PERSONAL JURISDICTION

Hawkins v. Masters Farm (2003): Ps husband dies, issue of whether P were filing the action in federal court and alleging
diversity jurisdiction; defines domicile as physical presence in a place in connection with a certain state of mind
concernings one intent to remain there held that there was not sufficient diversity under 1332(a)(1)

Pennoyer v. Neff (1877): set rules limiting the power of state courts over non-residents.
o Traditional Basis for In Personam Jurisdiction
D is served with process in the forum (presence)
D is domiciled in the forum (domicile)
D consents through voluntary appearance, failing to object or pre-dispute contract (consent)
Ds agent is served with process in the forum (consent by agent)

International Shoe Co. v. Washington (1945): to have jurisdiction over D, he must have certain minimum contacts with
[the state] that the maintenance of the suit does not offend traditional notions of fair play and substantial justice
o This means
We can serve process outside the forum if D has minimum contacts with the forum
Systematic and continuous activities // purposeful availment
Two parts -- > Minimum Contacts and Fairness
Creates a sliding scale of jurisdiction your contacts with a state can be so substantial that you can be sued
there for claims unrelated to the contact (general jurisdiction) (and if no contact, you can be sued there if
the claim arises under specific jurisdiction)

McGee v. International Life Insurance Co. (1957): SCOTUS upheld jurisdiction in CA over TX insurance company over
sale of 1 insurance contract in CA
o Jurisdiction upheld because company had solicited the business and because CA (forum state) had an interest in
providing justice for its citizens.

Hanson v. Denckla (1958): court did not uphold jurisdiction over DE trust in FL court where trustee had moved because
there was no purposeful availment from International Shoe
o In McGee the company reached out to CA for business, here it did not - > no purposeful availment

World Wide Volkswagen Corp v. Woodson (1980): no jurisdiction in OK over NY retailer/distributor because they didnt
avail themselves of OK, the Ps brought the car there (which had nothing to do with Ds conduct)
o But its a car- so it is foreseeable that the car might end up in OK?
o Court says foreseeability is relevant -- > not foreseeability that the car would end up in OK, but foreseeability that
b/c of the companys contacts and conduct it would be sued in the state.

Burger King v. Rudzewicz (1985): Court holds that Florida does have jurisdiction over D Rudzewicz in FL (sufficient
contacts because he sought out BK franchise). There was a K clause saying disputes would be governed and construed under
and in accordance with the laws of the State of Florida.
o Court said that once minimum contacts had been established, you then consider fairness
o Factors: burden on the defendant, forum states interest in adjudicating the dispute, the interstate judicial systems
interest in obtaining the most efficient resolution of controversies, shared interest of the several states in furthering
fundamental substantive social policies.
o Burden on defendant: must show that it is so gravely inconvenient that you are at a severe disadvantage in the case.
(relevant wealth is irrelevant)

J. McIntyre Machinery, Ltd. v. Nicastro (2011): P was injured in NJ using a machine manufactured in England, an
independent retailer sells J. McIntyres machines in the U.S.
o Kennedy (4): says no jurisdiction in NJ, J McIntyre purposefully avail himself with marketing efforts directed at the
US, but did not purposefully avail himself of NJ.
o Breyer (2): no jurisdiction, said case was unsuitable for applying broad rules on stream of commerce and
foreseeability issues
o Ginsberg (3) Dissent: upholds jurisdiction; company is targeting the US
o Asahi had previously established that placing a product into the stream of commerce is consistent with DP as long
as the producer is aware of where the product is being marketed so that the possibility of lawsuit there cannot come

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as a surprise (foreseeability)

Goodyear v. Brown (2011): distinguishes general and specific jurisdiction- bus accident in France, defective tire
manufactured in Turkey, action commenced in NC over Goodyear (OH corp) and 3 overseas subsidiaries. Court finds no
grounds for general or specific jurisdiction
o Court says stream of commerce may bolster an affiliation of specific jurisdiction but not general
o For general jurisdiction, affiliations with the state must be so continuous and systematic as to render them
essentially at home in the forum state. (general jurisdiction is very limited)

