Personal Jurisdiction - Georgetown Law

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					Becky‟s Civil                            Professor Vladeck                                   Spring 2000
Procedure Outline                                                                               10/15/11
   I.     Personal Jurisdiction
          a. Personal Jurisdiction –
                 Personal Jurisdiction is measured at the time that the suit is commenced. If you come or go after that
                    point it will not impact jurisdiction.
                 The  is subject to personal jurisdiction wherever the suit is brought because they have control of the
                    bringing of the action.
                 A federal court has personal jurisdiction only if the state in which it sits would have had jurisdiction.
                    Except where (based on Rule 4):
                       The claim is based on federal law
                       Jurisdiction is constitutional
                       There is no state which would have personal jurisdiction.
                 Standards for Jurisdiction:
                       Sovereignty: The court always has jurisdiction over parties within the territory of the forum
                       Consent: The  can always consent to jurisdiction, and sometimes the implicitly consent, e.g.
                           use of highway. Corporations can consent by appointing an agent.
                       Pennoyer Test: Personal Service, or Property Ownership in state is required to provide
                           jurisdictional hook – see In Rem Jurisdiction below.
                       Contacts:
                               International Shoe Test: Minimum Contacts Test
                                    This is a balancing test
                                    Do you benefit from the laws of the state?
                                    Is it fair to require the  to defend themselves in the forum state?
                                    Is there a state interest in the outcome?
                               World-wide Volkswagen Test: Purposeful Availment
                                    You anticipate suit if you purposely avail yourself of the laws of the forum state.
                                    Just putting in an article into the stream of commerce is not sufficient to establish
                                        purposeful availment.
                                    This is intent based.
                                    Foreseeability and predictability considerations.
                               Summary:
                                    Make sure minimum contacts test is satisfied – was there purposeful availment to
                                        meet fair play and substantial justice test?
                                    Is it reasonable to haul this  into court in this distant forum? Consider other factors:
                                        state‟s interest, the ‟s interest in quick and speedy resolution, the interstate judicial
                                        system‟s interest in obtaining the most effective relief and efficient resolution and
                                        the shared interest of the several states in furthering social policies.
                                    NO PHYSICAL PRESENCE REQUIRED.

              Pennoyer v. Neff (1877):
              Law Suit #1: Mitchell v. Neff – sued to recover unpaid legal fee. Suit in OR,  lives in CA, but owns land in
              OR. Notice published in local church newspaper, the sheriff sells property, and transfers to Pennoyer.
              Law Suit #2: Pennoyer v. Neff – Neff sues to get Pennoyer off of his property. Neff makes a collateral attack.
              Court finds that if property would have been attached at the outset of suit #1, then that would have
              constituted sufficient notice. Idea is that people are more likely to watch land that they own closely.
                       Key Principles:
                        - Courts have substantial power to adjudicate matters within their territory or responsibility.
                        - Courts have substantial power over people found within the territory.
                        - Courts have no power over absent non-residents, unless they own property within the
              Hess v. Pawloski (1927):
              Accident in MA. Victim sues driver in MA. The court says that jurisdiction is proper because when you drive
              you consent to allowing the registrar of the state to be your personal agent, so this is personal service. This is
              an example of specific jurisdiction. Because the tortuous act is committed in the state there is an integral
              nexus to the state and DP is not offended.

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Becky‟s Civil                          Professor Vladeck                                  Spring 2000
Procedure Outline                                                                            10/15/11
               International Shoe Co. v. Washington (1945):
               Salesmen live and sell shoes in WA. They want to collect unemployment tax in WA. The court establishes
               the minimum contacts Test
               World-Wide Volkswagen (1980)
               The  bought a car from a regional dealer in NY and drove to AZ where they were in an accident which was
               fatal because of a defect in the car‟s design. The suit was brought in AZ. The regional dealer moves to
               dismiss for lack of personal jurisdiction.
               Keeton and Calder:
               Suit in NH for libel. Chose NH because that was the only state where the SOL had not run. NH has the single
               publication rule which allows suit for the whole damage.
               Burger King (1985):
               BK HQ in FL,  a Michigan resident with a MI franchise. The decision makers are in FL, the  knew that.
               Never went to FL and only dealt with MI representatives. There was a choice of law provision in the K –
               which means it was foreseeable that he would be hauled to FL.

          b.   General Jurisdiction
                There is no relationship between the actual dispute and the contacts within the forum state.
                Individuals: There is general jurisdiction when they are physically present and can be served.
                Corporations: There is general jurisdiction where they are incorporated, where your HQ is (your
                    domicile) or where they engage in substantial economic activity.
                To exercise general jurisdiction you need to have indicia of significant amount of contacts.
                Awareness: In some cases the court says awareness plus some type of intent is enough, the other camp
                    says awareness alone would never be enough and you need significant contacts.
                Consent will always work.
               Original Suit against a foreign  who impleads a second foreign . The original  settles and the remaining
               suit is between the foreign parties. The court says no minimum contacts. Stevens – bases on volume of sales
               and predictability of US destinations – so he may find minimum contacts. Limited interest of forum state.
               Helicoptero Case:
               The ‟s are families of victims of Peru helicopter crash.  are the helicopter manufacturers. They claim
               contacts b/c the pilot was trained in TX, and the helicopters were purchased in TX, and the victims were
               employed by a company whose alter ego was in TX. The court holds that this is an attempt at general
               jurisdiction and that the contacts are not sufficient to support a finding of general jurisdiction.

          c.   Transient Jurisdiction
                    Transient presence is usually sufficient to confer general jurisdiction over an individual but it may
                        not be sufficient to confer jurisdiction over a corporation.
               Burnham: Married in WVA, moved to NJ, she moves to CA, he comes to visit CA and she serves him there.
               Scalia camp: personal service is always enough to get general jurisdiction over a non-resident . Brennan
               Camp: applies international shoe type analysis.

          d.   In Rem Jurisdiction
                True In Rem: Action against property within the territory, resolving rights as against the entire world –
                   not just against the litigants.
                Quasi In Rem: Attachment Jurisdiction, only deciding rights as to the litigants not the entire world.
                Quasi In Rem Type #2: The property is simply the jurisdictional basis for the lawsuit. The property is
                   not in dispute but it would have been attached it up front to give jurisdiction
                    Shaffer Modification: Shaffer modifies the use of Type #2, and makes it a factor in an international
                        shoe test, rather than an independent jurisdictional hook.
                              Really large bank account might do it in this case – because it might be indicia of contacts.
               Shaffer v. Heitner:
               Incorporated in DE, HQ in AZ, harm in OR. Under the stock law, the stock is sitused in DE. They try to use
               Type #2 to get jurisdiction. The court holds that the presence of property is a factor in determining minimum
               contacts but is not determinative.

