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If court at any point notices a defect in SMJ, it must kick lawsuit out of federal court
STEP 1: Requirements for federal courts to have the power to hear supplemental (statelaw) claimson test, walk through these step-by-step
1. Identify federal anchoring claim
a. Analyze claim by claim and party by partyyou only need original
jurisdiction (either 1331 FQJ or 1332 diversity) over one claim in the
complaintthis individual claim is a civil action for the purposes of 1367
(Exxon)
2. Identify supplemental claim
a. Supplemental claims must form part of the same case or controversy as
anchoring claim (1367(a))
b. Federal and state claims must emerge from a common nucleus of operative
fact (Gibbs)
i. Probably sufficient if it involves the same plaintiff or defendant
ii. Likely sufficient if it comes out of same transaction
iii. Outer limits are broad/undetermined
3. If anchoring claim is FQJ, then court may exercise jurisdiction on supplemental
claims and parties
4. If anchoring claim is diversity, limits on which supplemental claims and parties may
be attached (1367(b))....if ALL OF THESE ARE MET, THEN NO
SUPPLEMENTAL JURISDICTION (otherwise, go ahead and add!)
a.
Claim made by a plaintiff
Claim made by a plaintiff against a
person made a party pursuant to
FRCP 14 (TPP), 19 (didnt study), 20
(permissive joinder) or 24
(intervenor)
Basic principles
o If a suit could have originally been brought in federal court, then in may be
removed from state court to federal court
! Well-pleaded complaint rule applies (removal only possible on plaintiffs
claims, not on defendants possible defenses)
o Only defendants can remove
o Removal is automatic; federal court then decides whether to remand to state court
! Why?
Fairness to parties: worries that state courts wont decide fairly
(especially with out-of-state Ds removing for diversity)
Judicial administration: dont want state courts sending a bunch of
cases into federal court
o Removal is move from state court to sole geographically-relevant federal district
court
o If court or either party at any time realizes there is no federal SMJ, the case will
be remanded to state court
Applying removal
o Identify relevant events
! Removable event
! Removal
! Motion to remand to state court
o Then, ask these questions
! If P seeking to remand: Did plaintiff motion to remand within 30 days of
removal?
If no, case stays in federal court
If yes, court should remand if any of the following occur
o Case began in defendants home state court and the only
cause for federal SMJ is diversity
o Defendants did not unanimously agree to removal
o Defendant failed to remove case within 30 days of
removable event
o Defendant had consented to state-court jurisdiction (by,
say, filling an answer)
! If D seeking to remove: Has it been more than one year since the case
initiated and the defendant has just discovered diversity?
No removal possible, unless plaintiff acted in bad faith
V. ABSTENTION DOCTRINE
PERSONAL JURISDICTION
CONSTITUTIONAL LIMITS
IN REM JURISDICTION
Against property: court adjudicates ownership of piece of property against the entire
world
o Cases have odd namesThe Nautilus or In re #4 Privet Dr
Test: Court must validly exercise dominion over property (attach property)
o Court will seize it by posting on the property, entering a lien, or publicizing in
state title books (or if small enough actually putting it in vault)
o If physical object, must be within geographical jurisdiction of the state
o If incorporeal, this would require deeper analysis
(Not a jurisdiction question, but keep in mind) Remember for procedural due process,
court must meet notice and opportunity-to-be-heard requirements
QUASI-IN-REM JURISDICTION
Dismisses claim
Enters judgment for P
Enters default judgment for
P (unless lack of IPJ was
clear on face of complaint)
Enters default judgment for
P
o Efficiency
o Needs of interstate judicial system
o Convenience of parties/witnesses
o Desire to provide a forum in which to litigate dispute
Effects test (Calder)
o Broad interpretation: where effects of Ds act are felt, court
may exercise IPJ
o Narrow: need something more than effectsneed express
aiming
o Narrowest interpretation (Griffis)
! 1: intentional tort
! 2: P felt brunt of harm in the forum state
! 3: D expressly aimed conduct at forum state
o Narrow interpretation is likely rightotherwise J.