Burnham v. Superior Court (1990): (divorce case): NJ husband sued in CA, served with process in CA but claim arise in
NJ. D argued there was no jurisdiction because there was an absence of systematic and continuous contacts as required by
Intl Shoe. Jurisdiction is upheld but there is no conclusion because court splits 4-4-1
o tag jurisdiction
o Scalia (4): jurisdiction based on physical presence alone constitutes DP -- > Its good law under Pennoyer and
International Shoe factors dont matter if you have jurisdiction under a traditional basis
o Brennan (4): husband availed himself of CA while visiting, but we must apply Intl Shoe to all cases

In Rem and Quasi in Rem Jurisdiction

Pennoyer v. Neff (1877): best case to illustrate Quasi in Rem jurisdiction
o Original case was Mitchell v. Neff and it was a breach of K claim but Mitchell couldnt get in personam jurisdiction
over Neff in OR, but Neff had land in OR so Mitchell used that as the jurisdictional basis (quasi in rem jurisdiction)
o Rule: for in Rem and Quasi in Rem, the constitutional requirement is that the court seize the land at the
outset of the case
In Rem and Quasi in Rem Today
o Statutory Basis- Attachment Statute
Attachment statute says state has jurisdiction over property in the state that defendant owns or claims to
own
o Shaffer v. Heitner (1977): P seized stock (property) in DE (company was incorporated in DE); issue of whether
Intl Shoe governs in rem actions as well as in personam. (it does)
Seizing the property at the outset isnt enough (you must still do it though), you must also show that the
defendant meets International Shoe (contact and fairness).
Court holds no jurisdiction b/c stock holdings in DE dont provide sufficient related contacts
New Rule (after Shaffer v. Heitner): for in Rem and Quasi in Rem, the court must seize the land at the outset of the case
and the defendant must meet the International Shoe requirements of minimum contact & fairness
Consent
Consent established through pre-litigation agreement (Carnival Cruise) or by wavier (failing to challenge jurisdiction)
Carnival Cruise Lines v. Shute (1991): P injured on a Carnival Cruise; filed suit in WA but ticket had a forum clause that
required the suit be brought in FL
o SCOTUS upholds the forum selection clause suit must be brought in FL; gives 3 interests cruise lines would
have for having a forum selection clause and says there is no evidence the clause is used in bad faith or for ulterior
motives to limit suits brought against them.
Statutory Limits
Gibbons v. Brown (1998): P (FL) brought suit against passenger in car (TX) in FL court; wreck occurred in Canada; P
claimed there was PJ In FL because D had brought a previous suit against Ps husband in FL that regarded the car wreck. D
said this did not satisfy the long arm statute.
o FLs long arm statute requires substantial and not isolated activity and gives no weight to relatedness
o The original lawsuit is an isolated activity so there is no ground for personal jurisdiction
NOTICE AND SERVICE OF PROCESS
Mullane v. Central Hanover Bank (1950): when notice is a persons due, process which is a mere gesture is not due
process
o Court gets rid of distinction between constructive notice that sufficed for in rem cases and personal service
required for in personam cases said all cases required a form of notice that was sensible/reasonable under the
circumstances and reasonably likely to actually inform the defendant of the lawsuit. reasonable under
cost/benefits
o i.e.: mail notice is appropriate when there is a large # of defendants because it wont reach all of them but they are
likely to have duplicate interests anyway; if theres a small # of defendants it is more important to reach them all.

