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									                        Civil Procedure: Outline




4/16/2005
Revision 0.1

Author: Philip Larson
Civil Procedure: Outline


                                                                       Table of Contents
1.     CIVIL PROCEDURE: OUTLINE ....................................................................................... 3
     1.1     OVERVIEW ................................................................................................................... 3
       1.1.1 US Constitutional Law that binds Federal Courts ...................................................... 3
     1.2     INITIATING A LAWSUIT ............................................................................................ 3
       1.2.1 STATING THE CLAIM ............................................................................................ 3
       1.2.2 DEFENSES & OBJECTIONS: .................................................................................. 4
       1.2.3 SUMMARY OF PLEADINGS .................................................................................. 6
     1.3     DISCOVERY ................................................................................................................. 7
       1.3.1 DISCOVERY ............................................................................................................. 7
     1.4     TRIAL, JUDGMENTS & ENFORCEMENTS OF JUDGMENTS ............................. 10
       1.4.1 JUDGMENTS .......................................................................................................... 10
     1.5     SUBJECT MATTER JURISDICTION ........................................................................ 11
       1.5.1 GENERALLY .......................................................................................................... 11
       1.5.2 FEDERAL QUESTION JURISDICTION ............................................................... 11
       1.5.3 DIVERSITY JURISDICTION ................................................................................. 12
       1.5.4 REMOVAL .............................................................................................................. 14
       1.5.5 SUPPLEMENTAL JURISDICTION ....................................................................... 14
     1.6     TERRITORIAL JURISDICTION ................................................................................ 16
       1.6.1 GENERALLY .......................................................................................................... 16
       1.6.2 PERSONAL JURISDICTION IN FEDERAL COURTS ........................................ 16
       1.6.3 PERSONAL JURISDICTION ................................................................................. 16
       1.6.4 IN REM JURISDICTION ........................................................................................ 19
       1.6.5 QUASI IN REM JURISDICTION ........................................................................... 19
       1.6.6 WHEN MUST YOU GET PERSONAL JURISDICTION? .................................... 19
     1.7     VENUE & SERVICE ................................................................................................... 20
       1.7.1 VENUE .................................................................................................................... 20
       1.7.2 SERVICE ................................................................................................................. 21
     1.8     RES JUDICATA .......................................................................................................... 21
       1.8.1 GENERALLY .......................................................................................................... 21
     1.9     JOINDER ..................................................................................................................... 26
       1.9.1 JOINDER ................................................................................................................. 26
     1.10    PLEADINGS ................................................................................................................ 30
       1.10.1     SUMMARY OF PLEADINGS............................................................................ 30
     1.11    ERIE DOCTRINE: CHOICE OF LAWS ..................................................................... 30
       1.11.1     ERIE DOCTRINE ............................................................................................... 30
     1.12    APPENDIX .................................................................................................................. 32
       1.12.1     APPENDIX A ...................................................................................................... 32




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                                        1. CIVIL PROCEDURE: OUTLINE
1.1 OVERVIEW

1.1.1 US Constitutional Law that binds Federal Courts
     A. Article 3: limits types of cases Federal Court can take. Primarily limited to:
            a. Federal Question Cases: Issues arising under Federal Law (US Constitution, Treaties or US statutes)
            b. Diversity cases: citizen of one state sues citizen of another state.
     B. 28 U.S.C §1332: Subject Matter Jurisdiction

1.2 INITIATING A LAWSUIT

1.2.1 STATING THE CLAIM
     A. Relevant Federal Rules: R-3; R-8(a), (c), (e); R-9(b); R-11
            a. Suit Commencement: [R-3] “a civil action is commenced by filing a complaint with the court.”

    B. Complaint: Primary purpose is notice pleading to D. Has a caption [R-10(a)], numbered paragraphs [R-10(b)], and alleges
       facts but does not have to make a legal argument. It must show personal jurisdiction facts, facts alleging whey you are
       entitled to relief. Existence of diversity jurisdiction must be pleaded in the complaint.

            a.   Fact v. Notice Pleading: Why not require more facts in complaint? P may not have them. Or, they may include too
                 much increasing paperwork and burden on D to respond.

            b.   Short and Plain Statement: [R-8(a)] complaint shall contain “a short and plain statement of the claim, showing
                 that a pleader is entitled to relief. Requires enough specificity for sufficient notice to D. Complaint must explain
                 jurisdictional grounds on which action is based or it will be dismissed.

                      i. Cases
                            1.   Sierocinski v. E.I. Du Pont De Nemours & Co. (demonstrates 8(a) does not require evidence or
                                 particularity) – P injured while “crimping” a dynamite cap. D objected saying he didn’t know
                                 what cause of action (e.g. warranty, misrepresentation): RULE: A complaint does not have to
                                 include specific evidence, nor contain all relevant facts. It just needs to provide sufficient notice.
                            2. Kirksey v. RJ Reynolds Tobacco Co. – (it can satisfy 8(a) and get thrown out for 12(b)(6))
                                 RULE: do not have to specify the legal basis of the claim in the complaint. You do not have
                                 to identify the law.
                     ii. Exception
                            1. Pleading Fraud:
                                      a. Complaint for fraud: [R-9(b)] “In all averments of fraud or mistake, the circumstances
                                          constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge,
                                          and other condition of mind of a person may be averred generally.”
                                      b. Rationale: notice pleading – D needs to know what P is alleging he said. Fraud actions
                                          are more likely to be frivolous.
                                                i. Cons of broad interpretation: increases discovery costs; long length of
                                                    complaint b/c attorneys want to cover their bases.
                                               ii. Pros of broad interpretation: summary judgment balances out 9(b) and judges
                                                    should simply do a better job managing discovery costs.

            c.   Failure to state a claim
                      i. Conley v. Gibson – (generous standard for inferring COA from complaint) RULE: complaint should
                          not be dismissed for failure to state a claim “unless it appears beyond doubt that the P can prove no set of
                          facts in support of his claim which would entitle him to relief.” This is balanced w/ the 8(a) requirement.

            d.   Stating Claims in the “Alternative”:



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                      i. Pleading in the Alternative: [R-8(e)(2)] separate claims need not be consistent w/ each other. A party
                         “may set forth two or more statements of a claim or defense alternately or hypothetically, either in one
                         count or defense or in separate counts or defenses.” This is only subject to the good faith requirement of
                         Rule 11.
                             1. Murphy v. Cuomo – (pepper spray – Rule 11 appropriate)

    C. Rule 11 Sanctions: [R-11] You cannot make factual allegations w/o evidentiary support. Harassment and unnecessary
       delays, unreasonable lack of inquiry under the circumstances, lying, etc. Balance between preventing a fishing expedition
       and a case where it is unlikely you could get evidence prior to discovery.

            a.   Rule 11 is meant to keep parties and attorneys honest and prevent abuse of the easy pleading system. NOTE: you
                 can satisfy Rule 11 even if you don’t find evidence during discovery and you can be sanctioned even if you survive
                 summary judgment.

            b.   1993 Change: “by presenting to the court” you are recertifying these things so that you aren’t off the hook if you
                 believed it when you signed it.

            c.   Evidentiary Support: [R-11(b)(3)] You are certifying that the allegations “have evidentiary support” or, “are likely
                 to have evidentiary support after a reasonable opportunity for further investigation or discovery.” NOTE: you can
                 satisfy Rule 11 even if you don’t find any evidence during discovery.

            d.   Murphy v. Cuomo – court imposed Rule 11 sanctions against Murphy and attorney saying “bad faith” standard had
                 been replaced with a duty of reasonable inquiry.

            e.   Safe Harbor: [R-11(c)(1)(A)]You can tell the other side you think they have violated Rule 11. They then have 21
                 days to cure. This is an attempt at self-policing. Some believe this eviscerates Rule 11.

1.2.2 DEFENSES & OBJECTIONS:
     A. General
           a. After being served w/ summons and complaint [R-4(a)], D has 20 days to respond [R-12(a)] with his answer.
           b. [R-8(c)] lists various defenses that must be affirmatively alleged. Not an all inclusive list.

    B. Types of defenses and objections
          a. Not on Merits
                     i. Lack of Federal Jurisdiction - [R-12(b)(1)]
                    ii. Improper Venue - [R-12(b)(3)]
                   iii. Necessary party not joined - [R-12(b)(7)]
                   iv. Dismissal on SOL (can bring in another state)
                    v. Dismissal on failure of service (can bring again anywhere)

            b.   On Merits
                     i. Failure to state a claim - [R-12(b)(6)] – must allege all the elements of the cause of action to avoid
                        dismissal.

            c.   Other
                      i. Complaint is to “vague or ambiguous” - [R-12(e)] allows motions to ask for “a more definite statement”
                         where pleading is so vague and ambiguous that it would be unreasonable to require moving party to reply.
                     ii. Deny the truth of Ps statements - [R-8(b)]
                    iii. Affirmative defense - [R-8(c)] these include “contributory negligence”, “fraud”, “estoppel”
                    iv. Motion to strike - [R-12(f)] you can make a motion to strike any “insufficient defense or any redundant,
                         immaterial, impertinent, or scandalous matter.”

    C. Presenting Defenses and objections: D serves answer by delivering or mailing copy to Ps attorney and filing answer in
       court [R-5, 6(e), 12(a)]

            a.   Consolidation of Defenses

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                     i. Pre-Answer Motions: [R-12(g)] requires D to consolidate any of the 7 12(b) defense motions into a single
                         motion. Only lack of subject matter jurisdiction may be raised in a subsequent pre-answer motion.
                             1. Rationale: consolidation=efficiency
           b.   Cannot Reply to Answer: [R-7(a)] You cannot reply to an affirmative defense raised by D’s answer unless court
                allows you to.

   D. Waiver of defense: [R-12(h)] – this rule spells out how the Rule 12(b) defenses can be waived.
         a. Never waived: can bring up at any time.
                   i. 12(b)(1) lack of subject matter jurisdiction (never waived) [R-12(h)(3)]
                           1. NOTE: Nonjoinder of an indispensable party can be raised at any time[R-12(h)(2)]
                           2. NOTE: once judgment is made and is final, you cannot question the case for subject matter
                               jurisdiction. This prevents Ps from getting crafty after they lose despite having chosen the original
                               forum.

           b.   Rarely Waived: You can’t bring up in a 2nd pre-answer motion, if available to you in your 1 st pre-answer motion.
                However, you can bring up in your answer.
                     i. 12(b)(6) failure to state a claim upon which relief can be granted,
                    ii. 12(b)(7) failure to join a party under Rule 19

           c.   Very Waivable: You have to bring them up the very first time, otherwise they are waived. Why? These are meant
                to protect the D so if D waives them, so be it.

                      i.   12(b)(2) lack of personal jurisdiction (“special appearance” typically allowed),
                     ii.   12(b)(3) improper venue,
                    iii.   12(b)(4) insufficiency of process,
                    iv.    12(b)(5) insufficiency of service of process,
                     v.    EXCEPTION: Amendment of Pleading: if you do not submit a pre-answer motion, you can amend the
                           answer of right to preserve these defenses within 20 days after it is served or before service of responsive
                           pleading, if one is allowed. (once per pleading) [R-15(a)] You cannot amend motions w/o leave of court
                           (e.g. R-12(b)(6)).
                                1. Relating Back [R-15(c)]: amendment relating back to original pleading is allowed when 1)
                                    relation back is permitted by the law that provides the SOL applicable to the action or 2) claim or
                                    defense arose out of the conduct, transaction or occurrence set forth or attempted to be set forth
                                    in the original pleading.
                                         a. Generally not allowed when adding a new party b/c new D had no notice w/i SOL
                                              period.
                                                    i. Exception: when you get the names wrong and the person on the amended
                                                       complaint knew or should have known the suit was against them. (mistake, not
                                                       ignorance).
                                2. NOTE: defenses are only preserved if the amendment is of right

   E. Amendment of Pleading:
         a. When Allowed
                 i. [R-15(a)] P has an absolute right to amend pleading “once as a matter of course at any time before a
                    responsive pleading is served.”
                        1. NOTE: You cannot amend motions (w/o leave of the court). Therefore, you cannot amend the
                             pre-answer motion of right.

           b.   Relating Back
                     i. Adding Claims through Amendments: [R-15(c)] an amendment relates back to the date of the original
                        pleading if the new claim arose “out of the same conduct, transaction, or occurrence.” The filing of the
                        original complaint tolled the statute of limitations and the amendment relates back to that date.
                             1. Blair v. Durham – P struck on head by board falling from D’s scaffold. P amended complaint to
                                  allege negligent construction in addition of negligent handling of scaffold. RULE: amendment
                                  based on same transaction or occurrence as original complaint does not present a new cause of
                                  action that may be barred by statute of limitations.

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                                       a.   Rationale: the filing of the originparty whom claim relates back to has already received
                                            notice and therefore won’t be prejudiced.

   F.   COUNTERCLAIMS: [R-13] allows D to raise claims he has against P in answer in the form of a counterclaim.
          a. Types
                 i. Compulsory Counterclaim: [R-13(a)] D’s claim against P must be brought if it arises out of the same
                    “transaction of occurrence” otherwise it is later precluded using claim preclusion (res judicata).

                              1.   Purpose: efficiency concerns, net out differences in awards. However, too many parties can
                                   cause discord. Downside: you may have to bring things up that never get litigated b/c you’ll lose
                                   the option later.

