Civil Procedure Outline – Fall 2007

Due Process Clauses

I. Personal Jurisdiction (PJ)

A) In Personam Jurisdiction (over the D herself)

1) General In Personam
a. Can be sued in the forum on a claim that arose ANYWHERE in the world
2) Specific In Personam
a. D is being sued on a claim that has SOME connection with a forum
b. Arose from… some incident in the jurisdiction

3) Constitutional Limits of In Personam – Statute & Traditional Basis

a. Pennoyer v. Neff – Raw Power

(i) Raw physical power, state's power over people and things inside the state; gives us traditional
basis for PJ:
(a) Served with Process in Forum (gen. juris.) - PRESENCE (present at time)
(b) D's Agent was Served with Process in Forum
(c) D is Domiciled in the Forum (gen. juris.)
(d) Consent (can always waive)

b. Hess v. Paloski – Implied Consent – Service on Agent (sec. of state)

(i) Rule: Service of process on State Official for out-of-state D is acceptable when specific
jurisdiction exists
(ii) 1926 - automobile accident in MASS, D gets out of state; MASS had non-resident motor
vehicle act - appointing state official as agent for service of process, spec. juris. - based on
Pennoyer concept of power; implied consent - SC expanding
(iii) Implied Consent - i.e. driving in state is appointing agent in state

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

d. McGee v. International Life – Nature of Contact (1 contact with outside state CA - SC

says PJ)
(i) Solicited - D solicited contract from California
(ii) Relatedness - Ps claim "arose directly from contact with state (CA)"
(iii) State Interest - CA had statute to protect citizens

4) Limiting Constitutional Jurisdiction

a. Hanson v. Deckling – Purposeful Availment
 (i) Purposeful Availment - To be a relevant, D must "avail" self to D, unilateral act over a 3rd
party
(ii) Donner from Penn, enters trust w/ DE bank, Donner moves to FL, but continues bank
interest while in FL, but DE wants PJ

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

c. Calder v. Jones - Causing an Effect

(i) Causing & Effect in State - have minimal contact
(ii) D does not need to be in state to have PJ (can have minimaleffect
(iii) Case – defamation suit from FL writer to CA star

d. Burger King – “So Gravely Inconvenient that Severe Disadvantage”

(i) International Shoe has 2 parts - CONTACT & FAIRNESS, officially split
(ii) Must have relevant contact BEFORE looking at fairness
(iii) Under case, did have contact (20 year, million dollar deal that allowed FL law, availed)
(iv) D claimed that it wasn't fair for D to go -
(a) D must show - that forum is so gravely inconvenient that D is at SEVERE
disadvantage in the litigation, money doesn’t matter
(b) Brennan wrote this opinion

e. Asahi - Stream of Commerce Case (1987)

(i) Positions in Case
(a) Brennan: Contact if product goes into stream and reasonably anticipate that it gets to
C,D,E
(b) O'Connor: States interest involved and need more intention than the Brennan analysis;
need more than Brennan, PLUS intent to service state C,D,E
1. i.e. Advertising,
(ii) Stream of Commerce - manufacture in state A and ship to state B and they get to C,D,E
(iii) Question: Does state A defendant have contact with state B
(iv) Justices split 4 to 4 - splitting case, Stevens doesn't take decision

f. Burnham: Tag Jurisdiction – Split (Tradition v. Int’l Shoe)

(i) Positions:
(a) Scalia – Historical Pedigree – traditional importance of tag jurisdiction (I.S. is not
appropriate for this analysis)
(b) Brennan – Must apply Int’l shoe (instant case of 3 days in state was sufficient for
specific jurisdiction)
(ii) NJ defendant sued in CA, claim that arose in NJ but want to sue in CA, D is served with
process while in CA
(iii) Question: Does the traditional basis survive by itself or do you have to assess International
Shoe? No answer - 4/4 split, 2 approaches
(iv) On traditional basis - they may be good by themselves OR they may be supplemented with
contacts

