAS TO LIMIT DOC CASES AND THEREFORE §1367(b) APPLIES EVEN IF THE Ds ARE ORIGINALLY SUED AND NOT ADDED AFTER THE ACTION IS FILED. (GRIFFIN) REJECTS PATTERSON APPROACH. (4) FINALLY IN §1367(c) IT OUTLINES THE DISCRETION OF THE CT WHEN IT SAYS ―THE DIST CT MAY DECLINE TO EXERCISE SUPP JURIS OVER A CLAIM UNDER SUBSECTION (a) IF1. 2. THE CLAIM RAISES A NOVEL OR COMPLEX ISSUE OF STATE LAW THE CLAIM SUBSTANTIALLY PREDOMINATES OVER THE CLAIM OR CLAIMS OVER WHICH THE DIST CT HAS ORIGINAL JURIS, OR THE DIST CT HAS DISMISSED ALL CLAIMS OVER WHICH IT HAS ORIGINAL JURIS, OR IN EXCEPTIONAL CIRCUMSTANCES THERE ARE OTHER COMPELLING REASONS FOR DECLINING JURIS

3.

4.

(5) TOLLING OF STATUTE OF LIMITATIONS-§1367(D) PROVIDES THAT THE PERIOD OF LIMITATIONS FOR ANY CLAIM ASSERTED UNDER SUBSECTION (A) AND FOR ANY OTHER CLAIM IN THE SAME ACTION THAT IS VOLUNTARILY DISMISSED AT THE SAME TIME AS OR AFTER THE DISMISSAL OF THE CLAIM UNDER SUBSECTION (A) SHALL BE TOLLED WHILE THE CLAIM IS PENDING AND FOR A PERIOD OF 30 DAYS AFTER IT IS DISMISSED, UNLESS STATE LAW PROVIDES FOR A LONGER TOLLING PERIOD. THIS ALLOWS THE P TO REFILE IN STATE CT, ETC. 6. STEP-BY-STEP APPROACH IN DEALING WITH SUPP JURIS PROBLEMS FIRST-DO CONSTITUTIONAL TEST UNDER GIBBS. FIND FED QUESTION. SECOND-CONSIDER §1367(a). DOES THE STATUTORY AUTHORIZATION HERE ALLOW SUPP JURIS OVER PENDANT CLAIMS OR PARTIES. THIRD-DOES THE ORIGINAL JURIS IN FED CT RELY ON DOC UNDER §1332. IF SO, APPLY §1332(b). NO SUPP JURIS. FOURTH-THEN CONSIDER THE DISRETIONARY RULES OF §1367(c). G. REMOVAL TO FED CTS 1. INTRO-THE DOCTRINE OF REMOVAL ALLOWS A D SUED IN STATE CT TO REMOVE THE CASE TO A FED CT OF A DIST EMBRACING THAT STATE CT. REMOVAL HAS NO CONSTITUTIONAL AUTHORIZATION, YET IT HAS A LONG STANDING TRADITION OF ACCEPTANCE. 2. ONLY Ds MAY REMOVE-THE CASE OF SHAMROCK OIL V. SHEETS LAID DOWN THE RULE THAT ONLY Ds MAY USE REMOVAL JURIS. THIS IS ALSO STATED IN §1441(A). *3. GENERAL RULE - §1441(A)-EXCEPT AS OTHERWISE PROVIDED BY AN ACT OF CONGRESS, ANY CIVIL ACTION BROUGHT IN A STATE CT OF WHICH THE DIST CTS OF THE U.S. HAVE ORIGINAL JURIS, MAY BE REMOVED BY THE D OR Ds TO THE DIST CT OF THE U.S. FOR THE DIST AND DIVISION EMBRACING THE PLACE WHERE SUCH ACTION IS PENDING. FOR

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PURPOSES OF REMOVAL UNDER THIS CHAPTER, THE CITIZENSHIP OF Ds SUED UNDER FICTITIOUS NAMES SHALL BE DISREGARDED. 4. LIMITATIONS ON REMOVAL A) FED QUESTIONS (NO RESTRICTIONS)-§1441(B) ANY CIVIL ACTION OF WHICH THE DIST CTS HAVE ORIGINAL JURIS FOUNDED ON A CLAIM OR RIGHT ARISING UNDER THE CONSTITUTION, TREATIES OR LAWS OF THE U.S. SHALL BE REMOVABLE W/O REGARD TO THE CITIZENSHIP OR RESIDENCE OF THE PARTIES. B) DIVERSITY CASE-§1441(B) ANY OTHER SUCH ACTIONS SHALL BE REMOVABLE ONLY IF NONE OF THE PARTIES IN INTEREST PROPERLY JOINED AND SERVED AS Ds IS A CITIZEN OF THE STATE IN WHICH SUCH ACTION IS BROUGHT. RATIONALE-THE D IS ALREADY GETTING THE ADVANTAGES OF HOME STATE PROTECTIONS, SO THERE IS NO NEED FOR FED CT PROTECTION. 5. Ps MAY ALLEGE LESS THAN JURISDICTIONAL AMT EVEN IF IT WAS ACTUALLY ABOVE THAT TO ENSURE D WILL NOT BE ABLE TO REMOVE. HOWEVER, THE CT MAY CONSIDER THESE MANIPULATIVE PRACTICES BY P IN DECIDING WHETHER TO REMAND CERTAIN CASES. 6. REMAND WILL BE PREFERABLE TO DISMISSAL IF THE STATUTE OF LIMTATIONS HAS RUN. 8. SUPP JURIS AND REMOVAL-CLAIMS WHICH DERIVE FROM A COMMON NUCLEUS OF OPERATIVE FACTS WOULD MEET §1367’S TEST FOR SUPP JURIS (I.E. THERE IS A CLAIM THAT HAS ORIGINAL FED JURIS) MAY THEN BE REMOVED TO FED CT BY §1441(A). REMAND-THE FED CT MAY REMAND CASES TO THE STATE CT WHICH IT FINDS PROPER UNDER §1367(C). HOWEVER, IT MAY ONLY REMAND THE STATE LAW CLAIMS. REMOVAL BY §1441(C)-WHENEVER A SEPARATE AND INDEPENDENT CLAIM OR C/A W/I THE JURIS CONFERED BY §1331 (FED QUESTION) OF THIS TITLE IS JOINED W/ ONE OR MORE OTHERWISE NON-REMOVABLE CLAIMS OR CAUSES OF ACTION, THE ENTIRE CASE MAY BE REMOVED AND THE DIST CT MAY DETERMINE ALL ISSUES THEREIN, OR IN ITS DISCRETION, MAY REMAND ALL MATTERS IN WHICH STATE LAW PREDOMINATES. A) KEY TO §1441(C) ―SEPARATE AND INDEPENDENT‖-AMERICAN FIRE V. FINN ((1951)THIS CASE HELD THAT THERE MUST BE A COMPLETE DISASSOCIATION B/T THE FED QUESTION CLAIM AND THE STATE CLAIM TO USE §1441(C). B) THE CASE MUST ARISE UNDER §1331 FED QUESTION TO USE §1441(C). C) DISTINGUISHED FROM SUPP JURIS-IF THE FED CLAIM AND THE STATE CLAIM DERIVE FROM A COMMON NUCLEUS OF OPERATIVE FACTS, WE MAY NOT USE §1441(C). IN THAT CASE WE USE §1367 COMBINED WITH §1441(A)(B). D) REMAND UNDER §1441(C)-THE FED CT MAY REMAND ALL THOSE MATTERS IN WHICH STATE LAW PREDOMINATES WHICH MAY INCLUDE THE FED CLAIM E) EXAMPLE AND PROBLEM W/ §1441(C)-P IS FROM NV AND D IS FROM NV. D COMMITS BATTERY ON P AND ALSO IN A TOTALLY UNRELATED MATTER, FIRES HER FROM HIS BUSINESS IN VIOLATION OF A FED BUSINESS LAW (§1331 CLAIM). P SUES D IN STATE CT. D PROPERLY REMOVES TO FED BT BY §1441(C). NOTHING ELSE WOULD WORK TO REMOVE B/C THE CLAIMS ARE SEPARATE AND INDEPENDENT. PROBLEM-DOESN’T IT VIOLATE ARTICLE III FOR THE FED CT TO HEAR THE STATE CLAIM? – IT APPEARS SO. SOME CTS SAY THE FED CT MUST REMAND THAT CLAIM TO STATE CT.

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PROF’S EXAMPLE WHICH WOULD WORK UNDER §1441(C) AND NOT VIOLATE ARTICLE III-IF P AND D WERE DIVERSE, BUT THE BATTERY CLAIM WAS FOR LESS THAN $75,000. HERE §1441(C) APPLIES TO REMOVE AND ARTICLE III WOULD NOT BE VIOLATED ON THE STATE CLAIM B/C THE PARTIES ARE DIVERSE AND IT IS ONLY STATUTORY LIMITATIONS WHICH REQUIRE THE AMT IN CONTROVERSY TO BE >$75,000. H. CHALLENGING SMJ OF THE CT 1. DIRECT ATTACKS-THE FED CT’S LACK OF SMJ MAY BE ASSERTED AT ANY TIME, BY ANY INTERESTED PARTY, EITHER IN THE ANSWER, OR IN A FORM OF SUGGESTION TO THE CT PRIOR TO FINAL JUDGMENT OR APPEAL. PARTIES MAY NOT WAIVE SMJ. A) ONE CASE-DI-FRISCHA V. NEW YORK HELD THAT SMJ MAY NOT BE DISMISSED WHEN THE P HAS UNFAIRLY MANIPULATED THE SYSTEM. (THIS CASE HAS BEEN HELD WRONG BY MODERN CASES.) B) CAPRON V. VAN NOORDEN SHOWED THAT SMJ CANNOT BE WAIVED AND CTS WILL CONSIDER IT EVEN WHEN THE PARTIES HAVE AGREED TO WAIVE IT, ETC. C) RULE 11-FED CTS CAN IMPLEMENT RULE 11 SANCTIONS DESPITE NO SMJ. WILLY V COASTAL. 2. COLLATERAL ATTACKS-IT IS GENERALLY HELD THAT A PARTY MAY RAISE THE FED CT’S LACK OF SMJ ON APPEAL. COURTS ARE LESS GENEROUS WITH COLLATERAL ATTACKS THOUGH. A) RESTATEMENT APPROACH-SAYS THAT SMJ IS FINAL AND BEYOND COLLATERAL ATTACK IN A DECIDED ACTION UNLESS THERE ARE NO JUSTIFIABLE INTERESTS OF RELIANCE THAT MUST BE PROTECTED. B) FULL FAITH AND CREDIT-STATES MUST GIVE THIS TO OTHER STATES SMJ DETERMINATION. IV. VENUE A. INTRO-VENUE REFERS TO THE PROPER PLACE OR JUDICIAL DIST W/I A STATE TO HAVE THE TRIAL. PJ MUST BE DECIDED BEFORE VENUE. VENUE IS ONLY A STATUTORY REQUIREMENT, THERE ARE NO CONSTITUTIONAL LIMITATIONS. RATIONALE FOR VENUE STATUTES-(1) TO GET TRIAL IN CONVENIENT FORUM B. LOCAL V. TRANSITORY ACTIONS-THE MAJORITY OF STATES STILL FOLLOW THESE CATEGORIES. SOME STATES AND FED CTS ALLOW THE PARTIES TO WAIVE THIS DISTINCTION. OTHER STATES AND FED CTS TREAT IT AS A JURISDICTIONAL REQUIREMENT. LOCAL ACTION-IF AN ACTION IS CONSIDERED LOCAL, VENUE IS PROPER ONLY WHERE THE PROPERTY IS LOCATED. TRANSITORY ACTIONS-VENUE IS PROPER WHEREVER THE GENERAL PROVISIONS ARE MET. RATIONALE FOR THESE DISTINCTIONS-CTS ARE NOT IN A POSITION TO PASS UPON THE TITLE TO LAND OUTSIDE THE JURIS. FEDERAL RECOGNITION-§1392 (A) ANY CIVIL ACTION NOT OF A LOCAL NATURE, AGAINST Ds RESIDING IN DIFFERENT DISTRICTS IN THE SAME STATE, MAY BE BROUGHT IN ANY OF SUCH DISTRICTS.

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(B) ANY CIVIL ACTION, OF A LOCAL NATURE, INVOLVING PROPERTY LOCATED IN DIFFERENT DISTRICTS IN THE SAME STATE, MAY BE BROUGHT IN ANY OF SUCH DISTRICTS. NOTE-THIS SECTION IMPLIEDLY SUGGESTS THAT A LOCAL ACTION MUST BE BROUGHT W/I THE DIST WHERE THE PROPERTY IS LOCATED. C. STATE CTS-EACH STATE HAS ITS OWN SPECIAL STATUTES TO USE FOR DETERMINING PROPER VENUE. D. FED CTS1. HISTORYA) PRIOR TO 1966-VENUE WAS PROPER IN FED QUESTION CASES ONLY IN THE D’S STATE OF CITIZENSHIP. FOR DIVERSITY CASES IT WAS ONLY PROPER IN P’S OR D’S STATE OF RESIDENCE. B) 1966-1990-FOR DIVERSITY CASES IT WAS PROPER IN THE JUDICIAL DIST WHERE ALL Ps RESIDE OR ALL Ds RESIDE OR IN THE DIST WHERE THE CLAIM AROSE. FOR FED QUESTIONS CASES IT WAS PROPER IN THE JUDICIAL DIST WHERE ALL Ds RESIDE OR IN WHICH THE CLAIM AROSE. LITIGATION BREEDING-THE PROBLEM W/ THE 1966-1990 VERSION WAS THAT THERE WAS A FLOOD OF LITIGATION OVER THE PROPER DIST WHERE THE CLAIM AROSE. MOST CTS SAID THERE COULD BE ONLY 1 DIST WHERE THE CLAIM AROSE. INEQUALITY-MANY ARGUED THAT VENUE FOR DIVERSITY CASES WAS TOO FLEXIBLE, SO CAME THE AMEND IN 1990. C) 1990 AMEND TO §1391(A)-WAS IDENTICAL TO CURRENT ONE EXCEPT (3) STATED A JUDICIAL DIST IN WHICH THE Ds ARE SUBJECT TO PJ AT THE TIME THE ACTION IS COMMENCED. THIS ALLOWED EVERY VENUE QUESTION TO TURN ON THE PJ OF THE D. (HORRIBLE!!!) EVEN MORE FLEXIBLE THAN BEFORE. THIS IS WHY WE HAVE THE NEW SECTION OF 1391, BUT IT IS DEBATABLE THAT THE NEW SECTION MAKES LESS LITIGATION OVER SUBSTANTIAL PART. ALTHOUGH PROF THINKS THERE IS LESS.

2. MODERN FED VENUE RULES-28§1391 – 1992 A) DIVERSITY CASES-§1391(A)-AN ACTION FOUNDED ON DIVERSITY OF CITIZENSHIP MAY BE BROUGHT ONLY IN (1) A JUDICIAL DIST WHERE ANY D RESIDES, IF ALL Ds RESIDE IN THE SAME STATE (2) A JUDICIAL DIST IN WHICH A SUBSTANTIAL PART OF THE EVENTS OR OMISSIONS GIVING RISE TO THE CLAIM OCCURRED, OR A SUBSTANTIAL PART OF PROPERTY THAT IS THE SUBJECT OF THE ACTION IS SITUATED (3) A JUDICIAL DIST IN WHICH THE Ds ARE SUBJECT TO PJ AT THE TIME THE ACTION IS COMMENCED, IF THERE IS NO DIST IN WHICH THE ACTION MAY OTHERWISE BE BROUGHT. B) FED QUESTION CASES-A CIVIL ACTION WHEREIN JURIS IS NOT FOUNDED SOLELY ON DOC MAY BE BROUGHT ONLY IN (1) A JUDICIAL DIST WHERE ANY D RESIDES, IF ALL Ds RESIDE IN THE SAME STATE (2) A JUDICIAL DIST IN WHICH A SUBSTANTIAL PART OF THE EVENTS OR OMISSIONS GIVING RISE TO THE CLAIM, OR A SUBSTANTIAL PART OF PROPERTY THAT IS THE SUBJECT OF THE ACTION IS

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SITUATED (3) A JUDICIAL DIST IN WHICH ANY D MAY BE FOUND, IF THERE IS NO DIST IN WHICH THE ACTION MAY BE OTHERWISE BROUGHT. NOTE-§1391(B)(3) IS MEANT TO DEAL W/ Ds WHO ARE FOREIGNERS C) CORPORATIONS-§1391(C)-TO DETERMINE WHERE A CO RESIDES FOR VENUE THE CO WILL BE DEEMED TO RESIDE IN ANY DIST WHERE IT WOULD BE SUBJECT TO PJ AT THE TIME THE ACTION IS COMMENCED IN STATES WHICH HAVE MORE THAN 1 JUDICIAL DIST WE MUST JUDGE THE COMPANIES CONTACTS W/ EACH INDIVIDUAL DIST TO DETERMINE IF IT WOULD HAVE PJ IF IT WERE A STATE. D) UNINCORPORATED ASSOCIATIONS-LOOK TO WHERE THE ASSOCIATION RESIDES TO DETERMINE RESIDENCE. E) RESIDES-THE CTS HAVE SPLIT OVER WHETHER RESIDES IN VENUE ANALYSIS SHOULD MEAN CITIZENSHIP OR RESIDENCE. *PROF THINKS IT IS RESIDENCE. F) SUBSTANTIAL PART-BATES CASE HELD RECEIPT OF A LETTER WAS SUBSTANTIAL PART. E. TRANSFER OF VENUE IN FED CTS 1. CHANGE OF VENUE-§1404(A)-FOR THE CONVENIENCE OF PARTIES AND WITNESSES, IN THE INTEREST OF JUSTICE, A DIST CT MAY TRANSFER ANY CIVIL ACTION TO ANY OTHER DIST OR DIVISION WHERE IT MIGHT HAVE BEEN BROUGHT. A) ORIGIN OF §1404(A)-GULF OIL V. GILBERT (1947)-THIS CASE WAS THE FIRST TO RECOGNIZE THE POWER OF THE FED CT TO TRANSFER OR EVEN DISMISS A CASE B/C OF INCONVENIENT VENUE B) §1404(A)-UNLIKE GILBERT, DOES NOT AUTHORIZE DISMISSAL. 1) INTERPRETATION-IN HOFFMAN V. BLASKI (1960) THE CT INTERPRETED THE LANGUAGE ―WHERE IT MIGHT HAVE BEEN BROUGHT‖ TO MEAN AT THE TIME THE ACTION WAS FILED, NOT AT THE TIME OF TRANSFER. 2) CANNOT WAIVE §1404(A)-A PARTY CANNOT WAIVE VENUE REQUIREMENTS IN ORDER TO GET §1404. (VENUE IS NOT CONSTITUTIONAL RIGHT, YET IT IS UNWAIVED IN ORDER TO GET TRANSFER OF VENUE.) 3) EITHER PARTY MAY USE §1404. 4) EFFECT OF §1404-AUTHORIZES ONLY TRANSFER TO ANOTHER FED CT, NOT STATE CT OR DISMISSAL. 5) OTHER OPTIONS TO §1404(A)-A CT IN LIEU OF GRANTING A §1404(A) MAY GRANT A FORUM NON CONVIENS ON THE CONDITION THAT THE D WAIVE HIS PJ AND VENUE IN A NEW JURIS. 2. LAW IN TRANSFEREE CT A) DIVERSITY CASES1) TRANSFER BY D-VAN DUSEN V. BARRACK (1964)-HELD THAT IN DIVERSITY CASES THE TRANSFEREE CT MUST APPLY THE LAW (I.E. THE CHOICE OF LAW RULES) OF THE TRANSFEROR CT. 2) TRANSFER BY P-FERENS V. JOHN DEERE CO. (1990)-IN DIVERSITY CASES THE TRANSFEREE CT MUST APPLY THE LAW (I.E. THE CHOICE OF LAW

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RULES) OF THE TRANSFEROR CT. THIS ALLOWS HUGE FORUM SHOPPING BY THE P!!! B) FED QUESTION CASES-MANY CTS SAY THAT IN THESE CASES THE TRANSFEREE CT MAY APPLY ITS OWN CHOICE OF LAW, BUT THE TRANSFEROR CT’S LAWS MERIT CLOSE CONSIDERATION. 3. TRANSFER WHEN VENUE WAS WRONG-§1406(A)-THE DIST CT OF A DIST IN WHICH IS FILED A CASE LAYING VENUE IN THE WRONG DIVISION OR DIST SHALL DISMISS, OR IF IT BE IN THE INTEREST OF JUSTICE, TRANSFER SUCH CASE TO ANY DIST OR DIVISION IN WHICH IT COULD HAVE BEEN BROUGHT. A) VENUE AND PJ ARE IMPROPER-IN GOLDAWR V. HEIMAN (1962) THE CT HELD THAT §1406(A) MAY BE USED TO TRANSFER A CASE TO A PROPER VENUE EVEN IF THE ORIGINAL CT LACKED PJ. F. FORUM NON CONVENIENS-IN CERTAIN CASES, A FED CT MAY DISMISS A CASE B/C VENUE IS SO INCONVENIENT. TO DECIDE IF A MOTION FNC SHOULD BE GRANTED, THE CT IN PIPER AIRCRAFT V. REYNO SAID WE MUST CONSIDER: 1. 2. 3. 4. 5. 6. 7. 8. 9. PRIVATE INTERST OF THE LITIGANT RELATIVE EASE OF ACCESS TO SOURCES OF PROOF AVAILABILITY OF COMPULSORY PROCESS FOR WITNESSES THE COST OF GETTING WITNESSES POSSIBILITY TO VIEW PREMISES, IF APPROPRIATE OTHER FACTORS WHICH MAKE THE TRIAL EASY ENFORCEABILITY OF A JUDGMENT THE P’S CHOICE OF FORUM FACTORS OF PUBLIC INTEREST: A) JURY DUTY ON PUBLIC, B) IMPORTANCE TO COMMUNITY C) CHOICE OF LAW D) COURT CASE LOAD; DOCKET CONTROL 10. THE LAW WHICH WILL BE APPLIED-CONFUSING A) CHANGE OF LAW-PIPER’S MAIN HOLDING WAS THAT THE FACT THAT A CHANGE IN FORUM WOULD RENDER LAW LESS FAVORABLE TO THE P SHOULD NEVER BE A CONSIDERATION FOR FNC. B) NO ALTERNATIVE-IF THERE IS ABSOLUTELY NO ALTERNATIVE FORUM, THE FED CT MAY CONSIDER THE CHANGE IN LAW AND NOT DISMISS. CONTRARY HOLDING-NOTE-IN ISLAMIC REPUBLIC OF IRAN V. PAHLAVI (1984) THE CT DISMISSED ON FNC DESPITE THE FACT THAT THERE WAS NO ALTERNATIVE FORUM.

Add Merrell Dow case from supp. 290 and include ―access to proof‖ rule from Piper, choice of law, adequacy of remedy and other persuasive holdings.

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C) FOREIGN Ps-THE P’S CHOICE OF FORUM SHOULD BE GIVEN LESS FORCE WHEN THEY ARE FOREIGNERS B/C IT IS REASONABLE TO ASSUME IT IS NOT CONVENIENT FOR THEM AS IT WOULD BE FOR A LOCAL P. D) REVERSAL OF FNC ORDER-FNC ORDERS MAY ONLY BE REVERSED WHERE THE CT HAS CLEARLY ABUSED ITS DISCRETION. V. JOINDER A. JOINDER OF CLAIMS (RULE 18)* 1. DEFINITION-IN AN EFFORT TO AVOID MULTIPLE SUITS, THERE ARE RULES WHICH ALLOW A PARTY TO JOIN TOGETHER CLAIMS AGAINST ANOTHER PARTY. 1ST STEP-IS THERE A RULE WHICH ALLOWS THE JOINDER OF CLAIMS. (FRCP) 2ND STEP-DOES THE JOINED CLAIM MEET THE CT’S SUBJECT MATTER REQUIREMENTS. (§§1331, 1332, 1367) 2. COMMON LAW-CLAIMS COULD BE JOINED ONLY IF THEY FELL W/I THE SAME FORM OF ACTION LIKE TRESPASS ON THE CASE, OR TROVER. 3. SECOND VIEW-SAME TRANSACTION TEST-THIS EARLY COMMON LAW VIEW ALLOWED CLAIMS TO BE JOINED IF THEY AROSE OUT OF THE SAME TRANSACTION. 4. MODERN JOINDER OF CLAIMS UNDER RULE 18-A PARTY MAY JOIN AS MANY RELATED AND/OR UNRELATED CLAIMS AS HE WANTS. VERY FLEXIBLE TEST.  JOINDER OF CLAIMS IS DISCRETIONARY.  CLAIMS NEED NOT BE RELATED.  THE JOINED CLAIMS MUST MEET THE SMJ REQUIREMENTS. THIS CAN BE DONE BY (1) INDEPENDENTLY MEETING THE SMJ REQUIREMENTS OF 1331 OR 1332, OR (2) BY EXERCISING SUPP JURIS UNDER 1367 A) THE RULE-18(A)-A PARTY ASSERTING A CLAIM TO RELIEF AS AN ORIGINAL CLAIM, COUNTERCLAIM, CROSS-CLAIM, OR THIRD PARTY CLAIM, MAY JOIN, EITHER AS INDEPENDENT OR AS ALTERNATE CLAIMS, AS MANY CLAIMS, LEGAL OR EQUITABLE, OR MARITIME, AS THE PARTY HAS AGAINST AN OPPOSING PARTY. 5. LIMITATION-RES JUDICATA-WHILE JOINDER OF CLAIMS UNDER FRCP 18 IS DISCRETIONARY, IT IS IMPORTANT TO NOTE THAT FAILURE TO JOIN A TRANSACTIONALLY RELATED CLAIM MAY BAR A SUBSEQUENT ACTION UNDER RES JUDICATA. 6. SEPARATE TRIALS OF JOINED CLAIMS UNDER RULE 42(B)-AFTER A PARTY HAS JOINED ALL HIS CLAIMS UNDER RULE 18, IT IS POSSIBLE UNDER RULE 42(B) THAT THE CT IN THE FURTHERANCE OF CONVENIENCE OR TO AVOID PREJUDICE, OR WHEN SEPARATE TRIALS WILL BE CONDUCIVE TO EXPEDITION AND ECONOMY, MAY ORDER A SEPARATE TRIAL OF ANY CLAIM, XC, OR CC OR 3RD PARTY CLAIM. EX. SPORN V HUDSON-THE CT ORDERED SEPARATE TRIALS ON 2 OUT OF 5 CAUSES OF ACTION B/C OF (1) JURY PREJUDICE AND (2) CONFUSION. B. COUNTERCLAIMS –(RULE 13A-13B) 1. DEFINITION-A COUNTERCLAIM IS A CLAIM BROUGHT BY A D AGAINST THE P

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2. COMMON LAW-DID NOT RECOGONIZE MODERN COUNTERCLAIMS BUT ALLOWED THE D TO RECOVER THROUGH: A) RECOUPMENT-D COULD ASSET CLAIMS ARISING OUT OF THE SAME TRANSACTION AS THE P’S COMPLAINT, BUT ONLY FOR THE PURPOSE OF REDUCING THE P’S RECOVERY B) SET-OFF-WHERE THE D’S CLAIM WAS NOT TRANSACTIONALLY RELATED TO P’S, BUT WERE FOR LIQUIDATED DAMAGES OR ARISE OUT OF A K OR JUDGMENT, DID NOT ALLOW AFFIRMATIVE RECOVERY. 3. FEDERAL RULES-FRCP 13 PROVIDES FOR PERMISSIVE AND COMPULSORY COUNTERCLAIMS. A) TWO STEP PROCESS IN ANALYZING COUNTERCLAIMS: 1ST-DOES A FED RULE ALLOW THE COUNTERCLAIM. (LIKE 13A OR 13B.) 2ND-DOES THE COUNTERCLAIM MEET SMJ RULE 82-WE MUST DO THIS ANALYSIS B/C FRCP 82 SAYS THE RULES DO NOT EXTEND OR LIMIT SMJ. B) COMPULSORY COUNTERCLAIMS 13(A)-THESE ARE CLAIMS WHICH ARISE OUT OF THE SAME TRANSACTION OR OCCURRENCE AS THE OPPOSING PARTY’S CLAIM, WHICH MUST BE BROUGHT OR LOST FOREVER. 1) TEXT OF RULE 13(A)- A PLEADING SHALL STATE AS A COUNTERCLAIM ANY CLAIM WHICH AT THE TIME OF SERVING THE PLEADING, THE PLEADER HAS AGAINST THE OPPOSING PARTY, IF IT ARISES OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER OF THE OPPOSING PARTY’S CLAIM AND DOES NOT REQUIRE FOR ITS ADJUDICATION THE PRESENCE OF THIRD PARTIES OF WHOM THE COURT CANNOT ACQUIRE JURISDICTION. IMPORTANT NOTES (A) PLEADING-IN ORDER FOR RULE 13(A) TO APPLY, THE D MUST HAVE MADE A PLEADING. IF THE D NEVER PLEADS (TAKES A DEFAULT JUDGMENT), THEN HE IS NOT LATER BARRED FROM BRINGING THE TRANSACTIONALLY RELATED CLAIM IN A NEW SUIT. (B) PROF HYPO-RULE 7 REQUIRES THAT THERE BE A REPLY TO A COUNTERCLAIM ―DENOMINATED AS SUCH‖-THIS MEANS IF A D RAISES A COUNTERCLAIM ARISING OUT OF THE SAME TRANSACTION, BUT DENOMINATES IT AS AN AFFIRMATIVE DEFENSE, THE P IS NOT OBLIGATED TO REPLY TO IT. (C) EXCEPTION IS 1ST SENTENCE-IF THERE ARE 3RD PARTIES OVER WHOM THE CT CANNOT GET JURIS, THE CC NEED NOT BE BROUGHT. 2) EXCEPTIONS TO 13(A)-THE SECOND SENTENCE OF 13(A) SAYS-BUT THE PLEADER NEED NOT STATE THE CLAIM IF AT (1) THE TIME THE ACTION WAS COMMENCED, THE CLAIM WAS THE SUBJECT OF ANOTHER PENDING ACTION OR EX. OF PRIOR SUIT-SO IF THE D HAD FILED THE CLAIM IN A STATE CT BEFORE THE P BROUGHT THE TRANSACTIONALLY RELATED CLAIM IN FED CT, D WOULD NOT BE COMPELLED TO BRING IT AS A CC.