                              2.   Transaction of Occurrence
                                      a. Williams v. Robinson – (CCs not in same T&O are not compulsory) P (wife) sued D
                                          (husband) for adultery. D denied acts and brought separate suit for libel and slander. P
                                          said it was compulsory. RULE: was not compulsory counterclaim b/c it was not the same
                                          “transaction or occurrence”; slander arose from different set of facts than alleged
                                          adultery.

                     ii. Permissive Counterclaim: [R-13(b)] D may bring claims against P that are wholly unrelated to P’s
                         original claim.
                              1. Note: this waives personal jurisdiction

            b.   Exceptions:
                      i. 1. Necessary parties don’t have jurisdiction: if it requires the presence of third parties over whom the
                         court cannot acquire jurisdiction. Haas v. Jefferson National Bank
                     ii. 2. Compulsory Counterclaim has exclusive federal jurisdiction (SEA, Antitrust).
                    iii. 3. At time of suit, your claim is subject of another pending action that did not require compulsory
                         counterclaim rule.

            c.   Note on PJ: Federal Courts have decided you don’t waive PJ by including compulsory counterclaims and lack of
                 personal jurisdiction in an answer or motion. For permissive, courts are split.

            d.   Note of Relating Back: Are D’s counterclaims barred by SOL if the time has passed since P filed original
                 complaint? Compulsory: No. Permissive: courts are split.

            e.   Effect of Omission: operates as a bar to subsequent assertion of any claims from same T&O. This is similar to
                 claim preclusion.

            f.   Statute of Limitations problem: is counterclaim barred by SOL where it is filed after the statute has run but the
                 original action (P’s complaint) was filed before the statute ran.
                       i. Majority view: if counterclaim arises out of same T&O, it will not be barred.
                      ii. Minority view: allows any counterclaim, including permissive.

1.2.3 SUMMARY OF PLEADINGS
     A. Plaintiff
            a. Complaint
            b. Reply to Counterclaim
            c. Answer to Cross-claim
     B. Defendant
            a. Answer
            b. Counterclaim against P
            c. Cross claim against co-D
            d. Answer to Cross-Claim by co-D.




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1.3 DISCOVERY

1.3.1 DISCOVERY
     A. General
           a. Purpose: The pleadings serve to acquaint parties with the scope or character of controversy, but contain little detail.
                Purpose of discovery is to prevent surprises when case comes to trial by further sifting facts and exploring the
                evidence prior to trial.

             b.   Broad in Scope: Discovery is broad in scope. Generally a party can discover “any matter, not privileged, which is
                  relevant to the subject matter involved in the pending action.”

             c.   Appears Reasonably Calculated: [R-26(b)(1)] “it is not grounds for objection that the testimony will be
                  inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible
                  evidence.”

    B. Tools of Discovery
          a. Depositions: out-of-court examination of witness under oath in which questions and answers are recorded. Most
                frequently used discovery device and may be taken at any stage in pending action.

                       i. Oral examination: [R-30] provides for oral examination of anyone (party or nonparty) who might have
                          information within the scope of discovery set out in [R-26(b)(1)]
                               1. Reasons for taking Oral Deposition
                                       a. preserve testimony of witness who may not be available at trial
                                       b. expose weakness in adversary’s claim
                                       c. pin down witness to sworn testimony prior to trial
                                       d. may need information (e.g. names of witnesses or documents)

                               2.   Procedure for deposition: reasonable notice in writing. subpoena is necessary for a nonparty
                                    deponent.

                      ii. Written Questions: [R-31] questions may be submitted in advance in writing to other party in suit. Other
                          party has 30 days to respond. Witness usually learns of the questions in advance so his answer may be
                          rehearsed.

             b.   Interrogatories: [R-33] sets of written questions sent by one party to any other party in the action. [R-33(a)] these
                  are a simple and inexpensive means of discovery.
                        i. Who can get Interrogatories? [R-33] only parties. Can’t be served on strangers.

                      ii. Responding to Interrogatories: party must answer within 30 days.

                      iii. Scope of questioning: a party may discover “any matter, not privileged, which is relevant ot the subject
                           matter involved in the pending action.” [R-26(b)(1)]

             c.   Requests for Admission[R-36]
                       i. Definition: Any party may serve on any other party a written request to admit either genuineness of a
                          relevant document or truth of any relevant matter. Party served must either admit or deny, under oath, the
                          matters set forth in the request. [R-36]
                      ii. Effect: admissions are conclusive for present proceedings. They cannot be disputed or controverted by
                          admitting party at trial. [R-36(b)] Failing to deny admissions is deemed to be admitted.
                     iii. Purpose: Expedite trial and reduce cost of proving facts at trial.

             d.   Production of Documents [R-34]
                      i. Definition: any party may serve on any other party a request to allow him to inspect and copy any item of
                          real evidence in the latter’s control. [R-34(a)]

             e.   Subpoena[R-45]

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                     i. This is required to get documents from 3rd parties. After service, they have 14 days to object. Otherwise,
                        they are required to show up and bring documents.

   C. LIMITATIONS ON DISCOVERY
         a. Must be Relevant [R-26(b)(1)] What you are asking for does not have to be admissible but it must be relevant and
            reasonably calculated to lead to admissible evidence.

           b.   Cost of Discovery borne by party turning over materials: [R-26(b)(3)] you can object saying burden outweighs
                the likely benefit.

           c.   PRIVILEGE
                    i. Common privileges
                          1. Spousal privilege:
                          2. Attorney-Client privilege
                                  a. Communication and correspondence. Exists so you can speak freely with your attorney to
                                      get good representation.
                                  b. If your client lies to the court, you have to stop your client from speaking and get off the
                                      case and notify the court.
                                  c. FACTS DO NOT FALL under A/C privilege

                             3.   Work Product Privilege
                                     a. General: Work product privilege protects documents and other tangible things that are
                                         developed in preparation for trial/litigation. Impressions of documents = documents
                                         (Peterson rule). Attorney’s notes, opinions, legal theories, impressions are always off
                                         limits. Facts are always discoverable.
                                     b. Purpose:
                                               i. 1. protect attorney strategy about how the case should proceed.
                                              ii. 2. prevent a free rider problem. However, this is not that persuasive b/c the
                                                  other party is motivated to do their work because they want to win.
                                             iii. 3. W/o it, the other party could get all of this material and use it to impeach your
                                                  witnesses. Lawyers would become witnesses. You will have small differences
                                                  between what is said here and at trial. This is a problem.
                                             iv. 4. w/o workproduct, you might be too scared to investigate for fear that you will
                                                  be creating prejudicial, discoverable material. Lawyers will keep crummy
                                                  records.
                                     c. Exception: However, you can get past the work product problem if you show adequate
                                         need.

                                      d.   Hickman v. Taylor – ISSUE: is information obtained by D’s attorney in preparation for
                                           trial privileged and hence protected from discovery? Yes.

                                      e.   Work Product Rule Codified: [R-26(b)(3)] This rule expands on Hickman saying that
                                           documents and things prepared in anticipation of trial are only discoverable if there is 1)
                                           substantial need and they are unable to get it themselves 2) without substantial
                                           hardship.
                                                i. Rackers v. Siegfried – P requested documents including measurements of skid
                                                    marks made by D’s insurance company. He showed substantial need b/c no one
                                                    else had them.

                                               ii. Exceptions:
                                                      1. Substantial need: [R-26(b)(3)] provides that a party witness is entitled
                                                           to a copy of the statement she gave to adversary attorney w/o showing
                                                           need or hardship.
                                                      2. Impeachment: 1) work product you have against their witnesses 2)
                                                           work product they have against your witnesses (moved in direction of


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                                                              allowing you to discover this if they can depose the witness first – to
                                                              try to impeach them)

                                                iii. Expert witnesses: whether this is work product depends largely on whether
                                                     expert is going to be a witness at trial
                                                         1. Not expected to testify: generally held to be work product unless party
                                                               has a “monopoly on available experts.” [R-26(b)(4)] (Want to avoid the
                                                               free-riding problem where one side does all the work and the other just
                                                               uses discovery to get all research.)

                                                         2.   Expected to Testify: generally discoverable.

   D. DISCLOSURE
         a. Discovery vs. Disclosure: Discovery is getting information, documents, etc. by asking for it while disclosure is
            giving information without being asked for it.

            b.   What must be disclosed:
                     i. 1. Experts
                    ii. 2. List of witnesses
                   iii. 3. Favorable material (not unfavorable)
                   iv. 4. Witness and other evidence that will be presented as evidence
                             1. Exception: impeachment evidence. This allows you the benefit of surprise to impeach witnesses.

   E. HEARSAY
         a. Definition: Hearsay is a statement, other than one made by the declarant while testifying at the hearing, offered in
            evidence to prove the truth of the matter asserted. Newspapers are hearsay. Affidavits are hearsay.
         b. Rule: If evidence is “hearsay”, it is prima facie not admissible.
         c. Why does the rule exist? B/c the witness is not under oath, and the jury cannot observe the validity of statement
            based on the character of the testimony, so the testimony is not as reliable. The other party is unable to cross-
            examine the party.
         d. EXCEPTION: signed affidavits, while not admissible in trial because of hearsay, can be used during summary
            judgment to mimic their testimony. What would be hearsay if they spoke it on the stand would be inadmissible in
            the written affidavit. Celotex v. Catrett (Hoff letter was hearsay but was not in affidavit form – ct. used it as proof of
            what would be said in trial for purpose of summary judgment, but this is strange b/c they aren’t bound by what they
            said in it).

   F.   MOTIONS FOR TERMINATING LITIGATION EARLY
          a. Prior to Trial
                  i. Motion for judgment on the pleadings (MFJOP):
                          1. What is it: you are basically saying adversary’s pleadings are insufficient as a matter of law to
                             establish a claim or defense.
                          2. When is it: Any party may seek to terminate suit prior to trial through a motion for judgment on
                             the pleadings. Similar to Rule 12(b)(6) failure to state a claim except that it is made after the
                             pleadings are closed but before trial.
                          3. When granted: when granted, the court usually grants a leave to amend the pleadings unless the
                             motion discloses some absolute bar to the action.

                     ii. Motion for summary judgment (MFSJ)
                            1. What is it: While the MFJOP attacks sufficiency of pleadings, MFSJ attacks the basic merits of
                                 the opponents case; i.e. trying to show the case has no merit, regardless of what pleadings say.

                              2.   Grounds: [R-56(c)] Motion is proper when there are no material facts in dispute and there is no
                                   legal basis for P to recover; “there is no genuine issue as to any material fact, and that the moving
                                   party is entitled to a judgment as a matter of law.”




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                               3.   Appealable? Granting SJ is appealable. Denial of SJ is not appealable b/c it is not a final decision
                                    (just continue w/ trial).

                               4.   CASE
                                       a. Celotex Corp. v. Catrett – there is no genuine issue of material fact when, after
                                          discovery, party opposing SJ fails to make showing sufficient to establish an essential
                                          element of their case of which they would have the burden of proof at trial. If moving
                                          party has not met burden of production, the other side can move for summary
                                          judgment.
                                               i. Brennan: If D is moving party: they just have to show evidence of one elemnt
                                                   of COA that jury would have to find in their favor or argue for one element that
                                                   P doesn’t have any evidence such that jury has to find for D.
                                       b. American Airlines v. Ulen – P filed negligence against D (AA) for injuries in airplane
                                          crash. RULE: P was entitled to summary judgment where there was no disagreement
                                          about the facts.
             b.   Prior to Verdict
                       i. Motion for Directed Verdict (MFDV)
                              1. What is it: At the close of the evidence offered by his opponent, move for a directed verdict w/o
                                   waiving his right to present rebuttal evidence. [R-50(a)]

                               2.   Standard for ruling:
                                        a. Majority: judge can’t weigh evidence at all. He must look solely to evidence of non-
                                           moving party and look at it in the light most favorable to them.

                                        b.   Minority: allow trier of fact to consider all evidence on the record, to judge the weight
                                             and credibility of the evidence, and grant directed verdict when reasonable minds could
                                             not differ as to the outcome of the case.

                       ii. Motion for nonsuit
                      iii. Motion for involuntary dismissal

1.4 TRIAL, JUDGMENTS & ENFORCEMENTS OF JUDGMENTS

1.4.1 JUDGMENTS
     A. Motions After Verdict or Judgment
           a. Motion for Judgment Notwithstanding the Verdict (MFJ N.O.V.)
                     i. a.k.a Renewed motion for directed verdict.
                    ii. What is it: has the effect of nullifying the jury’s verdict. Judge determines that, regardless of the verdict,
                        the evidence is legally insufficient to sustain the verdict, and judgment must be entered for the other party.

                      iii. Prerequisites: [R-50(b)] 1) Trial by jury; 2) At close of evidence, moving party made a MFDV which
                           was denied; 3. MFJ n.o.v must be timely made.

                      iv. Test: court must disregard all conflicts in the evidence, cannot consider the credibility of the witnesses,
                          must give full value to the evidence of the party in favor of verdict, and draw every legitimate inference
                          from such evidence in favor of the verdict. He can only grant motion if it is still insufficient as a matter of
                          law to support verdict.

                       v. Effect: If MFJ N.O.V. is granted, court must decide whether there will be a new trial or whether the verdict
                          will simply be reversed. If denied, only recourse is appeal of the judgment. You can’t appeal denial of the
                          motion.

             b.   Motion for a new trial (MFNT): On motion, trial judge may modify a verdict in whole or in part, or grant a new
                  and further trial on all or part of the issues. [R-59] This must be against the weight of the evidence.
                       i. When is this applied:


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                              1.   Irregularities in proceedings
                              2.   Misconduct of jury in deliberations
                              3.   Accident or surprise that prejudiced the outcome.
                              4.   Verdict is against the weight of the evidence.

    B. ENFORCEMENT OF JUDGMENTS
          a. Writ of execution: if D refuses to pay, P may have to return to court to have judgment enforced. [R-69] provides
             for a writ of execution to enforce a judgment for payment of money.
                   i. CASE: Gabovitch v. Lundy
          b. Supplementary Proceedings: Many states provide for “supplementary proceedings” in which a case is
             supplemented to compel the party to appear and pay the debt.
          c. Final Judgment Rule: An appeal in a civil action lies only from the final judgment of the action.
                   i. Rationale: to prevent costs and delays that would be inherent if you could appeal every intermediate order
                       or ruling made by the trial court. (Issue: you can go through the whole trial before a motion can be
                       reversed.)
          d. Appeal to Supreme Court:
                   i. Certiori: by writ of certiorari granted upon petition of any party, Supreme Court can take a case for
                       review.