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

(ii) If Yes… Fairness - fair play and substantial justice

(a) Convenience for Parties
1. BK - showed that if convenient then allow PJ
(b) Forum Law
1. More fair and convenient
(c) Arising From –
1. Does the P's claim ARISE FROM contact with forum…
2. If so - McGee, one contact was sufficient
(d) Relatedness
1.
(e) Inconvenience
1. For D and witnesses (BK standard)
2. Must show that he/she is SO inconvenienced
(f) State's Interest - McGee standard
(g) P's Interest –
1. litigating
(h) Legal System's Interest in Efficiency
1. Multiplicity of Suits
(i) Interstate Interest in Shared Substantive Policies
1. Kulko - no PJ b/c of family harmony
 3) State Statute
a. Every state has statute about following:
(i) Service in forum
(ii) Domiciled in state
(iii) Motor-Vehicle
(iv) Long-Arm Statute - allows PJ over non-residents (2 kinds)
(a) California Statute - full due process
(b) Laundry List Long-Arm - gives series of things that non-resident can do that will
subject him to juris - specific jurisdiction
1. Enters Contract
2. Transacts Business
3. Buys Real Property
4. Others
(c) Grey v. American Radiator - interpretation of
1. "Committing tort in state" - i.e Manufacture widget in state A and it blows up
in state B; some will say no because manufactured in A; other courts will say that
injury occurred in state B
(d) Statutory language can be same but interpreted differently say

C) In Rem or Quasi in Rem (D is not in forum

1) Property is jurisdictional basis because D is not in forum
2) In Rem –
a. Dispute is about WHO OWNS THAT PROPERTY
3) Quasi In Rem (QIR) –
a. Quasi in Rem I
b. Quasi in Rem II
(i) Haris v. Bulk
(a) Securities and intangibles travel with owner
c. has nothing to do with ownership of that property, D owns it, has to do with
4) Mitchell v. Neff
a. Breach of contract, could not sue Neff in personam because not around, so Mitchell tried to go for
quasi in rem; Neff had property in Oregon, but problem was property was not attached in case)
b. Constitutionally the court must attach the property at the outset of a case
5) Steps:
a. Find the statute
(i) Can proceed if "property that D owns or claims to own" and statute should require
attachment
b. Constitutional Analysis (if yes)
(i) Probably still required but not enough
(ii) Schaffer v. Heitner - for IR and QIR, only ok if D meets Int'l Shoe test, D must have such
minimum contacts to satisfy
(a) Powell Concurring Opinion - may be satisfied simply by having property in forum,
especially if about land in forum and IN REM; if real property this is probably enough
(b) Must assess International Shoe test

6) Anti Cyber Squatting Consumer Protection Act

a. Register Domain name
(i) Definite for In Rem
(ii) Possible for In Personam
7) Comparative Jurisdiction
a. France – all citizens all over the world - jurisdiction over all the world
b.
II. Notice

A) Service of Process – Rule 4

1) Process = Summons & Copy of Complaint
a. Summons (Rule 4a & 4b)
(i) Signed by court, symbol of court's power over D
(ii) Rule 4(a) and 4(b)
(iii) Non-Party over 18

2) Serving on Human Being - Rule 4(e)

a. Alternatives for Process Rule 4(e)2 - 3
(i) Personal Service - walk up and hand service to person
(ii) Substituted Service - not serving D, serving a substitute => must have following 2
(a) Usual Abode
(b) Serve of "Suitable Age and Discretion who Resides There"
(iii) Serve Defendant's Agent
b. How to Serve Process - Rule 4(e)1
(i) "Any method for serving process under STATE law”
(ii) State where fed ct sits OR state where service is effected
(iii) This is where we get service through mail if state is allowing this

