Civil Procedure - Spring Outline 2009

CIVIL PROCEDURE OUTLINE
TABLE OF CONTENTS
Table of Contents...................................................................................1
Due Process...........................................................................................4
Sources of Due Process Requirements....................................................................4
Preliminary Remedies..............................................................................................6
Permanent Remedies..............................................................................................7
The Pleading Process.............................................................................8
The Pleading............................................................................................................8
Answers to Pleadings.........................................................................................10
Amendments......................................................................................................... 12
Joinder of Claims and Parties................................................................13
Joinder of Claims................................................................................................... 13
Joinder of Parties...................................................................................................15
Impleader by Defendant........................................................................................15
Impleader by Plaintiff............................................................................................17
Indispensible Parties..........................................................................................17
Consolidation and Separate Trials.........................................................................19
Discovery.............................................................................................20
Purpose of Discovery..........................................................................................20
Scope.................................................................................................................... 20
Attorney Work Product.......................................................................................22
Asserting Privilege..............................................................................................23
Costs Shifting........................................................................................................23
Judgment Mechanisms..........................................................................24
| Spring 2011 | Civil Procedure 1

Summary Judgment...............................................................................................24
Judgment As a Matter of Law................................................................................25
Judgment Notwithstanding the Verdict..................................................................26
Personal Jurisdiction.............................................................................27
Rule 4(k)............................................................................................................. 30
Long arm Statutes..............................................................................................30
Purposeful Availment............................................................................................31
Indirect Jurisdiction.............................................................................................33
General and Specific Jurisdiction........................................................................33
Tag Jurisdiction...................................................................................................37
Minimum Contacts................................................................................................38
Interstate Stream of Commerce ........................................................................39
Venue..................................................................................................40
Statutory Basis......................................................................................................40
Forum Non Conveniens......................................................................................42
Subject Matter Jurisdiction....................................................................42
Federal Question Jurisdiction.................................................................................43
Well Pleaded Complaint Rule..............................................................................44
Diversity Jurisdiciton..............................................................................................45
Defining Residency.............................................................................................46
Removal.............................................................................................................48
Remand..............................................................................................................48
Supplemental Jurisdiction......................................................................................49
Erie Doctrine........................................................................................51
Erie Doctrine Checklist..........................................................................................51
Conflicting Rules Test.........................................................................................52
Outcome Determinative Test.............................................................................53
Finality................................................................................................55

Claim Preclusion....................................................................................................56
Exemptions to Res Judicata................................................................................58
Claim Preclusion by Nonparties..........................................................................58
Issue Preclusion.....................................................................................................59
Essentiality Requirement...................................................................................61
Non-Mutual Issue Preclusion...............................................................................62

DUE PROCESS
SOURCES OF DUE PROCESS REQUIREMENTS
Fifth Amendment – “No person shall be deprived of life, liberty, or property

without due process of law.”
Fourteenth Amendment – “No State shall deprive any person of life, liberty, or
property without due process of law.”
Federal Rules of Civil Procedure – Notice of rights and opportunity to be heard

is required in all civil actions.
FRCP #1: “These rules shall be construed and administered to assure the
just, speedy, and inexpensive determination of every action.”
POLICY UNDERPINNINGS
• Fair notice
• Justice
• Rights
• Minimized expense
• Equality
• Expediency
• Accuracy
• Legitimacy of Process
DUE PROCESS APPLICATIONS
• Hamdi v. Rumsfeld 542 US 507 (2004)

F: Mr. Hamdi was born in Louisiana, then moved to Saudi Arabia and spent
much of his childhood there. While living in Afghanistan he was captured and
interrogated by US Coalition forces. They have held him since 2001 in
Guantanamo Bay without trial.
R/H: Mr. Hamdi is a US Citizen who has a right to claim a writ of habeus
corpus. The US military cannot deprive him of his rights of liberty without a
trial. US citizens detained as enemy combatants have a right to
challenge their detention at an evidentiary hearin after being

removed from a combat zone. However, the US military is allowed to use
hearsay evidence at trial given their public interest in maintaining the peace.
• Goldberg v. Kelly 394 US 254 (1970)

F: The director of social services in New York City revoked welfare benefits
from some recipients from time to time. The benefits would first be removed,
then recipients could challenge the revocation through a letter of appeal and
eventually an evidentiary hearing (although these options were never
communicated to the recipients).
R/H: Welfare recipients deserve to have an evidentiary hearing prior to the

suspension of benefits – this right should be communicated to the recipients
with enough time to prepare a defense. For considering what forms of
due process are owed to citizens, a calculation should be performed
and considered. The interests of the private citizens should be
weighed against the interests of the governmental organizations.
Additionally, the consequential gravity of an erroneous judgment and the
existing procedure should be considered in these decisions. How much
process is due? That depends on how direly the citizens need something,
how awful a false judgment is, and how much the government loses by
granting due process
• Fuentes v. Shevin 407 US 67 (1972)

F: Π leased a stove and phonograph from the defendant, then had some
dispute about the service plan. The defendant filed a writ of replevin to
repossess the goods, which the sheriff did immediately. The writ does not
require any evidence or claim that the goods are the property of the movant
– it is done automatically as precursor to trial.
R/H: A person’s property shall be deprived without due process of

law, including a chance to refute the claim in court and fair notice of
the challenge to the property. It is inconsequential whether the property
was only being rented or leased or if the property is a necessity for life.
Property is property; the Fifth Amendment demands fair notice and a chance
to refute the claim.
• Matthews v. Eldridge 424 US 319 (1976)

F: Π receives disability benefits, but they were revoked after the Social
Security administration determined that his disability had come to an end.
He challenged the constitutionality of the suspension of benefits under
Goldberg v. Kelly.

R/H: Plaintiff does not deserve a pre-suspension evidentiary hearing because
his situation is not as desperate as that of welfare recipients and his disabled
status can quickly be evaluated with medical documents rather than a
protracted welfare review. This ruling amends the standard established by
the Goldberg ruling and contextualizes it for each given situation. It affirms
the argument that due process is a right that is dependent on specific
circumstances.
GOLDBERG DUE PROCESS TEST

1. The gravity of interest in the citizen’s right to property
2. The interest of the government organization in quick and speedy action.
3. The consequences of an erroneous ruling and the existing procedure.
PRELIMINARY REMEDIES
IN GENERAL
 Preliminary remedies are obtained before any judgment is reached on the

merits of the claim.
 These remedies are requested via per-trial motion
 Requires that movant show immediate and irreparable injury, loss, or

damage will result through a complete showing of facts in affidavit or
complaint.
 The movant certifies to the court in writing the efforts which have been made
to give notice and reasons supporting the claim that notice should not be
required.
TYPES OF PRELIMIARY REMEDIES

A. Preliminary Injunction – so that more harm is not accumulated during course
of litigation.
a. Requires hearing before the judge, during which court will consider:
i. Risk of irreparable harm
ii. Probable harm to injunctee
iii. Likelihood of success of case
iv. Public interest in granting the injunction.
b. Lasts until the final judgment of the case.
c. Preliminary injunction is meant to freeze the conditions existing at
beginning of trial so that conditions do not get worse as litigation
proceeds.
B. Restraining order – so that parties do not interact with one another before
trial begins.
C. Gag order – so that more damaging information is not released by one party
against another.

D. Sequestration – seizure of property compels a party to appear in court and
defend on the merits.
a. Due Process requirements of notification and hearing before
sequestration
b. Cannot be used to indirectly assert personal jurisdiction over
defendant.
E. Attachment – holds property in escrow so that defendant cannot dispose or

move the property; this is similar to collateral in that the property should be
held in case judgment is entered against the property owner there will be
something to confiscare as remedy.
F. Garnishment – court can hold funds/wages of the defendant in order to pay

the Π.
G. Declaratory Relief – Court will issue an official statement of the rights and
characterization of the acts of the parties. This does little to help one’s
desperate condition, but carries force when combined with an injunction,
restraining order, or attachment of property.
PERMANENT REMEDIES
A. Damages
Damages request must be accompanied by a showing of how the Π has been

injured.
a. Nominal injury – rights were violated, so compensation is appropriate

i. Loss of economic stimulus is not recoverable.
b. Compensatory damages – property or person was damaged, so damages

replace loss of property or health.
c. Punitive damages – instituted to compensate for pain and suffering

(intangible harm). Punitive damages are also used to deter future
deviance and punish wrongdoing.
B. Permanent Injunction
When monetary damages are inadequate to recover from harm, the court can
issue a permanent injunction ordering the defendant to do something or
refrain from doing something. This is only appropriate when essential and no
other remedy is available.
C. Declaratory Judgment
Same as preliminary judgment above. The court’s open declaration

characterizes an act, a person, or a piece of property as just/unjust,
legal/illegal, belonging to one party, etc. A declaratory judgment carries little
force individually, but it sends a message to society.

THE PLEADING PROCESS
THE PLEADING
REQUIREMENTS
A. Pleading must comply with FRCP 8.
B. A pleading must set forth a brief statement of the facts so as to give
the court and the defendant notice as to what the lawsuit is about.
C. The pleading must demand judgment for the plaintiff.
D. The pleading must cite a law and state the grounds for relief.
E. The pleading must show it is plausible the plaintiff will win the action.
It must show why the plaintiff is entitled to relief.
F. Great specificity is required when a request for damages is made.
G. Pleading must be served upon defendant within one hundred and
twenty days after the complaint is filed, as required by FRCP 4(m).
H. Each cause of action must be stated and the elements briefly
described.
I. The pleading must be signed by the attorney filing it, and the names,
phone numbers, and addresses of all parties and attorneys included in
it.
PURPOSE OF THE PLEADING REQUIREMENTS

Remember that the purpose of the Federal rules of Civil Procedure is to ensure
just, expedient, and inexpensive determination of each civil action.
The purpose of Rule 8 is to give the defendant notice of the claim and enough
information about what the suit is about. The pleading helps the defendant to
prepare to defend the case on the merits and to help the court prepare and
organize the litigation efficiently.
• Conley v. Gibson 355 U.S. 41, (1957)

F: Brotherhood of Railway and Steampship Clerks Local Union no. 28
abolished 45 jobs held by the Πs in May 1954. In truth the 45 jobs were not
abolished but were filled by whites as the negroes were ousted. Πs filed suit
against railroad union, charging defendants with failure to represent clients in
good faith and violating Πs rights under the Railway Labor Act. Defendants
filed a 12(b)(6) motion, asserting the complaint did not have enough detail to
establish a claim against them.

R/H: Supreme Court unanimously reversed the holding, finding that the
purpose of the complaint is to provide a brief statement of the facts and put
the court and the defendants on notice of what the lawsuit is about. A
complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief. Rule 8(a) has
a different set of requirements that the common law requirements of
complaints.
• Diguordi v. Durning 193 F.2d 774 (2nd Cir. 1944)

F: Π issued a home-made complaint without the assistance of an attorney,
which does not state legal causes of action. Interpreted he might be suing
for fraud, breach of contract, and negligence. Defendants filed a 12(b)(6)
motion which was granted by the District Court.
R/H: Although the Π is decidedly inarticulate and wrote out a home-made

complaint rife with spelling and grammatical errors and shows no deference
to legal forms and procedure, he has provided a brief statement of the case.
The pleading requirements of Rule 8(a) are quite lenient and he has
provided a brief statement of the facts so he should be allowed to
stay in court. Admittedly, he should hire an attorney and prepare to
seriously argue this case.
HEIGHTENED PLEADING REQUIREMENTS

Some actions require a higher degree of specificity because of the nature
of the offense.
a. Fraud, anticompetition claims, misrepresentation, and condition of

the mind claims require an advanced level of particularity. These
elements must be described in great detail.
b. The complaint must focus on the time, place, and content of the
alleged violations.
c. However, the heightened pleading requirements do not apply to

civil rights violations.
• Leatherman v. Tarrant 507 U.S. 163 (1992)

F: County police department tore apart Π’s home without warrant, shot and
killed the dog, spraying blood and brains all over the walls, then hung out in
the yard and drank beer until they decided to leave. They also entered
another Π’s home without identifying themselves, beat him and other
residents savagely, searched the home, found nothing, and left. Defendants

filed a 12(b)(6) motion to dismiss, which was granted by the District Court
and affirmed by the Fifth Circuit.
R/H: It was not reasonable to hold a heightened pleading requirement

in civil rights cases involving a municipality because of the lenient
requirements set forth in FRCP rule 8(a)(2) which supersede. The Πs
need only submit a plain and short statement of the claim, and they have
done so. The heightened pleading requirements from Eliot v. Perez does not
apply to civil rights violation cases because the interest of the private citizen
for once outweighs the desire of the public to reduce costs of litigation.
• Bell Atlantic v. Twombly 550 U.S. 544 (2007)

F: Πs filed suit against the Bell Atlantic Corporation, alleging monopolistic
and anticompetitive behavior in direct violation of the Sherman antitrust act.
Defendants filed a 12(b)(6) motion which was granted. The Circuit court
affirmed.
R/H:The Supreme Court rejects the old pleading standards from

Conley v. Gibson and relies on a new “plausibility” standard. Sherman
Antitrust Act and following litigation says that conscious parallel behavior is
not enough to demonstrate conspiracy or monopolistic behavior. There must
be an expressed agreement not to compete in order to establish a case for
monopolistic behavior. Even if everything in the complaint is true, there is
still no showing on the part of the Π to prove that there was anticompetitive
behavior.
PLEADINGS SUMMATION
Most pleadings are subject to a lenient pleading standard from FRCP 8(a).
Some claims require a higher pleading standard, such as fraud, anticompetition,
misrepresentation, and state of mind. In general, the pleading must put the
defendant and court on notice and help them prepare to litigate the case on the
merits.
Sanctions – FRCP 10. No improper purpose such as harming or harassing the

defendant.
ANSWERS TO PLEADINGS
All answers to complaints must comply with FRCP 12. The answer must be sent out
within twenty days of being served with the complaint as required by rule 4(m).
The answer should include:

i. Admissions and denials of the plaintiffs averments.
ii. Affirmative defenses
iii. 12(b) defenses
iv. Counterclaims and cross-claims

v. Motions to implead a third-party defendant
vi. 12(e) Motion for a more definite statement
vii. 9(b) motion for failure to state a fraud claim with particularity
viii. Motions to reduce the number of parties
ix. Motions to claim a jury trial
8(B) ADMISSIONS
Defendant can admit, deny, or claim no knowledge of the claims in the complaint.
• Admitted facts are taken as legal truth – not debatable at trial.
• Denials must be specific and made in “good faith”.
• Claim of ignorance must be made in “good faith”. A defendant must make an

effort to investigate the material and find out the truth of the matter
asserted.
8(C) AFFIRMATIVE DEFENSES

This rule lists a substantial number of affirmative defenses a defendant can rely on
to justify his or her actions.
• Accord and satisfaction • Injury by fellow servant

• Arbitration and award • Laches
• Assumption of risk • License
• Contributory negligence • Payment
• Discharge in bankruptcy • Release
• Duress • Res judicata
• Estoppel • Statute of frauds
• Failure of consideration • Statute of limitations
• Fraud • Waiver.
• Illegality
12(A) ANSWERS
Defendant has twenty days to respond. If defendant files a preliminary motion,
defendant has until ten days after the motion has been ruled on.
12(B) DEFENSES
Some 12(b) motions relate to the merits of the case
12(b)(1) Lack of subject matter jurisdiction
12(b)(2) Lack of personal jurisdiction
12(b)(3) Improper venue
12(b)(4) Insufficient process
12(b)(5) Insufficient service of process
Some 12(b) motions do not relate to the merits of the case.