1.5 SUBJECT MATTER JURISDICTION

1.5.1 GENERALLY
     A. Summary: While the basis for jurisdiction involves constitutional due process requirements, the question of competency is a
        statutory one. The issue is whether the government, by constitution or statute, has conferred judicial power upon the
        particular court to hear the particular type of action involved (subject matter jurisdiction).
             a. Jurisdiction Conferred on Federal District Courts:
                       i. Federal Question Jurisdiction [28 U.S.C. §1331]
                      ii. Diversity Jurisdiction [28 U.S.C. §1332]
                     iii. Supplemental Jurisdiction [28 U.S.C. §1367]

    B. Jurisdiction to determine Jurisdiction: every court has “jurisdiction to determine its own jurisdiction. The court can
       properly exercise judicial power long enough to rule on whether it has jurisdiction.

    C. Judicial power of states: States are courts of general jurisdiction meaning that they will usually have the power to hear any
       kind of action brought before them as long as they have personal jurisdiction and venue. There are a few exceptions created
       by congressional acts. (e.g. bankruptcy, antitrust actions, SEA).

    D. Judicial Power of the US: Federal courts are courts of limited jurisdiction having only the judicial power conferred on them
       by the US Constitution or Acts of Congress.
            a. Constitutional Provisions: [Article III, §2] provides that the judicial power extend to:
                     i. Federal Question Jurisdiction: Cases “arising under this Constitution, the law of the United States, and
                        treaties.
                    ii. Diversity Jurisdiction: Controversies between citizens of different states, or between citizens and foreign
                        nationals.
                   iii. US is Party: cases to which US is a party.
                   iv. B/W States: controversies between two or more states, or between a state and a citizen of another state.

1.5.2 FEDERAL QUESTION JURISDICTION

    A. DEFINITION: [28 U.S.C. §1331] civil actions that arise under the Constitution, laws or treaties of the US.
          a. What is it: Some element of federal law must be an essential part of P’s cause of action. P’s ability to recover must
             depend in whole or substantial part on some federal statute, treaty, or turn on an interpretation of the Constitution.
             An incidental or indirect involvement of federal law is not sufficient.




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    B. PLEADING REQUIREMENT: Federal question must appear on P’s complaint. Federal defenses from D don’t make it a
       federal question.
           a. CASE: Louisville & Nashville Railroad Co. v. Mottley (well pleaded complaint – federal defense not enough) –
                RULE: allegation in the complaint that a defense will be based on an Act of Congress is not sufficient to sustain
                federal question jurisdiction.
                      i. Why? Federal courts are courts of limited jurisdiction. Constitution is a balance of power b/w states and
                         federal government. Any time federal courts step past what they have been granted by Congress under
                         Article III, they are engaging in judicial imperialism and is unconstitutional.

    C. NO JURISDICTIONAL AMOUNT: since the 1980s, there is no jurisdictional amount requirement for bringing federal
       question cases to federal court.

    D. EXCLUSIVE FEDERAL JURISDICTION: Congress, in a few instances, require cases to be brought in federal court.
       Examples: Antitrust cases and Securities Exchange Act cases.

1.5.3 DIVERSITY JURISDICTION
     A. GENERAL
           a. DEFINITION: [28 U.S.C. §1332] Federal district courts have jurisdiction over a civil action where the amount in
              controversy exceeds $75,000 (exclusive of interest and costs), and diversity of citizenship or alienage exists
              between the parties.
                   i. Time diversity is determined: diversity need only exist at the commencement of the action.

                              1.   CASE: Baker v. Keck (you can purposefully move somewhere to create diversity) – P lost an
                                   arm. Moved to Oklahoma and filed suit in federal court against D which had no members in OK
                                   for sole purpose of creating diversity. RULE: Diversity is not defeated where P changes domicile
                                   for very purpose of acquiring diversity jurisdiction.
                                        a. RULE: Satisfied here by working for free in community, registered to vote, took most of
                                             his belongings. Floating intention to return home later doesn't destroy domicile.

            b.   Purpose: purpose of diversity is so that a state court judge doesn’t favor in state Ps. Why is §1332 drafted poorly?
                      i. P (CA) sues D (NV) in OR. Risk of bias? No. Diversity? Yes.
                     ii. P (CA) sues D (NV) in CA federal court. Risk of bias to P? No. Diversity? Yes. NOTE: removal statute
                         got it right by not allowing D to remove from states where they are domiciled. §1332 should do the same
                         for Ps.
                    iii. P (CA) sues D1(CA) and D2 (NV). Diversity? No. Bias? Possibly against D2.

    B. TYPES OF DIVERSITY:
          a. Diversity of Citizenship: a citizen of one state sues a citizen of a different state.
          b. Diversity based on Alienage: a citizen of a state sues a foreign state or its subjects.
          c. Special Instance Diversity

    C. MINIMAL vs. COMPLETE DIVERSITY
          a. Minimal Diversity: Constitutionally [Article III, §2] only requires minimal diversity in which controversy is
             between citizens of different states. No requirement that all P’s be diverse from all D’s.
          b. Complete diversity: All parties on one side of the action must be of different citizenship from all parties on the
             other side of the action. Any instance of common citizenship on both sides of the action will destroy diversity. Not
             required by §1332 but this has been the interpretation.

    D. CITIZENSHIP (not residence)
          a. Natural Persons:
                  i. Citizenship means “domicile”: where a natural person is a party, citizenship has the same meaning as
                     domicile. E.g. the place where he resides with the intent to remain indefinitely.
                 ii. People have ONLY ONE citizenship

            b.   Corporate Citizenship


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                      i. Dual Citizenship[28 U.S.C. §1332(c)(1)]: A corporation has dual citizenship. It is deemed to be both a
                          citizen of:
                               1. State of its incorporation
                               2. State in which it has it’s principal place of business
                                        a. Determining “Principal Place of Business”
                                                   i. “Nerve Center” test
                                                  ii. “Place of Operations” test
                                                           1. CASE: Kelly v. United States Steel Corp – incorporated in NJ, USSC
                                                               had executive offices in NY but had 7 VPs, 32% of personnel, 34% of
                                                               management and 33% of tangible property in Pennsylvania. RULE:
                                                               Court found nerve center was NY but “principal place of business” was
                                                               PA.
            c.   Unincorporated Association: you accumulate the states of all of its members. Means if you have a national
                 association, you can never have diversity.
            d.   Representative: e.g. of an estate or incompetent person, class actions, etc.
                      i. Historic rule: diversity of citizenship is based on citizenship of representative not the represented. (still
                          the case in class actions.)
                     ii. Modern rule: Congress passed a statute overruling the historic rule in actions involving incompetents,
                          children and estates (diversity is based on the represented). NOTE: not applied to class actions.

   E. AMOUNT IN CONTROVERSY (JURISDICTIONAL AMOUNT)
        a. Purpose: ensures that federal jurisdiction will only be invoked in “substantial” controversies.
        b. Amount: $75,000 excluding interest and costs
        c. Aggregation: A single P and single D can aggregate claims they have against each other. Multiple P’s cannot
           aggregate claims against a single D or a single P’s claims against multiple D’s.
                 i. Note: She may not aggregate several claims against several Ds to meet minimum unless Ds are jointly
                    liable. Similarly, several Ps may not aggregate their claims to meet minimum.
                ii. Exception: Ps have a common and undivided interest (e.g. Ps are beneficiaries suing administrator –
                    probably would extend to injunctive relief)
               iii. Counterclaims: D’s counterclaims cannot be added to Ps action to meet minimum.
                         1. Compulsory: does not have to meet minimum. Supplemental jurisdiction (§1367)
                         2. Permissive: must meet minimum. No supplemental jurisdiction b/c not the same case &
                             controversy and did not involve a common nucleus of operative fact.
                         3. Removal: D cannot remove based on his counterclaim value. The original claim must exceed
                             75K. P can’t remove the counterclaim either because removal is only allowed for Ds.

            d.   Legal certainty: Court must be able to rule to a legal certainty that the amount could not be more than $75,000. It
                 is difficult to get the case dismissed based on this. NOTE: Ct does not have to listen to the parties.

   F.   COLLUSIVE JOINDER [28 U.S.C. §1359]
          a. Defeating Diversity is Okay: RULE: most scholars agree that there exists no reason why diversity cannot be
             defeated by collusive joinder, since the state that prevents creating diversity by collusion [28 U.S.C. §1359] does not
             apply to collusive joinder to defeat diversity. World-Wide Volkswagen (P joins D’s from NY to prevent removal to
             federal court)
                  i. Exception: Fraudulent Joinder – CASE: Rose v. Giamatti – Rose wanted to prevent Giamatti from
                      conducting an investigation into allegations he was gambling. He joined two Ohio Ds. Court concluded
                      that neither D had any control over Giamatti and could therefore not be real parties.

            b.   Creating Diversity through assignment is not Okay: RULE: diversity jurisdiction does not exist if any party is
                 improperly or collusively joined in order to invoke federal jurisdiction
                      i. CASE: Kramer v. Carribbean Mills, Inc. – (collusive assignment) P (Kramer) paid a Panamanian
                         company a dollar for a contract COA against a Haitian company. P promised to return 95% of the
                         recovery. RULE: P may not create diversity jurisdiction through the collusive assignment of a COA.




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1.5.4 REMOVAL
     A. Removal Jurisdiction: In most cases in which “federal question” or “diversity” existed at time action was filed, but P chose
        to sue in state court, D may compel removal of action to federal court. [28 U.S.C. §1441]
             a. Statute: any civil action brought in a State court of which the district courts of the United States have original
                  jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the
                  district and division embracing the place where such action is pending.

             b.   Purpose: removal jurisdiction is meant to provide an impartial court when D is sued away from home.

             c.   Exclusive Right of D: Right of removal is vested entirely with D. Where P sues D originally in state court and D
                  counterclaims for a much larger amount, P still cannot remove.

             d.   Multiple Ds: where there are multiple Ds in the action, they jointly have the right to removal. All Ds properly
                  joined must agree to removal. If any D doesn’t, the action cannot be removed.

             e.   Effect on PJ, SMJ, and Venue
                       i. Venue: federal court always has venue in jurisdiction where it was brought in state court even if state court
                           doesn’t satisfy § 1391.

    B. Entire Case is removed
           a. Statute: [28 U.S.C. §1441(c)] Whenever a separate and independent claim or cause of action within the jurisdiction
               conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of
               action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion,
               may remand all matters in which State law predominates.
                     i. Only § 1331 cases - this ensures a P will not join unrelated state law claims to defeat removal since it can
                         be removed the Federal court can remand the state cause of action.
                    ii. Why not § 1332 cases? This does not apply to Diversity cases b/c if P has more than one cause of action
                         against D, and one cause of action does not meet 75K, that is ok b/c claims can be aggregated.

             b.   EXCEPTIONS:
                     i. Diversity (§1332) cases in D’s home state: Diversity actions in which any D properly joined and served is
                        a citizen of the state in which the action is filed are not removable. [28 U.S.C. §1441(b)] Doesn’t matter if
                        other D’s are not from the same state (though this seems to screw them).

                       ii. FELA – suits brought in state court under the Federal Employers’ Liability Act are not removable.

                      iii. Counterclaims: cannot be removed. Right of removal is vested entirely with D. Where P sues D
                           originally in state court and D counterclaims for a much larger amount, P still cannot remove.

             c.   Procedure for removal: D must file notice of removal within 30 days after D is served in state action. [28 U.S.C.
                  §1446]

1.5.5 SUPPLEMENTAL JURISDICTION
     A. Summary: Supplemental jurisdiction gives the federal court jurisdiction over claims related to those within the court’s
        original jurisdiction such that they form part of the same case or controversy. [28 U.S.C. §1367(a)] This section tried to
        codify pendent and ancillary jurisdiction.
             a. Questions:
                        i. 1. Did action arise from common nucleus of operative fact?
                       ii. 2. Is the original case a §1331 federal question action? If so, then supplemental applies.
                      iii. 2a. If § 1332, check additional limitation for joinder to determine if supplemental juris. applies.
                      iv. 3. A district court may still decline supplemental jurisdiction because it is complicated, is a state action, or
                            court has dismissed all claims giving rise to SMJ. [28 U.S.C. §1367(c)]

    B. Federal Question Actions §1331
          a. If § 1331 action, then all that is needed is case or controversy and common nucleus of operative fact.


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   C. Diversity Actions: §1332
          a. Additional requirement limiting supplemental jurisdiction in joinder
                    i. Summary
                           1. D can bring actions against anyone
                           2. Impleaded parties can sue P but P can’t sue impleaded parties.
                   ii.
                  iii. Exclusions: [28 U.S.C. §1367(b)] In any civil action of which the district courts have original jurisdiction
                       founded solely on § 1332 of this title;
                           1. Claims by P against persons made party through joinder (R-19, R-20), intervention (R-24)
                               or 3rd party practice (R-14) (impleader)
                                    a. PI (14: impleader), N (19: necessary party), J (20: permissive joinder), V
                                        (intervention); not permitted (no supp. juris.) b/c original action based on diversity

                             2.   Claims by persons proposed to be joined as Ps through intervention (R-24) or necessary
                                  party joinder (R-19), where it would destroy diversity. ISSUE: why not 20(a)?

   D. Pendent and Ancillary
         a. Pendent Jurisdiction: as long as a substantial federal question was involved, district court can hear nonfederal
             claims that were pendent – directly related to the federal claim. This power is discretionary.
         b. Ancillary Jurisdiction: federal court could exercise original jurisdiction over a nonfederal claim if it was
                   i. Great weight of authority requires independent ground of jurisdiction always be established by each P
                      seeking to proceed against a new D.
                  ii. CASE: United Mine Workers v. Gibbs – Gibbs test of jurisdiction allowed federal court to hear a state law
                      claim arising between citizens of the same state when the federal and nonfederal claims arise from a
                      common nucleus of operative fact.
                          1. Gibbs Factors for Declining Supp. Juris.
                                    a. (i) Novel or complex issue of state law
                                    b. (ii) State claim predominates base claim(s)
                                    c. (iii) District court has dismissed base claim(s) (if dismissed for lack of subject matter,
                                        must dismiss state claim)
                                    d. (iv) In exceptional circumstances if there are other compelling reasons

                    iii. CASE: US v. United Mine Workers – (can’t disregard appealable order) when court issues order based on
                         supplemental jurisdiction, can party disregard the order b/c it is appealable? No. Supplemental jurisdiction
                         applies and order must be obeyed under penalty of contempt.