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Becky‟s Civil                             Professor Vladeck                                 Spring 2000
Procedure Outline                                                                              10/15/11
            e.   Other Considerations
                  Long Arm Statutes:
                     Provide a place for litigation for .
                     The fact that the long arm statute says you can get jurisdiction doesn‟t make it constitutional.
                     Help with predictability and foreseeability considerations.
                  Stream of Commerce Considerations:
                     Nature, volume and quantities of contacts will be the controlling factors. There is a sensitivity to
                        international concerns.
                     Some claim awareness is enough, some require awareness plus purposeful availment.
                  Specific v. General:
                     Specific Jurisdiction is Hess – where the act occurred in the jurisdiction that is a sufficient to give
                        jurisdiction over acts committed.
                     General Jurisdiction says that you can be hauled in even for purposes unrelated to forum state. The
                        definitional question of this is somewhat at play.
                     The burden of contacts is much lower for specific jurisdiction – however you still need to prove
                        sufficient ties to the state e.g.  is actually the driver, etc...
                    Notice must be reasonably calculated under all the circumstances to apprise interested persons of the
                     pendancy of the actions allowing them to voice their concerns.
                    Under Rule 4 notice can be:
                      Personal Delivery
                      Delivery to ‘dwelling house or usual place of abode’ with a person of ‘suitable age and discretion’
                      Delivering paper’s to ’s agent for service of process.
                      Consistent with state rules based on where the federal court sits.
                           This may have SOL implications. State law usual requires that the  has been served before the
                              SOL, not just that the action has commenced.
                      Service on a corporation:
                           Personal delivery to an officer, managing or general agent of the  - anyone reasonably senior.
                           An assistant to a high level corporate official has been deemed enough as well.
                           You can do in accordance with state in which action pends, or in accordance with state in which
                              action will be served.
                      Goal: Insure that be assurance that the actual person will receive.
                    Balance ease of , ‟s interest in notice and efficiency.
                    ‟s can waive hand service
                      As an incentive they get a longer time to respond.
                    LIENS:
                      Lien forbids the transfer of property interest without prior approval of the court.
                      Consequences for the property owner, can use but can‟t alienate.
                      Can be used to force a settlement.
                      Necessity of pre-deprivation hearing: (notice this test favors the government.
                           Private interest effected
                           Risk of erroneous deprivation
                           Interest of efficiency – the cost of the additional burden outweighs the benefits.
                      Now the court will look at several things:
                           The quantum of proof required.
                           Is there a bond? (will the  be compensated for wrongful seizure).
                           How swiftly will there be a hearing?
                           What kind of evidence will the court review?- is there a requirement that the  show exigent
                      Governed by rule 65
                      Temporary restraining order prohibits a certain party from committing a restrained act for no more
                          than 10 days.
                           They are almost never granted without notice to the other side.
                           They dissolve on their own and are only renewable once.
                           They are almost always accompanied by a bonding order.
                           The Court is required to give specific findings of fact and law.

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Becky‟s Civil                           Professor Vladeck                                  Spring 2000
Procedure Outline                                                                             10/15/11
                     Preliminary injunctions:
                       Not limited by duration.
                       Never granted without notice or hearing.
                       Immediately appealable.
                       They contain an inkling about how the court will rule on the merits of the case
                   BONDS – under rule 4
                     Financial undertaking
                     To get a bond you need to post collateral and the cost of the bond is about 10% of the face value.
                     Value is supposedly roughly equivalent to durational loss to party improperly enjoined

          Mullane: This is a case between the income and principle beneficiaries of a trust. The income beneficiaries want
          direct service. The NY statute requires only printing in the back of a newspaper. The court holds that “notice must
          be reasonably calculated under all circumstances to apprise interested persons of the pendency of the actions
          allowing them to voice their concerns.” Here the court says that mail service is just as good as personal service.
          Focus on „best practical notice‟.
          National Development Corporation v. Triad: The service was made to housekeeper at one of many residences.
          The court rules this is sufficient.
          Connecticut v. Doehr: The  wants to make sure he gets paid so pursuant to a CT statute he attached property
          without notice to the . Deprivation should be in support of a sworn interest. Outcome may be different if there
          was a dispute about the land.
   II.    Subject Matter Jurisdiction
                Article III is the constitutional basis for federal courts.
                There are certain kinds of action that may ONLY be brought in federal court.
                               Bankruptcy
                               Admiralty
                These actions require that congress create courts to handle them.
                Subject Matter issues can be raised by the court sua sponte, and can be raised by the parties at any time
                    up until final judgment.
          a. Diversity
                Based on 28 USC §1332.
                Represents about ¼ to 1/3 of the business of federal courts.
                Complete diversity is required, unless congress has authorized otherwise.
                Citizenship Requirements:
                        o Individual:
                               True, fixed and permanent home and principle establishment to which he had intention of
                               To change citizenship requires affirmative acts to affiliate with the new jurisdiction.
                               You can‟t be a citizen of a state without being a citizen of the United States (see exception
                                   for resident aliens in the statute).
                        o Corporation:
                               Diversity is measured from the place of incorporation and the Principle place of business.
                               Principle Place of Business Test: Very fact specific, often not easily categorized.
                               Nerve Center – e.g. big retailers managed from one nerve center, activity all over the
                               Muscle test: Principle area of activity, e.g big manufacturing.
                        o Alienage Jurisdiction: (Under §1332 a 2)
                Amount in Controversy Requirement: $75,000 – NOTE MUST BE IN EXCESS OF THIS AMOUNT.
                        o Trust me - When the  alleges an amount that exceeded the jurisdictional requirement you
                              trust them to make the judgment unless it is clear to a legal certainty that the  won’t recover
                              that amount
                        o Aggregation - Where there is one claim, the number of s doesn’t matter you can aggregate
                              the damages sought. Where the claims are separate and distinct diversity rules forbid
                        o Injunctions – Hard to value, but courts are generous.
                Diversity Jurisdiction is measured at the time the complaint is filed. Subsequent changes in domicile
                    don‟t defeat this jurisdiction.

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Becky‟s Civil                            Professor Vladeck                                   Spring 2000
Procedure Outline                                                                               10/15/11
               Strawbridge v. Curtiss: Creates requirement that diversity be complete, unless congress has specifically
               authorized minimal diversity.
               Mas: Outlines citizenship requirements for individuals.
               Randazzo: Outlines citizenship requirements for corporations.
               Winona: Lays out tests to determine PPB.

          b.   Federal Question
                Based on 28 USC §1331. -  suing to enforce a federal statute for which there is a clear federal remedy.
                          o Federal claim must be part of the ’s affirmative case (motley).
                          o The federal claim must be sufficiently central to the ’s claim.
                Narrow construction means a bright line test.
                Congress has wide berth in defining the jurisdiction of 28 USC § 1331.
                Two approaches:
                          o Ultimate outcome depends on federal law then there is federal jurisdiction.
                          o The cause of action and remedy must be prescribed by federal law.
               Motley: Breach of contract case,  alleges the contract is invalid because of a change in federal law. The
               court holds that there is no jurisdiction here. The statute is not essential to the ‟s case.
               Merrell Dow: Case about drug, brought by foreign  in state court of OH. This is not a federal law case,
               because the statute doesn‟t establish a private right of action. Court finds that there is only a federal question
               if there is a federal remedy.

