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					                                       Civ Pro Outline

1) Pleadings
   a) The Anatomy of Claims and Affirmative Defenses
        i)   Conditional Imperatives
             (1) The law of contracts, at least in simplified form, can be put in terms of the
                 following conditional imperative: If two persons make an agreement that
                 is definite in its terms, and if by the terms of the agreement each person is
                 to perform a stated service valuable to the other, and if one of the persons
                 fails to perform within the time and in the manner agreed upon, then
                 defendant is liable, unless [some other things are true].
             (2) Not every conditional imperative states a valid rule of substantive law: If
                 my significant other is a first year law student, and if first-year professors
                 are assigning an unreasonable amount of work, and if that workload is
                 interfering with my relationship, then the law school is liable in damages.
        ii) Defining “Claim” and “Affirmative Defense”
             (1) The If-statements of a conditional imperative are the elements of the claim.
                 The unless-statements of a conditional imperative are affirmative defenses
                 to the claim.
             (2) If parts go to the , unless parts go to the  (usually)
   b)   Determining the Validity of Claims and Affirmative Defenses
   c)   Burdens
        i) Introduction
        ii) The Burden of Pleading
             (1) Assume a case where the plaintiff has the burden of pleading (1)
                 negligence (2) causation, (3) injury, but the defendant has the obligation of
                 pleading contributory negligence. Plaintiff alleges the following in his
                 complaint: (a) Plaintiff and defendant had a car accident, and (b) the car
                 accident proximately caused injury to the plaintiff.
        iii) The Burden of Production
        iv) The Burden of Persuasion (or Risk of Nonpersuasion)
        v) Standards of Proof
   d)   II. Allocating Burdens—An Introduction
        i) With respect to each statute, who bears the burden on the question of the
             plaintiff's negligence?
             (1) Statute 1: Persons shall be liable for injuries to others caused by failure to
                 take reasonable care; provided that no person shall be liable if the
                 plaintiff‟s own negligence was the primary cause of the injury.
             (2) Statute 2: A person who is not himself negligent but who is injured by the
                 negligence of another, has a cause of action against the injurer.
   e)   Gomez v. Toledo
        i) § 1983
        ii) Meaning of Qualified Immunity
        iii) At the time Gomez was decided, an official would be deemed to had acted in
             bad faith if
            (a)    he knew or reasonably should have known the action would violate a
                   federal right, or
               (b) he took the action with malicious intent to cause deprivation of a
                   federal right or other injury.
     iv) Allocating the Elements Relevant to the Claim
           (1) The elements material to a §1983 claim can be simplified for our purposes
               as follows:
                            a. deprivation of federal right.
                            b. under color of state law
                            c. bad faith (or absence of bad faith)
     v) Facts
     vi) Procedural History
           (1) Dismissed at Judgment on the Pleadings
     vii) The Majority Opinion
           (1) BoPleading on 
               (a) Qualified Immunity is a , should be pleaded by 
               (b) Plain language of 1983 does not mention Qualified Immunity
               (c) Legislative History
               (d) Contrary to analogous practice in other areas of law
     viii) Justice Rehnquist's Concurrence
     ix) Allocation in Other Cases
f)   The Pleadings—An Introduction
     i) Pleadings v. Motions
           (1) Pleadings are written assetions. Set out in 7(a)
           (2) Motions are requests for Court orders. Set out in 7(b).
     ii) Rule 11
           (1) 11(b): By presenting to the court a pleading, written motion, or other
               paper—whether by signing, filing, submitting, or later advocating it—an
               attorney or unrepresented party certifies that to the best of the person‟s
               knowledge, information, and belief, formed after an inquiry reasonable
               under the circumstances:
               (a) It is not being presented for any improper purpose (harassing, driving
                   up litigation costs)
               (b) The legal contentions are not frivolous
               (c) The factual contentions have, or will have after discovery, evidentiary
               (d) The denials of factual contentions are warranted on the evidence, or
                   reasonably based on belief or lack of information
           (2) A sues B in a U.S. District Court. A alleges that C, B's employee,
               negligently ran A down while A was crossing a certain highway. Shortly
               after the alleged accident, C was killed in a motor vehicle accident with
               another party. Therefore, there is no witness to the alleged accident other
               than A. B has no direct evidence whether C ran A down or not, but
               believes A may have faked the accident after A learned that C had been
               killed. B provides B's attorney with information that A is not a credible
               witness and can be effectively impeached at trial. In B's answer, can B's
              attorney deny the allegation that C ran A down consistently with Federal
              Rule 11?
          (3) Assume that the plaintiff has commenced an action in federal court by
              filing a complaint similar to Form 12 and that the plaintiff must prove
              who was driving the motor vehicle that hit the plaintiff in order to
              recover. Defendant C.D. tells CD. 's attorney that C.D., and not
              defendant E.F., was driving the motor vehicle that hit the plaintiff.
              However, C.D. is pretty sure that the plaintiff cannot prove that C.D. was
              driving. May CD. 's attorney answer the complaint by denying that C.D.
              was driving?
     iii) The Pleading Philosophy of the Federal Rules
     iv) Amending the Pleadings
          (1) Easy to amend the pleadings.
              (a) 15(a)(1): May amend as a matter of course
              (b) 15(a)(2): Can amend w/ opposing party‟s written consent or the
                   court‟s leave. Court should freely give leave where justice requires.
              (c) Court should not grant amendment if it prejudices the other party.
                   (i) Beck v. Aquaslide (SOL)
                   (ii) The greater the lack of diligence on the pleader, the less
                        prejudice must be shown
     v) Construction of the Pleadings
g)   Conley v. Gibson
     i) Don‟t need to set out detailed facts. Only need to give fair notice.
     ii) Don‟t dismiss unless beyond doubt that  cannot prove claim.
     iii) Fed Cts have been reluctant to apply this standard.
h)   The Complaint—How Much Factual Specificity Is Required?
     i) What Must be Pleaded in the Complaint?—Policy Considerations
          (1) There has to be some discussion of the facts that give rise to the claim.
          (2) Discovery and SumJ are expensive.
i)   Bell Atlantic Corp. v. Twombly
     i) Background—History
     ii) Procedural History—The Amended Complaint
     iii) Procedural History—The 12(b)(6) Motion and Beyond
     iv) Background—The Sherman Antitrust Act
     v) Background—Proving an Agreement
          (1) At the burden of production and persuasion stages, a plaintiff can prove an
              agreement using direct or indirect evidence. Direct evidence is eyewitness
              testimony about the fact in question. But direct evidence is not the only
              way to prove something.
     vi) Background—Parallel Conduct
          (1) Antitrust law is clear that evidence of parallel conduct—standing alone—
              does not allow a facftfinder to infer an agreement.
     vii) The Majority Opinion—The Sufficiency of the Complaint
          (1) Souter: allegations not sufficient to show that the pleader is entitled to
              relief. Rule 8(a)(2). Allegations of agreement are really just “legal
               conclusions,” only real allegations are parallel conduct. Complaint should
               be dismissed.
           (2) There is no question that the allegations are consistent with a §1 violation.
               Under the “no set of facts” standard in Conley, that should be sufficient, at
               least if the complaint includes and allegation of agreement.
           (3) Majority clearly thinks Conley is too lenient, and instead holds that
               allegations must “plausibly suggest” agreement, not just merely
               “consistent” with agreement
     viii) The Majority Opinion—Footnote 10
           (1) If  proves an agreement through indirect evidence, then  must also
               show parallel conduct. If  proves agreement through direct evidence, 
               does not need to show parallel conduct. This does not mean  could have
               just alleged agreement and had a better claim than alleging parallel
               conduct and agreement. See FN 10 (yes, its dicta, but is really good dicta).
                must give notice to the  of what is being alleged.
     ix) The Dissent—An Argument for the Sufficiency of the Complaint
           (1) Completely on board with the majority on the matter of substantive law.
               But rejects the view that the complaint is insufficient. The allegations of
               agreement can‟t be dismissed as legal conclusions. Right as a historical
     x) The Majority v. The Dissent—A Role of Pleading in a Litigation System
           (1) Justice Stevens: “Fears of the burdens of litigation does not justify factual
               conclusions supported only by lawyer‟s arguments rather than sworn
               denials or admissible evidence [¶]. . .We have observed that “in antitrust
               cases, where the proof is largely in the hands of the alleged conspirators,
               dismissals prior to giving the plaintiff ample opportunity for discovery
               should be granted very sparingly.”
           (2) Dissent also believes the “facts” in the pleading can plausibly suggest an
               agreement. Cites Adam Smith and the quoted statements of Notebaert
               (head ILEC person) as being plausible.
           (3) Majority disregards these quotes, which is strange because it should look
               at the “facts” in the most favorable light to the plaintiff.
           (4) Majority also deeply concerned about the expense of discovery. Careful
               case management is the not solution, strict pleading standards are.
           (5) Dissent mainly concerned that meritorious litigation will fall victim to the
               pleading standard. Asymmetric information on the side of the defendants
               might only be discovered by (shock!) discovery.
     xi) Twombly Outside the Antitrust Context
           (1) Plausibility might be limited to just anti-trust, not typically elsewhere. But
               Wolley does think that Twombly has broader implications, b/c it requires
               Pleader to show the he/she is entitled to relief (w/ fair notice requirement).
               Suspects Twombly will lead to a significant heightening of pleading
           (2) See American Nurses Ass v. State of Illinois. Runs counter to Twombly‟s
               fair notice req. Posner relies on the possibility that s might have a claim.
j)   Responding to the Complaint—Introduction
   i)   Responding to the Complaint—Rule 12 Defenses
        (1) Rule 12 sets forth four disfavored ‟s:
            (a) Personal jurisdiction
            (b) Insufficient Process
            (c) Insufficient service of Process
            (d) Venue defense
        (2) The other defenses are preserved by (h)(2).
            (a) Failure to Join Party
            (b) Failure to state a claim
            (c) Failure of Subject-matter jurisdiction
        (3) Can‟t move to strike or for a more definite statement if  already
        (4) If  forgoes a pre-answer motion, loses  available to her if not in her
            answer or amended answer.
   ii) Problems on Rule 12
   iii) Rule 12 Waiver and Consolidation Rules—Summary
        (1) Have to consolidate motions.
k) Responding to the Complaint—The Answer
   i) Overview
   ii) Counterclaims
   iii) Defenses
        (1) 12b‟s and Aff ‟s
   iv) Affirmative Defenses v. Counterclaims
        (1) Counterclaims are compulsory, Aff s are not.
   v) Admissions and Denials
        (1) Can‟t generally deny everything if this violates Rule 11.
l) Fuentes v. Tucker
   i)  amends answer to admit death of two kids and all damages proximately
        caused by their death. Does so to keep jury from hearing gory details that
        might raise damages. How and why the accident happened, under CA law, is
        irrelevant to the matter of damages.
   ii)  Court erred by allowing the irrelevant evidence to get in.
m)          Responding to the Answer
   i) The Rule 12(f) Motion
        (1) Equivalent of 12(b)(6) for the .
   ii) Replying to Affirmative Defenses
        (1) Rare, sometimes required for qualified immunity
   iii) Answering a Counterclaim
        (1)  can file pre-answer-to-the-counterclaim motions, just like pre-answer
            motions for the 
n) Pleading Practice—A Summary
   Claim []                                       Counterclaim []
   Complaint []                                   Answer []
   Rule 12 pre-answer motion []                   Rule 12 pre-answer motion []
       Answer []                                      Answer to the CClaim []
       12(f) motion to strike []                      R. 12(f) motion to strike []
       [Rule 12(e) motion for more definite
       statement, if court orders a reply] []
       [Reply, if ordered by the court] []
2) Summary Judgment
  a) Substantiality of Claims and Defenses—Orientation
       i)    Pleadings v. Proof
             (1) Trial allows the case to go beyond pleadings and get to the actual evidence
       ii) The Burdens of Production and Persuasion
             (1) Burden of production is a jury-control device. A party will not prevail, if it
                 has BoProd, if no reasonable jury could find for them.
       iii) Why Are We Surveying the Rules of Evidence?
  b)   The Rules of Evidence
       i) Admissibility
       ii) Personal Knowledge [FRE 602]
             (1) All witnesses must have personal knowledge of the matter
       iii) Authentication [FRE 901(a) and (b)(1)]
       iv) Relevance [FRE 401]
       v) Direct v. Indirect (Circumstantial) Evidence
             (1) Jury not required to credit direct testimony more than indirect. Just usually
                 happens that way.
       vi) Hearsay [FRE 801(c)]
       vii) Exceptions to the Hearsay Rule [FRE 801(d)(2)(A) & (D)]
             (1) Admissions by your opponent are not hearsay
       viii) Hearsay v. Personal Knowledge
             (1) You always have personal knowledge of what someone said to you. That
                 doesn‟t stop it from being hearsay
       ix) Impeachment
  c)   Summary Judgment—Overview
       i) The Standard—An Introduction
       ii) A moving party is entitled to summary judgment, if (a) there is no genuine
             issue as to any material fact, and (b) the moving party is entitled to judgment
             as a matter of law. Put another way, a moving party is entitled to summary
             judgment only if a reasonable jury would be compelled to find for the moving
             party. A moving party is not entitled to summary judgment if a reasonable
             jury could find for either the  or . Therefore, a nonmoving party will defeat
             a summary judgment motion if a reasonable jury could find for the nonmoving
       iii) The Standard—What Is An “Issue of “Material Fact”?

                              Hypothetical Suit for Trespass
                 „S COMPLAINT                                         'S ANSWER
           (1)        Lawful possession                                                  (1) Admits
           (2)        Entry onto land                                                    (2) Admits
           (3)        Without permission                                                 (3) Denies
                                                                                         (4) Alleges suit is untimely

           iv) Element 3—Without permission to enter onto the land
                 (1) Issue of Material Fact: Did the  give  permission to enter onto the land?
           v) Element 4— Untimeliness of the suit
                 (1) Issue of Material Fact: When did the alleged trespass take place?
           vi) The Standard—What Is a “Genuine Issue”?
                 (1) An issue is genuine if a reasonable jury could find for the  or the . Can
                     only be determined by looking at the evidence introduced by the parties.
           vii) The Standard—When Is A Movant Entitled to “Judgment as A Matter of
                 (1) If a reasonable jury, considering the undisputed facts, would be compelled
                     to find for one party.
           viii) Pleading Motions v. Summary Judgment Motions
           ix) Judgment As A Matter of Law—The Case of Negligence
                 (1) In negligence cases, we often let the jury decide whether there's been
                     negligence even if there is no disagreement between the parties on the
                     relevant facts.*
     d)    Summary Judgment Materials
           i) Materials Identified in Rule 56
           ii) Pleadings
                 (1) Summary Judgment pierces the pleadings and asks what the parties are
                     actually contesting in a case.
                 (2) Pleadings cannot make an issue genuine. Pleadings can only frame issues,
                     not support them. Exception for admissions
           iii) Discovery and Disclosure Materials
                 (1) Affidavits can provide evidence, but they‟re technically hearsay (out-of-
                     court statement). Witness must testify in court.
           iv) Rule 56 Exceptions to the Hearsay Rule
                 (1) Affidavits, answers to interrogatories, and depositions can be used to
                     determine the validity of a SummJ motion.