McIntyre would have met this
Adages for when there is NO jurisdiction
Stream of commerce (J. McIntyre)
Unilateral activity (Hanson, World-Wide Volkswagen)
Blame/domestic law (Kulkoallowing daughter to move to CA
was not a purposeful availment of CA)
Internet jurisdiction (tricky)
Example is Griffis
But Griffis is a messplaintiff must show
1. Defendant committed an intentional tort
2. Forum state was focal point of the plaintiffs injury (brunt
of the injury felt there)
3. Defendant expressly targeted forum state
a. Defendant knew that plaintiff would feel brunt of harm
in forum state, AND
b. Show specific activity showing that defendant targeted
forum state
Implication of this test is: target as broad an audience as possible,
that way you can only be brought under jurisdiction in your home
court
How might you distinguish Griffis and Calder?
o Where is the reputation located?
o Where is the center of the industry in which the reputation
matters?
o In Calder, all of the peripheral damage to reputation
happens in CA because people who hold a conception of
her reputation are in CA
VENUE
Does not apply to cases removed from state court! If a case is removed, assume venue is
proper (should be the federal district embracing that state court)
BASIC PRINCIPLES
1391
Two basic routes to venueyou can pick either one!
1. Residence of defendants (b)(1)
a. Only if all defendants reside in the same state
b. Pick any district in which any defendant resides (there may be multiple valid
venues)
2. Location of substantial events/disputed property (b)(2)
a. Pick a district in which a substantial part of events/omissions/property leading
to claim are located (there may be multiple valid venues)
ONLY if neither of those routes applies (because event/omission/property is outside the US)
(b)(3)
3. Any location where any defendant is subject to personal jurisdiction
Special rules to keep in mind
For individuals (US citizens and lawful permanent residents)
o Reside = district in which she is domiciled
For aliens
o Reside = everywhere
For corporations
o Reside = any district where (if the district were its own state) the corporation
would be subject to personal jurisdiction
! Reside = (probably any) district in state of incorporation
! Reside = the specific district in which nerve center is located
! Reside = the specific district with which corporation had significant
contacts leading to particular claim
! (maybe) Reside = districts where corporation has a
persistent/overwhelming presence (i.e. Walmart in any district)
For unincorporated associations
o Reside = any district where subject to personal jurisdiction
Statutes may further restrict venue for certain types of claims (e.g. patent)
DOES NOT APPLY TO REMOVAL
Alsodefendant may waive right to challenge an improper venue
By declining to/failing to challenge venue
By signing a contract with a forum selection clause
When IPJ/Venue relationship is tricky
Venue (yes) and IPJ (no) J. McIntyre
o Venue because a substantial portion of events happened in NJ (1391(b)(2))
o IPJ no, because federal courts ability to have IPJ is dependent upon state-court
ability to have IPJ (Federal Rule 4(k)(i)(2))
Venue (no) and IPJ (yes)
o Wrong district in right state
Steps for determining if you can add a party or claim (walk through claim by claim)
o Step #1: Do you meet the requirements of a FRCP that allows you to add the
claim?
! Add a plaintiff (20)
! Add a defendant (20)
! Add third party (14)
! Crossclaim (13)
! Counterclaim (13)
! Add any other claim against a party already in the lawsuit (18)
o Step #2: Does the court have SMJ over this claim?
