Professional Documents
Culture Documents
c. International Shoe – Contacts + Fairness – Minimum Contacts (fair play & justice)
(i) 2 Parts to Test:
(a) Contact
(b) Fairness
(c) “D has such minimum contacts with the forum, exercise of jurisdiction does not offend
traditional notions of fair play and substantial justice”
(ii) Int’l Shoe Notes
(a) SC giving NEW DOCTRINAL FORMULA
(b) Test is very flexible - expand PJ, amorphous
(c) Now clear can serve process OUTSIDE the forum state
(d) Does NOT overrule Pennoyer v. Neff
(e) This is test if PERSONAL SERVICE does not occur in the state
b. Worldwide Volkswagen – “Reaching Out to the Forum” (if contacts not sufficient)
(i) Robinsons - move from NY to go to AZ, in OK they have accident, sue in OK - allege that
car was defective, sue 4 Ds, clear that 2 worked, unclear over…
(ii) Worldwide - only does business in CT, NY, and NJ
(iii) Seaway Motors - only did business in NY
(iv) SC says NO - B/C no relevant contact, did not "reach out" to OK, no reaching out to
state
(v) Foreseeability - relevant to PJ, but not enough to see that PRODUCT TO STATE, must be
foreseeable that OK could be SUED IN THE STATE
(vi) Foreseeable that car could go into, but must be substantial enough to avail
5) General v. Specific
a. Helicopteros
b. Subject to General Juris if Continuous & Consistent Contacts with the Forum
(i) i.e Ford HQ in Detroit
B) RECAP
1) MUST have list of factors:
a. Traditional Basis – Question whether traditional basis apply?
(i) If Yes - traditional may be sufficient by itself, but may not b/c of Burnham
(ii) If Not - Int'l Shoe Test
2) International Shoe Test
a. Break into 2 parts:
(i) Relevant Contact b/t State and Forum
(a) Purposeful Availment - D must reach out to forum in some way, make money or use
roads or cause and effect (not 3rd party)
(b) Foreseeability - D could foresee being sued in the forum
1. Marketing to State
2. Zippo – elements
Active, passive, middle ground test
Active – PJ – repeated transmission of files
Passive – no PJ – buried files, stretch to find
Middle –
o If level of site requires
o Marketability of consumer
3. ALS Test (referenced in Raju)
Most applied – 4th circuit (all registered VA)
Requires:
o Target, AND
o Harm
4. LL Bean
Virtual Online Store – Zippo application
5. Nationwide Jurisdiction
Raju – Rule 4(k)(2)
o Not in federal state, AND
o Federal Question, AND
o Not against the Constitution
C) Opportunity to be Heard
1) Pre-Judgment Seizure before judgment
2) Commercial Transactions (typically) -
a. i.e. installment plan purchase, seller wants REPLEVIN (getting property back), pendente lite, during
litigation seller wants the property; normally sheriff would take property, but not done today
b. Connecticut v. Door OR Fuentes - SC has established some safeguards for buyer, unclear how
many need to be present to make repossession unconstitutional (talk to Reynolds about this)
(i) P must give an affidavit and must be SPECIFIC
(ii) Get an order from a judge not from a Sheriff
(iii) P may be required to post a bond - putting up money for compensation if P is wrong
(iv) At some point, D gets a hearing on the merits
B) Aspects:
1) Standing to Sue –
a. Proper parties bring case – party asserting a legal right be the appropriate person to enforce that
right
b. Personal stake in controversy
(i) Either direct injury, OR
(ii) Relief sought is likely to redress injury
c. Causation must be “fairly traceable”
d. Exception
(i) Qui Tam – whistleblowers (False Claims Act)
(ii) Jus Terrie – sue on behalf of
e. Not Allowed:
(i) Advisory Opinion – about upcoming statute
(ii) Political Questions – judicial is judging not enforcing
(iii) Timing – pendente lite
2) Appropriate Disputes
a. No advisory ruling, must be binding
b. Mootness – ruling will not matter any more
(i) Exception:
(a) Substantial state or national interest
3) Ripeness
a. Must be brought to the court at the right time
b. Declaratory judgment under USC 2201,
(i) Can get declaratory judgment if very likely chance of breach (think contracts)
IV. Subject Matter Jurisdiction (SMJ)
A) Intro Notes