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D MAY PLEAD IT AS A COUNTERCLAIM-EVEN IF THE D CAN USE THE EXCEPTION ABOVE, HE MAY PLEAD IT AS A COUNTERCLAIM IF HE CHOOSES B/C THE LANGUAGE IN 13(A) SAYS HE NEED NOT STATE THE CLAIM, WHICH IMPLIES HE MAY DO SO IF HE WANTS. (2) THE OPPOSING PARTY BROUGHT SUIT UPON THE CLAIM BY ATTACHEMTN OR OTHER PROCESS BY WHICH THE CT DID NOT ACQUIRE JURIS TO RENDER A PERSONAL JUDGMENT ON THAT CLAIM, AND THE PLEADER IS NOT STATING ANY COUNTERCLAIM UNDER RULE 13. (3) EXAMPLE-FED QUESTION-D(CA) UNLAWFULLY ARRESTS P(CA) IN VIOLATION OF §1983. P HIT D DURING ARREST. P SUES D FOR §1983 VIOLATION (FED QUESTION JURIS – FED INGREDIENT+HOLMES CREATION TEST) AND D COUNTERCLAIMS FOR BATTERY. THIS CC IS COMPULSORY B/C IT AROSE OUT OF THE SAME TRANSACTION OR OCCURRENCE. THE CC IS PROPER B/C 1ST STEP-MEETS 13(A) REQUIREMENTS-TRANSACTIONALLY RELATED 2ND STEP-SMJ IS PROPER UNDER §1367(A) B/C THE ORIGINAL CLAIM WAS A FED QUESTION AND THE BATTERY CLAIM AROSE FROM A COMMON NUCLEUS OF OPERATIVE FACTS. NOTE-IT THE BATTERY HAD OCCURRED AT A DIFFERENT TIME, THE CC MAY HAVE BEEN PROPER UNDER 13(B) PERMISSIVE, BUT SMJ WOULD NOT BE PROPER B/C THE CLAIMS DID NOT AISE OUT OF A COMMON NUCLEUS AND THERE WAS NO DIVERSITY. (4) EXAMPLE-DIVERSITY CASE-P(IW) SUES D(NB) OF NEG CLAIM FOR $81,000. D WANTS TO CC ON PROPERTY DAMAGE FOR $10,000 ARISING OUT OF SAME TRANSACTION. 1ST STEP-CC IS PROPER UNDER 13(A)-SAME TRANSACTION 2ND STEP-ALSO PROPER UNDER §1367 DESPITE THE FACT THAT THE D’S CLAIM IS LESS THAN $75,000 B/C §1367(B) WHICH DEALS W/ CLAIMS FOUNDED SOLELY ON §1332 APPLIES 1ST-ONLY TO CLAIMS MADE BY Ps 2ND-§1367 DOES NOT MENTION RULE 13 (5) TRANSACTIONALLY RELATED-CTS ARE MORE FLEXIBLE IN FINDING CLAIMS TO BE TRANSACTIONALLY RELATED PRE-TRIAL AND MORE STRICT POST TRIAL (A) DEFINITION-LOGICAL RELATIONSHIP-MANY CTS LOOK FOR SOME LOGICAL RELATIONSHIP. THIS RELATIONSHIP NEED NOT BE LIMITED BY TIME. A CLAIM IS LOGICALLY RELATED IF SEPARATE TRIALS ON THE CLAIMS WOULD INVOLVE A DUPLICATION OF EFFORT AND TIME BY THE PARTIES AND CTS. SOME CTS SAY CLAIMS WHICH REST ON DIFFERENT STATE OR FED LAW ARE NOT TRANSACTIONALLY RELATED.

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(B) RATIONALE-CTS ARE NOT LIKELY TO FIND CLAIMS TO BE TRANSACTIONALLY POST TRIAL RELATED IF RES JUDICATA THREATENS DISMISSAL (6) CONSEQUENCES OF FAILING TO RAISE COMPULSORY CC IN 13(A)THERE ARE SEVERAL THEORIES CTS HAVE SPLIT ON: (A) RES JUDICATA-SOME CTS SAY THE CLAIM MAY NOT BE BROUGHT IN A FED CT B/C OF RES JUDICATA (B) ESTOPPEL-SOME CTS SAY THE D IS ESTOPPED FROM BRINGING THE LATTER CLAIM EXCEPTION-SOME CTS MAY IGNORE THE FAILURE TO RAISE THE CC IF JUSTICE AND FAIRNESS REQUIRE. LIKE WHERE D WAS REPRESENTED BY INSURANCE CO. (C) WAIVER-SOME CTS SAY THE D WAIVED HIS RIGHT TO BRING THE CC.L (7) BRINGING CLAIM IN STATE CT-IF THE 1ST SUIT IS FILED IN FED CT AND THE 2ND SUIT IN STATE CT, MOST STATES WILL TREAT IT AS RES JUDICATA, BUT IT IS A STATE DECISION. EXCEPTION-IN SOUTHERN CONST. V. PICKARD (1962) THE USSC SAID THAT RULE 13(A) DOES NOT APPLY WHERE A STATUTE COMPELLED THE SPLITTING OF P’S CLAIMS IN 2 SUITS, AND THE D COUNTERCLAIMED ONLY IN THE 2ND SUIT. THE D MAY BRING THE CLAIM AFTER THE 1ST SUIT, DESPITE IT BEING RELATED. C) PERMISSIVE COUNTERCLAIMS-13(B)-THESE ARE CLAIMS, WHICH ARE NOT COMPULSORY, MADE BY THE D AGAINST THE P, WHICH ARE NOT TRANSACTIONALLY RELATED. THEY MAY BE BROUGHT, BUT IT IS NOT REQUIRED.  NOT TRANSACTIONALLY RELATED OR SAME OCCURRENCE  THESE UNRELATED CLAIMS ARE DISCRETIONARY  THERE MUST BE SMJ OVER THE CLAIMS EXAMPLE 13(B)-P(IW) SUES D(NB) ON NEG CLAIM FOR $81,000. D WANTS TO CC ON PROPERTY DAMAGE FOR $10,000 ARISING OUT OF A DIFFERENT TRANSACTION. NOT A PROPER CC B/C 1ST STEP-THE CC WOULD BE A PERMISSIVE CC UNDER 13(B)-BUT2ND STEP-SMJ WOULD NOT BE PROPER B/C THE CC IS NOT A 1331 CLAIM, NOT A 1332 CLAIM, AND NOT 1367 B/C IT WAS NOT TRANSACTIONALLY RELATED. C. CROSS CLAIMS-(RULE 13G) 1. DEFINITION – THESE ARE CLAIMS BROUGHT BY A PARTY AGAINST A CO-PARTY SUCH AS CO-D OR CO-P. XCs ARE ALWAYS DISCRETIONARY. 2. MODERN REQUIREMENTS-FRCP 13(G)-THE XC MUST HAVE ARISEN FROM THE SAME TRANSACTION OR OCCURRENCE AS THE ORIGINAL CLAIM. (THE LOGICAL RELATIONSHIP TEST)

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13(g)-A PLEADING MAY STATE AS A XC ANY CLAIM BY ONE PARTY AGAINST A COPARTY ARISING OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER OF THE ORIGINAL ACTION OR OF A CC THEREIN OR ELATING TO ANY PROPERTY THAT IS THE SUBJECT MATTER OF THE ORIGINAL ACTION. SUCH XCs MAY INCLUDE A CLAIM THAT THE PARTY AGAINST WHOM IT IS ASSERTED IS OR MAY BE LIABLE TO THE CROSS CLAIMANT FOR ALL OR PART OF A CLAIM ASSERTED IN THE ACTION AGAINST THE CROSS CLAIMANT. NOTE-XCs ARE NEVER COMPULSORY LASA V. ALEXANDER (1969)-FOUND A LOGICAL RELATIONSHIP OF XCs BASED ON THE HUGE AMT OF OVERLAPPING PROOF. THIS IS KEY ACCORDING TO PROF.* MINORITY VIEW-SOME CTS REJECT THE LOGICAL RELATIONSHIP TEST FOR XCs AND REQUIRE THAT THE XC BE OF THE SUBJECT MATTER OF THE P’S ACTION. 3. JOINDER OF PARTIES W/ XCs-13(H)-JOINDER OF A NEW PARTY FOR A XC OR CC IS PROPER AS LONG AS IT COMPLIES W/ RULE 20. 4. SEVERANCE OF XCs-42(B)-THE CT MAY ORDER A SEPARATE TRIAL FOR XCs. *5. IMPLEADED PARTIES ARE DEEMED CO-PARTIES FOR PURPOSES OF 13(G) XCs. 6. P’S XCs- (DANNER V. ANSKIS) RULE13(G) DOES NOT AUTHORIZE A P TO STATE AS A XC AGAINST A CO-P CLAIM ARISING OUT OF THE TRANSACTION OR OCCURRRENCE WHICH IS ALSO THE SUBJECT MATTER OF THEIR COMMON COMPLAINT AGAGINST THE D. RATIONALE-THIS PREVENTS Ps FROM CONNING PEOPLE WHO THEY COULD NOT OTHERWISE GET PJ OVER TO JOIN THEM AS Ps AND THEN XC. A) EXCEPTION-IF THE D FILES A CC AGAINST THE PJ, HE MAY XC AGAINST P2. (GOOD UNDER 13(G) AND GOOD UNDER 1367(B) B/C IT DOES NOT MENTION RULE 13.) 1) READING WHICH WOULD NOT ALLOW P TO XC AGAINST P AS ABOVE (PROF THINKS THIS READING IS WHAT WAS INTENDED)-SINCE 1367(B) DEALS W/ CLAIMS MADE BY Ps AGAINST PARTIES JOINED UNDER RULE 20 (OUR Ps JOINED UNDER RULE 20) WE COULD ARGUE THE XC GETS THROWN OUT BY 1367(B). HOWEVER 2 ARGUMENTS AGAINST THIS INTERPRETATION ARE (PROF SAYS THIS IS WEAK): (1) 1367(B) SAYS CLAIMS BY Ps NOT XC OR CC. WE HAVE A XC. (2) AS PER PATTERSON, 1367(B) IS INAPPLICABLE B/C THE PARTIES WERE PART OF THE ORIGINAL COMPLAINT. 7. EXAMPLE-P(CA) SUES D1(TN) AND D2(TN) FOR $76,000 FOR INJURIES SUSTAINED IN A 3 CAR COLLISION. CAN D1 XC AGAINST D2? YES B/C 1ST STEP-RULE ? UNDER 13(G) THE CLAIMS ARE TRANSACTIONALLY RELATED. GOOD. 2ND STEP-WHAT ABOUT SMJ? THERE IS NO DOC. IT IS GOOD UNDER 1367(A) BUT THEN UNDER 1367(B) THE Ss ARE NOT DIVERSE. HOWEVER, 1367(B) MAY NOT APPLY SINCE IT ONLY APPLIES TO CLAIMS MADE BY Ps. D. PARTIES WHO MAY SUE AND BE SUED (RULE 17)

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1. WHO MAY SUE-THE PARTY WHO BRINGS THE SUIT MUST BE THE PROPER PARTY AS PER THE RELEVANT RULE (THESE RULES PROTECT THE OPPOSING PARTY’S INTEREST BY ENSURING ONLY TRUE LITIGANTS W/ A STAKE CAN SUE OR BE SUED.) A) FED RULE 17(A)-REAL PARTIES AND Ps-EVERY ACTION SHALL BE PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST. SECOND SENTENCE-SAYS AN ADMINISTRATOR, TRUSTEE, BAILEE, OR A PARTY AUTHORIZED BY A STATE STATUTE MAY SUE IN THAT PERSON’S OWN NAME W/O JOINING THE PARTY FOR WHOSE BENEFIT THE ACTION IS BROUGHT. REASONABLE TIME TO REFILE BEFORE DISMISSAL-(SENTENCE 3 RULE 17(A))-NO ACTION SHALL BE DISMISSED ON THE GROUND THAT IT HAS NOT BEEN PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST UNTIL A REASONABLE TIME HAS BEEN ALLOWED AFTER OBJECTION FOR THE REAL PARTY IN INTEREST TO BE BROUGHT IN. ADVISORY-NOTES SUGGEST THAT THIS REFILE TIME ONLY OCCURS WHERE THE PROPER PARTY TO SUE WAS DIFFICULT TO ASCERTAIN OR THERE WAS AN EXCUSABLE MISTAKE. ELLIS CANNING V. INT. HARVESTER-HELD THAT AN INSURER COULD NOT SUE IN THE NAME OF THE INSURED (AN INDIVIDUAL) WHEN THE BENEFIT IS SOLELY FOR THE INSURER. NOTE-FED CTS APPLYING STATE LAW-REAL PARTY IN INTEREST MUST BE DETERMINED USING STATE LAW IF IT IS DEEMED THAT THE CHOICE IS A SUBSTANTIVE RULE. 2. WHO MAY BE SUED-17(B)-(CAPACITY RULES ARE DESIGNED TO PROTECT THE PARTIES BEING SUED. LIKE MINORS, ETC.) A) INDIVIDUALS-MAY BE SUED ACCORDING TO THE LAW OF THEIR DOMICILE. B) CORPORATIONS-MAY BE SUED ACCORDING TO THE LAW UNDER WHICH IT WAS ORGANIZED. C) UNINCORPORATED ASSOCIATIONS-MAY IN CERTAIN CASES INVOLVING THE CONSTITUTION OR FED STATUTES SUE OR BE SUED IN ITS OWN NAME. D) INFANTS AND INCOMPETENTS-17(C)-IF THESE PEOPLE HAVE A REPRESENTATIVE, THE REP MAY SUE OR BE SUED ON THE PERSON’S BEHAL. CTS WILL APPOINT REPS IF NEEDED. NOTE-SMJ PROBLEMS? WHILE IT MAY BE PROPER FOR AN EXECUTOR TO SUE IN HIS OWN NAME ON BEHALF OF THE ESTATE; IT IS IMPORTANT TO REMEMBER THAT FOR DOC PURPOSES, THE REPRESENTATIVE HAS THE SAME DOMICILE AS THE PERSON HE REPRESENTS. 3. STANDING TO SUE-FED CTS REQUIRE THAT THE PARTIES HAVE STANDING TO SUE. I.E. THAT THE LITIGANT SUFFER AN INJURY, THAT THE INJURY ARISES OUT OF OR RELATES TO THE LITIGATION AND THAT THE LITIGANT HAVE A PERSONAL STAKE IN THE OUTCOME OF THE SUIT. E. CLAIMS INVOLVING MULTIPLE PARTIES (RULE 20) 1. PERMISSIVE JOINDER OF PARTIES (ALL Ps JOIN: OR ALL Ds JOIN) A) COMMON LAW-

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Ps-(COMPULSORY) AT COMMON LAW Ps WHO WERE ASSETING JOINT RIGHTS WERE COMPELLED TO JOIN THEIR RESPECTIVE CLAIMS IN A SINGLE ACTION. Ds-(PERMISSIVE) JOINT TORTFEASORS AND Ds COULD BE JOINED AT THE P’S OPTION. B) CODE STATES-EQUITY CTS EVENTUALLY ALLOWED PERMISSIVE JOINDER OF ALL PARTIES HAVING AN INTEREST IN THE SUBJECT MATTER OF THE ACTION OR IN THE RELIEF DEMANDED TO JOIN IN A SINGLE PROCEEDING. C) FED RULES-RULE 20(A)-PERMISSIVE 1) Ps-ALL PERSONS MAY JOIN A Ps IF THEY ASSERT ANY RIGHT TO RELIEF JOINTLY SEVERALLY OR IN THE ALTERNATIVE IN RESPECT OF OR ARISING OUT OF THE SAME TRANSACTION OR OCCURRENCE (TO), OR SERIES OF TRANSACTIONS OR OCCURRENCES AND IF ANY QUESTION OF LAW OR COMMON FACT WILL ARISE IN THE ACTION.  JOINT RIGHTS OR  TO AND COMMON ? OF LAW OR FACT (A) SERIES OF TRANSACTIONS- CT IN LUCAS V. CITY OF JUNEAU HELD THAT JOINDER OF Ds WAS PROPER OVER D1 WHO CAUSED INITIAL INJURY TO THE P AND D2 WHO FURTHER INJURED P 18 DAYS LATER WHILE DRIVING THE P TO THE HOSPITAL IN AN AMBULANCE FOR TREATMENT FOR THE FIRST INJURY. 2) Ds-Ds MAY BE JOINED IF THEY JOIN OBLIGEES OR THERE IS A TO AND A COMMON QUESTION OF LAW OR FACT. TANBRO V. BEAUNIT (1957)-Ds WERE PROPERLY JOINED B/C THEIR ALTERNATIVE LIABILITY AROSE OUT OF A COMMON TRANSACTION OR OCCURRENCE INVOLVING QUESTIONS OF FACT AND LAW. BUT THE CT NOTD THIS RIGHT TO JOIN THE Ds IS LIMITED BY THE CT’S POWER TO ORDER SEPARATE TRIAL IF PRJUDICE OR INJUSTICE APPEARS. 3) SEPARATE TRIALS-20(B)-THE CT MAY ORDER A SEPARATE TRIAL FOR CERTAIN PARTIES IS IT IS NEEDED TO PREVENT EMBARRASSMENT, DELAY, PREJUDICE OR EXPENSE TO THE NONASSERTING PARTY. D) CONSOLIDATION UNDER RULE 42(A)-IF WE CANNOT GET ALL THE Ps OR Ds TOGETHER UNDER RULE 20 WE MAY BE ABLE TO CONSOLIDATE UNDER 42(A) WHICH SAYS ACTION INVOLVING A COMMON QUESTION OF LAW OR FACT, MAY BY CT ORDER, BE HEARD JOINTLY OR CONSOLIDATED TO PREVENT DELAY AND UNNECESSARY COSTS. 2. JOINDER OF PERSONS NEEDED FOR A JUST ADJUDICATION-NECESSARY AND INDISPENSABLE PARTIES. A) COMMON LAW-JOINDER WAS COMPULSORY WHERE THE PARTIES WERE POSSESSED OF JOINT RIGHTS. EQUITY CTS LATER REQUIRED LESS FOR JOINDER IN AN EFFORT TO CREATE EFFICIENCY. B) RULE 19-JOINDER OF PARTIES NEEDED FOR A JUST ADJUDICATION-IN SOME CASES THERE MAY BE PARTIES NOT ALREADY IN THE LAWSUIT WHICH SHOULD BE TO

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MEET THE INTEREST OF THE CTS AND THE PUBLIC IN COMPLETE, CONSISTENT, AND EFFICIENT SETTLEMENT OF CONTROVERSIES. 1ST STEP-19(A)-DETERMINE IF THE PARTY IS FEASIBLE1) PJ-IS HE SUBJECT TO SERVICE OF PROCESS (PJ) 2) SMJ-IS THERE PROPER SMJ 3) VENUE-IS VENUE PROPER. 2ND STEP-IF HE IS FEASIBLE, HE WILL BE JOINED ONLY IF HE IS NECESSARY WHICH MEANS: (1) IN THE PERSON’S ABSENCE, COMPLETE RELIEF CANNOT BE ACCORDED AMONG THOSE ALREADY PARTIES OR (2) THE PERSON CLAIMS AN INTEREST RELATING TO THE SUBJECT OF THE ACTION AND IS SO SITUATED THAT THE DISPOSITION OF THE ACTION IN THE PERSON’S ABSENCE MAY *(I) AS A PRACTICAL MATTER, IMPAIR OR IMPEDE THE PERSON’S ABILITY TO PROTECT THAT INTEREST, OR *(II) LEAVE ANY OF THE PERSONS ALREADY PARTIES, SUBJECT TO A SUBSTANTIAL RISK OF INCURRING DOUBLE, MULTIPLE, OR OTHERWISE INCONSISTENT OBLIGATIONS BY REASON OF THE CLAIMED INTEREST. 3RD STEP-IF THE PERSON FITS W/I (1), (2)(I), OR (2)(II) HE IS A NECESSARY PARTY AND SHALL BE JOINED. INVOLUNTARY P-IF THE PERSON SHOULD JOIN AS A P BUT REFUSES TO DO SO, THE PERSON MAY BE MADE A D, OR IN A PROPER CASE, AN INVOLUNTARY P: LIMITATION ON INVOLUNTARY P-A PERSON MAY NOT BE DEEMED AN INVOLUNTARY P UNLESS HE HAD A DUTY TO ALLOW THE P TO BRING THE SUIT. (INDEPENDENT WIRELESS (1929)) BRINGING ABSENT D IN AS A D-CTS MAY DO THIS AND THEN REALIGN HIM FOR DIVERSITY PURPOSES. 4TH STEP-19(B) NON FEASIBLE BUT NECESSARY PARTIES-IF THE PERSON CANNOT FEASIBLY BE MADE A PARTY B/C THE CT CANNOT GET PJ, SMJ, OR VENUE OVER HIM BUT HE DOES MEET ON OF THE NECESSARY PARTY TEST OF 19(a)(1), (2)(I), OR (2)(II) THEN: 19(B) TEST-THE CT MUST DETERMINE WHETHER IN EQUITY AND GOOD CONSCIENCE IF THE ACTION SHOULD PROCEED AMONG THE PARTIES BEFORE IT OR SHOULD BE DISMISSED, THE ABSENT PARTY BEING THUS REGARDED AS INDISPENSABLE. *FACTORS TO WEIGH: (1) TO WHAT EXTENT A JUDGMENT RENDERED IN THE PERSON’S ABSENCE MIGHT BE PRJUDICIAL TO THE PERSON OR THOSE ALREADY PARTIES

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(2) THE EXTENT TO WHICH, BY PROTECTIVE PROVISIONS IN THE JUDGMENT, BY SHAPING RELIEF, OR OTHER MEASURES, THE PREJUDICE CAN BE LESSENED OR AVOIDED (3) WHETHER A JUDGMENT RENDERED IN THE PERSON’S ABSENCE WILL BE ADEQUATE (4) WHETHER THE P WILL HAVE AN ADEQUATE REMEDY IF THE ACTION IS DISMISSED FOR NONJOINDER EX. IN PROVIDENT TRUST THE CT HELD THE D WHO WAS NOT FEASIBLE, WAS NECESSARY UNDER 19(A)(1). FROM THERE THE CT ANALYZED 19(B) TO DETERMINE IF THE LOWER CT HAD PROPERLY DISMISSED THE CASE B/C THE PERSON WAS INDISPENSABLE AS JUDGED BY THE 4 FACTORS IN 19(B). 5TH STEP-DISMISSAL-IF IN WEIGHING THESE FLEXIBLE FACTORS THE CT DETERMINES THE PERSON SHOULD BE PRESENT, HE WILL BE DEEMED INDISPENSABLE AND THE ACTION WILL BE DISMISS. C) RULE 19 OBJECTIONS-THESE OBJECTIONS MUST BE RAISED IN THE FIRST PREANSWER MOTION OR IN THE ANSWER ACCORDING TO 12(B). 1) NOT WAIVED-UNDER 12(H) A FAILURE TO OBJECT ON A RULE 19 IS NOT CONDIDERED WAIVED. F. IMPLEADER-RULE 14 1. THIRD PARTY PRACTICE-THIS RULE INVOLVES CASES WHERE A DEFENDING PARTY WANTS TO BRING IN A THIRD PARTY WHO IS NOT ALREADY A PARTY TO THE ACTION (THIRD PARTY D) WHO IS OR MAY BE LIABLE TO THE D (THIRD PARTY P). 2. DERIVATIVE LIABILITY-THE KEY TO USING RULE 14 IS THAT THERE IS DERIVATIVE LIABILITY. I.E. THAT THE IMPLEADED THIRD PARTY ―IS OR MAY BE LIABLE‖ TO THE THIRD PARTY P/D WHO IMPLEADED HIM. A) RATIONALE FOR LIMITATION-KEEPS THE 3RD PARTY P FROM BRINGING LOTS OF BOGUS SUITS. B) RELIANCE ON STATE LAW-IF THE STATE SUBSTANTIVE LAW DENIES INDEMNIFICATION OR CONTRIBUTION TO CERTAIN PARTIES THEN RULE 14 MAY NOT BE USED. (PAY CAREFUL ATTENTION TO INTENTIONAL TORTS.) 1) JEUB CASE-IF STATE ALLOWS INDEMNITY, ETC., BUT JUST AT A LATER DATE, RULE 14 MAY BE USED TO SPEED UP THE PROCESS IF IT IS DETERMINED THAT A THIRD PARTY D IS LIABLE TO A THIRD PARTY P, THEN THE CT MAY WAIT UNTIL THE FINAL DECISION IS IN UNTIL ENFORCING THE JUDGMENT. 3. RULE 14 ANALYSISA) WHO MAY BE BROUGHT IN-AT ANY TIME AFTER THE COMMENCEMENT OF THE ACTION, A DEFENDING PARTY, AS A THIRD PARTY P, MAY CAUSE A SUMMONS AND COMPLAINT TO BE SERVED UPON A PERSON NOT A PARTY TO THE ACTION WHO IS OR MAY BE LIABLE TO THE THIRD PARTY P FOR ALL OR PART OF THE P’S CLAIM AGAINST THE THIRD PARTY P. DISCRETIONARY RULE-―MAY‖ PERSON MUST NOT ALREADY BE A PARTY TO THE ACTION IS OR MAY BE LIABLE TO 3RD PARTY P.