! Option #1: FQJ
If claims basis is FQJ, then yes
! Option #2: Diversity (tricky)
Amount in controversycan aggregate claims by single P against
single D
o Valid: P sues D on $40k contract claim and unrelated $40k
tort claim
Complete diversity
! Option #3: Supplemental jurisdiction (see above for more)
Common nucleus of operative fact
Claims by plaintiffs must not destroy complete diversity (see
above for more, keeping Exxon in mind)
o Step #3: IPJ
o Step #4: Venue
General requirements:
o FRCP allowing addition of party
o SMJ over the plaintiffs
! If adding a party destroys complete diversity, the case cannot be in federal
court
Frequent requirement: same transaction or occurrence
o Same as common nucleus of operative facts test from supplemental jurisdiction
o Basic test
! Logical relationship
! Separate trials would involve substantial duplication of evidence and
time/effort
o Factors (Heyward-Robinson, two excavation contracts found to be same T/O)
! Close and logical relationship
! Same parties
! Same type of work
! Substantially same time period
! Interrelated contractually
! Same insurance policy covered both contracts
! Same evidence would be used in both cases
o
o Same T/O: compulsory [13(a)]
o Not T/O: permissive [13(b)]
o
o Same T/O: compulsory [13(a)]
o Not T/O: permissive [13(b)]
o
o
o
o
o
!
!
!
Once an arrow is pointing in one direction, any other claims may be brought in that
direction
o NO T/O requirement
o i.e. if D has counterclaim against P for breach of contract, then D can also join a
claim against P for a completely unrelated tort action
WARNING: any claims joined by P must have SMJ basis
Consolidation: if actions before the court involve a common question of law or fact, the
court may [Rule 42(a)]
o Join for hearing or trial any or all matters at issue in the actions
o Consolidate the actions; or
o Issue any other orders to avoid unnecessary cost or delay
Separate trials [Rule 42(b)]
o For convenience, to avoid prejudice, or to expedite and economize, the court may
! Order a separate trial for one or more separate issues, claims, crossclaims,
counterclaims, or third-party claims
! Separate trial order must preserve any federal right to a jury trial
o Related: court may order protective measures (including separate trials) to protect
a joined party from prejudice (also embarrassment, delay, or expense) [20(b)]
o Related: court may sever any claim against a party (to prevent prejudice) [21]
Court may, on motion or on its own, add a party [21]
Misjoinder (including violations of diversity) is not grounds for dismissing an action
o Court may, on motion, or on its own, drop a party [21]
Fundamental question: how do we determine whether we apply state law or federal law in
diversity cases?
o Attempt to draw line between substantive law and procedural law
! If substantive, apply state law
! If procedural, apply federal law
1652. State laws as rules of decision
o The laws of the several statesshall be regarded as rules of decision in civil
actions [in federal courts]
! In Swift the laws of several states was interpreted to mean only the
statutes of statesfederal courts were to apply a transcendental general
law in all other circumstances (this has since been overturned)
ERIE RATIONALES
Metaphysical justification
o There is no general federal common law
o Law is created by people/constituenciesit is not natural
! Law is created by a sovereign
! It doesnt matter how states choose to make law (i.e. judge-made or
statutory)
! All state law (decisional/common law and statutory law) is equally the
law of the state
Statutory limit justification (1652)
o Laws of the several states means everything the state has chosen to be law:
statutes, state common law, etc.
Constitutional limit: three different rationales
o Federalism
! Congress has no power to declare substantive rules of common law
applicable in a state
Possible criticism: because Congress has the power to regulate
railroads under the Commerce Clause, why dont they have power
to create railroad-related tort law?
Possible criticism: courts, not Congress, make common law
o Separation of powers
! Courts would be essentially making up the law, which is a violation of the
constitutional role
! Courts making law encroaches on Congresss law-making power
o Equal protection
! Taxicab case highlighted this: there were different remedies available for
in-state and out-of-state plaintiffs
! Irrational/unfair to give different litigants access to different substantive
law systems within a single state
Common law
o Need for vertical harmony (only one system of substantive law within a state)
Common-sense justification
ERIE TESTS
Basic goal of each: apply state substantive law and federal procedural law
o Try to apply the state substantive law (as per Erie)
o Try to apply the federal procedural law (as per FRCP)
Dividing line between substance and procedure is really tricky
On exam, unless screamingly obvious, this distinction does no good
o Screamingly obvious: paper size limits (procedure)
o Screamingly obvious: time limit for filing a response (procedure)
o Screamingly obvious: negligence test (substance)
Statute of limitations (from York)
o Use state SOL rules when doing so would effect the outcome of the case
o Somewhat easy because there is no federal SOL (just multi-factor tests)
On exam, apply the following
Ask whether difference between federal law or state law would be outcome determinative
o If at the moment you are deciding the issue, applying either federal law or state
law would create different outcomes (generally meaning a binary yes/no
dismissal), apply state law
o Then, see which rationale applies (see below)
Oftentimes its easy (when binary)
o Statute of limitations
Sometimes its not easywhat is outcome?