          c.   Removal
                Goal: Protection of Federal Interest. Typical application is some little  against a large out of state
                The clock for removal starts ticking the day that the  is formally served, once time elapses the  can no
                   longer remove.
                        o We do this because we want to let the  rely on forum choice.
                        o This decision needs to be made quickly and decisively.
                        o Multiple  are usually shackled together for removal questions.
                Limits on application in diversity cases.
                        o If the  is suing in the ’s state of citizenship, then the  can not remove.
                There are substance specific statutes that allow removal in specific instances – e.g. civil rights actions.
               Noble: This is a case where a third party  is impleaded, and wants to remove, but the court finds that the
               clock has already begun running.

          d.   Supplemental Jurisdiction
               Kroger: IA  sues NB  who impleads an IA . The court is concerned about a  focusing on a diverse 
               who may not be guilty because they want J based on diversity. This is not overruled by §1367.
               Findley: NY  direct action on a federal claim against a CA corporation and a tort action related to crash
               against a NY . The court says that the  would have to litigate in separate courts.
          e.   Venue
                 must chose a jurisdiction where PJ, SMJ and venue overlap.
                Courts look at:
                        o Venue baring a relationship to the parties
                        o Venue baring a relationship to the transaction involved in suits.
                        o Convenience.
                Local v. Transitory Actions:
                        o Local: Deals with land - venue lies with land (this is statutory in some case, but where, like in
                            the federal statute this is not explicit, then it is usually implied)
                                  In rem
                                  Seeking Remedy like ejectment.
                                  Seeking damages for injury to land.
                        o Transitory: Anything not land related – Venue is governed by statute.

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Becky‟s Civil                           Professor Vladeck                                 Spring 2000
Procedure Outline                                                                            10/15/11
                                    Federal
                                      Based on 28 USC §1391
                                      There are different venue requirements for diversity and federal question cases.
                                      Diversity:
                                           o “Resides means domiciled”
                                      Individuals:
                                           o Any district where the  is domiciled (multiple , any district where one 
                                                can be sued).
                                           o Can have venue where transaction took place or a substantial part of the
                                                events or omissions occurred.
                                      Corporations:
                                           o Anywhere that the corporation has a place of business.
                                           o Larger corporation the more venues.
                                      Notes there are some special federal venue statutes e.g. 1394 for cases against
                                           national banks.
                                  State
                                      Usually special requirements for special cases.
                   Change of Venue:
                       o Transfer in state courts
                                  For purposes of a fair trial
                                  Some states require motion, others allow sua sponte.
                                  If it should be in another state, they can‟t transfer, but can dismiss under „forum non
                       o Transfer in Federal Courts:
                                  Can transfer only to a district where venue and personal jurisdiction would be proper.
                                  Standards for transfer in §1404 proper to proper, 1406 improper to proper (can dismiss
                                     or in the interest of justice they can transfer).
                                      Interest of justice
                     Forum Non Conveniens
                       o States can dismiss without prejudice.
                       o Federal courts can transfer to another court or dismiss – dismissal only is used for foreign
                            forums. (§1404 (a) – would allow transfer or dismiss.)
                       o Considerations:
                                  Is there an alternative forum?
                                  Balance of Convenience.
                       Piper: Plane accident in Scotland, suit in CA. Removed from state to federal court. The court holds
                       that the possibility of the change in substantive law should not be given conclusive, even substantial
                       weight in the calculus in this inquiry.

          f.   Raising Objections (rule 12)
                Rule 12: Means by which  expresses an objection to jurisdiction of the federal courts.
                   o Collateral Attack: You can do nothing and wait until the decision is entered against you to contest
                   o Special Appearance: (this phrase not used in Rule 12) You can make a special appearance to
                       contest jurisdiction but this is fraught with danger.
                        Sometimes other motions etc… will subject you to the courts jurisdiction.
                        If you lose you are forced to litigate.
                   o You can only have one bite at the apple.
                        Enforcement through full faith and credit.
                Motions are filed when you want the court to do something through the issuance of an order.
                Pleadings are documents that put facts or averments into play – governed by rule 7.
                   o Includes complaints, answers, and answers to counter-claims.
                12(b) lists the defenses and when they are raised.

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Becky‟s Civil                              Professor Vladeck                                  Spring 2000
Procedure Outline                                                                                10/15/11

Subject Matter Jurisdiction           Personal                            Rule 12(b)(6) – failure to state a
                                      Jurisdiction/Venue/Service of       claim
                                      Process (Rule 4)                    Rule 19 (indispensable parties)
This can not be waived, you don‟t     You overlook at your peril. These   These are not waived if they are
put it in your answer. Supreme        are non-essential. And venue and    not raised initially, you can raise
Court can raise two years later,      service of process are quickly      them up until and including a
see Motley                            curable.                            trial.
 Court may find that it is off the    Onus will be on the  not the 
table for the parties once there is   to raise these defenses.
final judgment

                     When you are raising these issues you can file a motion to dismiss or an answer that alleges a defect, e.g.
                      lack of PJ.
                      o Motion – just looks at that issue.
                      o Answer – you have to address the merits of the case.
                            Time is a ‟s friend.
                   You must raise all your waive able defenses at once.
                      o You may file one motion, if that is denied, you have 10 days to file an answer.
                      o You may not raise any of the objections that have been addressed in your answer.
                  Clinton v. Jones: Use presidential immunity to get a second bite at the apple.
                  Baldwin: Special appearance,  on J and lose. Enter judgment, and the  tries a collateral attack – you can‟t
                  do both.

    III.     Forms & Papers
             a. Pleadings/The Complaint
                 Functions of a Complaint:
                    o Puts the  on notice of suit.
                    o Invokes a dispute resolution procedure set up by state or federal government to resolve disputes
                        between parties.
                    o Spawns settlement.
                 Rule 8 Outlines the parameters for complaints in federal court.
                    o Notice Pleading - Just put on notice – this the Rule 8 approach.
                    o Field Code Approach – Notice plus a detailed recitation of the facts, e.g. CA state court.
                    o Almost common law approach – Notice, detailed recitation of the facts, detailed explanation of legal
                        claims and theories. This persists in a few jurisdictions.
                 Rule 8 Requirements:
                    o Statement of Jurisdiction ( you need to allege facts in support of your jurisdiction).
                    o Facts/Claim
                         Facts should show each element of the claim, e.g. duty, breach of duty, etc…
                         Don‟t need a lot of detail – remember you have to prove whatever you plead.
                    o Demand for relief/judgment
                         Simply what the  wants to recover.
                         Some states say you can‟t collect more than you plead.
                         The federal court does not limit recovery to this amount.
                         Always include a jury demand.
                         Escape Clause: “Such other relief as is just and proper”
                 Rule 12 (e) allows the  to ask for a more specific response.
                 Rule 12 also allows you to remove parts of the complaint that are scandalous etc…
                 Inconsistent legal theories:
                    o Where it is difficult to get at the information, e.g. the victims is dead, then it is possible to allege
                        inconsistent theories.
                    o If the information is available this might be unethical under Rule 11.
                             The judge can bring a rule 11 issue under a show cause action.
                             This doesn‟t apply in oral representations to the court based on prior pleading.
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Becky‟s Civil                          Professor Vladeck                                 Spring 2000
Procedure Outline                                                                           10/15/11
                Rule 10 tells you what the complaint looks like.
               Dioguardi/Connley: Show that you don‟t need a lot of detail for your pleading.
               McCormick: Count one says he was drunk and the  is responsible, count 2 alleges someone else is at fault.