                 (2) We want to avoid the costs of calling witnesses if there isn‟t a genuine
                     contest for trial.
     e)    Summary Judgment—When The Moving Party Has the iBOPT At Trial
           i) The Conceptual Framework
                 (1) If the party moving for summary judgment would have the initial burden
                     of production at trial, the moving party must produce evidence that would
                     compel a reasonable jury to find for the moving party. A reasonable jury
                     would not be compelled to find for a party unless: (a) the evidence, if

 The circumstances in which judges will find negligence as a matter of law on the undisputed facts (even in the absence of a violation
of a statute) present complicated issues that may be discussed more profitably in a Torts class. For an introduction to this issue, see
Sioux City & Pacific Railroad Co. v. Stout, 84 U.S. (17 Wall) 657 (1873), an edited version of which is reproduced at page 1106 of
your casebook.
              believed, would require the jury to find for the party, and (b) there is no
              basis for disbelieving the evidence.
          (2) If BoProd, must produce evidence that would compel a reasonable jury to
              find for the moving party on the issue of material fact. This is much more
              than just satisfying the burden of production.
              (a) The evidence, if believed, would require the jury to find for the
                   moving party
              (b) There is no basis for disbelieving the testimony.
          (3) If they do so, then the burden of production shifts to the opposing party.
          (4) What kinds of evidence would require a finding for the moving party?
              Direct evidence, or strong indirect evidence that would lead the jury to
              only draw inferences that would support the moving parties case (Color of
              the barn at 11:59).
          (5) In its opposition, the nonmoving party can
              (a) argue that the evidence presented by the moving party, if believed,
                   would not compel a reasonable jury to find for the moving party,
              (b) argue that there is a basis for the jury to disbelieve the testimony,
              (c) produce evidence that would allow a reasonable jury to find for it.
     ii) The Issue of Credibility
          (1) A nonmoving party without the burden of production at trial can defeat a
              summary judgment motion by raising a credibility issue—through
              evidence, for example, that a key witness on which the moving party relies
              is biased, dishonest, unaware, or unsure of the facts.
     iii) The Question of Biased Testimony
          (1) The better view is that a moving party with the burden of production at
              trial may rely on testimony from a biased witness if
              (a) if the testimony is uncontradicted and otherwise unimpeached and
              (b) the nonmovant could easily rebut the testimony, but does not do so.
          (2) Example:  claims he saw  sign a contract.  only claims that  is
              biased.  gets SumJ. ( could have claimed that he did not sign the k).
f)   Summary Judgment—When the Moving Party Does Not Have the iBOPT
     i) The Traditional Approach—Conceptual Framework
          (1) For many years, the dominant view was that the nonmoving party should
              not be required to demonstrate anything before trial unless the moving
              party produced affirmative evidence that would negate the nonmoving
              party's claim or affirmative defense.
          (2) Under this approach, a , for example, could force a  to demonstrate that
              the  could satisfy its burden of production at trial only if the  first
              produced evidence that, if believed, would compel a reasonable jury to
              find for the .
     ii) The Papers Under the Traditional Approach
          (1) Under the traditional approach, the nonmoving party in its opposition
            (a)    argue that the evidence presented by the moving party, if believed,
                   would not compel a reasonable jury to find for the moving party,
               (b) produce evidence that would allow a reasonable jury to find for it.
g)   Adickes v. S.H. Kress & Co.
     i) Facts
           (1)  needs to prove state action requirement to her discrim  Must show
               conspiracy between police and shop owner.
     ii) The Court‟s Legal Analysis
           (1) Court held that the presence of a policeman in the store, along with other
               facts, would allow a reasonable jury to find a conspiracy between the
               police and S.H. Kress.   meets BoProd if she proves there was a
               policeman in the store. Obviously, her BoPers is greater than this.
     iii) Showing by S.H. Kress & Co.
           (1) Kress relied on affidavits from store manager, police chief, and two
               arresting officers. Court rules this is not enough to negate ‟s claim.
     iv) Showing by Ms. Adickes
           (1) Kress's failure to negate Adickes‟ claim meant that Adickes had no
               obligation to produce any evidence in response to the summary judgment
           (2) If Kress had satisfied the burden of production imposed on a party moving
               for summary judgment, the Court makes clear that Adickes would have
               been in very serious trouble.
     v) The Complaint
     vi) Ms. Adickes‟ Deposition Testimony
     vii) Ms. Sullivan‟s Statement
     viii) Ms. Adickes‟ Affidavit
     ix) Rule 56(f)
           (1) If nonmovant shows by affidavit that it cannot present facts to justify its
               motion, the court may
               (a) Deny the motion
               (b) Order a continuance of discovery
               (c) Issue any other just order
h)   Celotex Corp. v. Catrett—Overview
     i) Facts/Procedural History
     ii) The Limits of the Court‟s Decision
           (1) Celotex is relevant only in cases where the moving party would not have
               the burden of production at trial.
     iii) Moving Party w/o BPOT—The Modern Celotex Approach
           (1) The Court emphatically rejects the view that the moving party‟s initial
               responsibility requires a , for example, to negate the „s claim. Negating
               the nonmoving party’s claim or defense will certainly satisfy the moving
               party’s initial responsibility, but negation is not required. Under Celotex,
               the inquiry may be limited to whether a nonmoving party with the BOPT
               can satisfy its burden.
     iv) The Justifications for Celotex
      (1) Language of Rule 56
          (a) Affidavits, if any
          (b) Power to grant Continuance via 56(f) sua sponte
          (c) Proper Role of SummJ in a notice pleading system
v) Distinguishing Adickes
vi) Celotex—What Is Required to Satisfy the Initial Responsibility?
      (1) Scenario #1—Celotex asks for identification of witnesses on exposure,
          and Catrett responds, "none." By citing to this exchange, Celotex satisfies
          its initial responsibility by demonstrating that Catrett will be unable to
          satisfy her burden of production at trial. (If you can't identify a witness,
          you clearly will be unable to satisfy your BOPT.)
      (2) Scenario #2—Hoff's deposition is taken and his testimony that Catrett was
          exposed to Celotex asbestos products would be admissible at trial. This
          testimony would make it impossible for Celotex to satisfy its initial
      (3) Scenario # 3—Catrett identifies Hoff as a witness. Although Catrett has
          identified a witness, the mere identification of a witness is not evidence
          that Catrett was exposed to asbestos. Can Celotex discharge its initial
          responsibility by arguing that there is nothing in the record that would
          permit Catrett to meet its BOPT?
               (i) It‟s not an affidavit and it‟s not evidence. Is witness ID good
      (4) Scenario # 4—Celotex brings a summary judgment motion before Catrett
          is required to identify Hoff as a witness. Can Celotex discharge its initial
          responsibility by arguing that there is nothing in the record that would
          permit Catrett to meet its BOPT?
               (i) Doesn‟t seem like  should get SummJ b/c of Rule 56(f).
vii) Is A Representation With Respect to the Record Enough When There Is No
      Evidence in the Record?
      (1) One way of reading the opinion in Celotex is that a moving party may
          discharge its initial responsibility simply by accurately representing to the
          court that there is no admissible evidence in the record that would permit a
          reasonable jury to find for the nonmoving party.
      (2) Typically, the "record" at the time a summary judgment motion is filed
          includes the pleadings and those depositions, answers to interrogatories,
          and answers to requests for admission which are available at the time the
          motion is filed.
          (a) The record at the time a summary judgment motion is filed typically
               does not include opposing affidavits because affidavits are filed in
               response to a motion for summary judgment.
          (b) The summary judgment record, of course, may be supplemented after
               the motion has been filed, but any supplementation would have no
               bearing on the satisfaction of the initial responsibility.
viii) Justice Brennan‟s Opinion—Satisfying the Initial Responsibility
      (1) Under the Brennan view, discovery is required before a party can satisfy
          its initial responsibility. If the nonmoving party identifies witnesses to
                 support its case in discovery responses or court filings, the moving party
                 must demonstrate that the evidence and witnesses supporting the
                 nonmoving party would be unable to meet the nonmoving party's BOPT.
             (2) This is not a negation requirement. It is a duty to investigate before going
                 back to the set standard of accurate representation of the record.
       ix) An Obligation to Depose Hoff?—Justice White‟s View
             (1) Under current law, identifying Hoff in the earlier summary judgment
                 motion would have satisfied Cattrett‟s obligation to supplement its
                 discovery responses. See Fed. R. Civ. P. 26(e). So it seems unlikely that
                 a court would conclude that Celotex did not have to depose Hoff because
                 he was not identified in the materials listed in Rule 56(c).
       x) The Ambiguity of the Majority Opinion
             (1) Justice Rehnquist‟s opinion is arguably consistent with both the
                 White/Brennan view and the view that it is sufficient to accurately
                 represent that there is no admissible evidence in the record.
       xi) What is the Appropriate Standard?
             (1) “The burden on the moving party may be discharged by „showing‟ that
                 there is an absence of evidence to support the nonmoving party‟s case.”
             (2) “Of course, a party seeking SumJ always bears the initial responsibility of
                 informing the court of the basis of its motion, regarding [all the evidence
                 available], to show an absence of any genuine issue of material fact.”
                 (a) Could be read as a req. for discovery. Or could be read as an accurate
                     representation of the record.
Least Sympathetic to                                               Most Sympathetic to 
-Put up or Shut up                       -Duty to Investigate
       -Accurate Representation                                            -Negation
       xii) Tactical Considerations
             (1) These distinctions might have little to no impact on how you write your
                 SumJ motion. You want to preview and shape your opponent‟s evidence.
                 You should depose an opponent‟s witness before your SumJ motion,
                 because you want to crush their case. If possible, you want to negate their
                 claim even if you don‟t have to.
             (2) You don’t want to walk to first base, you want to hit the gaddam ball
                 into the gap.
       xiii) Celotex—The Admissibility Question
       xiv) Introduction
       xv) The “Will-Call” View
             (1) Under the “will-call” view, the nonmoving party may rely on inadmissible
                 evidence, if
                 (a) the evidence would be reducible to admissible evidence at trial, and
                 (b) she can persuade the court that the evidence will in fact be reduced to
                     admissible evidence at trial.
       xvi) Celotex on Remand to the Court of Appeals
       xvii) The Textual Basis for the “Will-Call View”

   Some Possible Approaches            Moving Party‟s Initial        Quality of Evidence
                                           Responsibility             Nonmoving Party
                                                                       Must Submit

   "Defense-Oriented" Views           representation re record       admissible evidence

     Alternative Approaches           "White/Brennan" View            "Will-Call" View
                                       (Duty to Investigate)

   i)   Anderson v. Liberty Lobby
        i) The Holding
             (1) In short, Anderson holds that whether a genuine issue of material fact
                 exists must be measured against the relevant standard of proof that the 
                 would have to prove at trial. The quantum and quality of evidence needed
                 to meet the BoProd goes up as the SoP goes up.
        ii) The Paradox of Anderson
             (1) How can the court determine whether this new test has been meet without
                 actually weighing the evidence? It can‟t. Anderson can‟t be taken literally
                 when it says the weighing of evidence is purely a jury question.
             (2) The solution is that the Judge shouldn‟t weigh the evidence the same way
                 a jury should. The judge should, on a motion for SumJ or DirV, must ask
                 whether it would be within the realm of reason for a jury to find for the
                 party with the BoProd at trial.
        iii) Direct and Indirect Evidence
             (1) Judge can‟t weigh direct evidence, b/c credibility is an issue for the jury.
                 (Aside: direct evidence is “incredible as a matter of law” if it directly
                 contradicts proven physical evidence or the law of nature.)
             (2) But the judge must weigh indirect evidence to determine what the
                 permissible inferences are.
        iv) Anderson and Direct Evidence
        v) Anderson and Indirect Evidence
             (1) There are no firm guidelines on how to figure out whether an inference
                 would past muster under a given standard of proof. These decisions result
                 from the exercise of judgment, not a mathematical process. But keep in
                 mind that the strength of indirect evidence on a material issue of fact must
                 be considered as a whole to determine whether sufficient evidence has
                 been produced to meet the burden of production at trial.
        vi) Credibility and the BOPT
             (1) Credibility only plays a role in SumJ when it is the moving party who has
                 the BoProd. Can‟t meet your BoProd by proving that the other side‟s
                 witnesses are dishonest. Must introduce affirmative evidence to satisfy its
             (2) Reeves may have the possibility of allowing that the dishonest testimony
                 of a party at trial may assist the opposing party in satisfying its BoProd.
                 Wolley is unaware of any case that relies on Reeves for this proposition.
3) Trial by Jury
a) The Seventh Amendment—Overview
     i)    The Seventh Amendment does not apply to the states.
           (1) Congress can grant rt to jury trial by statute, even if Const doesn‟t
               specifically say so. No one can deny a jury trial if the 7th amendment
               requires one.
     ii) Understanding the Seventh Amendment—The English Court System in 1791.
           (1) For our purposes, in 1791, there were two types of courts in England:
               common law courts and courts of equity. Typically, damages were viewed
               as a legal remedy to be sought in the common law courts. Actions seeking
               injunctions were cognizable in equity.
     iii) Curtis v. Loether
     iv) The Power of the Jury
           (1) Professor Moore wrote: "The general verdict, at times, achieves a triumph
               of justice over law. The jury is not, nor should it become a scientific
               factfinding body. Its chief value is that it applies the „law,‟ often-times a
               body of technical and refined theoretical principles, and sometimes edged
               with harshness, in an earthy fashion that comports with 'justice' as
               conceived by the masses, for whom after all the law is mainly meant to
     v) Selecting the Jury
           (1) There are two different kinds of challenges that may be exercised against
               (a) challenges for cause
                   (i) Law requires that the pool of jurors come from a fair cross-section
                       of the community, but then lawyers may challenge for cause when
                       the juror is biased or are categorized as biased as a matter of law.
               (b) peremptory challenges. (Note the spelling of "peremptory.")
                   (i) Lawyers may also use peremptory challenges. Used to sculpt a jury
                       to be favorable to you. Peremptory challenges cannot be used
                       because of a juror‟s race or sex.
     vi) The Origins of the Seventh Amendment
     vii) Understanding the Seventh Amendment—The Federal Courts Before the
           Federal Rules of Civil Procedure
           (1) Equitable cleanup doctrine: A suit in equity, with incidental legal issues,
               can be tried completely on the equitable side. (E.g. Specific performance
               on a k. Damages, in addition to or in lieu of SP, can be granted on the
               equity side.)
     viii) Understanding the Seventh Amendment—Federal Courts and the Federal
           Rules of Civil Procedure
b)   Beacon Theatres, Inc. v. Westover
     i) Antitrust Background
     ii) The Pleadings
           (1) Beacon notified Fox that it thought Fox was violating the Sherman Act.
           (2) Fox decides to beat Beacon to the punch and files a complaint first. Asks
               for declaratory judgment and an injection.
           (3) Beacon files a counterclaim and demands a jury trial on all issues.
iii) The District Court‟s Ruling
      (1) The doctrine of collateral estoppel forbids conflicting decisions of the
          same issue between the same parties.
      (2) Collateral estoppel: Trying Fox‟s claim first to the judge might deny
          Beacon‟s claim from ever reaching a jury.
iv) Writ of Mandamus
      (1) Writs of mandamus are extreme tactics, but appropriate to preserve the
          right to a jury trial.
v) Categorizing the Issues
vi) Characterizing Requests for Declaratory Judgment
      (1) Party can seek a declaratory judgment in addition to, or in lieu of, another
          remedy for an alleged wrong.