12(b)(6) Failure to state a claim for which relief can be granted.
• This is a common defense.
• When evaluating this defense the court must consider the facts
asserted in the complaint in the light most favorable to Π.
• If Π has failed to state enough detail (“no set of facts”) the action will
be dismissed.
• Likewise, if there is no law in existence that grants remedy, the claim
will be dismissed (political question doctrine).
• If the facts the plaintiff states and the cause of action claim do not
match one another (wrong cause of action), the action should be
dismissed.
12(b)(7) Failure to join an indispensible party as required by Rule 19.

 See section of joinder of claims/parties for more information.
AMENDMENTS
A. Federal Rule of Civil Procedure 15 governs amendments.
B. Π is entitled to amend the complaint once before the answer has been
served, or within twenty days after serving the defendant.
C. Otherwise, amendment is only allowed when given leave by the opposing

party or by the court. Rule 15(a)(2) provides: “The court shall freely give
leave when justice requires”.
NEW EVIDENCE
If a Π attempts to introduce evidence in trial that is not described in the
pleadings the other party may object. The court may allow the pleadings to
be amended so as to include mention of the evidence in question if doing so
will aid in presenting the case on the merits but not if doing so would
prejudice the court in deciding the case on the merits. Bringing in new
causes of action, defenses, evidence, or claims are all subject to FRCP #15.
SUPPLEMENT PLEADINGS
Additionally, if events have transpired since the date of the pleadings the
pleading may be amended to include those events, even if doing so would
correct a lacuna in the original pleading. These events also may be beyond
the statute of limitations, even though the original events mentioned in the
pleading are not. Adding new events to an original pleading via amendment
after discovering the events is done so at the discretion of the court's just
judgment. Relating back to previous events in pleading amendments is
detailed by FRCP Rules 15(c)(1) and 15(c)(2).
RELATING BACK TO THE ORIGINAL CAUSE OF ACTION

A. The amendment relates back to the date of the original pleading when:

(1) The claim arose out of the conduct set forth in the original pleading,
(2) The named party has notice of the institution of the action, and knew
or should have known about the lawsuit but for the mistake in
identification.
(3) There is an absence of prejudice in maintaining a defense on the

merits.
• Singletary v. PADOC, 266 F.3d 186 (3rd

Cir. 2001)
F: Π filed negligence action on October 6, 1998, two years after the

negligent transaction or occurrence. She just barely made the statute of
limitations by one day. Π moved to amend the complaint on July 28, 2000,
nearly two years after filing the complaint to include the names of
psychologists who negligently treated the decedent.
R/H: The lack of identification was a result of lack of knowledge, not mistake
of fact. Regan’s behavior is certainly the issue stated in the original 1998
complaint, although he is described as “Unknown Corrections Officer”. Notice
is the main concern of the court, and because Regan did not receive notice of
the litigation within 120 days of the filing of the complaint he would be
prejudiced in mounting a legitimate defense at this late date. Although the
amendment relates back, it will not be allowed when the mistake
was due to a lack of knowledge and the statute of limitations has
lapsed.
JOINDER OF CLAIMS AND PARTIES
JOINDER OF CLAIMS
A. Rule 13 allows a party to file cross-claims and counter-claims against other

parties in a civil action. The rationale behind this rule is expediency and
efficiency; claims that parties have against one another should all be
compiled into the same action in order to expediently argue similarly-related
material in the same suit.
B. Rule 13(g) Cross-claims: claims by a defendant against a codefendant.
Indemnity claims are one type of cross-claims. A cross-claim requires a
codefendant that was joined by the plaintiff.
C. Cross-claims are not to be confused with Rule 14 contribution/indemnity
claims against a nonparty. Cross-claims are towards codefendants, while
Rule 14 impleader claims are against third party defendants.
D. Counter-claims: claims by a defendant against a plaintiff

E. Rule 13(a) Compulsory claims: Any claim that arises out of the transaction or
occurrence that is the subject matter of the original complaint is a
compulsory claim that must be filed at the time of the pleading; failure to do
so waives right to bring claim in the future.
F. Rule 13(b) permissive claims: any claim against an opposing party that is not
compulsory is permissive and may be raised at a later date.
G. Rule 18: Once a claim has been filed, the complainant may join as many
claims as he has against the defendant, regardless of relevance or
chronology. All of the claims may be joined; the only common element
required is that the plaintiff and defendant be the same.
a. However, must consider jurisdiction and venue issues. 12(b)(1), 12(b)
(2), and 12(b)(3) motions may dismiss the joined claims.
JOINDER OF CLAIMS ISSUES
 Does the court has subject-matter jurisdiction to hear this claim?

 Are the issues of fact and law raised in the claim and counter-claim
roughly the same?
 Would Res Judicata bar bringing a similar suit?
 Is the same evidence used to support or refute each claim?
 Is there a relation between the original claim and the joined claim?
• Kedra v. City of Philadelphia, 454 F. Supp 652, (Eastern District of

Pennsylvania, 1978)
F: Π filed suit against defendant police officers for separately and in concert
engaging in discriminate and unlawful use of force in the detention, battery,
and search of the Πs . Their complaints stem from different dates and
incidents involving different police officers in each case. Defendants filed a
12(b)(7) defense.
R/H: All of the claims stated by Πs arose out of the same series of
transactions, and therefore satisfy FRCP 20(a) for proper joinder of parties.
Because not all of the defendants took part in events on Dec. 22 and on Dec.
29th, it may not be fair to make those defendants sit through a trial
summarizing all of the claims. When there is a question of fact common to all
of the defendants in the action it will be just to join all of the claims and
defendants in the same lawsuit.
• Podhorn v. Paragon Group, 795 F.2d 658, (8th

Cir. 1986)
F: Πs brought action against defendants for constructive eviction, breach of

implied warranty of habitability, false swearing, false credit report,

negligence, abuse of process, conversion, and initiation of malicious
prosecution. The defendant had earlier brought an action against Π for
failure to pay rent and the Πs did not raise this cause of action then, so they
should not be allowed to raise it now.
R/H: The action Πs would like to file should have been filed as compulsory
counterclaim in the previous action because it arose out of the same
occurrence that gave rise to the defendant’s earlier claim in state court – the
Πs’ tenancy at defendant’s apartment. Thus the motion to amend is denied
and by extension the motion to dismiss the complaint is granted.
JOINDER OF PARTIES
A. Rule 20 provides for permissive joinder of parties.

B. Plaintiffs may join in an action when
a. They assert a right to relief jointly or severally with the other plaintiffs
arising out of the same transaction or occurrence and
b. There is a question of law or fact common to all plaintiffs that will arise
in the action.
C. Defendants may be joined in one action when
a. A right to relief is asserted jointly or severally against them arising out
of the same transaction or occurrence that gave rise to the original
action and
b. There is a question of law or fact common to all defendants.
D. In general, joinder of parties allows for quicker and more efficient
adjudication of the claims. It combines actions for efficiency and time’s sake.
a. Res Judicata incentivizes parties to use the joinder mechanisms
broadly.
IMPLEADER BY DEFENDANT
Federal Rule of Civil Procedure 14 permits a defendant to implead a nonparty who is

liable to that defendant for all or part of the claim against him or her. The
defendant may not want to take complete responsibility for a claim by a Π and by
impleading others makes them share the liability with im.
The defendant, acting as a third-party plaintiff, must obtain the leave of court to do
so if this motion is made more than ten days after filing its Rule 12 answer.
Exception: a defendant can bring in a third party any time after
commencement of the action for derivative liability.
Standards: The impleader does not require that the joined party is related to the
same transaction or occurrence giving rise to the original claim. The basic
requirement in Rule 14(a) is a derivative liability requirement.

⇒ Indemnification is a relationship that may exist between parties by contract
or as a matter of state law. i.e. a general contractor is indemnified from
liability for the actions of his subcontractors.
⇒ In order to successfully pass a motion to join third-party defendants, the
defendants have to prove that the third-party defendant is liable for all or
part of the claim against them.
• Gross v. Hanover Insurance Company, 128 F.R.D. 53,

(S.D.N.Y. 1991)
F: The Π owned a jewelry store managed by Joseph and Anthony Rizzo. The
store was robbed of $268,500 worth of diamonds while Anthony was
watching the store. Defendant filed a Rule 14 motion to implead the Rizzo
brothers who may be liable to the defendant for the loss of the diamonds.
R/H: The defendant’s third party claims arise from the same occurrence that
came rise to the original pleading. The prejudice suffered by the Π is
outweighed by the benefits of more efficient litigation created by granted the
motion for impleader. The standard for a Rule 14 joinder is quite low;
the possibility for liability to the third-party Π is enough to join the
third party defendant(s).
IMPLEADER REQUIREMENT
• The motion for impleader must join a nonparty.

• The third-party plaintiff must have a claim against the nonparty.
• The third-party defendant must be liable to the third-party plaintiff for all or
part of the original claim against it (indemnity standard).
SOURCES OF LIABILITY
• Contribution: join tortfeasors.

• Indemnification: employers are liable for the torts of their employees.
• Subrogation: an insurance company may be liable to an insured defendant.
RIGHTS OF THE IMPLEADED

The third-party defendant must then assert any Rule 12 defenses to the impleader
motion, as well as Rule 13 counter-claims and cross-claims against any other parties
in the action. The third-party defendant can also file Rule 14 motions to implead a
nonparty liable to it for any or part of the claim against it by the third-party plaintiff.
Joinder Example from Practice Exercise 12

{
Rule 18, 20 13(g), 13(h)
Joinder Randall Dee Crossclaim
Carpenter Ultimate Auto

Rule 8(a)
complaint Cityof Lowell Rule 14
Impleader
McGill'sGarage
IMPLEADER BY PLAINTIFF
If the defendant asserts a counter-claim against the plaintiff, the plaintiff can
implead a third-party defendant if that nonparty is liable to the plaintiff for any or all
of the claim against it. This joinder may be compulsory or permissive. Consult
Rules 18, 19, 20, and 21.
Rule 18(a) allows a plaintiff to join as many claims as it has against the same
defendant, even if the claims are unrelated.
INDISPENSIBLE PARTIES
Rule 12(b)(7) can dismiss a case for failure to join an indispensible party.
• Temple v. Synthes, 492 U.S. 1048

(1991)
F: Π underwent surgery on his back during which some screws were inserted
into his back. The screws broke off after surgery and caused him great
injury. He brought products liability action against the manufacturer of the
screws, but not the doctor or the hospital. The defendant filed a 12(b)(7)
motion.
R/H: Joint tortfeasors are permissive parties, not compulsory.

Therefore, Rule 19 does not always require the joinder of all tortfeasors.
Rule 19 defines indispensible parties. A party is indispensible if

• The court cannot afford complete relief among existing parties in the absence
of that party.
• That nonparty claims an interest relating to the subject of the action and may
be impaired from protecting that interest if s/he is not joined as a party.
o Ex. A poisoned mine worker wants compensation for illness caused
when the union brings action against the mine owner for poisoning the
union.
• Leaving that nonparty out of the action will expose an existing party to
multiple liability.

o Ex. An insurance action wherein multiple people named Robert Paulson
attempt to claim payment from the insurance company for an
insurance policy taken out in that name.
• If the joinder of the indispensible party is not feasible, the court may simply
dismiss the action completely. The court has to evaluate the soundness of
such an action and the interests served by doing so.
Rule 20 defines permissive joinder of parties.

• Nonparties may join the lawsuit if they share a claim related to the same
transaction or occurrence that is the subject matter of the original complaint.
• When a right to relief is asserted jointly or severally by or against a nonparty,
the joinder of that party may be permissive.
• This permissive joinder requires that there be a common question of law or
fact between the existing parties and the nonparties.
• Joint tortfeasors are not indispensible parties! They are permissive parties.
• While co-obligees are always indispensible parties, co-obligors may or may
not be.
• Daynard v. Ness, 184 F. Supp 2d. 55

(D. Mass. 2001)
F: The Π was a law professor working with numerous law firms on their
litigation against big tobacco in the 90s. He was promised compensation but
never received any. He brought suit against Mississippi and South Carolina
law firms to enforce their contract and pay him for his services. Both
defendants moved to dismiss under 12(b)(7).
R/H: (1) Joint tortfeasors are not necessary parties. (2) Co-obligors may be
necessary, but generally are not indispensable. (3) An action to set aside a
contract requires joinder of all parties to the contract. For purposes of
Rule 19, “indispensible parties” is a subset of “necessary parties”,
not a mutually exclusive category.
MISJOINDER
A. Rule 21 governs misjoinder and nonjoinder.
B. A misjoinder is essentially where a Π has erroneously joined multiple

defendants in a lawsuit under Rule 18 or 20 where the defendants do not
have in common the transaction or occurrence giving rise to the original
complaint. Therefore, the defendants should not be codefendants
because they have little in common with one another.
C. Misjoinder is not grounds for dismissal. The court may add or drop a party
on its own terms in the interest of justice.
D. The court may also order the severance of the action and thereby split it
into multiple actions.

INTERPLEADER
A. Persons with claims that may expose a plaintiff to double or multiple liability
may be joined as defendants and required to interplead.
B. Rather than waiting for all the separate parties to sue a defendant, the
defendant can become a plaintiff and sue all of the potential plaintiffs under
an interpleader cause of action. The court is then asked to resolve which of
the interpleader defendants have a claim against the interpleader defendant.
CONSOLIDATION AND SEPARATE TRIALS
a. The judge may order the action split into different trials if there has
been misjoinder.
b. Where a party has been impleaded on a different transaction or

occurrence that the one giving rise to the original lawsuit, that action
should be argued separately.
c. Fairness – Not fair to some litigants to make them sit through the trial
between other litigants on a completely different chain of events.