   E. Cases from before § 1367
         a. CASE: Kroger: became codified in [28 U.S.C. §1367(b)] - P tried to bring claim against impleaded party directly
              under R. 14 6/7th sentence, no independent base for SMJ, meets constitutional standard, but court said 1331 won't
              allow it, claims frustrating purpose of diversity.
                   i. Tries to prevent collusion.

           b.   CASE: Finley P sued non-diverse D for federal securities fraud (exclusive federal jurisdiction), then added state law
                claim about same activities against non-diverse D2, met constitutional case requirement, but court wouldn't allow
                saying it would frustrate 1332. Holding doesn't make sense, 1332 is to allow federal judges to opine about federal
                law

   F. Effect on other Claims
          a. Counterclaims:
                    i. Compulsory Counterclaims: counterclaims from same T&O are deemed ancillary and do not require
                       independent jurisdictional grounds to support it (supplemental jurisdiction applies).

                     ii. Permissive Counterclaims: must have independent jurisdictional grounds to support it.

           b.   Cross-Claims


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                       i. Supplemental Jurisdiction Always Applies: Since the cross-claim must be closely related to existing
                          action, it is always deemed within ancillary (supplemental) jurisdiction of the court. No independent
                          ground for federal question is required.

1.6 TERRITORIAL JURISDICTION

1.6.1 GENERALLY
     A. Summary: notion that the state has a connection with the persons or property involved in the action such that its courts may
        determine the controversy. There are in personum, in rem and quasi in rem.
     B. Approach to solving
            a. 1. Does COA concerning property?
                      i. In rem? Binding the whole world
            b. 2. Is it In Personam Jurisdiction (no limit to amount you can sue for)
                      i. General jurisdiction?
                              1. Individual
                                      a. Tagging
                                      b. Domicile
                              2. Corporation
                                      a. Substantial contacts w/ forum state
                     ii. Specific Jurisdiction
                              1. Contact w/ forum state
                              2. Relatedness of actions in state to COA
                              3. Do McGee factors argue for PJ?

1.6.2   PERSONAL JURISDICTION IN FEDERAL COURTS

    A. Jurisdiction conferred on Federal Courts
           a. 1. Limited by Due Process clause of 5th Amendment: Satisfied by showing Int’l Shoe contacts with the US as a
                whole. Usually very easy to meet. U.S. Const. Amendment V. No person shall . . . be deprived of life, liberty, or
                property, without due process of law . . .

             b.   2. 4(k) Test: Congress has only given federal courts the following power
                        i. [R-4(k)(1)(A)] A party is amenable to federal suit wherever the party would be subject to suit by a court
                           of the state in which the district court sits.
                                1. Exception: [R-4(k)(1)(B)] 100 mile bulge rule - narrow provision allowing federal court to assert
                                     jurisdiction over a party under Rule 14 (impleader) or Rule 19 (necessary party) and is served
                                     within a judicial district of US not more than 100 miles from place from which summons issues.
                                2. [R-4(k)(1)(D)] authorized by statute of US.
                       ii. FALLBACK PROVISION: R-4(k)(2)] no single state would have PJ, but there are sufficient contacts w/
                           US.
             c.   3. Go through establishing PJ through the state (e.g. domicile, long-arm statute, tagging, etc.)
                        i. Make sure the state court’s constitution allows it or what is available in the state’s long arm statutes.

    B. Purpose: we are trying to mimic the state rules to prevent forum shopping.

1.6.3 PERSONAL JURISDICTION
     A. Summary: If court has in personam jurisdiction, it has authority to determine the rights and duties of the parties and the
        power to bind the parties personally. Traditionally, in personam jurisdiction was limited to theory that a state’s sovereignty
        could not be asserted beyond its borders.
            a. Every cause of action: Personal jurisdiction is required for every individual COA brought against D. D can make
                motions to dismiss for lack of PJ for each COA.
            b. Every joined party: PJ must be satisfied for anyone joined or dragged into the suit.

    B. Three Bases:
          a. 1) Tagging – D’s presence in the state combined w/ personal service of process.


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           b.   2) Domicile – D’s status as a domiciliary (D resides in state with intent to remain indefinitely)
           c.   3) Consent – implied or express consent to jurisdiction.

   C. Traditional Bases Defined
         a. TAGGING
                    i. Summary: Service of process (summons and complaint) on a D that is physically present within the state
                       is a constitutionally sufficient basis for court to assert jurisdiction over him. This also satisfies the
                       requirement that he receive adequate notice of the action.
                            1. Exception: people entering the state to make “special appearances” for the sole purpose of
                                 challenging the court’s jurisdiction. (they are immune from tagging for other actions)
                   ii. Why is this okay? Brennan: you are getting the benefits of the state. That gives rise to some
                       responsibilities. Scalia: tagging is okay b/c it was ok at the time of the 14th amendment (Penoyer) and b/c it
                       is accepted by the states in general.
         b. DOMICILE
                    i. Summary: a person’s domicile is his legal home, the place where he resides with the intent to remain
                       indefinitely. This is held to be sufficient “contact” between him and the state of his domicile to permit
                       personal jurisdiction over him in that state, even when he is physically beyond its borders.

                     ii. Corporations: domicile for a corporation is its legal home, the place where it is incorporated. This is held
                         to be sufficient contact between it and the state of its domicile to permit personal jurisdiction over it, even
                         for actions taken by it beyond the state’s borders.

           c.   CONSENT
                    i. Express Consent: in Ks, by filing an action in that state, etc.
                   ii. Implied Consent: a nonresident who performs certain acts within the state are deemed to consent.

           d.   ACTS DONE IN STATE
                    i. Summary: State can exercise jurisdiction pursuant to a long arm statute saying that if a party performs
                       certain acts in the state, the state can exercise jurisdiction.
                   ii. Common types: “doing business” in the state, “committing a tortious act” in the state, “breaching a K” in
                       the state, etc.

   D. “MINIMUM CONTACTS” THEORY
         a. SPECIFIC JURISDICTION
                i. Minimum Contacts Test: to the extent a corporation conducts activity within the state, it enjoys the
                   benefits and protection of the laws of that state. Therefore, the corporation may incur obligations within
                   that sate. It is not unfair to require corporations to respond to a suit brought to enforce such obligations.
               ii. Before International Shoe: agents of process were the means of getting around PJ for past actions. This
                   fiction was unnecessary after International Shoe.

                    iii. CASE: International Shoe Co. v. Washington (PJ: minimum contacts test)
                            1. FACTS: International Shoe (D) was incorporated in Delaware and had principal place of business
                                 in Missouri. It had salesmen in Washington (P) to solicit orders. D had no WA office, no Ks in
                                 WA, no merchandise in WA. P sued D to force it to contribute to unemployment compensation
                                 fund of state. D challenged jurisdiction saying no inpersonam jurisdiction.
                            2. RULE: To find in personam jurisdiction , defendant must have some minimum contact with the
                                 forum state and the exercise of jurisdiction cannot violate traditional notions of fair play and
                                 substantial justice. D’s activities in the state were systematic and continuous over several years
                                 so jurisdiction was appropriate.
                            3. SUMMARY: If a company is enjoying the benefits of the state, that gives them an obligation to
                                 return there if there is a problem to answer for causes of action related to your previous actions
                                 in the forum.

                    iv. CASE: McGee v. International Life Insurance Co. (PJ: D’s actions don’t matter in finding PJ: single
                        contact is sufficent)


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                             1.   FACTS: D (texas corp.) sent letter to P (CA resident) who mailed his premiums to TX. P sued in
                                  CA to collect amount of insurance policy. TX court refused to enforce judgment on basis that CA
                                  court had no jurisdiction.
                             2.   ISSUE: Does mere solicitation by mail to residents constitute sufficient contact with a state to
                                  support in personam jurisdiction? Yes.
                             3.   EFFECT: based on McGee, there are few contacts with a state that would prove to be inadequate
                                  as a basis for jurisdiction.
                                       a. NOTE: McGee is different than Int. Shoe because it is not about political power of the
                                            state. It is about convenience and fairness.
                                                   i. What is the burden on P to go to a different forum? Heavy on poor CA resident.
                                                  ii. What is the burden on D going to CA? Rich insurance company can afford it.
                                                 iii. Where are the witnesses located? Probably CA.
                                                 iv. Does forum state have an interest in taking jurisdiction? CA wants to protect its
                                                       citizens.
                                                  v. Which is the better place to apply the law? CA is probably better at applying
                                                       CA law than TX.

                    v. CASE: World-Wide Volkswagen Corp. v. Woodson (NO PJ: venue but no specific personal jurisdiction)
                          1. FACTS: Robinsons (P) bought Audi from Seaway (retailer) in NY. They moved to AR but got in
                              a car crash in OK. They sued Seaway and regional distributor (World-Wide Volkswagen). D
                              claimed exercising jurisdiction in OK offended Due Process Clause.
                          2. ISSUE: Is foreseeability that product could injure a particular state sufficient contact to justify that
                              state’s exercise of personal jurisdiction over product’s seller, located in a different state? No.
                          3. RULE: To exercise PJ over D, the state must have minimum contacts w/ D. This protects D from
                              unfair and inconvenient litigation.
                          4.

                    vi. CASE: Asahi Metal Industry v. Superior Court (NO PJ: Stream of Commerce)
                           1. FACTS: Zurcher injured in motorcycle accident b/c of defective tire. Zurcher sued Cheng Shin
                               (tube maker) who impleaded Asahi (manufacturer of tube’s valve system).
                           2. RESULT:
                                    a. Brennan’s Approach: McGee factors are enough. 4 justices said that minimum contacts
                                       would exist over P, because it put goods into the stream of commerce flowing into the
                                       forum state. Foreseeability was enough. You intend the consequences of your action if
                                       you know your actions will result in the product going into the forum state.
                                    b. O’Connor Approach: 4 justices (O’Connor) said you need foreseeability + other factors
                                       (e.g. marketing, advertising, etc.)
                                    c. 8 justices said there was no personal jurisdiction because it was unreasonable considering
                                       the severe burdens on P of defending in a foreign legal state. (they should have the case
                                       in Taiwan or Japan). NOTE: one way of thinking about this is that 8 justices did not find
                                       McGee factors satisfied. This is strange b/c McGee was meant to broaden the scope of
                                       PJ.

           b.   GENERAL JURISDICTION
                   i. CASE: Perkins v. Benquet Consolidated Mining (PJ: in personam based off tagging a corporate agent)
                         1. FACTS: Perkins (P) brought action in personam against mining company (D) While D’s president
                             was in Ohio on business, P served summons. D moved to quash service of summons on grounds
                             that COA arose in Philippines, not Ohio and the action did not relate to D’s corporate activities in
                             Ohio.
                         2. RULE: If corporation carries on “continuous and systematic” corporate activities in the state, can
                             you get in personam jurisdiction over COAs that did not arise from those activities and did
                             not occur in the forum state? Yes.

                    ii. CASE: Burnham v. Superior Court (PJ: tagging is still viable to give rise to General Jurisdiction) -
                        husband tagged in Calf. While visiting children and on bsns. (Scalia's conventionality test)


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1.6.4 IN REM JURISDICTION
     A. Summary: A court may exercise in rem jurisdiction over an item of property located within the state. The judgment may
        determine the claims of “all the world” to the property because anyone who would claim ownership of the property would be
        subject to personal jurisdiction wrt the property.
            a. Location of property: tangible property such as real estate is where it is physically present. Intangible property is
                 deemed located in the state in which the transaction creating the property occurred.


1.6.5 QUASI IN REM JURISDICTION
     A. Summary: A court having quasi in rem jurisdiction may determine the rights of particular persons in specific property within
        the court’s control. If P could not get in personam jurisdiction over D, he could bring D’s assets before the court and get
        quasi in rem jurisdiction over the dispute, limited to the value of the property before it.

             a.   Sovereignty Theory: state has power over anything it can grab within its borders at the time of adjudication. Under
                  Pennoyer, if I committed a tort in OR and then left, OR could not grab me. Problem: Under Pennoyer, there were
                  problems getting personal jurisdiction over D’s past actions.
                       i. CASE: Pennoyer v. Neff (NO PJ: state has control over things within its border)
                                1. FACTS: Neff (P) brought suit in fed. Ct. to recover land that Pennoyer (D) had acquired from a
                                    sheriff’s sale. Sheriff’s sale was made in execution of an earlier default judgment against P in an
                                    unrelated case. P argued he had not been properly served with process. P’s suit against D was
                                    based on lack of jurisdiction of the Oregon court that entered the default judgment.
                                2. ANALYSIS: is constructive notice by publication on a nonresident adequate for personal
                                    jurisdiction? No.
                                3. ANALYSIS2: to gain in personam jurisdiction over D, court must see that D is personally served
                                    w/ process while actually present in the state. RULE: to gain in rem or quasi in rem jurisdiction,
                                    property must be legally attached before the instigation of the suit. This serves as constructive
                                    notice that there is a legal action pending with power to dispose the attached land if P wins on the
                                    merits.
                                4. PRIMARY RULE: P was never served while in the state, nor had his land been attached before the
                                    suit started. The court never acquired jurisdiction of any kind over P.

             b.   CASE: Shaffer v. Heitner (NO PJ: killed quasi in rem actions & substituted Int’l Shoe “minimum contacts”)
                       i. FACTS: Heitner (P) owned one share of stock in Greyhound, a DE corporation w/ principal place of
                          business in AR. Filed a shareholder’s derivative suit against Greyhound in DE despite the transactions
                          taking place in OR. D challenged DE ct’s jurisdiction.
                      ii. RULE: Does minimum contacts standard apply to exercise of in rem jurisdiction by a state? Yes.
                          Since the stock is totally unrelated to COA and P has failed to allege any type of contacts required by
                          minimum contacts standard, DE cannot exercise jurisdiction over case.
                     iii. RULE: quasi in rem jurisdiction w/o minimum contacts might still be appropriate in case of real (tangible)
                          property.
                     iv. TWO INTERPRETATIONS:
                               1. Quasi in rem actions are dead b/c of minimum contacts test of International Shoe.
                               2. There just was no property in DE because stock should be considered to be everywhere.
                      v. NOTE: Green thinks this case should have come out differently b/c there were minimum contacts (officers
                          worked for a company incorporated in DE; DE law applied; McGee factors would suggest it is a convenient
                          place for litigation.
    B. Other
           a.     LIMITED APPEARANCES: D does not have to bring compulsory counterclaims under [R-13(a)(2)] when
                  making a limited appearance for a quasi in rem action.
                      i. No claim preclusion for these


1.6.6 WHEN MUST YOU GET PERSONAL JURISDICTION?
     A. Summary: If SMJ is achieved with joinder rules – either joinder on its own SMJ or through supplemental, then we need to
        apply Personal Jurisdiction analysis:
     B. How was the claim joined?