1) Different entirely from PJ (over the parties), SMJ (over the case) - must have both
2) PJ - says can sue in state, but not what court one can go to
3) SMJ - says what court someone can go to inside state
4) Federal Court Limited SMJ –
a. Can only hear certain types of cases (diversity of citizenship and federal question)
5) State Courts - General SMJ - can hear ANY case, but states will normally divide based on efficiency
a. Minor Exception - state courts cannot hear SOME federal-question cases where there is
exclusive federal jurisdiction (anti-trust, federal securities, patent, etc…)
B) Diversity of Citizenship - USC 1332(a) - statutes, not federal rules (part of judicial code)
1) Basics:
a. Article III – Section 2
b. USC 1331, 1332, 1333, 1334
c. Freedom from Local Bias
(i) Pg. 325-327
2) 2 Requirements:
a. Citizens of Different States – complete diversity
b. Amount in Controversy must exceed $75,000
c. No – Probate or Domestic Relations
E) Removal
1) Go to Fed Court b/c Defendant wants to be there, removal allows D in state court case to have the case
removed to Federal Court
2) 3 Statutes in play (all are relevant)
a. Section 1441
b. Section 1446
c. Section 1447
3) NOTE: Removal is a one-way street, can only go from state to federal (cannot go from fed to state)
4) Rules for Removal
a. If not applicable in fed - court will REMAND back to state court
b. All defendants must agree
c. Only defendants can remove (even if P become defendant on counter-claim)
d. Venue Rule - only remove to the federal district embracing the state court where it was filed
e. Must remove within 30 days of SERVICE of the document that first made the case removable,
but maximum is in 1 year – diversity only though
f. Most Important - Can remove if federal subject matter jurisdiction - diversity of FQ but 2
exceptions (only in diversity, not federal question)
(i) No removal if any D is a citizen of the forum
(ii) Cannot remove more than 1 year after case was filed in state court
5) Exceptions:
a. Cannot remove on FELA – Federal Employees Liability Act
b. Cannot remove State Work Compensation
6) Getting Around Remand after Removal
a. File for Cert petition
V. Venue
A) Basics
1) Third Hurdle for forum - PJ, then SMJ, now exactly which state or fed court to we go to
2) Federal Districts - must lay venue in the appropriate venue, says exactly which federal court
a. Mass /RI - only have one, but some have 4 districts
C) Transfer of Venue
1) Transferring WITHIN THAT JUDICIAL SYSTEM
a. Choice of law rules will be governed by the “transferor’s” choice of law
2) 2 Statutes - USC 1404 & USC 1406
a. Transfer Venue Must Have (both):
(i) Proper venue AND
(ii) Must have PJ over defendant, AND
(iii) Subject matter jurisdiction
b. All without waiver - D could waiver everything, backdoor way to test PJ)
c. USC 1404 - Transferor IS a Proper Venue (balance test),
(i) One proper venue to another proper venue
(ii) Looking at convenience AND interest of justice factors:
(a) Other court if "center of gravity" makes more sense to be there, up to transferor court
d. USC 1406 - Transferor is an Improper venue –
(i) There statutes says, may transfer in interest in justice OR the court can dismiss
e. USC 1407 Transfer – Multi-District Litigation
(i) Single judge will rule over case where multi-districts are involved (efficiency)
D) Forum Non Conveniens (FNC)
1) Dismisses the case because there is another forum that is far more appropriate –
a. Elements
(i) Must have “adequate” alternative forum
(ii) Choice of law should not matter
(iii) Convenience – Public/Private interests are satisfied
b. Not transferring,
c. This is a dismissal – Other court is in a DIFFERENT JUDICIAL SYSTEM
d. In most cases, better court is in foreign country
2) Piper Aircraft v. Reno (1981 - plane crash in Scotland, all victims/pilots/owners/maintenance crew are
Scottish, case is brought in Penn)
a. SC says fed court should dismiss, litigate in Scotland
b. Defendants love this to go to foreign country b/c normally they are not hit with higher liability
3) Factors for FNC:
a. Public Factors
(i) Administrative difficulties for the court