DISCOVERY
PURPOSE OF DISCOVERY
A. Encourage full education of the facts
B. Allow parties to more concretely frame the issues for trial
C. Avoid trial by surprise
D. Encourage the parties to settle now that they know the full facts
E. Increase efficiency
F. Avoid exploitation by those with more information.
SCOPE
Federal Rule of Civil Procedure 26(b) defines the scope of Discovery, expanding it to
any non- privileged matter relevant to the claim or defense of any party.
This includes the fact of the existence and the character or nature of documents,
people, property, and other pieces of data.
The Scope of discovery is intentionally broad – it includes all information that may
lead to a claim or defense. Because of this, discovery is a long and complicated
process that is very costly and can often result in “document burying” where one
party buries another with thousands of documents.
DISCOVERY TOOLS
A. Mandatory Disclosure - Parties are required to automatically and without
request disclose to the other party the names, phone #s, and email
addresses of all parties involved in the pending action or parties that may be
joined to the pending action. These disclosures have to take place after a
conference.
B. Interrogatories - Are written questions served on another party and are to be

answered under oath. Interrogatories should be specific and on point so that
a fair and honest answer generates useful relevant information.
a. Useful for obtaining detailed and/or non-controversial information from
an adversary.
b. Interrogatories are inexpensive to prepare and serve on the opposing
party. Likewise, they are inexpensive and easy to answer.
c. The answer is usually prepared by the lawyer so that the question is
answered but in a way that harms the interrogated party the least.

C. Depositions – Depositions are extremely useful because they reveal sworn
testimony that are often relevant to the claim or defense at hand.
Depositions can thus inform a party as to how they want to answer an
interrogatory or additional depositions put to the learned party.
a. Governed by FRCP 27 – 32.
b. A party is allows to make up to 10 depositions. Any more requires
leave of court.
c. Depositions are like a dry run at questioning a witness on the stand.
d. The responses have a degree of spontaneity and the attorneys are
given a chance to submit follow-up questions and questions to material
discovered at the deposition.
e. Depositions are quite expensive and take a while.
f. The record of the depositions is available at court.
g. Nonparties may be deposed.
h. Depositions are usually taken in a law office with a court officer
present and lawyers from both sides of the lawsuit.
i. In a deposition lawyers can make objections and motions to strike, but
the objections are not ruled on – the witness must answer all questions
posed as a deposition.
D. Discovery from a nonparty - You can use a subpeona to request documents

from a nonparty, just like one can request documents from the opposing
party. The procedure is largely the same.
E. Medical Examinations - In cases where a party is injured physically or

mentally, discovery may require a physical examination of the body and mind
of the individual asserting physical or mental harm. Attorneys can often
require their own physicians to examine the relevant persons and have these
interviews occur at a neutral location. This is similar to a deposition in that
such an interview is mandatory and difficulty to fight.
F. Signature disclosures - Every discovery request, response, or objection must

be signed by at least one attorney representing that attorney and
accompanied by the attorney's address, phone number, and email address.
a. This signature signifies that the document is complete and correct at

the time it is sent as well as being consistent with existing law and
rules and that it is not done for an improper purpose such as
harassment or delay nor is it unduly burdensome.
b. This is related to FRCP #11 requirement for signatures, although FRCP

#11 explicitly does not apply to discovery requests.
• Moss v. Blue Cross, 241 F.R.D. 683, (D.

Kan. 2007).
F: Π filed document requests and interrogatories requesting all

correspondence to or from the Π and all documents bearing the Π’s name

that are in the possession of the defendant, as well as all documents on the
disciplining and termination of employees in the last few years. Defendant
objects to these interrogatories on grounds that they are overly broad and
burdensome on its face.
R/H: A request may be burdensome on its face if it uses vague terms

such as “relating to” or “pertaining to”, and thus requires the
answering party to “engage in mental gymnastics” to determine
what information is requested. The defendant has the burden of proof in
proving that the discovery request is overly broad or burdensome. While
omnibus terms “relating to” and “pertaining to” would require the defendant
to engage in mental gymnastics, the requesting party can provide adequate
guidance and specific requests to narrow the scope of the request and make
it less vague or irrelenvat.
ATTORNEY WORK PRODUCT
A. Attorneys often make notes and conclusions in preparation for trial.
B. This material is often privileged to the attorney and belongs exclusively to

that party.
C. Courts do not want the attorney testifying –his role is to facilitate

litigation, not to testify as a witness through his work product and
opinions.
D. In general, the statements and personal opinions made by the attorneys

in preparation for trial is not discoverable. Attorneys must be free to
prepare for trial and taking personal notes without fear that another party
may discover his or her preparatory materials.
E. The court does not want to turn a lawyer into a witness.
F. EXCEPTION: Where the attorney work product contains material that the
opposing party has a significant need of and is unable to acquire
otherwise, that material should be disclosed to the opposing party out of
necessity. The claiming party must present a strong case that s/he has a
strong need for the information and has exhausted all other channels at
acquiring that information.
• Hickman v. Taylor, 329 U.S. 495,

(1947).
F: The J.M Taylor, a tugboat, sank while taking with it five unfortunate sailors.
The United States Steamboat Inspectors conducted a public hearing where
the survivors were examined. Counsel for the tug owners took statements
from survivors and witnesses. Counsel representing the families of the
deceased were not present at this hearing and later filed to gain access to
opposing counsel’s notes on the hearing.

R/H: The Π has the power and ability to interview the survivors themselves
and get access to the public testimony from the United States Steamboat
Inspectors. The public interest in served by granting lawyers a degree of
privacy and allowing their personal notes and thoughts to remain private.
There is no showing of necessity here by the Π, only a general naked demand
for all materials possessed by the defendant’s attorney. Personal
materials prepared by an attorney for upcoming litigation is not
open material subject to discovery, absent a valid showing of
necessity and exhaustion.
ASSERTING PRIVILEGE
A. Privilege claims are governed by Federal Rule of Civil Procedure 26(b)(5).

B. The party claiming privilege has to make clear what documents they claim
to be privileged without revealing the privileged information itself.
C. This document must state with certain specificity what documents are
being kept private.
D. This party must also keep a privilege log of all materials they hold to be
privileged and under what grounds they are protected.
COSTS SHIFTING
A. Discovery is incredibly expensive. The general rule is that each party

pays for its own discovery. A litigant must pay to produce all
documents and information requested of it by another party.
B. Because of this, the courts will occassionaly have to engage in cost-

shifting between the parties. One who requests an overly broad and
burdensome amount of information may create an exorbitantly
expensive discovery request that the opposing party is required to
bear.
C. Spoliation of Evidence – Litigants have a duty to maintain in good

condition all evidence and documents which may reasonably be
needed in upcoming litigation. A party that destroys evidence or
documents when that party has reason to believe that litigation is
pending and will need that information.
• Quincy v. WestLB AG , 245 F.R.D. 94,

(S.D.N.Y. 2006)
F: Π brought a wrongful termination and sexual harassment action against

her former employer. Defendant has a policy of deleting all old emails and
correspondence when an employee leaves employment with defendant.
These old files are stored on inaccessible tapes in a special format that

makes them hard to recover. After investigating, finding, formatting,
searching, and producing the emails that Π requested, defendant has a bill
for $226,266,60 from Kroll Archives technology firm. The court has to decide
who should pay for such expensive discovery process.
R/H: The defendant has a duty to produce electronic records for the
plaintiff, to preserve these records, and to pay for the production.
However, this duty is not absolute – it is limited to documents
relevant to pending litigation. The defendants willfully used a storage
medium that is incredibly expensive to operate or convert, and because of
this, they are responsible for the extreme costs they had to undergo in
developing the information. However, in the case of information that was not
foreseeably relevant to a pending litigation, the defendants have no duty to
preserve this information and can shift the costs of developing antiquated
information to the Π because of their good faith effort.
JUDGMENT MECHANISMS
SUMMARY JUDGMENT
A. Governed by FRCP 56.
B. Summary Judgment must be granted when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.
a. Movant must prove:
i. No genuine issue of fact. Any reasonable finder of fact could
only find for the movant.
ii. The issue must concern a material fact.
iii. The facts are cast in a light most favorable to the non-moving
party.
C. Timing
a. A defendant can move for summary judgment at any time on all or
part of the claim.
b. A plaintiff may move for summary judgment on all or part of the claim
after twenty days have passed since commencing the action as
defined by FRCP #3.
c. The motion must be served at least ten days before the day of the
hearing for summary judgment.
D. Purpose - Summary judgment is a tool used to weed out unmeritorious claims

and prevent them from using up the public and private resources of society.
Summary judgment is usually sought after discovery but before trial begins.
If a piece of a case or an entire case has no genuine issue of material fact
then that piece or case can be entered for one of the parties.
E. Due Process – Summary Judgment ends a lawsuit before trial begins.

a. This can deprive a party of one’s due process rights to a trial. It may
also deprive the party of his or her Seventh Amendment right to a jury
trial.
i. However, these rights are not absolute. SJ predicts what will
happen at trial. If there is only one reasonably foreseeable
result, then SJ is merely a shortcut and should not change the
outcome of the trial.
ii. It is an efficient mechanism and saves the time of the movant
and the court.
iii. SJ does encroach on Due Process rights, but Due Process does
guarantee an absoulute right to a full trial. SJ is merely a short
and expedient trial.
F. Summary judgment is almost always moved for by the defendant, rather than
the plaintiff. Plaintiff may move for partial summary judgment on certain
issues when the plaintiff has a strong case on certain issues that do not need
to be litigated at trial.
G. In summary judgment, the non-moving party will have to prove that there is
some dispute of fact in order to proceed to trial. There must be an affidavit,
interrogatory, piece of evidence , or other question of fact that a fact-finder
(the jury) must decide on.
• Celotex Corp. v. Catrett ,477 U.S. 317,

(1986)
F: Plaintiff brought wrongful death action against defendant for asbestos

poisoning. The plaintiff introduced three documents indicating that the
decedent had been exposed to asbestos poisoning. The defendant argued all
documents were inadmissible hearsay and as such did not establish
evidentiary foundation of the plaintiff’s claim against the defendant.
R/H: A party moving for summary judgment needs only to show that
the opposing party lacks a legally sufficient evidentiary basis to
support his or her case. Because the plaintiff lacked admissible evidence
to prove his or her case by a preponderance of the evidence, summary
judgment should be granted for the defendant.
JUDGMENT AS A MATTER OF LAW
A. Governed by Federal Rule of Civil Procedure 50(a).

B. Judgment as a Matter of Law must be granted when there is no legally
sufficient evidentiary basis for a reasonably jury to find for the non-moving
party on a specific issue.
C. Timing – May move for judgment as a matter of law at any time at trial before
the issue is submitted to the jury.

D. Obligation of the moving party - Movant has to suggest there is no genuine
issue as to any material fact and that no reasonable jury would find for the
plaintiff on provided facts.
a. Demonstrate the Insufficiency in the Evidence - Essentially the movant
points to insufficiency of evidence in the non-moving party’s case.
b. When examining the pleading, affidavits, and disclosure materials on
file in a light most favorable to the non-moving party, does the
evidence allow a reasonable jury to rule for the non-moving party? If
not, must grant movant judgment as a matter of law.
c. There is no express requirement on the moving party to supply
affidavits negating the plaintiff's complaint. The movant merely has to
point to insufficiency of evidence .
E. Obligation of the non-moving party

a. In the fact of a motion for summary judgment, the non-moving party
should bring forward evidence to satisfy the burden of proof.
b. Remember that the plaintiff has a burden of production to provide
evidence that the plaintiff's assertions in the pleading are true and
accurate.
c. Alternatively, the non-moving party can merely assert the movant's
failure to satisfy 56(e) (the proof of insufficient evidence), and hope
the movant has failed to prove the plaintiff's case suffers from
insufficiency of evidence. The movant will refer to the pleadings,
affidavits, and disclosure materials on file.
F. Problems with Judgment as a Matter of Law

a. It is the job of the jury to weigh the evidence and decide the verdict.
b. The judge is meant to decide issues of law, not matters of fact.
c. By entering summary judgment, the judge is usurping the job of the
jury and becoming a fact-finder where it is not his or her place.
d. The court is not supposed to weigh evidence -- summary judgment
asks them to do just that.
G. Counterargument
a. The judge often rules on legal questions, not on factual questions
during motions for summary judgment. The judge may rule on a
matter of law in order to dismiss the case, regardless of the merit of
the evidence itself.
JUDGMENT NOTWITHSTANDING THE VERDICT
A. Governed by Federal Rule of Civil Procedure 50(b).
B. Timing – JNOV is used at trial after the jury has entered judgment. A party
may only move for judgment notwithstanding the verdict if that party has
previously moved for judgment as a matter of law pursuant to FRCP 50(a).
JNOV is technically a renewed motion for judgment as a matter of law.

C. Appellant Convenience – Denying a 50(a) motion but granting a 50(b) motion
may give the appellate court more to work with. This emphasizes efficiency
by preventing the expense of a new trial.
a. A judge may deny as a 50(a) motion for judgment as a matter of law
but grant a 50(b) motion for judgment NOV - a judge may do this so
that appellate courts have more to review than the decision of the
judge.
b. The appellate court may vacate the judgment notwithstanding the
verdict and reinstate the jury verdict.
c. If the trial judge granted a judgment as a matter of law and did not let
the case go to the jury and then the appellate court vacates the
judgment as a matter of law there will have to be a new trial because
there is no jury verdict to fall back on.
D. Seventh Amendment complications

a. Where Π has not presented sufficient evidence that necessitates a jury
trial he or she does not deserve a jury trial. Only cases that are
sufficiently argued should go to the jury and are protected by the
Seventh amendment.
b. If a jury returns a judgment that clearly contradicts the presented
evidence to the court the judge may want to override the jury and
enter judgment notwithstanding the verdict.
PERSONAL JURISDICTION
A. Courts have limited jurisdiction. Any party may challenge the assertion of
personal jurisdiction by a court over him or her with a 12(b)(2) motion.
B. Generally, there are three kinds of personal jurisdiction.