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VENUE
Forum Non-Conveniens
Piper Aircraft v. Reno (1981): plane crash in Scotland, all decedents were Scottish, most companies involved were Scottish,
etc. Suit brought in Superior Court of CA because liability laws in US are more favorable than those in Scotland (they dont
recognize strict liability in torts)
o Ds Piper and Hartzell sought transfer under 1404(a) and 1631, respectively, to M.D.P.A.
o Once in M.D.P.A. both sought to dismiss on the grounds of forum non-conveniens
o SCOTUS held that litigation belonged in Scotland because it doesnt matter if the law applied would be less
favorable to plaintiffs than in present forum. must look at public and private factors
o Private Factors: relative access to evidence, cost of obtaining witnesses, want case to be easy, efficient and
inexpensive Public Factors: administrative difficulties of court congestion, local interest, avoiding conflict of law,
etc.
o The other court must be adequate and available
SUBJECT MATTER JURISDICTION
Federal Questiono Louisville & Nashville Railroad v. Motley (1908): Motleys have lifetime passes on the railroad, but Congress
passes legislation that RRs cant give away free passes anymore. Motleys sue, complaint says (1) RR breached the
K, (2) new federal law doesnt apply to us (doesnt prohibit the use of their pass) and application of it conflicts with
their Fifth Amendment right b/c it deprives them of their property without due process.
SCOTUS says lower court had no jurisdiction over the case because there is (1) no diversity of citizenship
and (2) no federal question
Does the statute give the Motleys a right? NO, they just raised a federal issue as an anticipatory defense.
Supplemental Jurisdiction
United Mine Workers v. Gibbs (1966)- 1 transaction gave rise to a state and federal claim
o Court allowed the state claim to be heard in federal court and called it pendant jurisdiction
o Test: we can hear the claim if it is part of the same case that got us into federal court and it derives from a common
nucleus of operative fact
Related Cases for SMJ
Redner v. Sanders(2000): P is a citizen of the US residing in France, Ds are residents of NY- complaint claims diversity
jurisdiction because the P is a resident of a foreign state. Ds move to dismiss under 12(b)(1).
o P tries to invoke 1332(a)(2) but it speaks of citizenship and Ps complaint speaks of residence
o P then tries to invoke 1332(a)(1) by stating that he has maintained contacts with CA but factual submissions are
not sufficient to demonstrate a CA domicile.
o Court dismisses action for lack of SMJ.
In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (2007): P Skanes files a complaint under the
Federal Truth in Lending Act and also state law fraud claims against defendants; court upholds supplemental jurisdiction
under 1367(a)
o Rule: To determine whether the federal and state claims are connected by common and operative facts, courts
compare the facts necessary to prove the elements of the federal claim with those necessary to the success of the
state claim and ask whether the state claims can be resolved/dismissed without affecting the federal claims.
ERIE DOCTRINE
Erie Railroad v. Tompkins (1938): P Tompkins had this arm severed when he was knocked under a train by an open door on a
refrigerator car. Ps lawyers sued in S.D.N.Y. hoping to benefit from Swift v. Tyson (state statutes and judge made law could be used
in matters of local issues but not for general law), RRs lawyers insisted that P was a trespasser under local PN law.
S.D.N.Y. used Swift and jury found for P under instructions of ordinary negligence, Second Circuit upheld the verdict, RR
sought a writ of cert on issue of if Swift v. Tyson should be upheld.
New Rule: except in matters governed by the Federal Constitution or Acts of Congress, the law to be applied in any case is
the law of the State. Doesnt matter if the law of the State is declared by its legislature in a statute or by its highest court in a
decision.
State law governs in federal court on substantive matters not controlled by federal statutes (or rules/requirements) or
directly by the US Constitution
Twin Aims of Erie: discouragement of forum shopping and avoidance of inequitable administration of laws

Civil Procedure Outline 3

Hanna v. Plumer (1965): P served D under FRCP 4(e)(2)(B) instead of under the state requirements and the DC and First
Circuit ruled the claim should be dismissed b/c P had failed to comply with the state rule for serving process. Tells us that
Erie has two doctrines at play
o Is there a federal directive on point? Is there some federal law?
If Yes, then federal law trumps the state law as long as the federal law is valid
Based on the Supremecy Clause of the COnsitution
We know if its valid by testing against the Rules Enabling Act (2072)
FRCP is valid if it doesnt modify substantive rights
No FRCP has ever been held invalid, SCOTUS has upheld any FRCP that is arguably procedural

Guaranty Trust Co. (1945): Outcome Determinative Test

o P sued a bond trustee in a federal diversity action alleging misrepresentation and breach of trust; D motioned for
dismissal on NY statute of limitations; P said it hadnt because it was on the equity side
o Outcome ought to be the same; we dont want different results under state and federal law so if in ignoring
the state law you get a different result then you cant ignore the state law (forum shopping)