      (2) Beating the other party to the punch. Creates an “inverted lawsuit.”
vii) The Court of Appeals‟ Decision
      (1) Since Fox sought an injunction, the rest of the lawsuit can be heard in
          equity under the equitable cleanup doctrine. (Baby with the bathwater).
viii) The Supreme Court‟s Rejection of the Traditional Approach
      (1) When legal and equitable claims have factual issues in common, those
          issues must be heard by a jury. SCt is creating a preference for jury trials.
      (2) This does not interfere with judge‟s ability to grant a preliminary
      (3) Issues common to both legal and equitable claims must be tried to a jury.
          When you bifurcate under Rule 42, bifurcation should be treated as the
          functional equivalent as an injunction. An injunction against trying legal
          claims first is only acceptable when justice requires.
ix) The Injunction Analogy
      (1) A sues B for br/k. B believes he has grounds for rescission of k. In a
          system that separates legal and equitable claims, A would file suit in CL
          courts, and B would file suit for rescission in equity courts. B could suffer
          irreparable harm if A wins first, b/c he would not get his claim heard.
      (2) But in a system where legal and equitable claims are together, the court
          may hear both claims and issue one decision that controls both.
x) No equitable cleanup after Beacon
xi) The Dissent
      (1) Justice Stewart reads the word "preserved" in the Seventh Amendment to
          freeze the right to a jury trial precisely as it existed in 1791.
xii) Dairy Queen v. Wood
      (1) Background
          (a) DQ wants an “accounting” to determine damages owed to it.
              Accounting normally viewed as an equitable claim, b/c it was too
              complex for juries.
      (2) The Court‟s Holding
          (a) Court holds that a master can be appointed to a jury when the matters
              are complex. Therefore, we solved that problem with the Fed Rules of
              Civ Pro.
            (b)    DQ makes explicit what Beacon made implicit: Equitable cleanup is
     xiii) Ross v. Bernhard
           (1) Background
               (a) Derivative suit: Shareholder‟s sues on behalf of a corporation.
                   Traditionally a suit in equity. If the corporation had sued directly, it
                   would have been a jury trial.
           (2) The Court‟s Holding
               (a) SCt holds that says 7th Amd analysis must be based on the character
                   of the substantive claim rather than the procedural device that got the
                   case into court.
     xiv) Parklane Hosiery Co. v. Shore and Lytle v. Household Manufacturing, Inc.
           (1) Beacon established that when legal and equitable claims are brought in the
               same suit, a party is entitled to a jury determination of all legal issues.
               Parklane addresses what happens if a legal claim is brought in a separate
               suit after the equitable claim has been determined.
           (2) The rule of Beacon Theatres—that factual issues common to legal and
               equitable claims must be tried to a jury—applies only if the equitable and
               legal claims are brought in the same proceeding.
     xv) Lytle
           (1) Judge erroneously denies request for jury trial, rules against .
           (2) “But for the erroneous dismissal of the §1981 claim, this case would be
               indistinguishable from Beacon Theaters and Dairy Queen.”
           (3)  get new trial and is not bound by collateral estoppel
     xvi) The Reception of Beacon Theatres in State Court
           (1) A majority of states go with Stewart‟s dissent in Beacon. Texas follows
               neither approach, and allows jury trials for all issues.
c)   Motions for Judgment As A Matter of Law (Including Renewed Motions)
     i) JML
           (1) A party can be denied SumJ but get Judgment as a Matter of Law with the
               exact same evidence. Judges feel more comfortable when they‟re not
               ruling on little bits of paper.
     ii) Post-Verdict Motions
           (1) Post-verdict motions: Loser may move for RJML, new trial, or both. Must
               be filed w/in 10 days from entry of judgment.
           (2) RJML may only be brought if the party brought a JML before the case
               was submitted to the jury.
           (3) Why would you ever get a RJML when you‟ve already lost the first JML?
               (a) Because the judge wants the jury‟s answer and she‟s antsy that if she
                   gets overturned, we‟ll need a whole new trial. Better to get the jury
                   verdict in so we can use it if this gets appealed.
               (b) Probably will only grant JML if its completely crystal clear that a party
                   is in the right, and she wants to save the jury/court‟s time.
     iii) New Trial Motions Based on Errors or Irregularities in the Trial Process
          (1) A new trial motion can be used to challenge irregularities or errors in the
              trial process. Rule 61, the “harmless error” rule, applies to motions for a
              new trial based on irregularities or errors in the trial process.
     iv) New Trial Motions Based on the Weight of the Evidence
          (1) Most courts apply a “miscarriage of justice” standard—may not grant new
              trial on sufficiency unless the jury verdict is against the “great weight” of
              the evidence.
          (2) Don‟t mistake “great weight” as making the judge a 13th juror. Judge
              must be persuaded that the jury went seriously off-course, then New Trial
              is appropriate. Court should be careful about substituting its judgment for
              the jury‟s.
     v) New Trials Motions Based on Lack of Evidentiary Support for Damages
          (1) Judge can order a new trial on damages. If “excessive,” judge can order a
              new trial and comment on what he thinks the highest damages supported
              by the evidence are ($X). The winning party may then accept $X (the
              remittur), or go to a new trial for damages.
     vi) New Trial Motions by the Verdict-Winner
          (1) If judge grants RMJL, the verdict winner wants to file a New Trial motion.
              This would not address the sufficiency of the evidence, but instead focus
              on errors and irregularities at trial.
d)   Tanner v. United States and Rule 606(b)
     i) Facts
     ii) Rule 606(b)
          (1) No juror testimony regarding:
              (a) any statement in the course of deliberations
              (b) the effect of anything upon a juror‟s mind or emotions
              (c) the juror‟s metal processes
          (2) Exceptions:
              (a) extraneous prejudicial information improperly shown to the jury
              (b) outside influence improperly brought to bear on juror
              (c) mistake in entering the verdict onto the verdict form
          (3) Rule also applies to juror affidavits or any evidence of statements by the
          (4) This rule does not apply before a verdict is rendered. This is a prohibition
              on impeachment of a jury verdict.
     iii) The Opinions
          (1) But majority reads rule very broadly to affect anything that was said
              during trial. Also disses the appellant for arguing that the testimony fits
              into Exception (2) rather than arguing that Page 1 doesn‟t apply.
     iv) The Majority Opinion in Tanner—Policy Considerations
          (1) Preserve frankness is jury deliberations.
          (2) Deter juror harassment by losing parties.
          (3) Keep the finality of the verdict.
          (4) Preserve community trust of the jury.
     v) A Critique of Tanner
               Why would this be affected by conduct during the trial.
               Don‟t we already forbid counsel to contact jurors.
               Pretty legit. But it has to be weighed against fairness & accuracy.
               We really don‟t want people to see how the sausage is made.
               Professor James wrote: "Probably there are not many cases in which each
               of the twelve jurors fully understand and meticulously performs a jury's
               theoretical function, observing all its limitations and fulfilling all its
               affirmative obligations."
        vi) A Defense of Rule 606(b)
4) Choosing the Court and Law—Introduction
   a) Overview
   b) Subject Matter Jurisdiction and Territorial Jurisdiction
        i) TPJ is the court‟s authority to require a party to appear.
        ii) SMJ is the court‟s authority to hear kinds of cases.
   c)   Venue
        i) Venue provides a more precise geographical location for a suit than does
            personal jurisdiction.
   d)   Forum Non Conveniens
        i) Even if a court has subject matter jurisdiction over the case, personal
            jurisdiction over the parties, and venue is proper, should the court dismiss on
            the grounds that the forum would be seriously inconvenient?
5) Subject Matter Jurisdiction—Introduction
   a) The Relationship Between Federal and State Subject Matter Jurisdiction
        i)  Every state has a court of general jurisdiction that can hear both federal and
            state claims. In other words, a litigant almost never faces the question of
            whether a case is within the subject matter jurisdiction of some state court.
            The more difficult question is whether the case is within the subject matter
            jurisdiction of the federal courts as well as of the state courts.
   b)   Federal Subject Matter Jurisdiction
        i) We will consider three bases of federal subject matter jurisdiction: (a) general
            federal question jurisdiction, (b) diversity jurisdiction, and (c) supplemental
            jurisdiction. We will also consider when a case that could have been brought
            in federal court may be removed from state to federal court.
   c)   General Federal Question Jurisdiction—Introduction
        i) Constitutional Basis [Art. III, Sec. 2]
            (1) Osborn v. Bank of the US (1824). Bank sought to prevent Osborn from
                collecting a tax it thought was UnCosnt. Marshall held that this was GFQ
                because whether the Bank had a right to sue formed “an original
                ingredient” in every suit filed by the Bank. Read broadly, this means GFQ
                extends to any case where a Q of Fed law might arise.
        ii) Statutory Basis—Overview [28 U.S.C. § 1331]
            (1) Also must have statutory authority. Marshall read the statute that allowed
                the bank to sue and be sued to satisfy this authoritative requirement.
          (2) §1331 (p. 731): The district courts shall have original jurisdiction of all
              civil actions arising under the Constitution, laws, or treaties of the US.
          (3) Do the words “Arising under” in 1331 mean the same thing as they did
              (a) No.
              (b) The statute is read much more narrowly than the Const. If something is
                  covered in 1331, don‟t need to worry about Const authorization.
          (4) Limitations
              (a) Most impt: A case meets 1331 only if a FQ would appear on the face
                  of a well-pleaded complaint
              (b) Even if (a) is satisfied, in one kind of case it is possible/likely that
                  there will not be statutory “arising under” jurisdiction.
          (5) The key Q is whether Fed Law supplies an element of the claim. The
              answer will always be yes when Fed Law creates claim.
d)   Louisville & Nashville RR. Co. v. Mottley
     i) Facts/Procedural History
          (1) Does Fed Statute outlaw the free passes to Mottley?
          (2) Does Due Process forbid eliminating Mottley‟s passes?
     ii) The Special Status of Subject Matter Jurisdiction
          (1) So important, the court can raise it sua sponte
     iii) The Court‟s Jurisdictional Analysis
          (1) Because this is a SP claim against a breach of k. So elements are Br/k and
              inadequacy of legal remedies. There is no Fed Issue here. This is a state
              law case.
          (2)  cannot anticipate ‟s in complaint in order to gain SMJ.
     iv) The Supreme Court‟s Jurisdiction [28 U.S.C. § 1257]
          (1) Can review State Supreme Court decisions regarding Constitutional issues
     v) Federal Question Jurisdiction Over Hybrid Claims
          (1) Federal law is said to be incorporated into a state-created claim when (a)
              state law has created the cause of action, and (b) liability under state law is
              determined by applying a federal rule of decision (i.e. federal law).
     vi) Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986): The
          π‟s alleged negligence per se was based on a violation of the Federal Food
          Drugs and Cosmetics Act.
          (1) No FQ on the well-pleaded complaint.
     vii) Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921): The π alleged
          the company had an obligation under Missouri law to purchase only valid
          bonds and that the bonds in question had been issued under an
          unconstitutional federal statute.
          (1) “This Court [has] recognized for nearly 100 years that in certain cases
              federal question jurisdiction will lie over state-law claims that implicate
              significant federal issues. The doctrine captures the commonsense notion
              that a federal court ought to be able to hear claims recognized under state
              law that nonetheless turn on substantial questions of federal law, and thus
              justify resort to the experience, solicitude, and hope of uniformity that a
                  federal forum offers on federal issues.” Grable & Sons Metal Products,
                  Inc. v. Darue Engineering & Manufacturing, 125 S.Ct. 2363, 2367 (2005).
        viii) Federal Question Jurisdiction Over Declaratory Judgment Claims
              (1) What if, in Mottley, the RR had filed Declaratory Judgment first, asserting
                  the defense of the Fed law?
                  (a) SCt has held that in this case, like Beacon, is just an inverted lawsuit.
                  (b)  Even though RR has FQ on the face of its claim, it does not give it
   e) Removal Based on a Federal Question
        i) Introduction [28 U.S.C. §§ 1441, 1446(a), (b), and (d)]
              (1) 1441(a): If case could have been brought in Fed court, the  can remove.
                  All s in the case must consent to the removal. Well-pleaded complaint
                  rule applies.
              (2) 1446(a&d): Must file notice for removal in district court, give copies to
                  adverse parties and to the state court. No motion required, effective
              (3) 1446(b): 30 days after service of the summons/pleading (whichever is
                  first), you must file or lose your right to remove. If no initial FQ, clock
                  starts ticking when  amends complaint to add a Fed element.
        ii) The “Complete Preemption” Doctrine
              (1) “Complete Preemption doctrine: A state law is completely preempted
                  only when Congress creates an exclusive federal remedy that displaces
                  state law. Any claim based on a completely preempted state law is
                  considered a federal claim.
   f) Diversity Jurisdiction and Removal Based on Diversity Jurisdiction—Ordinary
        Litigation [Art. III, Section 2, 28 U.S.C §§ 1332(a)(1)-(3), 1332(c)(1), 1441(b);
        Rule 21]
        i) 1332(a)
              (1) Citizens of different states
              (2) Citizens of a state and citizens or subjects of a foreign state
              (3) Citizens of different states and in which citizens or subjects of a foreign
                  state are additional parties
        ii) 1332(c)(1)
              (1) Corporations are citizens in the incorporated state and the principal state
                  of business state
        iii) 1441(b)
              (1) Removal
   g) Mas v. Perry—Facts/Procedural History
        i) Mas—The Husband‟s Claim
                  Mr. Mas         v.       Mr. Perry
                  (France)        v.       (Louisiana)
Good on diversity jurisdiction for 28 USC 1332(a)(2).
But Mas only got $5,000 in verdict. Amount in question needs to be $10,000.
But, gf effort and could have gotten that much.
        ii) Mas—The Wife‟s Claim
             Mrs. Mas            v.       Mr. Perry
             (?)                          (Louisiana)
Court concludes Mrs. Mas is domiciled in Mississippi, because she had no intention to
remain in another domicile indefinitely.
       iii) Mas—The Suit as a Whole
             (1) If Mrs. Mas were deemed to be domiciled as France, under a legal fiction
                 uniting husband and wife, then she would not be a citizen of a state. Then
                 she would not be able to sue in Fed Court, because she is not a citizen of
                 France either.
       iv) The Complete Diversity Requirement
             (1) 1332(a)(3) covers the combined claims in the case. There must be
                 complete diversity. Every  must be from a different state from every
             (2) It is UnConst for Cong to grant SMJ to suit between two aliens.
       v) Diversity Jurisdiction and Rule 21
             (1) Courts have the option of dropping a party via Rule 21 in order to
                 establish complete diversity.
       vi) Sections 1332(a)(2) and 1332(a)(3)
             (1) If a suit involves an alien and citizens of different states, Fed Courts have
                 jurisdiction under 1332(a)(2).
             (2) Most lower courts have held that France & TX v. LA & France is covered
                 under 1332(a)(3).
       vii) The Amount-in-Controversy Requirement—Introduction
             (1) Each  must have claims against each  in excess of $75,000.
       viii) The Amount-in-Controversy Requirement—Aggregation Rules
             (1) But, can aggregate claims to reach this amount. A sues B for $60,000 on a
                 br/k and $30,000 on a completely unrelated tort claim. A v. B has diversity
       ix) Mas—The Legal Certainty Test
             (1) A ‟s claim for damages must appear “to a legal certainty” to be less than
                 $75,000 in order to deny Amt in Controversy requirement.
       x) Removal
             (1) Well-pleaded complaint rule does not apply to diversity jurisdiction.