1. In Personam – the power of the court to enter a judgment
against a person. The judgment is binding on the person itself.
2. In rem – the power of the court to enter a judgment binding on
property located within the jurisdiction of the court owned by a
person not within the jurisdiction of the court.
3. Quasi in rem – the power of the court to enter a judgment on an
individual based on his or her property within the jurisdiction of the
court, but where the action is unrelated to that property. The court
can enter a judgment against the party up to the value of the
property.
• Pennoyer v. Neff, 95 U.S. 714,

(1877).
F: Attorney Mitchell, an Oregon resident, sued Neff, a California resident, in

Oregon state court for $300 in legal fees owed to Mitchell. Neff never
received service of process. The Oregon state court entered a default
judgment for Mitchell and seized his property and sold it to Mr. Pennoyer. Mr.

Neff sued Mr. Pennoyer to return his property to him, arguing that the original
action seizing his property did not have personal jurisdiction over him\.
R/H: Because non-residents can own property with Oregon, the state is given
power over the property in the absence of the citizens themselves. It is
within the virtue of the state’s jurisdiction over the property of non-residents
to hold and appropriate this property to satisfy the claims of its citizens.
However, the state court failed to attach the property to the previous action
and thus is must be returned to Mr. Neff. A judgment may be entered in
rem against a non-resident without service of process if the other
party is a resident of the state in which the suit is brought and
notice of the property seizure is publicized and the non-resident is
made aware of said seizure.
C. Full Faith and Credit Clause - Full faith and credit ought to be given in each
state to the public acts, records, and judicial proceedings, of every other
state.
a. Any judgment entered against a party or piece of property in one
jurisdiction must be honored by each other jurisdiction in the United
States. An individual can take a judgment entered by one court and
bring it to a court in another jurisdiction where the court must enforce
it on the party the judgment is entered against.
D. Due Process – Any exercise of personal jurisdiction must comply with Due
Process rights. Any assertion of personal jurisdiction that offends notions of
fair play and substantial justice is erroneous and must be reversed.
a. One Way Street - Substantial justice and fair play considerations can
only be used to invalidate a claim of personal jurisdiction - it cannot be
used to establish a just assertion of personal jurisdiction in the absence
of purposeful contact with the forum state.
b. For example, if the defendant lived across the street from the
courthouse but in another jurisdiction and had never crossed the street
into the forum state, there could be no assertion of personal
jurisdiction over that defendant, even though it is incredibly
convenient for him to litigate in the foreign state.
E. Residency – A court can assert personal jurisdiction over any party that is a
resident of the state in which the court lies. Every citizen is a resident of
exactly one state. Corporations are residents or two states.
a. Citizens: normally a resident of the state where one is domiciled.
However, domicile is not demonstrative. Where is the intent to reside
indefinitely?
i. Intent derived from: place of work, place of residency, place of
voter registration, place where one pays taxes.
b. Corporations are citizens of both:
i. State where corporation is incorporated. (Often Delaware).
ii. And…

iii. Principal place of business. This is either where most of the
corporation’s goods are sold, or it is the nerve center, where the
executives and decision making entities are located.
F. P.J. Analysis – Follow the following list of checkpoints when analyzing a

personal jurisdiction problem:
1. If federal court, does rule 4(k) grants federal court jurisdiction?
2. If state court, does long-arm statute grants state court
jurisdiction?
3. If Specific jurisdiction, is there purposeful contact with the
forum state?
i. Does the claim arise out of said transaction or occurrence?
4. If General Jurisdiction, is there continuous, systematic, and
substantial contact with the forum state?
5. Is there such minimum contact with the forum state that Δ can
reasonably expect to be hailed into court in the forum state?
1. Does the party inject goods into an interstate stream of
commerce that creates targeted contact with the forum
state?
2. Goods marketed in the state?
3. Physical presence in state can substitute for minimum
contacts.
6. Notions of fair play and substantial justice are validated by
assertion of personal jurisdiction?
7. Is there unfair inconvenience to a foreign party?
1. Compare private interest and public interest.
2. What is the extent of the inconvenience?
3. Purposeful contact invalidates inconvenience?
4. Is it foreseeable to be hailed into court in the forum state?
• International Shoe v. Washington, 326 U.S. 310

(1945).
F: Defendant is a Delaware corporation based in Missouri. Defendant has no

office in Washington but does employ eleven to thirteen salesmen who meet
with clients and exhibit products and solicit sales from buyers after which
they transmit the orders to St. Louis from where the orders are filled and
shipped to Washington. State of Washington filed suit against Delaware
corporate defendant to pay unemployment insurance in Washington.
R/H: Defendant’s salesmen live in the state, rent property in the state, and
solicit sales within the state. The level of contact with the state over time
indicates a “presence” within the state is substantial enough to justify an
assertion of personal jurisdiction. A corporation that employs workers
and conducts business over a sustained period of time in a state has
“presence” in that state and thus the state courts have in personam
jurisdiction over that corporation.

Precedent: A minimum contacts analysis must be used to determine
whether a nonresident has presence enough in a state to justify personal
jurisdiction.
PERSONAL JURISDICTION ANALYSIS PROCEDURE
Rule4(k)
Long-armStatute
MinimumContacts
SpecificJurisdiction General Jurisdiction

Purposeful Availment Continuous,Systematic,
Substantial contact
ReasonableExpectations
InconvenienceTest Fair Play +Substantial Justice
Private/ PublicInterest
Purposeful contact?
RULE 4(K)
A. A District Court in a given state has personal jurisdiction over any party that
is subject to the jurisdiction of a state court in that state.
B. A District Court has personal jurisdiction over anyone who is served within
100 miles of the court issuing the summons.
C. Federal Statutes can justify personal jurisdiction over the party.
D. District Court has personal jurisdiction over any party who is not subject to
any state court and is sued under federal law.
E. Any assertion of Personal Jurisdiction must comply with Constitutional rights.
LONG ARM STATUTES
A. Every state has a statute that dictates when the courts of that state can
assert personal jurisdiction over a non-resident.
B. The statute gives the state courts jurisdiction when the nonresident conducts
business in the forum state, commits a tortious act, derives substantial

revenue from goods or services in the state, or owns, uses, or possess real
property within the state
C. The rigidness of Pennoyer encouraged the creation of long-arm statutes in

order to work jurisdiction in a more fluid society.
D. Two kinds of Long Arm Statutes

1. Focus on specific kinds of acts. The acts of the parties have to fit
under the statutory definitions in order to assert jurisdiction over the
party.
2. Courts can exercise jurisdiction as far as the 14th amendment will
allow. "Court can exercise jurisdiction rulings not inconsistent with the
Due Process clause of the 14th amendment".
SPECIAL APPEARANCE
A. Appearing at a courthouse effectively waives the right to challenge personal
jurisdiction. A party who appears in that court has consented to the personal
jurisdiction of the court.
B. A party may enter a “special appearance” where one enters the courthouse
only to challenge the assertion of personal jurisdiction.
PURPOSEFUL AVAILMENT
A. There must be purposeful availment by the defendant of the forum state in

order for the forum state to assert in personam jurisdiction over that party.
B. Unilateral Contact – If the only contact with the forum state was created by
the unilateral activity of the plaintiff, the defendant should not be subject to
the jurisdiction of that state.
a. Has Δ had the purposeful availment of the privileges and benefits of
the forum state or has the contact been created unilaterally by the
plaintiff or someone else?
• Hanson v. Denkla, 357 U.S. 235,

(1958).
F: When she lived in Pennsylvania, Dora Donner established a trust with a
Delaware corporation. She then moved to Florida and amended her will to
direct a large portion of the trust towards one of her daughters. The
daughters filed suit against the Delaware corporation in Florida court to
invalidate the trust on technical grounds.
R/H: The Florida court does not have in personam or in rem jurisdiction over
the Delaware corporation because it did not purposefully contact the state of
Florida. The only reason the defendant has contact with Florida is because of
the unilateral activity of a third party in choosing to move from Pennsylvania
to Florida. Where the only link between the defendant and the forum
state is the unilateral activity of another person, the forum state
does not have personal jurisdiction over the defendant.
C. Reciprocity - If Δ intentionally contacted the forum state and benefited from

the relationship, Δ is subject to the jurisdiction of the courts of the forum
state. With the benefits and gains come the responsibility to be subject to
the forum state’s courts.
D. Target – The conduct must be targeted at the forum state, not just incident to
it. Did the D choose the forum state to do business with? If the defendant
did not voluntarily act to engage in affairs with the forum state or a party in
the forum state, the conduct is not targeted at the state and there is no
reasonable expectation of being haled into court.
a. Interstate business – Businesses sell goods across state lines. If the
goods are marketed, produced, and sold in the forum state that
corporation has targeted the forum state.
b. Travel – A party usually chooses where to travel and voluntarily does
so. Even passing through the forum state in transit to another state
counts as voluntarily engagement in the forum state. Driving through
or flying over another state is a form of targeted purposeful availment
of the state.
• Calder v. Jones
F: Δ, a Florida resident, writes for a tabloid and wrote a derogatory article
about a California actress. The California Π brought defamation of character
action against the Florida defendant.
R/H: Δ has purposefully written an article about a California resident that is

marketed and circulated in California and has an impact on California
markets. This is targeted purposeful contact with the forum state. A court
can assert jurisdiction over a party that has never set foot in the forum state
if that party has targeted that state with intentional contact.
• Burger King v. Rudziewicz

F: Δ applied for a franchise agreement with Florida plaintiff’s office in
Michigan. The defendant travelled to Florida for training and engaged in
negotiations with the Florida plaintiff while there. The Δ owned and operated
a Burger Restaurant for some time in Michigan, sending payments to Florida
but eventually shut down operation. Florida plaintiff sued Michigan Δ for
breach of contract.

R/H: Δ intentionally and willfully initiated contact with the Florida plaintiffs
when he contacted them to set up a franchise in Michigan. Therefore, there
is purposeful availment and substantial revenue deriving from contact with
the state of Florida. When a Δ has purposefully directed continuous conduct
at the forum state, jurisdiction is reasonable as long as contact with forum
state was continuous, substantial, and intentional. Personal presence is
not required to assert in personam jurisdiction over a person.
Contractual obligation may create enough contact with the forum
state. There are no black letter rules to personal jurisdiction. The analysis is
always nuanced and contextual.
INDIRECT JURISDICTION
A. Some state courts use the situs of property in the forum state as a method of
gaining personal jurisdiction over the defendant. This method of quasi-in rem
jurisdiction is largely invalidated by the Supreme Court in Schaffer v. Heitner.
B. A state may not seize the property of a nonresident in order to compel the
resident to submit to the jurisdiction of the state. That violates notions of fair
play and substantial justice.
• Schaffer v. Heitner, 433 U.S. 186,

(1977).
F: Π filed shareholders derivative suit against Δ, a corporation incorporated in

Delaware. The order of sequestration seized 82,000 shares of stock in the
Greyhound corporation, none of which had certificates within the state of
Delaware. Delaware statute makes the state the situs of all stock issued by
Delaware corporations. The sequestration would not end until Δs submitted
to the personal jurisdiction of the Delaware courts.
R/H: It is unfair to Δ to allow the state to indirectly assert jurisdiction over

them in the absence of minimum contacts and purposeful availment. They
do not reside or hold real property in the state and thus have no reasonable
expectations of being drawn into court in the forum state. If the state is
precluded from asserting in personam jurisdiction over these nonresident Δs
directly, it be should be prevented from doing so indirectly through holding
their property ransom. All assertions of personal jurisdiction must be
validated by the minimum contacts analysis set forth in
International Shoe.
GENERAL AND SPECIFIC JURISDICTION
A. General Jurisdiction – the defendant's contact with the forum state is so

continuous and substantial that the assertion of jurisdiction is justified even
over matters that do not give rise to the lawsuit.

a. Example: residency. The court can assert personal jurisdiction over a
resident in a claim resulting from conduct in another state having
nothing to do with residency.
b. State courts also have general jurisdiction over a corporation that is
incorporated in that state with regards to any claim.
c. Citizenship and incorporation are the traditional grounds for general
jurisdiction.
d. Continuous, substantial, and systematic conduct in the forum state
also creates grounds for general jurisdiction.
e. There is at least one court where a person can be sued for any and all
claims against him or her.
B. Specific Jurisdiction – Personal jurisdiction over a party can arise out of

party’s intentional activities in the forum state that give rise to the lawsuit.
Isolated incidents that give rise to a lawsuit allow the courts of the forum
state in which the isolated incidents took place to assert personal jurisdiction
over the involved parties.
a. Example: Tortious actions. A court has personal jurisdiction over a
tortfeasor on all claims arising from that tortious act.
b. Contractual obligations also give rise to specific jurisdiction. If a party
purposely contacts the forum state and derives substantial benefit
from a relationship with the forum state and its residents, that party is
subject to the forum state’s jurisdiction for all claims arising out of the
transaction or occurrence that took place in the forum state.
• Helicopteros v. Hall, 466 U.S. 408

(1984).
F: Πs brought wrongful death action in Texas court against Colombian

defendant-corporation arising out their helicopter crash in Peru. During 1970
– 1977, Δ had purchased helicopters, spare parts, and accessories from Bell
Helicopter company in Fort worth. Δ sent employees and pilots to Fort Worth
and Houston for training, management, and maintenance personnel and to
ferry aircraft to South America. The South American Δ engaged in contract
negotiations in Houston.
R/H: Πs’ claims do not arise out of the Δ ‘s activities in the state of Texas.
The few interactions with the state and its residents are not enough
substantial contact to grant he state general jurisdiction over Δ and it offends
notions of substantial justice and fair play to assert general jurisdiction over
them in Texas. However, dissent observes that the helicopter pilot involved
in the crash was trained in Texas and the helicopter was purchased in Texas
from a Texas company. Therefore, it may be justifiable for the Texas court to
assert specific jurisdiction over Δ. Personal jurisdiction may be
asserted over a nonresident defendant only if s/he has continuous,
substantial, and systematic contacts with the forum state. Specific

jurisdiction is justly asserted when those activities that took place in
the forum state give rise to the lawsuit.
FORUM SELECTION CLAUSES

A. A forum selection clause in a contract is applicable as long as it is done in
good faith.
B. Forum selection clause cannot be used to unduly harass a party or create

extra expense.
C. Forum selection clauses often promote efficiency, making the forum for
adjudication the state of incorporation of one of the parties. This is entirely in
line with notions of fair play and substantial justice.
a. It makes perfect sense to confine the adjudication of contractual
disputes in a forum that has jurisdiction to one of the parties.
• Carnival v. Shute, 499 U.S. 585