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B) DEFENDING PARTY-WHEN P MAY BRING IN A 3RD PARTY-RULE 14 MAY BE USED BY Ds AND EVEN Ps UNDER 14(B) WHEN A CC IS ASSERTED AGAINST A P. IN THAT CASE HE MAY USE THE SAME STEPS TO IMPLEAD 3 RD PARTY. C) THE THIRD PARTY D’S RIGHTS-HE SHALL ASSET DEFENSES AND CCs AGAINST THE THIRD PARTY P AS REQUIRED. HE MAY ALSO CC AGAINST OTHER Ds UNDER RULE 13. D) THIRD PARTY D’S CLAIM AGAINST P-THE THIRD PARTY D MAY ALSO ASSERT ANY CLAIM AGAINST THE P ARISING OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER OF THE P’S CLAIM AGAINST THE THIRD PARTY P. 1) DISTINGUISHED FROM CC-THESE CLAIMS, UNLIKE COMPULSORY CCs, ARE DISCRETIONARY. EX. 3RD PARTY D CLAIMS AGAINST ORIGINAL P FOR A CLAIM ARISING OUT OF TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER OF THE P’S CLAIM AGAINST THE 3RD PART P. 1ST-GODD UNDER RULE 14 2ND-GOOD UNDER 1367(A)-COMMON NUCLEUS AND GOOD UNDER 1367(B) B/C IT ONLY APPLIES TO CLAIMS BY Ps, NOT THOSE MADE BY 3RD PARTY Ds. WHERE P CCs TO 3RD PARTY D’S CLAIM-(PROF LIKES THIS HYPO) 3RD PARTY D(CA) CLAIMS AGAINST P(CA). P CCs AGAINST 3 RD PARTY D (COMMON NUCLEUS). 1ST-GOOD UNDER 13(A) AS COMPULSORY CC. 2ND-1367(A) GOOD-COMMON NUCLEUS AND 1367(B) GOOD B/C 1367(B) DOES NOT APPLY TO CCs NOTE-THE DRAFTERS OF 1367(B) AFFIRMED THT CCs WERE NOT BANNED BY 1367(B). 2) THIRD PARTY D CCs AGAINST ORIGINAL P-BEFORE A 3RD PARTY D CAN CC AGAINST THE ORIGINAL P, THE P MUST HAVE CLAIMED AGAINST THE 3 RD PARTY D FIRST. 3) ORIGINAL P CLAIMS AGAINST THIRD PARTY D-THE ORIGINAL P MAY ASSERT ANY CLAIM AGAINST THE 3RD PARTY D ARISING OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER OF THE P’S CLAIM AGAINST THE 3RD PARTY P. EX. WHERE 1367(B) WOULD BAR CLAIM BY P AGAINST 3 RD PARTY D. ORIGINAL P(IW) SUES 3RD PARTY D(IW) ON CLAIM WHICH IS T/O. 1ST-GOOD UNDER RULE 14 2ND-GOOD UNDER 1367(A) COMMON NUCLEUS FAILS UNDER 1367(B) B/C THIS WAS A CLAIM BROUGHT BY THE P. NO DOC EXISTS. 4) 2 STEP APPROACH   FIRST STEP-RULE 14-IS THE ADDITION OF THE 3RD PARTY GOOD UNDER RULE 14 SECOND STEP-IS THE ADDITION GOOD UNDER SMJ EITHER 1331, 1332, OR 1367(A) COMMON NUCLEUS TEST.

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EX. P(VA) SUES D(IW). 3RD PARTY P/D(IW) IMPLEADS 3RD PARTY D(IW). 1ST-GOOD UNDER RULE 14 2ND-GOOD UNDER 1367(A) B/C COMMON NUCLEUS AND 1367(B) DOES NOT KNOCK IT OUT B/C 1367(B) ONLY APPLIES TO CLAIMS BY Ps. (THIS MEANS ORIGINAL Ps ONLY) 5) EXPANSION OF RULE 14-IN NOLAND B. GRAVER TANK (1962) THE APP CT ALLOWED THE 3RD PARTY P TO RECOVER ON HIS INDEMITY CLAIM AGAINST THE 3RD PARTY D AND ALSO ON A SEPARATE CLAIM INVOLVING PROFITS AGAINST THE 3RD PARTY D. 6) RULE 14 AND RULE 18-MANY CTS ALLOW THE 3RD PARTY P TO BRING ADDITIONAL CLAIMS AGAINST THE 3RD PARTY D WHEN THEY ARE JOINED UNDER RULE 18 AND MEET THE INDEPENDENT SMJ REQUIREMENTS G. INTERPLEADER1. INTRO-INTERPLEADER IS A DEVICE DESIGNED TO ENABLE A PARTY WHO MIGHT BE EXPOSED TO MULTIPLE CLAIMS TO MONEY OR PROPERTY UNDER HER CONTROL TO SETTLE THE CONTROVERSY IN A SINGLE PROCEEDING. RATIONALE FOR INTERPLEADER (1) AVOID MULTIPLE LITIGATION (2) AVOID DOUBLE LIABILITY ON P (3) AVOID A RUSH TO JUDGMENT TO USE UP FUNDS 2 STAGES IN INTERPLEADER  STAGE 1-HERE THE CT DETERMINES IF INTERPLEADER IS PROPER. IF IT IS PROPER, THE STAKEHOLDER DEPOSITS THE MONEY IN THE CT AND IS ALLOWED TO W/DRAW FROM THE CASE AND THE CLAIMANTS ARE ENJOINED FROM TAKING ANY FURTHER PROCEEDINGS. (RULE 22 DOES NOT REQUIRE MONEY DEPOSIT.) STAGE 2-THE CLAIMANTS ARGUE FOR THEIR SHARE OF THE MONEY.



2.

COMMON LAW REQUIREMENTS-AT C/L INTERPLEADER REQUIRED 4 THINGS: (1) SAME DEBT OR DUTY IS CLAIMED BY ALL CLAIMANTS (2) ALL CLAIMS DERIVE FROM A COMMON SOURCE (3) THE ONE SEEKING RELIEF MUST NOT CLAIM ANY INTEREST IN THE SUBJECT (4) HE MUST HAVE INCURRED NO INDEPENDENT LIABILITY TO EITHER OF THE CLAIMANT. HANCOCK OIL V. INDEPENDENT REJECTED INTERPLEADER B/C THE P WAS A TENANT WHO THE CT SAID OWED AN INDEPENDENT LIABILITY TO HIS LANDLORD (A CLAIMANT). 1) ABROGATED-NO LONGER NECESSARY TO HAVE COMMON ORIGIN 2) CLAIMS NO LONGER MUST BE IDENTICAL

3.

DEFINITIONS A) STAKEHOLDER-THE PERSON BRINGING THE INTERPLEADER ACTION B) CLAIMANTS-THE PARTIES CLAIMING AN INTEREST IN THE STAKE

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C) NATURE OF INTERPLEADER-C/L-THIS WAS WHERE THE P WAS HIMSELF A CLAIMANT DIRECTLY OR BY DENYING THE VALIDITY OF CLAIMS REQUIRED PROOF OF DOUBLE VEXATION AND ANOTHER EQUITABLE BASIS FOR INTERPLEADER D) STRICT INTERPLEADER- C/L-THE P WAS A SIDINTERESTED STAKEHOLDER REQUIRED PROOF OF ONLY DOUBLE VEXATION 4. GENERAL REQUIREMENTS-IN ORDER FOR INTERPLEADER TO BE PROPERLY BEFORE THE CT THERE MUST BE PJ OVER THE CLAIMANTS AS WELL AS SMJ. NEW YORK LIFE INS. V. DUNLEVY-HELD THAT INTERPLEADER ACTION WAS NOT BINDING ON THE D B/C SHE SHE WAS NOT SUBJECT TO PJ OF THE RENDERING CT. (NOW CHANGED) 5. FED RULE 22 INTERPLEADER IN FED CT WE MAY USE EITHER RULE 22 OR STATUTORY §1335 TO MEET INTERPLEADER REQUIREMENTS. 22(1) PERSONS HAVING CLAIMS AGAINST THE P MAY BE JOINED AS Ds AND REQUIRED TO INTERPLEAD WHEN THEIR CLAIMS ARE SUCH THAT THE P ―IS OR MAY BE EXPOSED TO DOUBLE OR MULTIPLE LIABILTY.‖ IT IS NOT GROUND FOR OBJECTION TO THE JOINDER THAT THE CLAIMS OF THE SEVERAL CLAIMANTS OR TITLES DO NOT HAVE A COMMON ORIGIN OR ARE NOT IDENTICAL BUT ARE ADVERSE TO AND INDEPENDENT OF ONE ANOTHER, OR THAT THE P AVERS THAT THE P IS NOT LIABLE IN WHOLE OR PART TO ANY OR ALL OF THE CLAIMANTS. REQUIREMENTS (1) P IS OR MAY BE EXPOSED TO DOUBLE LIABILITY (2) PJ DETERMINED BY THE 14TH AMEND (3) SMJ-MUST BE COMPLETE DIVERSITY B/T P AND D (AMT. IN CONTROVERSY MUST BE > $75,000.) (4) VENUE MUST BE PROPER (5) RULE 22 DOES NOT REQUIRE STAKEHOLDER TO DEPOSIT $ 6. STATUTORY INTERPLEADER ACT §1335 §1335(A)-THE DIST CT SHALL HAVE ORIGINAL JURIS OF INTERPLEADER ACTIONS OF EQUAL TO OR MORE THAN $500 IF (1) 2 OR MORE ADVERSE CLAIMANTS ARE DIVERSE-THEY ARE CLAIMING OR MAY CLAIM TO BE ENTITLED TO ASSET AND (2) IF THE P HAS PAID THE DISPUTED MONEY INTO THE CT MIN DIVERSITY-NOTICE ALL §1335 REQUIRES IS MIN DIVERSITY B/T 2 CLAIMANTS §1397-VENUE-ANY CIVIL ACTION OF INTERPLEADER OR IN THE NATURE OF INTERPLEADER UNDER §1335 OF THIS TITLE MAY BE BROUGHT IN THE JUDICIAL DIST IN WHICH ONE OR MORE OF THE CLAIMANTS RESIDE.

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§2361-PJ/NATIONWIDE SERVICE OF PROCESS-ANY INTERPLEADER ACTION UNDER §1335. A DIST CT MAY EXERCISE NATIONWIDE SERVICE OF PROCESS. 7. CHOICE OF LAW IN INTERPLEADER ACTIONS-A FED CT MUST APPLY THE CHOICE OF LAW RULES OF THE STATE IN WHICH IT SITS. MASS TORT CASES PAN AM V. REVERE (1960)-THE CT ALLOWED THE INTERPLEADER ACT TO ENJOIN THE BRINGING OF STATE SUITS UNTIL THE INTERPLEADER WAS DECIDED IN A MASS TORT CASE. STATE FARM V. TASHIRE (1967)-USSC REJECTED PAN AM’S HOLDING AND SAID THAT THE FED INTERPLEADER WAS NOT INTENDED TO BE A BILL OF PEACE USED TO ENJOIN OTHER STATE SUITS UNRELATED TO THE INTERPLEADER ACTION. H. INTERVENTION (RULE 24) 1. DEFINITION-THIS IS A STATUTORY DEVICE WHEREBY A PERSON WHO IS NOT ALREADY A PARTY TO A LAWSUIT MAY ENTER THE SUIT UNDER INTERVENTION B/C THE LAWSUITS RESULT MAY AFFECT THEM. RATIONALE FOR INTERVENTION (1) JUDICIAL ECONOMY (2) PROTECT RIGHT OF INTERVENOR (3) UNIFORMITY OF RESULTS 2. EARLY VIEW ON INTERVENTION A) COMMON LAW-INTERVENTION WAS NOT ALLOWED ANYWHERE EXCEPT ECCLESIASTICAL CTS B) TRADITIONAL RULE-A PERSON MAY INTERVENE ONLY IF HE STANDS TO DIRECTLY GAIN OR LOSE A PARTICULAR RIGHT OR INTEREST BY LEGAL ACTION OF THE JUDGMENT. (BRUNE V. MCDONALD (1938)) 3. MODERN INTERVENTION UNDER RULE 24 (LIKE RULE 19) A) 24(A) INTERVENTION OF RIGHT-UPON TIMELY APPLICATION ANYONE SHALL BE PERMITTED TO INTERVENE IN AN ACTION: (1) WHEN A STATUTE OF THE U.S. CONFERS AN UNCONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN THE APPLICANT CLAIMS AN INTEREST RELATING TO THE PROPERTY OR TRANSACTION WHICH IS THE SUBJECT OF THE ACTION AND THE APPLICANT IS SO SITUATED THAT THE DISPOSITION OF THE ACTION MAY AS A PRACTICAL MATTER IMPAIR OR IMPEDE THE APPLICANT’S ABILITY TO PROTECT THAT INTERST, UNLESS THE APPLICANT’S INTEREST IS ADEQUATELY REPRESENTED BY EXISTING PARTIES.  HURDLE #1-THE INTEREST BALANCING TEST-IN CONSIDERING WHETHER THE APPLICANT’S INTERST WARRANTS INTERVENTION, WE MUST BALANCE THE POLICY OF ACHIEVING JUDICIAL ECONOMY W/ THE DESIRE TO PREVENT LAWSUITS FROM BECOMING TOO COMPLEX.

8.

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

HURDLE #2-IMPAIR OR IMPEDE-A PERSON MAY NOT INTERVENE UNLESS THE DISPOSITION OF THE ACTION WILL IMPAIR OR IMPEDE HIS ABILITY TO PROTECT HIS INTEREST. STARE DECISIS-THE APP CT IN ATLANTIS HELD THAT THE THREAT OF BINDING STARE DECISIS IF A DECISION IS REACHED BY THE CT W/O THE INTERVENOR’S PRESENCE MAY BE ENOUGH TO MEET THE IMPAIR OR IMPEDE REQUIREMENT.



HURDLE #3-ADEQUATE REPRESENTATION-A PERSON MAY NOT INTERVENE IF HIS INTERESTS ARE ALREADY ADEQUATELY REPRESENTED BY EXISTING PARTIES. **BURDEN SHIFTS TO D** THE D MUST PROVE THAT THE PARTY SEEKING TO INTERVENE IS ADEQUATELY REPRESENTED. EX. IN SMUCK V. HOBSON (1969) THE APP CT FOUND THAT D HAD FAILED TO SHOW THAT THE Ps WERE ADEQUATELY REPRESENTED BY THE D’S DECISION NOT TO FILE AN APPEAL. OTHER TYPICAL REASONS FOR FINDING INADEQUATE REPRESENTATION-(1) NO REPRESENTATION AT ALL (2) THE APPLICANT AND THE ATTORNEY ARE AT ODDS (3) COLLUSION B/T THE OPPOSING PARTIES. MOTIVE IS NOT ENOUGH. A PARTY IS NOT INADEQUATELY REPRESENTED SIMPLY B/C HE HAS A DIFFERENT MOTIVE THAT AN EXISTING PARTY. (AMERICAN PETROLEUM INSTITUTE)



HURDLE #4-TIMELY–THE APPLICATION MUST BE TIMELY. INTERVENTION IS RARELY ALLOWED AFTER A JUDGMENT HAS BEEN MADE B/C OF THE FEAR THAT IT PREJUDICES PARTIES RIGHTS AND INTERFERES W/ ORDERLY PROCESS OF THE CT.

B. PERMISSIVE INTERVENTION 24(B)-UPON TIMELY APPLICATION ANYONE MAY BE PERMITTED TO INTERVENE IN AN ACTION: (1) WHEN A STATUTE OF THE C.S. CONFERS AN UNCONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN AN APPLICANT’S CLAIM OR DEFENSE AND THE MAIN ACTION HAVE A COMMON QUESTION OF LAW OR FACT IN COMMON  DISCRETION-IN EXERCISING ITS DISCRETION, THE CT SHALL CONSIDER WHETHER THE INTERVENTION WILL UNDULY DELAY OR PREJUDICE THE ADJUDICATION OF THE RIGHTS OF THE ORIGINAL PARTIES C. WHEN TO USE 24(B)-IF YOU CANNOT FIND IMPAIRMENT OR IMPEDIMENT UNDER 24(A), THEN THE APPLICANT COULD TRY 24(B). THE DIFFERENCE IS IN 24(B) IS THE CT WILL EXERCISE ITS DISCRETION IN ALLOWING INTERVENTION. D. SMJ-UNDER BOTH 24(A) AND 24(B) THERE MUST BE PROPER SMJ EITHER DIRECTLY OR BY 1367. UNDER 1367(B) A CT WILL NOT HAVE JURIS OVER ATTEMPTS TO INTERVENE BY NONDIVERSE APPLICANTS. (NOTE-BEFORE 1990 24(A) HAD AUTOMATIC ANCILLARY JURIS WHILE 24(B) DID NOT.) EX. 3 CAR ACCIDENT INVOLVING P, P2 AND D. ORIGINAL P(NJ) SUES ORIGINAL D(MD). P2(MD) WANTS TO INTERVENE UNDER 24.

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1ST-HARD TO FIND IMPAIRMENT UNDER 24(A) SO PROBABLY NOT GOOD HERE. 2ND-MAYBE POSSIBLE UNDER 24(B) B/C THERE IS A COMMON QUESTION OF LAW OR FACT. PROBLEM SJM §1367(A)-UNDER 1367(A) THE INTERVENTION WOULD BE GOOD B/C IT MEETS THE COMMON NUCLEUS OF OPERATIVE FACTS TESTS, BUT -§1367(B) FAILS B/C IT DOES NOT ALLOW SUPP JURIS OVER CLAIMS BY NONDIVERSE Ps SEEKING TO INTERVENE BY RULE 24. VI. ASCERTAINING THE APPLICABLE LAW 1. PROBLEM-ISSUES ARISE WHERE WE HAVE 2 DIVERSE PARTIES WHO ARE IN FED CT UNDER DIVERSITY JURIS. WHAT LAW SHOULD THE FED CT APPLY TO SETTLE THEIR DISPUTE? 2. THE SOURCE OF CONFUSION-RULES OF DECISION ACT (RDA)-THIS ACT PROVIDED THAT IN FED CTS: THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE CONSTITUTION OR TREATIES OF THE U.S. OR ACTS OF CONGRESS OTHERWISE REQUIRE OR PROVIDE SHALL BE REGARDED AS RULES OF DECISION IN CIVIL ACTIONS IN THE CTS OF THE U.S. IN CASES WHERE THEY APPLY. 3. THE FIRST INTERPRETATION OF THE RDA-SWIFT V. TYSON (1842)-IN SWIFT, THE USSC INTERPRETED THE RDA’S ―THE LAWS OF THE SEVERAL STATES‖ TO MEAN (1) STATE STATUTES AND (2) LOCAL USAGES NOT THE STATES CASE LAW CASE LAW, IT WAS ARGUED, WAS ONLY EVIDENCE OF WHAT THE LAW OUGHT TO BE. RATIONALE AND RESULT OF SWIFT DECISION (1) FED COMMON LAW-THE CTS BELIEVED THAT THERE WAS A FED COMMON LAW WHICH WAS AVAILABLE TO FED CT JUDGES BY LOOKING AT ALL AVAILABLE AUTHORITIES. (2) UNIFORMITY-THE FED GOV’T WANTED GREATER UNIFORMITY IN B/T STATES TO ENCOURAGE INTERSTATE COMMERCE, ETC. 4. OVERRULING SWIFT – ERIE V. TOMPKINS (1938)-THIS USSC CASE OVERRULED SWIFT BASED ON SEVERAL POLICY RATIONALES. (1) NO UNIFORMITY-SWIFT HAD FAILED TO CREATE UNIFORMITY B/C JUDGES HAD TOO MUCH LATITUDE. (2) BAD FORUM SHOPPING-SWIFT ALLOWED CASES LIKE BLACK AND YELLOW TAXICAB TO HAPPEN. (3) DICTA-UNCONSTITUTIONAL-SWIFT VIOLATED SEPARATION OF POWERS B/C IT WAS AN UNCONSTITUTIONAL GRAB OF POWER BY THE CTS. ONLY CONGRESS COULD CONSTITUTIONALLY ADOPT SWIFT.

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NOTE: THE CT IN ERIE DID NOT SAY THE RDA WAS UNCONSTITUTIONAL, ONLY THAT SWIFT’S INTERPRETATION WAS. RULE OF ERIE-A FED CT SITTING IN DIVERSITY MUST APPLY THE STATE CASE/DECISIONAL LAW AS WELL AS STATUTES AND LOCAL USAGE. 5. EVOLVING DECISIONS-FOLLOWING ERIE DECISION, THE USSC CONSIDERED THE ISSUE OF CHOICE OF LAW SEVERAL MORE TIMES. THESE DECISIONS ARE IMPORTANT TO UNDERSTAND THE DEVELOPMENT OF THE MODERN TREATMENT. A. GUARANTY TRUST V. YORK (1945)-―YORK OUTCOME DETERMINATIVE TEST‖-THE USSC LAID DOWN THE RULE THAT A FED CT MUST APPLY THE STATE LAW IF APPLYING FED LAW WOULD PRODUCE A SIGNIFICANTLY DIFFERENT RESULT. 1) THIS CASE WAS A HUGE VICTORY FOR STATES’ INTEREST 2) UNCERTAINTY IN MEANING OF ―SIGNIFICANT‖-THE MEANING OF SIGNIFICANT LED TO A LOT OF SATELLITE LITIGATION. WHAT IS IT? 3) YORK POSED THE PROBLEM THAT EVEN A SMALL DIFFERENCE IN PROCEDURAL FED LAW COULD LEAD TO A DIFFERENT RESULT THAN IT WOULD IN STATE CT AND THEREFOR YORK DEMANDED THAT STATE LAW BE FOLLOWED IN ALMOST ALL CASES. THIS MADE THE POWER OF THE FRCP VERY UNCERTAIN. B. BYRD V. BLUE RIDGE RURAL ELECTRIC COOPERATIVE, INC. (1958)-―THE BYRD BALANCING TEST‖ THIS DECISION INVOLVED JUDGE MADE LAW ISSUE-SHOULD THE FED CT SITTING IN DIVERSITY APPLY THE STATE JUDGE MADE LAW WHICH DEMANDED TRIAL BY JUDGE OR THE FED JUDGE MADE RULE WHICH REQUIRED TRIAL BY JURY? RULE-BALANCING TEST-IN DETERMINING WHETHER TO FOLLOW STATE OF FED LAW THE CT MUST BALANCE THE STATES INTEREST (OUTCOME DETERMINAVTIVE TEST) VS. THE FED GOVERNMENT’S INTEREST. IN BYRD THE STATES INTEREST IN UNIFORMITY WAS OUTWEIGHED BY THE FED INTEREST IN UNIFORMITY AND FINDING THE RIGHT TO TRIAL BY JURY. THEREFORE, FED LAW CONTROLLED. IMPORTANCE OF BYRD-BYRD SWINGS THE PENDULUM BACK A LITTLE FROM YORK WHICH WAS A STATES INTEREST VICTORY. BYRD BASICALLY ACKNOWLEDGES THAT THE FEDS HAVE A VALUABLE INTEREST BUT DOES NOT SPECIFICALLY SAY THE FRCP IS ALWAYS GOOD. EX. IN ALLSTATE V. CHARINSKY (1960)-THE LOWER FED CT HELD THE FED CT MUST FOLLOW STATE LAW B/C THE FED INTEREST INVOLVED WAS SLIGHT WHEN COMPARED TO THE STATES INTEREST. 6. THE MODERN TESTS-HANNA V. PLUMMER (1965)-THIS CASE LAID OUT THE 2 MODERN TESTS TO BE USED IN DIFFERENT CIRCUMSTANCES.  1ST-JUDGE MADE RULES-―THE MODIFIED OUTCOME DETERMINATIVE TEST‖-THIS TEST IS TO BE USED WHEN THERE IS A CONFLICT B/T STATE AND FED JUDGE MADE RULES. TEST-THE OUTCOME DETERMINATIVE TEST MUST BE REFERENCED W/ THE TWIN AIMS OF ERIE WHICH ARE (1) TO DISCOURAGE BAD FORUM SHOPPING AND (2) AVOID INEQUITABLE ADMINISTRATION OF JUSTICE.

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PROF NOTE-WHAT ABOUT THE 3RD AIM OF ERIE. SEPARATION OF POWERS? IN CONDUCTING THIS BALANCING TEST I MUST ASK IF THE STATE RULE IS SUCH THAT AT THE TIME OF CHOOSING THE FORUM THERE WERE SUBSTANTIAL DIFFERENCES IN THE LAW WHICH WOULD BE LIKELY TO CAUSE THE P TO CHOOSE THE FED LAW OVER THE STATE LAW. IF THERE WERE SUCH REASONS AT THE TIME OF HIS SELECTION, THEN FAILURE TO ENFORCE THE STATE LAW IN FED CT WOULD ALLOW BAD FORUM SHOPPING AND INEQUITABLE ADMINISTRATION OF JUSTICE. IF APPLICATION OF JUDGE MADE FED LAW WOULD DESERVE THESE 2 POLICIES, THE DIST CT SHOULD APPLY STATE LAW. EX. IN HANNA THE CT FOUND THAT WHILE THE CHOICE OF FED OR STATE LAW WOULD HAVE A MARKED EFFECT ON THE OUTCOME. THE DIFFERENCE B/T THE 2 RULES WOULD BE SCANT IF ANY RELEVANCE TO THE CHOICE OF FORUM SPECIFICALLY THE CT SAID THE DIFFERENCE IN LAW DID NOT MOTIVATE THE P TO CHOOSE FED CT. THEREFORE, IN A CONFLICT OF JUDGE MADE RULES, THE FED RULE SHOULD CONTROL. TRIVIAL-IF P’S CHOICE OF FORUM OF DIFFERENCES IN STATE AND FED LAW ARE TRIVIAL AND THEREREFORE UNLIKELY TO HAVE AFFECTED P’S CHOICE OF FORUM, THEN FED JUDGE MADE LAW WILL PROBABLY CONTROL IN FED CTS.  2ND-FRCP AND FRAP-THE RULES ENABLING ACT (RDA) ANALYSIS-THIS TEST IS TO BE USED WHEN THERE IS A DIRECT CONFLICT B/T A FED RULE OF CIVIL PROCEDURE OR FED RULE OF APPELLATE PROCEDURE AND A STATE RULE. THIS CONFLICTS ARE NOT ERIE ISSUES AT ALL. 1ST STEP-ASK, IS THERE A CONFLICT? (SOME CTS ASK IS THE FRCP BROAD ENOUGH TO COVER THE ISSUE AT HAND-WALKER SAYS THIS DOES NOT MEAN YOU SHOULD NARROWLY CONSTRUE THE RULES) IF YES? GO TO STEP #2. EX. BURLINGTON NORTHERN V. WOODS (1987)-THE USSC FOUND A DIRECT CONFLICT B/T THE STATE RULE AND FED RULE ON DAMAGE CALCULATION. GO TO STEP #2. IN NO? BOTH THE FRCP AND STATE RULE WILL BE EFFECTIVE TOGETHER OR POSSIBLY THE CT MIGHT DETERMINE THAT THE FED RULE IS NOT BROAD ENOUGH TO COVER THE ISSUE AND THEREFORE ONLY STATE LAW CONTROLS. EX. WALKER V. ARMCO (1980)-THE USSC HELD THAT THERE WAS NO CONFLICT B/T THE FED RULE AND STATE RULE B/C THE FED RULE WAS NOT BROAD ENOUGH TO COVER THE ISSUE AND THEREFORE THE HANNA ANALYSIS DID NOT APPLY AND STATE LAW CONTROLLED. 2ND STEP-ANALYZE THE FRCP UNDER THIS 2 PRONG ANALYSIS PRONG #1-DOES THE FRCP MEET THE REA §2072? TEST OF REA-DOES THE RULE REALLY REGULATE PROCEDURE? (SIBBACH V. WILSON) AND THE RULE CANNOT ABRIDGE, ENLARGE OR MODIFY ANY SUBSTANTIVE RIGHTS. NOTE: NO FRCP HAS EVER BEEN FOUND TO VIOLATE THE REA. IT IS PRIMA FACIE EVIDENCE THAT THE FRCP IS GOOD.