Byrd v. Blue Ridge (1958): Balance the Interests

o Issue was whether a judge or jury should be used in a case on whether workers comp. applied- SCOTUS held that
the federal court shouldnt follow the state rule we do not think the likelihood of a different result is so strong as
to require the federal practice of jury determination of disputed factual issues to yield to the state rule in the interest
of uniformity of outcome
o If its not obviously substantive then we should apply state law unless the federal system has an interest in
doing it differently
PLEADINGS

Short and Plain Statement of the Claim

Twombly (2007): antitrust case; courts have held that bare, conclusory allegations of a conspiracy do not suffice; the plaintiff
must allege some facts leading to the inference of an unlawful agreement
o Reinterpretation of Rule 8: not requiring heightened fact pleading of specifics, but only enough facts to state a claim
to relief that is plausible on its face.
o Must nudge claims across the line from conceivable to plausible to avoid dismissal
o Issue of whether this just applied to antitrust cases/cases where discovery was very expensive or if it applied to all
cases

Ashcroft v. Iqbal (2009): Complaint alleges that Ds adopted an unconstitutional policy that subjected Iqbal to harsh
conditions of confinement on account of his race, religion or national origin; alleges that Ds knew of, condoned, and
willfully and maliciously agreed to subjection to harsh conditions of confinement as a matter of policy, solely on account of
his religion, race, and/or national origin. DC and 2 nd Circuit upheld complaint, saying it was sufficient to state a claim despite
the Ds status at the time (qualified immunity)
o SCOTUS says: P has not nudged his claim of invidious discrimination across the line from conceivable to
plausible. Bare asserts of complaint are nothing more than a recitation of the elements of a constitutional
discrimination claim.
o Twombly is not limited to antitrust actions- it applies to all applications of Rule 8(a)(2)
o Criticisms: in a lot of cases you need discovery to get the facts and you cant get discovery if you dont have the
facts to get past a 12(b)(6) motion. Means cases with merit can be thrown out.

Related Cases for Pleadings

Haddle v. Garrison (1998): P Haddles case is dismissed for a 12(b)(6) in S.D.G.A. for is claims that he was improperly
discharged from his employment by D in an attempt to deter his participation as a witness in a Federal criminal trial, but
claim was dismissed because he was an at-will employee with no constitutionally protected interest in continued
employment. 11th Circuit also dismissed it for failure to state a claim.
o SCOTUS held that the claim under 1985(2) asserted by P focuses on intimidation and retaliation, not the
deprivation of property, thus the fact that employment at-will is not property is not relevant and the P does have a
claim that states relief.

Jones v. Bock (2007): issue of who is required to plead exhaustion in a case by a prisoner against officers (PLRA requires
that a prisoner cant bring an action with respect to prison conditions until all administrative remedies available are
exhausted).

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o
o
o

SCOTUS looks at the language of the statute, the FRCP Rule 8 on pleadings and 8(c) on affirmative defenses- find
no answer then look at the legislative history of the PLRA
General Rule: the usual practice under the FRCP is to regard exhaustion as an affirmative defense and thus inmates
are not required to specially plead or demonstrate exhaustion in their complaint
Matters because whoever has the burden of pleading will also have the burden of producing evidence to
demonstrate the allegation

Walker v. Norwest Corp. (1996): Ps filed complaint-basing jurisdiction on diversity, Ds wrote to Ps lawyer informing
him there was not complete diversity, asking him to dismiss the complaint, and warning that if he did not, Norwest would
seek sanctions. Ps lawyer did not dismiss.
o DC awarded sanctions under Rule 11(2) against Ps for filing a diversity case in which he failed to lead complete
diversity and tended to plead facts that showed there was not complete diversity.