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             a.   Claims :
                        i. 13(a) => counterclaims against already existing parties, then PJ is satisfied automatically b/c P waived PJ
                           and cannot challenge the counterclaim on venue grounds. E.g. P->D, D counterclaims against P.
                       ii. 13(b) => permissive counterclaims against already existing parties, majority view that PJ is satisfied
                           automatically b/c P waived PJ and cannot challenge the counterclaim on venue grounds.
                      iii. 18(a) => Joinder of claims in complaints against same defendant. Must have PJ and venue with each cause
                           of action, otherwise it would violate due process to tag D which then brings D under all suits that P may
                           have against him by subverting personal jurisdiction on other claims.
                      iv. 13(g) => cross-claims against already existing parties, for D’s the same transaction or occurrence is
                           satisfied in the joinder rule itself, so PJ would be automatic. Venue is not an issue b/c the venue statute
                           takes all D’s into account. Between P’s, PJ is waived b/c they chose the forum to litigate in.
                       v. 14 (6) and (7) => actions arising out of impleader, cannot challenged b/c the parties are already in court (6 th
                           sentence -> P waived PJ, 7th sentence => if there is PJ over impleaded party, you can bring actions against
                           them).
                      vi. 18(a) => claims joined under 18(a) cross-claims, impleaders, 6th sentence and seventh sentence can
                           challenge on PJ grounds. Venue for the claim must also be satisfied b/c there are no strong reasons of
                           convenience to litigate unrelated claims in the forum. (the reason they are all unrelated is b/c these parties
                           can counterclaim all related causes of actions).

    C. How was the party joined?
          a. Joinder of Parties:
                    i. 19 and 20(a) => must have PJ over every defendant; otherwise it is a violation of due process. Venue
                       statute itself looks at residence of each defendant.
                   ii. 14 => Impleaders. An impleaded party can challenge the impleading on PJ grounds, but not on venue
                       grounds b/c the venue statute already accounted for the impleader.
                 iii. 13(h) same t/o => cross-claims and counterclaims that join new parties. D can challenge PJ. Anyone
                       dragged before a forum has a right to challenge that court’s asserting power over her. Venue cannot be
                       challenged b/c it makes.
                  iv. 13(h) different t/o => permissive counterclaims that join new parties. D can challenge PJ. Anyone
                       dragged before a forum has a right to challenge that court’s asserting power over her. Venue can also be
                       challenged b/c efficiency reason for having them in same venue is not there since it is not on same t/o.

1.7 VENUE & SERVICE

1.7.1 VENUE
     A. Generally
           a. Definition: Once the requirements of jurisdiction are met, the next problem is to determine the proper venue of the
                action. Venue refers to the proper place for trial of a lawsuit among several locations.
           b. Purpose: protect D’s against far-flung suits to ensure convenience, efficiency and fairness.
           c. Every cause of action: Venue is required for every individual COA brought against D. D can make motions to
                dismiss for lack of venue for each COA.
           d. Every joined party: Venue must be satisfied for every joined party.

    B. Venue in Federal Courts: Federal courts determine if the case is “diversity” or “federal question” and the apply the
       appropriate federal venue rules. [28 U.S.C. §1391] (codifies some of the McGee factors)
           a. Diversity [28 U.S.C. §1391(a)]: When based on diversity of citizenship, venue is proper in a district where:
                      i. Any D resides, if all D’s reside in the same state
                     ii. A substantial part of the events or omissions giving rise to the claim occurred.
                    iii. Fallback Provision: Anywhere a D is subject to personal jurisdiction at the time the action is commenced.

             b.   Federal Question [28 U.S.C. §1391(b)]: When based on federal question, venue is proper when:
                       i. (same) Any D resides, if all Ds reside in the same state
                      ii. (same) A substantial part of the events or omissions giving rise to the claim occurred.
                     iii. Fallback Provision: Any D may be found, if there is no district in which the action may otherwise be
                          brought. (i.e. place of incorporation, for companies)


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    C. RESIDENCE for the purposes of venue.
          a. Natural persons: residence of a natural person is his domicile, the place where she lives and intends to remain
             indefinitely.
                   i. ISSUE: courts are split about whether individuals can reside in mult. jurisdiction for the purpose of venue
                       (e.g. vacation home)
          b. Aliens: Don’t have residence and can therefore be sued in any district in the country. [28 U.S.C. §1391(d)]
          c. Corporate Ds [28 U.S.C. §1391(c)]: A corporation resides in each judicial district in which it is subject to personal
             jurisdiction at the time the action is commenced
                   i. NOTE: if state has more than one judicial district, the corporation is deemed to reside in any district in
                       which its contacts would be sufficient to subject it to personal jurisdiction if that district were a state.
                  ii. NOTE2: if no such district exists, it resides where it has the most significant contacts (e.g. usually where
                       it is incorporated)

    D. PLAINTIFF WAIVES
          a. Only D may raise issue of improper venue. P waives all venue objections to counterclaims.

    E. TRANSFER and REMOVAL
          a. Removal: cannot destroy venue.
          b. A court may decline jurisdiction if it would be grossly inconvenient place of trial, even if the court could technically
             exercise jurisdiction.

1.7.2 SERVICE
     A. Issuing the summons: copy of summons and complaint must be served on each D in the action. [R-4(a), (b)]
     B. Who can serve?
            a. 18 Years of Age & Not a Party [R-4(c)(2)] “Service may be effected by any person who is not a party and who is
                 at least 18 years of age.”

    C. How to serve?
          a. Individuals - [R-4(e)] Unless otherwise provided by federal law, options are:
                    i. Laws of the state: pursuant to the law of the state in which the district court is located, or in which service
                       is effected, for the service of a summons upon the defendant in an action brought in the courts of general
                       jurisdiction of the State; or
                   ii. Delivered Copy to individual: delivering copy of service and summons to the individual;
                  iii. Delivered Copy to Dwelling: delivering copy of service and summons to the individual’s dwelling house
                       with someone of suitable age and discretion.

             b.   Corporations –
                      i. Deliver to company agent: [R-4(h)(1)] delivering a copy of the summons and of the complaint to an
                         officer, or general agent; and by mailing copies to the D at its principal office. NOTE: this ensures there is
                         a sense of responsibility to make sure the service gets to the right person who can respond. (e.g. CEO’s
                         secretary acceptable; son, probably not).

             c.   To Lawyer: [R-5] service upon lawyer is okay.

1.8 RES JUDICATA

1.8.1 GENERALLY
     A. Summary: essence of res judicata is that a final judgment in a civil action bars any subsequent relitigation of the matters
        adjudicated. It precludes renewed litigation thereof in any subsequent action or proceeding. While sometimes it means only
        claim preclusion, for our purposes we will use it to mean both issue and claim preclusion.
            a. Purpose:
                      i. Pros
                               1. 1) avoid time and expense in multiple litigations of the same matter.
                               2. 2) protect against substantial evil of inconsistent results.


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                   ii. Cons:
                            1. costs of adjudicating claim preclusion;
                            2. harsh rulings when an earlier mistake was made;
   B. Prerequisites
          a. Before a judgment will be accorded res judicata effect, it must be shown to be:
                    i. 1) a Final Judgment
                            1. Meaning: represents the completion of all steps in the adjudication of the claim by the court. In
                                federal practice, a judgment once entered is deemed to be final even though an appeal is pending.
                                It remains final and valid until reversed or modified by appellate court.
                                     a. Note: as a practical matter, enforcing res judicata on issues still pending appeal are
                                         usually continued until appeal is determined.
                            2. Conflicting judgments: where there are two conflicting judgments, the last in time controls.

                    ii. 2) On the Merits
                            1. A judgment is on the merits where the substance of the claim has been tried and determined. Even
                                if a judgment is not on the merits, whatever has been fully litigated and decided may be entitled to
                                issue preclusion.
                                      a. Not on the merits:
                                               i. Lack of Federal Jurisdiction - [R-12(b)(1)]
                                              ii. Improper Venue - [R-12(b)(3)]
                                             iii. Necessary party not joined - [R-12(b)(7)]
                                             iv. Dismissal on failure of service (can bring again anywhere)
                                              v. statute of limitations (Williamson v. Columbia Gas & Electric Corp.)

                                      b.   On the merits:
                                                i. Failure to state a claim - [R-12(b)(6)] – must allege all the elements of the
                                                   cause of action to avoid dismissal.
                                               ii. Default judgments: these are on the merits and are entitled to Claim preclusion.
                                                   There is a split about whether such judgments have issue preclusion.
                                                       1. Argument against this rule: P doesn’t have any opportunity for
                                                            discovery or to add other claims. What if he would have found more
                                                            COAs, more damage, etc. Note: D doesn’t lose his compulsory
                                                            counterclaims if you default. You can bring them later.
                                                       2. Collateral attack – a default judgment may always be attacked either in
                                                            the state where rendered, or in any other state or forum, on the basis of
                                                            lack of jurisdiction. Such an attack is a collateral attack rather than an
                                                            appeal.

                                               iii. Failure to state a claim: Rinehart v. Locke – claim preclusion is applied

                                      c.   [R-41b] – dismissals are on the merits except for jurisdiction, venue and necessary
                                           parties.

                    iii. 3) Valid Judgment: rendered by a court with valid jurisdiction
                    iv. 4) Same parties or privity of parties:

   C. CLAIM PRECLUSION
         a. Introduction: A final judgment on the merits by a court with valid jurisdiction can have the following effects:
                 i. Merger: Ps COA is merged into judgment he obtains. The only action P can bring is one to enforce that
                    judgment. D is precluded from relitigating the merits of his defense.

                    ii. Bar: P is barred from suing D on the same claim or COA, including all demands that are part of the same
                        transaction or occurrence (T&O).
                             1. CASE: O’Brien v. City of Syracuse – bars all claims arising out of the same transaction, even
                                 if based on different theories or seeking different remedies, once a claim is brought to a final
                                 conclusion.

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                             2.   CASE: Rinehart v. Locke – P sued D for alleged false arrest. Dismissed for failure to state a
                                  claim. Dismissal for failure to state a claim is on the merits and has claim preclusive effect.
                                      a. [R-41(b)] says all dismissals are on the merits except those listed.

           b.   Effect of Merger or Bar
                     i. Transaction or Occurrence: today, most courts use the transaction or occurrence (T&O) approach to
                         determine the scope of the claim.
                             1. Reasoning: if P has a single COA against D, he cannot split it and obtain successive judgments
                                 for part of the wront. The first judgment extinguishes the entire claim or COA so that there is
                                 nothing left to sue.

                             2.   CASE: Sutcliffe Storage & Warehouse Co. v. United States –
                                     a. FACTS: D rented storage space from P. P alleged that D used additional space and sued
                                         to recover fair value. P, trying to avoid filing in WA, brought four actions against D
                                         saying there were separate violations of the leasing agreement for different time periods.
                                     b. RULE: P had to consolidate claims. Main purpose is to keep courts from having to
                                         relitigate the same issues in more than one suit.

           c.   Benefits vs. Costs
                     i. Benefits: Efficiency. Now that you have an expensive discovery process, the efficiency gains of putting all
                         these together makes sense.
                    ii. Costs: Unjust, in some cases. COA you lost might have been crummy but now you are precluded from
                         bringing good ones. Over litigation – this is your one bite at the apple so you bring everything up, even
                         things you don’t really care about.

           d.   Compulsory Counterclaim Statutes: D is required to set up any claim he has against P arising out of same T&O.
                If he fails to do so, he is barred from asserting it later, either as a defense or as a basis for affirmative relief.

           e.   Quasi in rem: Claim preclusion never applies to quasi in rem actions because the jurisdiction is based solely on the
                assets before the court (no PJ), so their jurisdiction is therefore limited to these assets.

   D. ISSUE PRECLUSION

           a.   Requirements: Issues actually litigated b/w the parties are binding on them in subsequent actions covering the same
                COA. Must involve mixed questions of law and fact or just issues of fact.
                    i. Collateral estoppel: even where 2nd lawsuit involves a different COA, the first judgment may be invoked
                       as an estoppel as to all matters actually litigated in the first action that were essential to its determination
                       and identical to the issue presented in the 2nd lawsuit.
                            1. CASE: Little v. Blue Goose Motor Coach (issue preclusion for COA from same T&O)
                                     a. FACTS: accident occurred involving bus and vehicle driven by Little. Ct ruled for Blue
                                          Goose. Little then died and executor sued for wrongful death.
                                     b. RULE: does judgment of previous justice court constitute an estoppel by verdict for
                                          subsequent actions having same T&O? Yes.

