Issue Preclusion Yes, go on

Yes, was
1. Did case 1 end in a final judgment on the merits? it valid?
No, Fraud, SMJ,
no opportunity to
No, Lack of SMJ, PJ, improper be heard
venue, pre-mature action, failure NO IP
to join party under rule 19

2. Was the same issue actually litigated in case 1?

Requirement may not be satisfied where burden of persuasion is different.

Litigation

Requirement may not be satisfied by mere existence of similar facts

3. Was the issue essential to the judgment in case 1?

Requirement may not be satisfied where the decision could have been based on
alternative theories of recovery.

4. Against whom is IP being asserted? Only AGAINST someone who was a party in
case1 (included parties in privity).

Traditional mutuality- Same parties as in case 1 or parties in

5. By whom is IP asserted? privity. Not required by due process so cts. don’t have to follow it.
In KS state court this is the one to use.

Modern non-mutuality
Offensive non-mutual collateral
estoppel is where D has already
litigated an issue and lost, any P may
Defensive non-mutual estop that defense in 2nd suit.
collateral estoppel is where P
has already received an
adverse judgment on an issue.
Therefore, any D may estop P
from re-litigating on 2nd suit.
 Supplemental Jurisdiction-Our friend who gets things into federal court for us

NO-SuppJD doesn’t apply

Does the main claim

have proper SMJD by Rules
DIVERSITY or FED Q?
13 14 18 20

Can you properly Yes Yes Yes Yes

join additional
parties or claims by:
Is PJ proper NO, Stop

YES

Are joined claims YES, no need for SuppJD

properly in Fed
Ct
NO

1367 (a) Are added claims from the No, SuppJD is not possible
same nucleus of operative facts?

YES

YES Court may grant SuppJD

Is original claim based on Fed Q?

NO

If P is asserting a cross claim/answer

Is original claim based on DVERSITY against 3rd party D: 1) P is still P and 2)
Functionally 1367 (b) knocks it out
YES because 3rd party was joined by rule
14,19,20,24
Who is seeking
SuppJD?
If YES, stop SuppJD is prohibitied.
D-Court P-Does §1367 (b) prohibit
may grant. SuppJD?
Ct. has You can’t have SuppJD over If NO, Ct. may grant SuppJD. Ct. still
discretion claims by Ps who were joined has discretion under (c).
under (c). under rule 14,19,20, or 24
 Claim Preclusion/Res Judicata
1
Is judgment final?
Did case on end in a
final judgment on the
merits? (rule 41b)
YES-There is a final
judgment on the merits
of the case. Go to #2
2 apply, go to #3
Was the claim from the same t/o?
NO, CP does not apply.
Go to #3 to finish analysis
3
Parties
a) Is the suit brought by the
same claimant against the
same defendant?
b) Are the parties in privity?
NO, not bound by CP.
c) Party laboring over
party not present in
suit by involved in
conflict.
NO- Judgment was not on the
merits of the case if case ended
because of SMJ, PJ, venue,
indispensable parties.
NO Claim Preclusion
Yes, CP may
Note: Same t/o is subject to a test.
1) Majority view (Federal law)- A claim means all rights of
relief arising from the t/o.
2) Minority view- (Primary rights theory) You have a
different claim for each right invaded.
ex. Personal injury and Property damage are different.
YES, CP applies, parties are bound.
NO, CP doesn’t apply, Go to b.
Co-Parties in 1st suit YES
YES if they are:
►Members of a class represented in 1st suit
►Controlling reps or agents
►Estates (Executors/Beneficiaries)
►Owners of claim by acquisition
YES, bound by CP
NO, not bound by CP
 Cases are
Removal §1441
removed up only.

Granted
1- Removal requested by D
2-Fed Court has original
jurisdiction
3-If state Court doesn’t have
jurisdiction over claim
originally filed in state ct,
case may be removed to
Federal Court.
Removal is
vertical
§1441 (c)
A state question may be
joined to a Federal question
and the court will decide
everything. This is very
rare. Court may in its
discretion remand all claims
to state court when state
law predominates

Denied Cases are

If a party is a citizen of the remanded back
state to which case will be down
removed, Federal court is not
allowed. (policy)
 Personal Jurisdiction

Step 1: LAS Step 3: FAIRNESS

Long Arm “TNOFP&SJ”
Pennoyer’s 4 traditional bases of PJ: Does D have such minimum
Statute: 1) Served w/process in state contacts with the so that the
Whether forum Step 2: CONTACTS 2) Agent served w/process in state exercise of jurisdiction does not
states statute Minimum contacts or 3) Domiciled in forum offend traditional notions of fair
authorizes PJ purposeful availment 4) D consents to JD play and substantial justice.
over D.
P will argue YES
D will argue NO D’s contacts with forum are D has burden to prove that he
Does claim arise out
systematic and continuous. has no expectation to be hailed
of or relate to D’s
(General Jurisdiction(17-7303), D into court.
contacts with forum? D must present a compelling
can be sued in forum for claim
KS 60-308 b (1- (specific jurisdiction case that the presence of
arising any where in the world). D
13) Which D can be sued in some other considerations
will always Gen. Jur. Is a violation would render PJ unreasonable.
sections apply to forum only for a claim
of due process. Reciept of
this situation? arising in the forum).
revenues from a K negotiated in
Argue both forum state not enough
sides. 17-7303, (helicopter
def. of doing Balancing Test-
Are D’s contacts w/ 1) Forum states
business in KS.
f.s. sufficient such that Asahi- If the burden of interests
D has a expectation to defending suit is greater on 2) P’s interests
be hailed into court? the D it violates T NOFP&SJ 3) Judicial interest
No- 4) Shared state
Contacts interest/social policy
Yes-Contacts are sufficient.
are isolated, Maybe- Contract clauses
random or a Stream of commerce Can negate this
unilateral plus anticipation it 1) forum selection clause (Carnival)
will go to f.s. Must
act of P. do TNOFP&SJ
2) Jurisdictional agreement clause
3) Law selection clause (B.K.)
analysis
 Change of Venue