(ii) Interest of the jury (having no relation to the litigation)
(iii) Holding in the view of the public most affected
(iv) Local interest in local controversies
(v) Familiarity of forum with local law
b. Amenability
c. Private Factors
(i) Ease of finding local evidence
(ii) Ease of obtaining, or compelling witnesses
(iii) Proximity of the Premises where Occurred
(iv) Other practical considerations to make trial, quick, easy, and inexpensive
3) Serve by Answer
5) Rule 12(b) - 7 defenses, the 12(b) defenses (raise either by MOTION or ANSWER):
1. Subject Matter Jurisdiction - believe no SMJ
2. Personal Jurisdiction
3. Venue
4. Insufficient Process - problem w/ process, document problems (unusual)
5. Insufficient Service of Process - documents ok, but not served right
6. Failure to State a Claim
7. Failure to Join an Indispensible Party
6) Rule 12(g)-(h) - Talk about timing of making these defenses; three general rules
a. Defenses 12(b) 2, 3, 4, and 5 –
(i) Use or Lose: Must be in first 12(b) response or else they are WAIVED, whichever you do
first - motion or answer - must be in the FIRST ONE
b. Rule 12(b)(6)-(7):
(i) Any Time through Trial - Can be raised ANY TIME through trial [exp: raise on appeal?
No, too late]
c. Rule 12(b)(1) –
(i) can be raised at ANY TIME AT ALL in the case, even for 1st time on appeal
2) Hanna v. Plummer –
a. Hanna Test - FRPC is valid if "arguably procedural"
b. IS there a federal rule of civil procedure or some other federal statute, constitution on point,
service of process question and there was a federal rule that covered and was valid so superior?
c. SC has never held an FRCP invalid or unconstitutional - SC writes the FRCP
3) If there is no federal directive and fed judge wants to know what law to follow - must follow state law if
it is "substantive"?
a. We have phrases from SC but we don't know how to apply - three phrases to know and apply
b. Outcome Determinative (Guarantee Trust - statute of limitation, state statute barred claim,
and fed judge wanted to ignore and wanted P to have more time for equity - SC said that
substantive because it changed the outcome of the case)
(i) If state is used, no case, if fed used, case goes on - since determinative, apply state
(ii) Problem: every rule is basically procedural, SC has never overruled Guarunteed
c. Balance of State and Federal Interest - Bird v. Blueridge - under state law, judge would
determine, not jury, could fed judge ignore the state law - SC said this was not substantive and
could ignore
(i) If not CLEARLY substantive (not here because just who will decide issue) then state law rules
UNLESS there is a substantial federal interest
(ii) In Bird there was no real reason for the rule, and fed court had interest in running - very little
state interest
d. Twin Aims of Erie - Hanna v. Plummer - (in dicta of Hannum, but SC has adopted)
(i) Avoid Forum-Shopping AND
(a) Apply by - if people will shift decision of where to submit claim, out of state plaintiffs
should not be able to shift the outcome
(ii) Inequitable Administration of Law
e. Gasperini Law –
(i) 2 aspects:
(a) (1) NY statute defined standard for new trial
(b) (2) de novo on appeal
(ii) SC said that standard for new trial was substantive - fed court could be followed
(iii) SC says second issue of de novo on appeal was not substantive, federal interest
(iv) Failed to tell us how to do this analysis of RODA
IX. Pleadings
D) Rule 11 Motions
1) Requires:
a. Read the pleading, motion, or paper AND
b. Reasonably inquired/investigated into the contents of the paper and concluded that it is well-
grounded in fact and warranted in law (objective standard), AND
c. Has not acted in bad faith in signing the document
2) Notes:
a. Can be sanctioned even in the right
3) Garr v. US Healthcare – sanctioned lead attorney, bad lead rep – not enough research about P
4) Safe Harbor
a. Will guard from sanctions if:
(i) 30 after filing before a Rule 11 can be filed
5) Issues of Burdens of Pleading and Burdens of Proof
a. At Trial
(i) Must prove all affirmative claims and defenses
(ii) Normally P must prove all elements of a claim, but it will ultimately be based on who has to