3) Service of Process on a Business

a. Serve on Managing Agent Rule 4(h)
(i) Officer – always accepted
(ii) Managing/General Agent –
(a) must be someone enough job responsibility that expect him to transmit important
documents
b. Rule 4(e)1 - use state law methods

4) Waiver of Service - Rule 4(d)

a. Request waiver, if not then has to pay for service

5) Immunity from Service

a. Fraud
b. Force
c. Coming because of another lawsuit

6) Geographic Limit of Serving Process

a. Rule 4(k)(1)(a) –
(i) Serve "throughout the state in which federal court sits"
(ii) In addition… "can serve out of state ONLY IF a state court in the state could do so" (i.e.
long-arm statute)
(iii) Same in fed ct and state ct because of Rule 4k1a
(iv) Exceptions:
(a) Rule 4(k)(1)(b), (c)
(b) 100 Mile Buldge – (d)
1. Rule 14
2. Rule 19
(c) 4(k)(1)(c) – Interpleader
1. Interpleader - anywhere
(d) 4(f)(1)- (3) – International Service
1. (f)(1) – Hague Convention
2. (f)(2) – absent Hague
3. (f)(3) – any other means available
B) Constitutional Standard for Giving Notice
1) Mulane v. Bank – Reasonable Notice
a. "Must be reasonably calculated under ALL of the circumstances to apprise the party of the suit"
b. Does not say that D has to get the service - even if D never got because substitute service given
appropriately
2) Jones v. Flowers (2006) –
a. If become aware that not actually received, may have to pursue other available means of service
b. Facts - someone wasn’t paying taxes on house, state sent to homeowner correctly, but registered
mail came back and so the ct said P may have
3) Constructive Notice – Notice by Publication
a. Mulane – for unknown parties only
(i) Usually this is not constitutional, normally won't meet the standard of Mulane
(ii) BUT under ALL circumstances, may be other circumstances where publication is all that can
be done
(iii) In MULANE - upheld publication for unknown parties in the trust
(iv) ALWAYS the last resort
(v) Actual Notice
4) Defective Notice Rule
a. Giving actual notice may not save the P if the statutory scheme is unconstitutional
b. Defective notice undermines the entire proceeding

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

D) Random Service Notes

1) Summons
a. Signed by clerk
b. Names of court and parites
c. Name/address of attorney
d. Time to respond
e. Statement that failure will result in default
2) Against US
a. In Attorney Gen office
3) Local Govt – governor, or as described by state law,
4) In foreign country – Hague Service Convention
III. Justiciabilty
A) Define – needing property issues, parties, timing

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

3) Citizens of Different States

a. Complete Diversity Rule [Strawbridge v. Curtiss]

(i) No diversity if ANY plaintiff is a citizen of same state as ANY defendant
(ii) One overlap will destroy - if FL P, 99 AL Ds and 1 FL D, doesn't work

b. Citizenship of Human Being

(i) Diversity of Citizenship - NOT "from" or resident
(a) For a US citizen, citizen of state WHERE SHE IS DOMICILED
(b) Domicile Factors:
1. Presence in the state, AND
2. Intent to make permanent home
(c) Only have one domicile at a time, and everybody has a domicile
(d) If moving – have to get there and plan to reside permanently but not until actually there
1. Exception
Going by sea
(ii) Nominal Parties
(a) Should be disregarded for purposes of diversity
(b) Pete Rose Case
(iii) Special Exceptions

c. Citizenship of Corporation - USC 1332(c)(1) [never domicile]