o Class certificationwhether an individual is able to represent a class or can only
represent themselves
o Degree/amount of damages
SEE WHICH RATIONALE APPLIES: depends on what you think Erie was based upon
o If based upon Federalism
! This test applies if Congress is overstepping its role and interfering with
state common law
o If based upon Separation of Powers
! This test only applies if the court is somehow inventing Federal law for
purposes of this case
o If a prudential/commonsense concern
! Only applies if the court is somehow inventing Federal common law
o If Equal Protection concern
! Only applies if parties are non-diverse (Multi-colored taxicab case)
Part 1
o 1A) Look for a valid and applicable constitutional provision or federal statute
! If there is one of these, use federal law
! How to determine if valid and applicable?
Ask: would using federal, rather than state, law change primary human conduct (i.e.
would one of the parties change its pre-litigation conduct to gain an advantage)?
o If yes, use the state law
o If only a litigator would care about the distinction, then apply the federal law
! Note: a savvy business might change its behavior based upon things the
average person wouldnt change their behavior on, so watch out
Rationale: federalism
o Only really makes sense if you believe states should be the regulators of conduct
o Rationale is much weaker now that federal government has huge powers
Important precedent: Walker interpret narrowly (when FRCP violates REA, lie and say
the FRCP doesnt apply)
Part 1
o 1A) Look for a valid and applicable constitutional provision or federal statute
! If there is one of these, use federal law
! How to determine if valid and applicable?
If constitutional provision, its automatically valid
If federal statute, look to find some sort of constitutional basis that
allows Congress to pass it (if it conflicts with state substantive law,
try to construe it narrowly to avoid direct collision)
o Possible constitutional bases: Article 32 (power to create
federal courts), Article 18 (necessary and proper clause)
o 1B) If no constitutional provision or federal statute, look for FRCP (NB: per 2010
exam, the accommodation of interests approach would also apply to federal
common law [forum non conveniens]on test, apply accommodation of interests
approach to whatever you have, be it statute, FRCP, or federal common law)
! FRCP must be valid and applicable in accordance with the Rules Enabling
Act (must not expand, abridge, or modify a state substantive right)
Test: interpret with sensitivity to substantive state
policies/interestsif there is a conflict between state law and
FRCP, try to find a way to narrowly interpret FRCP
If you succeed in narrowly construing, apply state law
Part 2 (see Scalia test, twin aims of Erie)
Rationale
o Federalismneed to preserve state laws
o Fairnesswouldnt be fair to allow a sneak-attack federal rule to make party
liable
Code pleading
o Must put in complaint facts that, if proven, would be sufficient to grant relief
o Justifications
! Allows court to decide if complaint is legally viable
! Court will be able to use the complaint itself to determine whether it can
be dismissed
! Enable the opposing party to adequately respond
Notice pleading
o This is what federal courts had before Twombly/Iqbal
o Point of complaint is merely to put defendant on notice as to
! Nature of the claim
! General facts/legal theory
! Not too many details necessary
o Justifications
! Permit discovery, exchange of information
! Wait to see if trial is warranted until after discovery
o Problems
! In certain cases, discovery process is extremely expensive and timeconsuming
! Discovery can tie up key decision-makers (e.g. John Ashcroft)
Plausibility standard (Twiqbal)
o This is code pleading, essentially, but courts call it notice pleading
o How to apply (i.e. figure out whether complaint is sufficient)
! Cross out all conclusory allegations and formulaic recitations
This is difficult
! Assume the truth of the factual allegations in the complaint
! Decide: do the remaining statements nudge the complaint across the line
from possible to plausible?