                             2.   CASE: United States v. Moser (Unmixed questions of law – wrongly decided)
                                     a. FACTS: P and Jasper were cadets. P retired and brought action against US to recover
                                         additional pay. Judgment was for P but P had to relitigate future installments. Evidence
                                         was later brought showing cadets should be denied the additional pay.
                                     b. RULE: You can’t relitigate the question of fact, even if it was based on an erroneous
                                         application of law.

                    ii. “Actually Litigated” – effect of prior judgment for issue preclusion is limited to issues that were actually
                        litigated in the former action.
                             1. CASE: Jacobson v. Miller
                                       a. FACTS: P sued D for installment of rent due under written lease. D denied executing the
                                            lease. Found for P.

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                                       b.   ISSUE: must party bring forth all defenses to prevent having them lost in subsequent
                                            litigation b/w the same parties that may involve the same questions but relates to different
                                            subject matter? NO.

                    iii. “Essential Facts”: issue preclusion applies only to those matters decided in the earlier lawsuit that were
                         essential to the court’s determination. Essential to the COA or defense established.
                             1. Test: Facts are essential if it appears that, as a matter of law, the right to recover depends on these
                                   facts. Any other facts are merely evidentiary.
                             2. Burden of proof: is on the party pushing for Issue Preclusion to prove that the matter was actually
                                   litigated in the former suit and was essential to the court’s decision.
                             3. CASE: Cambria v. Jeffrey – (non-essential issues are not precluded from future litigation)
                                        a. FACTS: D (car owner) brought negligence action on P (another car driver) for personal
                                             injuries. Judge found both parties negligent and therefore entered summary judgment for
                                             P.
                                        b. ISSUE: does adjudication of a particular fact in the case occur only when such fact
                                             serves as the basis of relief? YES.
                                        c. RULE: trial court found D was contributorily negligent and therefore could not recover
                                             against P. Therefore, finding that P was negligent did not affect the judgment.
                                             Therefore, trial court did not adjudicate whether P was negligent b/c it was not an
                                             essential fact for relief.

                    iv. Identical Issue: it must appear that the issue decided in the prior adjudication was identical to the one
                        presented in the instant action. A mere similarity of issues is not enough.
                            1. CASE: Berlitz Schools v. Everest House – (minor difference in fact – issue preclusion allowed)
                                      a. FACTS: D publisher published a bunch of books. P sued based on trademark dilution.
                                           Only difference was that disclaimer’s print was slightly smaller than in the 1st action.
                                      b. RULE: Issue Preclusion bars further suits on similar facts if there are no great differences
                                           in facts.

           b.   Other issues
                    i. Default Judgments: courts are split about whether default judgments give rise to collateral estoppel.
                         Traditional view is that it does. Conclusive as to all issues necessarily involved in the former suit despite
                         no actual litigation. Other courts hold that “actually litigated” requires evidence be presented to trier of
                         fact. This is believed to be the better view.

                    ii. Issue Preclusion vs. Stare Decisis
                            1. Issue preclusion does not apply to pure questions of law because that would mean it would
                                apply to abstract principle’s of law divorced from specific facts. This is bad because new laws
                                could come out in conflict with the question of law and you would still be bound by it. Issue
                                preclusion, in some ways, is stronger than stare decisis because issue preclusion cannot be
                                overruled. The reason it is not a problem is that it only applies to particular parties.

                                       a.v. US: nonmutual offensive issue preclusion cannot be applied to the US because this
                                         would interfere with the proper development of the law by not allowing various circuits
                                         to deal with a problem before Supreme Ct grants certiorari.
                    iii. Change in Law: this can void issue preclusion. E.g. US brings antitrust suit and loses. Antitrust law
                         changes. They can probably bring a new suit.

                    iv. Intervention: Just because you had capacity to intervene and failed to do so does not mean you are issue
                        precluded. However, there has been some movement in this area b/c if they are necessary parties, we want
                        them to join.

                     v. Impleader: If you implead I b/c they have a duty to indemnify you, they are issue precluded.

                    vi. When it Applies
                           1. Same old facts, but new law: not clear if it applies.

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                              2.   New facts, old law: not clear if it applies.
                              3.   Same facts, same law: it applies.
                              4.   New facts, new law: it does not apply.

   E. EFFECTS ON 3rd PARTIES
         a. Persons Bound by Prior Judgments: Normally, res judicata applies only where all parties to the later action are
            parties in privity with parties to the former action.
                  i. Party identity: substantial identity of the parties is all that is required. It is sufficient if the parties in the
                      present action were on opposite sides in the former case. The fact that there were others joined as co-Ds or
                      co-Ps is immaterial.
                           1. Note: the rule is not so clear where parties were on the same side in the prior suit. It apparently
                                turned on whether D1 and D2 were in adversarial positions in Ps action and actually litigated
                                therein the issue of their liability between each other.

                              2.   LANDMARK CASE: Bernhard v. Bank of America (Mutuality requirement abandoned) – facts
                                   below
                                       a. RULE: requirement of mutuality is abandoned. Mutuality of estoppel, that required
                                          both parties to the second action to have been parties to the first action in order to assert
                                          issue or claim preclusion is hereby expressly overruled. See also Blonder-Tongue Labs
                                          v. University of Illinois

                     ii. Privity: Privity exists if it is fair and reasonable that the present party be bound by the prior judgment.
                             1. Overlap of interests: think of privity in terms of overlap in interests. Husbands and wives are not
                                  in privity together but parents acting as guardians are in privity with their children. Privity only
                                  exists when you are legally obligated to pursue litigation in the way that will be in the best
                                  interests of the other person.
                                       a. CASE: Show-World Center v. Walsh – (no landlord-tenant privity) D sets up smelly
                                            farm next to apartment building. landlord sues and loses. Is tenant in privity w/
                                            landlord? No, they have different interests and may pursue different litigation strategies.

                                       b.   CASE: Neenan v. Woodside Astoria (No Iss. Prec. if P2 had no privity) P1 sues D for
                                            negligence and wins. P2 sues D and P1 for negligence and wins. P1 wants P2 to be issue
                                            precluded from finding him negligent since he was found not negligent in 1 st action.
                                            Doesn’t work b/c P2 was not in privity to the 1st action.

                              2.   Argument for not being bound: You might have a different set of interests in your individual
                                   capacity than you would have as guardian.

            b.   Persons Entitled to Benefits of Prior Judgments: traditionally, the party asserting the judgment had to be one that
                 would have been bound had the judgment gone the other way. Therefore, if you were not a party nor had privity to
                 the former action, you could not assert or rely on the judgment in a later proceeding.

                      i. Exception: Vicarious liability
                            1. When two D’s have relationship such that one is responsible for the conduct of the other, a
                                 judgment exonerating either D precludes the action on the same claim against the other. This was
                                 always an exception, even when mutuality was required.

                              2.   LANDMARK CASE: Bernhard v. Bank of America (mutuality of estoppel is abandoned)
                                      a. FACTS: Mrs. Sather gave Cook some money to deposit in her bank. Cook embezzled. P
                                         sued Cook for embezzlement. Ct. found for Cook saying it was a gift. P sued Bank,
                                         asserting bank had illegally allowed Cook to make withdrawals. Bank asserted Issue
                                         Preclusion.
                                      b. RULE: requirement of mutuality is abandoned. Mutuality of estoppel, that required
                                         both parties to the second action to have been parties to the first action in order to assert
                                         issue or claim preclusion is hereby expressly overruled.


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                                       c.   RULE: when preclusion benefits new party, it is allowed. When it would hurt new
                                            party, it is not allowed b/c of privity.

            c.   Offensive v. Defensive Use: it used to be that issue preclusion could only be used defensively, not offensively
                 against a D to block him from relitigating issues he had previously lost. This was changed in Parklane Hosiery.

                      i. Defensive non-mutual issue preclusion: (person precluded in 2nd action is the PLAINTIFF). D is trying
                         to use issue preclusion as a shield to prevent P from using that issue against them. This encourages
                         joinder
                              1. CASE (defensive use of issue preclusion) Blonder-Tongue Labs v. University of Illinois
                                       a. FACTS: P brought action against D for patent infringement. D claimed P was
                                            collaterally estopped b/c Ps patent was declared invalid.
                                       b. RULE: Mutuality of estoppel is abandoned when using Issue Preclusion defensively.
                                       c. ANALYSIS: It is no longer tenable to afford a litigant more than one full and fair
                                            opportunity for judicial resolution of the same issue. Mutuality of estoppel is overruled
                                            in cases of defensive use of the doctrine.

                     ii. Offensive non-mutual issue preclusion: (person precluded in 2nd action is the DEFENDANT) P is using
                         issue preclusion as a sword to prevent D from arguing. Should not be allowed if P could have joined earlier
                         case. This discourages joinder. One P will try, but if they fail, another P can try.

                              1.   CASE (offensive use of issue preclusion allowed) Parklane Hosiery v. Shore
                                      a. FACTS: Shareholder’s class action against D. SEC won declaratory judgment in 1 st
                                          action against D. P moved for partial summary judgment against D on issues litigated in
                                          SEC action. District court denied motion and court of appeals reverses.
                                      b. RULE: A nonparty can use a prior judgment offensively. NOTE: this should not be
                                          allowed if P could have joined the earlier case, in fairness to D.
                                      c. CONSIDERATIONS FOR WHETHER TO ALLOW
                                                i. (1) Could P have easily joined suit?
                                               ii. (2) Did new P "wait and see?"
                                              iii. (3) Were damages minimal in other suit so D didn't vigorously litigate?
                                              iv. (4) Did D in earlier suit foresee further litigation so defend vigorously?
                                               v. (5) Are there inconsistent judgments indicating "wait and see?"
                                              vi. (6) Are there additional procedural opportunities unavailable below? If
                                                   evidentiary standards were easier below, then reason NOT to apply issue
                                                   preclusion.

                     iii. Exception: nonmutual offensive collateral estoppel cannot be applied to the US because this would
                          interfere with the proper development of the law by not allowing various circuits to deal with a problem
                          before Supreme Ct grants certiorari.

1.9 JOINDER

1.9.1 JOINDER
     A. Joinder of Claims
            a. Summary: determining which parties should be joined can get complicated. Compulsory joinder rules cover those
                parties that absolutely must be joined (indispensable) and those who should be joined if possible (conditionally
                necessary parties). Permissive joinder deals with rules about parties that may be joined if P chooses.

            b.   Purpose: To have an efficient set of rules to decrease transaction costs, so the same outcome results by the same
                 jury for same transaction or occurrence. Reduce inconsistencies when you are pleading the same evidence/facts.
                 (common facts, reduce discovery costs, etc.)

            c.   Federal Rule: A party with a claim (original claim, counterclaim, cross-claim, or third-party claim) may assert as
                 many claims as she has against any opposing party. [R-18(a)]


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                     i. [R-18(a)] is the broadest joinder rule. Requires that you establish parties as adversaries through proper
                        joinder before it applies.
                    ii. P can aggregate all claims he has against D to meet jurisdictional minimum.

           d.   Permissive: however, while there is no compulsory joinder of claims, P’s usually join related claims for fear of
                Issue and Claim preclusion.

           e.   Two Step Analysis
                    i. Is Joinder permitted?
                   ii. Do you have Personal Jurisdiction and SMJ and venue with the addition of the new party?

   B. Joinder of Parties
          a. Federal Rule: There is both compulsory and permissive joinder.

           b.   Compulsory Joinder: [R-19(a)]covers both parties who must absolutely be joined (indispensable parties) and
                those who should be joined if possible (necessary parties). Rule: [R-19(a)] – court will require joinder of any
                person who has a material interest in the case, and whose absence would result in substantial prejudice, either to that
                person or other parties already before the court.

                     i. Necessary Parties: [R-19(a)] They must be joined, if feasible, if:
                           1. In her absence, complete relief cannot be accorded among those already parties.
                           2. Her interest is such that to proceed w/o her would substantially prejudice b/c it would:
                                    a. Impair her ability to protect her interest
                                    b. Expose the parties already before the court to the risk of double liability.

                    ii. Indispensable parties [R-19(b)]: those whose interests are so directly and unavoidably involved that
                        unless they can be brought before the court, it will lack subject matter jurisdiction.
                            1. Effect of Non-Joinder [R-19(b)]: If such a person cannot be made a party (e.g. not subject to
                                 court’s jurisdiction), the court must determine if the party is conditionally necessary (“in equity
                                 and in good conscience” the action can proceed w/o her) or indispensable (case must be
                                 dismissed).

                                       a.   Factors [R-19(b)]: The court looks at the following factors when determining:
                                                 i. Extent to which judgment would be prejudicial to her interest
                                                ii. Extent to which such prejudice could be lessened or avoided.
                                               iii. Whether P will have any other adequate remedy if action is dismissed for
                                                    nonjoinder.

                             2.   CASE: Haas v. Jefferson National Bank – Glueck was an indispensable party. Case dismissed
                                  because joining him would destroy diversity and SMJ.

                             3.   CASE: Shields v. Barrow: (P suing 2 of 6 landowners, other 4 indispensable) – otherwise, P
                                  could be held owner w/respect to some and not others.

                    iii. Regarding Venue: if necessary party rejects to venue and venue would be improper, they must be
                         dismissed from the action.

                    iv. Regarding PJ: if there is no PJ over a necessary party, they must be dismissed from the action.

                    v. Effect on diversity jurisdiction: if the party is necessary, joinder will not be ordered if it would destroy
                       diversity. If the party is indispensable, joinder will be ordered, diversity will be destroyed and the action
                       will be dismissed. Haas v. Jefferson National Bank (Glueck was indispensable but destroyed diversity –
                       case dismissed)




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                    vi. Waiver: if absentee is not indispensable, nonjoinder must be raised at earliest possible time. Otherwise it
                        is waived. [R-12(g)] If they are indispensable, there is no such waiver and it can be raised at any time.
                        [R-12(h)(2)]

                   vii. ERIE: Classification of parties for joinder purposes is a question of procedure for Erie Doctrine purposes,
                        and hence is made by federal courts w/o regard for state law.

           c.   Permissive Joinder of Parties: [R-20(a)]; [R-13(h)] in addition to situations in which ppl should or must be joined,
                there is also the question of which persons may be joined, if P chooses.
                      i. Modern Approach: Extremely liberal. [R-20(a)] Basically, all persons may join in one action as P’s or be
                          joined therein as D’s if:
                               1. Same transaction and occurrence. (very broadly interpreted) – enough to show factual
                                   relationship b/w claims.
                               2. At least one common question of law or fact (rarely means anything more than just T&O)

                    ii. Waiver of Joinder: If you want to attack improper joinder under Rule 20 or Rule 19, the defect must be
                        raised at the outset of the case by appropriate motion. Failure to raise it waives the defect. (unless party is
                        indispensable).

           d.   [R-13(h)] Joinder of Parties: parties may be made parties to counterclaims and cross claims in accordance w/Rules
                19 & 20
                     i. ISSUE: why doesn’t this allow for 14(a) impleader?