(1991).
F: Π went on a cruise with the defendant’s pleasure cruise line and was
injured while on board. Π brought premises liability action against defendant
in Washington court. Δs filed a 12(b)(2) motion, citing the forum selection
clause in the Π ‘s ticket with the Δ.
R/H: The clause restricting choice of forum is applicable even though it is not
bargained for. There is no bad-faith motive in choosing Florida as the forum,
but rather logic and common sense lies behind it. As long as the forum
selection clause is invoked in good faith and creates efficiency and
consistency, it shall be upheld.
EXTEME INCONVENIENCE
A. If it is extremely inconvenient for the defendant to litigate in the forum state,
the defendant may be able to resist the assertion of personal jurisdiction.
B. This is more likely only for foreigners with no purposeful contact with the
forum state.
C. Inconvenience Analysis
a. The private necessity is staying free from costly litigation.
b. The public interest in entering a judgment against the defendant.
c. The extent of the inconvenience.
d. Purposeful Contact – Any purposeful contact with the forum state
invalidates a presupposition of inconvience. If the defendant has
travelled to the forum state before, s/he can do it again to litigate its
claim.
e. Foreseeability – Can the defendant reasonably anticipate being drawn
into court in the forum state?
D. Back Door – the inconvenience test functions as a back door to
personal jurisdiction analysis. If the defendant is incredibly
inconvenienced by the assertion of personal jurisdiction and has so little
contact with the forum state that it would not reasonably anticipate
litigation in the state, it can challenge the personal jurisdiction even if the
other elements are satisfied.
• Asahi v. Superior Court, 480 U.S. 102,

(1987).
F: Asahi is a Japanese company that sells automotive parts to a number of

companies, including Cheng Shin, a Taiwanese company. Cheng Shin sells
20% of its products in California. Cheng Shin filed an indemnification claim
against Asahi in California court after being sued by a California products
liability plaintiff.
R/H: There is no purposeful availment here. The Japanese tire valve

manufacturers sold tire valves that could have be sold in any state across the
world. The link between Asahi and California is too tenuous to satisfy the
purposeful availment test from Hanson v. Denckla. Additionally, the
inconvenience on Asahi on travelling from Japan to defend a case in the
California is immense. Even if Δ had minimum contact and purposeful
availment in the forum state, it would still offend concerns of substantial
justice and fair play to assert jurisdiction over it. It is more foreseeable and
fair to have this action adjudicated in court in Taiwan or Japan.
INTERNET JURISDICTION
A. "Sliding Scale Zippo Factors"
a. A website that passively posts information that any party can access
and read does not purposefully contact other states where citizens can
access the material.
b. However, where a website intentionally tries to serve the market of the
forum state, such as a website with a regional focus or a professional
specialization, that kind of contact is targeted at an audience and gives
grounds for personal jurisdiction.
c. An interactive website that enables exchange of information over the
internet may be subject to personal jurisdiction of the forum state, but
this depends on the level and quality of interaction with citizens in the
forum state.
B. Posting some material online does not satisfy purposeful contact if the
material is not specifically targeted at the forum state. Material that is
passively posted so anyone can see it online does not usually establish
reasonable foreseeability of civil liability in the forum state.
C. Personal jurisdiction is justified if:

a. Material is posted on a website with a regional focus.
b. Material specifically mentions the forum state or the region.
c. Web site is associated with a certain association or region that is
situated in the forum state.
D. Interactive websites – These sits exchanges information with the nonresident,

creating a commercial relationship. If the company knows that a website is
used to advertise and transact business with nonresidents, that website
owner is purposefully contacting the states of the nonresidents.
a. In the absence of interaction, there is no purposeful availment.
b. Interactive business that conduct business over the internet
effectively purposefully contact the citizens in other states.
E. General Jurisdiction - When a company conducts continuous, systematic, and

substantial activity with the forum state over the internet, that company may
be subject to general jurisdiction in the forum state.
a. This is determined by whether or not the website targets a specific
region or state.
TAG JURISDICTION
A. Traditionally states have unchallenged jurisdiction over all individuals that

are located within the borders of that state, even if the presence is
temporary. A state can “tag” a defendant who temporarily enters the state
and thus assert personal jurisdiction over them.
B. The power of domain takes into account purposeful contact. An individual

usually chooses to travel to a state. In the rare case someone is brought
against his or her will to the forum state, that state does not have personal
jurisdiction over the party for lack of purposeful contact with the state.
C. This power of domain is independent of minimum contacts analysis.
D. Domain is consistent with notions of fair play and substantial justice. One
who travels to another state has a reasonable expectation that one will be
subject to the courts of that state. It is fair and reasonable to expose even
temporary residents of the state to the jurisdiction of the state.
• Burnham v. Superior Court, 495 US 604,

(1990).
F: Δ, a New Jersey resident, went to California to visit his ex-wife and children
for a few days. While he was visiting California, his wife served him with a
court summons and a divorce petition.
R/H: Courts always has jurisdiction over a party who is physically present in
the state, regardless of minimum contacts. This principle is a longstanding
tent of state autonomy and the foundations of American law. The state’s

ability to assert jurisdiction within its own borders shall not be infringed by
concerns of minimum contacts or inconvenience of travel. Tag jurisdiction
is legitimate. State has authority over everything in its borders.
100 MILE BULGE RULE

A. A District Court has personal jurisdiction over anyone who is served within
100 miles of the court issuing the summons.
B. The 100-mile bulge rule applies to unusual cases where a party is joined to a
suit as a third-party defendant under Rules 14 or 19.
a. Jurisdiction is rightfully asserted over that party if they reside or have
incorporation in the forum state or
b. They are served within 100 miles of the courthouse that issues the
summons.
c. This rule allows jurisdiction over parties in any state as long as they
are served within a specific radius (100 miles).
C. This rule allows a court to exercise jurisdiction over parties joined by

impleader under Rules 14 and 19.
a. It would be pointless to make an impleader against a party across
state lines if the court was unable to assert personal jurisdiction over
that party.
MINIMUM CONTACTS
A. The level and amount of activity conducted in the forum state determines the
ability of the forum state to exert personal jurisdiction over an out-of-state
party.
B. To make the assertion of personal jurisdiction just, the defendant must have
such contact within the forum state that s/he can reasonably expect to be
drawn into court in the forum state.
C. Minimum contact is not: random fortuitous, attenuated, or isolated activities.
D. Minimum contact is: premeditated, intentional, planned, consistent,

continuous, and substantial.
Level of Out-of-state Single Act Mid-Range of Continuous,

Activity: conduct has within Forum Activities systematic,
impact in within forum and substantial
forum state activities
Relation of Only related Only related Only related All claims,

Claim to claims claims claims related or not
Activity: (Specific (Specific (Specific (General
Jurisdiction) Jurisdiction) Jurisdiction) Jurisdiction)
INTERSTATE STREAM OF COMMERCE
A. Selling goods across state lines may or may not be purposeful contact with
those states. This depends on the marketing of the good, the reach of the
company, and the extent of targeting at a specific market.
B. No majority rule on the proper analytic procedure.
C. How the product ends up in the forum state is important. Is the good
marketed in or targeted at the forum state? Is the good of a specific nature
that it naturally travels from state to state?
D. Three perspectives on stream of commerce theory
a. O’Connor Rule: There must be an active effort to serve the forum state
market. To justly assert jurisdiction over a nonresident, one has to
show that the defendant's product was purposefully directed to the
forum state, not merely that the product was swept into the stream of
interstate commerce.
i. The satisfaction of minimum contacts must arise out of
intentional conduct that was purposefully directed towards the
forum state.
ii. Additional conduct of the defendant may serve to indicate a
purpose to serve the market in the forum state.
1. Have they designed the product for the market in the
forum state?
2. Have they advertised in the forum state?
3. Have they marketing the product through a sales agent in
the forum state?
b. Brennan Rule: Four justices that think that injection of goods into the
international stream of commerce creates purposeful availment of the
forum state. Selling goods across state lines gives the company the
reasonable expectation that it will be hailed into court in that state.
i. Taking part in the interstate stream of commerce is purposeful
contact.
ii. When those goods are sent out to distributors and retailers, they
could end up in any state. The defendant should be able to
foresee the goods travelling to different states and causing
problems and thus lawsuits.
• Worldwide Volkswagen v. Hanson, 444 U.S. 286,

(1980).
F: Πs purchased an automobile from the defendants at Seaway Volkswagen

Inc. in Massena, New York in 1976. While moving to Arizona, their car broke
down in Oklahoma. They brought products liability action against defendant
corporations, who are based in New York and maintain retail dealers in New

Jersey and Connecticut. They have no business in Oklahoma, ship no
products there, have no agents there, and purchase no advertisements in
Oklahoma.
R/H: Although it is foreseeable that Seaway’s product would travel to

another state and get in an accident, this is not a sufficient basis for personal
jurisdiction under the Due Process clause. If foreseeability were sufficient
basis, any product purchased in one state and brought to another would give
that state jurisdiction over the nonresident seller in any state the incident
occurred. The foreseeability of the travel of products to the forum
state alone is not sufficient to demonstrate minimum contacts; there
must be purposeful contact in the forum state to satisfy the
minimum contacts requirement.
VENUE
A. There may be more than one forum that can assert jurisdiction over the
defendant. Given the set of possible forum courts, which court should be
used? That is an issue of venue.
B. Convenience - Considerations of venue evaluate which court will be the most

convenient to the involved parties.
a. In most cases, the plaintiff's choice of forum is given
substantial deference.
C. State venue statutes consider which county to adjudicate the case. These
statutes try to get the case litigated in the proper county court.
D. Federal venue statutes consider which district should be used to adjudicate
the case.
a. 28 USC §1391(a) concerns where suit may be brought in an action in
federal court concerning a state law - federal court's only claim to the
action is diversity of citizenship.
b. 28 USC §1391(b) concerns where suit may be brought in an action in
federal court concerning a federal law - federal court's claim to the
action is a federal question.
E. Law shopping – A plaintiff cannot move venue in order to take advantage of

more favorable law. The applied law will not change in the event that a case
is transferred to another forum according to 28 U.S.C. § 1404.
a. This is an interjudicial housekeeping statute. The parties should not be
allowed to forumshop for the most advantageous law.
b. The Third Circuit said that if this law-freezing principle applies to §1404
it should apply to dismissals under §1406.
STATUTORY BASIS

A. 28 U.S.C. § 1391(a) is for cases of diversity jurisdiction. It authorizes a choice
of forum:
a. If all defendants reside in the same state, a judicial district where any
defendant resides.
b. A judicial district in which a substantial part of the events or property
that is the subject of the action is situated.
c. A judicial district in which any defendant is subject to personal
jurisdiction at the time the action was commenced, if there is no
district in which the action may otherwise be brought.
B. 28 U.S.C. § 1391(b) is for cases not based on diversity jurisdiction. It

authorizes a forum:
a. If all defendants reside in the same state, a judicial district where any
defendant resides.
b. A judicial district in which a substantial part of the events or property
that is the subject of the action is situated.
c. A judicial district in which any defendant may be found, if there is no
district in which the action may otherwise be brought.
C. 28 U.S.C. §1406 – Dismissal for defective venue

a. A party can dismiss an action for choosing the wrong venue by raising
a 12(b)(3) motion.
b. A court may choose to transfer the action rather than dismiss it in the
interest of justice.
D. 28 U.S.C. § 1404 – Transfer of Venue

a. Applies only to federal courts.
b. In the interest of justice and convenience the court may transfer an
action on its to another venue where it could have been brought.
c. A party may also file a 28 U.S.C. § 1404 to request a new venue in the
interests of convenience and justice.
d. In most cases, the plaintiff's choice of forum is given
substantial deference. The movant must raise a serious reason to
transfer venue.
• Piper Aircraft Co. v. Reyno, 454 U.S. 235,

(1981).
F: Plane crashed in Scotland. Family of the decedents hired an American firm

to bring suit against American aircraft manufacturer and component
manufacturers. Π brought suit in State Court in California because the
products liability laws are easier in California. Δs Piper and Hartzell used 28
U.S.C. § 1441 to remove the case to federal court in Central District of
California. Piper invokes 28 U.S.C. §1404 to move to transfer the case to the
Middle District of Pennsylvania. After transfer to M.D. Pa., the Δs move to
dismiss the case under forum non conveniens on grounds that it should have
been litigated in Scotland. The Pennsylvania district court dismissed the case

after getting a concession from the defendants that they will agree to be
subject to personal jurisdiction in Scotland and waive statute of limitations
claims.
R/H: Allowing a party to move a case to a justification with more favorable

laws would completely violate the rule of forum non conveniens. The point of
forum non conveniens is to ensure that the trial is convenient, so the choice
of a foreign party deserves less deference.
Usually the plaintiff’s choice of forum will be given deference.

However, where the deference to the plaintiff’s choice of forum is
not necessary, the court should utilize a flexible balancing test.
VENUE BALANCING TEST FROM PIPER

I. The factors pertaining to the private interests of the litigants include the
(1) "relative ease of access to sources of proof; availability of compulsory
process for attendance of unwilling,
(2) and the cost of obtaining attendance of willing, witnesses;
(3) possibility of view of premises, if view would be appropriate to the action;
and
(4) all other practical problems that make trial of a case easy, expeditious
and inexpensive." Gilbert, 330 U.S., at 508.
II. The public factors bearing on the question included

(5) the administrative difficulties flowing from court congestion
(6)The local interest in having localized controversies decided at home
(7)The interest in having the trial of a diversity case in a forum that is at
home with the law that must govern the action
(8)The avoidance of unnecessary problems in conflict of laws in the
application of foreign law
(9) The unfairness of burdening citizens in an unrelated forum with jury duty .
FORUM NON CONVENIENS
A. Forum non conveniens is a common law doctrine that allows courts to avoid
litigation in a venue obviously inconvenient to the defendant.
B. Forum non conveniens is a matter of choice of which state to bring suit in.
C. Plaintiff is allowed to refile the action if it is dismissed under forum non
conveniens.
D. The law of the newer convenient court will be used if moved under forum non
conveniens.
SUBJECT MATTER JURISDICTION

A. ARTICLE III §2 of Constitution: Federal Question / Diversity of Citizenship
Jurisdiction
B. FEDERAL QUESTION JURISDICTION: Plaintiff’s cause of action must arise
under the constitution, treatise, or laws of the United States. Federal courts
are courts of limited jurisdiction.
• Ex. Plaintiff files in federal court and alleges: I own US Copyright of
motion picture issued by Title XVII of U.S.C. Widget Theatre can show
movie for 2 weeks if they pay me, etc. They have not paid me. They
claim the copyright is invalid
i. Not Subject Matter Jurisdiction. Cause of action is contract
breach. Not complaint infringing on copyright action. The
federal question is not the cause of action.
ii. There may be a federal defense, but it is the plaintiff’s cause of
action that is important, not an anticipated federal defense. No
$ amount limit.
C. Defense: 12(b)(1): if you feel there is no federal jurisdiction you raise this
defense.
D. State courts are courts of general jurisdiction.
E. The United States court system has two concurrent networks of courts – the
federal courts and the state courts exist around and with each other.
F. A litigant has the choice of type of court to bring an action in – federal or
state court.
G. Two roads to federal court:
• Original Jurisdiction - A party may bring an action in federal court
because the claim involves a federal statute, the Constitution of the
United States, or where the United States of a federal officer is a party
to the suit.
• Diversity Jurisdiction - A party may bring action in federal court
because there is complete diversity of citizenship between the parties.
H. Parties can plead or remove a case to a federal court on either: federal
question jurisdiction or diversity jurisdiction.
FEDERAL QUESTION JURISDICTION
A. 28 U.S.C. § 1331 empowers the federal court to hear all civil actions arising
under the Constitution and the laws and treaties of the United States.
B. Where a claim or defense arises under a federal statute, the Constitution, or

a treaty of the United States, the action may be brought in federal court
regardless of the citizenship of the parties.