This requires you to look very carefully at what the substantive law
requires
o Problem: court is essentially overruling FRCP 8 and the Forms (particularly Form
11)
o Problem: direct contradiction of Swierkiewicz holding on pleading in
discrimination cases
! Swierkiewicz: pleading only needs to give respondent fair notice of what
the petitioners claims are, the grounds upon which they rest, and then
state a claim upon which relief could be granted
Case
Preliminary facts
Swierkiewicz
P forced out
P replaced by person of different
national origin
P has more experience
Parallel conduct
Plus factors
Muslim men
Harsh (unnecessary) detention
Existence of the puddle
Company knows about puddle
Company does not clean up
puddle
Agreement
Discrimination
Negligence
MOTION TO DISMISS
FRCP 12. Defenses
12(b) How to Present Defenses. The following defenses may be asserted by motion (not
pleading):
(1) Lack of SMJ
(2) Lack of personal jurisdiction
(3) Improper venue
(4) Insufficient process
(5) Insufficient service of process
(6) Failure to state a claim upon which relief can be granted
(7) Failure to join a party under Rule 19
o A motion asserting any of these defenses must be made before pleading/answer. If
pleading does not require responsive pleading, any defense may be asserted at trial.
o 12(b)(6) is correspondent to 8(a)(2)
o 8(a)(2) requires plaintiff plead a short and plain statement of the claim
showing that the pleader is entitled to relief
o Twombly and Iqbal are emphasizing the showingentitle[ment] to relief
element of FRCP 8(a)(2)
Policy justifications for motion to dismiss
o Efficiency (dont need to waste time on trial when we know outcome)
o Problem: finding right balance
! Too loose of restrictions: may allow too many non-meritorious cases to go
to trial
! Too rigid of restrictions: may prevent meritorious cases from reaching trial
12 (c) Motion for Judgment on the Pleadings. After pleadings are closedbut early
enough not to delay trial
o This allows defendant to file a post-answer motion for dismissal
o Essentially a post-answer 12(b)(6)
12(f)
o Allows court sua sponte and plaintiff by motion to strike insufficient defense or
any irrelevant materials from a pleading
ANSWERS
PRELIMINARY INJUNCTIONS
BOTH
OLD PROPERTY
Nature of proof
Documentary: less process
needed (Shaumyan)
Medical: less process needed
(Mathews)
Decision maker
SUMMARY JUDGMENT
Genuine dispute means a rational trier of fact could find for the
nonmoving party
VOLUNTARY DISMISSAL
FRCP 41(a)
o P may voluntarily dismiss before D has filed response OR if all parties agree and
few resources have been expended by court on lawsuit
! Dismissal will be without prejudice
! Generally leaves parties in the same position they were in before suit
What happens when prolonged discovery has taken place? (McCants)
o When to allow voluntary dismissal?
! Any time, UNLESS defendant will suffer clear legal prejudice (mere
prospect of another lawsuit is not clear legal prejudice)
! General rule: any point before trial (When is trial? Some courts have
held it is before submission of the case to jury/judge for decision)
o How to grant voluntary dismissal
! If D has been put to considerable expense, make P reimburse D for a
portion of his expenses
JURY INSTRUCTIONS
Basic procedure
o Parties submit proposed jury instructions to judge
! Judge picks the good ones and uses them
o Alternatively, most courts have model instructions that were approved in the
prior case law (approved on appeal)
Challenging an instruction
o If you didnt submit the instruction you think the court should have used, you are
generally unable to argue that instruction should have been used on appeal
(Kennedy)
o If you dont object to an instruction the court chooses, you are generally unable to
challenge the courts instruction on appeal
o Even if a party submits no instructions, the court must give broadly appropriate
instructions (Houlihan, notes case)
o Upon appellate review, jury instructions are subject to a harmless error analysis
(i.e. no reversal/remand/new trial unless its reasonably probable they changed
outcome) (Kennedy)
Rule 52(a)
o Judge must find facts specially and state his conclusions of law with clarity
o Must be sufficient to indicate the bases of his decision
o Findings of fact, whether based upon oral or other evidence, will not be set aside
unless clearly erroneous
o Judges should formulate conclusions BEFORE announcing decision (Roberts v.