(i) Factors of Corporation
(a) Citizen of ALL states where incorporated
(b) Where Corp has Principal Place of Business (PPB) - can never have more than 1 PPB
1. Test for PPB:
Corporation's Nerve Center - where decisions are made, usu.
headquarters
Muscle Center OR Place of Activities - where does "more stuff" than
else
Total Activities Test - will use nerve center unless ALL activities are in
one state
 (c) What if major operations all over
1. NY is Nerve Center, PA is Place of Activities, Activites in 4 other states - will
probably be in NY
(d) Exceptions
1. Insurance Agency – where person is domiciled
d. Citizenship Issues
(i) Class Action – domicile or rep only
(ii) Shareholder Derivatives – domicile of rep only
(iii) Executor – domicile of decedent
(iv) Rep of Incompetent – domicile of incompetent
(v) Rep of Minor – domicile of minor
(vi) Unemancipated Minor – same domicile as parent
(vii) Married Woman – same domicile as husband (traditional rule)
(viii) Armed Forces – domicile before entering service
(ix) Prisoner – domicile before incarceration
(x) Student out-of-state – same domicile as before school

e. Special Diversity Issues:

(i) Alien Jurisdiction
(a) Alien v. Alien – no diversity
(b) Citizen v. alien – diversity
(c) Alien & citizen v. alien – no diversity
(d) Alien & citizen v. alien & citizen – diversity
(e) Citizens of non-recognized states not permitted in diversity court
(f) Dual national – dominant nationality doctrine
(g) Alien corporations – not specifically mentioned in 1332(c)
1. Some courts treat them citizens of states of incorporation
2. Some courts treat them as citizens of state in US where they have their world-
wide principal place of business
3. Some courts say apply both

4) Exceed amount in Controversy

a. Legal Certainty Test – sum claimed by P and must be in good faith – must appear to a legal
certainty that claim is less than the jurisdictional amount to justify dismissal
b. Must EXCEED 75,000 (not including interest and fees)
c. Basic Info:
(i) Whatever P claims is ok
(ii) UNLESS "Clear to Legal Certainty" that she cannot recover more than 75,000
(iii) Would take a statutory cap to prevent for the most part
(iv) Ultimate Recovery is Irrelevant –
(a) P's ultimate recovery is IRRELEVANT to jurisdiction
(b) USC 1332(b) - explains this rule
d. Aggregation –
(i) Adding multiple claims to get over $75,000
(a) Aggregate all claims b/t P and D
(ii) Cannot aggregate multiple claimants on one side (i.e. 1 P v. 3 D)
e. Joint Claims – Class Action
(i) Only as joint tortfeasors can aggregate – if claims are severable then assessed independently
(ii) With JOINT CLAIMS - use total value of the claims
(iii) i.e. 3 people beat up one person for 76,000 damages, any one of 3 could be liable for all
damages –
(iv) Multi-Party, Multi-Forum Trial Jurisdiction Act – USC 1369
(a) Exception – offers OJ to federal if following 2 are met:
1. 75 Deaths
2. Minimal Diversity
5) Benefits of Diversity
 a. Cross-Fertilization of the Bar – practice is better across the country
b. Federal judges have the ability to interpret state law in a functional way

C) Federal Question Jurisdiction - USC 1331

1) Supremacy Clause of US Constitution – Article VI
2) Arise Under Federal Law - how do we know…
a. Well-Pleaded Complaint Rule:
(i) Look ONLY at the Plaintiff's complaint
(ii) In complaint - look ONLY to the complaint itself (no extraneous stuff)
b. Elements
(i) Cause of action under federal law
(ii) Issue of federal law is a substantial element of federal law
(a) Smith –
1. Federal farm and loan act challenging the state law, claim comes from state law
(b) Merrell Dow
1. Cannot just base on element violation of fed law
2. (pharm. violation) violation of federal law as element of larger claim not federal
question, not acceptable
3. Dissent – states should not interpret fed law (they would be here b/c of actions
of federal agency)
(c) Grabel –
1. (tax law) substantial and justified federal interest allowed – federal tax sale of land
obtained through federal auction
3) Motley v. Louisville RR –
a. family injured on claim, accept lifetime passes from railroad, but Congress passed a statute that says
"railroads cannot give away free passes" and RR does not honor
b. Motleys sue the railroad - want specific performance
c. Motleys say - new federal law DOES NOT APPLY to us - does this apply to federal question ?? NO
d. How to apply the rule:
(i) Is the Plaintiff enforcing a federal right?
(a) Motley - claim DID NOT arise, claim was about this law it was about breach of contract
(b) Ps are anticipating federal law defense, but this is not what the claim comes from
(c) Look at federal law - and ask if federal right is being enforced?
4) Declaratory Judgment under FQ
a. Seeking declaratory judgment has FQ if…
(i) Anticipate under federal law
5) Automatic FQ Cases
a. Bankruptcy
b. Nuclear Power
c. ERISA