C. “Arising under that law” - The phrase "arises under" in 28 U.S.C. § 1331 is
vague and unclear. Any cleverly-written complaint can assert a federal
question. So what does "arises under" really mean in relation to federal law?
a. Justice Holmes said: "a suit arises under the law that creates the cause
of action".
b. Any claim or defense that could not exist but for the federal statute or
provision is created by the federal law and thus arises under federal
law.
WELL PLEADED COMPLAINT RULE
A. The federal issue under 28 U.S.C. § 1331 must be explicitly stated in the
plaintiff's claim.
B. No preemptive removal - It is not enough that the plaintiff anticipates a
defense or that a federal issue may arise and includes that issue in the
complaint - it must be part of the original claim against the defendant.
a. The fact that a defendant may and actually does raise a Constitutional
issue as a defense does not create a federal issue in the complaint. It
may later cause the action to be removed to federal court, but does
not give the plaintiff the right to bring the action in federal court.
C. The vast majority of § 1331 cases are covered by Holmes's statement "a suit
arises under the law that creates it".
a. Essentially, there must be a federal statute or Constitution under which
a claim arises.
b. State negligence claims, while relevant to federal concerns, do not
belong in federal court outright.
c. There is generally no such thing as federal tort law, federal contracts
law, or federal criminal law (with some exceptions).
• Louisville Railroad v. Mottley, 211 U.S. 149,

(1908).
F: In consideration of the Π’s waiving rights to sue the defendants in a
negligence action, Δ agreed to issue free passes to the plaintiffs for unlimited
travel on all of the defendant’s railroad lines present and future for life. The
agreement was signed in 1871 and honored, but in 1907 the Δ refused to
renew Π ‘s free pass for the railroad, arguing that Congressional Act of June
26, 1906 forbids the giving of free transportation passes. Πs brought action
for breach of contract and won at the trial level, after which Δs petitioned for
certiorari.
R/H: An action can be dismissed at any point by any party or by the court for
lack of subject matter jurisdiction. It is the duty of the court to actively
dismiss an action for lack of subject matter jurisdiction regardless of
the merits, appellate status, or entered judgment.
EXCLUSIVE JURISDICTION

The federal courts have exclusive jurisdiction over claims arising out of admiralty
law, copyright law, bankruptcy law, and where the United States of America is a
party to the suit.
DIVERSITY JURISDICITON
A. 28 U.S.C. § 1332 allows a party to bring an action in federal court if there is

diversity of citizenship in the parties and the amount in controversy exceeds
$75,000.
B. Courts have interpreted 28 U.S.C. § 1332 to require complete diversity of

citizenship.
a. Complete diversity: no two parties from opposing sides of the “v.” are
from the same state.
b. Although the plaintiffs may be from the same state and defendants are
from the state, if even a single plaintiff and a single defendant are
from the same state that destroys complete diversity.
C. Amount in Controversy requirement
a. In addition to diversity, there must be more than $75,000 in dispute.
b. Aggregation: plaintiffs can add claims against the same defendant in

order to satisfy the amount in controversy in the aggregate. Thus, two
$40,000 claims against the same defendant can be filed concurrently
under FRCP # 18 and thereby satisfy the amount of controversy
requirement.
• Ochoa v. PV Holding Co., 211 2007 WL 496612, (E.D.

La. 2007).
F: Π brought negligence action under state law against three Δs: the rental
car agency incorporated in Delaware, the title holder incorporated in
Delaware, and the car operator, who may be a resident of Texas or Louisiana.
Δs removed the suit to federal court on 11/30/06 on grounds of diversity
jurisdiction. Δ Paul Gulley was a citizen of Louisiana, but on 8/29/05 moved
to Texas because Hurricane Katrina destroyed his New Orleans home. Mr.
Gulley was domiciled in Texas and had a job in Texas at the time of the
deposition. He still holds a Louisiana driver’s license, pays taxes in Louisiana,
and votes in Louisiana.
R/H: The citizenship of a litigant for purposes of diversity jurisdiction
is determined by one’s intent to reside indefinitely at the time the
action was filed. Facts that indicate residency include where the party
pays taxes, owns property, belongs to clubs, maintains a bank account, holds
a drivers license, maintains a domestic home, and has attained gainful
employment. The court must look to the party’s status when the action was
commenced, not at the time of trial or deposition. ΔPaul Gulley was a citizen

of Louisiana at the time the action was commenced and thus there is no
complete diversity of citizenship.
• Preston v. Tenet Health Systems Memorial Ctr., 485 F.3d 804,

(5th Cir. 2007).
F: When Hurricane Katrina landed in Louisiana, Δ hospital lost electricity, the
service was suspended, and other problems. Because of the failure of the
hospital to provide continuous life support to its patients many of them died
during the hurricane. Hundreds of plaintiffs brought suit against Tenet Health
Systems Memorial Center.
R/H: The claims in this class action all stem from Louisiana negligence law –
there is no federal question here. Additionally, there is no complete diversity
because the overwhelming majority of Πs permanently resided in New
Orleans, but may have been temporarily displaced by Hurricane Katrina. This
is a perfect example of a truly localized occurrence giving rise to a class
action lawsuit that should remain in state court. The local controversy
exception prohibits a federal court from exercising jurisdiction if
more than two thirds of the class members and at least one
significant defendant are residents of the state and the case
essentially involves state law.
DEFINING RESIDENCY
A. Natural Persons: the citizenship of a natural person turns on two things:

domicile and intent to reside indefinitely.
B. A person is a citizen of the state in which he is domiciled.
C. Residence is also dependent on one's intent to reside indefinitely in a
state. Intent can be demonstrated by:
a. The state in which a person's driver's license is issued.
b. The state in which a person votes.
c. The state in which a person pays taxes.
d. The state in which a person works.
e. The state in which a person holds property.
D. *Residency is determined by the status of the party at the time the action
was filed.
E. Residency of a Corporation
a. The residency of a corporation is defined by the state statute itself. A
corporation can notably be a resident of more than one state.
i. It is usually a citizen of the state in which it is incorporated and
the state in which it has its principal place of business.
ii. There is one principal place of business and one state of
incorporation. These two places may be the same state.
b. There are two tests to determine a corporation's principal place of
business:
i. the nerve center test determines where the principal
management occurs.

ii. The other test considers where most of the business operations
take place in.
iii. The court has discretion to choose which is more determinative
of a principal place of business: the nerve center or business
operations.
MULTI PARTY MULTI FORUM TRIAL JURISDICTION ACT

A. 28 U.S.C. § 1369 allows federal courts to hear certain kinds of diversity cases
when the case is big enough to merit federal attention even though complete
diversity is absent.
B. Minimal diversity: there is some diversity in the lawsuit where some plaintiffs
are residents of different states of the defendants, but not all. Although there
are parties from the same state on opposite sides of the "v." there are also
parties from different states on opposite sides of the "v." and thus minimal
diversity justifies federal jurisdiction over some suits.
C. MMTJA requires a class action with minimal diversity (defined by any member
of a class of plaintiffs being from a different state as one of the defendants).
D. It is difficult to establish complete diversity in a class action with so many

parties because it is inevitable that two out of the five hundred parties
involved may be of the same state.
E. The courts have an interest in creating an efficient and adept forum to

adjudicate a large class action lawsuit. Therefore, there must be an efficient
federal forum to hear a large class action on issues of national interest. The
MMTJA establishes this forum.
F. Discretionary Controversy Exception: The District Court may decline to

exercise jurisdiction over a class action in the interests of justice if more than
one third but less than two-thirds of the proposed class members are
residents of the state in which the suit was filed.
a. The court may choose whether or not justice requires a federal forum
for a certain action.
• Passa v. Derderian, 308 F.Supp. 2d 43,

(D.R.I. 2004).
F: A flood of litigation followed a disastrously fatal nightclub fire. Numerous
products liability, negligence, and contribution actions were filed throughout
New England in both state and federal courts, including class actions by fire
victims, their estates, and their family members. The Δ in these class actions
are the band, the nightclub, the managers, corporate sponsors, and the title
holding corporation.
R/H: A class action of substantial size and of national interest may
be argued in federal court even though complete diversity does not
exist. The Multiparty Multiforum Trial Jurisdiction Act (MMTJA) allows a class
action of sufficient size to be argued in federal court although complete
diversity of citizenship may be lacking. Subsection (a) of MMTJA is satisfied
because less than one half of the Πs reside in Rhode Island or any other
state. The action shall remain in federal court.
REMOVAL
A. 28 U.S.C. 1441(a) allows a defendant to remove a case to federal court if it

could have been brought there in the first place.
B. Only applies to diversity jurisdiction cases.
C. Timing – A party can only move for removal within 30 days of receipt of the
complaint.
D. One way street – Only a defendant can move for removal, not a plaintiff.
E. Removal is only allowed where there could have been federal jurisdiction in
the first place.
F. Only one court can host a removal: the federal district and division embracing
the place where such action is pending in state court.
G. 28 U.S.C. § 1446 provides the procedure for removal. A defendant may file a
short and plain statement of the grounds for removal within 30 days of
receiving the complaint. After 30 days expire, so does the opportunity for
removal.
H. If there is a federal question in the plaintiff's complaint, the action is
removable regardless of the citizenship or diversity of the parties.
a. Strategy – To avoid removal to federal court, the plaintiff can:
i. Refrain from raising a claim under federal law.
ii. Can avoid removal by suing only nondiverse defendants.
iii. File suit in the state where one of the defendants resides.
FORUM DEFENDANT RULE

A. 28 U.S.C. 1441(b) - A case may be removed to federal court only if it is
brought in a state in which not a single one of the defendants resides. The
state court must not be state of residency of any of the defendants.
a. If the plaintiffs give at least one of the defendants the home field
advantage of a state court in the state in which the defendant resides,
the action may not be removed.
b. The defendant already has a convenient forum in the form of a local

state court. Therefore, none of the defendants may remove to federal
court.
REMAND

A. 28 U.S.C. 1441(c) – A plaintiff may reverse the removal to federal court if
state law dominates the removed claim. The court decides in its discretion
whether the entire action should be argued in federal court or state court.
Where state law claims dominate the action, there is a strong presumption to
let the state court decide the case.
• Burnett v. Birmingham Board of Education, 861 F. Supp. 1036,

(1994).
F: Πs brought a breach of contract action in state court. Δs removed to
federal court under 28 U.S.C. §1331(a) and 28 U.S.C. §1343(a)(3). Πs moved
to remand the case to state court pursuant to 28 U.S.C. §1441(c)
R/H: The remand clause of §1441(c) allows remand of the entire case,
including federal claims, where state law predominates. Remand under
§1441(c) requires only that the prior removal to federal court be
based on §1331 and not solely on §1331.
SUPPLEMENTAL JURISDICTION
A. When claims arising out of state and federal law are so intertwined the
federal court may exercise supplemental jurisdiction over the both to argue
them together as one constitutional case.
B. This is a discretionary doctrine - the court may or may not exercise

jurisdiction over a state claim that is tied to the federal claim with a common
nucleus of operative fact.
C. "Common nucleus of operative fact" - Gibbs requirement for tying together

claims in supplemental jurisdiction.
D. Requirements from 28 U.S.C. §§1331(a), 1332(a) for federal question and for
complete diversity of citizenship still apply.
E. Analysis Procedure for Supplementary Jurisdiction – Steps to follow
1. Does the exercise of SMJ violate 28 USC §1332?

2. Does efficiency require supplemental jurisdiction?
3. Do the claims and/or parties arise from a common nucleus of operative
fact?
4. Has the plaintiff brought in the nondiverse party, or has the defendant
impleaded him or her?
• Owen v. Kroger, 437 U.S. 365,

(1978).
F: Π filed a wrongful death action against diverse Δ OPPD in federal court
under diversity jurisdiction. Π then amended her complaint to add Owen
Equipment as a nondiverse Δ. OPPD was granted summary judgment. Δ
Owen Equipment filed a 12(b)(1) motion to dismiss.