   C. Special Joinder Devices
          a. Interpleader: [R-22]party, against whom there are several mutually exclusive claims wrt the same debt or property
               can join all the claimants in the same action and require litigation among themselves to determine which is valid.
               (e.g. take it to the court and step out of the way).

           b.   Impleader: [R-14(a)] D is permitted to bring a stranger into suit if he may be liable for all or part of P’s claim
                against him. Purpose is to protect D from inconsistent verdicts. Requires contribution or indemnification.
                    a. Claims for or against Impleader:
                              i. I sues P: [R-14(a) 6th sentence] 3rd party D may assert any claim against the P arising out of the
                                 T&O that is the subject matter of Ps claim against original D.
                             ii. P sues I: [R-14(a) 7th sentence] P may assert any claim against the 3rd party D arising out of the
                                 T&O that is the subject matter of P’s claim against original D.
                    b. Killing Diversity: D cannot kill diversity by impleading a party that is not diverse w/ P.

           c.   Intervention: [R-24] nonparty may interpose herself into lawsuit to protect her interest from being adversely
                affected. To intervene, a party must have an interest they will not be able to vindicate unless they are involved in
                the suit.
                     a. Two Types
                              i. Intervention of right: intervention is granted as a matter of right where federal statute confers
                                  the unconditional right to intervene, OR the pending action would impair or impede applicant’s
                                  interest in the subject matter. [R-24(a)]

                             ii. Permissive intervention: [R-24(b)] court has discretion to permit intervention if there is a
                                 common question of law or fact.

                    b.   Effect of Intervention: (supplemental jurisdiction) - [28 U.S.C. § 1367] gives federal courts jurisdiction
                         over claims by interventing parties.
                              i. Exception for Diversity: when based solely on diversity, court does not have jurisdiction over P’s
                                  claim against person intervening under Rule 24 (intervention), or over a claim by a party seeking
                                  to intervene under R-24 as a P, when this would kill diversity.

   D. Cross Claims [R-13(g)]


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           a.   Definition: [R-13(g)] D may set forth in answer claims he has against co-D that relate to same transaction or
                occurrence (T&O). Cross claims are NOT COMPULSORY. However, once parties become adversaries,
                counterclaims apply for related or unrelated actions per R-13(a) and R-13(b).

           b.   Jurisdiction: Since the cross-claim must be closely related to existing action, it is always deemed within ancillary
                (supplemental) jurisdiction of the court. No independent ground for federal question is required.

   E. Class Actions [R-23(a) – necessary factors , (b) - types]
          a. Definition: one or more members of a class can sue on behalf of all members of the class. These are permitted
              where considerations of necessity and convenience justify maintenance of the action on behalf of the group, rather
              than in multiple actions by members individually.

           b.   Purpose:
                     i. 1. avoid multiplicity of litigation; and associated wastefulness, effort and expense.
                    ii. 2. provide forum for small claimants unable to afford separate litigation
                   iii. 3. obtain judgments parties can rely on as binding all members of the class.

           c.   STEP 1: Prerequisites to Class actions: [R-23(a)]
                   i. Numerosity: class must be so numerous that joinder of all members is impractical. No fixed number is
                       required to make the class “too numerous.” There is also no fixed maximum. However,
                           1. Limitation: class must be definitely ascertainable
                           2. Limitation: class must be manageable
                           3. Limitation: class must receive adequate notice of the action. Gets more expensive the larger the
                                class.

                     ii. Representative is typical: person representing class is typical of the class generally.
                    iii. Adequacy of representation: persons representing class will fairly protect interests of all members of the
                         class. Interest of representative must be similar to that of all members of the class.

           d.   STEP 2: Three types of Class actions allowed [R-23(b)]
                   i. Prejudice from separate actions: when separate actions would create a risk of either
                           1. Inconsistency: Incompatibility for party opposing the class through inconsistent adjudications
                               with all the members of the class. [R-23(b)(1)(A)]
                           2. Practical: Impairing interests of other members of the class as a practical matter. [R-23(b)(1)(B)]

                    ii. Injunction: when injunctive relief would benefit the class as a whole. [R-23(b)(2)] note: there is no notice
                        requirement to the rest of the P class for actions requesting injunctive relief.

                    iii. Predominant question [R-23(b)(3)] question of law or fact common to class predominates over questions
                         affecting only individual members. Requires notice and option to opt out. Common question of law or
                         fact [R-23(b)(3)] requires that the common question predominate over individual questions.
                              1. Factors to consider:
                                       a. 1. interest of individual members in personally controlling their cases.
                                       b. 2. nature of litigation already in progress (e.g. already many individual cases)
                                       c. 3. desirability of concentrating claims in a single action.
                                       d. 4. difficulties expected in managing the class action.

           e.   Claim preclusive effect of class actions: Binds all members of the class that have not affirmatively requested to opt-
                out.

           f.   Jurisdictional Requirements
                     i. Diversity: only the residence of the representative is considered. This is in the scope of Congressional
                         power because the Constitution only requires minimal diversity.
                    ii. Amount in Controversy: all members of class must have claims in excess of $75,000.

   F.   CASES

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             a.   CASE: Zahn v. International Paper (all members of class must meet jurisdictional minimum)
                     i. NOTE: not clear if this is still the case after § 1367 on supplemental jurisdiction. Some courts allow the
                         other claims on supp. jurs.

             b.   CASE: Grunin v. International House of Pancakes
                      i. FACTS: D (ihop) was being sued by class on basis that their franchise agreements violated the Sherman
                         Act. District court approved the settlement stating it was “fair reasonable and adequate as to said class and
                         subclass plaintiffs. P appealed on grounds that notice to class and subclass was inadequate per Rule 23 and
                         that district court abused its discretion in approving the settlement as fair.
                     ii. RULE: Individualized notice by mail to last known address is “best notice practicable” in a class action
                         context. Also, court in class actions sometimes has to serve as guardian of the rights of the absent class
                         members. This is rare in US judicial system because the otherwise neutral judge must become an
                         advocate.

1.10 PLEADINGS

1.10.1 SUMMARY OF PLEADINGS
    A. Plaintiff
           a. Complaint
           b. Reply to Counterclaim
           c. Answer to Cross-claim
    B. Defendant
           a. Answer
           b. Counterclaim against P
           c. Cross claim against co-D
           d. Answer to Cross-Claim by co-D.



1.11 ERIE DOCTRINE: CHOICE OF LAWS

1.11.1 ERIE DOCTRINE
    A. Summary of problem
           a. Assuming there is concurrent jurisdiction so that an action might be brought in state or federal court, P’s choice of
              forum may be influenced by whether he expects one court to apply more favorable rules of law than the other to the
              issues in the case.
           b. State Court: action filed in state court, the P would expect the court to apply its own rules of law, at least where all
              of the “contacts” with the parties and subject matter are involved. Where there are contacts with other states,
              whether the local state will apply its own rules or the rules of the other state will depend on its choice-of-law rules.
           c. Federal Court: action filed in federal court, there is an additional consideration. Will the federal court apply the
              rule of law of the state in which it is located or will it apply some separate “federal” law?

    B. What is ERIE: more of a system for reasoning through the complex issues raised by the choice-of-law problem. Typically
       deals with how to determine whether something is substantive law
           a. Use State Law Under Erie for:
                      i. (1) State statute of limitations - York
                     ii. (2) State's choice of law rule (only for choices between states law) - Klaxton
                    iii. (3) State's tolling rules – Ragan; reaffirmed in Walker (post-Hanna) where R-3 found not to be in conflict
                         w/ state tolling rules.
                    iv. (4) State's claim preclusion - Semtek
                     v. (5) State's discovery privilege laws
                              1. And other procedure that meets following tests, cases below's results are good law, decided on
                                   York, but still good under Hanna's re-characterization.
                              2. When federal action borrow state SoL, take state's tolling rules too



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   C. §1331 Cases
          a. Supremacy Clause: If the action involves any claim or defense arising under the US Constitution, statutes or
             treaties, there is no choice of law. Federal law alone will govern. (§1331 cases)

   D. §1332 Cases and § 1367 cases
          a. Diversity of Citizenship: Can plaintiff expect the federal court to apply different rule of law in federal court in
             diversity cases?
                   i. Originally: Swift v. Tyson said that any matters not specifically regulated by local statutes, federal courts
                      were free to adopt “general principals of federal common law. This led to horizontal uniformity across the
                      federal court system.
                  ii. CASE: Erie Railroad v. Tompkins
                           1. FACTS: P was hit while walking along railroad tracks. Under state law, P would be a trespasser
                               and would be denied recovery. Under federal law, he could recover if D was negligent.
                           2. ISSUE: May federal court refuse to apply state case law in deciding a substantive issue of liability
                               in a diversity case that does not otherwise present a federal question? NO. Must apply state law.
                           3. RULE: Overruled Swift v. Tyson. Federal “general law” became too far-reaching and extended
                               into matters that should have been left to the states.
                           4. RULE: court said there “is no general substantive common law”. While federal courts are free
                               to apply their own rules of procedure, any issue of substantive law (except §1331) must be
                               determined according to the laws of the state in which the federal court is located.

                    iii. EFFECT:
                            1. Transcendental Body of Law: Court in Erie denied the idea that there was a body of natural law
                               that could be discovered. It said law is “made” not merely “discovered.”
                            2. Difficulty in Application: The difficulty in application is due to the difficulty in determining
                               whether a particular matter or issue is substantive (and governed by state law) or merely
                               procedural (so that federal court can apply its own rules).
                            3. DUAL PURPOSE:
                                    a. 1. Discourage forum shopping
                                    b. 2. Avoid inequitable administration of the law (discrimination in favor of non-state
                                        citizen plaintiffs)

                    iv. CASE: Klaxon Co. v. Stentor Electric Manufacturing Co. (state choice-of-law rules are used in diversity
                        cases)
                            1. FACTS: P sued in DE federal court to enforce K executed in NY. Supreme Court said ERIE
                               extended to conflict-of-law rules. A federal district court sitting in DE must apply the conflict-of-
                               law rules prevailing in DE state courts.

           b.   The “Outcome Determinitive” Test: for many years, Ct. applied test that whatever might have a material effect on
                the outcome of the case was substantive, and hence subject to state law.
                     i. CASE: Guaranty Trust Co. v. York (state SOL law applies in diversity actions)
                            1. FACTS: P, representative of class action, sued D in federal court for breaching its trust to enforce
                                 rights of class members. Action was barred by state statute of limitations but not by federal SOL.
                            2. RULE: State SOL law applies to bar a federal court from hearing the case.
                            3. TEST: Would the application of federal law significantly affect the result of litigation for the
                                 federal court to disregard the law of the State that would be controlling.

                    ii. ISSUE w/ this Case: It soon became clear that there were many matters that would be controlled by
                        Federal Rules of Civil Procedure that were “outcome determinative.”

           c.   The “Balancing Test”: The vitality of federal rules was renewed when Supreme Court showed a willingness to
                look beyond the face of conflicting federal and state rules and prescribed a balancing of the interests underlying the
                rules. This rule has proved difficult for courts to apply.

                     i. Considerations of the Balancing Test
                           1. Will this lead to vertical forum shopping? Hanna v. Plumer (diff. in service won't)

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                               2.   Are there strong reasons for uniformity in federal procedure? (e.g. T&O test for claim preclusion -
                                    you don't want a disjointed affect between the compulsory counterclaim and the claim preclusion
                                    law).
                               3.    Decide whether the state wants it to apply in federal court. If they don't care, it wouldn't be bad to
                                    have federal law apply. Szantay case (state had "door closing" statute, purpose to clear state
                                    docket, state doesn't care if applied in federal court. There were countervailing federal
                                    considerations)

                      ii. CASE: Byrd v. Blue Ridge Rural Electric Cooperative (the Balancing Test limiting York)
                             1. FACTS: P injured in fall from telephone pole sued D for injuries. State rule said whether P was
                                 employee was to be decided by a judge. Federal rule said decided by a jury.
                             2. RULE: State rule does not have to be applied
                             3. RATIONALE: While outcome may have been substantially affected by having a judge vs. jury
                                 trial, it is not certain that the factual determination of the case would have been decided
                                 differently. Additionally, the state rule here was based on a state supreme court case that was
                                 weak and poorly articulated.

                      iii. CASE: Hanna v. Plumer (when state and federal law conflict, federal rules prevail)
                              1. FACTS: P was injured in car accident and sues D. Service was proper under federal law but not
                                  under state law.
                              2. RULE: service of process in diversity can be made using Federal Rules of Civil Procedure, even
                                  when it is contrary to state law.
                              3. RATIONALE: adhering to state rule would not have barred recovery. Only would have altered
                                  way process was served. NOTE: holding from Guaranty Trust (that a claim barred by state SOL
                                  may not be brought in federal court) is still valid.

             d.   Federal Determination of State Law
                      i. CASE: Bernhardt v. Polygraphic Co. of America
                              1. RULE: Assuming federal court determines the issue involved is “substantive”, the court will look
                                 to all applicable statutes and to the opinions of the highest state courts which have dealt with the
                                 issue involved. Federal court cannot refuse to exercise jurisdiction merely because the state law is
                                 uncertain.
                              2. If no state law exists: Federal court must attempt to predict what position the state court would
                                 take in such a case.