establish the elements – based on who has most information
(iii) Only will shift if other party will have unique knowledge about a situation
A) Joinder Rules - determine the scope of litigation, very testable but not by themselves
1) Good way to test SMJ in fed court as well
2) Every claim must have SMJ - supported by diversity or FQ? If no then can possibly test supplemental
c. 2 kinds of Counter-Claims:
(i) Compulsory Counter-Claim - 13(a) –
(a) Arises from the same transaction or occurrence as the Ps claim
(b) MUST be filed in this case or the case is lost - can never later assert it
(ii) Permissive Counter-Claim - 13(b) –
(a) Counter-claim that does not arise from the same T/O of Ps claim
(b) May assert it here but do not have to
2) Cross-Claim - 13(b) –
a. Against a co-party, not opposing party, must arise from same transaction as the underlying case
b. It is NOT compulsory
D) Proper Parties - who may be joined - Rule 20(a), for the Plaintiff
1) 2 part test for figuring out
a. Claims arise from same t/o?
b. Claims raise one common question (whether other party is negligent)?
2) Co-Defendants - same 2 part test - once all Ps and Ds are together, have to see if it can get into fed ct
3) Severance – Rule 20(b)
2) Rule 19 - 3 rules for when Joinder is possible (if A is necessary but not possible, dismiss)
a. Is A "necessary" (needed for just adjudication)? Need to be in case? Yes if ANY of 3
19(a):
(i) Without A, can the court accord complete relief among all the parties (if no, then
necessary)?
(a) Worried about efficiency
(ii) 19(a)(2)(i) if A's interest may be harmed if A is not joined?
(iii) 19(a)(2)(ii) necessary if A's interests may subject defendant to multiple or inconsistent
obligations
(iv) Temple v. Synthis - EXCEPTION joint tortfeasors cannot be forced in through necessary
(v) Shields - joint obligators, has to do with Rule 19(b) - federal ruling does not precluded not
included party but court still says that ruling required "Bs" involvement (B=person not in case)
b. Is Joinder feasible?
(i) Will be feasible if PJ over A, AND
(ii) If bringing in joinder does not destroy SMJ (diversity)
c. If Joinder is NOT feasible - then court must decide whether to proceed without A or
dismiss the entire case - Rule 19(b) factor test
(i) To what extent will parties in case be prejudiced by not having party in case
(ii) Can relief be structured so that prejudice is lessened
(iii) Will judgment in absence of party be adequate
(iv) Will P have adequate remedy if action is dismissed in another court?
d. Broussard v. Columbia Gulf Transmission Co - dismissed a case about an easement because 1/6 of the
interest in land was not party to the case
G) Intervention - Absentee joins self either as P or D - P to assert or D to defend claim against P, court can
rearrange
1) 2 kinds of Intervention - Rule 24
a. Intervention of Right (more likely) - Rule 24(a)(2)
(i) If A's (1) interest may be harmed if she is not joined AND (2) A's interest is not adequately
represented now
(ii) Meet test because it is A bringing claim - if brought by D then Rule 14, if by A then Rule 24
b. Permissive Intervention - Rule 24(b) –
(i) A's claim or defense has at least one common question with the pending case; up to the court
to decide
2) Rules Governing:
a. Official Requirements - must meet all 4 options:
(i) Numerosity - class is too numerous for practical joinder, for all to be co-plaintiffs - normal
rule of thumb is 30 in a class
(ii) Commonality - must be common questions among all the peoples (normally a guarantee,
could be questions of law or fact)
(iii) Typicality - reps claim must be typical of claims of class (feels same "pain" as other class
members)
(iv) Adequacy - Representative will Fairly and Adequately Represent the Class - rooted
in due process, binding
b. Fit Class Within Recognized Types - have a choice, 3 kinds of classes - Rule 23(b) 1,2,3:
(i) Rule 23(b)(1) –
(a) Uncommon - mandatory class actions (i.e. suit against drug manufacturer)
(b) Where all rights are adjudicated in the class action - typically drug cases are not C.A.