Zielinski v. Philadelphia Piers, Inc. (1956): P injured operating a forklift at work; defendant denied paragraph 5 of the
complaint which stated that a fork lift owned, operated ad controlled by the D, its agent, servants or employees was
negligent and carelessly managed as to come into contact and cause injuries with P.
o Rule 8(b) requires a more specific answer than a general denial- it has to issue a specific denial of parts of the
paragraph and a specific admission of the other parts.
o Issue is that the D should have notified P that it was suing the wrong D- didnt clarify that ownership of the
company had been transferred to Carload Contractors.
o Court imposes equitable estoppel so as to not allow D to deny. This would usually harm the insurance of the party
but here D and Carload have the same insurer.
o Rule changes that would get us to the same result: 26(e)(1), 37(c)(1), 15(c)(1)(C)

Beeck v. Aquaslide N Dive Corp (1977): P injured on a slide at company picnic, D Aquaslide admitted that it designed,
manufactured, assembled and sold the slide in question. 6.5 months later the president of Aquaslide visited the slide in
question and determined it wasnt actually his product- D moved the court for leave to amend its answer to deny manufacture
of the slide.
o TC granted leave to amend under Rule 15(a)(2) (and also a separate trial)
There was no bad faith, undue delay, undue prejudice to the P, etc.
Fairness to plaintiff- prejudice to plaintiff, defendants fault
Fairness to defendant/accuracy- defendants lack of fault, prejudice to defendant

Related Cases for Discovery

Davis v. Precoat Metals (2002): P employees suing D employers alleging race and national origin discrimination and
retaliation in violation of Title VII. Seeking to compel discovery of other employees complaints of discrimination limited in
time period, employees at the same Chicago plant as P and complaints of race and national origin discrimination.
o D try to invoke Rule 26(b)(2)(C) that says a court can limit discovery if it determines that it is too cumulative or
duplicative, obtainable from a more convenient source, etc.
o Court holds that the Ps request seeks discoverable information and that the requests are narrowly tailored to the
specific claims of the case.

Steffan v. Cheney (1990): P was separated from the Naval Academy based on his admission that he was gay; filed a claim
challenging the constitutionality of the regulations that provided for his discharge; his claim was dismissed for failure to
comply with discovery orders regarding his failure to answer deposition questions directed to whether he was engaged in
homosexual conduct during his tenure. P claims conduct was irrelevant.
o Court reverses dismissal; says questions on homosexual conduct are not related to the issue of dismissal due to his
admission of being gay. Homosexual conduct not involved in the dismissal.

Hickman v. Taylor (1947): there was a public hearing where all of the survivors of a tug boat accident were examined,
counsel for the Ds also privately interviewed and took statements from the survivors with an eye towards litigation. Ps
counsel is requesting exact copies of all the statements and D refused.
o Court held that the information is available to petitioner through the public examination or through the witnessescant ask for statements and mental impressions contained in Ds filed without a showing of necessity or indication
that denial would be prejudicial.
o Cant compel information readily available (courts dont like lazy attorneys) or mental impressions
PRE TRIAL ADJUDICATION

Civil Procedure Outline 5

Celotex Corp. v. Catrett (1986): D moved for SJ claiming that P had failed to produce evidence that a Celotex product was
the proximate cause of the alleged injuries (death of Ps husband), P produced 3 documents but DC granted motion for SJ
because there was no showing that the decedent was exposed to the Ds Celotex product in the District of Columbia or
elsewhere within the statutory period. Court of Appeals reversed.
o Court says that party seeking SJ bears the initial responsibility under 56(c)(1) of informing the court of its motion
but there is no requirement that they support the motion with affidavits or other materials that negate the
opponents claim.
o SCOTUS used this to show that courts loosen up and grant SJ more often

Bias v. Advantage International, Inc. (1990): Ps sued agent of their son for injuries arising from Ds representing that he
obtained an insurance policy on Len Bias when he did not. DC granted SJ for defendants based on the facts that even if the D
had tried to obtain a policy, they wouldnt have been able to do so based on the fact that Bias was a cocaine user and no
insurer in 1986 would have issued a jumbo policy to a cocaine user unless they applicant made a misrepresentation regarding
the drug use, thereby rendering the policy void
o Court affirmed SJ for the defendant
o Rule 56(e)- the nonmoving party must come forward with specific facts showing that there is an issue for trial -- >
the general facts presented by Ps did not contradict the more specific testimony of Biass teammates regarding this
cocaine usage.
o Ps also failed to name a single company that would have issued a jumbo policy under the circumstances
o In seeking to demonstrate that there is a factual dispute, the nonmoving party gets the advantage that the court must
draw all justifiable inferences in its favor (Anderson v. Liberty Lobby) but the non-moving party has to do more
than create metaphysical doubt (Matsushita Electric)
REMEDIES AND RIGHT TO JURY TRIAL

Related Cases for Judge/Jury/Pretrial Motions, etc.