          b.   Defendant’s Responses
                Answers are only filed when you have exhausted whatever right to file you may have initially.
                Always refer to rules 8-10.
                Remember the CIA motto:
                   o Admit Nothing
                        Don‟t want to admit anything that is not a solid provable judicial fact.
                        Even if something may end up being true, don‟t admit it in your answer.
                   o Deny Everything
                        You generally use specific denials, no general denials.
                        Rule 10 requires responses in numbered paragraphs.
                        Your ethical duty requires a reasonable investigation.
                   o Make Counter Accusations
                        Raise Rule 8 affirmative defenses in the answer.
                        Rule 8 defenses are defenses on the merits, not procedural defenses (like those in rule 12).
                If 40 days elapse without a response, you can file notice with the clerk and obtain a default judgment,
                   with an affidavit reciting the facts of service etc..
                   o You must go to the judge to get this.

          c.   Amendments
                Based on Rule 15, and very favorable to parties seeking to amend.
                Can get around SOL problems if the facts are substantially related to the original claim.
               Marsh v. Coleman: The  is not allowed to amend because the claim is not sufficiently related to allow
               amendment under the SOL.

          d.   Supplemental Pleadings; Veracity & Rule 11
                In a Rule 11 pleading, you might want to include facts not available when the original pleading was
                Typical supplemental pleading is when a party moves for relief under current facts. Courts are liberal in
                  allowing a supplemental pleading.
                Supplemental pleadings require court permission.
                The right to supplement ends before the trial starts.
                There are ethical limitations under Rule 11 (discretionary rule):
                   Deter misuse of the system.
                   Supposed to deter bad behavior by lawyers
                   Tell people who have weak cases to stay home.
                   Efficiency
                   If you are accused of violation you have 21 days to correct the action.
                        Required to draft an accusatory motion.
                        Then the opposing counsel is given 21 days to withdraw the motion that is in violation.
                   Your obligation is to investigate the material contained, and then to certify by signing it.
                   Only requires disclosure of controlling authority in your jurisdiction.

   IV.    Discovery
          a. General Scope
               Goal is to preserve evidence before trial, avoid surprise, narrow the ground for disputes, allows
                  assessment of value of cases therefore promotes settlements.
               Depositions: Rule 27-31
                  o Requires reasonable notice, subpoena for non-parties.
                  o Benefits:
                       Pre trial you can see how witnesses play
                       You can hear more information in a depo than you would in trial.
               Interrogatories:

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Becky‟s Civil                           Professor Vladeck                                 Spring 2000
Procedure Outline                                                                            10/15/11
                    o Goal is to get basic factual information that can be efficiently obtained.
                    o Can be used to get legal contentions – theories and support.
                    o Disadvantage – take a long time to answer, answers are massaged by lawyers.
                   Documents:
                    o Just request for parties.
                    o Must subpoena for non-parties.

          b.   Work Product
                Privilege: Right that limits your adversary‟s ability to conduct discovery.
                Governed by the rules of evidence.
                Work product is the lawyer‟s mental impression, most strict protection given to opinion work.
                Work product prepared in anticipation of litigation is not subject to discovery.
                   Litigants should not be able to profit from the work of their adversaries.
                         This is not an absolute privilege – there is a necessity objection.
                                If the material can not be obtained in some other way then it must be turned over.
                                Some courts say that the ‟s financial inability justifies overcoming this privilege.
                         This protects information which can frustrate the truth seeking aspects of our system.
                   There is a distinction between lawyers and parties – the only way information can be gotten from a
                      lawyer is to subpoena the lawyer under Rule 45.
                There is an evolving self-evaluation privilege.

               Hickman: An attorney starts investigation and interviews witnesses, he doesn‟t want to give up notes on
               interviews. The TC says turn over, he fails, gets contempt citation, which is immediately appealable. Creates
               the doctrine of work product.
               Holmgren v. State Farm: Case about the report prepared by a claims examiner. This would fall under the
               work product exception, but would be admissible out of necessity.

          c.   Experts
                 Experts can offer opinion testimony.
                 The rules vigorously safeguard experts who will not be allowed to testify. You generally won‟t get
                    anything on experts specially retained or employed unless there are exceptional circumstance.
                 Experts who will testify can automatically be deposed by the opposing party.
                 Rule about medical examinations runs only to parties.

          d.   Mandatory Disclosures
                 Rule 26 (a) governs.
                    Tries to speed up the discovery process.
                    Helps the  evaluate the viability of the suit.
                    Not a mandatory rule – District Court can opt out.
                    `Rule 26 a 1 B – Words can lead to more fights.
                          Relevance judged by lawyers, judges and parties.
                          Particularity – governs which allegations you must disclose on.
                               The greater the particularity the greater the initial burden.
                    Rule 26 a 1 c & d are not tailored to issues about particularity.
                    NOTE: The more specifically you plead the more likely you are to get more information during
                    RULE 26 TRUMPS ANYTHING ELSE:
                          E.g. while rule 12 motion is pending discovery is not suspended.
                          Want to keep the ball rolling to promote efficiency goal.

               In Re Lotus Development Securities: They claim the  didn‟t plead with specificity, therefore they don‟t
               have to answer. The court holds that as soon as  gets over the pleading threshold, rule 26 a kicks in.
          e.   Timing
                Rule 16 requires the scheduling of a discovery conference.
                    There is a 90 day clock which starts ticking as soon as the  enters any type of appearance at all.
                    This is superceded by the 120 day clock.
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                     Prior to this they have to meet and confirm under RULE 26 (f).
                   Three waves of discovery:
                     Initial discovery
                     Discovery initiated by the parties in response to interrogatories.
                     Discovery of experts
                         90 days before trial
                         Disclose Identity
                         Provide Summary report.
                   Rule 7 is what would get you an expedited discovery