R/H: The 12(b)(1) motion is granted. Complete diversity was destroyed when
Π amended her complaint to include Owen Equipment as a Δ. If Gibbs were
the only test, Π could evaded diversity of citizenship requirements of 28
U.S.C. §1332(a)(1) by waiting for Δ to implead a nondiverse third-party Δ.
The Gibbs test for “common nucleus of operative fact” is not the
only requirement for federal jurisdiction; the statutory requirements
of 28 U.S.C. § 1332(a)(1) are also mandatory.
F. Ancillary Jurisdiction – the federal court has jurisdiction to hear claims against
parties impleaded by an original defendant. Codified in 28 U.S.C. §1367(a).
a. No jurisdiction to hear claims joined by the plaintiff b/c plaintiff cannot
sue nondiverse defendants in federal court under diversity jurisdiction.
• UMW v. Gibbs, 383 U.S. 715,

(1966).
F: Π brought a conspiracy action under state law against Δ concurrently with
a claim of violations of § 303 of the Labor Management Relations Act (61 Stat.
158) of 1947. The §303 claim was dismissed by a JNOV. The court entered a
verdict in favor of Π on the state conspiracy claim, which Δ now appeals.
R/H: The federal court justly chose to retain jurisdiction over the remaining
state law claim as part of pendent jurisdiction. When Π pleads state and
federal claims arising under a common nucleus of operative fact, there is
pendent jurisdiction and the federal court may assert jurisdiction over the
claims as a whole in the interests of efficiency and fairness. In the event
that the federal claim is dismissed on a trial motion a federal court
has discretion whether or not to dismiss the remaining state law
claims for lack of subject matter jurisdiction.
• Finley v. United States, 490 U.S. 545,

(1989).
F: Π filed negligence action against G & E and City of San Diego in state
court, then filed negligence claim under Federal Tort Claims Act (FTCA)
against the Federal Aviation Administration (FAA) in federal court. Π then
moved to amend her federal complaint to include claims against the state
defendants and tie the cases together. The motion was granted. Defendants
filed an interlocutory appeal to challenge the pendent-party jurisdiction.
R/H: Π is required to argue her case in federal court because the FTCA
require it. This limited choice of forum does not justify arguing state law
claims against intrastate parties in federal court. The diversity requirements
and the Consitution outweigh the interests for convenience and efficiency. A
plaintiff may not argue state law claims against an added
nondiverse defendant in federal court. Π will have to argue her claims
in two different trials – one in state court against state defendants and one in
federal court against the United States.
STATUTORY BASIS

28 U.S.C. §1367 – Federal courts have discretion to hear state law claims that arise
out a common nucleus of operative fact giving rise to the federal law claims.
1367(a) - Supplemental jurisdiction includes claims that involve the joinder of
additional parties.
1367(b) - It shall not grant jurisdiction by plaintiffs against a nondiverse defendant.
1367(c) - Supplemental jurisdiction is discretionary.
1367(d) - The statute of limitations is frozen when state law claims are dismissed for
lack of subject matter jurisdiction.
ERIE DOCTRINE
A. The Erie Doctrine is a vertical choice of law issue.

a. Should the federal court apply federal law or state law when deciding a
case?
b. To which issues does federal law apply, and to which issues does state
law apply?
B. State law provides the rule of decision in a case of diversity
jurisdiction.
a. If the case does not arise under federal law, state law provides the
decision.
• Erie Railroad v. Tomkins, 304 U.S. 64, (1938).

F: Π brought negligence action against Δ Railroad Company in District Court
of New York for injuries resulting from when he was hit by a passing train
while walking along the train tracks. According to Pennsylvania law Π was a
trespasser when walking along railroad tracks and would be barred from
recovery.
R/H: The court should avoid inequitable administration of justice by keeping
the choice of law between federal and state courts constant. However, the
court does not want to allow unfair forum shopping by plaintiffs who go
looking for the most sympathetic state. In cases argued in federal court
on diversity jurisdiction, the federal courts should use the state law
of the state in which the action is brought.
ERIE DOCTRINE CHECKLIST
A. Directly Conflicting Rules Test (From Hanna v. Plumer)

a. Look to see if there is a direct collision between the state rule and the
federal rule. Does the federal rule cover the same area that the state
rule embodies? If there is no direct collision the court does not have to
choose one over the other and can simply follow the federal rule.
B. Substantive/Procedural Rule Test. Decide whether the conflicting rules are
procedural or substantive.

a. In a collision between substantive laws, the state law will
prevail.
i. But, constitutional provisions always trump state law.
ii. But, the state law will only be upheld if it does not violate the
twin aims of Erie. Look to Modified Outcome Determinative
Test.
iii. Would upholding the state law to the exclusion of federal law
lead to improper forum shopping or inequitable administration of
justice?
b. In a collision between procedural laws, a valid federal law will
usually prevail.
c. The federal law must be valid under 28 U.S.C. § 2072 in that it does not
abridge, modify, or enlarge any substantive right. It must also be valid
under the Constitution. If the rule is invalid, it will not be used.
d. If the rule is valid under 28 U.S.C. § 2072 and the Constitution, the
federal rule prevails and in fact displaces state law under the
supremacy clause.
C. Modified Outcome Determinative Test
a. If applying the federal rule to the exclusion of the state rule would
change the outcome of the civil action, the federal rule should not be
used. If the upholding of the federal rule would not change the
outcome, merely the procedural process, the federal rule should be
used.
b. Modified Outcome Determinative Test: Also apply the twin aims of Erie:
i. Promote equitable administration of justice
1. Would applying the federal rule create divergent
outcomes in different courts? If so, the court must follow
the state law to create consistent outcomes.
ii. Prevent forum shopping.
1. Would the plaintiff deliberately choose federal court over
state court to gain some advantage?
2. If there is a substantive advantage to be gained, there is
a possibility of forum shopping and the state law should
be applied.
CONFLICTING RULES TEST
A. Is there a direct collision with state law or rules?

B. A federal constitutional provision will always trump state law regardless of
substantive/procedural characteristics. By nature of the Supremacy Clause
the Constitution is the highest law of the land.
a. i.e. Fifth, Sixth, and Seventh Amendments trump state law.
C. If the conflicting rule is substantive  use the state law.
D. If the conflicting rule is procedural  use the federal law if…
a. Federal law must be valid under Constitution and the Rules Enabling
Act. The federal rule cannot abridge, enlarge, or modify any
substantive right.
E. Classifying procedural rules: Does the rules only regulate the judicial process
for enforcing rights and duties recognized by substantive law and for justly
administering remedy and redress for disregard or infraction of them? Is it
rationally only a procedural issue?
a. Examples: In what order to submit forms, when the time period for a
motion ends, when the action is considered to have commenced, and
what evidentiary standards are to be used.
F. If there is no collision, use the federal rules as long as…
a. Federal rule does not violate twin aims of Erie Doctrine.
i. Promote equitable administration of justice
1. Would applying the federal rule create divergent
outcomes in different courts? If so, the court must follow
the state law to create consistent outcomes.
ii. Prevent forum shopping.
1. Would the plaintiff deliberately choose federal court over
state court to gain some advantage?
2. If there is a substantive advantage to be gained, there is
a possibility of forum shopping and the state law should
be applied.
b. Check: is there an overriding federal interest for applying this rule?
Does it injure the independence of the federal judiciary to require the
state law? If so, federal interest compels use of the federal rule.
• Hanna v. Plumer, 380 U.S. 460,
(1968).
F: Π brought negligence action against the estate of tortfeasor Louise Plumer
Osgood in the District Court for the District of Massachusetts under diversity
jurisdiction. Π filed complaint compliant with FRCP 4(d)(1). Δ moved for
summary judgment on grounds that defendant had failed to properly serve
the complaint pursuant to Mass. Gen. Laws Ann. c. 197 § 9.
R/H: There is a conflict between state and federal rules here on the proper
procedural to submit a civil complaint. The outcome determinative test is not
absolute. Instead of outcome determinative test, the rule should be whether
or not the dispute rule really regulates procedure. Purely procedural
matters should be controlled by federal rules of procedure.
OUTCOME DETERMINATIVE TEST
A. If applying a federal rule to the exclusion of the state rule would change the
outcome of the action, it should not be used.
B. As long as the outcome does not change, merely the process the action goes
through, the federal rule can be applied.
• Guaranty Trust v. York, 326 U.S. 9,

(1945).
F: Π brought breach of fiduciary duty claim against Δ bank. Δ moved to
dismiss the action on grounds that the statute of limitations had expired.
R/H: Regardless of whether the case was argued in state or federal court,
the outcome should be substantially the same. If the outcome is
substantively the same federal courts can apply the federal rule
instead of the state one. Federal courts have to apply state statutes of
limitation and not the federal statute of limitations.
SUBSTANTIVE/PROCEDURAL RULES TEST

A. The federal courts have a vested interest in upholding the procedural
rules that the judiciary has created.
B. However, citizens have a claim to have their substantive rules

protected. If a rule changes one’s substantive rights it should be
determined by the state rule of decision.
a. To allow the federal rule to define substantive rights would lead
to divergent outcomes between the state and federal courts.
C. If the rule is procedural, use a valid federal rule of decision.
D. If the rule is substantive, perform the modified outcome/determinative

test. Does following the state rule accomplish the twin aims of Erie?
a. In most cases state law will win out. The federal court will be
obligated to emulate the result that would occur in state court,
unless doing so encourages improper forum shopping and
inequitable administration of justice.
E. Contrarily, a state rule does not have to be followed if it is not bound

up with the state's rights and obligations or a Constitutional right of the
citizen.
• Byrd v. Blue Ridge, 356 U.S. 525,

(1958).
F: Π brought negligence action. Δ argued that Π was barred from suing Δ
because the South Carolina Workmen’s Compensation Act restricted
workplace injury compensation to a statutorily-defined compensation level.
R/H: The outcome-determinative test, while suggestive, is not
demonstrative. The interests of the federal court’s efficient and organized
operations should be respected, especially where the outcome-determinative
test does not return a strong result for either state or federal law. The
Seventh Amendment's guarantee to a jury trial should win out over

a state law requiring a judge to decide such an issue. The federal
standard for a jury wins over the state one for a judge.
• Walker v. Armco, 446 U.S. 740,

(1980).
F: Π brought products liability action against defendant in the United States
District Court of the Western District of Oklahoma. Δ filed a motion to dismiss
the action on grounds that the action was barred by Oklahoma statute of
limitations. Oklahoma statute of limitations requires an action be
commenced within two years of the events giving rise to the lawsuit.
Oklahoma statute says the action is commenced when service is made to Δ,
while FRCP #3 says the action is commenced when the action is filed.
R/H: There is no conflict here because the FRCP does not define a statute of
limitations as the Oklahoma statute does. Because there is no conflict, the
court considers whether FRCP#3 abridges a substantive right – an action
should not be given longer life in federal court than it is in state court. Giving
an action in federal court longer time to be filed than an action in state court
would encourage unfair forum shopping. § 97 is a substantive rule of
decision, it controls service of process in Oklahoma federal court,
and is binding on the federal court as a state rule of substantive
rights.
STATUTORY BASIS
Rules Enabling Act, 28 U.S.C. § 2072.
(a) The Supreme Court shall have the power to prescribe general rules of practice and
procedure and rules of evidence for cases in the United States district courts (including
proceedings before magistrate judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict
with such rules shall be of no further force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final for the purposes of appeal
under section 1291 of this title.
FINALITY
A. When a court issues a final judgment on a claim or issue, it is ultimately

decided completely. A party cannot re-litigate issues that have already been
decided in a court of law.
a. This rule gives force to the courts. Courts cannot provide conflicting
decisions because to do so would eradicate the concept of justice.
b. We cannot have different courts returning different verdicts on the
exact same issue or claim.
c. It gives peace of mind to the litigant who won the action, and
conserves time and resources by incentivizing parties to bring all
related claims and parties in the first and same action.

B. Each litigant has an opportunity to argue his or her case before a neutral fact
finder. Everyone deserves his or her day in court – this is a Due Process and
fairness issue.
a. However, this is not an absolute right.
b. A party that has his or her claim dismissed with prejudice by a judge
has had his or her day in court. One cannot re-file that action and
hope for a jury verdict if the judge has entered a final judgment.
C. If a litigant has had a full and fair opportunity to litigate a claim or issue, it
may not be reopened in a new issue.
a. It may be appealed, but that is a different matter. A verdict under
appeal is not a final judgment.
CLAIM PRECLUSION
A. Also known as Res Judicata.

B. Res Judicata – A party can preclude an opponent from bringing a claim
against him or her on grounds that it should have been included in a prior
action.
a. The action will be dismissed for efficiency reasons. If the second claim
is really the same as the first claim, it should have been brought in the
previous action and cannot be brought in the second.
i. Ex: Pam cannot sue Bob once for property damage stemming
from a car accident and a second time for personal injury from
the same car accident.
C. Requirements for Res Judicata:

a. There has been a final judgment on the merits of this claim.
b. Both parties were parties in the previous lawsuit (mutuality of
obligation).
c. Claim arises out of the same transaction or occurrence as the original
lawsuit.
D. If the second action arises out of the same transaction or occurrence giving
rise to the first action and the parties are the same, then the second claim is
precluded by Res Judicata.
E. The modern trend focuses on the transaction view of the claim, rather the
older analysis of differential rights and damages. If the facts or evidence in
the second action involve a common nucleus of operative fact as the first
action, these two actions are actually part of the same claim. The second
claim will thusly be precluded.
• Car Carriers v. Ford, 789 F.2d 589, (7th

Cir. 1989).
F: In 1982 Π and six other plaintiffs brought an antitrust action against Δ
along with five other pendent state law claims. The antitrust claim was
dismissed with prejudice. The pendent state law claims were dismissed

without prejudice. In 1983, Π brought suit against Δ for violations of the RICO
act, the Interstate Commerce Act, and other violations of Illinois state
business law.
R/H: It is clear that the parties are the same now as they were in 1982 and a
final judgment had been handed down back in 1982 that applies here. The
causes of action detailed in the 1983 complaint are the same that were
included pendent to the federal claims in 1982. Because these cause of
action were dismissed a year ago, they are precluded from being
brought again here.
FINAL JUDGMENT ON THE MERITS

A. A claim that is dismissed under FRCP 12(b)(1) - 12(b)(3), or 12(b)(7), is
not later subject to claim preclusion. These kinds of dismissal are
generally done without prejudice.
a. This is not a final judgment on the merits, it only points out a

procedural fault in the pleadings or choice of court/venue.
B. However, if the court decided an issue in the process of deciding

jurisdiction or indispensible parties, that holding can be binding on
subsequent actions and create issue preclusion.
a. Court may decide pleading does not raise a federal issue and
does not satisfy federal question jurisdiction. The action can be
re-filed, but not under federal question jurisdiction – that issue
has been given final judgment.
C. A FRCP 12(b)(6) dismissal will usually preclude the claim from being
brought in a subsequent action. However, the court may dismiss
under 12(b)(6) without prejudice, in which case the claim is not
precluded from re-filing.
POLICY - EFFICIENCY
F. The federal rules behind Res Judicata, compulsory joinder of claims, joinder of
parties, and supplementary jurisdiction all use the same language to
determine if two claims are actually the same one. The policy behind all of
these rules if efficiency.
G. These rules are intended to establish a just, efficient, and fair administration
of justice.
H. Modern FRCP allow for broad joinder of claims and parties. Once again, this
is in order to ensure swift and efficient use of justice.
I. Res Judicata incentivizes parties to use the joinder mechanisms because if
they do not they are prevented from doing so after the conclusion of the first
action.
J. Rule 13(g) on compulsory counterclaim and Rule 12(b)(7) on indispensible
parties require a party to bring related claims and parties into court in the

first action or lose one’s rights to judgment against those parties and on
those claims.
PROCEDURAL TOOLS FOR RES JUDICATA
• FRCP 8(c)(1) allows Res Judicata as an affirmative defense.
• FRCP 56(c) allows a party to move for summary judgment on Res