             (2) 1441(b). Original jurisdiction allows for removal, except for diversity. For
                 diversity, can only be removed if none of the s are citizens of the
                 state where case was filed. Since Perry is LA citizen, cannot remove.
       xi) The Citizenship of Artificial Entities
             (1) Corporation is a citizen where it is incorporated and where its main base
                 of operations is.
             (2) Unincorporated Orgs are citizens of all the states that have individual
                 members (partners).
   h) Diversity Jurisdiction and Removal Based on Diversity Jurisdiction—Class
       Litigation [§§1332(a). 1332(d)(1), (d)(2), (d)(5)(B), 1453]
       i) 28 U.S.C § 1332(a)
       ii) A representative action brought by s named in a complaint on behalf of a
             class of citizens. Only the citizenship of the named ‟s count.
        iii) But, each class member must be able to satisfy the amount in controversy
             requirement. This makes it difficult to bring in class actions suits to Fed Ct on
             diversity grounds.
        iv) The Class Action Fairness Act [§§ 1332(d), 1453]
             (1) Alternative basis for diversity jurisdiction
             (2) One class member—not necessarily a named plaintiff—is diverse from
                 any .
             (3) The aggregate amount in controversy is > $5M.
             (4) Must have more than 100 class members to take advantage of aggregation
             (5) Section 1453(b): “A class action may be removed to a district court . . . in
                 accordance with section 1446 [1] (except that the 1-year limitation under
                 section 1446(b) shall not apply), [2] without regard to whether any
                 defendant is a citizen of the State in which the action is brought, [3] except
                 that such action may be removed by any defendant without the consent of
                 all defendants.”
6) Supplemental Jurisdiction—Introduction
        i)   In 1990, Congress passed a statute codifying supplemental jurisdiction, 28
             U.S.C. § 1367. United Mine Workers v. Gibbs and Owen Equipment &
             Erection Co. v. Kroger predate the supplemental jurisdiction statute, but
             remain critically important in understanding the statute. Exxon Mobil v.
             Allapattah was decided in 2005.
   b)   United Mineworkers v. Gibbs
        i) Facts/Procedural History/Issue
        ii) Constitutional Power
        iii) The Freestanding Claim
        iv) “A Common Nucleus of Operative Fact”
        v) The "Logical Relationship" Test—A Hypothetical
             (1) Suppose that plaintiff is a recipient of governmental assistance. Under
                 federal regulations, plaintiff is required to divulge certain confidential
                 information to a caseworker, but the caseworker may not delve into other
                 personal matters. Suppose further that under state law the caseworker is
                 not permitted to reveal confidential information to anyone else, but in fact
                 does reveal this information. Plaintiff then brings a federal complaint
                 alleging two claims: (1) a violation of federal privacy rights caused by the
                 data collection and (2) a violation of the state's law against publishing
                 private information. Is there supplemental jurisdiction over the state law
        vi) Statutory Basis For Supplemental Jurisdiction
        vii) Discretion
             (1) In addition to the question of "judicial power" to hear supplemental
                 claims, Gibbs makes clear that a court must ask whether it should exercise
                 its "discretion" to hear a supplemental claim. When we ask whether
                 there's a logical relationship between claims, what we‟re trying to figure
                 out is whether the connection between the claims is close enough to
                 warrant treating them as one constitutional case. The discretion inquiry
                 goes to something quite different: Assuming that the claims are
               sufficiently related to warrant treating the claims as part of one
               constitutional case, are there other considerations that would warrant not
               exercising jurisdiction over the state law claims.
c)   Owen Equipment and Erection Co. v. Kroger
     i) Facts/Procedural History
           (1) Initial suit is Kroger [Iowa) v. OPPD [Nebraska]. OPPD joins Owen
           (2) If OPPD is liable to Kroger, then Owen is liable in part or whole to OPPD.
               OPPD is  and 3d party . Own is 3d party .
           (3) Kroger then amends complaint to add Owen.
           (4) Turns out Owen is not citizen of Nebraska, but Iowa.
     ii) The Distinction Between Jurisdictionally-Proper and Procedurally-Proper
           (1) Everything that happens is procedurally proper. But procedure does not
               confer jurisdiction.
     iii) Kroger v. OPPD and OPPD v. Owen
     iv) Kroger v. Owen—Overview
           (1) State SOL may have run while she was in Fed Ct. If Owen establishes no
               jurisdiction, then Kroger will have no relief in any court. §1367(d) helps to
               solve this, but it wasn‟t around when this case occurred.
     v) Kroger v. Owen—Would There Have Been Jurisdiction Had Kroger
           Originally Sued Both OPPD and Owen?
           (1) If you allow jurisdiction there, b/c of diversity and same operative facts,
               then you essentially change complete diversity rule into a minimal
               diversity rule. [Sue one out-of-state  and then sue all in-state s that were
               in the claim as well.]
     vi) Kroger v. Owen—The Majority's Analysis
           (1) SCt says that when a  chooses to argue in Fed Ct,  takes the
               jurisdiction as he finds it. If supplemental jurisdiction doesn‟t extend as far
               as it should, tough shit. Should have sued in state and then forced  to
               remove to FedCt.
     vii) Kroger v. Owen—Did the Dismissal of OPPD Provide an Alternative Basis
           for the Court‟s Holding?
     viii) Kroger—The "Context" Rationale
           (1) The context in which the ‟s claim arises is critical to determine whether
               the court has SuppJ. [Mandatory counterclaims are permissible]
           (2) Any claim by a  against a non-diverse party is prohibited by §1332
     ix) Kroger v. OPPD
     x) OPPD v. Owen
     xi) Owen v. Kroger
     xii) Could Kroger Have Asserted A Compulsory Counterclaim Against Owen?
           (1) So maybe SuppJ is appropriate in the case of a counterclaim against a 3d
               party . Doesn‟t that make you feel ickey inside?
           (2) It‟s possible that you can read Kroger to authorize the mandatory
               counterclaim. But it doesn‟t have to be read that way.
     xiii) Claims By Plaintiffs—Two Readings of Kroger
          (1) One could argue that the "context" in which a π 's claim arises is critical to
              determining whether allowing supplemental jurisdiction would be
              inconsistent with § 1332. Alternatively, one could argue that any claim by
              a π against a nondiverse party would be inconsistent with § 1332.
d)   The Supplemental Jurisdiction Statute [28 U.S.C. § 1367]—Overview
     i) Subdivision (a)
          (1) §1367(a) allows district courts to extend SuppJ to the limits of the Const,
              provided the court has original jurisdiction over a civil action and SuppJ
              doesn‟t break into (b), (c), or (d).
     ii) Subdivision (b)
          (1) 28 U.S.C. 1367(b): In any civil action of which the district courts have
              original jurisdiction founded solely on section 1332 of this title, the district
              courts shall not have supplemental jurisdiction under subsection (a)
              (a) over claims by plaintiffs against persons made parties under Rule 14,
                  19, 20, or 24 of the Federal Rules of Civil Procedure, or
              (b) over claims by persons proposed to be joined as plaintiffs under Rule
                  19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of
                  such rules,
              (c) when exercising supplemental jurisdiction over such claims would be
                  inconsistent with the jurisdictional requirements of section 1332.
     iii) Section 1367(b) does not apply to claims asserted by anyone other than
          plaintiffs and persons proposed to be joined as plaintiffs or seeking to
          intervene as plaintiffs.
     iv) Subdivision (c) and (d)
          (1) 1367(c) codifies judicial discretion for denying SuppJ.
          (2) 1367(d) tolls the SOL if the cases is dismissed under (c). It would have
              done Kroger no good.
     v) Subdivision (b) and the Context Rationale
     vi) Gibson v. Chrysler, 261 F.3d 967 (9th Cir. 2001): “[T]he last phrase of
          subsection (b) means that there is supplemental jurisdiction over a claim
          otherwise excepted from supplemental jurisdiction by subsection (b) if §
          1332, as understood before the passage of § 1367, would have authorized
          jurisdiction over that claim.”
e)   The Meaning of “Civil Action” Under Section 1332—Introduction
     i) Overview
     ii) The Claim-Specific Approach
          (1) Are diversity and $ amount met wrt at least 1 claim? If so, then court may
              extend SuppJ to other claims in the lawsuit. §1367(b) is still in play, and it
              enforces the limits of §1332.
     iii) The Complaint-Specific Approach
          (1) If you don‟t have complete diversity or $ amount for every claim, then
              there‟s no original jurisdiction for the court. We don‟t even hit whether
              SuppJ would be appropriate yet.
     iv) The Single-Claim Approach—Gaps in Section 1367(b)
          (1) 28 U.S.C. 1367(b): In any civil action of which the district courts have
              original jurisdiction founded solely on section 1332 of this title, the district
              courts shall not have supplemental jurisdiction under subsection (a) [1]
              over claims by plaintiffs against persons made parties under Rule 14, 19,
              20, or 24 of the Federal Rules of Civil Procedure, or [2] over claims by
              persons proposed to be joined as plaintiffs under Rule 19 of such rules,
              or seeking to intervene as plaintiffs under Rule 24 of such rules, [3]
              when exercising supplemental jurisdiction over such claims would be
              inconsistent with the jurisdictional requirements of section 1332.
     v) Background—Rule 20
          (1) Because the paradigmatic lawsuit is between one plaintiff and one
              defendant, no special authorization is needed for those kinds of suits. By
              contrast, the federal rules of civil procedure, expressly allow multiple
              plaintiffs to sue—i.e. join—together in one lawsuit. When a single
              complaint includes claims by or against multiple plaintiffs or defendants,
              the multiple plaintiffs and multiple defendants are said to be joined under
              Rule 20.
     vi) The Rule 20 Gap
          (1) A (TX, $75,000) & B (OK, $50,000) v. C (OK).
              (a) Under Whole Complaint, either B must be dropped under Rule 21 or
                   the entire rule must be dismissed.
              (b) Under Single Claim, SuppJ extends to B unless 1367(b) says
                   otherwise. C wasn‟t joined under Rule 20, so there‟s SuppJ.
          (2) A(TX) v. C (OK, $75,000) & D (TX, $50,000)
              (a) Under Whole Complaint, no go.
              (b) Under Single Claim, no go b/c D joined under Rule 20, which is
                   barred by 1367(b).
     vii) The Rule 23 Gap
          (1) Named  (TX, $75,000) & Class (< $75,000) v.  (OK)
              (a) Under whole complaint approach, must drop class members who don‟t
                   have claims of over $75,000.
              (b) Single claim approach: Doesn‟t appear to be a problem extending the
f)   Allapattah v. Exxon Mobil
     i) Facts/Issue
          (1) 1 Class Action where unnamed members < $75k           [Rule 23 Gap]
          (2) 1 Tort case where 2nd  had claims < $75k             [Rule 20 Gap]
     ii) Court‟s opinion
          (1) Court adopts single claim approach to $$ req, but adopts whole complaint
              approach to diversity req. But it looks like Congress wanted to eliminate
              all single  gaps by passing 1367.
     iii) Contamination
          (1) Non-diversity contaminates original claim, but non-$$ does not.
          (2) 1332 is silent on how to apply its requirements when there are multiple 
              or multiple .
     iv) Do the Gaps in Section 1367(b) Extend Beyond Single-Defendant Cases?
          (1) If you have more than one , need to use Rule 20 to add them, so it
              violates the first clause of 1367(b).
        v) What Does the Court Mean By “Well Pleaded Complaint”?
             (1) Court has never used this is a diversity case; well-pleaded complaint is a
                 term of art for Fed Q issues. Woolley doesn‟t like it.
        vi) Supplemental Jurisdiction—Cases Removed from Federal Court
             (1) Must remove entire case to Fed Ct. Just assume this is true for our
                 purposes. Must comply with 1367 and 1332 before it can be removed.
             (2) Either has to be original jurisdiction or SuppJ in the State Ct action before
                 it can be removed. If no J, then Dist Ct should remand sua sponte.
             (3) 1367(b) bars claims against persons made parties under specified FRCP.
                 Because FRCP don‟t apply in State Ct, those exceptions don‟t appear to
                 affect any claims asserted while the case is in State Ct. But once the case
                 has been removed, 1367(b) exceptions come back into play.
        vii) Dismissing Claims
             (1) Court always has two options of dismissing a fucked up claim. (1) Kick
                 out the whole suit or (2) Dismiss the improper parties under Rule 21.
7) Territorial Jurisdiction
   a) Territorial Jurisdiction—Introduction
        i)   The authority to adjudicate the rights of a person. Fed Cts generally have the
             same jurisdiction as the states in which they sit.
        ii) Territorial Jurisdiction in the Federal Courts—Rule 4(k)(1)(A)
             (1) Does state law authorize the exercise of territorial jurisdiction and
             (2) Would the exercise of territorial jurisdiction follow the DP of the 14th?
             (3) If yes to both, then TerrJ
   b)   Pennoyer v. Neff
        i) Mitchell v. Neff
             (1) M sues N. M is in Oregon, N lives in California but has land in Oregon. M
                 posts a notice of summons in a regional newspaper. N never shows. Ct
                 says M wins by default. Ct seizes N‟s land and M buys it at auction. M
                 then sells land to P.
        ii) Neff v. Pennoyer
             (1) N is mad as all hell and sues P to get his land back. P has title only if M
                 had title. M only has title if he really did win by default. So the question
                 is, did the Oregon Ct have TerrJ over N?
        iii) Collateral Attack—The Basics [Art. IV, sec. 1; 28 U.S.C. § 1738]
             (1) Judgment in M v. N is being attacked in N v. P rather than on an appeal of
                 M v. N.
             (2) Collateral attacks generally not permitted. Parties should appeal, not bring
                 2nd action. However, if party did not appear in a case (did nothing to
                 participate in a case), then a collateral attack may be appropriate.
        iv) The Pennoyer Theory of Jurisdiction
             (1) The Court applies two purported principles of Nineteenth Century public
                 international law: first, every state possesses exclusive jurisdiction over
                 persons and property within the state; second a state cannot exercise
                 jurisdiction over a non-resident outside of the state.
        v) Types of Jurisdiction
     vi) In Personam Jurisdiction
           (1) There are two different ways to obtain in personam jurisdiction under the
               Pennoyer theory of jurisdiction: (a) service of process on an individual
               within state, and (b) consent, which includes what Pennoyer calls a
               voluntary appearance.
     vii) Quasi in Rem Jurisdiction
           (1) For quasi in rem to work, court must attach—seize—the property at the
               outset of the litigation. Must seek this in the comlaint.
           (2) If  appears to defend b/c ‟s property has been seized, then this is a
               “limited” appearance. I have no idea what implications this may have, just
               know that it doesn‟t qualify as in personam jurisdiction.
     viii) Pennoyer‟s Exceptions to Its Basic Theory of Jurisdiction
           (1) Divorce proceedings. A state may still grant a divorce to one of its citizens
               even if the other spouse is not w/in the state.
           (2) Corporations doing business in the state. State may require out-of-state
               corps to appoint an agent in the state for purposes to serving process.
               Gives state in personam jurisdiction. If corporation fails to comply, state
               may appoint a state official to be the agent for the purposes of the service.
     ix) The Achievement of Pennoyer
           (1) The real innovation of Pennoyer was to take those two general rules of
               jurisdiction and incorporate them into 14th Amd DP.
     x) From Pennoyer to International Shoe v. Washington
           (1) How do we deal w/ o/s motorists that go back to their homes? Some states
               made them sign consent docs when they crossed the border. Really? Wow.