(ii) Rule 23(b)(2) – Injunction-Based
(a) Uncommon - mandatory class actions
(b) Condition of confinement; civil rights cases
(iii) Rule 23(b)(3) – Traditional Class Action
(a) Common issues of law or fact, AND
(b) Common questions PREDOMINATE over individual questions [damages may be
different but liability may be the same] and
(c) That class action is the SUPERIOR METHOD for resolving the dispute [normally
damages class action] and
(d) If the class is certified, it must define the class and it must appoint class counsel -
must represent class and
(e) In b3 class, representative pays to give individual notice to all reasonably
1. 23(c)(2)(b) - bound in class, says what goes in writing
2. Only required in b3 - this is why it's most likely
(f) Who is bound?
1. All class members except for those who opt out of a b3 class –
2. No right to opt out of b2, b1
(g) Settlement or Dismissal of a Certified Class
1. MUST be approved by court - Rule 23(e), get feedback, up to judge
(h) Subject Matter Jurisdiction - diversity - look to rep
1. Citizenship: For citizenship of the class - look ONLY to the representative of the
class, not ALL of the class members
2. Amount in Controversy: will invoke if rep's claim exceeds $75,000, do not care
about the class members claims
CAFA – Small claims add up to $5 million
(iv) Class Action Fairness Act of 2005 - allows fed court jurisdiction to hear if following is
met:
(a) ANY class member is diverse from ANY defendant, AND
(b) Aggregate class claims are above $5 million
(c) Cases being removed for any of these reasons
(v) Rule 35(d)(2) - try to keep
c. Hansberry v. Lee - message to law community that class actions can be abused - P was in a
community that had signed contract not to allow Af-Amer in the community. Former class case
upheld ban. Supremes said that this is an example of abuse of class action. P was not fairly
represented
J) Cases
1) Grumman Systems v. Data General - copyright violation claim; patent (legal monopoly - SC has held
that if obtain copyright by fraud then it is illegal monopolization - Hartright Act in CA - makes it anti-
trust case). DG must show that Grumman used copyright information; Grumman will say that copyright
was not validly obtained - same transaction b/c DG must have valid copyright to sue Grumman
(compulsory because the valid copyright is central for both sides)
a. If the same core facts are needed in both parties' claims = compulsory counter-claim
2) Eisen v. Carlisle & Jacquelin - anti-trust attempted class action. Eisen I - "death knell" decision: a case is
appealable if procedural decision ends case.
a. Notice Issue - notice of class members CAN NEVER be waived if rep can reasonably find other
members
b. Paying for Notice - cannot be shifted through pre-trial hearing for non-class to have to pay
3) Firestone Tire Products - multi-state jurisdictions and different states had different product liability
rules. Some were lex loci states so where the harm occurred and others were where manufactured.
Court determined that this would be unmanageable (jury having to understand, too complex for
discovery, deposition, et al). No commonality. 10 years prior - this would have been certified as a class
=> Easterbrook: "Gosplan" - says that market should control… getting suits "off the books" by settling.
Creating a market for settlement.