D) Supplemental Jurisdiction - USC 1367

1) Basics
a. Always discretionary – can always be knocked by 1367(c)
b. May be additional claims in a case in diversity or federal question (claims that wouldn’t have made it
in otherwise)
c. Notes – Walker v. Blue Cross – Reynolds wanted to remove for ERISA but ct of appeals wouldn’t
allow
2) RULE:
a. For every claim asserted in federal court there must be federal subject matter jurisdiction
b. Every claim ask:
(i) Diversity or federal question? If so then comes in
(ii) If NO - additional claim does not meet, might still be able to get it through in SJ
(iii) Allows federal court to hear non-federal, non-diverse claims in federal court
 (iv) Original Claim MUST have met diversity or federal question
3) Cases
a. United Mine Workers v. Gibbs –
(i) P asserts Federal Question claim - does belong under FQ claim
(ii) Second, state law claim, does not invoke FQ, based on state law
(a) By itself, cannot go to fed court, no diverse/FQ, but SC says CAN do this because of
(iii) Pendant Jurisdiction:
(a) RULE: if claims share a "common nucleus of operative fact"
1. Transaction or Occurrence if same
4) Today - USC 1337 - keeping it hyper-mechanical
a. Whenever we see claim…
(i) Does 1367(a) grant supp jurisdiction over the claim?
(a) Yes - if it meets Gibbs, if arise from same transaction or occurrence
(ii) Does 1367(b) take away the supp juris?
(a) Applies ONLY in diversity cases, not federal question
(b) AND, only kills supp jurisdiction over certain claims by plaintiffs - here they are
1. Claims by P ONLY against a party joined under Rule 14, 19, 20, 24 (impleader,
required joinder, permissive joinder, intervener)
2. Claims by Rule 19 plaintiffs – required joinder plaintiff
3. Claims by Plaintiff intervener
4. UNLESS any of these meet jurisdiction on their own
(c) If by D, 1367(b) does not effect
(iii) 1367(c) – remaining claims
(a) If state claim came under fed claim then the remaining state claim (wouldn’t be there
otherwise) is up to judge’s discretion
5)

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

B) Basic Rules for Venue –

1) USC 1391(a) = Diversity
2) USC 1391(b) = Federal question
3) Where is Venue:
a. May lay venue in any district where ALL defendants reside - all Ds must be there, but sub-rule
(i) If all Ds reside in different districts of the same state, may lay venue where any one of them
resides
(ii) Resides:
(a) Human: for a human being resides means DOMICILE, basically citizenship but
(b) Corporation: Rule 1391(c) - corp resides in ALL districts where it is subject to PJ when
the case if filed
4) Claim Arose - Venue:
a. May lay venue in ANY district where substantial part of the claim arose
(i) i.e. where contract was formed, substantially takes place
5) Local Action Rule:
a. Suits were only allowed in the county or district where the land was situation (Jefferson Case)
6) D is Alien
a. Any Federal District has venue
7) State Venue Rules – Typically
a. Determinations:
(i) Ds residence (most common)
(ii) Where the COA arose
(iii) Where P or D does business
(iv) If D is a nonresident, where P resides
(v) If claim concerns land, where land is located
(vi) Where seat of government is located
b. Local action
c. Intra-jurisdictional (where is venue within state?)