Ross)
Policy reasons
o Aid appellate court, by giving clear understanding of basis of decision
o Make definite just what was decided, for purposes of preclusion and estoppel
o Forces trial court be careful in ascertaining facts (better decisions)
Rule 60(b)
Applied very rarely
Will not apply to allow a party to take advantage of post-judgment higher-court decision
that would have entitled that party to win (Title)
Policy justifications
o Limited resources
o Economic efficiency
o Perception of fairness
o Perception of finality
DOES apply to
o Mistake (1 year limit)
HARMLESS ERROR
If there is not reasonable probability that error in trial (i.e. improper jury instruction,
improperly admitted evidence) caused a difference in verdictthen harmless error
applies, and the error cannot be challenged on appeal (Kennedy)
APPELLATE JURISDICTION
Note: in appellate jurisdiction context ONLY, claim = set of facts + theory of relief
Note: defects in appellate jurisdiction can be raised at any time, by court of party (like
defects in SMJ) (Liberty Mutual)
o Claims must not be so interrelated that they should only be appealed as a single
unit (Curtiss-Wright)
! Why? Avoid piecemeal appeals
o Claims must be truly separable (Curtiss-Wright)
o Court must make an express determination that there is no reason for delay and
expressly enter a final judgment on the individual claim(s) (Sears)
! Why? Alert adversely affected party that appeal clock is ticking
! 30 day deadline to appeal that claim
Scenario: D dismisses one of Ps two claims by 12(b)(6)
o P will want judge to issue 54(b) judgment on that claim, so he can immediately
appeal and keep his case together (reducing costs)
o D will want judge to NOT issue 54(b) judgment on that claim, making P wait
until final judgment on ALL claims to appeal
! Delay is almost always in Ds favor (strategic incentivesettlement
becomes less valuable as time passes)
! D can also hope to avoid discovery costs on that dismissed claim
INJUCTIONS
WRIT OF MANDAMUS
Supervisory order from court of appeals ordering district court to fulfill its legal
obligation (do something/stop doing something the court of appeals wants the trial court
to do/stop doing)
Three-part test (Cheney)
o Person asking for mandamus must be about to suffer some harm that couldnt be
undone later (i.e. no other adequate means to attain the relief sought)
o Right to relief must be clear and indisputable (movant bears this burden)
o Issuing court must be satisfied that the writ is appropriate under the circumstances
Examples:
o Denial of request for jury trial
o Judge improperly appoints a master to hear a difficult case (La Buy)
o Order to district court to order restitution (Amy Unknown)
Policy
o Pros: both efficiency and fairness rationales
! Prevent practicing posing severe threats to the proper functioning of the
judicial process
! Prevent usurpation of judicial power
! Prevent clear abuse of judicial process
o Cons: awkwardtechnically a lawsuit against the district court judge
PRECLUSION
CLAIM PRECLUSION
P required to assert (in the complaint) all matters arising out of the same incident (and
against the same party) in one lawsuit
o Operates even if P only asks for declaratory judgment and doesnt assert a theory
of relief
o Only operates against Ps
Three elements required for claim preclusion (write each down and walk through them,
one-by-one)
1. Same claim
Yes: if based upon common nucleus of operative fact, no matter how diverse
or prolific the claims themselves might be (Gonzalez)
This is determined pragmatically (RSJ 24)
o Convenient for trying together
o Conforms to parties expectations or business usage
o Remember: each bond and coupon (also debt, generally) is a separate
claim
! Why? We want to promote the market for bonds and coupons
2. Same party
Yes: substantial control (Gonzalez)
o Power to call the shots over litigation decisions in Lawsuit #1
o Examples
! Insurer in #2 who assumed insureds defense in #1
! Sole shareholder in #2 whose company sued in #1
o Non-examples
! Party in #2 retains same attorney as party in #1
! Party in #2 financed litigation in #1
! Party in #2 testified as a nonparty witness in #1
Yes: virtual representation (Gonzalez)
o Threshold requirements: same identity of interests
o If same identity of interests, it becomes a balancing of the equities
testfactors:
! Actual or constructive notice of the earlier litigation?