               Damn. SCt solved this by reading in “implied” consent by o/s motorists
               entering the state.
           (2) The real fatal defect was its failure to deal w/ corporations. The SCt
               decided to solve this through consent and presence. Implied consent still
               has problems, questionable assumption. A corporation‟s agents might be
               present in a state, but the corporation itself is an intangible thing.
c)   International Shoe v. Washington
     i) Facts/Procedural History
     ii) Holding/Analysis
           (1) Minimum contacts . . . such that maintenance of the suit does not offend
               "traditional notions of fair play and substantial justice."
     iii) International Shoe—Impact on Pennoyer
     iv) Introduction
     v) Shaffer v. Heitner [433 U.S. 186 (1977)]
           (1) The mere ownership of property within a state is not enough to establish
               minimum contacts, unless that property is the subject of the lawsuit
     vi) Burnham v. Superior Court [495 U.S. 604 (1990)]
           (1) The intentional presence of an individual within a state was nevertheless
               sufficient contact to provide jurisdiction
     vii) Two Key Questions in A Minimum Contacts Analysis
           (1) Kulko v. Superior Court, 436 U.S. 84 (1978):[“T]he „minimum contacts‟
               test . . . is not susceptible of mechanical application; rather the facts of
              each case must be weighed to determine whether the requisite "affiliating
              circumstances" are present. We recognize that this determination is one in
              which few answers will be written in black and white. The greys are
              dominant and even among them the shades are innumerable.”
d)   General Jurisdiction—Introduction
     i) General Jurisdiction—Minimum Contacts Analysis
          (1) ‟s contacts with a state are so substantial that it satisfies whatever claims
              may come against , even if completely unrelated to activities.
          (2) The harder question is whether systematic and continuous contacts of a
              less substantial nature justify the exertion of territorial jurisdiction. Do all
              states have jurisdiction over All State Insurance Co.?
          (3) Courts have been setting very low bars for satisfying TerrJ. Serving
              process w/in the state is enough for TerrJ.
e)   Specific Jurisdiction—Introduction
     i) Created by Intl Shoe. As a practical matter, the connection between the claim
          and forum state could be relevant to determine whether corporate person was
          present or had implicitly consented to jurisdiction.
     ii) A court may exercise SpecJ when jurisdiction is available only because the
          requisite relationship exists between the , forum, and the cause of action.
     iii) Specific Jurisdiction—The “Substantive Relevance” Test
          (1) ‟s purposeful contacts be substantively relevant to the dispute.
          (2) Hypothetical No. 1: The plaintiff in automobile accident case sued the
              defendant for negligence in the state in which the automobile accident
              occurred. Does the state in which the accident occurred have territorial
              jurisdiction over the defendant?
              (a) Yes
              (b) ‟s purposeful actions that she was in state & caused wreck
          (3) Hypothetical No. 2: Plaintiff who resides in State A travels to a Resort in
              State B after being solicited in State A by the Resort. Once at the Resort,
              the plaintiff slips and fall. Does State A have territorial jurisdiction over
              the defendant?
              (a) No.
              (b) ‟s contacts do not meet substantive relevance test to grant state A
                  SpecJ. Solicitation to travel is not part of the negligence cause of
     iv) Specific Jurisdiction—The “But For” Test
          (1) But for ‟s contacts,  would not have a cause of action.
          (2) In the solicitation case, state A now has SpecJ over . But this test can be
              over-inclusive. At some point, you must assert that the “But for”
              relationship is too weak.
          (3) Do the purposeful contacts relate substantively enough to the ‟s claim to
              qualify for an assertion of SpecJ. “Nature an Quality” argument. Highly
     v) A Jurisdictional Sliding Scale?
          (1) Most courts hold that jurisdiction is either specific or general. But why
              shouldn‟t a court be able to weigh related and unrelated contacts that a 
              may have with a state?
          (2) William Richman: “As the quantity and quality of the defendant‟s forum
              contacts increase, a weaker connection between the plaintiff‟s claim and
              those contacts is permissible; as the quantity and quality of the defendant‟s
              forum contacts decrease, a stronger connection between the plaintiff‟s
              claim and those contacts is required. The concepts of general jurisdiction
              and specific jurisdiction are simply the two opposite ends of this sliding
f)   World-Wide Volkswagen v. Woodson
     i) Facts/Procedural History
          (1) Audi—Manufacturer
          (2) VWofAmerica—Ntl Distributor
          (3) WWVW—Regional Distributor
          (4) Seaway—Dealership
     ii) The Special Appearance
          (1) In some cases, doing anything more than filing an objection to personal
              jurisdiction and waiting will constitute a waiver of PersonalJ. In FedCts,
              can object to PersJ in answer.
          (2) Even if you do comply with 12(g) and (h) and file a TerrJ objection in the
              answer, must promptly seek a hearing under 12(i).
     iii) Purposeful Availment and Purposeful Contacts
          (1) Foreseeability alone has never been a sufficient benchmark for personal
          (2) ‟s conduct and connection to the forum state must create a reasonable
              anticipation of being haled into court there.
          (3) If  purposefully avails itself of the privilege of conducting activities
              within the forum state, it has clear notice that it is subject to suit there and
              act accordingly.
     iv) A Reasonable Anticipation Test?
          (1) Woolley likes purposeful availment over reasonable anticipation (as far as
              terminology goes)
     v) Stream of Commerce Theory
          (1) Court seems to use a stream of commerce theory that would justify a
              holding of TerrJ if  expected that its goods would be purchased and used
              in the forum state.
          (2) You always need purposeful contacts. Stream of commerce is just one way
              of doing it.
          (3) Hypothetical No. 1: Let‟s say the Robinsons‟ had sued Audi, Volkswagen
              of America, and World-Wide Volkswagen in a New York Supreme Court.
              Does the New York Court have territorial jurisdiction over Audi,
              Volkswagen of America, and World-Wide Volkswagen?
              (a) Yes. They all have purposeful contacts with NY.
          (4) Hypothetical No. 2: Let‟s say, Volkswagen of America, the national
              distributor, ships Audis to Southwest Volkswagen, located in Texas,
          which ships Audi‟s to an Oklahoma franchise. Is there jurisdiction over
          Audi and Volkswagen of America in Oklahoma if a car bought from the
          Oklahoma franchise is defective. Does an Oklahoma Court have
          territorial jurisdiction over Audi, Volkswagen of America, and World-
          Wide Volkswagen?
          (a) Yes
          (b) Audi knows that by shipping to TX, their cars will end up in OK.
      (5) The "stream of commerce" theory is relevant only if a defendant delivers
          goods in the through a chain of distribution.
vi) World-Wide Volkswagen—More Hypotheticals
vii) Jurisdiction over Seaway?
      (1) Hypothetical No. 3: The Robinsons buy the car from the dealer, Seaway,
          as before. Over the course of the next several years, while they still live in
          Massena, NY, they have the car regularly serviced at the dealership,
          precisely in accordance with the manufacturer's and dealer's
          recommendation. At 50,000 miles, after the car is out of any warranty
          period (so the manufacturer is off the hook for most problems that might
          arise), the Robinsons take the car into the dealer for the recommended
          servicing, which includes an overhaul of the brakes. The brake job is
          done, and the Robinsons set out the next day on their move to Arizona.
          As they are driving through Oklahoma, the brakes fail, and the Robinsons
          are severely injured in the resulting accident. They bring suit in
          Oklahoma against Seaway, alleging defective servicing of the brakes.
          Assume that the most probative evidence on the question of faulty brake
          repair are the brakes themselves, located in Oklahoma with the rest of the
          now-wrecked car. Assume that the extent of the Robinson's injuries can
          most easily be determined in Oklahoma, where the Robinsons were treated
          for their injuries, and where Mrs. Robinson is still hospitalized. Does the
          Oklahoma Court have territorial jurisdiction over Seaway?
          (a) No.
          (b) None of Seaway‟s actions were set-up to establish a connection with
      (2) Hypothetical No. 4: What if Mr. Robinson, in conversation at the
          dealership before repairs were being done, thanked the dealer for years of
          reliable service and mentioned that they were leaving next day for Arizona
          and would be traveling by way of Oklahoma? Does Oklahoma have
          territorial jurisdiction over Seaway?
          (a) No. Just knowledge, not purposeful availment. They‟re going to do the
              Brake job anyway.
viii) Does Oklahoma Have General Jurisdiction over Audi and Volkswagen of
      (1) Hypothetical No. 5: Return to the facts of World-Wide Volkswagen.
          There, neither Audi nor Volkswagen of America pursued objections to in
          personam jurisdiction. If they had preserved their objections, would the
          Oklahoma courts have had jurisdiction over Audi or Volkswagen of
            (a)     Stream of Commerce shouldn‟t be used to establish GJ.
            (b)     Similarity Test:  was ready to defend lawsuits against cars sold in
                    OK, and this one just happened to be sold in NY by the . Since it is
                    prepared to defend against similar suits, court should allow jurisdiction
               (c) To limit the overbroadness of the Similarity Test, focus on the contacts
                    to the forum state. If s sued in Montana, no connection to either
                    purchase or crash. So even though s may be prepared to defend in
                    Montana, no minimum contacts
               (d) You want to explain why or why not it would be appropriate for
                    the court to exercise TerrJ, not just that it can.
g)   Asahi Metal v. Superior Court—The Minimum Contacts Prong
     i) Facts/Procedural History
     ii) “Long-Arm” Statutes
           (1) Authorize TerrJ to the full extent of the Const, or
           (2) Authorize TerrJ in more narrow terms than the Const, or
           (3) Written to authorize TerrJ more narrowly than Const, but interpreted to the
               extent of the Const.
     iii) The Stream of Commerce Issue—An Introduction
     iv) Justice O'Connor's Plurality
           (1) The placement of a product into the stream of commerce, without more, is
               not an act of the defendant purposefully directed toward the forum State.
               Need sales reps, solicitation, regular customers, or something else to
               establish purposeful contacts. Under this view, component part
               manufacturers will get off the hook almost every time.
     v) Justice Brennan's Concurrence
           (1) If  is aware that the final product is marketed in the forum state, and
               benefits by its sale, then  has established purposeful contacts within that
     vi) O'Connor v. Brennan on the Meaning of World-Wide Volkswagen
           (1) The law is not established on this point. Lower courts can choose either.
     vii) Justice Stevens‟ Concurrence
           (1) Justice Stevens argues that the line between awareness and “purposeful
               availment” is not as clear as Justice O‟Connor assumes in her opinion.
           (2) He asserts that whether the placing of goods into the stream of commerce
               constitutes purposeful availment is affected by the volume, the value, and
               the hazardous nature of the component.
     viii) The Broader Relevance of Asahi
           (1) Principles of Asahi are not limited to Stream of Commerce cases. Imagine
               a shop in Texarkana that sells to citizens of both states.
           (2) Asahi involved contacts established through the stream of commerce. But
               it is important to keep in mind that the questions raised by Asahi are not
               limited to the stream of commerce cases: Is Justice O‟Connor right that
               serving a market is not enough to establish purposeful availment? Or is
               Justice Brennan right that awareness is sufficient when there are
               systematic and continuous contacts from which the Δ derives benefit?
     ix) Asahi—The Reasonableness Prong
           (1) Reasonableness prong in II-B is the holding for the case. Fairness prongs,
               as listed in WWVW, include:
               (a) forum state‟s interest in adjudicated the dispute,
               (b) ‟s interest in convenient and effective relief,
               (c) interstate judicial system‟s in the most efficient resolution, and
               (d) the shared interest of states in furthering social policies. Forcing Asahi
                    to travel to California and to submit its legal dispute with Cheng Shin
                    to the American judicial system is f‟ed up.
     x) The Holding
     xi) The Development and Application of the Reasonableness Factors
           (1) Court has rejected WWVW‟s holding that DP limitations are used to
               protect states‟ rights. Instead, used to protect individuals from sovereign
               states‟ power that do not have an appropriate relationship to the defendant.
           (2) Burger King reaffirms that jurisdiction is inappropriate if there are no
               minimum contacts. But it also establishes a reasonableness prong as a
               second test that can defeat jurisdiction, even if minimum contacts are met.
               Would the burden of defending in the forum is so disproportionate to other
               interests at stake, that ‟s DP rights are violated by defending in that
           (3)  has the burden of proof wrt minimum contacts. If  satisfies that, then
               burden shifts to  to demonstrate that jurisdiction would be unreasonable.
               Court says that  should very rarely prevail under reasonableness prong
     xii) The Role of the Reasonableness Factors in the Minimum Contacts Prong
           (1) Aren‟t expected to actually weigh the factors on the exam. But do
               understand what it does and how it is related to minimum contacts.
     xiii) General Jurisdiction and the Reasonableness Factors
           (1) Courts have applied reasonableness in cases where there is GeneralJ.
               Bwah? By definition, if GenJ is appropriate, then jurisdiction must be
               reasonable. Right? Guess not.
     xiv) The “Effects Test”
           (1) Causing an effect within a state may subject  to jurisdiction of that state,
               only if the  has purposefully availed herself of the privileges of the forum
               state, thus invoking the benefits and protections of its laws.
           (2) Exception: If  commits an intentional tort, and knows  will suffer
               injury in state A, then state A has jurisdiction over . This is not an
               exception that you need purposeful contacts, you just don‟t always need
h)   Phillips Petroleum Co. v. Shutts—Territorial Jurisdiction
     i) Facts/Procedural History
           (1)  claims lack of contacts/consent between Kansas and the s. We‟ve
               never before really questioned whether the  consented to litigation.
           (2) A court must have TerrJ over the class, not just the representative class
     ii) The Court's Reasoning—Failure to Opt Out Establishes Consent
             (1) Failure to act on ‟s part would never be interpreted as consent. Why do
                 we allow it for  class action members? Because their rights are protected
                 by the judge and the class action reps.
      iii)   Choice of Law
             (1) Is there a conflict between Kansas law and the law of other potentially
                 relevant states? If conflict, does Kansas have a significant contact or an
                 accumulation of contacts that make its application of law neither arbitrary
                 nor unfair. Contact here is not the same as it was in TerrJ.
             (2) Court does say that if there is a conflict, Kansas cannot apply its law to
                 claims unrelated to Kansas. The case doesn‟t tell us much more.
      iv)    Shutts
             (1) The Court sets out a two-step analysis:
                 (a) Is there an actual difference between the relevant laws that might be
                 (b) Does the forum state have a significant contact, or an aggregation of
                      contacts, that create(s) a state interest so that its application of law to
                      be neither arbitrary nor unfair?
             (2) The choice of law standard should not be confused with the minimum
                 contacts test. Although the tests clearly have a lot in common, the focus
                 of the two tests is different: The focus of the minimum contacts test is
                 "purposeful availment." The focus of the choice of law test is state
      v)     Allstate Insurance Co. v. Hague
             (1) Hague killed in a car crash. He‟s a WI resident, car insured in WI, driver
                 WI, other driver WI. He worked in MN, and after his death, his wife
                 moved to MN and married a MN man. Hague had 3 policies of $15,000
                 each. Under Wisconsin law, he could recover $15k. Under Minnesota law,
                 he could recover $45k. The plurality of SCt says his wife can sue using
                 MN law.
      vi)    Sun Oil Co. v. Wortman
             (1) SCt affirmed KStCt conclusion that Kansas law was the same as other
                 states. It is not enough that a state court misconstrues the law of another
                 state. Rather, the misconstruction must contradict the law of the other state
                 that is clearly established and has been brought to the court‟s attention.