Pennsylvania RR v. Chamberlain (1933): Ps decedent died in a railroad crash, the employees riding on the car that
allegedly crashing into decedents car testified that there was no collision, as did every other position in a position to see,
except for Bainbridge who testified for P. TC directed a verdict (JML) for D. Court of Appeals reversed finding that the
credibility of the witnesses was a question of fact depending on credibility and should thus go to the jury
o SCOTUS says there was no conflict in the testimony of facts- the witnesses for D said there was no collision, and
Bainbridge said there was a large crash but doesnt explicitly say there was a collision.
o A verdict in favor of the Ps would rest upon speculation and conjecture which is inadmissible (because if you
remove the inference relied upon from Bainbridges testimony that speed and sound infer a crash, then there is no
question of fact)
Lind v. Schenley Industries (1960): P alleged that D breached his promise of an increase in pay and a share of commissions.
TC jury found that there was a K and awarded damages for P; D moved via Rule 50(c) for RJML and in the alternative for a
new trial. TC judge granted motion. Issue on appeal is whether the lower court abused its discretion in overturning the verdict
by the jury
o Court found that lower court judge did abuse its discretion
o General Rule: there is no exact standard to be used to overturn a verdict but judge cant order a new trial simply
because he would have come to a different conclusion than the jury did
o 50(c) conditional motion for new trial comes into play if the RJML is later reversed or vacated, allows the trial judge
to rule on all the post-trial motions at once instead of years later.
o Important: JML is a final motion that is appealable, granting of a new trial is not a final judgment.
APPEALS
Related Cases for Appeals
Aetna Casualty & Surety Co. v. Cunningham (1955): P insurer stepped in when D contractor couldnt complete their job
then tried to recover $$ from D alleging that (1) terms of the K permitted such recovery and (2) D contractor had committed
fraud. DC ruled for P on the K claim, but not on fraud claim. Both parties appealed.
o Issue on appeal is that failed contractors often file for bankruptcy protection from creditors (thus D wouldnt be
liable for $$ damages from breach claim), but liabilities incurred as the result of fraud are not dischargeable (so if P
can prove fraud then D is liable for $$ for breach)
o General Rule: if the denial of one claim results in the P not getting the relief to which it claims to be entitled,
whether in the amount or in the quality of judgment, it has a right to be heard on appeal

Anderson v. Bessemer City (1985):P Anderson sues alleging discrimination. DC found for P, Court of Appeals for the 4 th
Circuit found that there was a clear error in the DCs finding of discrimination and reversed. Issue on appeal is whether the
4th Circuit correctly applied the standard for appellate review from Rule 52(a)(6)

Civil Procedure Outline 6

o
o
o

52(a)(6) says that findings of fact cant be set aside unless clearly erroneous and due regard shall be given to the
opportunity of the TC to judge the credibility of witnesses
Clearly Erroneous Standard: a finding is clearly erroneous when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that there was a mistake. If there
are two permissible views of the evidence, the factfinders choice between them cannot be clearly erroneous.
SCOTUS says 4th Circuit misapplied the clearly erroneous standard. Reversed judgment

JOINDER
Plant v. Blazer Financial Services (1979): P sued D under the Truth in Lending Act for failure to make disclosures required
under the Act, D counterclaimed on the note for an unpaid debt. TC held the disclosure inadequate but offset the Ps award
by the damages awarded on the counterclaim. P appeals on the jurisdiction of the court to entertain the counterclaim- issue is
whether the counterclaim is compulsory or permissive
o Test: Rule 13 says a counterclaim is compulsory if it arises out of the same transaction or occurrence- the court here
further defines this by logical relationship between the claim and counterclaim which exists when they arise from
the same aggregate of operative facts
o Court holds that the claim is compulsory because the loan transaction gave rise to both claims.