! Party in Lawsuit #2 gave actual or implied consent to be bound
by results of Lawsuit #1?
! Party in Lawsuit #2 is closely linked to party in Lawsuit #1 by
business or familial relationship?
Yes: privity
o Person acquires an interest in some sort of property that has already
been the subject of a lawsuit (i.e. through inheritance)
! Example: debt-holder #1 collects on debt and then sells the
right to collect on debt to debt-holder #2debt-holder #2 is
claim precluded from collecting on the debt
3. Final judgment on the merits
INTERSYSTEM PRECLUSION
Bedrock
o 1738: judicial proceedings of state court shall have same full faith in credit in
subsequent courts (state and federal) as they would in the rendering state court
o Article IV 1: Full Faith and Credit clause
Answering an intersystem preclusion problem: identify both source and content of law
o On at least as muchbe sure to point out
! Definitely determined: rendering state law sets the floor
! Undetermined: whether subsequent court can give more preclusive effect
that rendering court would
Rendering Court
State A
Federal (FQJ)
Subsequent Court
State B
Source: State A (FFCC/1783)
Content: at least as much
preclusive effect as State A would
give (point out at least/exactly
possibility)
Source: Federal common law
Content: at least as much
preclusive effect as court of State A
(point out at
least/exactly)exception when
using state law conflicts with
federal interests (probably never)
Justification: vertical uniformity
(Semtek)
We dont actually knowprobably:
Source: Federal common law
Content: Uniform federal rules (dont look to
state law at all), follow Parklane Hosiery and
Blonder-Tongues rules
Federal in State B
Source: State A (1783)
Content: at least as much
preclusive effect as State A would
give (point out at least/exactly
possibility)
We dont actually knowprobably:
Source: Federal common law
Content: at least as much preclusive
effect as court of State A (point out at
least/exactly)
Justification: vertical uniformity (Semtek)
If valid transfer in Lawsuit #1, subsequent court will probably follow the mere change
of courtrooms rule and pretend that Lawsuit #1 happened in the state of original filing
Tricky situations:
o Agency adjudication is Lawsuit #1
! Source: common law
! Content: same effect as the system within which it operates (so State A
agency given same preclusive effect as it would be given in State A court,
federal agency given same preclusive effect it would be given in federal
court)
! Bonus requirement: agency must look like a court (i.e. it must provide
what basically amounts to procedural due process requirements [see
Vitek]) (RSJ 83, not requiring discovery or cross-examination)
! Exception: statute authorizing agency says no preclusive effect to its
adjudications
! Exception: statute authorizing cause of action in Lawsuit #2 says you
dont give preclusive effect to state agency decisions (Title VII, University
of TN)
o Rendering court wouldnt have had jurisdiction to hear claim in Lawsuit #2see
Marrese, below
o Federal statute is basis of Lawsuit #2 (same claim as in Lawsuit #1)
! Generally claim precluded (Migra, no special exception for 1983must
follow rendering states claim preclusion rules)
CLASS ACTIONS
BEFORE FILING
Need at least one claim that meets amount-in-controversy requirement AND all named
plaintiffs must be completely diverse
SMJ
o If FQJ, you are good to go
o If diversity
! Complete diversity requirement applies only to named plaintiffs (i.e. class
representatives) (Ben-Hur)
! Amount-in-controversy only needs to be met by ONE completely diverse
plaintiff (ExxonMobil)
And, you can stack a single plaintiffs claims to meet the amountin-controversy requirement
Where do you file?