             (2) The SCt held that a forum can apply its own longer statute of limitations
                 even if it can‟t apply its own substantive law.
             (3) If it‟s not from the State SCt, you can argue it‟s not clearly established.
8) The Erie Problem
   a) Erie Railroad Co. v. Tompkins—Background
      i) The RDA—Introduction
      ii) General Law
      iii) State (or "Local") Law
           (1) General law: Matters like commercial law. Not created by a sovereign, but
               a corpus of general principles held in common between states and nations.
               Cts determined what the general law required by using reason to
               determine the true legal principles that governed the area.
          (2) Because judges used reason to determine the general law, neither state nor
              fed cts were bound by decisions of the other.
          (3) What constituted the general common law? Those areas of particular
              multi-state concern.  not property/tort law. Industrial accidents different.
              A state legislature could displace general law by passing a statute
              inconsistent with it.
     iv) Federal Law
b)   Swift v. Tyson
     i) Swift v. Tyson interpreted the reference to “laws of the several states” in the
          Rules of Decision Act to refer to state or “local” law. Because “general” law
          was distinct from state or “local” law, Swift read the RDA to allow the federal
          courts to apply their own version of general law in suits brought in federal
c)   Erie Railroad Co. v. Tompkins
     i) Facts/Procedural History
     ii) The Holding
          (1) Trial and Circ courts rule for Tompkins. SCt brings up the Swift v. Tyson
              discussion of its own accord—advocates were only arguing about state
              and general law.
     iii) The Demise of General Law and the Implications of Its Demise
          (1) Erie essentially collapsed three categories of law into two: federal and
              state law. Matters that once fell within the general common law for the
              most part became matters of “state law” after Erie.
          (2) By collapsing most of the general law into state law, Erie significantly
              limited the authority of the Fed Cts by expanding the role of the State Cts.
              Now, Fed Cts are bound by the decisions of the highest State Court on
              matters of State law.
     iv) Federal Common Law v. Federal General Common Law
          (1) Do not confused General Federal CL with Federal CL. GFCL is dead
              and buried. FCL is alive an well. You can find a list of areas where FCL
              has been applied in notes 4&5 on p.544.
          (2) FCL is judge-made law that addresses matters of special Federal concern.
              Cases between states, when not governed by statute, are governed by FCL.
              FCL derives its authority from the US.
          (3) Typically, FCL is binding under the Supremacy Clause. For that matter, if
              it falls under 1331 (“arising under J”), FCL can be jurisdiction conferring
              as well. FCL of procedure does not apply to state procedure.
     v) The Court‟s Reasoning—Misinterpretation of the RDA
          (1) The interp of the Rules of Decision Act is wrong. This reason is bullshit.
     vi) The Court‟s Reasoning—Practical Considerations
          (1) There were practical problems administering GL. Lack of uniformity
              between State and Fed Cts. Forum shopping gets around EP. The Erie
              policy means uniformity of outcome btwn State and Fed Cts. Second, the
              forum shopping caused by Swift v. Tyson rendered impossible the "equal
              protection of laws."
     vii) The Court‟s Reasoning—The Constitution
           (1) GL is Unconst. Enumerated powers means you can‟t create tort law only
               applicable in Fed Cts.
     viii) A Critique of the Court's Constitutional Reasoning
           (1) Erie rests on the assumption that nothing in the Const allows the Fed Cts
               to create substantive law applicable only in Fed Ct. Is this right?
d)   Guaranty Trust Co. v. York
     i) Facts/Issue/Holding
           (1) Typically equitable actions are not governed by SOL, but by latches. In
               NY, it‟s SOL. So the question is whether Fed law and latches govern or
               NY law and SOL.
     ii) The Court's Analysis—Overview
     iii) The Court's Analysis—The "Outcome Determination" Test
           (1) Ct says you have to apply NY law in this case. It is crystal clear that Fed
               Cts can apply their own procedural law. But substance and procedure is
               not self-defining.
           (2) If State law must be applied, we call it substantive. If Fed law may be
               applied, it is procedural.  procedure and substance and just labels.
           (3) York gives us the outcome determination test. If it affects the outcome, it
               is substantive. If it does not, it is procedural.
           (4) Hypo
               (a) Think about the rules relating to the service of an answer. Fed law is
                    20 days. State law is 30 days. If a  files an answer on the 25th day, 
                    will be in default if the federal rule governs. So what happens?
               (b) SCt did not intend State law to govern in that hypo. But York doesn‟t
                    help us draw the line. “If the SOL would bar recovery in a State court,
                    a federal court ought not to afford recovery.”
               (c) But why should a Fed Ct apply State SOL when State A can apply its
                    own SOL when adjudicating a case under State B law? Why should we
                    give the Fed government less power over its courts than we give to
                    states over their courts?
     iv) The Source of the Erie Policy—The Constitution?
           (1) If you trace the Erie policy back to the Erie decision, it doesn‟t look like
               it‟s Constitutionally required. It‟s practical considerations. It‟s a policy of
e)   Byrd v. Blue Ridge Rural Electric Cooperative
     i) Facts/Issue/Holding
           (1) Was Byrd an employee of the company as that term is defined in the
               worker‟s comp statute? If not employee, then TORT TORT TORT.
           (2) Who gets to decide that? Judge or jury? If South Carolina law, the judge.
               If Federal law, then jury.
     ii) Is the Choice of Decision-Maker Outcome Determinative?
           (1) The court suggests that the choice is not outcome determinative. When
               you talk about who the decision maker should be, things get vague.
     iii) The Court‟s Analysis—Overview
           (1) The Court's formulation in Part II of Byrd requires a two-step analysis.
               First, is the choice between federal and state law outcome determinative?
              If the answer is no, the broader policies of Erie do not require that the state
              rule be applied.
          (2) York said that if the choice is outcome determinative, state law applies, but
              Byrd recognizes that there may be other federal interests that outweigh the
              Erie policy against differences in outcome. So even if we determine that
              the choice between a federal rule and a state rule is outcome
              determinative, there is a second step.
          (3) The federal interest in uniformity of outcome must be weighed against the
              federal interest in applying the federal rule at stake.
     iv) The Byrd Balancing Test
          (1) Erie policy is not absolute. There may be other federal interests that
              outweigh the Erie policy.
          (2) Outcome determinative.
     v) The Byrd Balancing Test—A Critique
          (1) The problem with the balancing test is that we don‟t know the weight to
              give to the federal interests. Guidance for this particular case, but no idea
              about future cases.
f)   Hanna v. Plumer—Introduction
     i) Facts/Holding
          (1) Lawyer leaves summons with ‟s wife in his residence. This followed the
              Federal rule, but the Massachusetts rule required in-hand service.
     ii) The Court‟s Analysis of the Rule 4(d)(1) Issue
          (1) SCt held that Rule 4(d)(1) is the applicable rule in this case, because there
              was a direct collision between Rule and State law.
     iii) The Importance of Hanna
          (1) It makes clear the Constitutional breadth of federal power over federal
              procedure in federal courts. The outcome determination test is not Const
          (2) Hanna seeks to solve the problems of the outcome determination test of
          (3) The applicability of the FRCP, in diversity cases, does not depend on the
              outcome determination test
     iv) Hanna—The Constitution and Federal Power over Procedure
          (1) Authority for Rule 4(d)(1) can be found in the Const under necessary and
              proper. Congress is allowed to make rules that govern its courts, and
              those rules are applicable for matter that don‟t neatly fall as either
              substantive or procedural matters.
          (2) Warren holds: “If you can make a reasonable argument that a matter is
              procedural, then it is Constitutional.”
          (3) Outcome determination is irrelevant when Congress has spoken.
     v) Justice Harlan‟s Concurrence
          (1) Harlan doesn‟t think this is deferential enough to state interests. The
              Constitution leaves the bulk of everyday activities to the state. Things like
              contract, tort, criminal, property law all govern primary human activities.
              Things like FCRP 12(a) do not.
      (2) Therefore, FRCP 12(a) is all right and should be enforced, but state law
          related to primary activities trumps anything, including conflicting federal
      (3) A decision to file suit is related to primary activity. Once you file suit, the
          conduct of the litigation is not primary activity. But the rules and laws that
          influence whether or not you will file are primary.
vi) The Applicability of the Erie Analysis
      (1) It is idle to use the Erie analysis if Congress has passed a statute under any
          other power. That statute is binding. And Congress cannot create laws,
          other than rules of procedure, that may only be applied in Fed Cts.
          Therefore, this problem really is quite small.
      (2) There are 4 Sources of Fed Procedural law
          (a) 7th Amendment
          (b) Fed Statutes
          (c) Fed Rules
          (d) Fed Common Law of Procedure
      (3) Neither the Const nor Fed Statutes are subject to Erie analysis (the
          outcome determination or the Byrd balancing test). And Hanna makes
          clear that these tests don‟t apply to RFCP, because the Rules Enabling Act
          is constitutional.
vii) The “Direct Collision” Test—An Introduction
      (1) Is there a direct collision between federal text and state law? If yes, Fed
          wins in almost all cases. But when there is no direct collision, then Erie
          analysis applies.
viii) Hanna—The Erie Analysis
      (1) York and Byrd together set out the structure of the Erie analysis that
          applies when you‟re dealing with Fed common law rules of Civ Pro. The
          key question in analyzing an Erie problem is:
          (a) Is there a direct collision between the texts? If yes, no Eire analysis. If
               no, then apply Erie analysis.
          (b) The content of state law really doesn‟t matter. The only important
               question is whether federal law covers the point.
ix) The Modified Outcome Determination Test
      (1) Hanna narrows the outcome determination test by stating that the test
          must be read in light of the twin aims of Erie, discouragement of forum
          shopping and avoidance of inequitable administration of the laws. In other
          words, if the choice between federal and state law is outcome
          determinative AND would lead to
          (a) forum shopping OR
          (b) inequitable administration of laws,
      (2) the choice is "outcome determinative" in the Hanna sense.
x) The “Forum Shopping” Prong
      (1) Under the forum shopping analysis, a difference in outcome is irrelevant
          unless it would have affected the choice of forum at the outset of the
xi) The “Inequitable Administration of Laws” Prong
          (1) Whether failure to apply the same law in federal and state court would
              lead to inequitable administration of the laws depends on how
              “substantial” the differences between federal and state law are.
          (2) Hanna does not give us much guidance as to what differences are
              "sufficiently substantial" to give rise to a concern about inequitable
              administration of the laws.
          (3) Woolley thinks we can assume that more than a difference in outcome is
              required. Thinks it is a residual catch-all that includes all those cases that
              would make choice-of-law issues troubling.
g)   Hanna and Byrd
     i) Hypothetical
          (1) State law requires all medical malpractice cases to go to nonbinding
              arbitration before coming to trial. If  loses the nonbinding arbitration,
              she must post bond to cover doctor's attorney's fees. May the federal
              courts apply a contrary judicial practice or must they apply state law?
              (a) Harlan would say no, doesn‟t impact winning and losing.
              (b) But, it is outcome determinative in the York sense, because it can
                  substantially change the ultimate outcome of the trial. And it looks like
                  it would cause forum shopping at the outset of litigation, because
                  plaintiffs want to avoid cost.
              (c) It‟s hard to see a federal interest that would balance against the forum
                  shopping interest. So Fed Court should apply the state law.
h)   The Rules Enabling Act [28 U.S.C. § 2072]—Overview
     i) The REA Analysis—Three Key Points
          (1) Three points with respect to the REA Analysis cannot be emphasized too
              (a) First, the REA Analysis is distinct from the Erie Analysis.
              (b) Second, the Supreme Court has NEVER found that a rule transgressed
                  the Rules Enabling Act.
              (c) Third, the Federal Rules enjoy a presumption of validity.
     ii) Professor John Hart Ely‟s Take—An Introduction
          (1) The critical question under Professor Ely's approach is whether the state
              right was "granted for one or more non-procedural reasons. Note that the
              primary focus of Professor Ely's analysis is on the PURPOSE of state law.
              (a) Under this analysis, a FRCP creating a statute of limitation in diversity
                  cases would have to give way to state law under 2072(b). SOL‟s are
                  created to give defendants peace of mind after the limit is past.
     iii) Professor Ely‟s Take—A Hypothetical
          (1) State law requires that any action under the state's antidiscrimination law
              be pleaded with specificity. The state's rationale is that a rule requiring
              specificity is necessary to give peace of mind to those who might
              otherwise be falsely accused of discrimination. Are the federal courts
              required to apply the state rule in this case?
              (a) It seems like Rule 8 would abridge the defendant‟s substantive right to
                  peace of mind under state law.
              (b)  Rules that are facially valid may be invalid as applied.
iv) Professor Ely‟s Take—A Critique
      (1) Woolley doesn‟t like Ely b/c it focuses on the purposes of State law and
          requires the Fed to give way when the State has a substantive purpose.
      (2) But this goes against the uniformity in all district courts that the REA was
          designed to create. Why should this be compromised by whatever a state
          feels like doing?
      (3) A better way of viewing the REA is that it is intended to corner off
          particularly sensitive areas from rules (limitations, remedies, burdens,
          juries, etc).
v) The REA Analysis—The Supreme Court
      (1) The Court basically has told us
          (a) that a rule is valid under Section 2072(a) only if it “really regulates
               procedure,” Hanna, and
          (b) that"[r]ules which incidentally affect litigants' substantive rights do not
               violate [Section 2072(b)] if reasonably necessary to maintain the
               integrity of that system of rules,"
      (2) Because the Court has been content to apply these standards with little
          analysis, it is impossible to tell whether the Court agrees with Professor
          Ely or with critiques of Professor Ely‟s “state-centered” approach.
      (3) Incidental effects of applying the FRCP on a party‟s substantive rights is
          allowed if it is outweighed by the need to create uniformity by applying
          the FRCP.
vi) The REA Analysis—Lower Courts
      (1) Some lower courts have concluded that a particular rule of civil procedure
          could not be applied to a particular case. These federal courts typically
          use something like the Ely approach in trying to determine whether a
          federal rule would modify, abridge or enlarge state substantive rights, but
          they take the following into account: While Professor Ely would have a
          federal rule give way if the rule "affects state substantive rights," Hanna
          and Burlington are more protective of the federal rules.
vii) Construing Federal Rules—An Advanced Look at the “Direct Collision”
      (1) It‟s all about the interpretation of the federal text. The key question is
          whether the federal text covers the point.
viii) Walker v. Armco Steel Co.
      (1) SCt stated that the FRCP should be given their plain meaning. But the
          court ignored its own advice in that case, and construed the FRCP
          narrowly so as not to conflict with state law. Courts will do this to avoid
          REA questions.
ix) Semtek v. Lockheed Martin Co.
      (1) FRCP should be read narrowly to avoid conflict between FR‟s and
          outcome determinative state law.
      (2) Reading FRCP narrowly gives greater weight to a state‟s substantive
          policies and less weight to uniformity across the federal courts.
      (3) Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 37 (1988) (Scalia,
          J., dissenting): “We should assume, in other words, when it is fair to do so,
                 that Congress is just as concerned as we have been to avoid significant
                 differences between state and federal courts in adjudicating claims. Thus,
                 in deciding whether a federal procedural statute or Rule of Procedure
                 encompasses a particular issue, a broad reading that would create
                 significant disuniformity between state and federal courts should be
                 avoided if the text permits.”