           f.  Sanctions
                Rule 26 (g) provides general obligation imposed on lawyers to sign their discovery request certifying:
                       that they have made reasonable inquiry,
                    and that disclosure is complete and correct at time of certification.
                This is a mandatory rule.
                    Represents a no nonsense approach to discovery
                Rule 37 - Provides for discovery sanctions if:
                    A) failure to comply with reasonable request
                    B) failure to comply with discovery order
                    C) Failure to admit fact
                    D) Other stuff.
               Fissons: Doctor case with the smoking guns. The court wants to impose sanctions under Rule 26 g.
               Holmgren: The court imposes sanctions because the  denies what can easily be proven.
   Case Resolution
          g. Settlement/Alternative Dispute Resolution
                90% of cases settle.
                Personal Injury Cases settle because:
                    There are enough cases statistically that the lawyers can know what they are worth.
                    There is a great motivation to settle.
                        Time
                        Reputation
                        Risk Aversion
                Forms of Settlement processes:
                    Mediation: Not binding with a goal of starting a dialog between the parties.
                        First line of inquiry is to talk with the lawyer.
                        Mediator will play devil‟s advocate.
                        Ultimate goal is to get the principles in the room and talking.
                        Pros:
                             Impartiality of mediator is litmus test for jury and judge.
                             Risk aversion
                             Low cost (if court sponsored/required)
                             Allows ongoing relationship with adversary.
                             Trials are emotionally challenging.
                             Opens Client‟s eyes.
                        Cons:
                             If you have two parties who are not economically evenly matched you might have a less
                                 fair outcome.
                             Forces you to preview your case.
                    Arbitration: Court imposed is typically not binding. The arbitrator fills a judicial role, hears
                       arguments and makes a decision about what the judge or jury is likely to do.
                        Pros:
                             Mimics litigation process.
                             Less formal
                        Cons:
                             Adversarial
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Becky‟s Civil                           Professor Vladeck                                  Spring 2000
Procedure Outline                                                                             10/15/11
                            Time consuming
                            Expensive because you need to educate the arbitrator.
                            You have to put all your cards on the table.
                            May drive wedge between you and your client.
                            Rolling the dice twice.
                            May not be accurate
                            May make settlement more difficult.
                            In binding arbitration it may drive down the value of cases.
                       Mandatory Binding Arbitration:
                         Sometimes it is prescribed by statute.
                         Takes place in secret.
                         Less formal – rules of evidence don‟t apply as strictly, fewer procedural protections.

          h.   Summary Judgment
                Judgment: the disposition of the case in language of command. Reduces to its essence the ruling of the
                Summary Judgment: Based on Rule 56, judgment short of trial.
                    If it is filed too early in the process it is very easy for the other party to rely on 56 (f) to say that
                        ‘genuine issues of material fact’ will be raised by the discovery process.
                    Usually filed towards the end of the discovery process.
                    Difference between 56 & 12(b) (6)
                         Rule 12 looks only at pleading and answer, if one has been filed, based on facts as they appear
                            there – is there a theory upon which relief could be granted assuming  can prove all facts.
                             If no, dismiss as a matter of law.
                         Rule 56 inquiry allows you to look at material outside of the pleadings and decide based on that
                            if there is a genuine issue of material fact –
                             If no, dismiss.
                    56 (d) says you can move for SJ on only part of the case.
                    Look at evidence in light most favorable to non-moving party. (note: circumstantial and direct
                        evidence are treated as equal)
                    Burden of persuasion is on moving party.
                         Must show that no reasonable jury could find for the other party.
                         If there is a witness credibility dispute, then trial is appropriate.
                Sufficiency v. Materiality:
                    Sufficiency: genuineness of dispute
                            The level of sufficiency changes with the changing burden of proof.
                             You apply the burden, where it is higher that may point in favor of SJ where a lower
                                 burden might allow trial.
                    Materiality: relationship of facts in dispute to overall dispute. Is the evidence essential to the case.
               Knapp: Dram shop case. The  claims that everyone who has knowledge has sworn affidavit that the driver
               was not drunk, and moves for SJ. The  produces evidence of BAL. The  wins.
               Anderson: Question of how you integrate a particular standard into SJ procedure.
          i.   Judgment as a Matter of Law
                JMOL (directed verdict) Based on Rule 50 - If the court determines that there is insufficient evidence, it
                   may decline to submit the case to the jury and instead enter the judgment.
                    Motion must be made before the case is submitted to a jury.
                    This gives the non-moving party an opportunity to cure.
                    Judges can’t do this ‘sua sponte.’
                    Judge:
                         Cannot weigh evidence.
                         Assess credibility
                         Views facts in light most favorable to the non-moving party
                         Is subject to strict procedural restrictions.
                JNOV – judgment notwithstanding verdict. (Renewed JMOL)
                    Also governed by rule 50.
                    Same standards as JMOL
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Becky‟s Civil                           Professor Vladeck                                  Spring 2000
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                        Occurs at close of evidence, and must be made there if you wish to renew at the close of the verdict.
                         If you fail to make a motion at the close of evidence, then the only thing you can do is move for a
                         new trial
                     You can move for a new trial and a JMOL(JNOV)
                   In order to get a new trial the judge must find that the jury verdict is contrary to the weight of the
                     Governed by Rule 59.
                     Standards are more lax.
                     Can weigh evidence.
                          Decision is made on a preponderance of the evidence test.
                     Decision made after jury verdict.
                   Remittitur and Additur:
                     Remittitur used where the jury’s award does not bear a reasonable relationship with the case and
                         the verdict.
                     Additur is not permitted under the 7th in federal courts, state courts use.
                   Rule 60 governs setting aside of jury verdicts for other reasons.
                     Juror Misconduct.
                     Fraud
                     Mistake.

          j.   Trials, Appeals, Standards of Review
                Reasons for appellate courts:
                         Consistency – lower judges are not obligated to follow one another.
                         Judicial mistake – you want an opportunity to review.
                         There is no constitutional right to appeal.
                         This gives the losing party one more shot – this is in part based on a concern that individual
                           justice is too idiosyncratic.
                NOTE: By and large appeals are based on trial error not fact specific circumstances.
                Mechanics of filing:
                         File a notice of appeal in the trial court within 30 days.
                                      Must identify the name of the 
                                      Must identify the court to which you are appealing.
                                      If you make a mistake you can remedy if you catch it before the clock has run.
                         Merger: All subsidiary orders that are bound up in the final judgment are deemed to have
                           merged into it and are challengeable on appeal provided you file within 30 days of the entry of
                                      NOTE THIS REQUIRES THAT YOU HAVE PRESERVED YOUR
                                           OBJECTION BY MAKING IT AT THE TIME THE RULING IS MADE.
                Federal Appellate Jurisdiction:
                         §1291: This gives appellate jurisdiction over all final decisions.
                            Final: where the merits have been resolved and the  has a judgment that can be executed
                            Doctrine of finality: Judgments are not the same as orders. Orders are the only things that
                                are final.
                         Exceptions: (Ways to get an appeal before a final judgement)
                            Collateral: You know that the order is collateral because it doesn‟t merge into final order.
                                   Disqualification: this is collateral but can not be appealed immediately.
                                   Contempt can be appealed immediately.
                                   Sanctions are collateral but can not be appealed immediately.
                                   Bond decisions are immediately appealable.
                                   Judgments in favor of new trial are not immediately appealable, judgments against a
                                        new trial immediately appellate.
                                   Order staying federal court action pending parallel state cases immediately
                                   Personal Jurisdiction not immediately appealable.
                                   Forum Non Conviens not immediately appealable.
                                   Order to vacate dismissal or rescind a settlement not immediately appeable.