Mosley v. General Motors Corp. (1974): Ps joined claims against GM for engaging in unlawful employment practices that
violate Title VII; DC ordered that the claims shall be severed into 10 separate causes of action because they belief the claims
werent sufficient to sustain joinder under FRCP Rule 20(a)
o 8th Circuit concludes that the DC abused its discretion in severing the joined actions. A company-wide
discrimination policy meets 20(a)(1) that they arise out of same series of transaction or occurrences, and the
common question is was there an implementation of a discriminatory policy
o Harper says this is probably no longer good law because the claims are too different

Price v. CTB, Inc. (2001): P Price sued D Latco alleging that the chicken house structure was defective. D filed a Third
Party Complaint that alleges ITW, the nail manufacturer, defectively designed the nails used in the structure. ITW argues it
was improperly impleader under Rule 14
o For impleader to be proper under Rule 14 the claim cant just arise out of the same set of facts, it must be derivative
of the original claim; the original D must be trying to pass all or party of the liability onto the third party.
o Court finds that Rule 14 permits Latco to implead any party who may be liable to it and ITW could be liable for the
warranty surrounding its products.
Kroger v. Omaha Public Power District (1978): P sued Omaha who impleaded Owen Equipment. P then asserted a claim
under 14(a)(3) against Owen and Omaha successfully sought SJ. Court of Appeals extended supplemental jurisdiction to a
claim asserted by a plaintiff to a non-diverse third party defendant. (P was from Iowa, Owen from NB and Iowa).
o SCOTUS says the nonfederal claim was not supplemental and dependent to the original claim (Omaha had used
impleader incorrectly with Owen). Also say it is the Ps own fault that she brought the claim in federal court.
Judgment of the Court of appeals is reversed. This would allow Ps to defeat the statutory requirement of
complete diversity by only suing diverse Ds and waiting for them to implead non-diverse Ds.
o 1367(b) codifies the outcome here (making supplemental jurisdiction for Ps claim against a third party defendant
unavailable in a diversity case) and to reach the opposite result when theres a federal question
Temple v. Synthes Corp. (1990):P (MS resident) filed a diversity case against manufacturer of defective screws used in his
surgery (PN company) in federal court. P also filed a separate state action against the Doctor in LA state court. D
manufacturer filed a 12(b)(7) motion to dismiss the federal suit for failure to join necessary parties pursuant to FRCP Rule
19 (D couldnt implead the doctor under FRCP Rule 14 because it would be him not me). DC order P to join the parties to
dismiss the case, case dismissed. 5th Circuit affirmed dismissal. P petitioned for cert claiming it was error to label joint
tortfeasors as indispensable parties under 19(b).
o SCOTUS granted cert and said there is no rule that joint tortfeasors be named as defendants in a single lawsuit.
Inquiry under 19(b) is not required because requirements of 19(a) are not met- it is not prejudicial for the Ds to be
in separate actions.
Helzbergs Diamond Shops v. Valley West Des Moines Shopping Center (1977): P filed suit seeking injunctive relief in
regards to Ds breach of a lease agreement (couldnt lease to another jewelry store). D moved to dismiss under 12(b)(7) b/c
other store wasnt joined under Rule 19 as a necessary party. Motion denied, D appealed.
o Lords was a party to be joined under Rule 19 if feasible, but they would have ruined jurisdiction so court had to
consider factors under 19(b) and there is no prejudice to other store by not being joined in the action so it can
proceed without them.
o None of Lords rights are being adjudicated and they can bring a separate suit against D and any inconsistent
judgments that D might encounter are their own fault (will have to $$ to get out of 1 lease)