1.12 APPENDIX

1.12.1 APPENDIX A
    A. Joinder, etc.

Action                                                PJ                            V                            SM
Joinder of claims against same D under 18(a)          Need independent PJ for       Must be V for each           Must independently
                                                      each claim                    claim                        satisfy SM
Joinder of Ds under 20(a) permissive joinder          Need PJ for each party        Must be V for each D         No for D’s, probably
                                                                                                                 No for P’s
Compulsory Counter C under 13(a) against              CC D cannot complain          CC D cannot challenge        Covered by supp.
existing parties                                                                    on V
Permissive Counter C under 13(b) against already      CC D cannot challenge         CC D cannot challenge        Must independently
existing parties                                      PJ                            on V                         satisfy SM
Cross C. against already existing parties             CC D cannot challenge         CC D cannot challenge        Covered by supp.
                                                      PJ                            on V
Impleaders                                            Impleaded party can           Impleaded party cannot       Covered by supp.
                                                      challenge PJ                  challenge V
6th and 7th sentences of R. 14                        Cannot challenge PJ           Cannot challenge V
Cross claims or compulsory CCs that add new           Can challenge PJ              Cannot challenge V           Covered by supp.

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parties under R. 13(h)
Permissive Counter Cs that join new parties under   Can challenge PJ   Can challenge V           Must independently
R. 13(h)                                                                                         satisfy SM
Claims joined under r. 18(a) to cross-claims,       Can challenge      Can challenge
impleaders or 6th and 7th sentence




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               INDEX

§1331 – CASE – Louisville – ........................................................... 12                   PJ – CASE – Int’l Shoe – ........................................................... 17, 19
§1331 - SMJ – Federal Question ........ 3, 11, 12, 14, 15, 16, 20, 29, 31                                    PJ – CASE – McGee – ............................................. 16, 17, 18, 19, 20
§1331 - SMJ – Federal Question – ................................................... 11                      PJ – CASE – Pennoyer – .................................................................. 19
§1332 – CASE - Baker ..................................................................... 12                PJ – CASE – Perkins – General PJ ................................................... 18
§1332 – CASE – Kelly ..................................................................... 13                PJ – CASE – Shaffer – Killed quasi in rem ...................................... 19
§1332 - SMJ – Diversity ... 3, 11, 12, 13, 14, 15, 20, 27, 28, 29, 31, 32                                    PJ – CASE – WWV – ................................................................ 13, 18
§1359 – CASE – Kramer (collusive assignment............................... 13                                PJ – Federal Court ............................................................................ 16
§1359 – CASE – Rose (fraudulent joinder) ...................................... 13                           PJ – Federal Court – 100 mile bulge ................................................ 16
§1367 – CASE – Finley .................................................................... 15                PJ – Federal Court – Fallback Provision .......................................... 16
§1367 – CASE – Gibbs (ancillary jurisdiction) ................................ 15                            PJ – Federal Court – Primary Rule ................................................... 16
§1367 – CASE – Kroger ................................................................... 15                 Pleading............................................................................................ 12
§1367 - SMJ – Supplemental ...... 11, 13, 14, 15, 16, 19, 28, 29, 30, 32                                     Pleadings .............................................................................. 3, 4, 5, 26
§1367 – SMJ – Supplemental – ............................................ 13, 14, 15                         Pre-Trial Motion – Summary Judgment ................... 3, 4, 9, 10, 24, 26
§1391 - Venue ...................................... 4, 5, 11, 14, 18, 20, 21, 22, 27                        R-10(a) - Complaint – Caption ........................................................... 3
§1391 – Venue – Residence ........................................... 12, 20, 21, 29                         R-10(b) - Complaint – Numbered Paragraphs .................................... 3
§1441 - Removal ............................................................ 12, 13, 14, 21                  R-11 - CASE – Murphy –sanctions .................................................... 4
5th Amendment – Due Process.......................................................... 16                     R-11 - Sanctions ............................................................................. 3, 4
Amendment .................................................................................. 5, 16           R-11(b)(3) – Sanctions – Evidentiary Support ................................... 4
Amount in Controversy .............................................................. 12, 13                  R-11(c)(1)(A) – Sanctions - Safe Harbor ........................................... 4
Ancillary Jurisdiction ..................................................... 14, 15, 16, 29                  R-12(b)(1) - Motions - Lack of SMJ ........................................ 4, 5, 22
Article III, §2 – Diversity – Minimal Diversity .......................... 11, 12                            R-12(b)(6) - CASE – Conley.............................................................. 3
Citizenship - Nerve Center Test........................................................ 13                   R-12(b)(6) – Motions – Failure to Join Necessary Party .......... 4, 5, 22
Citizenship - Place of Operations Test .............................................. 13                     R-12(b)(6) – Motions – Failure to State a Claim .............. 3, 4, 5, 9, 22
Claim Preclusion – CASE – Rinehart ......................................... 22, 23                          R-12(b)(6) – Motions – Improper Venue ................................. 4, 5, 22
Claim Preclusion – CASE – Sutcliffe ............................................... 23                       R-12(b)(6) – Motions – Insuff. of Process.......................................... 5
Default Judgments ................................................................ 19, 22, 24                R-12(b)(6) – Motions – Insuff. of Service .......................................... 5
Defeating Diversity .......................................................................... 13            R-12(b)(6) – Motions – Lack of PJ .................................................... 5
Disclosure ........................................................................................... 9     R-12(e) – Motions - More Specific Statement.................................... 4
Discovery.............................................. 3, 4, 7, 8, 9, 10, 22, 23, 26, 30                    R-12(f) – Motions - Strike .................................................................. 4
Erie Doctrine ........................................................................ 28, 30, 31            R-12(g) – Consolidate 12(b) Defenses in Pre-Answer Motion..... 5, 28
Erie Doctrine – CASE – Bernhardt –................................................ 32                        R-12(h) – Waiver of 12(b) Defenses ............................................ 5, 28
Erie Doctrine – CASE – Byrd –........................................................ 32                     R-12(h)(2) – Waiver – Failure to Join Necessary Party ............... 5, 28
Erie Doctrine – CASE – Erie ................................................ 28, 30, 31                      R-12(h)(3) – Waiver – SMJ (Never) .................................................. 5
Erie Doctrine – CASE – Hanna – ......................................... 30, 31, 32                          R-13 - CASE – Williams –T&O ........................................................ 6
Erie Doctrine – CASE – Klaxon – .................................................... 31                      R-13 - Counterclaim ............................................................... 6, 23, 30
Erie Doctrine – CASE – Ragan – Tolling SOL ................................ 30                               R-13 – Counterclaim ........................................................................ 20
Erie Doctrine – CASE – Semtek –.................................................... 30                       R-13 – Counterclaim ........................................................................ 32
Erie Doctrine – CASE – Walker – Tolling SOL ............................... 30                               R-13 - Counterclaims ....................................................... 6, 19, 28, 29
Erie Doctrine – CASE – York – ........................................... 30, 31, 32                         R-13(a) – Counterclaim – Compulsory6, 13, 15, 19, 22, 23, 26, 27, 32
Exclusive Federal Jurisdiction .......................................................... 12                 R-13(a) – Counterclaim – Permissive .6, 13, 15, 20, 26, 27, 28, 32, 33
Expert Witnesses ................................................................................ 9          R-13(a) – Counterclaims - Compulsory ................................. 6, 19, 29
Fraud................................................................................................... 3   R-13(b) – Counterclaims – Permissive ......................................... 6, 29
Hearsay ............................................................................................... 9    R-13(g) – Cross-Claims ......................6, 15, 16, 20, 26, 28, 29, 30, 33
Issue Preclusion – CASE – Berlitz – ................................................ 24                      R-14 – Joinder – Impleader .................................................. 15, 24, 28
Issue Preclusion – CASE – Bernhard – ............................................ 25                         R-14(a) – Joinder - Impleader .......................................................... 28
Issue Preclusion – CASE - Blonder-Tongue –............................ 25, 26                                R-14(a) 6th sentence.......................................................................... 28
Issue Preclusion – CASE - Blue Goose ............................................ 23                         R-14(a) 7th sentence.......................................................................... 28
Issue Preclusion – CASE – Cambria – ............................................. 24                         R-15 - CASE – Blair .......................................................................... 5
Issue Preclusion – CASE – Jacobson –............................................. 23                         R-15(a) – Amendment – Pleading ...................................................... 5
Issue Preclusion – CASE – Moser .................................................... 23                      R-15(c) – Amendment – Relating Back ............................................. 5
Issue Preclusion – CASE - Parklane Hosiery – ................................ 26                             R-18(a) – Joinder – Permissive Joinder of Claims ..................... 26, 27
Issue Preclusion – CASE – Show-World –....................................... 25                             R-19 – Joinder – Necessary Party .............................................. 15, 27
Joinder ........................................ 13, 14, 15, 19, 20, 26, 27, 28, 29, 32                      R-19(a) – Joinder – Necessary Party .4, 6, 7, 15, 16, 22, 24, 26, 27, 29
Judicial Power .................................................................................. 11         R-19(b) – CASE – Shields ............................................................... 27
Notice ....................................................... 3, 5, 6, 7, 14, 17, 19, 29, 30                R-19(b) – Joinder – Indispensable Party .......................... 5, 26, 27, 28
Particularity ........................................................................................ 3     R-20 – Joinder – Permissive Joinder of Parties .......................... 15, 28
Pendent Jurisdiction.................................................................... 14, 15              R-22 - Interpleader ........................................................................... 28
PJ – CASE – Asahi – ........................................................................ 18              R-23 – CASE – Grunin .................................................................... 30
PJ – CASE – Burnham – .................................................................. 18                  R-23 – CASE - Zahn ........................................................................ 30

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R-23 – Class Actions ........................................................................ 29      R-56(c) – Pre-Trial Motion – Summary Judgment ............................. 9
R-23(a) – Class Actions – Pre-Requisites ......................................... 29                 R-59 – Post-Trial Motion – New Trial ............................................. 10
R-23(a) – Class Actions – Pre-Requisites – ...................................... 29                  R-7(a) – No Reply to Answer ............................................................. 5
R-23(a) – Class Actions – Types ...................................................... 29             R-8 - Complaint –........................................................................... 3, 4
R-23(b)(1)(A) – Class Actions – Types – ......................................... 29                  R-8(a) - CASE - Kirksey - .................................................................. 3
R-23(b)(1)(B) – Class Actions – Types – ......................................... 29                  R8(a) - CASE – Sierocinski ............................................................... 3
R-23(b)(2) – Class Actions – Types – .............................................. 29                R-8(c) Affirmative Defenses .............................................................. 4
R-23(b)(3) – Class Actions – Types – .............................................. 29                R-8(e)(2) – Alternative Pleading ........................................................ 4
R-24 – Joinder – Intervention ............................................... 15, 24, 28              R-9 – Complaint - Fraud .................................................................... 3
R-24(a) – Joinder – Intervention of Right ......................................... 28                Res Judicata – Claim Preclusion ...............6, 21, 22, 23, 25, 27, 30, 32
R-24(b) – Joinder – Permissive Intervention .................................... 28                   Res Judicata - Final Judgment .................................... 5, 10, 11, 21, 22
R-26(b)(1) – Discovery –................................................................ 7, 8         Res Judicata – Issue Preclusion ................................ 22, 23, 24, 25, 26
R-26(b)(3) - CASE – Hickman ........................................................... 8             Res Judicata – Issue Preclusion – ............................. 22, 23, 24, 25, 26
R-26(b)(3) - CASE – Rackers - .......................................................... 8            Res Judicata – Issue Preclusion – Defensive .................................... 26
R-26(b)(3) – Discovery – Cost of Discovery ...................................... 8                   Res Judicata – Issue Preclusion – Offensive .............................. 24, 26
R-26(b)(3) – Discovery - Work Product Privilege .............................. 8                      Res Judicata - On the Merits ................................................ 19, 22, 23
R-26(b)(4) – Discovery Expert Witnesses .......................................... 9                  Res Judicata – Valid Judgment......................................................... 22
R-3 - Suit Commencement ....................................................... 3, 7, 30              Service......................................... 4, 5, 8, 16, 17, 18, 20, 21, 22, 31, 32
R-30 – Discovery - Deposition ........................................................... 7           SMJ - General ...................................................... 3, 11, 14, 15, 19, 27
R-31 – Discovery – Written Deposition ............................................. 7                 SMJ – General .................................................................................. 30
R-33 – Discovery – Interrogatories .................................................... 7             Territorial – in rem ........................................................................... 16
R-34 – Discovery – Production of Documents ................................... 7                      Territorial – PJ..... 3, 5, 6, 11, 14, 16, 17, 18, 19, 20, 21, 23, 27, 32, 33
R-36 – Discovery – Request for Admission ....................................... 7                    Territorial – PJ –....................................................... 12, 16, 17, 18, 21
R-4(a) Service............................................................................... 4, 21   Territorial – PJ – General ............................................... 11, 17, 21, 31
R-4(c)(2) – Service – Who May Serve? ........................................... 21                   Territorial – PJ – Specific ................................................................. 18
R-4(e) – Service – Individuals .......................................................... 21          Territorial – Quasi in rem ..................................................... 16, 19, 23
R-4(h)(1) – Service – Corporations .................................................. 21              Territorial –in rem ............................................................................ 19
R-45 – Discovery – Subpoena ............................................................ 7            Transaction or Occurrence ........ 5, 6, 15, 19, 20, 22, 23, 26, 28, 29, 32
R-50(a) – Pre-Trial Motion – Directed Verdict ................................ 10                     trial ..........................................................7, 8, 9, 10, 11, 20, 21, 24, 32
R-50(b) – Post-Trial Motion – Judgment NOV ................................ 10                        Trial .............................................................................................. 9, 10
R-56 – CASE - American Airlines ................................................... 10                Unconscionability .............................................................................. 3
R-56 - CASE – Celotex .................................................................... 10         US Constitution .......................................... 3, 5, 11, 12, 16, 17, 29, 31




Philip Larson                                                                                                                                      Page 35

								
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