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PRONG #2-IS THE RULE CONSTITUTIONAL?-ARTICLE III GIVES CONGRESS THE POWER TO CREATE CTS AND RULES BY THE NECESSARY AND PROPER CLAUSE. 7. REVIEW *FRCP OR FRAP OR FED STATUTE----HANNA ANALYSIS JUDGE MADE LAW----MODIFIED ERIE/BYRD AS IN HANNA. 8. DETERMINING WHICH STATES LAW GOVERNS-ONCE IT IS DETERMINED THAT STATE LAW WILL CONTROL OVER FED LAW, THE DIST CT MUST DECIDE WHICH STATE LAW WILL THE CT FOLLOW. A. KLAXON DOCTRINE-KLAXON V. STENTOR ELECTRIC (1941) THE USSC HELD THAT THE DIST CT MUST APPLY THE CONFLICT OF LAWS RULES OF THE STATES IN WHICH THEY SIT. 1) TRANSFER UNDER 1404 BY D-VAN DUSEN V. BARRACK (1964) THE TRANSFEREE CT MUST APPLY THE CHOICE OF LAW RULES OF THE TRANSFEROR CT. 2) TRANSFER BY P-FERRENS V. JOHN DEERE HELD THE TRANSFEREE CT MUST APPLY THE CHOICE OF LAW RULES OF THE TRANSFEROR CT. (CARSON: TRANSFEREE CT CONTROLLED.) A) BAD RESULT IN FERRENS IS THAT IT ALLOWS HORENDOUS FORUM SHOPPING BY THE P. 9. DETERMINING WHAT THE STATES LAW IS-ONCE THE DIST CT DETERMINES ABOVE WHAT PARTICULAR STATES LAW IT WILL FOLLOW IT MUST THEN DERTERMINE WHAT DOES THAT STATE LAW SAY? A. FOLLOW STATES SC ANALYSIS-GENERAL RULE IS THAT THE FED DIST CT WILL TRY TO DECIDE THE CASE JUST LIKE THAT STATES SC WOULD DECIDE IT. B. STATE STARE DECISIS AND NEW TRENDS-GENERALLY THE DIST CT WILL APPLY THE LAW AS THE STATES SC WOULD BY STARE DECISIS, UNLESS THE DIST CT BELIEVED THE STATE SCs WOULD, IF IT WAS DECIDING THIS CASE, RULE OTHERWISE BASED ON NEW TRENDS OR OUTDATED RATIONALES AND POLICIES. EX. MASON V. AMERICAN EMERY WHEEL WORKS (1957)-THE DIST CT REJECTED THE MISSISSIPI STATE LAW STARE DECISIS AND RULED AS IT EXPECTED THE MISS SC WOULD RULE BASED ON NEW TORT TRENDS. C. FORECASTING STATE LAW-THE DIST CT IN DETERMINING WHAT THE STATE SC WOULD HOLD WILL CONSIDER (1) STATE DECISIONAL LAW (2) ANALOGOUS CASES (3) DICTA (4) LOWER CT DECISIONS (5) TREATISES, RESTATEMENTS, ETC. *NOTE-PROF SAYS THE CT WILL ONLY CONSIDER THESE SOURCES IF THEY CONCLUDE THE STATE SC WOULD CONSIDER THEM. EX. USING THE FACTORS ABOVE THE DIST CT APPLYING OHIO LAW IN MCKENNA V. ORTHO (1980) HELD THAT THE OHIO SC WOULD EXTEND ITS HOLDING TO ADOPT NEW TRENDS IN THE LAW. EX. FACTORS V. PRO ARTS (1981)-THE DIST CT IN N.Y. WAS APPLYING TENN STATE LAW IN AN ELVIS CASE. THE DIST CT FOLLOWED THE 6 TH CIRCUIT, WHICH EMBRACED TENN, B/C IT HAD ADDRESSED THE ISSUE AND THE STATE CT HAD NOT. D. CERTIFICATION-THIS IS A PROCEDURE ALLOWED IN SOME STATES WHEREBY THE FED CTS MAY PETITION A STATES HIGHEST CT TO RULE ON AN ISSUE OF STATE LAW UPON WHICH THE STATES HIGHEST CT HAS NOT SPOKEN.

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10. FED LAW IN STATE CTS-THESE ISSUES ARISE B/C STATE CTS OFTEN CONSTRUE AND APPLY FED LAW. A. WHEN STATE CTS CONSIDER FED LAW-B/C STATE CTS HAVE CONCURRENT JURIS W/ FED CTS (EXCEPT WHERE THE FED CTS HAVE EXCLUSIVE JURIS) THEY WILL APPLY FED LAW WHEN 1) IT IS SUED ON DIRECTLY 2) WHEN IT IS CLAIMED AS A DEFENSE 3) WHEN THERE IS A FED INTEREST INVOLVED IN AN OTHERWISE STATE CLAIM B. STATE CTS HAVE A DUTY TO ENFORCE FED LAWS-TESTA V. KATT (1947)-THE USSC HELD THAT STATE CTS HAVE A DUTY UNDER THE SUPREMACY CLAUSE TO ENFORCE FEDERALLY CREATED LAWS. 1) MAJORITY VIEW-―INVERSE BYRD ANALYSIS‖-DICE V. AKRON (1952)-IN APPLYING FED STATUTES THE STATE CTS MUST ADHERE TO FED LAW WHERE THE RIGHTS ARE A BASIC AND FUNDAMENTAL FEATURE OF OUR SYSTEM OF JURISPRUDENCE. A) MINORITY CTS-ALLOW THE STATE CTS TO FOLLOW THEIR OWN PROCEDURE WHERE THE RIGHT ACCORDED BY THE FED LAW IS A MERE LOCAL RULE OF PROCEDURE. EX. IN DICE THE SC HELD THAT THE RIGHT TO TRIAL BY JURY WHICH WAS THE PROCESS APPLIED TO THIS PARTICULAR FED STATUTE IN FED CT WAS OF SUCH SUBSTANTIAL IMPORTANCE TO THE STATUTES RIGHTS THAT A STATE MUST FOLLOW THE FED PROCEDURE REQUIRING JURY TRIAL. VII. DISCOVERY 1. DEFINITION-DISCOVERY IS COMPOSED OF THE PROCEDURE AND DEVICES FOR OBTAINING PRETRIAL INFORMATION. STATE AND FED CTS HAVE THEIR OWN RULES CONTROLLING DISCOVERY. HOWEVER, MANY STATES HAVE ADOPTED THE FRCP’S DISCOVERY RULES. 2. COMMON TYPES OF DISCOVERY (1) DEPOSITIONS (2) INTERROGATORIES (3) PRODUCTION OF DOCUMENTS OR THINGS OR PERMISSION TO ENTER UPON LAND OR OTHER PROPERTY FOR INSPECTION AND OTHER PURPOSES. (4) REQUESTS FOR ADMISSION (5) PHYSICAL AND MENTAL EXAMINATIONS 3. PURPOSES AND RATIONALE FOR DISCOVERY(1) DISCOVERY HELPS PRESERVE RELEVANT INFORMATION WHICH MIGHT NOT BE AVAILABLE AT TRIAL. THIS MIGHT RESULT FROM WITNESSES BEING ILL OR DYING. (2) DISCOVERY HELPS ASCERTAIN AND ISOLATE THE ISSUES WHICH ARE ACTUALLY IN CONTROVERSY B/T THE PARTIES. (3) DISCOVERY HELPS THE PARTIES FIND OUT WHAT TESTIMONY AND OTHER EVIDENCE IS AVAILABLE ON EACH SIDE OF THE DISPUTED FACTS.

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4. PROBLEMS WITH DISCOVERY-(1) ABUSE OF THE SOMETIMES EXPENSIVE DISCOVERY DEVICES BY WEALTHY LITIGANTS (2) JUDICIAL MONITORING OF DISCOVERY IS EXPENSIVE (3) MAY BE USED FOR HARASSMENT. *PROF NOTE-RECENT STUDIES SUGGEST THAT DISCOVERY ABUSE IS NOT AS BIG OF A PROBLEM OF PREVALENT AS PREVIOUSLY THOUGHT. *5. PRIOR TO 1938 DISCOVERY-THERE WERE A VARIETY OF PLEADING STEPS USED TO NARROW THE ISSUES. 6. GENERAL SCOPE AND LIMITS ON DISCOVERY A. SCOPE OF DISCOVERY 1) COMMON LAW-ALLOWED PARTY TO USE DISCOVERY ONLY TO INQUIRE WHAT WAS HIS CLAIM OR DEFENSE. 2) EARLY CASE LAW DEVELOPMENTS-IN LINE WITH THE LIBERALIZATION OF DISCOVERY RULES CTS LIKE THE ONE IN KELLY V. NATIONWIDE (1963)-OHIO CASE IN WHICH THE CT HELD THAT INTERROGATORIES, AND MOST DISCOVERY IN GENERAL, WERE PROPER WHEN THEY WERE (1) RELEVANT TO AN ISSUE IN THE ACTION AS DISTINGUISHED FROM MERELY BEING RELEVANT TO AN ISSUE IN THE PLEADING OF THE INQUIRER (2) THEY DO NOT SEEK PRIVILGED INFORMATION (3) THE INFORMATION SOUGHT WOULD ALSO BE ADMISSIBLE AS EVIDENCE IN THE ACTION OTHER LIMITATIONS-INFO OBTAINED AFTER INCIDENT IS EXEMPT. 3) NEW RULE 26(B)-GENERALLY HOLDS PARTIES MAY OBTAIN ANY DISCOVERY WHICH IS: (1) NOT PRIVILEGED (2) WHICH IS RELEVANT TO THE SUBJECT MATTER INVOLVED IN THE PENDING ACTION (3) AND THE INFO NEED NOT BE ADMISSIBLE AT TRIAL IF THE INFO SOUGHT IS REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE. B. LIMITS ON DISCOVERY 1) NEW RULE 26 IS LIMITED BY 26(B)(2) WHICH SAYS(A) BY ORDER OR LOCAL RULE THE CT MAY ALTER THE LIMITS IN THE RULES ON THE NUMBER OF DEPOSITIONS OR INTERROGATORIES (B) THE CT MAY LIMIT LENGTH OF DEPOSITIONS AND THE NUMBER OF REQUESTS FOR ADMISSION (C) THE CT MAY IMPOSE ANY LIMITS ON THE FREQUENCY AND USE OF THESE METHODS IF IT DETERMINES THAT (1) THE DISCOVERY SOUGHT IS DUPLICATIVE OR IS OBTAINABLE FROM ANOTHER CHEAPER, LESS BURDENSOME SOURCE, OR

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(2) THE PARTY SEEKING DISCOVERY HAS ALREADY HAD AMPLE TIME AND OPPORTUNITY BY DISCOVERY TO OBTAIN THE INFO, OR (3) THE BURDEN OF THE PROPOSED DISCOVERY-LIKELY BENEFIT BALANCING FACTORS FOR (3) I. TAKE INTO ACCOUNT THE NEEDS OF THE CASE. II. THE AMT IN CONTROVERSY. III. THE PARTIES’ RESOURCES. IV. THE IMPORTANCE OF THE ISSUES AT STAKE. V. THE IMPORTANCE OF THE NEW DISCOVERY IN RESOLVING THE ISSUES. DISCRETIONARY REVIEW-THE DIST CT MAY ACT UPON ITS OWN INITIATIVE AFTER REASONABLE NOTICE OR PURSUANT TO A MOTION UNDER SUBSECTION 26(c). (SEE 26(c) DISCUSSION BELOW.) * APP CT REVIEW-THE TRIAL CT HAS BROAD DISCRETION OVER DISCOVERY AND THE APP CTS WILL ONLY CHANGE THE ORDER IS THEY FIND AN ABUSE OF DISCRETION BY DIST CT. 2. PRIVILEGE-LINDBERGER V. GM – DIST CT (1972)-DISCOVERY IS NOT ALLOWED ON PRIVILEGED INFO BUT INFO IS ONLY PRIVILEGED IF IT FALLS W/I THE TRADITIONAL MEANING PER EVIDENCE RULES. I.E. PRIVILEGE DOES NOT ENCOMPASS INADMISSIBLE EVIDENCE AS GM TRIED TO ARGUE. ONCE INFO IS OUT, IT IS NO LONGER PRIVILEGED. A) RULE 26(b)(1)-LIMITS DISCOVERY TO MATTERS NOT PRIVILEGED. THIS GIVES THE PERSON THE RIGHT TO REFUSE TO DISCLOSE INFO THAT IS PRIVILEGED, GIVES HIM A RIGHT TO KEEP OTHERS FROM DISCLOSING IT, AND MAY GIVE A PERSON A RIGHT TO REFUSE TO BECOME A WITNESS. 1) PERSON IS POTENTIAL OR IS CLIENT 2) THE PERSON HEARING IT IS AN ATTORNEY OR HIS SUBORDINATE AND HEARS IT ACTING AS SO 3) RELATES TO FACTS DISCLOSED IN PRIVATE ABOUT THE LAW AND NOT FOR COMMITTING A CRIME 4) IT HAS NOT BEEN WAIVED B) TYPES OF PRIVILEGES (1) ATTORNEY-CLIENT PRIVILEGE (CTS CONSTRUE THIS PRIVILEGE VERY NARROWLY AND RESOLVE DOUBTFULL CASES AGAINST A FINDING OF PRIVILEGE) (2) DOCTOR-PATIENT (3) HUSBAND-WIFE (5) PRIEST-PENTINENT (6) 5TH AMEND C) PRIVILEGE IN FED CTS

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DIVERSITY CASES-THE FED CT MUST APPLY THE STATE IN WHICH IT SITS PRIVILEGE RULES FED QUESTION CASES-THE FED CT MAY APPLY THE FED RULES ON PRIVILEGE. D) WAIVER OF PRIVILEGE-ONCE A PROTECTED COMMUNICATION IS VOLUNTARILY DISCLOSED TO 3RD PARTIES, THE PRIVILEGE IS WAIVED AS TO ALL COMMUNICATIONS INVOLVING THAT SUBJECT MATTER. E) CORPORATIONS AND PRIVILEGE-(UPJOHN V. U.S. (1981) USSC)-A COMMUNICATION WILL BE FOUND PRIVILEGED IN CORPORATE CONTEXT IF 1) THE COMMUNICATION MUST BE IN CONTEMPLATION OF LEGAL SERVICES 2) IT MUST RELATE TO LEGAL SERVICES 3) THE INFO GIVER MUST BE AN EMPLOYEE, AGENT OR INDEPENDENT CONTRACTOR W/ A SIGNIFICANT RELATIONSHIP TO THE CORP AND THE MATTER IN DISPUTE 4) THE COMMUNICATION MUST BE MADE IN CONFIDENCE 5) THE PRIVILEGE MAY BE ASSERTED BY THE CORP OR BY THE INFO GIVER 3. PRE-SUIT DISCOVERY-PRE-SUIT DISCOVERY IS NOT ALLOWED TO DETERMINE IF A C/A EXISTS (SIMPSON V. TRAUM (1978) N.Y. STATE CT) EXCEPTION-RULE 27 ALLOWS PRE-SUIT DISCOVERY (DEPOSITION) FOR THE PURPOSES OF A CONTEMPLATED ACTION WHERE THERE IS SOME CONVINCING REASON THAT THE SUIT MAY NOT BE CURRENTLY BROUGHT. THE RULE DOES NOT ALLOW USE TO DETERMINE IF C/A EXISTS. 4. INSURANCE-NEW RULE 26(A)(1)(D) REQUIRES AUTOMATIC DISCLSURE (PER RULE 34 PRODUCTION OF DOCUMENTS) OF ANY INSURANCE AGREEMENT UNDER WHICH ANY PERSON CARRYING ON AN INSURANCE BUSINESS MAY BE LIABLE TO SATISFY ALL OR PART OF THE JUDGMENT WHICH MAY RENDERED OR TO INDEMNIFY OR REIMBURSE FOR THE JUDGMENT. RATIONALE-ALLOWING THIS DISCOVERY MIGHT ENCOURAGE SETTLEMENT B/C THE PARTIES WILL KNOW WHAT IS AVAILABLE. A) INSURANCE BUSINESS-THE PARTY ON THE OTHER SIDE OF THE AGREEMENT MUST BE AN INSURANCE COMPANY OR BUSINESS. EXCEPTION-ROY V. MOINTOR (1972)-N.H. STATE CT ALLOWED DISCOVERY OF AN INDEMNITY AGREEMENT B/T 2 INDIVIDUALS (NOT INSURANCE COMPANY) WHEN THE PRIVATE INDEMNITY AGREEMENT WAS DEEMED RELEVANT BY 26(B). B) THE OLD RULE-PRIVACY CONCERN-DID NOT ALLOW INSURANCE TO BE REVEALED B/C OF THE FEAR THAT ONCE THAT WAS REVEALED THE REST OF THE PARTIES FINANCIAL BACKGROUND WOULD BE OPEN TO SCRUTINY. (PROF NOTED THIS WAS THE CONCERN PRE-1970.) 5) FINANCIAL STATUS-CTS ARE SPLIT OVER WHETHER A PARTY MAY USE DISCOVERY TO FIND OUT THE OTHER PARTIES NET WORTH, ETC.

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A) GENERAL RULE-NET WORTH MAY ONLY BE DISCOVERED IF IT IS RELEVANT TO THE SUBJECT MATTER PER 26(B). (1) PUNITIVE DAMAGES-NET WORTH IS RELEVANT IN CALCULATING PUNITIVE DAMAGES. (RENSHAW V. RAVERT (1979))-HOWEVER, TIMING HERE IS OFF B/C PUNIS CAN ONLY BE DETERMINED AT END OF TRIAL. THE CT OFTEN POSTPONES DISCOVERY ON NET WORTH UNTIL AFTER THE JUDGMENT IS IN BY ITS POWER UNDER RULE 16(B). 6) RELEVANT TO SUBJECT MATTER-UNDER 26(B) THE DISCOVERY MUST BE RELEVANT TO THE SUBJECT MATTER. CTS HAVE FOUND THIS RELEVANCE IN A NUMBER OF UNIQUE WAYS. SALARY-CORNET V. SUPERIOR CT (1972)-CT ALLOWED DISCOVERY OF D’S SALARY B/C OF THE EFFECT IT MIGHT HAVE ON THE JURY. SEE NET WORTH AND INSURANCE. 7. DISCOVERY ASKING QUESTIONS INVOLVING THE APPLICATION OF LAW TO FACTOBJECTIONABLE? DEPOSITIONS (RULE 30)-YES-DEPOSITIONS MAY NOT ASK THE PERSON A QUESTION INVOLVING A QUESTION INVOLVING THE APPLICATION OF LAW TO FACT B/C IT IS CONSIDERED INAPPROPRIATE TO ASK A LAYMAN SUCH A QUESTION. INSTEAD THE QUESTION MAY ONLY INVOLVE MATTERS OF FACT. ZINSKY V. NEW YORK CENT. (1964) N.D. OHIO-DEMONSTRATES THAT DEPOSITIONS MAY NOT QUESTION CALLING FOR APPLICATION OF LAW TO FACT. B/C THE 1970 AMENDS LET OUT RULE 30, THEY DID NOT TAKE EFFECT ON DEPOSITIONS. INTERROGATORIES (RULE 33)-NO-STARTING IN 1970 RULE 33(B) BEGAN TO ALLOW THESE TYPES OF QUESTIONS. REQUESTS FOR ADMISSION (RULE 36)-NO-AGAIN IN 1970 THE ALLOWABLE QUESTION EXPANDED FROM FACTS ONLY TO THE APPLICATION OF LAW TO FACTS. 8. PROTECTIVE ORDERS 26(C)-A PARTY OR PERSON FROM WHO DISCOVERY IS SOUGHT MAY, UPON FIRST SHOWING THEY HAVE IN GOOD FAITH TRIED TO RESOLVE THE DISPUTE, MOTION THE CT FOR GOOD CAUSE SHOWN TO ISSUE A PROTECTIVE ORDER WHICH JUSTICE REQUIRES TO PROTECT A PARTY OR PERSON FROM ANNOYANCE, EMBARRASSMENT, OPPRESSION, OR UNDUE BURDEN OR EXPENSE INCLUDING (1) DISCOVERY NOT BE HAD (2) THAT IT BE HAD ONLY ON CERTAIN TERMS OR PLACE, ETC. (3) THAT IT MUST BE HAD BY ALTERNATE MEANS (4) THAT IT BE LIMITED IN CONTENT (5) THAT IT BE A CLOSED SESSION (6) THAT A DEPO BE SEALED (7) THAT TRADE SECRETS, ETC., STAY SECRET (8) THAT THE PARTIES SIMULTANEOUSLY FILE THE INFO IN THE CT

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A) GOOD CAUSE SHOWN-CTS REQUIRE THAT THE MOVING PARTY SHOW W/ PARTICULAR FACTS THAT DISCLOSURE WILL WORK A CLEARLY DEFINED SERIOUS HARDSHIP. EXAMPLES OF CASES WHERE GOOD CAUSE SHOWN -CT WOULD NOT ALLOW DIGGING UP DEAD -CT WOULD NOT ALLOW RELEASE OF NAMES OF PEOPLE WHO HAD ABORTIONS -CT WOULD NOT ALLOW RELEASE OF HIV PATIENTS B) GAG ORDERS-NO 1ST AMEND LIMITATIONS-(SEATTLE TIMES V. RHINEHART (1984))-THE USSC HELD THAT IN ISSUING PROTECTIVE ORDERS UNDER 26(C) THE DIST CT IS NOT LIMITED BY THE 1ST AMEND RIGHT TO FREE SPEECH B/C THE GOVERNMENT’S INTEREST IN PROTECTING AGAINST DISCOVERY ABUSE WAS GREAT. THEREFORE, IN THAT CASE THE CT COULD LEGALLY ORDER THAT NAMES NOT BE PUBLISHED IN A PAPER. C) MODIFICATION OF PROTECTIVE ORDER-IN ORDER TO GET A CT TO MODIFY ITS PROTECTIVE ORDER, THE PERSON MUST DEMONSTRATE SOME EXTRAORDINARY CIRCUMSTANCES OR COMPELLING NEED FOR DISCLOSURE. D) SANCTIONS UNDER 37(a)(4)IF THE MOTION IS GRANTED-THE PERSON NECESSITATING (I.E. OPPOSING IT) THE MOTION OR HIS ATTY WILL HAVE TO PAY THE MOVING PARTY REASONABLE EXPENSES INCLUDING ATTYS FEES, UNLESS THE MOVANT HAD NOT TRIED IN GOOD FAITH TO RESOLVE THE ISSUE OR ORTHER CIRCUMSTANCES DEMAND NO PENALTY. IF THE MOTION IS DENIED, THE MOVANT MAY HAVE TO PAY THE OPPOSING PARTY REASONABLE EXPENSES INCURRED IN FIGHTING THE MOTION, INCLUDING ATTYS FEES, UNLESS THE CT FINDS THE MAKING OF THE MOTION WAS JUSTIFIED OR THAT OTHER CIRCUMSTANCES MAKE AN AWARD OF EXPENSES UNJUST. EX. MARRESE V. AMERICAN ACADEMY (1984)-THE FED APP CT HELD THAT THE DIST CT MUST BALANCE THE COMPETING INTERESTS AND HARDSHIPS OF THE OPPOSING PARTIES IN SEEKING DISCOVERY OF D’S MEMBERSHIP LIST TO A PRIVATE CLUB. OTHER SOLUTIONS SUGGESTED BY THE CT: (1) IN CAMERA VIEW-ONLY LET JUDGE LOOK AT DISCOVERY TO DECIDE IF IT IS APPROPRIATE (2) REDACTED PROCEDURE-TAKE THE NAMES OF FILES AND LET PARTY SEE THEM (3) TIMING OF DISCOVERY UNDER 26(D)-SEQUENCINGCOMPLETE NON-SENSITIVE DISCOVERY FIRST 9. TIMING AND SEQUENCE OF DISCOVERY-

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A) MEET FIRST-PARTIES MAY NOT SEEK DISCOVERY BEFORE THE PARTIES HAVE MET AND CONFERRED AS UNDER SUBDIVISION (F) UNLESS THERE IS AN ALTERNATIVE AGREEMENT BY THE PARTIES OR LOCAL RULE OR ORDER B) METHODS OF DISCOVERY MAY BE USED IN ANY ORDER UNLESS THE CT BY MOTION ORDERS OTHERWISE SEE MARRESH CASE-APP CT SAID TRIAL CT COULD HAVE ORDERED P TO COMPLETE THE NONSENSITIVE DISCOVERY FIRST C. PHILOSOPHY OF NEW RULES-IN 1993 THERE WERE A SERIES OF AMENDS TO FED RULES OF CIV PRO WHICH IN PART DEMANDED AUTOMATIC DISCLOSURE OF CERTAIN INFO. THE GOAL GENERALLY IS TO COMPLY W/ FRCP 1, WHICH STRIVES FOR: (1) EFFICIENCY (2) QUICKER (3) LESS COSTLY PROF THINKS ADDITIONAL REASONS OF DEBATE INCLUDE (4) DISCLOSURE TO MEET ETHICAL RULE???(LOTS OF DEBATE) SCALIA-ETHICAL CONFLICT-HE BELIEVED THE NEW RULES AUTOMATIC DISCLOSURE REQUIREMENT WAS ETHICALLY CONFLICTING B/C IT REQUIRES THE LAWYER TO REVEAL INFO WHICH CONFLICTS W/ HIS DUTY TO REPRESENT HIS CLIENT’S INTEREST TO THE BEST OF HIS ABILITY. CONTRARY ARGUMENT-SPEED UP THE INEVITABLE-THE AUTOMATIC DISCLOSURE REQUIREMENT ONLY SPEEDS UP WHAT WOULD HAPPEN NORMALLY UNDER THE OLD RULES WHEN THE OPPOSING ATTY REQUESTS THE INFO. (5) MAKE DISPUTED EVEN MORE D. PROCEDURAL CHANGES UNDER NEW RULE 26 (1) MANDATORY DISCLOSURE W/O AWAITING DISCOVERY REQUEST (2) MEET ASAP TO DISCUSS CLAIMS, DEFENSES, AND SETTLEMENT. (4) REQUIRED DISCOVERY PLAN-MUST DEVELOP PROPOSED DISCOVERY PLAN RULE 26(A) REQUIRED DISCLOSURE-EXCEPT TO THE EXTENT OTHERWISE STIPULATED OR DIRECTED BY ORDER OR LOCAL RULE, A PARTY SHALL W/O AWAITING A DISCOVERY REQUEST, PROVIDE TO OTHER PARTIES, ETC. (1) INITIAL DISCLOSURES-EXCEPT TO THE EXTENT OTHERWISE STIPULATED OR DIRECTED BY ORDER OR LOCAL RULE (SEE SUBSECTION E), A PARTY SHALL, W/O AWAITING A DISCOVERY REQUEST, PROVIDE TO OTHER PARTIES. (A) THE NAME AND, IF KNOWN, THE ADDRESS AND TELEPHONE NUMBER OF EACH INDIVIDUAL LIKELY TO HAVE DISCOVERABLE INFO RELEVANT TO DISPUTED FACTS ALLEGED W/ PARTICULARITY IN THE PLEADINGS, IDENTIFYING THE SUBJECTS OF THE INFO.