4) Agent Orange Case -
XI. Discovery
a. 26(a)(1) Initial Required Disclosures - including people or documents that may have
discoverable information that may use to support case
b. 26(a)(2) Experts
c. 26(a)(3) Pre-Trial Required Disclosures - give up everything that is being offered at trial
B) Pre-Trial Conferences
1) Rule 16
a. Conferences subject to these rules
b. Can be altered by the judge
2) Interrogatories - Rule 33 -
a. Written questions answered in writing under oath (30 days to answer)
b. Can only be sent to parties, not non-parties
c. Can possibly expose legal theories of the other side
E) Destruction of Privilege
1) Inadvertent Disclosure
2) Partial Disclosure – destroys privilege
3) Talking to a 3rd Party
4) Implied Waiver
a. Self-Incrimination
b. Work Product – but anything used in preparation of trial may be privileged (Rule 26b3)
G) International Discovery
1) Letter Rogatory
a. Motion of discovery
2) Comparative Use of International Law
a. US more liberal in discovery
b. Blocking Statutes
XII. Pre-Trial Adjudication Finishing case before trial - Rule 55, default, but 2 methods of pre-trial
A) 12(b)(6) - Motion to Dismiss for Failure to State a Claim - Demurrer (in some cases)
1) Court does not look at evidence
2) Looks at FACE OF THE COMPLAINT
3) Standard: Reading complaint, if everything the Plaintiff says is true, would the Plaintiff win a judgment?
a. Testing the legal sufficiency of the pleading - would P win judgment, does law recognize this claim?
b. If no - case does not go forward, dismissed on 12(b)(6)
c. Typically points out sloppy Pleading
4) "Without Prejudice" - dismissed but court will allow a P to bring a claim again
5) Granting 12(b)(6), but if not legally sufficient, dismiss and appeal
B) Selection of Jury
1) Rule 48
2) Voir Dire - interviewing and gets …
a. Unlimited strikes for CAUSE - bias, prejudice, related, etc…
b. Each side gets 3 Peremptory Strike -
(i) Edmondson and JEB v. Alabama - together these cases say must have a race and gender
neutral reason for using peremptory challenges
(ii) This is state-action and must be race and gender neutral challenge
2) Equitable Defenses
a. Unclean Hands –
(i) P should not be able to invoke the extraordinary assistance of the court if she herself has
engaged in wrongful or dishonest behavior in the events giving rise to her grievance
b. Latches –
(i) P may not invoke equity ifd she delays seeking relief and as a consequence of her delay would
cause the D to suffer prejudice if the court were to grant the equitable remedy that she
requests
c. Equitable Estoppel –
(i) Acted in a way that one should not be allowed to bring action then shouldn't bring
d. Injunctions (appeal through Mandamus) -
(i) Temporary Restraining Order (TRO) – ex parte
(a) provisional relief, preserve the ability of P to secure effective remedies while also
protecting the legitimate interest of D against wrongful disruption or interference
(b) i.e. Douglas injoins bombing in Viet Nam
(ii) Preliminary Injunction -
(a) Blackwelder Test (used in 4th Circuit) - 4 requirements
1. Likelihood of success on the merits
2. Judge must consider irreparable injuries
3. Will there be irreparable injury to defendant
4. Public interest considerations
(b) Can last for an incredibly long time, limits are
(c) Judge appoints monitors - desegregation orders for instance (dissolved once satisfied)
e. Equitable Remedies:
(i) Restitution: getting damaged party back to zero
(ii) Accounting: finding the money in question and determining how its owed
3) Pre-Judgment Attachment:
a. Williams v. Walker-Thomas, Pennoyer
4) Post-Judgment Remedies:
a. Collecting on judgments - Big Law => hires out for collection
E) Collateral Attack – Rule 60
1) Rule 60(b)
a. Attacking a judgment from another judicial system
b. Must be a DEFAULT judgment
c. But if lose on jurisdiction argument in second court then you will
d. How Used (often used for default, not as much for on merits):
(i) Surprise
(ii) New Evidence
(iii) Fraud by other party
(iv) Misrepresentation
(v) Misconduct by other party
b. Rule 54(b) –
(i) Rule 54(b) Interlocutory Appeal
(a) “Only upon an EXPRESS reason that there is no delay and in the EXPRESS interest of
judgment”
(b) Case with multiple parties or multiple claims
(c) Allows trial judge to enter final judgment on fewer than all of the claims (
1. I.e. claim and counter-claim - not final judgments, but may move up before all are
completed)
(ii) Curtiss-Wright Corp v. General Electric – Factors:
(a) Did trial judge consider all possible issues?