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

E) Notes about Venue

1) Local Action Rule – used for in rem and quasi
2) Default Venue if not set by state USC 1391
3) Ferens v. John Deere – “file and transfer” dissent (scalia + brennan) says that this is opening up transfer
and shopping options for P
4) Counter-Injunction Suit
a. Conflicting injunctions in different jurisdictions – who should rule? SCOTUS has not
made a decision about this
VI. Challenging Forum Selection

A) Special Appearance - attacking Personal Jurisdiction and nothing on the merits

B) Federal Court - FRPC 12

a. Want D to raise objections TOGETHER and EARLY - force D to bring them forward early and
together, FRPC 12 - within 20 days of being served with process a D MUST respond, if not, may be
in default, have a choice

2) Serve with Motion

3) Serve by Answer

4) Difference (motion = not pleading, answer = pleading)

(i) Rule 12(e) - motion for indefinite
(ii) Rule 12(f) - motion to strike

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

C) Collateral Attack – Rule 60

1) Rule 60
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
VII. Choice of Forum and Choice of Law – States (fed sit in div.)
A) Differences in law and no conflict – NO ISSUE
B) Conflicting Laws in States
1) Look at laws of forum state to determine which substantive law applies
2) State supreme court will have ultimate decision on state choice of law decisions
a. Most states – substantive law of state with most interest (meaning most contacts)
(i) Interest efficacy
(ii) Forum policies
(iii) Polities of other state
(iv) Protection of justified expectations
(v) Policies of field of law
(vi) Certainty, predictability, and
(vii) Ease of determining law
b. Procedural Law – will be law of forum state
3) Federal District in Diversity
a. Use choice of law rules of where sitting – forum state
C) Historical Uses - MARYLAND
1) Lex Loci Delecti – where tort occurred
2) Lex Loci Contractus – Last act of contract
3) Lex Loci Sitae – where property is located
D) Cases
1) Allstate v. Hague – applied Minn. law because they determined that Minn had enough substantive contacts
2) Ferens v. John Deer – when transfer in 1404(a), choice of law stands no matter,
E) Potential Exam Issue:
1) Fee Shifting – who’s rule is used? Fed or state? No answer yet from SCOTUS

VIII. Erie Doctrine – What Law to Use?

A) Getting to Erie
1) Elements of Erie Discussion:
a. Must be a proper federal rule at issue, must be constitutional
b. Federal rule cannot amend, modify, or enlarge substantive rights
c. Must be within Congress’ power to legislate under the constitution
d. Rule must be “plausibly procedural” – if so then use fed rule and state substantive
B) Elements to Determine
1) Twin Aims of Erie:
a. Avoiding Forum Shopping, AND
(i) Whether the difference between state and federal practice would induce the choice of federal
forum
b. Inequitable administration of the law
(i) Unfair discrimination, “unjustness”
2) Possibly
a. Outcome-Determinative – Guarantee Trust – NOT useful
b. Balance of State and Federal Interest – if not clearly substantive then state law rules unless
there is a substantial federal interest
3) On Appeal:
a. Court of Appeals should review the District Court opinion of state law de novo
C) Exception for Federal Interest Defenses (limited to Defense Contractor Liabilty)
1) Elements:
a. US must have approved specifications
b. Equipment must have conformed to specifications
c. Supplier warned US of dangers known to supplier but not to US
D) Erie Railroad –
1) Must apply state law if it is a substantive issue - if not substantive, can ignore state law
a. Compelled by 2 things - Rules of Decision Act (RDA)
b. Facts: pure questions of substantive law in Erie, strictly tort law here
2) RDA - have to apply state law UNLESS there is some state law on point
3) Constitution - compelled in federal court to apply state substantive law (everyone thinks
10th amd)
a. 10th Amd - all states must give up law not in Constitution to states

E) If not clearly SUBSTANTIVE, what do you do?