             (4) Scalia adopted a bizarre meaning for FRCP 4(d)(1). There is no really
                 good reason for this. Woolley thinks that Semtek suggests that Erie is used
                 in interpreting FRCP. How frequently it will use this is unknown.
             (5) The Court is using Erie analysis to ask whether there is a Direct Collision
                 or not. Therefore, when it says No Direct Collision, the court already has
                 its answer when it has to apply the Erie analysis in that situation.
9) Venue—Section 1391
   a) Transfer of Venue—Section 1404(a)
        i)  28 USC 1404(a) allows for transfer of venue from the 1st to a 2nd where the
            civil action might have been brought. Must be for the convenience of the
            parties and witnesses, and in the interest of justice.
        ii) “Might have been brought” means that the transferee district would be a
            proper venue under the 1391, one of the more specialized venue statutes, or
            because consent was obtained before suit is filed (forum selection clause in
            some k).
   b)   Hoffman v. Blaski
            (1) Under § 1404(a) transfer of venue is proper only to a district where suit
                “might have been brought.” In Hoffman v. Blaski, the Supreme Court held
                that this means that a suit may be transferred only if venue would be
                proper in the transferee district under the general venue statute, § 1391 (or
                one of the more specialized venue statutes), or because consent was
                obtained before suit was brought.
            (2) The fact that the Δ is or Δ's are willing to waive objections once suit has
                been brought is irrelevant to whether the transferee district is a district
                where suit “might have been brought.”
            (3) In addition to requiring that venue be proper in the transferee court,
                Hoffman v. Blaski typically has also been construed to require that
                personal jurisdiction be proper in the transferee court.
            (4) Hoffman simply construes specific language in Section 1404(a) requiring
                that the transfer be to a district where “suit might have been brought.”
                Hoffman has nothing to do with whether the federal court in which suit
                was originally brought can hear the action.
        ii) Transfer v. Forum Non Conveniens
            (1) Transfer under §1404(a) is available only between federal courts. If suit is
                brought in a state court and the state court concludes that the state is a
                seriously inconvenient forum, the only available remedy is a dismissal
                under state law on grounds of forum non conveniens. Federal courts, by
                contrast, dismiss on grounds of forum non conveniens only when they
                conclude that the United States would be a seriously inconvenient forum.
              If the question is whether the suit should be heard in a federal court in
              another district, the case must be transferred under §1404(a), not
              dismissed on grounds of forum non conveniens.
c)   Choice of Law in Federal Court
     i) Introduction
          (1) A fed court will apply the choice-of-law rules of the state in which they
              sit. This gives vertical uniformity (All Fed Courts choose their state‟s
              law), and horizontal chaos (because states‟ have their own rules).
          (2) Remember, Congress is not bound by the Erie policy, but the court will
              not find that Congress goes against it unless it is explicit. The court
              therefore reads 28 USC 1404(a) as going along with Erie.
          (3) A court may transfer a case to an appropriate forum instead of 12(b)(2) or
              12(b)(3)‟ing it.
     ii) The Basic Rule—Klaxon v. Stentor Electric Mfg. Co.
          (1) Klaxon held that under Erie a federal court must apply the choice-of-law
              rules of the state in which it sits.
          (2) If you mechanically apply this, the transferee court will apply the law of
              the state in which it sits.
     iii) Choice of Law on Transfer—Van Dusen v. Barrack
          (1) In Van Dusen, however, the SCt should not mechanically apply to
              transfers. If the Fed Ct, in which the suit was originally brought, had TerrJ
              and appropriate venue over the , then the transferee court should apply
              the choice-of-law of the transferor court.
     iv) Choice of Law on Transfer—When Van Dusen Does Not Apply
          (1) If the original Fed Ct lacks TerrJ or venue, then the suit must be dismissed
              or transferred. Van Dusen does not apply in these cases, because there is
              no reason to apply the law of the transferor state, since the case could not
              have been tried there anyway.
d)   Transfer and Choice of Law—Ferens v. John Deere Co.
     i) The Issue
          (1) Does the Van Dusen rule apply when  makes the transfer motion? Yes.
     ii) Facts/Procedural History
          (1) If a state has TerrJ over a corporate defendant, then Fed Cts have proper
              venue over that defendant. If a state has multiple districts, then check to
              see if each district would have TerrJ over the  if the district were a state.
     iii) Holding/Analysis
          (1) “Where suit might have been brought” = Venue or consent to venue before
              suit. Also TerrJ or consent to TerrJ before suit.
          (2) 1391(a)(3) and (b)(3) are fallback provisions.
          (3) Sun Oil v. Wortman is the case that holds states may apply their own SOL,
              regardless of which state‟s substantive law applies.
          (4) Court rules for plaintiff, concentrating on the vertical uniformity of MS
              courts. Dissent concentrates on vertical uniformity of PA courts.
e)   Piper Aircraft Co. v. Reyno
     i) Facts/Procedural History
            (1)  originally sues Piper and Hartzell in SoCal. Removed to Fed Ct, then
                transferred to M.D.Pa.
            (2) Sometimes when you have a transfer under 1404(a), TerrJ will not be
                proper, but you can transfer to get the right TerrJ.
       ii) Which law applies?
            (1) Piper had TerrJ and venue in CA, so CA choice-of-law rules apply, and
                PA law controls.
            (2) Hartzell had venue in CA, but not TerrJ. So when transferred, no choice-
                of-law came along, and PA choice-of-law apply. This ends up with
                Scottish law controlling.
       iii) Piper—Forum Non Conveniens Law
            (1) Piper and Hartzell get the case dismissed by forum non convenience. 3rd
                Circuit reversed. Supreme Ct grants cert.
            (2) Piper is the leading case applying forum non convenience in Fed Ct.
                Without another appropriate forum, a court cannot dismiss for forum non
            (3) The fact that the alternative forum would apply different or less favorable
                law does not change the fact that an alternative forum exists.
            (4) The court must consider the factors listed in FN 6 on page 437.
            (5) There is a strong presumption in favor of the ‟s choice of forum, but
                applies with less force when the  is not an American citizen or resident.
            (6) How do fed cts apply the forum non convenience law? They apply the
                federal common law rules on it rather than the state(in which they sit)
            (7) But federal forum non convenience law could be viewed as a rule
                regarding the foreign relations of the US. This is because forum is only
                non convenient in the US if the appropriate forum is outside the US.
            (8) In that case, shouldn‟t it be binding in both fed and state cts, since only the
                Fed Government can direct foreign relations? Woolley thinks its
                interesting, but does not endorse it.
10)    Preclusion
  a)   The Law of Preclusion—An Introduction
       i) Intersystem Preclusion
           (1) Note how different the rule of § 1738 is from Erie. Erie and Klaxon
               require a federal court to apply the law of the state in which it sits. § 1738
               generally is understood to require a court to apply the claim and issue
               preclusion law of the state which rendered the judgment.
           (2) The Supreme Court recently explained in Semtek International
               Incorporated v. Lockheed Martin Corp., 121 S.Ct. 1021, 1027 (2001), that
               federal common law requires state courts to give a federal judgment the
               same force and effect that a federal court would give to the judgment.
       ii) The Preclusive Effect of Judgments Rendered by Federal Courts
           (1) State courts must give a federal judgment the same force and effect that a
               federal court would. But what force and effect would a federal court give
               to a federal judgment? The Supreme Court indicated in Semtek that an
               Erie analysis (or something like that) may be necessary to answer that
                  question. Many have interpreted Semtek to mean that in a diversity case,
                  federal courts ordinarily will borrow the preclusion rules of the state in
                  which the federal court rendering the judgment sits.
    b)   Intrasystem Preclusion: The principles applied by a judicial system to determine
         the preclusive effect of its own judgments.*
         i) Preclusion in Federal Courts: Many have interpreted Semtek to mean that in a
              diversity case, federal courts ordinarily will borrow the preclusion rules of the
              state in which the federal court rendering judgment sits.
         ii) Put more precisely, Semtek can be read to require reference to the preclusion
              rules of the state in which the federal court rendering a diversity judgment sits
              when failure to do so would "produce the sort of 'forum shopping and
              'inequitable administration of the laws' that Erie seeks to avoid" unless
              applying state law in those circumstances would be “incompatible with federal
         iii) Preclusion in State Courts: In determining the preclusive effect of its own
              judgments, a state court will apply its own preclusion rules.
    c)   Intersystem Preclusion: The principles applied by a judicial system to determine
         the preclusive effect of a different judicial system's judgments.
         i) The Preclusive Effect of A State Court Judgment: § 1738 requires a federal or
              state court to apply the preclusion law of the rendering state court.
              (1) F1 (Texas Fed Ct) dismisses on SOL. Can F2 (Mississippi Fed/State Ct)
                  hear the case? F2 must look to Texas State law to determine the effect of
                  F1‟s judgment.
         ii) The Preclusive Effect of A Federal Court Judgment: Federal common law
              requires a state court to apply federal preclusion law to federal judgments.
              Federal preclusion law may require that the preclusion rules of the state in
              which the rendering federal court sits be borrowed. (See I.A.)
    d)   Claim Preclusion
         i) A “Final” Judgment “on the Merits”
              (1) Claim Preclusive effect requires a judgment to be final and on the merits.
                  A judgment is final on entry of judgment unless and until it is overturned
                  on appeal. Judgment after trial, or as a matter of law, is usually on the
                  merits. SOL may or may not be. Dismissal for lack of jurisdiction or
                  venue is not on the merits. But demurrer or 12(b)(6) equivalents may or
                  may not be on the merits.
              (2) Claim preclusion affects not only those things that were actually litigated,
                  but those actions that should have been raised as part of the same lawsuit.
         ii) The Definition of a "Claim"—The Second Restatement Approach
              (1) In a Res Judicata or Preclusion context, claim means (See page 1172 of
                  casebook). It‟s sort of like how it is for SuppJ.
              (2) Both claim preclusion and SuppJ ask what an appropriate litigation
                  package is, but they address it from different perspectives. SuppJ asks

 For discussion of differences in res judicata law, see Howard M. Erichson, Interjurisdictional Preclusion, 96 Mich.
L. Rev. 945, 965-983 (1998).
              what it should extend to for convenience. Preclusion asks what must be
              tried together or not tried at all.
     iii) The Definition of a “Claim”—Separate "Claims" Against Each Defendant
          (1) In claim preclusion, a  has a separate claim against each .
     iv) A Hypothetical
          (1) Michael Parker's car is towed in the Village of Tranquility. Assume that
              all the relevant courts apply the Second Restatement of Judgments. Mr.
              Parker files suit in state court for replevin: an action to recover goods
              from one who has wrongfully taken them. He loses that suit. He then files
              a federal suit alleging a § 1983 claim: violation of his procedural due
              process rights in the towing of his car.
              (a) Is this precluded? Yep. Arose out of the same car being towed. It
                  actually doesn‟t matter whether he won or lost the first suit. All that
                  matters is that he got a final judgment on the merits.
              (b) What if Suit 1 was in a State Municipal Ct that didn‟t have Subject
                  MatterJ over federal questions? Doesn‟t matter.  could have brought
                  his claims in a state court of general jurisdiction. He could only sue in
                  Fed Ct if he was unable to bring up §1983 when he sued for replevin.
              (c) What if there is a statute that allows the replevin claim to go through
                  w/in 5 days? It‟s only there to determine who has possession, can‟t
                  raise other issues under it.
              (d) §26(1)(d)—“It is the sense of the scheme that  should be permitted to
                  split his claim.” Seems like he should be allowed to split his claim.
e)   Issue Preclusion—The Basics
     i) Introduction
          (1) There are three basic requirements for issue preclusion. The issue must
              have been
              (a) actually litigated,
              (b) determined, and
              (c) essential to the judgment.
     ii) Was the Issue "Determined"?
     iii) Was the Determination "Essential" to the Judgment?
          (1) Under the Restatement approach, an alternative determination is deemed
              "essential to the judgment" if it was reviewed and affirmed on appeal.
     iv) Was the Issue “Actually Litigated”?
          (1) The Second Restatement explains that “an issue is actually litigated when
              an issue is properly raised by the pleadings or otherwise and is submitted
              for determination and is determined.”
          (2) If a judge decides an issue on the basis of a Rule 12 motion that issue has
              been actually litigated.
          (3) If on the other hand, a Δ admits an allegation in a complaint or fails to
              raise an affirmative defense those issues have not been litigated.
     v) Is the "Same Issue" Involved?
          (1) Issue preclusion only applies when the same issue has been litigated.
              When the issue in the first suit is completely identical to the issue in the
              second suit. When it‟s not, check to see if it makes sense for fairness and
     vi) A Second Restatement Hypothetical
          (1) Daniel Aguilar sues the University of Pacifica Chapter of a fraternity for
              trespass on some beachfront property where the fraternity held a party.
              Assume three relevant issues: (a) π's lawful possession, (b) Δ's wrongful
              entry, and (c) damage. After losing the suit, π files another suit based on a
              second trespass.
          (2) If the 2nd trespass occurred before the 1st suit, then both trespasses count
              as part of the same transaction.
          (3) Assume claim preclusion doesn‟t apply. I lost the first suit on a general
              verdict. I can still sue, because I could have lost on the bottom two.
          (4) The only way I can lose is if the jury, on a special verdict, said I won the
              last two and lost on the first one. Or if my losing on the special verdict on
              multiple elements was affirmed on appeal.
          (5) What if trial court found there was lawful possession, and affirmed on
              appeal, but loses on other grounds? Can  use this as collateral estoppel?
              No. His lawful possession is not essential to the judgment.
f)   Nonmutual Collateral Estoppel—The Doctrine
     i) Introduction
          (1) 1 sues  on product liability. Issue of defect was actually litigated,
              determined, and essential to the judgment. Can 2 is his separate suit rely
              on the judgment in the first suit for collateral estoppel against  in his
          (2) The trend in preclusion law is to say that 2 can do so. In that case, it is
              offensive non-mutual collateral estoppel.
     ii) Due Process
          (1) Due process requires that a party be given an opportunity to be heard if
              she is to be bound by the litigation. So nonmutual collateral estoppel can
              apply only against a party to previous litigation.
     iii) Types of Nonmutual Collateral Estoppel
g)   Parklane Hosiery Co. v. Shore
     i) Defensive Collateral Estoppel
     ii) The Easy Joinder Limitation on Offensive Collateral Estoppel—A Caveat
          (1) “The general rule should be that where the  could have easily joined in
              the first action, or for the reasons above or for other reasons, collateral
              estoppel will be unfair to the , and the trial court should not allow it.”
          (2) The same arguments can be made against defensive collateral estoppel.
          (3) A party who did not participate in any way in a prior suit for sound tactical
              reasons, but who was not simply sitting on the sidelines hoping to
              capitalize on a favorable result, should not be denied the benefits of
              collateral estoppel.
     iii) Nonmutual Collateral Estoppel—Systemic Issues
          (1) What if you had the Train Wreck Hypo, but instead of 26 cases in, the 
              wins on suit 1? How do we know suit 1 is an aberration? Why not try each
               suit a dozen times? Because it kills judicial efficiency. But does that
               justify binding a defendant in a hundred future trials because of a fuckup
               in the first trial?
       iv) Parklane—The Seventh Amendment Issue
           (1) Stewart writes the majority opinion, who dissented in Beacon Theaters.
               Got to use Black‟s argument in order to kill the jury right. Rehnquist‟s
               argument is not consistent with how 7th Amendment law has developed
               over time. See Summary Judgment, renewed motion for judgment as a
               matter of law.