Transfer 28 U.S.C. §1406 Forum Non Conveniens

Horizontal Move Cure of Defects

State to Foreign Fed to

§1406 (a) requires the venue State Foreign State
Use law of §1404 lay in the wrong district but not
first venue necessarily wrong venue.
Venue can be proper but lay in
St ct. w/in Fed ct the wrong district. Ie. In a Cases are dismissed
Ie. Allis- st. ct to Fed state w/two districts. Venue is and must be refilled in
Chalmers ct. proper in Fed ct. but PJ is not the new forum. This is
KS ct. found in both. a final judgment on the
used case. Law of NEW
Miss. law forum/venue is used.
Also consider Interest
Factors from Piper v.Reyno Transfer as
cure to
defect. Use
law of NEW
Private Interest Factors: venue
1-Relative ease of access to sources of proof.
2-Availability of compulsory process for attendance of unwilling
3-Cost of obtaining attendance of willing witnesses
4-Possibility of view of premises (if appropriate to action)
5-Practical that make trial of a case easy, expeditious and inexpensive

Public Interest Factors:

1-Administrative difficulties flowing from court congestion
2-Local interest in having local controversies decided at home
3-Interest in having the trial of a diversity case in a forum that is at home
with the law that must govern the action.
4-Avoidance of unnecessary problems in conflict of laws or application of
foreign law.
5-Unnecessary burdening of citizens w/ jury duty in the unrelated forum.
 Subject Matter Jurisdiction

Federal
Question Requirement #1
Requirement #2
Complete diversity

§1332

Diver
§1331 Amount in controversy

sity
of CITIZENSHIP §1333-
Must exceed $75,000.
among parties. Admiralty
$75,000.01 is enough.

1. Arising Under §1334-

2. Can’t use as a Bankruptcy
Nobody on one side
defense, the “Well from the same state
pleaded complaint” • If P in good faith assets that §1338-
as anyone on the the amount is over $75,000 it Patent,
other side of the v. controls unless it is a legal trademark,
certainty that she can recover copyright
that much.
Citizenship of
Citizenship of Natural Citizens-decided by
Aliens- • Ultimate amount recovered is
domicile. irrelevant to SMJ (§1333 b)
1-You can only have one domicile at a time. If admitted to
2-Change in domicile takes two things: U.S. for
physical presence in the new state AND while permanent
you are there you must form subjective intent residence, state
to make that state your permanent home. P must have total claims
where domiciled.
against each D of >$75K if D’s
are severally liable.
Insurance companies are Citizenship of Corporations-
citizens of : 1-State where they are incorporated.
2- Their Principle Place of Business.
1-The state where their Where is that?
insured is a citizen. Ex.
Look at: 1) Corp. nerve center-where major For joint liability claims P has a claim of $80K
2-The state where they are decisions are made. 2) Muscle center- use total value (Joint
incorporated. Where corp does the bulk of its activity. against D1 and a
liability-one claim against claim of $20K against
3-The state where they have 3) Most courts will look at everything and
call it “total activity” two people). D2, the claim against
their PPofB. 4) Most P will sue the nerve center unless D2 will not be allowed,
all is in a particular state.
it does not meet the
amount in controversy
Citizenship of unincorporated businesses- look req.
at the citizenship of all the partnes/members. For decedents, minors and
incompetents see 1332c2.
 JOINDER

Rule 13 Rule 18 (for P) Rule 14 Rule 20 (for P)

Counterclaims and Joinder of claims and Third party impleader Permissive
Cross Claims remedies Joinder
(A) Compulsory Counterclaims Must be “if I am
Plaintiff’s Special
D must assert all claims Once P has a claim liable then it is only Rule (or a claimants
arising from same t/o as P’s
against D, P can partial and 3rd party rule)
claim. If not raised now it is must help me pay or
waived. bring all claims P
has against D. reimburse me
(B) Permissive counterclaims You can have
D may raise claims not arising more than on P if
from same t/o as P’s claim. D
must file 12 (b) motions in pre-
Look at the their claims arise
answer to avoid voluntarily P must have an substantive law to see from the same t/o
appearing. Ct. must have original claim. Look if there is a and raise at least
SMJD and SUPPJD over this
to rule 18 after claim connection between one common
claim. Use 1367(a) the parties. question of law or
is filed-use to join
other claims i.e. a contract. fact.
(G) Cross Claims may be
asserted by co-parties but they
must arise from the same t/o.
“him not me” is OK as
a defense but not as a You can have
reason for joinder. more than one D if
(H) D as 3rd party P can their claims arise
assert a counterclaim or
cross-claim using rule 20.
Counterclaim from the same t/o
P will argue D can’t use rule P v. D and raise at least
20 because it is a P rule. D All suits must relate one common
will argue that as claimant to the original t/o. question of law or
he is a P. fact.
Cross Claim
P v. D1, D2
Use logical relationship
test to assess if it is the
same t/o