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Becky‟s Civil                           Professor Vladeck                                  Spring 2000
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                                To state an immediately appealable order you must show:
                                    That the order conclusively resolves the issue.
                                    That the issue is one separate from the merits of the case.
                                    The order is effectively un-reviewable on appeal from a final judgment.
                              Interlocutory Orders under §1292(b) are immediately appealable.
                                    “a controlling question of law as to which there is substantial ground for difference
                                        of opinion and that an immediate appeal from the order may materially advance the
                                        ultimate termination of the litigation, he shall so state in writing in such an order.”
                                    Procedural requirement: the district court must make an order recommending to the
                                        court of appeals that an immediate appeals is the correct course, the court can say
                                    Substantive requirement:
                                          o Substantial ground for difference of opinion.
                                          o Material advancement of the ultimate termination through immediate appeal.
                                    NOTE THIS ONLY INVOLVES QUESTIONS OF LAW – not factual disputes.
                              Death Knell Doctrine: Court doesn‟t adopt an approach where if an order kills your case it
                                 becomes an issue for immediate appeal.
                                    This would make too many interlocutory appeals subject to appeal.
                                    This doctrine might be too subjective.
                                    Worried about singling out class actions.
                                    Worried about overstepping the boundaries of federal statute.
                                    NOTE: rule has been updated to allow discretionary interlocutory appeal for class
                                        certification. (Rule 23(f))
                              Mandamus: An action allowing an appellate court to issue an order to a trial judge to obey
                                 the law.
                                    Used where trial judge is about to deny right to a civil jury in a clear 7th amendment
                              1292 (a): Immediate appeals for injunctions.
                                    This is done because injunctions are the strongest medicine that can be imposed.
                                    Even denials of preliminary injunctions can be appealed immediately.
                              Rule 54 (b): Enables a litigant who has brought one case instead of two to appeal
                                 separately on the who issues.
                         Supreme Court Review:
                              The court grants cert.
                                    4 justices must agree to hear.
                              You can‟t ask for a review of case you won.
                              Court reviews cases out of the federal system, and those that are about questions of federal
                              Not so much about the decision being wrong, more about the issues being of national
                                    Conflict among lower courts on an important question of federal law.
                                    Where a federal court has declared a state law unconstitutional. – this is done out of
                              Two dockets:
                                    Ordinary cases in which the parties pay a filing fee (6000 filed a year)
                                    Other docket who can‟t pay filing fees (4000 filed a year.)
                                    They review 70-80 cases.
                              There are categories that the court must hear, in addition to the discretionary docket.
                                    Cases between states – original jurisdiction of the SC.
                                    Cases congress has designated for SC review –e.g. voting rights cases.
                       State Appellate Jurisdiction:
                        o For the most part state rules look like federal with a couple exceptions.
                        o NY has rules on appellate proceedings that bear no resemblance to federal rules. They
                             encourage review of non-final orders.
                        o VA and WV – no right of appeal whatsoever. Even final orders are not automatically
                             appealable. You need permission to appeal.
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Becky‟s Civil                            Professor Vladeck                                   Spring 2000
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               Coopers & Lybrand: Order denying class certification is not immediately appealable. This action is
               appealable after the final judgment
          k.   Juries
               RIGHT TO JURY
                The 7th amendment grants a right in many civil cases to a trial by jury, but this right doesn‟t apply to
                   state courts
                The court looks at historic distinctions between law and equity to determine if there is a right to a trial by
                   o This can be done by looking at the action back in 1791 that most closely resembles the case, and
                        apply law or equity accordingly.
                   o This can also be done by looking at the relief sought and determining if that was a law or equity
                   o Court tends to err on the side of over inclusion.

              VOIR DIRE (28 USC 1870 – bases for jury selection in federal courts)
               Lawyers find out about potential jurors by their answers in voir dire (both oral and written).
               Judge can dismiss a jury “for cause” when he thinks the juror is not capable of rendering a decision free
                  of bias.
                  o Actual financial interest.
                  o Close emotional ties to the proceedings.
                  o Religious objections.
               Prosecutors are given a certain number of preemptory challenges.
                  o Race, gender and suspect classification can not be used as a preemptory challenge.
                  o You have to give a reason – this is not the same as showing cause.
              Terry: Fair representation suite. Court looks at actions in 1791 that most closely resemble.
              Batson: Held that government lawyers may not use preemptory strikes on the bases of race because
              exclusion sends the wrong message.
   V.     Erie
          a. The Cases:
               Erie v. Tompkins: The court is trying to give effect to the Rules Decision Act in this case, hold the
                  „law of the several states‟ includes both statutory and common law. Unless there is a controlling federal
                  statute, the federal court applies the state law regardless of whether the law is statutory or common law
                       o Promotes uniformity.
                       o Eliminates state bias.
                       o Federalism – this was decided just after the NEW DEAL where there was an increase in
                            FEDERAL POWER.
                       o IF THERE IS NO CONTROLLING STATE LAW the federal judge should do what he thinks the
                            state courts would do.
                                  Put themselves in the shoes of state decision makers.
                                  Means federal court will be unlikely to readjust archaic common law.
                                  There are many certification processes in place.
               Guaranty Trust v. York: This is a case about the difference between substantive (effects final outcome)
                  and procedural law. Case is about which SOL to apply.
                       o Court applies OUTCOME DETERMINISM test:
                                  Will the application of the rule determine the outcome.
                                           If yes, apply state rather than federal.

                   Byrd v. Blue Ridge: case about application of state v. federal, jury or judge decide an issue.
                         o Is the state rule bound up with state created rights and obligations?
                         o Does the state rule dictate the result?
                         o Then you balance state rule interest against federal interest. You don’t have to maintain parity
                              in how the trials look, but instead uniformity in the way that federal courts do their business –
                              in some cases this will trump the state interest.
                   Hanna: Service requirements at issue – do you apply Rule 4 or the state requirement? This creates the
                    part of the test under the Rules Enabling Act (where there is a federal rule on point.)

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Becky‟s Civil                           Professor Vladeck                                  Spring 2000
Procedure Outline                                                                             10/15/11
                   Gasperini: Case about photographer, Erie issue is excessivity of damages.
                       o The message to federal courts is accommodation where possible.

          b.   The Test:
                Does the rule implicate the twin aims of Erie? (THESE ARE AN AND NOT AN OR)
                   o Will it induce forum shopping?
                   o Will it lead to inequitable administration of the laws? (variation in application of laws.
                   o NOTE: if the answer here is no you apply the state law.
                No Federal Rule on point (Rules Decision Act)
                   o Is there an important state policy? (is the rule bound up with an important state goal?)
                          If no, then uniformity wins and you apply the federal rule.
                          If yes, then you balance like Gasperini and consider accommodation and balancing – extra
                             weight on federal uniformity.
                   o If yes, is there a countervailing federal interest?
                          Uniformity
                          Other Federal Interest
                          NOTE: Just because there is not a federal rule don’t assume no federal interest.
                Federal Rule on point (Rules Enabling Act)
                   o Is the rule constitutional?
                          Much deference given to constitutionality.
                   o Is the rule within the scope of delegated authority under the Rules Enabling Act?
                          Rule must be procedural
                          Can’t diminish substantive rights(abridge modify or enlarge?).
                           E.g. If there was a federal rule that said no jury trial, and the state rule said jury trial the
                                federal would abridge a state created right to a jury.
                          Again much deference is given.
                   o Is the rule on point? (Is there tension/inconsistency between federal and state rule?)
                          Absolute conflict – Rule 3 commencement v. state commencement rules.
                          Nominal conflict – state standard of review v. rule create ability to ask for review.
                          Be wary of finding that there is no conflict here. Consider the consistency of the messages.
                             You must acknowledge the conflict, that doesn’t mean that you can’t accommodate.
                             Generally, the answer is yes.
                   o Can you accommodate the state law nonetheless without doing violence to the federal law?
                          This is where the bulk of the debate occurs.
                          Gasperini- Some (Ginsburg) justices say Erie requires the federal courts to go a significant
                             distance in terms of accommodating state interests, the rest of the justices believe that the
                             backdrop is federal uniformity (Scalia), so sometimes that will trump even state interests.
                          If there is a way of accommodating the two interests, you make an accommodation.
                          If there is no way to accommodate, the closest answer is the rule 3 cases- Regan/Walker –
                             state rule ‘obviously’ prevails. The point of Erie is to ensure consistency between state and
                             federal adjudication of state law claims – State SOLs are door closing devices – federal
                             courts shouldn’t re-open the doors.