o Must be able to get IPJ over defendants
o Want to be able to apply a favorable substantive state law
! i.e. you want to apply state law with no cap on punitive damages
According to Walmart, courts may need to go into the merits on thesethey are not mere
pleading standards
1. Numerosity [23(a)(1)]
So that joinder would be impracticable
More than 40: yes
Less than 22: no (join using Rule 20)
22-40: depends upon size of individual claims and geographic dispersion
2. Commonality [23(a)(2)]
Must be at least one single common question of law or fact (Walmart)
o Note, having substantially different substantive state laws in play may
produce problems here (Philips Petroleum)
Walmart sets super high bar
o Same injury (suffering violation of same law is not same injury)
o Must have common contention that is capable of classwide resolution
Due process: forum state may exercise IPJ over absent monetary class members
WITHOUT MEETING MINIMUM CONTACTSso long as these requirements are met
(Philips Petroleum)
o Notice (standard, reasonably calculated)
o Opportunity to be heard/participate (in person or through counsel)
o Opportunity to opt out
o Adequate class representative
No such due process requirement has been articulated for other class types
HCOL (both FFCC and due process concerns) (Philips Petroleum, KS court cannot apply
its own law when the vast majority of claims have no relationship to KS)
o Rule: when multiple states laws could apply, forum state can use its own laws
if
! Has significant contact OR significant aggregation of contacts to the
claims
! Such that the contacts create state interests
!
!
Such that the use of forum state law is not arbitrary and unfair
IMPORTANT: parties should expect that forum state law could control
when making primary conduct decisions
Even if class action filed for the sole purpose of settling, still must meet 23(a)
prerequisites and one of the 23(b) types (Amchem)
Settling a class action
o Notice of settlement must be given to class members (for ALL 23(b) types)
! Why? Fairness: ensure members are getting a good deal
o For monetary [23(b)(3)] classes, must give opportunity to opt out
o Class members can object to the settlement
! Attorney represents that person in order to object to the settlement
o Settlement must be approved by the court
! On objection from class member or on its own, court can refuse to agree to
the settlement
This forces further negotiations to find a settlement that protects
the interests of the class
ACCESS TO JUSTICE
Turner v. Rogers (Handout)
Civil contempt due process
Note: no right to counsel here, despite the fact that physical liberty is at stake
What do we need to provide pro se litigants (safeguards)?
1. Notice to the defendant that his ability to pay is a critical issue in the contempt
proceeding
2. The use of a form (or equivalent) to elicit relevant financial information
3. An opportunity at the hearing for the defendant to respond to statements and questions
about his financial status (e.g., those triggered by his responses to the form)
4. An express finding by the court that the defendant has the ability to pay
Greiner: whats the solution?
If you give people lawyers, you create more procedures and make things more
complicated (Powells concurrence in Vitek)
Maybe: More fair in the aggregate to not appoint lawyers and reform the way that court
procedures work in order to make them more friendly to pro se litigants
ABAs civil Gideon proposal: right to counsel in any adversarial hearing
(administrative or civil) where basic human needs are at stake (food, shelter,
susbsistence/income, critical family issues)
Why might we appoint lawyers?
Change the outcome
o Legal aid orgs
Uphold belief in the legitimacy of the system
Number of cases in a typical state in family law where one of the parties is appearing without a
lawyer: 80%
In order to have enough attorneys to take care of the expressed civil needs in the state of NY:
would have to multiply budget by 182
Simplifying the system
Forms
Turner was the first case where SCOTUS explicitly recognized that the choice about how to
structure the system and whether to provide a lawyer are the same choice (you can get away with
not providing a lawyer if you change the proceding)
Role of cost of law school