Civil Procedure Outline 7

CLAIM AND ISSUE PRECLUSION

Searle Brothers v. Searle (1978): In a divorce settlement, the court awarded property to mom although the property in
question was alleged to be 50% owned up a partnership of sons and father. Partnership brought a 2 nd action against mom
claiming the undivided 50% interest in property. TC held that claim and issue preclusion barred the action. Partners appealed
because they were not parties to the divorce action and thus couldnt be bound by it.
o They only way they can be barred is if they are found to be in privity with the parties in the 1st case. Privity is a
person so identified in interest with another that he presents the same legal right.
o Issue preclusion is not available to defeat the partnerships claims because they were not parties to the original suit
and there is not sufficient evidence to show that their interest was litigated in the 1 st suit.
Taylor v. Sturgell (2008): in case 1 Herrick filed suit asking the FFA for copies of technical documents, DC granted SJ for
FFA. A month later, his friend, Taylor, submitted a claim seeking the same documents and filed a complaint in DC. DC
concluded the suit was barred by claim preclusion under the virtual representation exception to the rule against
precluding nonparties
o Issue on appeal is whether a virtual representation exception exists.
o Court says no because it would be too confusing to authorize preclusion based on interest and some kind of
relationship between parties and non-parties.
Illinois Central Gulf Railraod v. Parks (1979): husband and wife injured in collision with RR, sued RR with wife seeking
$$ for her injuries and husband seeking $$ for loss of consortium. TC found for wife but not for husband, husband then sued
RR for his own injuries. Claim preclusion doesnt work because husbands cause of actions are distinct claims in the 2
cases; RR seeks to apply issue preclusion by saying that by the TC not awarding Jessie damages in the original suit they
found him to be contributorily negligent.
o Court says no issue preclusion because the lower court jury could have just found that husband didnt meet his
burden in proving damages for loss of consortium, didnt necessarily find him contributorily negligent.
o In almost any other state we would have a good argument for claim preclusion because he should have joined
this claim in his earlier claim!
Parklane Hosiery Co v. Shore (1979): P brought a claim against Parklane alleging that they issued a materially false and
misleading proxy statement. In the 1st case the SEC litigated essentially the same issue and DC entered judgment against
Parklane. In the 2nd case P moved for partial SJ against Parklane asserting they were collaterally estopped (precluded) from
relitigating the issues resolved against them in the SEC action. DC denied the motion saying it violate their 7th Amendment
right to a jury trial. 2nd Circuit reversed saying they had a full and fair opportunity to litigate. Cert granted.
o Gave us 4 factors to establish fairness to D when asserting non-mutual offensive non-party preclusion
o Parklane was precluded because none of the factors were an issue.
State Farm Fire & Casualty Co. v. Century Home Components (1976): over 50 actions were filed against D to recover
for losses from a fire. 3 actions proceeded separately (1 final judgment for D, 1 jury verdict for D reversed, 1 jury verdict for
P). The other 48 actions were consolidated for a hearing on the issue of collateral estoppel.
o Court finds that the prior determinations were inconsistent and that it would be unfair to preclude defendants
from relitigating the issue of liability
o Harper says they should maybe try a few more cases to see if theres a trend or just offer to settle
CLASS ACTIONS
Phillips Petroleum v. Shutts (1985): P filed suit on behalf of himself and 33,000 other royalty owners and the KS court
found for Ps. on appeal D argued that the same DP protections that apply to absent defendants should apply to absent
plaintiffs, but the court found that the burden placed on a class-action plaintiff are not the same order or magnitude as those
placed on an absent defendant.
o Forum state can exercise jurisdiction over an absent plaintiff even if they do not have the adequate minimum
contacts that would support PJ over a defendant
o Gives us 4 DP Protections for an absent class action plaintiff
Walmart Stores Inc. v. Dukes (2011): action brought on behalf of 1.5 current and former female employees of Walmart that
are alleging discrimination relying on 23(b)(2), DC granted their motion and certified the class and Court of Appeals
affirmed.
o Takeaways: common questions require common answers (5-4) and 23(b)(2) does not allow individual relief (9-0).
Cant evade 23(b)(3) by micro-modeling.
o (b)(2) and monetary relief- cant ask for them unless the monetary relief is incidental to the injunctive or declaratory
relief
o The procedural protections attending the (b)(3) class are missing from (b)(2) not because the Rule considers them
unnecessary, but because it considers them unnecessary to a (b)(2) class.
o SCOTUS rejected certifying a class because there wasnt commonality (23(a)(1)); all the cases depending on
different, individual sets of facts

Civil Procedure Outline 8