   VI.    Preclusion
           Reasons for preclusion:
               Efficiency: It is inefficient to try the same case over and over again
               Fairness to parties: if you have already won you should not subjected to the time and expense of having
                  to prove your case again.
               Consistency and Predictability: similar cases will be treated similarly and like cases will be decided in a
                  like manner.
           Why not preclusion:
               Day in court
           Key Vocab
               Res Judicata: Claims preclusion – once you have lost a case you are barred from litigation. The case is
               Bar: The common law term that deals with res judicata where the  has lost, the claim is barred because
                  it is merged into a judgment. The judgment acts as a bar to subsequent litigation.

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Becky‟s Civil                            Professor Vladeck                                   Spring 2000
Procedure Outline                                                                               10/15/11
                   Collateral Estoppel: Issue preclusion – when an issue has been litigated it can‟t be re-litigated. Trickier
                    than res judicata. Where an issue has been fully and fairly litigated to judgment it prevents the re-
                    litigation of that issue in multiple proceedings.
                   Merger: Claim is merged into judgment at the conclusion of a case. The judgment can be sold, collected
                    up on but it extinguishes the claim, because the claim is merged.
                   Splitting a cause of action: Two suits based on the same cause of action, if do this and lose the first case
                    you are barred from litigating the second, if you win, you can‟t be cause you are merged. E.g. personal
                    injury and injury to property.

          b.   Claims Preclusion
                  Tests:
                         Transactional test: If injuries arise out of the same transaction you need to bring all actions for
                             recovery at once.
                              Benefits: Efficiency, Fairness to , Conceptual problem.
                         Primary rights doctrine: If there are multiple injuries subject to different proofs, SOL or
                             compensation then each of those injuries gives rise to a separate cause of action.
                              This is much better for the .
                              Difficult to pinpoint, therefore harder to apply.
                              Minority rule
                         Sameness of evidence test: Measure claims of relief by trying to figure out if some would be
                             subjected to different proofs.
                         Wrongful act: Focuses on ’s conduct not ’s injury.
                         NOTE: In some cases there are statutes which allow the splitting of a cause of action or suit
                             registries, e.g. asbestos.
                         NOTE: In some states the rule is different for tort v. contract.
                              E.g. NY primary rights, tort, transactional, K.
                              Under Erie state law would likely apply, absent some federal policy interest in that
                                  particular area. (they are usually substantive).
               Carter: This is case where the  split a cause of action. The court rules that the  can‟t bring the second
               personal injury suit because it is barred by claims preclusion.

          c.   Issue Preclusion
                    Was the issue litigated and determined in the first case?
                       o There must be a clear decision on the issue for issue preclusion to work.
                    Was the issue decided essential to the judgment?
                    Was the holding embodied in a valid final judgment?
                       o This means who won and the reasons for judgment.
                    Against whom?
                       o Parties who already litigated the issue
                             Can‟t assert against parties who were not parties or in privity.
                       o Close relationship required.
                             Non party who has succeeded to a party‟s interest in property is bound by any prior
                                judgment against that party.
                             Non party who controlled the original suit will be bound by the resulting judgment.
                             Federal court will bind non party whose interests were adequately represented by a party in
                                the original suit.
                    By whom?
                       o Doctrine of Mutuality:
                             No longer applies
                             It used to be that the  had an absolute right to re-litigate against different  no matter
                                whether he won or lost
                             Rejected for defensive use in Bernhard v. BOA & Blonder Tongue.
                                      Based on inefficiency.
                                      Don‟t want jury trials to be a lottery.
                                      No reason to allow separate suits when  could bring in all .
                             Rejected for offensive use in Parklane Hoisery.
                                      Requires that the  had a full and fair opportunity to litigate.
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Becky‟s Civil                            Professor Vladeck                                    Spring 2000
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                                           o    Your defense will be commensurate with exposure, so you may settle and
                                                therefore courts may treat settlements differently
                                           o    There may different procedural issues.
                                           o    Convenience issues.
              Cromwell: Same issue regarding CN against two different railroads.
              Borel: Requires that there be at least some relationship between the party against whom preclusion is sought
              and the parties that litigated the issue.
              Blonder-Tongue: Suits against different  for patent infringement. The first suit found patent invalid. The 
              is not allowed to re-litigate this issue.
              Parklane Hosiery: First case is SEC v. , second case is shareholders v. .
   VII.   Joinder
           It is easier to join claims that to join parties – between original parties a claim can be litigated even if it is not
              transactionally related. Parties must meet a transactional relatedness test.
          a. Joinder by Plaintiffs
               CLAIM JOINDER: Pendant v. Ancillary Jurisdiction:
                   o Rule 18(a) Permissive Counter Claims
                         This is essentially an anything goes rule.
                         Once there is a claim there is no transactional relatedness limit to the claims the  can add.
                         NOTE: once the  asserts a counter claim (which must be transactionally related) and becomes
                            a claimant in the language of rule 18 they can invoke this rule.
                   o Pendant – a claim that would not satisfy 1331 or 1332 and is joined under Gibbs.
                         The two claims must arise out of a common nucleus of operative facts.
                                   This is seen by the court as one „case‟ under Article III.
                         The federal claim must be substantial. (If the court found early on that the federal claim was in
                            substantial they would have to throw out the whole case – dismissing the state claim without
                         §1367 (a) was an effort to codify Gibbs – grants jurisdiction “over all claims that are so related
                            to the claims in the action within such original jurisdiction that they form part of the same case
                            or controversy.”
                                   Supplemental jurisdiction is co-terminus with the constitution.
                                   Desired to give broad supplemental jurisdiction authority.
               JOINDER OF PARTIES:
                   o Based on Rule 20 –Permissive Joinder
                         Want to encourage multiple  with the same basic claim against  to try in the same case.
                         Gives broad choice about when the  can join other parties.
                         Can raise jurisdictional issues.
                         This is not an anything goes rule – it is transactionally based.
                   o Rule 14 (b) - ’s interpleader rule
                         Where subject to a counter claim the  can implead additional  where the  would be allowed
                            under this rule.
                   o Rule 15(a&b)
                         You can add parties early in the litigation
                   o Pendant Party Jurisdiction
                         § 1367 allows pendant party juirisdiction where the  brings in additional parties – where there
                            is a substantial federal claim you can add  so long as you meet the opaque language of
                                   Consider relatedness
                                   Consider substantiality of the federal claim.
                         Under §1367 in a §1332 (diversity case) you can add non-diverse parties and have jurisdiction
                            if they are added by the . However, if they are added by the , then §1367 doesn‟t apply
                         Note §1367 has a tolling provision –the pendancy of the federal claim tolls the state statute of