(b) If yes, then discretionary judgment should not be tempered with
(c) Dispatcher –
(iii) NOTE: courts do not like taking these
(iv) Jiffy Rule – if can be settled in a jiffy
D) Cohen Collateral Order Rule (Interlocutory Appeal but its own objection)
1) Elements of Cohen:
a. Separate (Severability) - Important Issues Separate from the Merits
b. Completely Resolved (Important) – court has Completely Resolved the Issue
c. Unreviewable at Trial - Issue is effectively unreviewable if has to go to trial
2) Collateral Order Notes
a. Normally about posting bonds and other issues that will never go to trial but have a significant
impact on the trial
b. Discovery under Collateral Order
(i) NO – reviewable on final appeal [Reynolds – NO, shouldn’t be]
3) Motion to Disqualify Counsel
a. Getting a lawyer off a case because of a prior relationship, not a collateral order for appeal
[Reynolds – NO, shouldn’t be]
4) Class Action Certification – 23(f)
a. Can be reviewed (because so important) but to the determination of the appellate judge
E) Writs (reviewable)
1) Mandamus –
a. Requires a judge to do something
2) Habeas Corpus –
a. Determining the legality for imprisonment
G) Arbitration
1) Notes:
a. Increasingly becoming tactic for avoiding litigation
b. Arbitration – not appealable unless evidence of fraud
c. Finality – final judgment => normally questions of fact
d. Baseball
H) Mediation
1) Disputes in family law will often go to mediation
XV. Preclusion (claim & issue preclusion)
A) Privity
1) Relation between entities is so close that 2nd party will be treated like first party
a. Examples
(i) Employer/employee
(ii) Passenger/driver
(iii) Spouse/injured person
b. Exceptions
(i) Government cannot be precluded against
7) Appeal -
a. If cannot appeal and preclusion is used against a party then the claim preclusion does not affect
8) Competency of Courts Exception
a. If the first suit is in a court that lacks jurisdiction or competency then there is no preclusion
b. Often occurs in Specific Family Courts
9) Cases
a. Rush v. City of Maple
(i) Attempting to bring a second suit for personal injury after property claim had been
determined on the merits
(ii) Second claim barred - stemmed from the same incident - cannot bring 2 different cases
(iii) Reasoning - (1) notion of settlement, parties know when it's over (2) undermine judicial
authority - case already decided
(iv) Rule: must bring all claims in one case from the same transaction or occurrence
b. Herendeen v. Champion International:
(i) 1st case is barred from litigation because of statute of frauds; second cause of action is about
pension; Correctly decided case- depends on how the pension is assumed
c. Difference for reoccurring problems - i.e. installment payments in contracts, nuisance in torts,
etc...
d. Moitie –
(i) Antitrust for parties that did not appeal an adverse judgment but brought another case against
the price fixing
(ii) Successful gov't action is often not preclusive
(iii) Judgment - became final after 30 days without appeal; these two parties already had a
judgment - court said that it cases were barred
(iv) Iron Law of Full Faith and Credit - final
e. Asbestos Cases –
(i) Conflict between statute of limitations and future claims, development of future disease (most
states have said that one can wait)
f. Mitchell v. Federal Intermediate Credit Bank –
(i) Crops sold, security to bank for loan - fed suit is for loan and state court case is for the
profits from sale of crops (used as a defense in the fed court).
(a) Cannot split cause of action between fed and state court.