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ANALYSIS-THIS FIRST SECTION REQUIRES THE P’S LAWYER TO PLEAD SPECIFICALLY SO THAT HE MAY HAVE THE ADVANTAGE OF THE AUTO DISCLOSURE RULE 26(F) MEETING OF PARTIES: PLANNING FOR DISCOVERY—THE PARTIES MUST, AS SOON AS PRACTICABLE AND IN ANY EVENT AT LEAST 14 DAYS BEFORE A SCHEDULING CONFERENCE IS HELD OR DUE UNDER 16(B), MEET TO DISCUSS THE NATURE OF THEIR CLAIMS AND DEFENSES, POSSIBILITIES FOR SETTLEMENT, ARRANGEMENTS FOR DISCLOSURE PER 26(A) AND TO DEVELOP A DISCOVERY PLAN. RULE 16(B) PRETRIAL CONFERENCES: SCHEDULING AND PLANNING-THE DIST JUDGE SHALL AFTER RECEIVING THE REPORT OF THE PARTIES UNDER 26(F) OR AFTER SONSULTING W/ ATTYS ENTER A SCHEDULING ORDER THAT LIMITS THE TIME (1) TO JOIN PARTIES (2) TO FILE MOTIONS (3) TO COMPLETE DISCOVERY AND TO HAVE CONFERENCES AND OTHER APPROPRIATE MATTERS. E. CASES COVERED BY NEW RULES(1) PARTIES MAY AND CT BY LOCAL RULE OR ORDER MAY OPT OUT OF RULE 26. EX. THE EASTERN DIST OF CA AND 20 OTHER FED CTS HAVE OPTED OUT OF RULE 26(A), AUTO DISCLOSURE, WHICH IS ALLOWED BY LOCAL RULE. THEY ARE DOING THIS TO SEE HOW THE NEW RULES WORK BEFORE ADOPTING THEM. (2) CASES IN SMALL CLAIMS AND PRISONER CASES ARE NOT SUBJECT TO TRADITIONAL DISCOVERY RULES. (3) FED CTS FOLLOW RULE 26 7. DEPOSITIONS (RULE 30) A. WHO MAY BE DEPOSED-RULE 30 SAYS A PARTY MAY TAKE THE DEPOSITION OF ANY PERSON W/O LEAVE OF CT. WHEN LEAVE OF CT REQUIRED(1) THE PERSON TO BE DEPOSED IS IN PRISON. (2) THROUGH (4) ARE EXCUSED BY PARTIES’ WRITTEN AGREEMENT. (3) THE DEPO WOULD RESULT IN MORE THAN ALLOWED MAXIMUM 10. NOTE-IN CONSIDERING THIS, THE CT LOOKS TO 26(B)(2) AND WEIGHS THE COSTLY BENEFIT TO DETERMINE IF MORE DEPOS SHOULD BE ALLOWED. (4) THE PERSON TO BE DEPOSED HAS ALREADY BEEN DEPOSED IN THE CASE. (5) THE PARTY TRYS TO DEPOSE BEFORE TIME LIMITS IN 26(D) WHICH IS THE MEET AND CONFER SESSION. (6) IF P FILED UNDER OLD RULE, THERE WAS A 30 DAY WAIT PERIOD AFTER COMPLAINT BEFORE DEPO COULD BE TAKEN. EXCEPTION TO (5)-IF D GAVE NOTICE OF HIS OWN DEPOS IT WAS O.K. FOR P TO DEPO. B) PROCEDURES TO SET UP DEPO

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1) UNDER THE NEW RULES THERE ARE 2 INITIAL HURDLES: (1) THERE MUST BE A MEETING UNDER 26(D) AND (F) (2) THERE MUST BE A SCHUDULING AND DISCOVERY PLAN PARTIES WAIVER-UNDER FRCP 29 THE PARTIES MAY, IN WRITING, AGREE TO TAKE DEPOS AT ANY TIME, PLACE, UPON ANY NOTICE, AND IN ANY MANNER, DESPITE THE LIMITATIONS OF THESE RULES, ONLY IF THE DEPOS WOULD INTERFERE W/ CT TIMELINES UNDER RULE 33, 34, 36 WILL CT APPROVAL BE REQUIRED. 2) NEW RULE 30(b) REQUIREMENTS A) NOTICE-PARTY TAKING DEPO MUST GIVE REASONABLE NOTICE TO PARTY. NOTICE MUST STATE TIME AND PLACE AND NAME OF PERSON. IF SUBPOENA IS TO BE USED, THE MATERIALS DESIRED SHALL BE STATED IN THE NOTICE-NEW 30(B)(1). (NOTICE MAY NOT BE ENOUGH TO COMPEL A NON-PARTY’S DEPO.) B) METHOD-THE NOTICE MUST STATE THE METHOD OF DEPO TO BE USED. NEW 30(B)(2). C) OFFICER PRESENT-DEPOS MUST BE CONDUCTED IN FRONT OF AN OFICER APPOINTED WHO WILL SUPERVISE DEPO. OFFICER BEGINS OATH AND STATES COMPLETION. NEW 30(B)(4). D) CORPORATIONS-NOTICE MAY NAME CORP, ETC. AND DESCRIBE W/ PARTICULARITY THE MATTERS TO BE EXAMINED. THE CORP THEN APPOINTS A PARTY TO TESTIFY ON ITS BEHALF. 30(b)(6). (NOTE THIS ACTION WAS INTENDED TO SUPPLEMENT 30(a).) LESS V TABER-THE APP CT HELD THAT THE CORP MUST PRODUCE A PARTY TO REPRESENT IT IN THE DEPO. A NONPARTY CORP CAN ONLY BE DEPOSED AT ITS PLACE OF BUSINESS TO PREVENT UNDUE BURDEN. NOTE-RULE 30 ALLOWS ANY PARTY TO BE DEPOSED, THEREFORE THE PARTY MAY SUBPOENA A CORP OFFICER DIRECTLY UNDER RULE 45. 3) WHEN IS A SUBPOENA IS REQUIRED. A) PARTIES-A SUBPOENA IS NOT NECESSARY TO REQUIRE A PARTY’S APPEARANCE. A PARTY WHO FAILS TO RESPOND TO NOTICE MAY BE SANCTIONED. B) NON PARTIES-NOTICE ALONE IS NOT SUFF TO COMPEL A NON PARTY TO ATTEND. WHILE THERE IS NO REQUIREMENT TO SUPOENA A NON PARTY, A NON PARTY IS NOT SUBJECT TO ANY SANCTIONS IF HE DOES NOT APPEAR. THERE MAY BE CASES WHERE THE PARTY TAKING THE DEPO COULD BE SUBJECT TO SANCTIONS FOR FAILING TO SUBPOENA A WITNESS. 4) OBJECTIONS IN DEPOS-GENERALLY OBJECTIONS DO NOT NEED BE RAISED AT DEPO TO AVOID LOSING THE OBJECTION AT TRIAL. IN FACT, INTENTIONAL OBJECTIONS TO COACH A WITNESS ARE ILLEGAL. EXCEPTION-PRIVILEGED MATTERS MUST BE OBJECTED B/C IF WE ALLOW IT TO SLIP OUT, IT IS NO LONGER PRIVILEGED. 5) METHODS OF DEPO

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A) TRADITIONALLY-STENOGRAPHIC RECORDING OF DEPOS WAS ALL THAT WAS ALLOWED. B) MODERN RULES-ALLOW DEPOS TO BE DONE BY VIDEO AS WELL, UNLESS THE CT ORDERS OTHERWISE. THE RULES REQUIRE THAT SOMEONE AUTHORIZED BE PRESENT AT THE BEGINNING OF EACH UNIT OF RECORDED TAPE. EXCEPTION-TO IMPEACH THE WITNESS THE TRANSCRIPT MUST BE IN WRITING. C) DEPOS BY WRITTEN QUESTIONS (RULE 31)-ALLOWS DEPOS TO BE TAKEN BY WRITTEN QUESTIONS. THE MAIN REASON FOR THIS RULE IS TO ALLOW A WAY TO GET INFO FROM NON PARTY WITNESSES B/C YOU CANNOT USE INTERROGATORIES TO GET THE INFO FROM THEM. 8. INTERROGATORIES (RULE 33) A. WHO MAY USE THEM-33(a)-ONLY PARTIES W/O LEAVE OF CT OR WRITTEN STIPULATION ANY PARTY MAY SERVE UPON ANY OTHER PARTY WRITTEN INTERROGS (NOT EXCEEDING 25). 1) REASON FOR PARTIES ONLY-TO PROTECT NON PARTIES FROM THE BURDEN OF HAVING TO HIRE COUNCIL TO HELP THEM ANSWER INTERROGS. 2) LIMIT ON #-UNDER NEW RULE NO MORE THAN 25 INTERROGS (―INCLUDING DISCRETE SUBPARTS‖) MAY BE USED W/O LEAVE OF THE CT. (BENEFIT V. COST ANALYSIS) REASON FOR LIMIT-THIS LIMIT CAME AT THE SAME TIME AS THE NEW AUTOMATIC DISCLOSURE REQUIREMENT WHICH WAS THOUGHT TO MAKE UP FOR LESS INTERROGS. 3) PROBLEM W/ NEW RULE-―DISCRETE SUBPARTS‖-THIS ADDITION IN RULE 33 ALLOWS 1 QUESTION TO BE COMPOSED ON MANY SUBPARTS WHICH COULD INCLUDE SAYS ADV. COMM. – TIME, PLACE, PEOPLE, ETC. B) OBJECTIONS AND DUTY TO INVESTIGATE 1) 33(b)(1)-ANSWER AND OBJECTION-EACH INTERROG MUST BE ANSWERED SEPARATELY AND FULLY IN WRITING, UNLESS IT IS OBJECTED TO. (MIN JURIS REQUIRE RESPONDER TO STATE THEIR OPINIONS, ETC.) IF ONLY PART IS OBJECTED TO THE OBJECTING PARTY MUST STATE REASONS FOR OBJECTION AND THEN ANSWER THE REST. IF OBJECTING PARTY OBJECTS TO THE WHOLE SET HE MAY DO SO. 2) DUTY TO INVESTIGATE-THE PERSON MUST ANSWER BASED ON THE PERSONS OWN KNOWLEDGE AND THAT OF OTHER PERSONS THAT CAN BE REASONABLY OBTAINED THROUGH INVESTIGATION. THIS DUTY TO DISCLOSE INFO CONTINUES EVEN IF THE RESPONDER IS UNSURE OF THE RELIABILITY OF THE INFO IT HAS GAINED FROM 3 RD PARTIES. C. SCOPE OF INTERROGS 33(c)-THEY MAY RELATE TO ANY MATTER UNDER 26(B)(1). I.E. RELEVANT TO AND NON PRIVILEGED, ETC.) D. OPTION TO PRODUCE BUSINESS RECORDS RULE 33(D)-THIS IS USUALLY USED IN CONJUNCTION W/ RULE 34 PRODUCTION OF DOCUMENTS.

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1) WHERE THE ANSWER TO AN INTERROG MAY BE OBTAINED THROUGH BUSINESS RECORDS AND 2) THE BURDEN OF DERIVING ANSWER IS THE SAME FOR THE PARTIES 3) IT IS SUFF TO ANSWER SUCH AN INTERROG BY SPECIFYING THE RECORDS WHERE THE ANSWER CAN BE FOUND AND ALLOW THE REQUESTING PARTY A CHANCE TO INSPECT THEM. THE RECORDS MUST BE REASONABLY LOCATABLE AND IDENTIFIABLE SO THEY ARE READILY DISCOVERABLE. 9. PRODUCTION OF DOCUMENTS ETC. (RULE 34) A. WHO MAY USE RULE 34-―PARTIES‖ ANY PARTY MAY REQUEST ANY OTHER PARTY TO PRODUCE AND PERMIT. 1) INSPECT AND COPY OF DOCUMENTS (INCLUDES PICTURES ETC.) OR ANY OTHER THING W/I 26(B) AND WHICH IS IN THE POSSESSION, CUSTODY OR CONTROL OF THE PARTY UPON WHOM THE REQUEST IS SERVED. OR 2) PERMIT ENTRY UPON LAND OR PROPERTY IN THE POSSESSION OR CONTROL OF THE PERSON SERVED FOR INSPECTION ETC. (1) CONTROL-W/I RULE 34 CONTROLS IS GIVEN A FLEXIBLE MEANING. IT INCLUDES HAVING A POSITION OF AUTHORITY OR INFLUENCE OR RELATIONSHIP TO GET DOCUMENTS ETC. (HART V. WOLF-AK SC (1971)) EXTREME FLEXIBLE VIEW OF CONTROL-SOCITE V. ROGERS (1958)-THE USSC SAID P HAD CONTROL OVER DOCUMENTS EVEN THOUGH IT WOULD BE A VIOLATION OF CRIMINAL LAWS IN SWITERLAND FOR P TO COMPLY W/ PRODUCTION ORDER. (NOTE PRIOR TO 1970 DOCUMENTS COULD ONLY BE DISCOVERED BY THE CT ORDER ON A SHOWING OF GOOD CAUSE.) B. PROCEDURE-THE REQUESTS SHALL BE SPECIFIC AND PARTICULAR IN TIME, PLACE, AND MANNER AND IN WRITING AND MAY NOT BE SERVED UNTIL AFTER THEY MEET AND CONFER AND SCHEDULING CONFERENCES AS PER 26(d) AND (f). (120 DAYS) 1) REASON FOR WAIT PERIOD-ENCOURAGES SETTLEMENT ETC. 2) FORM OF PRESENTATION-A PARTY WHO PRODUCES DOCUMENTS SHALL PRODUCE THEM AS THEY ARE KEPT IN THE ORDINARY COURSE OF BUSINESS OR LABEL THEM TO CORRESPOND W/ THE CATEGORIES IN THE REQUEST. A) BURDEN-IT IS NO EXCUSE THAT RESPONDING TO A REQUEST W/ DATA IN A REASONABLY USABLE FORM WOULD BE TOO BURDENSOME OR TIME CONSUMING. (KOZLOWSKI V. SEARS) C. SUBPOENA OF NONPARTIES RULE 34(c)-A REQUEST FOR PRODUCTION OR INSPECTION ON A NONPARTY MUST BE SERVED W/ A SUBPOENA UNDER RULE 45. PRIOR TO 1991 THE ONLY WAY TO VIEW A DOCUMENT ETC. OF A NONPARTY WAS TO USE A DEPO AND SUBPOENA THE NONPARTY TO BRING IT.

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D. INTERPRETING PRODUCTION REQUESTS-CTS AND PROF SUGGEST WE MUST NOT INTERPRET RULE 34 TOO NARROWLY. E. ALTERNATIVE TO RULE 34-PARTY COULD SIMPLY SUBPOENA NONPARTY AND HAVE THEM BRING DOCUMENTS UNDER RULE 45. 10. PHYSICAL AND MENTAL EXAMINATIONS (RULE 35) A) USE AND PURPOSE-PHYSICAL AND MENTAL EXAMS MAY BE CONDUCTED ON PARTIES W/ CT PERMISSION WHERE THE PERSON’S PHYSICAL (INCLUDING BLOOD TYPES) OR MENTAL CONDITION IS IN CONTROVERSY AND THE MOVANT SHOWS GOOD CAUSE TO COMPEL THE EXAM OFTEN USED IN PERSONAL INJURY CASES, PATERNITY, INCOMPETENCE AND UNDUE INFLUENCE. B) PRIOR TO FED RULES-THE SC SAID PHYSICAL AND MENTAL EXAMS COULD ONLY BE DONE IN FED CTS IF THE STATE ALLOWED IT. THIS WAS B/C PRIVACY RIGHTS WERE CONTROLLED BY THE STATES. C) WHO MAY BE EXAMINED-PARTIES ONLY-A PARTY OR A PERSON IN THE CUSTODY OR LEGAL CONTROL OF THE PARTY. NON PARTIES NOT PROPER. 1) CUSTODY OR LEGAL CONTROL-CONVERS INCOMPENTENTS, MINORS. AGENCY-PROF SAYS AGENCY RELATIONSHIP DOES NOT EQUAL CONTROL. HOWEVER, ADV. COMM. NOTES THINKS IT SHOULD. ONE CT EXCEPTION-IN LEWIN V. JACKSON (1972-AZ)-THE EXAM WAS ORDERED ON A NON PARTY NOT UNDER CONTROL ETC. OF PARTY BASED ON THE CT’S INHERENT POWER. D) REQUIREMENTS FOR EXAM UNDER RULE 35 (1) PARTIES-PARTY OR PERSON IN THE CUSTODY OF LEGAL CONTROL OF PARTY. INCLUDED PEOPLE IN XC AND CC. (2) CONTROVERSY-THE PERSON’S MENTAL OR PHYSICAL CONDITION MUST BE IN CONTROVERSY. EX. THIS REQUIREMENT WOULD BE MET FOR EXAMPLE ON A P WHO CLAIMS PHYSICAL INJURIES OR TO A D WHO ASSERTS SUCH AS A DEFENSE. EX. WINTERS V. TRAVIA (F2D 1974)-MENTAL EXAM DENIED B/C P HAD NO CLAIMS WHICH TURNS ON HIS MENTAL HEALTH. (3) CT ORDER-THE CT MAY ORDER THE PARTY TO SUBMIT TO THE EXAM ONLY ON A MOTION FOR GOOD CAUSE SHOWN. (4) NOTICE-MUST BE NOTICE TO THE PARTIES AND SPECIFICATION OF TIME, PLACE, MANNER, CONDITIONS, SCOPE AND THE PERSON WHO WILL MAKE IT. E) GOOD CAUSE SHOWN?-SHOWING MERE RELEVANCE IS NOT ENOUGH. IN SCHLAGENHAUF V. HOLDER THE USSC SAID GOOD CAUSE CAN BE SHOWN BY PROVING THAT THERE ARE NO REASONABLE ALTERNATIVES TO AN EXAM. GRIDER V. SNEIDER (1979-GA)-MENTAL EXAM DENIED B/C FACTS COULD BE FOUND IN AN ALTERNATIVE SOURCE. *PROF VIEW-SAYS TO ESTABLISH GOOD CAUSE AND CONTROVERSY TAKE THE 1 ST STEP AT A TIME.

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EX. SCHLAGENHAUF V. HOLDER (1964)-THE USSC HELD THAT EXAMS COULD CONSTITUTIONALLY BE DONE ON Ds AS WELL AS Ps (ALREADY DECIDED IN SIBBACH) UNDER REA. (NOTE-PROF THINKS THIS WAS BEST CHALLENGE EVER OF REA EVEN THOUGH IT FAILED.) 2ND-HELD THAT THE D’S MENTAL CONDITION HAD NOT BEEN BROUGHT INTO CONTROVERSY BY THE VAGUE PLEADINGS. F) EXCHANGE OF REPORTS-35(b)(2)-A PARTY IS ENTITLED TO RECEIVE COPIES OF THE OTHER PARTIES MEDICAL REPORTS ONLY IF THE OTHER PARTY HAS PREVIOUSLY REQUESTED AND RECEIVED COPIES OF MEDICAL REPORTS FROM THE PARTY. (BENNING V. PHELPS) G) AGREEMENTS OF PARTIES-RULE 35(b)(3) ALLOWS AGREEMENTS BY PARTIES AS TO EXAMS. RULE 35 APPLIES TO THEM UNLESS STATED OTHERWISE IN THE AGREEMENT. H) ALTERNATIVES TO RULE 35-SOME CTS ALLOW A PARTY TO DEPOSE AN EXPERT OF THE OTHER SIDE (WHERE THERE IS NO DOCTOR-PATIENT RELATIONSHIP) AND THEN USE RULE 45 TO SUBPOENA THE INFO. I) PAINFUL EXAMS-GENERALLY IF THERE IS NO BETTER ALTERNATIVE, THE PERSON MAY HAVE TO SUBMIT TO THE PAINFUL EXAM. 2 SOLUTIONS TO THIS PROBLEM(1) D CAN AVOID EXAM BY DROPPING THAT ITEM OF DAMAGES (2) IF YOU DO SUBMIT, ADD THAT PAIN TO THE DAMAGES. 11. REQUESTS TO ADMIT (RULE 36) A. FUNCTION-RULE 36 ALLOWS A PARTY TO SERVE ON ANOTHER PARTY WRITTEN REQUESTS TO ADMIT THE TRUTH OF MATTERS OF FACT, LAW, ETC. OFTEN USED TO ADMIT AUTHENTICITY OF DOCUMENTS. B. EFFECT OF ADMISSION-ONCE AN ADMISSION IS MADE IT IS TAKEN AS CONCLUSIVE EVID, UNLESS W/DRAWN, AND CANNOT BE CONTRADICTED AT TRIAL. C. CONSEQUENCES OF FAILURE TO RESPOND-THE PARTY IS DEEMED TO HAVE ADMITTED THE MATTER IN REQUEST. D. EXTENT OF ADMISSION-IS BINDING FOR THE PENDING ACTION ONLY. I.E. IN PROF’S HYPO MAY NOT USE D’S ADMISSION IN ONE CASE IN LATER INDEPENDENT CASES W/ OTHER Ps. E. PROCEDURE TO USE RULE 36 (1) PARTY SERVES ON PARTY (2) NO LEAVE OF CT REQUIRED (3) REQUESTS MAY NOT BE SERVED BEFORE TIME SPECIFIED IN 26(D). (NOTE-THIS TIME LIMIT IS THE ONLY CHANGE IN THE AMENDED VERSION) (4) EACH MATTER SHALL BE ANSWERED SEPARATELY (5) ANSWERING PARTY MUST MAKE REASONABLE INQUIRY TO TRY AND ANSWER QUESTIONS F. SANCTIONS IN RULE 36-IF DENIAL IS PROVED WRONG, THE PROVING PARTY MAY RECOVER REASONABLE COST INCURRED TO PROVE, INCLUDING REASONABLE ATTY’S FEES. THE CT WILL ORDER THESE SANCTIONS UNLESS IT FINDS (A) THE REQUEST WAS OBJECTIONABLE OR (B) THE ADMISSION SOUGHT WAS NOT IMPORTANT (C) THE PARTY

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FAILING TO ADMIT HAD REASONABLE GROUNDS TO BELIEVE HE WOULD PREVAIL ON THE MATTER OR (D) THERE WAS OTHER GOOD REASON FOR THE FAILURE TO ADMIT. *PROF NOTE-SAYS SANCTIONS ARE ALMOST NEVER GIVEN HERE B/C OF THE EXCEPTIONS. 12. THE DUTY TO SUPP RESPONSES (RULE 26(e)) A. DUTY-IF A PARTY LEARNS THAT IN SOME MATERIAL RESPECT THE INFO HE DISCLOSED THROUGH DISCOVERY WAS INCOMPLETE OR INCORRECT AND THAT THE OTHER PARTY HAS NOT OTHERWISE FOUND OUT ABOUT THE NEW INFO HE HAS A DUTY TO SUPP HIS PRIOR RESPONSES. B. SANCTIONS-RULE 37 PREVENTS THE NONCORRECTING PARTY FROM USING THE NEW INFO OR WITNESSES AT TRIAL IF THEY HAD NOT SUPPLEMENTED THEIR PREVIOUS RESPONSES TO THEIR ADVERSE PER 26(e). C. ALTERNATIVES TO SANCTIONS –INCLUDE POSTPONING TRIAL OR GRANTING A CONSTINUANCE OR RECESS SO THE OTHER PARTY MAY DISCOVER NEW INFO. 13. USE OF DISCOVERY AT TRIAL (RULES 32, 36(B), AND 30(E)) A. DEPOS-RULES 32-USE OF DEPOS IN CT PROCEEDINGS-HOLDS THAT DEPOS MAY BE USED TO 1) IMPEACH WITNESS OR CONTRADICT (MOST COMMON USE); OR 2) STATEMENTS OF CORP OFFICERS ETC.; OR 3) THE DEPO OF A WITNESS, WHETHER NOT A PARTY, MAY BE USED BY ANY PARTY FOR ANY PURPOSE IF THE CT FINDS A) WITNESS IS DEAD B) WITNESS IS >100 MILES FROM TRIAL UNLESS IT WAS THE DEPO OFFERORS FAULT. EX. RICHMOND V. BROOKS (1955-CT OF APP)-HERE THE P USED A WRITTEN DEPO (RULE 31) AS HERE EVIDENCE IN A N.Y. TRIAL, SHE LIVED IN CA. THE CT HELD THIS USE WAS PROPER B/C OF THE BURDEN ON P (32(A)(3)(B) EXCEPTION) ALSO NOTED IT IS TO P’S DISADVANTAGE NOT TO TESTIFY IN PERSON. ALSO NOTED P HAD NO DUTY TO STAY IN N.Y. WHILE ON VACATION THERE 2 WEEKS BEFORE TRIAL. C) WITNESS CAN’T COME B/C ILL, IMPRISONED ETC. D) CAN’T GET WITNESS BY SUBPOENA E) UPON NOTICE THERE ARE EXCEPTIONAL CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE TO USE IT IN CT. NOTICE THE KEY HERE IS IMPRACTICALITY. NOTE-CT’S POWER TO ALLOW USE OF DEPO IS DESCRETIONARY. ―MAY BE USED‖ B. DEPOS TAKEN W/O LEAVE OF CT MAY NOT BE USED IF THE PARTY WAS W/O REPRESENTATION.

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C. OBJECTIONS MAY BE MADE AT TRIAL TO ANY EVIDENCE IN DEPOS WHICH ARE NOT ADMISSIBLE. 32(B). D. A PARTY USING DEPO AS EVIDENCE WHO SUBMITS SUPPLEMENTAL RESPONSE BETTER TO ITS CASE WILL HAVE BOTH SETS READ AT TRIAL. (MANGUAL V. PRUDENTIAL) 14. WORK PRODUCT RULE-MATERIALS PREPARED IN ANTICIPATION OF TRIAL-(RULE 26(b)(3)) A. BASIC RULE 26(B)(3) CODIFIES THE CT’S DECISION IN HICKMAN V. TAYLOR (1947-US) WHICH SAID A PARTY MAY NOT OBTAIN DOCUMENTS OR TANGIBLE THINGS WHICH WERE PREPARED IN ANTICIPATION OF TRIAL OR FOR TRIAL BY ANOTHER PARTY OR BY THAT OTHER PARTY’S ATTY, INDEMNITOR, INSURER OR AGENT UNLESS THEY SHOW THAT THE PARTY SEEKING DISCOVERY HAS SUBSTANTIAL NEED OF THE MATERIALS IN THE PREPARATION OF THE PARTY’S CASE AND THE PARTY IS UNABLE W/O UNDUE HARDSHIP TO OBTAIN THE SUBSTANTIAL EQUIVALENT OF THE MATERIALS BY OTHER MEANS. B. REQUIREMENTS 1) DOCUMENTS OR TANGIBLE THINGS PROBLEM-THESE WORDS SUGGEST PERSON COULD GET BY WPR BY REQUESTING THROUGH INTERROGS INFO LEARNED FROM WITNESSES OR FROM DOCUMENTS. ANSWER-NO-PETERSON V. U.S. (DIST CT-1971)-HELD CAN’T ESCAPE RULE SIMPLY BY USING ANOTHER DISCOVERY TYPE. 2) PREPARED IN ANTICIPATION OF LITIGATION INVESTIGATION DONE PRIOR TO COMPLAINT OR TRIAL-STILL PROTECTED BY WPR BY ARGUING IT WAS DONE IN ANTICIPATION OF TRIAL. PROF SAYS KEY IS DOES THE PARTY EXPECT A SUIT TO BE FILED OR LITIGATION TO RESULT. IF YES-WPR PROTECTS. CONTRARY VIEW-SOME CTS SAY PRE-SUIT INVESTIGATION DONE BY AN INSURANCE COMPANY WAS THE ORDINARY COURSE OF BUSINESS AND THEREFORE NOT PROTECTED BY WPR. 3) PREPARED BY PARTY’S REPRESENTATIVE, ATTY, CONSULTANT, SURETY, INDEMNITOR, INSURER OR AGENT. INVESTIGATORS-THE RULE ALSO PROTECTS WORK DONE BY THE PARTY’S INVESTIGATOR. 4) OTHER PARTY MUST FIRST SHOW SUBSTANTIAL NEED OF THE MATERIALS TO GET BY WPR TIME=SUNBSTIAL NEED?-THE ISSUE ARISES IF THERE IS SUBSTANTIAL NEED WHEN A PARTY WANTS TO GET WPR PROTECTED INTERVIEWS ETC. WHICH WERE TAKEN BY OPPONENT RIGHT AFTER ACCIDENT WHILE THE MEMORY OF WITNESSES WERE FRESH. MIN. VIEW-SOME CTS SAY DELAY/TIME IS ENOUGH TO MEET SUBSTANTIAL NEED REQUIREMENT. *PROF VIEW-SAYS TIME IS NOT SUBSTANTIAL NEED. 5) SECONDLY, OTHER PARTY MUST SHOW THERE ARE NO ALTERNATIVES AVAILABLE WHICH WOULD NOT PRODUCE UNDUE HARDSHIP.