Judicata by claiming there is no genuine issue of material fact because
the issue of fact has already been ruled on this issue in one's favor.
EXEMPTIONS TO RES JUDICATA
A. Exemptions under Discovery of Facts

a. If new facts have occurred since the first action was commenced, the
plaintiff may be allowed to bring the new action because it involves a
new transaction or occurrence.
b. In this respect, the action is not the same as the first one because
although it does have some similar facts, it has entirely new
transactions or occurrence that have occurred since the original action.
c. However, this exemption is not allowed if the transactions occurred
before the first action was commenced but the plaintiff did not know
about the facts.
i. The plaintiff has a duty to learn about the facts and do its
homework, so to speak.
ii. If the plaintiff did not know about those facts at the time of filing
the first action, s/he has no right to bring that action at a later
day.
B. Exemption under Jurisdictional Limits
a. The subsequent claim is barred if it could have been part of the first
action.
b. Conversely, if you could not have brought the claim in the first action
because of jurisdictional issues, you may bring that claim in a
subsequent action in a different court.
i. Ex: family court, probate court, traffic court, and other courts of
limited jurisdiction do not have the power to hear various claims
against the same party arising out of the same transaction or
occurrence.
c. For example, a tort claim may be brought in a subsequent action after
a divorce action has already received a final judgment on the merits in
family court because the family court has no jurisdiction to hear the
tort claim.
CLAIM PRECLUSION BY NONPARTIES

A. Traditionally, claim preclusion is only available if the previous final
judgment on the merits was binding on both parties – the one asserting
res judicata and the one who is subject to res judicata.
B. However, the courts have allowed a nonparty to the previous action to
raise Res Judicata under special circumstances.
C. A nonparty can be precluded from bringing subsequent action in one
of these preexisting categories: If the nonparty can be fit into one of
the early included exceptions
1. A nonparty who agreed to be bound by the results
of the first action is precluded from bringing subsequent
action.
2. There was a preexisting substantive legal
relationship between the party of the first action and the
nonparty.
a. i.e. assignor and assignee, bailor and bailee.
3. Nonparty was adequately represented by a party
with the same interests.
4. Nonparty assumed control over the litigation in
which judgment was entered.
5. Nonparty paid the bills, made decisions, etc.
6. A precluded party may not re-litigate through a
proxy.
7. A special statutory scheme prevents re-litigation.
a. Includes bankruptcy and probate hearings,
and other actions brought on behalf of the
public.
• Taylor v. Sturgell, 646 U.S. 140,

(2006).
F: Herrick brought suit against the FAA to enjoin them to release the
technical documents. The District Court for the District of Wyoming ruled for
the FAA. He failed to raise of the issue of whether the sought-after
information could be made a trade secret after such status was suspended.
Mr. Taylor tried to bring suit against FAA on this issue, but the FAA asserted
claim preclusion against him on grounds that Mr. Taylor was virtually
represented by Mr. Herrick.
R/H: The court outrights rejects virtual representation is a flexible doctrine
that involves lots of time-consuming consideration and room to maneuver.
Claim preclusion is not an area of the law that should be vague and flexible.
There must be crisp and clear definitions for when a party has been given his
or her day in court. Claim preclusion only works against a nonparty in
one of the six specified exceptions.
ISSUE PRECLUSION
A. Also known as collateral estoppel.
B. A party can raise issue preclusion as either a defensive or offensive strategy.

C. Requirements:
a. That issue has been actually litigated.
b. There has been a final judgment in that action.
i. As long as there have been adversary proceedings that lead to a
judgment, the due process requirement has been satisfied.
c. The decided issue was an essential component of the final judgment.
C. Standards of Proof
a. An issue is not precluded from further litigation if it has been decided
in a previous action with a lower standard of proof.
i. i.e. If an issue is decided in a civil case based on a
preponderance of the evidence, it is not precluded from further
litigation in a criminal case because a criminal case requires
proof beyond a reasonable doubt.
b. On the other side of this comparison, an issue decided in a previous
action with a higher standard of proof is binding on a subsequent
action with a lower standard of proof.
i. Ex: The verdict of a criminal case is binding on a subsequent
civil action.
ACTUAL LITIGATION OF AN ISSUE

A. Every person deserves their day in court when exposed to liability. As long
as a party is given a full and fair opportunity to litigate an issue on
one's behalf, that party has been given a day in court and his or her due
process rights are vindicated.
a. On each issue and or claim, one must be given a chance to litigate the
issue.
b. This does not mean every issue deserves an entire evidentiary trial
before a jury.
B. Procedural devices such as Summary Judgment, Judgment Notwithstanding

the Verdict, and Judgment as a Matter of Law do not violate one's due
process or Seventh Amendment Rights.
C. Before there is a finding of issue preclusion, the decided issue must be an

essential element of the previous final judgment.
a. An ancillary ruling is like dicta - it is not binding on subsequent actions.
D. A special verdict tends to answer the question of issue preclusion very

quickly. If the jury answered specific questions about individual issues, then
the final judgment on those issues is made explicitly clear.
• Jarosz v. Palmer, 436 Mass. 526, (SJC

Mass. 2002).
F: Π brought suit against Δ for breach of contract, breach of fiduciary duty,
legal malpractice, and violation of G.L. c. 93A. Δ moved to dismiss on
grounds of issue preclusion, arguing that the issue of attorney-client
relationship had already been decided in an earlier action.
R/H: The issue of Palmer’s attorney-client relationship with Jarosz was not
essential to the determination of Jarosz’s breach of fiduciary duty claims in
the prior action. The choice of attorney was not a logical and
necessary component of the general verdict and thus is not ripe for
issue preclusion. Such an ancillary holding is not an essential component
of the general verdict and as such is not appropriate grounds for issue
preclusion.
ESSENTIALITY REQUIREMENT
A. An issue may be technically decided for purposes of collateral estoppel if it is

a logical and necessary component of an earlier final judgment, even if that
finding was not made explicit.
B. The burden of proof is on the party claiming issue preclusion to prove that
the issue in question was decided in an earlier action.
a. To do so, it must look to the record and consider how essential that
issue was to the general verdict.
b. Was it a practical or essential component of the verdict?
C. The court can infer what issues constructed the jury's general verdict.
a. To do so, it can look at the substance of arguments given in the earlier
action and reconstruct what the jury had decided.
D. A special verdict tends to answer the question of issue preclusion very

quickly.
a. If the jury answered specific questions about individual issues, then the
final judgment on those issues is made explicitly clear.
• Hoult v. Hoult, 157 F.3d 29, (1st

Cir. 1998).
F: In 1988 Jennifer Hoult won an action against her father, David, for assault
and battery, IIED, and breach of fiduciary duty, during which the allegations
or rape played a central role in her case. The jury returned a general verdict
for Jennifer, awarded her damages, and found that Jennifer had repressed
memories of abuse which were rediscovered during the statute of limitations
period. David brought defamation of character action against Jennifer Hoult
for sending letters to professional associations stating that he had raped his
own daughter. She raised defense of issue preclusion – court had already
decided he raped her.
R/H: The rape charges were the centerpiece of the appellee’s case. To find
a $500,000 verdict for Jennifer the jury must have decided that the repressed
memories of rape were true and accurate. Whether or not the rape
occurred has been entered a final judgment on and may not be re-litigated in
a defamation action. An issue may be technically decided for purposes

of collateral estoppel if it is a logical and necessary component of an
earlier final judgment, even if that finding was not made explicit.
NON-MUTUAL ISSUE PRECLUSION
A. Issue Preclusion can be used both offensively and defensively.
B. Issue Preclusion requires only that the party being precluded was a party to
the previous action.
a. Different from claim preclusion, which requires both parties were party
to the previous action.
C. Defensive Preclusion
a. In the interests of consistency and judicial economy, defensive use of
collateral estoppel should be allowed. Plaintiffs should not be allowed
to re-litigate aspects of their claim against various defendants on the
chance they might win one of these attempts.
b. When a party wins an issue on the merits that judgment should be
binding on any party that brings suit against it on that same issue.
c. If final judgment is entered against a plaintiff in a prior action, the new
defendant in a new action can assert issue preclusion against that
same plaintiff.
D. Offensive Preclusion
a. A judge may deny use of offensive issue preclusion if it has the
potential to create one of the problems with issue preclusion:
inefficiency, unfairness, and contradictory justice.
b. Offensive preclusion is more difficult because it may lead to inefficient
outcomes. It has the potential to create three problems: “wait and
see” plaintiffs, divergent incentives, and contradictory verdicts.
c. “Wait and See Plaintiffs”: offensive collateral estoppel allows a plaintiff

to “wait and see” how an issue plays out and use the first action as a
tool in the arsenal of a subsequent action.
i. Plaintiffs may hold out and watch how a first action plays out,
then later sue the same defendant on the same action if the
defendant loses. This creates inefficiency.
ii. Plaintiffs who could have joined the first action may wait and
create a multitude of subsequent actions against the defendant,
taking up the time and resources of the court and the
defendant.
d. Divergent incentives: A defendant may not work very hard at litigating

an issue when the consequences are small, but will be precluded from
litigating zealously on a major claim involving the same issue.

i. The costs and consequences of an action will determine how
zealously a defendant litigates an issue.
ii. The opportunity to litigate in small claims court is not as
substantial as the opportunity in a large class action.
iii. Offensive collateral estoppel can expose a defendant to more
liability than if the issue was re-litigated for each action.
e. Contradictory Verdicts: If a defendant is facing a series of lawsuits

against different plaintiffs and wins a number of them but loses a later
trial, the plaintiffs may use that issue against the defendant in
subsequent actions.
i. Defendant wins the first three trials on an issue of negligence.
ii. Defendant loses fourth trial on issue of negligence
iii. During trials five through ten plaintiffs can use issue preclusion
that preclude the defendant from arguing the issue of
negligence.
1. Trials four through ten have a different holding than trials
one through three. This is contradictory judgment of the
issues.
iv. The earlier and later actions will have contradictory verdicts
because the plaintiffs have used offensive issue preclusion.
• Parklane v. Shore, 439 U.S. 322,

(1979).
F: Defendant lost an earlier lawsuit against the SEC, during which the judge
ruled that the defendant’s earnings statement was false and misleading.
Plaintiff brought a class action shareholders derivative suit against the
defendant. Plaintiff moved for partial summary judgment on grounds that an
earlier action had already ruled that the defendants issued a false and
misleading earnings statement.
R/H: Each application of offensive issue preclusion should be decided by an
individual judge on an ad hoc basis. In cases where the plaintiff could
have joined the earlier action or where use of collateral estoppel
would be unfair to the defendant, a trial judge should not allow
offensive collateral estoppel. It is in the interests of consistency and
efficiency to allow the previous finding to preclude relitigation on the false
and misleading nature of the aforementioned proxy statement.
INTER-JURISDICTIONAL PRECLUSION
State --> State. The full faith and credit clause of the Constitution mandates that a
court in state B accord a judgment rendered in State A the same preclusive effect
as it would have in State A.
State --> Federal. 28 U.S.C. § 1738 imposes a "Full Faith and Credit Statute" which
obligates federal courts to honor the judgments of all of the state courts.

Federal --> State. A judgment entered in a federal question case is binding on the
state court.
A judgment entered in a diversity action is applied as long as the state

preclusion rules are applied. This is to prevent unfair forum shopping and
inequitable administration of justice.

Civil Procedure - Spring Outline 2009

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CIVIL PROCEDURE OUTLINE

Sources of Due Process Requirements....................................................................4

The Pleading Process.............................................................................8

Joinder of Claims and Parties................................................................13

Consolidation and Separate Trials.........................................................................19

Attorney Work Product.......................................................................................22

| Spring 2011 | Civil Procedure 1

Judgment As a Matter of Law................................................................................25

Judgment Notwithstanding the Verdict..................................................................26

Long arm Statutes..............................................................................................30

General and Specific Jurisdiction........................................................................33

Interstate Stream of Commerce ........................................................................39

Forum Non Conveniens......................................................................................42

Subject Matter Jurisdiction....................................................................42

Federal Question Jurisdiction.................................................................................43

Well Pleaded Complaint Rule..............................................................................44

Erie Doctrine Checklist..........................................................................................51

Conflicting Rules Test.........................................................................................52

Outcome Determinative Test.............................................................................53

| Spring 2011 | Civil Procedure 2

Exemptions to Res Judicata................................................................................58

Claim Preclusion by Nonparties..........................................................................58

Non-Mutual Issue Preclusion...............................................................................62

| Spring 2011 | Civil Procedure 3

SOURCES OF DUE PROCESS REQUIREMENTS

Fifth Amendment – “No person shall be deprived of life, liberty, or property

Federal Rules of Civil Procedure – Notice of rights and opportunity to be heard

DUE PROCESS APPLICATIONS

• Hamdi v. Rumsfeld 542 US 507 (2004)

| Spring 2011 | Civil Procedure 4

• Goldberg v. Kelly 394 US 254 (1970)

R/H: Welfare recipients deserve to have an evidentiary hearing prior to the

• Fuentes v. Shevin 407 US 67 (1972)

R/H: A person’s property shall be deprived without due process of

• Matthews v. Eldridge 424 US 319 (1976)

| Spring 2011 | Civil Procedure 5

GOLDBERG DUE PROCESS TEST

 Preliminary remedies are obtained before any judgment is reached on the

 These remedies are requested via per-trial motion

 Requires that movant show immediate and irreparable injury, loss, or

TYPES OF PRELIMIARY REMEDIES

| Spring 2011 | Civil Procedure 6

E. Attachment – holds property in escrow so that defendant cannot dispose or

F. Garnishment – court can hold funds/wages of the defendant in order to pay

Damages request must be accompanied by a showing of how the Π has been

a. Nominal injury – rights were violated, so compensation is appropriate

b. Compensatory damages – property or person was damaged, so damages

c. Punitive damages – instituted to compensate for pain and suffering

Same as preliminary judgment above. The court’s open declaration

| Spring 2011 | Civil Procedure 7

PURPOSE OF THE PLEADING REQUIREMENTS

• Conley v. Gibson 355 U.S. 41, (1957)

| Spring 2011 | Civil Procedure 8

• Diguordi v. Durning 193 F.2d 774 (2nd Cir. 1944)

R/H: Although the Π is decidedly inarticulate and wrote out a home-made

HEIGHTENED PLEADING REQUIREMENTS

a. Fraud, anticompetition claims, misrepresentation, and condition of

c. However, the heightened pleading requirements do not apply to

• Leatherman v. Tarrant 507 U.S. 163 (1992)

| Spring 2011 | Civil Procedure 9

R/H: It was not reasonable to hold a heightened pleading requirement

• Bell Atlantic v. Twombly 550 U.S. 544 (2007)

R/H:The Supreme Court rejects the old pleading standards from