(b) 34 C.J. 827 - Corpus Juris => general legal encyclopedia
12) Rule 41 -
a. MD courts do not have to follow Fed Ct preclusion rules, different preclusion rules in state than
federal court
b. Full Faith and Credit - MD judgment has as much preclusive effect as MD will allow
c. Rule 41 = Preclusion Rule
2) Issue Preclusion –
a. If a fact was actually determined in the first action then that fact is forever found in any action
involving either of the parties
b. Less broad, focuses on the issues within the case
c. Privity -
(i) parties to the former judgment or privies - directly interested in the subject matter and had a
right to make a defense, control proceeding, appeal from the judgment
(ii) Controlled the Representation –
(a) If someone is controlling the litigation but is not the front representative, preclusion will
still apply to the controlling party
(i) Mutuality –
(a) By someone that was a party to case one
(b) Courts can now abandon mutuality, this is not required
(ii) Non-Mutual Issue Preclusion Allowance
(a) Party using it in case 2 was not in case 1), 2 ways:
4) Default Judgment –
a. Will not work for issue preclusion - ISSUE MUST BE LITIGATED AND DETERMINED IN A
PRIOR CASE
5) Convergence Theory - no preclusion
6) Proximate Cause - no preclusion
7) When facts might be materially different
8) When the prior case did not give incentive to fully litigate
F) Cases:
1) Little v. Blue Goose Motors - P was established as negligent in a court that had relevant jurisdiction
over P
2) Kauffman v. Lily - issue preclusion - convergence theory was not litigated so future cases could not use
this issue for later preclusion in later cases - MUST BE LITIGATED and DETERMINED, no default
G) Judicial Preclusion
1) Court can determine that judicial efficiency and authority would be threatened
2) Parties are not allowed to argue separate and inconsistent arguments in different cases to suit different
issues
3) New Hampshire v. Maine – line in the river
H) Interstate Preclusion -
1) Full Faith and Credit and 1738 –
a. F2 must give F1 judgment the same effect it had in F1
b. Extended to federal court judgment
c. Must F2 give the same remedy as F1 would have granted???
(i) Injunctive restraint between two different forums - GM and Missouri Injunction Case -
SCOTUS says that F2 does not have to follow administrative rules; must give same effect but
not same relief
(ii) Homestead Exception (bankruptcy law) - if declare bankrupt, can keep "tools of the trade"
-> differences between states, F2 can collect as it would even if F1 wouldn't have collected
(iii) Execution of relief - F2 is free to develop its own law on the subject
d. Every American Court MUST give same EFFECT but not the same RELIEF as the F1 court would
have given
(i) Problems:
(a) Non-Mutual Offensive Preclusion: some courts will give full faith and credit
to
1. F2 would give more preclusive effect in F1
2. F1 - limited preclusive effect to property damage case (AA crash w/ one lost bag
claim) but will not apply in personal injury claim
3. F2 - broad preclusive effect where property applies to personal injury
4. Should F2 be able to give more preclusive effect?
I) Foreign Judgments
1) State's are not allowed to make binding decisions between themselves and foreign governments
2) Often - states will look to see whether FAIRNESS (notice, impartial trial, etc…) was available, and if it
was then states will often recognize
3) US Judgment in foreign cases - foreign courts will most often enforce US judgment
4) When dealing Internationally - often dealing with an Arbitration
a. No preclusive effect of arbitration
XVI. Odd Random Facts
A) Four Horsemen
1) 4 judges in the 20s and 30s that blocked FDRs legislation
B) Pre-Eminent Headquarters – domicile
C) Cognovic Note – contractual – debtor agrees to jurisdiction in certain areas
D) Helicopteros
1) Dissent – Brennan – says that systematic and continuous should not be the minimum standard
E) McGee v. International Insurance – one contact was enough because they bought an “existing
obligation”
F) Asahi
1) 14th amendment does not allow because not minimum contacts, no purposeful availment,
G) Yahoo in French
1) Clearing targeting the French market
2) Selling Nazi memorabilia in France – under injunction
H) Burger King
1) Company was afraid of MI law because generous to franchise owners, unlike FL law
2) FL law – long-arm governs all unless unconstitutional
I) Derivative Cases [Shaffer v. Heitner]
1) How to stop a stock transfer – go to corporate HQ in Del, get list of shareholder and put a
“stop transfer” on the stock
2) Del requires a general appearance to contest a stock transfer (in rem)
3) State must always have jurisdiction to determine interest in a property therein
J) Anti Cybersquatting Consumer Protection
1) Wherever the domain name is registered jurisdiction in rem over the website creator
K) Notice – Electronic
1) Rio Properties v. Rio International
a. Notice through email
L) Going Against Precedent
1) Millersville case – 4th circuit and pledge of allegiance, shift of justices and 4th circuit anticipated a
change in the higher precedent (1939)