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C. DISCOVERY OF PARTIES OWN STATEMENTS-UNDER 26(B)(3) THESE ARE ALWAYS DISCOVERABLE. D. OPINION WPR-WHEN DOCS ETC. HAVE MENTAL IMPRESSIONS, OPINIONS, CONCLUSIONS OR LEGAL THEORIES IN THEM THE CTS ARE SPLIT ABOUT THE LAST SENTENCE OF 26(B)(3) WHICH SAYS IN ORDERING DISCOVERY OF SUCH MATERIALS WHEN THE REQUIRED SHOWING HAS BEEN MADE THE CT SHALL PROTECT AGAINST DISCLOSURE OF THE MENTAL IMPRESSIONS CONSLUSIONS, OPINIONS OR LEGAL THEORIES OF AN ATTY OR OTHER REPRESENTATIVES OF A PARTY CONCERNING THIS LITIGATION. *1. PARTIAL OPINION LACED-IF THE MENTAL OPINIONS MAY BE PULLED OUT BY REDACTION ETC. ALL CTS AGREE THIS SHOULD BE DONE. *2. COMPLETE OPINION SATURATION-WHEN OPINIONS PERMEATE THE DOC, THE CTS ARE SPLIT. *1ST VIEW-THESE CTS SAY THAT THIS SENTENCE ABSOLUTELY PROTECTS MENTAL OPINIONS ETC. AGAINST DISCOVERY. PROBLEM W/ THIS VIEW-ATTY COULD ALWAYS DEFEAT DISCVERY BY SIMPLY MAKING EVERY DICSOVERY FULL OF HIS OPINIONS. *2ND VIEW-THESE CTS SAY IT IS DISCOVERABLE *3RD VIEW-THE USSC IN UPJOHN LEFT IT UP IN THE AIR, BUT AT LEAST WE KNOW TO DISCOVER IT ALL WOULD AT LEAST TAKE A GREATER SHOWING OF NEED THAN NORMAL. E. SURVEILLANCE VIDEO-CTS DIFFER IN THERE REACTION TO SURVEILLANCE VIDEO 1ST VIEW-HOLDS IT IT AN IMPEACHMENT DEVISE AND THEREFORE NOT SUBJECT TO DISCOVERY AT ALL. BUT IN REALITY THE VIDEO IS USED FOR DAMAGES CALCULATION, TOO. OTHER PROBLEMS W/ THIS VIEW (1) THE NOTION HERE THAT THE TRUTH IS ONE SIDED IS WRONG (2) THE RULES DO NOT SAY IT IS NOT DISCOVERABLE. 2ND VIEW-DEMONSTRATED BY DIMICHEL CASE (NY COA-1992)-HOLDS THAT SURVEILLANCE VIDEO IS CONSIDERED MATERIAL PREPARED FOR LITIGATION (WPR) AND MAY NOT BE DISCOVERED UNLESS THE PERSON SEEKING DISCOVERY CAN SHOW SUBSTANTIAL NEED AND NO ALTERNATIVES AS PER 26(B)(3). ADDITIONALLY AS TO: NEED-THE CT HELD THAT SUBSTANTIAL NEED IS AUTOMATICALLY MET IS CASES WHERE THE VIDEO WILL BE USED AT TRIAL B/C THE OTHER PARTY MUST HAVE A CHANCE VIEW AND AUTHENTICATE THE VIDEO SURVEILLANCE FOOTAGE. UNDUE HARDSHIP-WOULD ALSO BE ASSUMED WHERE THE TAPES ARE TO BE USED AT TRIAL. NO SUBSTITUTE OR ALTERNATIVES FOR SURVEILLANCE. PREVENT CATERING TESTIMONY TO VIDEO-THE CT ORDERED THAT BEFORE THE VIEWING PARTY GET THE TAPES, HE IS REQUIRED TO TAKE A DEPO AND STATE THE FACTS WHICH WILL THEN BE COMPARED TO WHAT IS SEEN ON THE TAPE.

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IMPORTANT-IF THE TAPES ARE NOT TO BE USED AT TRIAL, NEED WILL NOT BE IMPLIED. MUST BE SHOWN INDEPENDENTLY. 3RD VIEW-THESE CTS TREAT IT AS MATERIAL PREPARED IN ANTICIPATION OF LITIGATION, BUT ARE DISCOVERABLE ON A SHOWING OF NEED AND UNDUE HARDSHIP. 4TH VIEW-SOME CTS SAY IT IS NOT WPR AND IT IS FULLY DISCOVERABLE. 15. EXPERT INFO-RULE 26(B)(4) A) AUTO INITIAL DISCLOSURE-26(A)(2)-THE NEW RULE REQUIRES THE AUTO DISCLOSURE OF ANY PERSON WHO MAY BE USED AT TRIAL. THIS INITIAL DISCLOSURE INCLUDES A DESCRIPTION OF THE EXPERT’S VIEWS, HIS QUALIFICATIONS, COMPENSATION, ETC. DUTY TO SUPP-RULE 26(E) ALSO REQUIRES THE PARTY TO SUPP THIS DISCLOSURE BY INFORMING OTHER PARTY OF ANY NEW EXPERTS, ETC. NEW RULE REQUIRES THAT WITNESSES SIGN THE REPORT. THIS HELPS EFFICIENCY AND KEEPS DEPOS, ETC. SHORTER. SANCTIONS FOR FAILURE TO DISCLOSE-FAILURE TO USE THE EVIDENCE AT TRIAL OR MONETARY FINE. B. TESTIFYING EXPERT WITNESSES-A PARTY MAY DEPOSE ANY PERSON WHO HAS BEEN IDENTIFIED AS AN EXPERT WHOSE OPINIONS MAY BE PRESENTED AT TRIALNOTE DEPO ONLY. 1. WHO IS AN EXPERT-IT CAN BE ANYONE W/ SPECIALIZED KNOWLEDGE. (EX-LIFELONG HEROIN ADDICT) DEPO-THE NEW RULE ALLOWS THE PARTY TO DEPOSE EXPERT. THIS IS A CHANGE FROM THE OLD RULE WHICH ONLY ALLOWED INTERROG WHICH WAS OFTEN INSUFF AND BYPASSED ANYWAY. THE NEW RULE SIMPLY REFLECTS WHAT WAS PRACTICE ANYWAY.

2.

C. NONTESTIFYING EXPERT WITNESSES-A PARTY MAY THROUGH INTERROG OR BY DEPO DISCOVER FACTS KNOWN AND OPINIONS HELD BY AN EXPERT WHO HAS BEEN RETAINED OR SPECIALLY EMPLOYED BY ANOTHER PARTY IN ANTICIPATION OF LITIGATION OR PREPARATION FOR TRIAL AND WHO IS NOT EXPECTED TO BE CALLED AS A WITNESS AT TRIAL ONLY UNDER A SHOWING OF EXCEPTIONAL CIRCUMSTANCES UNDER WHICH IT IS IMPRACTICABLE FOR THE SEEKING PARTY TO GET THE INFO ANOTHER WAY. SUMMARY OF REQUIREMENTS (1) MAY BE DEPOS OR INTERROGS (2) EXPERT MUST BE SPECIALLY EMPLOYED OR RETAINED IN ANTICIPATION OF LITIGATION *PROF HYPO-P INJURED BY D IN CAR ACCIDENT. DOCTOR EXAMINES P. WHILE DOCTOR IS AN EXPERT HE IS NOT EMPLOYED IN ANTICIPATION OF LITIGATION AND THEREFORE HE IS NOT AVAILABLE UNDER 26(B)(4). ACTOR VIEWERS-THESE ARE PEOPLE/EXPERTS WHO VIEW BUT ARE NOT EMPLOYED OR RETAINED IN ANTICIPATION OF

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LITIGATION. THEY MAY BE DISCOVERED BY ORDINARY WITNESS RULES. (3) MUST BE EXCEPTIONAL CIRCUMSTANCES (A) THIS REQUIREMENT IS TO PROTECT AGAINST DISCLOSURE OF EXPERTS WHO A PARTY MAY HAVE CONSULTED BUT WHO WILL NOT TESTIFY AT TRIAL B/C THERE VIEW IS CONTRADICTORY TO PARTY’S CASE. FOR THIS REASON THEIR NAMES WILL NOT BE DISCLOSED TO THE OPPOSING PARTY WHO STANDS TO BENEFIT, W/O EXCEPTIONAL CIRCUMSTANCES. (B) WHAT ARE EXCEPTIONAL CIRCUMSTANCES  ONLY 1 EXPERT AVAILABLE EVIDENCE WAS DESTROYED (TESTING SUBSTANCE) EX. PERRY V. DARLEY-D NOT ALLOWED DISCOVERY OF P’S NONTESTIFYING EXPERTS B/C DID NOT MEET THE SPECIAL CIRCUMSTANCES REQUIREMENT. (C) GETTING NAMES-PROF AND COMMENTATORS SUGGEST THAT RULE 26 PREVENTS THE PARTY FROM SIMPLY ASKING FOR NAMES OF EXPERTS B/C THIS WAS CIRCUMVENT EXCEPTIONAL CIRCUMSTANCES REQ. (SPLIT-DIVISION-RULE 26(b)(4) SPEAKS OF OPINION AND THEREFORE DISCOVERABLE.) 3. REGULARLY EMPLOYED EXPERTS-IF AN EXPERT IS SOMEONE WHO IS REGULARLY EMPLOYED BY A COMPANY, LIKE AN ENGINEER, THEN 26(B)(4) WILL NOT COVER HIM B/C HE WAS NOT SPECIALLY EMPLOYED FOR LITIGATION. 3 VIEWS ON THESE PEOPLE (1) SOME CTS SAY THESE REGULAR EMPLOYEES ARE INCLUDED BY 26(B)(4). NEW RULE 26(B)(4) SEEMS TO SUGGEST THIS AND THE PROF AGREES W/ THIS OPINION. (2) THE PERSON IS NOT W/I 26(B)(4) AND IS DISCOVERABLE BY ORDINARY DEVICES. (3) PERSON IS NOT IN (B)(4) BUT IF DISCOVERY WOULD NOT BE ALLOWED WERE HE IN (B)(4) IT WILL NOT BE ALLOWED ANYWAY. 16. SANCTIONS-FRCP 37 A. TYPICAL TYPES OF ABUSE WHICH WARRANT SANCTIONS-INCLUDE HARRASSMENT AND FAILURE TO COOPERATE GENERALLY HOWEVER ABSUSE IS NOT VERY PREVELANT. B. AUTO DISCLOSURE VIOLATIONS-IF A AUTO DISCLOSURE CERTIFICATION IS MADE INVIOLATION OF RULES A CT MAY ON ITS OWN MOTION REQUIRE PAYMENT OF FINE, FEES, ETC. (INCLUDING REASONABLE ATTY FEES.) C. RULE 37 SANCTIONS37(A)-ORDER FOR MORE DISCOVERY-PARTY MAY MOTION CT FOR MORE DISCOVERY WHERE HE HAS TRIED TO GET OTHER PARTY TO COMPLY AND THERE HAS NOT BEEN COOPERATION OR THERE HAS BEEN EVASION, ETC. THE PARTY FORCED TO MAKE

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ADDITIONAL DISCOVERY MUST PAY FEE IT COST P TO BRING MOTION UNLESS THE P DID NOT MAKE A GOOD FAITH ATTEMPT TO COOPERATE OR OTHER CIRCUMSTANCES JUSTIFY. IF MOTION LOSES-THE CT CAN REQUIRE MOVING PARTY TO PAY FOR FEES OF DEFENDING PARTY FIGHTING MOTION. 37(B)-FAILURE TO COMPLY W/ ORDER-CTS MAY REQUIRE PARTY TO OBEY ORDER, HOLD HIM IN CONTEMPT OF CT AND IMPOSE FEES. 37(C)-FAILURE TO DISCLOSE-IF THE PARTY FAILS TO MAKE AUTO DISCLOSURE UNDER 26(A) HE WILL (1) NOT BE ALLOWED TO USE EVIDENCE AT TRIAL (2) PAY FEES FOR FAILURE TO DISCLOSE 37(D)-FAILURE TO ATTEND DEPO OR ANSWER INTERROGS OR RESPOND TO REQUEST TO ADMIT, ETC. ON MOTION THE CT MAY MAKE ANY ORDER IT DEEMS JUST IN ADDITION TO ORDERING ATTY FEES, ETC. PAID. 37(G)-FAILURE TO ATTEND DISCOVERY PLAN-CT MAY REQUIRE ATTY FEES. *BIGGEST SANCTION-DISMISSAL OF CASE OR DEFENSE STRUCK. D. FAULT REQUIREMENT FOR SEVERE SANCTIONS-THE USSC IN SOCIETE CASE HELD THAT CTS MAY IMPOSE ANY SANCTION AS LONG AS THEY SHOW SOME FUALT BY SANCTIONED PARTY. GROSS NEG-THE CT IN CINE V. ALLIED ARTISTS-SAID GROSS NEG WAS ENOUGH TO MEET THE USSC’S FAULT STANDARD. THE REQUIRED FAULT VARIES FROM JURIS TO JURIS. VII. ADJUDICATION WITHOUT TRIAL A. SUMMARY JUDGMENT 1. DEFINITION-IF A PARTY TO A LAWSUIT (P OR D) CAN SHOW THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT IN THE LAWSUIT HE CAN WIN THE CASE W/O GOING TO TRIAL THROUGH A DECISION BY THE JUDGE. A MOTION FOR SJ IS USUALLY FILED BY THE PARTIES AFTER PLEADINGS AND DISCOVERY IS COMPLETED. A) USE OF PLEADINGS AND DISCOVERY-IN RULING ON A MOTION FOR SJ THE CT WILL LOOK OUTSIDE THE PLEADINGS AND ANALYZE FACTS OBTAINED IN DISCOVERY WHICH MIGHT SHOW THAT THERE IS NO DISPUTED FACTS. 1) DISCOVERY MATERIALS USED-AFFIDAVITS AND ANY OTHER DISCOVERY MATERIALS. 2. GENERAL RULES-INITIAL BURDEN OF PRODUCTION-A PARTY MOVING FOR SJ (NO MATTER IF HE IS D OR P) HAS THE BURDEN OF PRESENTING INFO THAT CLEARLY ESTABLISHES THAT THERE IS NO FACTUAL DISPUTE REGARDING THE MATTER UPON WHICH SJ IS SOUGHT. A) DENIAL OF SJ-IF THE INFO PRESENTED, TAKEN AS TRUE, FAILS TO ESTABLISH THAT NO FACTUAL DISPUTE EXISTS, SJ WILL BE DENIED EVEN IF THE OPPOSING PARTY HAS PRESENTED NO COUNTER EVIDENCE.

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1) RATIONALE FOR SJ-IT GETS RID OF BAD CASES. INCREASES EFFICIENCY. SOME CTS CRITICIZE IT B/C IT TAKES CASES AWAY FROM THE JURY. 3. STATES APPROACH-ALL STATES HAVE THEIR OWN RULES DEALING W/ SJ BUT MOST ARE IDENTICAL TO THE FED RULES. FED RULE 56 A) P’S MOTIONS FOR SJ (SPECIAL TIME LIMITS)-ANY PARTY WHO MAKE A CLAIM, CC, XC OR DECLARATORY JUDGMENT MAY AT ANY TIME AFTER THE EXPIRATION OF 20 DAYS FROM THE COMMENCEMENT OF THE ACTION OR AFTER SERVICE OF A MOTION FOR SJ BY THE ADVERSE PARTY, MOVE W/ OR W/O SUPPORTING AFFIDAVITS FOR A SJ UPON ALL OR ANY PART OF HIS CLAIM, ETC. B) D’S MOTION FOR SJ-ANY PARTY AGAINST WHO A CLAIM, CC, XC OR DECLARATORY JUDGMENT ACTION IS AGAINST MAY AT ANY TIME MOVE W/ OR W/O SUPPORTING AFFIDAVITS FOR A SJ. C) STANDARD-IF ALL THE EVIDENCE SHOW THERE IS NO GENUINE ISSUE OF MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW, SJ MAY BE GRANTED. ***MATERIAL FACT-FACTS WHICH MIGHT AFFECT THE OUTCOME OF THE CASE ARE MATERIAL. ***GENUINE-A GENUINE MATERIAL FACT IS ONE WHICH WOULD BE CONSIDERED BY THE JURY. D) PARTIAL SJ-CTS HAVE THE POWER TO RULE ON CERTAIN ISSUES AND LEAVE OTHERS TO THE JURY. E) FORM OF EVIDENCE-ONLY EVIDENCE WHICH WOULD BE ADMISSABLE AT TRIAL IS ALLOWED IN. F) DUTY TO RESPOND-IF A MOVING PARTY MEETS THE REQUIREMENT OF THIS RULE, THE ADVERSE PARTY MAY NOT REST UPON THE MERE ALLEGATIONS OR DENIALS IN HIS PLEADINGS. HE MUST SET FORTH SPECIFIC FACTS WHICH SHOW THERE IS A GENUINE ISSUE OF MATERIAL FACT. 5. RIGHT TO CROSS EXAMINE VS. SJ A) UNBIASED WITNESSES-WHEN THE WITNESSES UPON WHICH A MOTION FOR SJ RELIES ARE UNBIASED THE RIGHT TO CROSS EXAMINE IS NOT ENOUGH TO DEFEAT AN OTHERWISE GOOD MOTION FOR SJ. LUNDEEN V. CORDNER (8TH CIRC. 1966)-D HAD BURDEN OF PROOF AT TRIAL. D MOVED FOR SJ. – THIS CASE INVOLVED DISPUTE OVER LIFE INS. PROCEEDS. A 2ND WIFE CLAIMED THE HUSBAND MEANT TO GIVE PROCEEDS TO HER. 1ST WIFE SAID THE INS. K WAS VALID TO HER. AT TRIAL WIFE 2 WOULD HAVE THE BURDEN TO PROVE THE INS. K WAS NOT VALID. W2 MOVED FOR SJ BASED ON AFFIDAVITS FROM ONE ATTY. TRIAL CT GAVE SJ. WIFE 1 CLAIMS SJ SHOULD NOT HAVE BEEN GIVEN B/C SHE DESERVED THE RIGHT TO CROSS EXAMINE THE ATTY. THE CT REJECTED THIS ARGUMENT SAYING THAT B/C THERE WAS NO HINT THAT THE ATTY HAD ANY BIAS WHATSOEVER. HIS HONESTY WAS NOT IN DOUBT. NO CROSS EXAMINATION WAS NECESSARY.

4.

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KEY TO LUNDEEN-A PARTY OPPOSING SJ MAY NOT SIMPLY RELY ON THE RIGHT TO CROSS EXAMINE WITNESSES TO DEFEAT A MOTION FOR SJ WHEN THE WITNESSES ARE ON THEIR FACE UNBIASED. B) BIASED WITNESSES-WHERE YOU HAVE A BIASED WITNESS, THE RIGHT TO CROSS EXAMINE HIM IS ENOUGH TO DEFEAT A MOTION FOR SJ AND GET TO TRIAL. CROSS V. U.S. (2ND CIRC. 1964)-P HAD BURDEN OF PROOF AT TRIAL AND P MADE MOTION FOR SJ.-P SUED IRS FOR REFUND HE THOUGHT THEY OWED HIM. P BROUGHT MOTION FOR SJ BASED P’S OWN STATEMENTS REGARDING HIS INTENT. IRS CLAIMS SJ IS IMPROPER B/C THEY SHOULD HAVE THE RIGHT TO CROSS EXAMINE THE WITNESSES (THE P). HERE THE CT SAID SJ FOR P WAS IMPROPER V/C THE P’S STATEMENTS UPON WHICH SJ HAD BEEN GRANTED WAS SUBJECT TO DOUBT AND BIAS. THE CASE HERE REALLY TURNED ON CROSS’ MOTIVE OR PURPOSE. KEY TO CROSS-A PARTY OPPOSING SJ MAY RELY ON THE RIGHT TO CROSS EXAMINE WHEN THE WITNESSES, ETC. ARE POTENTIALLY BIASED AND THAT FACT IS ESSENTIAL TO THE CASE. CROSS-WITNESSES WERE NOT UNBIASED. HE WAS A PARTY TO THE CASE. LUNDEEN-ATTY WAS UNBIASED. NO CROSS EXAMINATION NEEDED. C) DYER V. MACDOUGALL (2ND CIRC. 1952)-P HAD BURDEN OF PROOF HERE. D MADE MOTION FOR SJ.-IN THIS CASE P SUED D FOR SLANDER. THE ONLY WITNESSES WERE FOR D. D BROUGHT MOTION FOR SJ BASED ON AFIDAVITS FROM THOSE 2 WITNESSES. THE DIST CT GRANTS SJ B/C THE P, IF THE CASE WENT TO TRIAL, WOULD HAVE NO WITNESSES BY WHOM HE COULD PROVE THE SLANDER OCCURRED. THE APP CT UPHELD THIS DESPITE THE P’S ARGUMENT THAT HE SHOULD HAVE THE RIGHT TO X-EXAMINE THEM AND POSSIBLY SWAY CT TO DISBELIEVE THEM. *KEY TO DYER SAYS PROF-IF A P DOES NOT HAVE ADEQUATE EVIDENCE TO SUPPORT HIS CLAIM, CTS DO NOT WANT TO LET THE JURY, ETC. FIND FOR THE P SIMPLY B/C AFTER P’S X-EXAMINATION THEY CHOOSE TO DISBELIEVE THE D’S EVIDENCE. PROF SAYS USSC AGREES W/ THIS. *KEY-DYER-IF THE D DOES NOT HAVE THE TRIAL BURDEN OF PROOF AND HE MAKES A MOTION FO SJ, THE P MUST COME BACK W/ MORE THAN THE XEXAMINATION ARGUMENT TO DEFEAT SJ. 6. MOVANT’S DUTY EARLY STRICT VIEW-ADDICKES V. KRESS (USSC 1970)-THIS CASE HELD THAT A PARTY MOVING FOR SJ MUST DISPROVE THE CASE OF HIS OPPONENT. (HARSH VIEW.) FACTS-IN ADDICKES THE P CLAIMED HER CIVIL RIGHTS WERE VIOLATED WHEN Ds FORCED HER TO LEAVE COUNTER WHERE SHE SAT W/ BLACK STUDENTS. Ds MOVED FOR SJ B/C THEY SAID THERE WAS ONLY CIRCUMSTANTIAL EVIDENCE SUPPORTING P’S CLAIM. USSC SAID D TO GET SJ HAD TO DISPROVE P’S CLAIM THERE WAS A COP IN STORE. PROBLEMS W/ STRICT VIEW 1) ALLOWS SJ TO BE USED FOR HARRASSMENT. 2) TOO EASY TO FILE SJ MOTION.

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3) ALLOWS D TO SEE WHAT P HAS IN EVIDENCE WHEN THE P ANSWERS SJ. *MODERN VIEW (NOT CERTAIN)-(CELOTEX V. CATRETT (USSC 1986))-BOTH PROF AND COMMENTATORS SAY CELOTEX’S HOLDING IS NOT CERTAIN. CTS EITHER FOOLW EASY VIEW OF RHENQUIST OR TOUGHER VIEW OF BRENNAN. THE CT SPLIT IN ITS VIEWS AS FOLLOWS: RHENQUIST-MOVING PARTY NEED NOT NEGATE HIS OPPONENT’S CLAIM. HE MAY RELY ON THE PLEADINGS, DISCOVERY, ETC. TO SHOW THAT THERE IS AN ABENSENCE OF EVIDENCE TO SUPPORT THE NONMOVING PARTY’S CASE. (BASICALLY SAY YOUR OPPONENT’S CLAIM STINKS.) NONMOVING PARTY BEARS THE BURDEN OF PROOF AT TRIAL-A SJ MOTION MAY BE GRANTED SOLEY ON THE PLEADINGS AND OTHER DISCOVERY. WHITE-SAID THAT WHILE THE THRESHOLD IS LOWER THAN ADDICKES, THE MOVING PARTY MUST STILL SHOW SOME PROOF THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT. BRENNAN-(TOUGH VIEW) A) IF A MOVING PARTY BEARS THE BURDEN OF PROOF AT TRIAL-THE MOVING TO GET SJ MUST SUPPORT ITS MOTION W/ CREDIBLE EVIDENCE THAT WOULD ENTITLE IT TO A DIRECTED VERDICT, USING EVIDENCE AS PROVIDED IN 56(C). IF HE DOES THIS THE BURDEN SHIFTS TO THE PARTY OPPOSING THE MOTION AND REQUIRES HIM TO SHOW THE EXISTENCE OF A GENUINE ISSUE FOR TRIAL. B) IF THE BURDEN OF PROOF IS ON NONMOVING PARTY-THE MOVING PARTY MAY EITHER 1) SUBMIT EVIDENCE THAT NEGATES ESSENTIAL ELEMNT OF THE NONMOVING PARTY’S CLAIM, OR 2) DEMONSTRATE THAT THE NONMOVING PARTY’S EVIDENCE IS INSUFF TO EVIDENCE IS INSUFF TO ESTABLISH AN ESSENTIAL ELEMENT OF NONMOVING PARTY’S CLAIM. IMPORTANT HERE-THE MOVING PARTY MUST AFFIRMATIVELY SHOW THE ABSENCE OF EVIDENCE IN THE RECORD. MOVING PARTY HAS BURDEN  MOVING PARTY MUST SHOW EVIDENCE. BURDEN SHIFTS AND NONMOVING PARTY MUST SHOW GENUINE ISSUE.

NONMOVING PARTY HAS BURDEN  7. MOVING PARTY NEGATES EVID. SHOWS INSELF EVID.

STANDARD OF PROOF IN SJ-ANDERSON V. LIBERTY LOBBY (USSC 1986)-IN RULING ON A MOTION FOR SJ THE CT MUST CONSIDER THE EVIDENTIARY STANDARD OF PROOF THAT WOULD APPLY AT TRIAL ON THE MERITS AND DETERMINE IF THE EVIDENCE IS SUCH

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THAT THE MOVING PARTY WOULD ESSENTIALLY BE ENTITLED TO A DIRECTED VERDICT. FACTS-IN ANDERSON P SUED D FOR DEFAMATION OF PUBLIC OFFICIAL WHICH REQUIRED PROOF OF ACTUAL MALICE BY CLEAR AND CONVINCING EVIDENCE. CT HELD THAT IN RULING ON A SJ MOTION THE EVIDENCE MUST BE SUCH THAT A RATIONAL FACT FINDER COULD FIND ACTUAL MALICE BY CLEAR AND CINVINCING EVIDENCE. JUDGES LIMITATIONS-THE JUDGE MUST NOT WEIGH EVIDENCE OR MAKE CREDIBILITY DETERMINATIONS. *JUDGES MUST USE THE STANDARD OF PROOF AND ASSESS THE QUANTUM AND QUATITY OF EVIDENCE. 8. MOTIVE AND SUMMARY JUDGMENT-IN MATUSHITA V. ZENITH (USSC 1986)-USSC UPHELD SJ B/C THE EVIDENCE DID NOT SUGGEST ANY MOTIVE FOR D’S ACTION AND THEREFORE SJ WAS PROPER FOR D.

B. DISMISSAL OF ACTIONS (RULE 41) 1. VOLUNTARY DISSMISSAL-THIS ALLOWS THE MOVING PARTY TO EXTRICATE HIMSELF FROM THE LAWSUIT W/O AFFECTING HIS LEGAL RIGHTS. IT PLACES THE PARTIES IN THE IN THE POSITIONS THEY OCCUPIED BEFORE THE LAWSUIT BEGAN. BIGGEST REASON PEOPLE USE VOLUNTARY DISMISSAL IS TO GET AWAY FROM BAD JUDGE. A) MULTIPLE DISMISSALS-IF A PARTY ATTEMPTS TO DISMISS AFTER PREVIOUSLY DOING SO, THE DISMISSAL IS VIEWED AS AN ADJUDICATION ON THE MERITS. B) COMMON LAW-ALLOWED P TO DISMISS AND REFILE WHENEVER AND HOW EVER MANY TIMES HE WANTED. C) FEDERAL RULE 41(A)-P MAY FILE A NOTICE OF DISMISSAL BEFORE HE RECEIVES ANSWER OR A MOTION FOR SJ OR BY A STIPULATION OF ALL PARTIES. BY ORDER OF THE CT-IF THE CT DISMISSES ON ITS OWN POWER, IT IS W/O PREJUDICE EVEN TO MULTIPLE DISMISSAL CASES. PROF’S HYPO-P SUES D1 AND D2. D2 ASKS P TO DISMIIS HIM. SOL CONTINUES TO RUN. TO KEEP FROM LOSING RIGHT TO SUE D2 IN FUTURE, HAVE D2 AGREE TO WAIVE SOL FOR DISMISSAL. 2. DISMISSAL FOR FAILURE TO PROSECUTE-UNDER 41(B) THE CT HAS THE INHERENT POWER TO DISMISS A CASE OR TO DO SO ON MOTION BY THE D IF THE P DOES NOT PROCEED W/ DUE DILIGENCE. CTS MAY DISMISS EVEN IF JURISDICTIONS DISMISS AFTER A CERTAIN # OF YEARS. LINK V WABASH-CT DISMISSED P’S CASE ON INHERENT AUTHORITY EVEN THOUGH IT WAS SOLELY THE P’S ATTY’S FAULT. CT SAID P MADE A BAD CHOICE OF LAWYERS. BIG INHERENT POWER CASE. ADJUDICATED ON THE MERITS-DISMISSAL FOR FAILURE TO PROSECUTE IS TREATED AS AN ADJUDICATION ON THE MERITS. 3. FINES, ETC. UNDER RULE 41-IF A P HAS PREVIOUSLY DISMISSED A CASE AGAINST THE SAME D, THE CT MAY ORDER PAYMENT OF COSTS TO P. FINES MAY BE IMPOSED UPON ATTYS FOR SCREWING UP.