           (2) But the presence of a jury should not be seen as a “neutral” factor in the
               analysis. But if this is so critical, it kills not only non-mutual collateral
               estoppel, but all collateral estoppel.
11)    Joinder
  a)   Joinder of Claims and Parties[Rules 13(a), 13(b), 13(g), 13(h), 14, and 18(a)]
       i) Two Key Questions
            (1) There are two principal questions that must be asked about any claim in
                federal court:
                (a) Is it jurisdictionally proper? I.e., is there a basis for subject matter
                    jurisdiction over the claim?
                (b) Is it procedurally proper? I.e., do the federal rules of civil procedure
                    authorize the claim?
       ii) Two Basic Principles
            (1) First, Rules 13 and 14 state only threshold requirements. If a proper
                cross-claim or third-party claim is asserted any other claim may be joined
                under Rule 18.
            (2) Second, parties who are not originally "opposing parties" for purposes of
                the compulsory counterclaim rule (e.g., co-defendants) may become
                opposing parties later (if a co-defendant asserts a cross-claim against
                another defendant).
            (3) Once one  brings a cross-claim against another , they are opposing
                parties and the rules of 13(a) govern.
       iii) Rule 13(h)
            (1) Rule 13(h) is to cross-claims and counter-claims what Rules 19 and 20 are
                to regular claims.
       iv) Rule 14(a)
            (1) Impleading third parties is by Rule 14(a)(1). Striking the impleading or
                severing that part of the trial are under 14(a)(4).
       v) Venue—Counterclaims, Crossclaims, and Rule 14 Claims
            (1) Courts typically have concluded that venue requirements do not apply to
                counterclaims, crossclaims or Rule 14 claims, with one exception: Venue
                must be satisfied with respect to additional parties joined to a permissive
                counterclaim under Rule 13(h).)
       vi) Rule 4(k)(1)(B
            (1) Court has TerrJ who is a party joined under Rule 14 or 19 and is served
                w/in a judicial district of the US w/in 100 miles from the courthouse. This
               is an additional basis along with 4(k)(1)(a) for parties included under 14
               and 19.
           (2) 4(k)(1)(b),(c), and 4(k)(2) use 5th amendment DP. This does not have a
               reasonableness analysis to its minimum contacts analysis.
     vii) Rule 20
           (1) A sues B and C for libel. B called A a thief in May 1, and C did so on July
               1. This counts as a series of transaction for Rule 20(a)(2)(A), and they
               work on the same set of facts (whether A is a thief).
     viii) Rule 21
           (1) Allows court to add or drop a party, or sever from the first trial, as justice
               requires. Cannot dismiss for misjoinder.
b)   Rule 19
     i) Overview
           (1) There is a two-step inquiry under Rule 19.
               (a) Must a party be joined if feasible?—such a party is called a "necessary
               (b) Should the suit be dismissed if joinder is infeasible?—if so, such a
                    party is called an "indispensable party."
     ii) A Common Mistake
           (1) People assume that Rule 19 applies more often than it actually does. The
               Rule does not treat J&S tortfeasors as necessary parties.
           (2) In the Curry train hypo, all of the plaintiffs can bring a separate action
               without joining anyone else as a .
     iii) Subdivision (a)(1)
           (1) 19(a)(1)(A)—When will the judge not be able to grant judgment if a
               necessary party isn‟t there? Very few cases. Think of joint-owners of a
               piece of land. Does not apply to joint tortfeasors.
           (2) 19(a)(1)(B)(i)—All this requires is that a non-party would be practically
               impaired or impeded in the party‟s right to protect the interest. Must be
           (3) 19(a)(1)(B)(ii)—If the party that does show up substantially risks double
               or multiple damages, and the non-party would solves this, must be joined.
               A and B claim ownership of the same painting. A sues C to covey painting
               to A. If B is not made a party, then he cannot be bound by the judgment. B
               sues C and wins. So did A. What is C to do? Why we have this provision.
     iv) The Feasibility of Joinder
           (1)  is required to join a necessary party if it is feasible. Feasible = Court has
               TerrJ, SubMJ, and joinder is proper. It is left to the joined party to object
               to venue.  much for likely to join a  rather then a .
     v) When Joinder is Infeasible
           (1) If it is infeasible, court must decide whether suit is dismissed? See 19(b).
               Just because necessary party is not joined does not mean that suit must be
               dismissed, Suit should only be dismissed if it hits these facts: 19(b)(1-4).
           (2) That decision is made only if the court concludes that in “equity and good
               conscience” the suit should be dismissed rather than permitted to proceed.
               The decision to dismiss a suit under Rule 19(b) may require careful
         weighing of whether "in equity and good conscience" a suit should be
     (3) But some cases are clear-cut. If the defendant would suffer prejudice if
         the federal suit were to go forward, and the plaintiff could obtain full relief
         by proceeding in a state court, the suit should be dismissed under Rule
     (4) By contrast, if the defendant can protect itself by joining the party in
         question, the defendant cannot obtain a dismissal because the plaintiff
         failed to join him.
vi) A Hypothetical
     (1) Arnett, claiming ownership of $100,000 bank account, sues PacificaBank
         in the United States District Court for the District of Pacifica. Arnett is a
         citizen of Arkabama, and Bank is a citizen of Pacifica.
     (2) Paul, a citizen of Pacifica, and Allen, a citizen of Arkabama, also claim
         ownership of the bank account, but have not filed suit. Allen has no
         contacts with the State of Pacifica and does not live within 100 miles of
         the federal courthouse in Pacifica.
     (3) The account was established in an Arkabama branch of Pacifica Bank,
         and all events and omissions that give rise to the conflicting claims with
         respect to the ownership of the account took place in Arkabama.
vii) Answer
     (1) Only look at the whole complaint for diversity requirement. Monetary
         requirement not necessary for whole claim.
     (2) It looks like the Bank might suffer multiple liabilities here. So
         19(a)(1)(B)(ii) indicates that Allen and Paul are necessary parties.
     (3) Can they be joined feasibly?
         (a) Can Paul be joined?
              (i) He has a claim for over $100k, but he is a citizen of Pacifica. Does
                   this matter? As long as he‟s on the other side from Arnett, we have
                   complete diversity. So Bank can force Arnett to join Paul.
              (ii) Paul can move to dismiss him if he objects to improper venue.
                   Rule 19(a)(3). Venue proper under 1391(a)(1).
         (b) Can Allen?
              (i) Is Allen subject to TerrJ in Pacifica? No 4(k)(1)(A) or (B). He
                   could object on Venue grounds anyway, since he is from a
                   different state than the Bank and Paul.
     (4) But the Bank can protect itself on the basis of interpleader—have Paul,
         Arnett and Allen fight it out first, then come whining to the court.  No
         need for dismissal.
     (5) Bank should interplead the claimants by counterclaiming. This would be a
         compulsory counterclaim. Using 13(h), the Bank adds Allen and Paul to
         the litigation. Allen and Paul are now counter-claim s. Pacifica Bank is
         not a , so suppJ here is not barred by 1367(b).
     (6) No problem with venue either. When you have a compulsory
         counterclaim, never have to worry about venue. However, permissive
              counterclaims follow regular venue statutes, so there would be a problem
              for Allen if the claim was permissive.
          (7) Still have a problem with TerrJ, b/c Allen has no contacts with Pacifica.
c)   Interpleader
     i) Introduction
          (1) An interpleader claim or counterclaim requires claimants to fight among
              themselves about who is entitled to the money or property. (Do not
              confuse interpleader w/ impleader.)
          (2) SuppJ is not the only way to get SMJ over a counterclaim, at least so long
              as jurisdiction over the counterclaim is based on diversity of the parties.
              When you have a permissive counterclaim, you will generally not have
              SuppJ over the counterclaim. That doesn‟t mean there isn‟t diversity
              jurisdiction. You can treat the counterclaim as a separate action.
          (3) What about the compulsory counterclaim? Rule Interpleader helps. SMJ
              there b/c the counterclaims arises under the same set of operative facts.
              Venue doesn‟t matter under compulsory counterclaims.
     ii) Rule Interpleader
          (1) The ordinary rules of subject matter jurisdiction, personal jurisdiction, and
              venue apply to "rule inter-pleader."
     iii) Statutory Interpleader
          (1) In Statutory Interpleader, you only need minimal diversity and the amount
              in controversy requirement is only $500. There is nationwide service of
              process.  Anyone in the country can be brought into the action. Under
              1397, venue in a statutory interpleader case is proper in a district where
              one of the claimants resides.
          (2) Statutory Interpleader (1335) is only available when there is minimal
              diversity among the adverse claimants (eg Paul, Allen and Arnett must
              have minimal diversity). Allen can be hauled into court b/c statutory
              interpleader has nationwide service. And we don‟t worry about venue in
              compulsory counterclaims.
          (3) What about statutory interpleader with permissive counterclaim? Same
              analysis, except for venue. Allen can‟t object to venue under 1397, b/c
              venue is proper in which one of the claimants resides. Paul resides in
              Pacifica, so niah.
d)   Class Litigation
     i) Rule 23 Certification [F.R.C.P. 23(a)(4), 23(g)(1), 23(g)(4)]
          (1) Court must certify a suit as a class action
          (2) 23(a)(4)—The representative parties will fairly and adequately protect the
              interests of the class.
          (3) 23(g)(1)—The court is required to appoint class counsel.
          (4) 23(g)(4)—Class counsel must fairly and adequately represent the interests
              of the class.
     ii) The Importance of Class Counsel
          (1) Class counsel is basically the decision maker in the suit. Class counsel can
              disregard the instructions of the named s if they are not in the best
              interests of the class. Class counsel can even settle litigation over the
              objections of named s.
     iii) Rule 23(b)—Introduction
     iv) Rule 23(b)(1)
          (1) 23(b)(1): Similar to 19(a)(1)(b). Why? So as to make joinder of all the
              necessary parties feasible.
     v) Rule 23(b)(2)
          (1) 23(b)(2): Injunctive or declaratory relief. Think school desegregation suits
              or fed discrimination suits.
     vi) Rule 23(b)(3) Class Suits—In General
          (1) 23(b)(3): Damages class actions.
          (2) Class fact issues must predominate over individual class issues, and it
              must be superior to individual actions.
     vii) Types of Rule 23(b)(3) Class Suits
          (1) If class action would be appropriate for the Curry Train Wreck hypo, this
              would be brought under 23(b)(3). Each  would have individual issues
              that would need to be addressed. Although causation and duty issues
              would be common to the class, but each  would have to prove their
              damages.  damages are not common to the class.
          (2) Because it would be better to have individual trials for damages, then
              courts have usually held that no class action could be had.
          (3) But courts could certify an issue class. 23(c)(4). This is controversial. A
              finding here would have preclusive effect in individual cases against the
              railroad. The key issues is whether the class issue, followed by individual
              trials on damages, would be fairer and more efficient than having
              individual trials on all the issues.
          (4) Negative value class suits—It would not be worthwhile for an individual
              suits. $10 for 1 million s. Schutz is an example of this. Average damage
              claim there was $100. Without negative value claims, it would be far more
              difficult from deterring lots of people a little.
          (5) Large scale, large claim class suit. The other kind is where the claims are
              large enough to justify individual litigation, but it is more efficient to try
              them as a class action.
e)   Rhone-Poulenc—The District Court's Decision
     i) Procedural History—Pre-Certification
          (1) What about TerrJ? How do you get TerrJ over s who aren‟t in Ill and
              lack minimum contacts? This is Shutts. s can opt out, and as long as they
              are adequately represented, everything is good.
     ii) Procedural History—Certification
          (1) Questions of similar fact must predominate the action. Judge sought to
              meet that requirement by tailoring the suit to meet only one of the issues:
              the drug companies negligence. 23(c)(4)
          (2) Special verdict in this class action would act as collateral estoppel in all
              other suits.
     iii) The Relevance of Choice of Law to Certification
      (1) Judge rules Ill negligence law will be applicable to most of the negligence
          issues. If a court would have to interpret and apply the law of 50 different
          states, then it is hard to find that common issues of law predominates the
          case. Class action would not be a superior form of litigation.
iv) The Choice-of-Law Decision—Analytical Framework
      (1) Shutts gives with one hand and takes away with another. The TerrJ
          holding makes it practical to have nationwide class suits, but the choice of
          law holding has the potential to make adjudication of a class suit truly
          impossible if the laws of multiple states apply.
      (2) Erie and Klaxon put the fed cts in the same difficult position as the state
      (3) But Shutts does not create a problem when there are no significant
          differences between the laws of different states.
      (4) Sun Oil Co—Burden of showing a conflict btwn the law of a forum and
          the law of other states: misconstruction of law must contradict the clearly
          established law of the other state and brought to the court‟s attention.
v) The Choice-of-Law Decision—The District Court‟s Reasoning
      (1) District Court made no reference to Ill choice of law rules, but certainly
          had them in mind. s did not show that negligence law of other states was
          different from the law of Illinois.
vi) Rhone-Poulenc—The Seventh Circuit's Decision
vii) Appellate Review of a Certification Decision [§§ 1291, 1292(b), 1651]
      (1) Today, a party may seek interlocutory review of a certification decision
          under Rule 23(f).
viii) Posner
      (1) Should not force the s to stake their future on one jury trial
      (2) Violates Erie by applying one standard of negligence
      (3) It violates the 7th Amendment by allowing collateral estoppel on an issue
ix) Response
      (1) No good reason why it is unfair? Because it‟s an industry?
      (2) He‟s applying Illinois law, absent proof that other states are different.
          That‟s construing Erie correctly, cause that‟s what an Ill st ct would have
          done. It‟s possible s met their burden under Ill law, but 7th Cir never
          talks about this. Instead, it rejects the application of Ill Neg law regardless
          of anything else. This seems to go against Sun Oil.
      (3) Really? Really?
x) Where to certify
      (1) A s attorney will have better luck certifying as a class action in a state
          court than a fed court. Some states have a reputation for being particularly
          hospitable to class suits.
      (2) The Class Action Fairness Act, allows  to remove class action from state
          to fed, is a boon to s. This usually means certification decision will be
          made in Fed Ct.
xi) Defendants‟ Resistance to Class Certification
     (1) s have a strong incentive to resist class certification. A class action is not
         necessarily harmful to the  and beneficial to class members. Class
         members exercise very little control over class counsel.
     (2) Class counsel may settle a case over the objections of the named plaintiffs
         or even a majority of the class, so long as the court approves the
         settlement. Must be “fair, reasonable, and adequate.” Rule 23(e).
xii) Class Suits As A Strategic Tool for Defendants
     (1) , the  may like a class action when there are a large number of large
         claims, because there is a strong incentive to settle. This may limit their
     (2) The use of the class device to impose a settlement can be criticized and
         defended on various grounds. Woolley wants to focus on possibly abusive
         settlements—settlements that benefit class counsel. Settlement is cheaper
         than it should be, but attorney gets handsomely rewarded.
     (3) GR, class action settlements can be collaterally attacked by if plaintiffs
         were not adequately represented. But this is under attack.
     (4) If you have half a dozen class counsel bringing action in various districts,
         then once one settles, the settlement is res judicata against the other
         claims.  The other lawyers don‟t get paid.
     (5) CAFA‟s removal provision does not allow absent class members to
         remove from state to fed court.  CAFA provides no defense for class
         members against abusive settlements. But if a competing class counsel
         files an identical claim in Fed Ct before the state court settlement, then the
         Fed Ct might have the power to enjoin the state court settlement.