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Becky‟s Civil                           Professor Vladeck                                  Spring 2000
Procedure Outline                                                                             10/15/11
               Gibbs: Gibbs wanted to add a state contract claim onto his federal question claim. He wanted to do this
               because more cash would be awarded based on the state claim. The court holds that a federal court can assert
               jurisdiction over a state claim that arises out of a common nucleus of operative facts.
               Schwartz: Case where there are several suits arising out of the same set of accidents.
               Findley: Case where the wife of decedent sues both utility company and the federal government. There is no
               diversity with the utility company, and this is not based on a federal question.
               Kroger: Utility line case – utility diverse, crane operator not diverse.

          b.   Joinder by Defendants
                CLAIM JOINDER
                         o Rule 13(a) Compulsory Counter-Claim
                                   This is when a  must raise a claim or waive it – „use it or lose it‟
                                   These are transactionally related counter claims – (for limited exceptions see the rule).
                                             Note – the court may treat settlement different than judgment – desire to
                                                 protect day in court. (Dimdo)
                                   You can always get jurisdiction for a compulsory counter claim under §1367.
                         o Rule 13 (b) Permissive Counter-Claims
                                   This is the analog to ‟s rule 18(a) the right to lump together transactionally unrelated
                                   You may have jurisdictional issues here.
                                             There is not relatedness so you can‟t invoke §1367.
                         o Rule 13 (g) Cross Claims:
                                   Can make transactionally related claims against other .
                         o Rule 15 (c) Supplemental Pleadings:
                                    is most likely to use this – based on the fact that they will exercise a less is more
                                   This allows a party to add a claim if events occur to justify a claim – usually after
                                       discovery proceeds.
                         o Rule 18(a) see above.
                PARTY JOINDER
                         o Rule 14(a) Impleader Rule
                                   Allows the  to bring in parties where the third party is or may be liable to the third
                                       party  (original ) for all or part of the ‟s claim.
                                   Doesn‟t allow  who are not part of the litigation.
                                   Can be used to bring in a joint tortfeasor, but it is a limited rule. (Markvicka)
                                   Note: post hanna rule 14, not state rule governs in federal court.
                         o Rule 19 – Necessary and Indispensable Party Rule
                                   Sparingly invoked rule.
                                       Arises only when the  either for tactical reasons, or jurisdictional ones chooses not
                                       to bring into the case a party whose presence is crucial to the outcome.
                                   Inquiry:
                                             Is the absentee party necessary?
                                                 o A joint tortfeasor is not a necessary party under rule 19.
                                             Is the absentee’s joinder feasible?
                                                 o If it would defeat jurisdiction the answer is no.
                                                 o There is no §1367 jurisdiction available under Rule 19.
                                             If not feasible is absentee indispensable?
                                                 o Usually comes down to the existence of an alternate forum.
                                                 o Typically they don‟t find the party indispensable because that results in
                                             Rule 20 See above
               Markvicka: Case where the  wants to bring in a joint tortfeasor.
               Hass: case with stock and FL bank. Court rules that there must be re-litigation in another forum and that the
               party falls under rule 19.

          c.   Intervention

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Becky‟s Civil                           Professor Vladeck                                 Spring 2000
Procedure Outline                                                                            10/15/11
                   Rule 24 allows strangers to jump in and become part of the litigation.
                        o By right:
                                  Intervention allowed by statute – only one statute meets this.
                                  Where your interest in the litigation would be impaired unless you are permitted to
                                      participate. E.g. you have an interest in the property. Unless your interest is
                                      adequately represented by those parties already participating.
                        o Permissivley
                                  Rule 24 b permissive participation.
                        o NOTE: the court has SJ and then you give PJ by joining as a  you consent to J.
                        o NOTE: You can’t become an intervener if your party status would destroy diversity – esp. with
                            respect to permissive intervention.

          d.   Interpleader
                Rule Interpleader – Rule 22
                         o This doesn’t confer independent jurisdiction, so you must have an independent basis for
                         o Governed by Rule Service requirements.
                Statutory Interpleader - §1335
                         o You only look to  for diversity
                         o In cases were all  are from same jurisdiction and  is diverse, but claims an interest in a
                             share of the rest, that will qualify.
                         o If the  is a true stakeholder – not seeking part – then you have to use Rule Interpleader
                         o Service of process can be commenced any where the  resides.
                Courts can enjoin state actions that would undermine the jurisdiction of the federal court.
                         o Efficiency suggests that all cases against the same sum should be resolved together.
                         o Un-liquidated tort judgment can be the pivot point.
               Pan Am: Basis for Interpleader.
               Tashire: Injunction against claims against insurance company and the tort feasor. Tried to get all the claims
               in a single court.

          e.   Class Actions
                Requirements:
                       o Numerostiy – joinder must be impracticable.
                       o Commonality – Interests of the class must be common (uniform allied interest).
                       o Typicality – The main ’s claim must be typical of the claims held by the class .
                       o Adequacy of Representation –
                                 Considers logistical pressures.
                                 Can the law firm absorb the costs?
                                 Also considers the adequacy of the class representative.
                Process:
                       o When you file a class actor you include allegations and a definition of your class.
                       o A decision about class certification ‘as soon as practicable.’
                       o  files for certification, the  files a response brief.
                Governed by Rule 23
                       o B (1) A – Mirror image of interpleader, where specified property is at stake.
                       o B (1) B – Alternative to bankruptcy, you put up all assets and ask for a binding judgment that
                           binds among these . – this gets them res judicata and allows the corporation to survive.
                       o B (2) Party acted or refused to act so principle relief is injunctions but restitution and
                           rescissions are adjunct to injunctive relief.
                       o B (3) Based on common questions of law and fact.
                                 Requires the best notice practicable, which in some cases can mean nothing short of
                                    full personal mail.
                                 You can opt out of the class and sue later under B(3) – this language is usually drafted
                                    in a vague way because no one wants opt outs.
                Settlement –
                       o Settlements must be approved by a judge.
                Jurisdiction –
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Becky‟s Civil                         Professor Vladeck                                   Spring 2000
Procedure Outline                                                                            10/15/11
                      o   Some courts aggregate and consider amount in controversy for the whole class.
                      o   You may also be able to use §1367, where the class representative exceeds the amt. In
                          controversy but the rest don’t or aren’t diverse.
             Hansberry: For a judgment to be binding you have to be able to show commonality.
             Shuck: Out of state resident who fails to opt out is bound only if there has been notice.

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