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4.

CLAIMS DISMISSED IN FED CT-MANY JURISDICTIONS SAY THESE CLAIMS MAY BE TRIED IN STATE CTS DESPITE THE DISMISSAL.

C. DEFAULT JUDGMENTS (FRCP 55) 1. 2 STEPS IN PROCESS  1ST STEP-IF A PARTY DOES NOT APPEAR OR PLEAD THE CLERK SHALL ENTER ENTRY OF DEFAULT. 2ND STEP-AFTER THE CLERK ENTERS THE DEFAULT, EITHER THE CLERK OR THE CT WILL THEN ENTER A DEFAULT JUDGMENT.

2.

ENTRY OF DEFAULT-ONLY WHERE A PARTY AGAINST WHOM A JUDGMENT FOR AFFIRMATIVE RELIEF IS SOUGHT FAILS TO PLEAD OR OTHERWISE DEFEND WILL THE CLERK ENTER THE PARTY’S DEFAULT. NOTE-ENTRY OF DEFAULT IS NOT THE SAME AS DEFAULT JUDGMENT-THE INITIAL STEP IS ALWAYS ENTRY OF DEFAULT AND THEN WE GO TO THE NEXT STEP OF DEFAULT JUDGMENTS. COULAS V. SMITH-HERE DEFAULT ENTERED AGAINST D WAS IMPROPER B/C THE D’S ATTY HAD FILED A DENIAL IN ANSWER. THIS MEANS THERE COULD NOT HAVE BEEN A DEFAULT JUDGMENT. THE ORIGINAL CT’S RULING WAS ON THE MERITS.

3.

DEFAULT JUDGMENT-JUDGMENT OF DEFAULT MAY BE ENTERED EITHER BY (1) BY THE CLERK-WHEN THE P’S CLAIM IS MERELY FOR A SUM CERTAIN (I.E. K DAMAGES, SET AMT OF $) THE CLERK OF THE CT MAY ENTER THE DEFAULT JUDGMENT AGAINST THE D. (2) BY THE CT-IN ALL OTHER CASES THE CT WILL, ON MOTION OF P, REVIEW THE ENTRY OF DEFAULT AND DETERMINE DAMAGES, ETC. IN SOME CASES THE CT MAY HEAR EVIDENCE AN CONDUCT A TRIAL BY JURY HEARING BEFORE ENTERING THE DEFAULT JUDGMENT. APPEARANCE BY D-IF THE D OR HIS REP APPEARED IN THE ACTION, HE WILL BE GIVEN 3 DAYS NOTICE OF THE JUDGMENT HEARING. WHAT IS AN APPEARANCE-IT IS WHEN D MAKES A SPECIAL APPEARANCE TO CONTEST PJ, VENUE, ETC. ONLY IF D DOES THIS, DOES HE GET THE 3 DAY NOTICE PERIOD. (SEE COULAS V. SMITH) RHODES V. RHODES-SIGNING OF PROPERTY SETTLEMENT AGREEMENT DID NOT EQUAL APPEARANCE.

4.

AMT RECOVERED IN DEFAULT JUDGMENT-54(C) A DEFAULT JUDGMENT IS LIMITED TO THE AMT PRAYED FOR IN ORIGINAL COMPLAINT. IT IS ALSO KEY THAT THE COMPLAINT CONTAIN ALLEGATIONS OF A C/A. SETTING ASIDE DEFAULT A) SETTING ASIDE ENTRY OF DEFAULT-FOR GOOD CAUSE SHOWN THE CT MAY SET ASIDE THE ENTRY OF DEFAULT. B) SETTING ASIDE DEFAULT JUDGMENT-MUST BE DONE IN ACCORDANCE W/ RULE 60B. CTS ARE VERY WILLING TO SET ASIDE DEFAULT JUDGMENTS SO THEY CAN BE TRIED ON THE MERITS.

5.

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6.

PENALTY DEFAULT CASES-IN SOME CASES, THE D WILLFULLY VIOLATES A DISCOVERY ORDER, ETC. THE CTS WILL SOMETIMES IMPOSE A PENALTY DEFAULT DESPITE THE D’S APPEARANCE. TWA V. HUGHES-CT ORDERED DEFAULT JUDGMENT B/C THE D HAD NOT PRODUCED STOCK RECORDS AS ORDERED BY THE CT.

VIII. FORMER ADJUDICATION PRIOR ADJUDICATION IN ONE ACTION MAY AFFECT A SUBSEQUENT LAWSUIT THROUGH EITHER (1) STARE DECISIS (2) RES JUDICATA (CLAIM PRECLUSION) OR (3) COLLATERAL ESTOPPEL (ISSUE PRECLUSION). A. RES JUDICATA (CLAIM PRECLUSION) 1. DEFINITION-THE BASIS HERE IS THAT ONCE A JUDGMENT IS RENDERED, IT IS HELD TO BE THE COMPLETE AND FINAL JUDGMENT B/T THOSE PARTIES FOR THAT CLAIM AND THE PARTIES ARE PRECLUDED FROM BRINGING ANY MORE SUITS ON ISSUES RELEVANT TO THAT SAME CLAIM. OR (BETTER DEFINITION) IN CERTAIN CIRCUMSTANCES, WHEN A 2ND SUIT IS BROUGHT, THE JUDGMENT IN A PRIOR SUIT WILL BE CONSIDERED CONCLUSIVE, BOTH ON THE PARTIES TO THE JUDGMENT AND THOSE IN PRIVITY W/ THEM. AS TO MATTERS THAT ACTUALLY WERE LITIGATED OR SHOULD HAVE BEEN LITIGATED IN THE 1ST SUIT. 2. RATIONALE FOR CLAIM PRECLUSION A) SOCIETAL CONCERNS-(PREVENT ABUSE OF CTS, VEXATIOUS LITIGATION, ETC.) B) NEED FOR FINALITY-THERE IS A NEED I LAW SUITS FOR FINALITY SUCH THAT THE PARTIES MAY GET ON W/ THEIR LIVES. COSTS OF RJ-SOMETIMES THE CTS DECISION MAY BE WRONG. 3. RAISING AND WAIVING AND DECIDING CLAIM PRECLUSIONA) RAISING-IN ORDER FOR A CT TO CONSIDER CP (RJ) IN A CASE THE PARTY MUST RAISE IT W/ THE CT TYPICALLY IN THE ANSWER AS AN AFFIRMATIVE DEFENSE 8(C). 1) CTS OWN INITIATIVE-IT IS SUGGESTED THAT CTS MAY RAISE THE RJ ISSUES ON THEIR OWN INITATIVE TO FURTHER JUDICIAL ECONOMY. B) WAIVER-A PARTY MAY WAIVE THE BENEFITS OF PRECLUSION RAISE IT AS AN AFFIRMATIVE DEFENSE IN THE 2ND SUIT. BY FAILING TO

C) DECIDING CP-THE CT WILL TYPICALLY DECIDE A RJ (CP) ISSUE IN A SJ MOTION B/C IT CAN BE DETERMINED BY LOOKING AT THE ORIGINAL SUIT’S PLEADINGS DEPOS, ETC. USSC IN FEDERATED DEPT STORES V. MOTTIE (1981) MADE IT CLEAR THAT RJ WAS TO BE TAKEN VERY SERIOUSLY AND NOT JUST FLEXIBLY APPLIED WHERE NECESSARY.

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4. MERGED VS. BARRED *A) MERGED-IF THE P WINS, HIS CLAIM MERGES IN THE JUDGMENT AND HE MAY SEEK NO FURTHER ACTION ON THAT CLAIM. *B) BARRED-WHEN D WINS, THE P’S CLAIM IS EXTINGUISHED AND THE JUDGMENT THEN ACTS AS A BAR. 5. REQUIREMENTS FOR RJ (CP)-FOR CP TO OPERATE, 2 ELEMENTS MUST BE PRESENT. 1) ONLY JUDGMENTS THAT ARE FINAL, VALID, AND ON THE MERITS HAVE PRECLUSIVE EFFECT. 2) THE PARTIES IN A SUBSEQUENT ACTION MUST BE IDENTICAL TO THOSE IN THE 1ST. 3) THE CLAIM IN THE 2ND SUIT MUST INVOLVE MATTERS PROPERLY CONSIDERED IN THE 1ST ACTION WHICH INCLUDES WHAT THE 1ST SUIT DECIDED OR SHOULD HAVE BEEN DECIDED. A) FINAL JUDGMENTS, VALID, AND ―ON THE MERITS.‖ 1. MULTIPLE FORUMS-IF A PARTY DOES NOT HAVE A SINGLE FORUM IN WHICH ALL CLAIMS MAY BE BROUGHT, THEN JUDGMENT BY 1ST CT ON 1 CLAIM DOES NOT BAR RELIEF IN ANOTHER CT. *EX. PROF’S HYPO-A SUES B FOR SPECIFIC PERFORMANCE IN A K CASE. A FILED SUIT IN CT OF EQUITY B/C IN THAT JURIS ONLY THE CT OF EQUITY COULD HEAR THE CASE. CT DISMISSES CASE B/C IT WAS NOT PROPER FOR EQUITY. HERE A MAY REFILE ACTION IN CT OF LAW. 2. NOT ―ON THE MERITS‖-PROF’S HYPO-P SUES D IN FED CT. D MOVES TO DISMISS B/C THERE IS NO SMJ. FED CT DISMISSES CASE. IT IS FINAL JUDGMENT IN THE FED CT, BUT THIS WAS NOT A JUDGMENT ON THE MERITS. P MAY REFILE IN STATE CT. SITUATIONS IN WHICH CONSIDERATIONS OF JUSTICE AND FAIRNESS DICTATE THAT PRIOR JUDGMENTS NOT BE GIVEN PRECLUSIVE EFFECTA) FRAUD-WHEN THE PRIOR JUDGMENT WAS OBTAINED BY THE USE OF FRAUD, CTS WILL GENERALLY NOT CONSIDER IT BINDING. B) JURISDICTIONAL DEFECT-WHEN THERE WAS A SERIOUS JURISDICTIONAL DEFECT IN THE 1ST CT WHICH SHOULD HAVE PREVENTED IT FROM HEARING THE CASE, THERE WILL OFTEN BE NO PRECLUSIVE EFFECT. B) PARTIES AND THOSE IN PRIVITY 1. AGENCY RELATIONSHIPS-CT IN MATHEWS HELD PRIVITY EXISTED WHEN 1ST SUIT WAS AGAINST EMPLOYEE AND 2ND SUIT WAS AGAINST THE EMPLOYER.

3.

C) CLAIM-OVER TIME AND THROUGHOUT DIFFERENT CTS THERE HAVE BEEN MANY TESTS USED TO DETERMINE WHAT THE SCOPE OF RJ IS AS FAR AS WHAT IS A CLAIM.

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1.

COMMON LAW VIEW-―CAUSE OF ACTION TEST‖-HERE A CLAIM IS VIEWED VERY NARROWLY AND REFERENCED TO CAUSES OF ACTION. UNDER THIS VIEW A PARTY CAN BRING MULTIPLE SUITS RESULTING FROM 1 TRANSACTION AS LONG AS EACH SUIT INVOLVES A DIFFERENT PRIMARY RIGHT AS RECOGNIZED BY INDEPENDENT CAUSES OF ACTION. FOR EXAMPLE: RIGHT TO BE FREE FROM BODILY INJURY IS 1 C/A RIGHT TO REPUTATION IS ANOTHER RIGHT TO PROPERTY IS AN INDEPENDENT C/A, ETC. PROBLEM-IT WAS DIFFICULT TO DETERMINE WHAT WAS A PRIMARY RIGHT. EX. IN VASU V. KOHLERS (1942)-THE OHIO SC HELD THAT A P COULD SUE IN 1ST SUIT FOR PROPERTY DAMAGE RESULTING FROM A CAR WRECK AND THEN BRING A 2ND SUIT FOR PERSONAL INJURIES RESULTING FROM THE SAME CAR WRECK. BASED ON PRIMARY RIGHT/CAUSE OF ACTION.

2.

SAME WRONGUL ACT TEST-HERE IF THE CLAIMS AROSE FROM THE SAME SINGLE WRONGFUL ACT OF THE D, THEN THE CLAIM MUST BE BROUGHT IN 1 SUIT. RUSH V. CITY OF MAPLE HEIGHTS-HERE THE P WAS HURT IN MOTORCYCLE WRECK. 1ST SUIT SHE SUED FOR PROPERTY DAMAGE AND WON. 2ND SUIT SHE SUED FOR PERSONAL INJURY AND TRIED TO PRECLUDE THE ISSUE OF THE D’S NEGLIGENCE BASED ON THE DECISION IN THE 1 ST SUIT WHICH HAD FOUND D NEGLIGENT. HOLDING OF SC OF OHIO-SAME WRONGFUL ACT TEST-THE CT HELD THAT WHERE THE INJURIES TO A PERSON AND HIS PROPERTY ARISE OUT OF THE SAME WRONGFUL ACT OF THE D THIS CONSTITUTES ON C/A AND MUST BE SUED UPON ALL AT ONCE. P MUST SEEK RECOVERY FOR DAMAGES TO BOTH INTERESTS IN 1 ACTION. HIS CLAIMS MERGED AFTER HIS 1ST WIN. EXCEPTION-INSURANCE COMPANY-THE CT SAID THE P MAY SUE FOR PERSONAL INJURIES IN A 2ND SUIT WHERE THE INSURER HAS ACQUIRED BY ASSIGNMENT OR BY SUBROGATION THE RIGHT TO SUE TO RECOVER MONEY IT ALREADY GAVE TO P. *PROF BELIEVES THE RUSH CASE IS BETTER VIEW B/C THESE CTS REJECT THE C/A APPROACH B/C OF JUDICIAL ECONOMY, PREVENTS MULTIPLE LAWSUITS, BUDENSOME EXPENSE, VEXATIOUS LITIGATION, ETC.

3.

SAMENESS OF EVIDENCE APPROACH-OLD STATE VIEW-HERE CLAIMS WERE SAID TO BE THE SAME AND THEREFORE PRECLUDED WHEN THE EVIDENCE NEEDED IN THE 2 ND SUIT WOULD BE THE SAME AS THAT WHICH WAS USED IN THE 1ST SUIT. EX. JONES V. MORRIS-VIRGINIA SC HELD THAT SINCE THE SAME EVIDENCE WOULD SUPPORT BOTH THE 1ST SUIT AND 2ND SUIT, THE LATTER CLAIM IN THE 2ND SUIT WAS PRECLUDED.

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4.

FED APPROACH, MODERN MAJORITY STATE APPROACH, AND RESTATEMENT APPROACH-SAME TRANSACTION TEST-UNDER THIS VIEW A CLAIM IS A GROUP OF FACTS LIMITED TO A SINGLE OCCURRENCE OR TRANSACTION AND IT IS NOT DEPENDENT ON THE LEGAL THEORY UPON WHICH A P RELIES. CLAIMS WHICH RELATE TO THIS SAME TRANSACTION OR OCCURRENCE OR SERIES OF EACH ARE PRECLUDED FROM BEING RAISED IN A 2ND SUIT. EX. FED CASE-MATHEWS V. NY RACING-P, WHO WAS KICKED OUT OF RACE TRACK, IN HIS 1ST SUIT AGAINST THE D CLAIMED ASSAULT, LIBEL, ETC., FROM EVENTS WHICH HAPPENED ON APRIL 4 AND APRIL 10. P LOST. IN HIS 2 ND SUIT P CLAIMED FALSE IMPRISONMENT AND MALICIOUS PROSECUTION, RELYING ON THE SAME FACTS AS HIS 1 ST SUIT. THE FED CT HELD THAT B/C THE P WAS USING THE SAME FACTS WHICH OCCURRED FROM A SINGLE TRANSACTION OR SEIRES OF TRANSACTIONS TO MAKE UP NEW CLAIMS, HIS NEW SUIT WAS BARRED (I.E. HIS CLAIMS WERE PRECLUDED). *EX. PROF’S HYPO-P AND D IN AUTO WRECK. D THEN HITS P AND LIBELS HIM. 1ST SUIT P SUES 2ND SUIT FOR LIBEL, ETC. HE CAN’T DO IT IN THE JURISDICTIONS THAT FOLLOW THE SAME TRANSACTION TEST B/C THE FACTS ARE SO INTERRELATED THAT IT WOULD BE IMPROPER TO ALLOW P TO SPLINTER HER CLAIMS.

5.

SAME TRANSACTION TEST-SPECIAL CASES INVOLVING CONTINUED OR RENEWED CONDUCT-WHEN THE P WANTS TO SUE ON CONDUCT BY D WHICH HAS CONTINUED OR RENEWED SINCE THE 1ST SUIT THE RESTATEMENT LISTS SEVERAL FACTORS WHICH SHOULD BE CONSIDERED TO DETERMINE WHETHER A FACTUAL GROUPING CONSTITUTES A SINGLE TRANSACTION(1) TIME (2) SPACE (3) ORIGIN (4) MOTIVATION (5) WHETHER THEY FORM A CONVENIENT TRIAL UNIT (6) WHETHER TREATMENT AS A UNIT CONFORMS TO THE PARTIES EXPECTATIONS OR BUSINESS UNDERSTANDING OR USAGE.

6. DEFENSE PRECLUSION-HERE WE ARE FACED W/ ISSUES THAT ARISE WHEN A DEFENDING PARTY DEFENDS A SUIT ON A PARTICULAR BASIS THEN LATER TRIES TO SUE ON IT DIRECTLY. THERE IS A SPLIT OF OPINIONS ON THIS TOPIC. A) MITCHELL VIEW-THAT SUBSEQUENT SUIT IS PRECLUDED-MITCHELL V. FEDERAL INTERMEDIATE CREDIT BANK (SOUTH CAROLINA 1932)-THIS CASE HELD THAT A DEFENDING PARTY MAY NOT DEFEND ON A CLAIM IN 1 SUIT AND LATER SUE ON THAT DEFENSE DIRECTLY IN A 2ND SUIT. THE CLAIM IS MERGED INTO THE EARLIER DEFENSE.

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1) BOTTOM LINE RESULT OF THIS RULE-IF THE D COULD HAVE BROUGHT SUIT AS A CC, HE SHOULD HAVE. THIS VIEW ENCOURAGES BRINGING OF CCs AND PROMOTES JUDICIAL EFFICIENY. B) LINDERMAN VIEW-THAT THE DEFENSE DOES NOT PRECLUDE SUIT ON A LATTER ACTION-LINDERMAN V. HILLENBRAND (IN 1920)-THIS CT HELD THERE IS NO DEFENSE PRECLUSION AND THAT THE PARTY COULD BRING A SUBSEQUENT SUIT ON A CLAIM WHICH HE HAD PREVIOUSLY USED AS A DEFENSE. C) BETTER APPROACH? WHILE MITCHELL’S VIEW CREATED MORE EFFICIENCY BY COMPELLING CCs, THE RESTATEMENT PREFERS THE LINDERMAN APPROACH B/C IT FIGURES IF THE STATE DOES NOT HAVE COMPULSORY CC RULES THEN THE INTENT OF THE STATE WAS TO ALLOW D TO SUE DIRECTLY ON THOSE CASES. D) EFFECT OF COMPULSORY CC RULES-FED RULE 13 AND MANY STATE CTS WHICH HAVE COMPULSORY CC RULES SUPERSEDE THE RULES OF PRECLUSION IN MANY WAYS. GENERALLY COMPULSORY CCs WHICH ARE NOT RAISED MAY NOT BE RAISED IN SUBSEQUENT LITIGATION. 1) STATE CTS W/O CC RULES-IN THESE STATES THE RULES ON DEFENSE PRECLUSION STILL ALTHOUGH CTS ARE SPLIT AS LISTED ABOVE. B. COLLATERAL ESTOPPEL (ISSUE PRECLUSION) 1) DEFINITION-HERE, AS OPPOSED TO CLAIM PRECLUSION, WE MAY BE LOOKING AT UNRELATED CAUSES OF ACTION WHICH CONTAIN SOME SIMILAR ISSUE OR ISSUES. THE GENERAL RULE IS THAT A RIGHT, QUESTION, OR FACT DISTINCTLY PUT IN ISSUE AND DECIDED BY A CT CANNOT BE DISPUTED IN A SUBSEQUENT SUIT B/T THE SAME PARTIES OR THEIR PRIVIES EVEN IF THE 2ND SUIT IS FOR A DIFFERENT C/A. KEY TO ISSUE PRECLUSION-IT APPLIES ONLY TO MATTERS ACTUALLY LITIGATED AND NECESSARILY DECIDED IN AN EARLIER LAWSUIT (NOT WHAT SHOULD HAVE BEEN, LIKE CLAIM PRECLUSION). 2) REQUIREMENTS FOR ISSSUE PRECLUSION (1) THE JUDGMENT IN THE 1ST SUIT MUST HAVE BEEN VALID, FINAL AND ON THE MERITS. (2) ACTUALLY LITIGATED-THE ISSUE MUST HAVE BEEN ACTUALLY LITIGATED IN THE 1ST ACTION. CROMWELL V. COUNTY OF SAC (USSC 1876)-1ST SUIT INVOLVED A SUIT BY OWNER OF BONDS AND COUPONS TO RECOVER MONEY OWED ON THEM. HE LOST B/C HE WAS NOT A BFP. IN THE 2ND SUIT THE P AGAIN CLAIMED TO BE THE BFP OF CERTAIN COUPONS, ETC. THE SC REFUSED TO PRECLUDE RELITIGATION OF THIS ISSUE B/C THE P’S BFP STATUS AS TO OTHER COUPONS HAD NOT BEEN ACTUALLY DECIDED IN THE PREVIOUS SUIT. ISSUE PRECLUSION DID NOT APPLY. A) KEY TO CROMWELL’S DECISION WAS THE SC’S RULE ON NOTES AND COUPONS. NESBIT V. RIVERSIDE (USSC 1892)-HELD EACH MATURED COUPON OR NOTE GIVES RISE TO A SEPARTE C/A. THEREFORE SUIT ON 1 OF THOSE NOTES OR COUPONS DOES NOT BAR A SUBSEQUENT SUIT ON A DIFFERENT ONE.

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B) ADMISSIONS NOT ACTUALLY LITIGATED-IF A PARTY ADMITS SOMETHING IN 1 SUIT, IT MAY NOT BE LATER USED AGAINST HIM IN A 2ND SUIT BASED ON ISSUE PRECLUSION B/C IT WAS NEVER ACTUALLY LITIGATED. EX.-X SUES Y ON NEG. Y ADMITS NEG, BUT CLAIMS X WAS CONTRIB NEG. Y WINS B/C OF X’S CONTRIB NEG. 2ND SUIT Y WANTS TO SUE X. X WANTS TO CLAIM ISSUE PRECLUSION ON Y’S CONTRIB NEG B/C OF HIS ADMISSION IN THE 1ST SUIT. CAN’T DO IT B/C THE ADMISSION WAS NOT ACTUALLY LITIGATED. (3) NECESSARILY DECIDED-ISSUE MUST HAVE BEEN NECESSARILY DECIDED. NECESSARILY DECIDED-THIS MEANS THE PRECISE ISSUE MUST HAVE BEEN DECIDED AND THAT IT WAS MATERIAL OR ESSENTIAL TO THE 1 ST SUIT. A) WHAT TO LOOK AT TO SEE IF AN ISSUE WAS NECESSARILY DECIDED-(1) PLEADINGS (2) TRIAL TRANSCRIPTS (3) CT OPINION (4) SPECIAL VERDICTS. IF THIS DOES NOT TELL US WHAT WAS DECIDED WE MUST LOOK TO EXTRINSIC EVIDENCE-THIS IS STUFF OUTSIDE THE RECORD WHICH MAY INCLUDE (1) RECALLING JURY FROM 1ST SUIT TO TELL US WHAT THEY DECIDED. (2) ASKING JUDGE. (3) RECALL WITNESSES. EX. RUSSELL V. PLACE (USSC 1876)-THIS CASE INVOLVED A DISPUTE OVER A PATENTED LEATHER PROCESS. THE CT HELD THAT ISSUE PRECLUSION WOULD ONLY APPLY IF IT APPEARED ON THE FACE OF THE RECORD OR BY EXTRINSIC EVIDENCE THAT THE PRECISE ISSUE HAD BEEN FORMERLY DECIDED. *PROF’S HYPO1ST SUIT-A V B FOR TRESPASS. B DEFENDS ON OWNERSHIP, DENIAL, NECESSITY, ETC. B WINS ON GENERAL VERDICT. 2ND SUIT-B V A FOR TRESPASS. CAN B USE OWNERSHIP AS ISSUE PRECLUSION? NO. ACTUALLY LITIGATED-YES-WHILE THE ISSUE OF OWNERSHIP WAS ACTUALLY LITIGATED, WE CANNOT BE SURE THE 1 ST SUIT WAS NECESSARILY DECIDED ON THAT ISSUE B/C OF THE GENERAL VERDICT FOR D. SOLUTION-A PARTY MAY ASK JURY FOR SPECIAL FORM VERDICTS WHICH WOULD ALLOW THEM TO DECIDE ISSUES INDIVIDUALLY. EX. RIOS V., DAVIS (COA TX 1963)-THE CT REFUSED TO USE ISSUE PRECLUSION B/C THE DETERMINATION OF THE ISSUE IN THE 1ST SUIT WAS NEITHER ESSENTIAL OR MATERIAL TO THE DECISION THERE. CT ALSO SAID ISSUE PRECLUSION WOULD NOT BE FAIR TO IMPOSE AGAINST A PARTY WHO HAD NO RIGHT TO APPEAL THE DECISION IN THE 1ST SUIT.

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RIGHT TO APPEAL-PROF SAYS THIS RIGHT IS NOT CONCLUSIVE, BUT IT IS STRONGLY SUGGESTIVE. CO-PARTIES AND ISSUE PRECLUSION-CO-PARTIES ARE GENERALLY NOT AFFECTED BY ISSUE PRECLUSION UNLESS THEY ARE ADVERSARIES. THEY ARE ADVERSARITES ONLY IF ONE HAS A CLAIM AGAINST ANOTHER. EX. P SUED RIOS AND DAVIS WHO DEFEND ON CONTRIB NEG OR NO NEG. JURY FINDS FOR P AGAINST BOTH Ds ON NEG. CAN DAVIS USE ISSUE PRECLUSION AGAINST RIOS IN A SUBSEQUENT SUIT ON NEG? SPLIT VIEWSMAJORITY VIEW-NO. AS STATED ABOVE. MINORITY VIEW-YES. THESE ARE CTS WHO WANT TO MAXIMIZE EFFICIENCY. MINORITY CT ADDITIONAL REQUIREMENTS -THE ISSUE MUST HAVE BEEN HIGH IN THE HIERARCHY, IE. IMPORTANT. -OTHERS REQUIRE MUTUALITY (THE PARTY INVOKING PRECLUSION WOULD HAVE BEEN BOUND BY AN UNFAVORABLE JUDGMENT IN THE 1ST SUIT.) 3) DIFFERENCE B/T CLAIM AND ISSUE PRECLUSION EX OF CLAIM PRECLUSIONJAN 1-15 Y CUTS TIMBER ON DISPUTED LAND. JAN 16 X SUES Y FOR TRESPASS ON JAN 1. X WINS. IF X WAS TO LATER TRY AND SUE Y FOR TRESPASS ON JAN 2, 3, ETC., THESE CLAIMS WOULD BE MERGED W/ 1ST SUIT B/C THEY SHOULD HAVE BEEN BROUGHT SINCE THEY WERE TRANSACTIONALLY RELATED. COMPARISON JAN 1 Y CUTS TIMBER JAN 2 X SUES Y FOR TRESPASS JAN 8 Y CUTS MORE TIMBER JAN 9 X SUES AGAIN FOR TRESPASS CLAIM PRECLUSION? NO, B/C THE JAN 8 ACT WAS A SUBSEQUENT ACT IT COULD NOT HAVE BEEN BROUGHT. ISSUE PRECLUSION? YES, B/C Y DEFENDED IN 1 ST SUIT CLAIMING HE OWNED LAND AND LOST, HE MAY NOT AGAIN ARGUE OWNERSHIP AS A DEFENSE IN THE 2ND SUIT. THIS ISSUE IS PRECLUDED. 4) CRIMINAL PROSECUTION AND ISSUE PRECLUSION-WHEN THE STATE OR FED GOV’T INITIATES A CRIMINAL PROSECUTION AGAINST A D, THE RESULT MAY HAVE SOME ISSUE PRECLUSIVE EFFECT IN A SUBSEQUENT CIVIL SUIT DEPENDING ON THE OUTCOME.

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A) AQUITTAL-NO ISSUE PRECLUSIVE EFFECT IN CIVIL SUIT B/C THER IS REASONABLE DOUBT. B) NO LO CONTENDERE-NO ISSUE PRECLUSIVE EFFECT AT ALL. SHIELDS D FROM LIABILITY.L C) GUILTY/PLEA BARGAIN-2 VIEWS NO ACTUAL LITIGATION-SOME CTS SAY B/C THERE HAS NOT BEEN ANY ACTUAL LITIGATION HERE, THERE IS NO PRECLUSIVE EFFECT. RESTATEMENT VIEW-THE GUILTY PLEA OR BARGAIN MAY BE ADMISSABLE EVIDENCE IN CIVIL CASE, BUT IT IS UNCLEAR IF IT WOULD BE ISSUE PRECLUSIVE. SOME CTS SAY GUILTY PLEAS DO HAVE ISSUE PRECLUSIVE EFFECT. D) CONVICTION-A CONVICTION WOULD HAVE ISSUE PRCLUSIVE EFFECT. 5) DEFINING AND CHARACTERIZING THE ISSUE-TO DETERMINE WHAT THE ISSUE IS FOR ISSUE PRECLUSION, WE MUST LOOK AT THE CT’S APPROACH. A) TRADITIONAL VIEW-US. V. MOSER (USSC 1924)-HELD THAT A FACT QUESTION OR RIGHT ADJUDGED IN A PRIOR SUIT CANNOT BE DISPUTED IN A SUBSEQUENT ACTION. PURE QUESTIONS OF LAW ARE NEVER SUBJECT TO ISSUE PRECLUSION. PROBLEM? WHAT IS A QUESTION OF FACT OR LAW? PROF SAYS IT IS ALMOST IMPOSSIBLE TO DEFINE IT. RESTATEMENT VIEW-SAYS THE BETTER INDICATOR OF LAW V. FACT IS LOOK TO SEE IF THE PARTIES ARE THE SAME OR CLOSELY RELATED. B) MODERN VIEW-LIMITS ISSUE PRECLUSION TO IDENTICAL ISSUES-COMMISSIONER OF IRS V. SUNNEN (USSC 1948)-THIS CT HELD THAT ISSURE PRECLUSION WOULD NOT APPLY IN DIFFERENT TAX YEARS. ALTHOUGH ALL OTHER CONDITIONS FOR ISSUE PRECLUSION WERE MET, THE CT DENIED IT B/C UNLESS ISSUES ARE TOTALLY IDENTICAL ISSUE PRECLUSION WILL NOT APPLY. (1) THE ISSUE IS NOT ONE ISOLATED IN TIME. (I.E. IT CHANGES FROM TAX YEAR TO TAX YEAR, AND (2) UNFAIR TO OTHER TAX PAYERS NOT TO CHANGE IT. CHANGES IN LAW-IF AFTER A DECISION THERE IS A CHANGE IN LAWS WHICH WOULD MAKE THE SAME ISSUE GO A DIFFERENT WAY IN A SUBSEQUENT SUIT, ISSUE PRECLUSION MAY NOT APPLY. THE KEY TO THIS IS LOOK TO SEE IF THE RIGHTS BEING DECIDED ARE THE SAME AS IN THE 1 ST SUIT. ISSUE PRECLUSION WILL BE DENIED IF THE EFFECT OF APPLYING IT WOULD BE TO GIVE ONE PERSON A FAVORED POSITION IN CURRENT ADMINISTRATION OF A LAW. C) THE EVERGREENS DOCTRINE-A MINORITY OF CTS SOMETIMES DISTINGUISH B/T ULTIMATE FACTS AND MEDIATE FACTS WHEN DETERMINING WHETHER ISSUES DECIDED IN 1 SUIT WILL BE VIEWED AS PRECLUSIVE IN A LATER ONE. RULE OF EVERGREENS-IN EVERGREEN V. NUNAN (USSC 1944)-THE CT HELD THAT COLLATERAL ESTOPPEL APPLIES ONLY TO ULTIMATE FACTS.

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ULTIMATE FACTS-THESE ARE THE FACTS WHICH ARE IN ISSUE OR WHAT THE DECISION TURNS ON. MEDIATE FACTS-THIS IS THE EVIDENCE WHICH LEADS UP TO THE ULTIMATE FACTS. ALL ULTIMATE AND MEDIATE FACTS IN SUIT #1 MAY BE USED TO PRECLUDE THE ULTIMATE FACTS IN SUIT #2. MOST CTS REJECT EVERGREENS DOCTRINE 6) INCENTIVE TO LITIGATE IN ISSUE PRECLUSION-IN CERTAIN CASES A PARTY MAY HAVE LITTLE INCENTIVE TO LITIGATE A SUIT AT ALL OR EFFECTIVELY. IF SO, IT MAY NOT BE FAIR TO THEN HOLD TO ISSUE PRECLUSION IN A SUBSEQUENT MORE VALUABLE SUIT INVOLVING SAME ISSUES.

EX. SUIT #1-A V. B ON NEG FOR $500. A WINS. SUIT #2-B V. A ON NEG FOR $10,000. CAN A USE THE #1 SUIT DETERMINATION OF NEG AS PRECLUSIVE? NO B/C IN THE 1ST SUIT B HAD NO INCENTIVE TO LITIGATE B/C OF SMALL $ AMT. ISSUE PRECLUSION SHOULD NOT BE ALLOWED HERE. C. QUALITY OF JUDGMENT-ONLY JUDGMENTS OF A CERTAIN QUALITY WILL GIVE RISE TO CLAIM OR ISSUE PRECLUSION. THERE MAY BE AMBIGUITIES IN WHAT IS VALID, FINAL, AND ON THE MERITS. 1. CONSENT JUDGMENTS-THESE ARE JUDGMENTS ENTERED INTO BY THE PARTIES WHICH IS THEN ADOPTED BY THE CTS. ISSUES ARISE OVER THE EXTENT OF ITS PRECLUSIVE EFFECT. 2 VIEWS: 1ST VIEW-INTENT TEST-IN THESE CTS THE PRECLUSIVE EFFECT OF A CONSENT JUDGMENT WILL BE DETERMINED BY LOOKING AT THE PARTIES INTENT AS TO WHAT THEY CONSIDERED DECIDED. THE PARTIES MAY EXPLICITY RESERVE ISSUES OR CLAIMS FROM RES JUDICATA EFFECT. REQUIREMENTS TO RESERVE A CLAIM (1) THE RESERVATION MUST BE INCORPORATED INOT THE CONSENT JUDGMENT (2) IT MUST BE AN INHERENT PART OF THE ORIGINAL COMPLAINT 2ND VIEW-RES JUDICATA ON ITS FACE-THESE CTS SAY THE CONSENT JUDGMENT IS RJ AS MUCH AS A TRIAL ON THE MERITS. RJ (CP)-MOST CTS SAY THE CONSENT JUDGMENTS SHOULD BE RJ. CP-IN CONTRAST TO RJ HERE MOST CTS SAY CONSENT JUDGMENTS DO NOT HAVE ISSUE PRECLUSIVE EFFECT B/C THERE HAS BEEN NO ACTUAL LITIGATION. PROF’S ARGUMENT-HE THINKS IF PARTIES MAKE THEIR INTENT CLEAR, WE COULD GET PRECLUSIVE EFFECT. 2. DEFAULT JUDGMENTS

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A) CLAIM PRECLUSION-THE MAJORITY VIEW IS THAT DEFAULT JUDGMENTS MEET THE REQUIRED QUALITY OF JUDGMENT FOR CP AND THEREFORE GIVE PRECLUSIVE EFFECT. B) ISSUE PRECLUSION-MOST CTS SAY THAT B/C DEFAULT JUDGMENTS WERE NOT ACTUALLY LITIGATED, THERE IS NO ISSUE PRECLUSIVE EFFECT. EX. SUIT #1-A V. B FOR NEG. B DEFAULTS. SUIT #2-B V. A. CAN A IMPOSE 1ST SUIT B’S DEFAULT AS ISSUE PRECLUSIVE ON B’S CONTRIB NEG? NO, B/C THERE WAS NO ACTUAL LITIGATION. NO ISSUE PRECLUSIVE EFFECT. 3. NON JUDICIAL DECISIONS-THERE WILL NOT BE ANY PRECLUSIVE EFFECT GIVEN TO NON JUDICIAL DECISIONS IF THE PARTY AGAINST WHOM THE 1 ST DECISION IS ASSERTED DID NOT HAVE A FULL AND FAIR OPPORTUNITY TO LITIGATE THE CLAIM OR ISSUE. EX. GRIFFIN V. BIG SPRING SCHOOL DISTRICT (APP CT 1983)-HERE A DECISION BY THE BOARD OF EDUCATION WAS NOT GIVEN ISSUE PRECLUSIVE EFFECT B/C IT WAS DETERMINED THAT HE PARTY AGAINST WHOM THE ISSUE PRECLUSION WAS ASSERTED HAD NOT HAD A FULL AND FAIR OPPORTUNITY TO BE HEARD. A) WHEN IT IS MET-BOTH STATE AND FED CTS WILL GRANT ISSUE PRECLUSIVE EFFECT TO THESE FULL AND FAIR ADMINISTRATIVE DECISIONS. B) FACTORS TO DETERMINE IF AN ADMINISTRATIVE AGENCY IS ACTING FULLY AND FAIRLY (1) NOTICE (2) RIGHT TO PRESENT AND REBUT EVIDENCE (3) FORMULATION OF ISSUES (4) RULE OF FINALITY USSC ALLOWED IT IN U.S. V. UTAH C (1900) D. PERSONS BENEFITTED AND BOUND BY PRECLUSION 1. TRADITIONAL RULE-REQUIRED MUTUALITY-THE COMMON LAW REQUIRED THAT IN ADDITION TO THE STANDARD REQUIREMENTS THE PARTY ASSERTING RJ BE IN PRIVITY W/ THE PREVIOUS PARTY FOR ESTOPPEL TO APPLY. RALPH WOLF V. NEW ZEALAND (KY 1933)-P HAD 12 INS. POLICIES ON HIS CANDY STORE. HE SUED ON 9 IN 1 SUIT. LATER HE SUED 2 OTHER INSURERS. THE D INS. Cos WANTED TO USE ESTOPPEL AGAINST THE P FROM THE 1 ST SUIT AGAINST THE OTHER INS Cos. THE CT DENIED ESTOPPEL HERE B/C THERE WAS NO PRIVITY AMONG THE Ds IN THE 2ND SUIT AND THOSE IN THE 1ST. A) EXCEPTION TO MUTUALITY REQUIREMENT-IN INDEMNITY CASES, MUTUALITY IS NOT RQUIRED FOR AN INDEMNITOR TO DEFEND A CLAIM ON ESTOPPEL FROM A CASE THAT WAS WON BY THE INDEMNITEE AGAINST THE SAME P. TO PREVENT THE INDEMNITOR FROM RAISING THE ESTOPPEL CLAIM WOULD BASICALLY FORCE HIM TO TRIAL FOR SOMETHING HE COULD NEVER RECOVER FROM INDEMNITEE FOR ANYWAY. (CITY OF ANDERSON V. FLEMING (ID 1903))

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3) MODERN APPROACH TO MUTUALITY A) DEFENSIVE MUTUALITY-STATE AND FED CTS HAVE RECOGNIZED THAT A DEFENDING PARTY MAY ASSERT ESTOPPEL FOR ISSUES DECIDED IN A PREVIOUS ACTION AGAINST THE SAME P OR HIS PRIVITIES EVEN THOUGH THERE IS NO PRIVITY B/T THE Ds OTHER THAN COMMON LEGAL AND FACTUAL CLAIM BY THE P. REQUIREMENTS TO USE DEFENSIVE PRECLUSION (1) IDENTICAL ISSUES OR CLAIMS/ DIFFERENT Ds-THE CLAIM OR ISSUE AGAINST THE D ASSERTING ESTOPPEL IS DEPENDENT UPON OR DERIVED FROM AN EARLIER LAWSUIT AGAINST ANOTHER D. (COMMON FACTS, ETC.) (2) THE P IS THE SAME OR HE WAS A PARTY OR PRIVITY W/ A PARTY IN THE 1ST SUIT. RATIONALE-THIS RULE PREVENTS P FROM REOPENING IDENTICAL ISSUES BY MERELY SWITHCING ADVERSARIES. EX. BERNHARD V. B OF A (CA 1942)-ISSUE PRECLUSION WAS RAISED BY A D WHO WAS NOT A PARTY NOR IN PRIVITY W/ THE PARTY IN THE 1ST ACTION. THE CT ALLOWED IT. (STATE RULE) B) DEFENSIVE ESTOPPEL IN FED CTS-BLONDER-TONGUE V. UNIV OF IL (SC 1971)-P SUE ANTENNA MNFR #1 AND THE P’S PATENT WAS HELD INVALID. IN A 2 ND SUIT AGAINST MNFR #2 THE LOWER CT HELD IT WAS VALID. THE SC SAID THAT THIS WAS NOT PROPER AND THAT IN THESE CASES OF DEFENSIVE PRECLUSION, NO MUTUALITY (PRIVITY, ETC.) WAS REQUIRED AMONG THE Ps. NO LIMITED TO PATENT CASES-ALTHOUGH BLONDER-TONGUE WAS LIMITED TO PATENT CASES, THE LOWER FED CTS HAVE EXPANDED IT TO COVER ALL AREAS OF LAW. C) OFFENSIVE PRECLUSIONS-AS OPPOSED TO DEFENSIVE PRECLUSION HERE WE HAVE A DIFFERENT P WHO WANTS TO ESTOP THE SAME D AS WAS SUED IN THE 1 ST SUIT FROM RELITIGATING ISSUES, ETC. THE SC IN PARKLANE HOISERY V. SHORE (1979) HAS APPROVED THIS USE OF OFFENSIVE PRECLUSION ON A DISCRETIONARY BASIS BY THE TRIAL JUDGE IF SEVERAL REQUIREMENTS ARE MET. DISCRETIONARY FACTORS(1) THE 2ND P COULD NOT HAVE EASILY JOINED IN THE 1ST SUIT AGAINST THE D. BIG ISSUE-EASILY? WHAT IS IT? (2) THE APPLICATION OF OFFENSIVE ESTOPPEL WOULD NOT BE UNFAIR TO THE D. EX. IF THE D WAS FORCED TO DEFEND IN AN INCONVENIENT FORUM AND WAS UNABLE TO ENGAGE IN FULL DISCOVERY, ETC. (3) THERE WERE NO PRIOR INCONSISTENT JUDGMENTS ERRORS IN PRIOR SUIT-IN JACK FAUCETT CASE THE CT HELD RJ SHOULD BE DENIED IF THERE WERE EVEN HARMLESS ERRORS IN THE 1ST CT’S DECISION.

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(4) THERE MUST BE NO NEW PROCEDURAL OPPORTUNITIES AVAILABLE FOR D WHICH MIGHT CAUSE A DIFFERENT RESULT. EX. PARKLANE HOISERY V. SHORE (USSC 1979)-IN THE 1ST SUIT THE SEC SUED D AND WON. IN THE 2ND SUIT A NEW P WANTED TO ESTOP THE SAME D FROM RELITIGATING ISSUES DECIDED AGAINST IT IN THE SUIT BY THE SEC. THE CT UNDER THE FACTORS ABOVE CONCLUDED OFFENSIVE PRECLUSON WAS PROPER HERE. 1ST-THE CT FOUND THE NEW P COULD NOT HAVE EASILY JOINED IN THE 1ST SUIT B/C SEC DID NOT ALLOW IT. 2ND-THE CT FOUND NO UNFAIRNESS TO Ds. 3RD-NO INCONSISTENCY, AND 4TH-NO NEW PROCEDURAL OPPORTUNITIES WERE AVAILABLE TO THE D WHICH MIGHT CHANGE THE OUTCOME. OFFENSIVE ESTOPPEL DOES NOT VIOLATE D’S 7TH AMEND RIGHT TO A JURY TRIAL. D) DEFENSIVE ESTOPPEL IN COMPROMISE VERDICTS-IF THE VERDICT IN THE 1ST SUIT WAS REACHED BY COMPROMISE, THEN DEFENSIVE PRECLUSION, AS IN BERNHARD, WILL NOT BE ALLOWED. TO DETERMINE IF THE VERDICT WAS REACHED BY COMPROMISE, CTS ANALYZE EXTRINSIC EVIDENCE. 3. 7TH AMEND GUARANTEE-THE SC HAS CONSISTENTLY HELD THE 7TH AMEND DOES NOT GUARANTEE THE RIGHT TO RELITIGATE AN ISSUE BEFORE A JURY IF THE ISSUE ALREADY HAS BEEN FULLY LITIGATED IN AN EQUITABLE ACTION. 4. DUE PROCESS GUARANTEE FOR Ps IN MASS TORTS-Ps ARE GUARANTEED THE RIGHT TO HAVE THEIR DAY IN CT. THE RESULTS OF THIS RULE ARE AS FOLLOWS. HYPO-25 Ps ARE HURT IN MASS ACCIDENT. 1ST SUIT BROUGHT BY 24 Ps. ALL USE. THE 25TH P IS NOT ESTOPPED FROM BRINGING HIS CLAIM B/C DP GUARNATEES HIM HIS DAY IN CT. OR 1ST SUIT BROUGHT BY 1ST P AND HE WINS. THE OTHER 24 Ps MAY USE OFFENSIVE ESTOPPEL. RESULT OF THESE RULES (1) P IN MASS TORTS ALWAYS PUT BEST CASE 1ST (2) Ds WILL TRY AND CONSOLIDATE CLAIMS TO AVOID MULTIPLE ATTACKS 5. BINDING NONPARTIES-THERE MAY BE ISSUES OVER WHETHER NONPARTIES MAY BE BOUND BY PRIOR JUDGMENTS. A) DP CONTROLS-MOST CTS DEMAND THAT NONPARTY SUBSEQUENT Ps NOT BE ESTOPPED TO RAISE ISSUES AGAINST SAME Ds. THE P MUST GET DP.

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B) EXTREME MINORITY VIEW-ALTHOUGH SUBSEQUENTLY OVERTURNED, THE CT IN AIR CRASH NEAR DAYTON, OHIO HELD THAT THE D COULD USE DEFENSIVE ESTOPPEL AGAINST A NONPARTY P. THE CT BASED THIS DECISION ON A NEED TO CONTROL THE DOCKET AND JUDICIAL WASTE. SUBSEQUENTLY OVERTURNED. (VIOLATION OF DP.) NOTE ON UNNAMED PARTIES-THE SC HAS HELD THAT PRECLUSION IS OK WHEN A PARTY IS A PARTICIPANT IN EVERYTHING IN THE LITIGATION BUT IS NOT NAMED. C) SPECIAL RELATIONSHIPS-MONTANA DOCTRINE-THE SC HAS HELD THAT IN ADDITION TO CLOSE RELATIONSHIPS LIKE PARENT/CHILD, ETC. WHEN NONPARTIES ASSUME CONTROL AND SUBSTANTIALLY PARTICIPATE IN THE LITIGATION THEY MAY BE BOUND AS IF THEY WERE PARTIES IN SUBSEQUENT LITIGATION. (MONTANA V. U.S. (SC 1979)) D) EXPRESS AGREEMENTS TO BIND-NONPARTIES MAY BE BOUND IF THEY EXPRESSLY AGREE TO BE SO BOUND. E) IMPLIED AGREEMENTS TO BIND-IN SOME CASES THERE MAY BE AN IMPLIED AGREEMENT TO BIND NONPARTIES WHEN FOR EXAMPLE THERE ARE 1) SAME ATTYS 2) SAME ISSUES 3) CLOSE INTEREST 4) ALL WITNESSES TESTIFIED AND PARTICIPATED IN THE PRIOR LITIGATION F) CONSENT DECREES AND FAILURE TO INTERVENE-1991 ACT PROHIBITS CHALLENGES TO EMPLOYMENT CONSENT DECREES BY INDIVIDUALS WHO HAD ACTUAL NOTICE AND REASONABLE OPPORTUNITY TO INTERVENE OR WHOLE INTEREST WERE ADEQUATELY REPRESENTED. (THIS ACT OVERRULES MARTIN V. WILKES WHICH HAD HELD OPPOSITE OF THIS IN SAYING CONSENT DECREE DID NOT BIND NONPARTIES.) RATIONALE-FAILURE TO INTERVENE IS ESSENTIALLY A WAIVER. E. INTERSYSTEM PRECLUSION-WHEN A QUESTION OF PRECLUSION IS PRESENTED TO A CT THAT IS PART OF A DIFFERENT JUDICIAL SYSTEM THAN THE ONE WHO RENDERED THE JUDGMENT, QUESTIONS OF ITS PRECLUSIVENESS ARISE. 1. INTERSTATE PRECLUSION-JUDGMENTS ENTERED IN 1 STATE ARE ENTITLED TO FULL FAITH AND CREDIT IN ANOTHER STATE B/C OF THE FULL FAITH AND CREDIT CLAUSE OF ARTICLE IV OF THE CONSTITUTION. PARKER V. HOEFER (NY 1957)-EVEN THOUGH A STATE MAY NOT ITSELF RECOGNIZE A PARTICULAR C/A OR CLAIM, IT MUST GIVE JUDGMENTS RENDERED ON THE CAUSE IN ANOTHER STATE FF&C. A) EXPANDING ANOTHER STATE’S PRECLUSION RULESMAJORITY VIEW-MOST CTS WILL LOOK TO THE RENDERING STATE’S APPROACH TO PRECLUSION AND APPLY IT JUST AS IT WOULD. MINORITY VIEW-SAME EFFECT EXPANSION-A MINORITY OF CTS WILL EXPAND THE PRECLUSIVE EFFECT OF ANOTHER STATE CT’S JUDGMENT EVEN

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IF THE RENDERING STATE WOULD NOT AS LONG AS IT HAD THE SAME EFFECT AT A MIN AS THE RENDERING CT. (FINLEY V. KESLING (IL 1982) LIMITATIONS ON EXPANSION-SOL-CTS OF 1 STATE WILL NOT ALLOW JUDGMENT OF ANOTHER STATE TO HAVE ANY EFFECT AT ALL IN THE STATE IF THE SOL HAS ALREADY RUN ON ENFORCING THAT JUDGMENT IN STATE CT. 2. STATE-FED PRECLUSION-B/C THE FF&C CLAUSE (ART IV) APPLIES ONLY TO STATE CTS, WE MUST LOOK TO THE FF&C STATUTE OF §1738 TO SEE THAT FED CTS ARE REQUIRED TO GIVE FF&C TO THE JUDGMENTS OF STATE CTS. A) §1738 FF&C STATUTE-HOLDS THAT THE JUDICIAL PROCEEDINGS OF ANY CT OF ANY STATE SHALL HAVE THE SAME FF&C IN EVERY CT W/I THE U.S. B) STATUTORY RULE-B/C THIS IS A STATUTE AND NOT CONSTITUTION, IT MAY BE SUPERVENED BY CONGRESSIONAL INTENT. (USE MARRESSE TYPE OF REVUE EVERY TIME.) C) STATE CT JUDGMENTS PRECLUSIVE EFFECT IN FED CTS1) ISSUE PRECLUSION-FED CTS MUST GIVE ISSUE PRECLUSIVE EFFECT TO STATE CT JUDGMENTS WHENEVER THE CTS OF THE STATE FROM WHICH JUDGMENTS EMERGED WOULD DO SO. (ALLEN V. MCMURRAY (SC 1980)) FULL AND FAIR OPPORTUNITY EXCEPTION-IF THE PARTY AGAINST WHOM THE ISSUE PRECLUSION IS ASSERTED DID NOT HAVE A FULL AND FAIR OPPORTUNITY TO LITIGATE THAT ISSUE IN THE EARLIER CASE PRECLUSION WILL NOT APPLY. 2) CLAIM PRECLUSION-SC HELD IN MIGRA (1984) THAT STATE CT JUDGMENTS MAY HAVE THE SAME CLAIM PRECLUSIVE EFFECT IN FED CTS THAT THE JUDGMENT WOULD HAVE IN STATE CT AS LONG AS THE FULL AND FAIR OPPORTUNITY TO LITIGATE WAS MET. D) EXCLUSIVE FED JURISDICTION SUITS-IN CASES WHERE THE FED CTS HAVE EXCLUSIVE JURIS OVER A SUBSEQUENT SUIT BROUGHT THERE AFTER A PREVIOUS STATE CT DECISION ON A RELATED MATTER WE MUST APPLY A 2 PRONG TEST TO SEE IF THE FED CT SHOULD GRANT ANY PRECLUSIVE EFFECT TO THE STATE CT ACTION. STEP #1-THE FED CT MUST DETERMINE WHETHER A STATE CLAIM PRECLUSION LAW WOULD PRECLUDE THE FED SUIT. IF NOT-THERE IS NO PRECLUSION. STEP #2-IF THE STATE WOULD BAR THE ACTION, THE CT MUST THEN DETERMINE WHETHER THE RELEVANT FED LAW CONTAINS AN EXCEPTION TO §1738 FF&C STATUTE. EX. MARRESE V. AMERICAN ACADEMY OF ORTHOPEDIC SURGEONS (SC 1985)-THE CT LAID OUT THE 2 STEP APPROACH BUT FAILED TO DETERMINE IF A §1983 CLAIM WOULD BE AN EXCEPTION. RESULT OF MARRESE CASE-IN MOST CASES, EXCLUSIVE FED JURIS WILL PREVENT PRECLUSION B/C THE STATE CTS ARE NOT CONSIDERED COMPETENT TO HEAR FED CLAIMS. PROHIBITS FED CTS FROM PRECLUDING CLAIMS THAT WOULD NOT BE PRECLUDED UNDER STATE RULES.

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3.

FED-STATE PRECLUSION-WHILE NEITHER THE FF&C CLAUSE OR THE STATUTE §1738 APPLY TO THE SITUATION WHERE A STATE CT IS CONSIDERING A FED CT’S JUDGMENT, MOST COMMENTATORS SAY THE SUPREMACY CLAUSE SUPPORTS THE VIEW THAT STATE CTS MUST GIVE PRECLUSIVE EFFECT TO FED CT JUDGMENTS. INTERSYSTEM ADMINISTRATIVE PRECLUSION-WHILE §1738 IS LIMITED TO JUDICIAL PROCEEDINGS, MOST FED CTS WILL GIVE PRECLUSIVE EFFECT TO STATE ADMINISTRATIVE PROCEEDINGS THAT MEET THE FULL AND FAIR OPPORTUNITY TO LITIGATE TEST. THE TEST IS THE SAME AS THE MARRESE TEST. EXCEPTION-CONGRESSIONAL INTENT-THE PRESUMPTION IS THAT ADMINISTRATIVE PRECLUSION IS PROPER UNLESS IT WOULD BE INCONSISTENT W/ CONGRESSIONAL INTENT.

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Description: Some of the information contained on this outline is outdated. Most of the topics discussed this term is up to date and has not changed. Next term some of the federal rules you will study are different from the ones that are contained in this outline. Good luck and make sure that you use this to study….it is very helpful.