1) Is there some rule of procedure, statute, constitution - then apply if it is valid
a. If this is valid and substantive law then definitely federal law because of Supremacy Clause of
Const If not, turn to Hanna

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

A) Complaint - principle pleading of the Plaintiff

1) Governed by RULE 8(a) - must have 3 things:
a. Statement of Subject Matter Jurisdiction – Why in federal court => diversity or fed question
b. Short and Plain Statement of the Claim – Why is claim in court
c. Demand for Judgment - tell court what P wants
2) Notice Pleading
a. All one must do is state enough to put D on NOTICE
b. Must state claim - follow elements of cause of action (if a,b,c,d then need to allege
a,b,c,d - can be fairly conclusory)
c. Conley v. Gibson - liberal about pleading
d. Exceptions:
(i) Rule 9(b) - "Circumstances of fraud and mistake must be detailed"
(ii) Rule 9(g) - "Items of special damage must be pleaded with specificity (details)"
e. Special Damages –
(i) Damages that do not "normally flow from the event"
(ii) i.e. AZ case, hit by car; suffers gen damages (med bills, lost wages, etc…), had nerve damage
that cause a permanent erection, must give detail about these

B) Answer - Response - defendant's response

1) Must respond to allegations of the complaint - Rule 8(b)
a. 3 responses possible:
(i) Admit,
(ii) Deny,
(iii) Lack sufficient information to admit or deny (counts as denial)
b. If fail to deny something - it is deemed admitted!!!!!!!!!
c. Exception to this - damages
2) Raise AFFIRMATIVE defenses - Rule 8(c) –
a. Rule lists… but says more (statute of frauds, res judicata, etc…)
b. Different from a denial
c. With affirmative def., D is interjecting a new fact that if proven D wins

C) Amending the pleadings

1) Rule 15 - break into 3 separate circumstances
a. 15(a) - 3 basic rules
(i) P has a right to amend once before D serves ANSWER
(ii) D has right to amend once within 20 days of serving answer
(iii) Right to amend - ask for court permission ("shall be given if justice so requires" - fed are
liberal)
(a) Will not allow if "DELAY" or "PREJUDICE"
b. 15(b)- Variance - where the evidence at trial does not match what is pleaded
(i) Only becomes relevant when case goes to trial (i.e. plead breach of K, then trial brings
evidence of tort) either 1 of 2 things happens
(a) Either other side:
1. Objects - sentences 3,4 of 15(b) = court will not admit, even then party MIGHT
be able to amend the pleading
2. Fails to object - handled by 15(b) = admit like always there
c. 15(c) - Amend after Statute of Limitations has Run
(i) 2 possibilities
(a) Trying to amend to add a new claim
(b) Trying to amend to change defendants
(ii) Relation Back (same conduct, transaction, occurrence) –
(a) 15(c)(2) - Claims
 1. Treated as though it was filed when original claim was filed, if…
2. If new claim concerns same conduct, transaction, or occurrence of original
complaint then it can be relation back to original
(b) 15(c)(3) – Defendants (must have known about proceeding)
1. Occurs when wrong defendant gets sued but right defendant knew about it
2. Can amend to relate back to old pleading
d. 15(d) – Supplemental 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

E) Pleading in the Alternative

1) Justified and allowed
2) MUST respond to all pleadings = if not response then an admission
X. Joinder

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

B) Claim Joinder by the Plaintiff

1) Rule 18(a) -
a. can assert ANY and ALL claims that she has against the defendant (no relation needed, can be
completely different)
2) Then… can that case get into federal court - must ask SMJ questions
3) Guedry v. Marino - 7 plaintiffs argue that they were fired by sheriff b/c they supported his opponent;
some other plaintiffs allege racial and sex discrimination and harassment. All thought they should be
allowed to join because of common trans/occurrence (election of sheriff). D wanted to split cases b/c of
Rule 42 - efficiency. Court says no b/c it would take too long and not do justice. Not misjoined because
- proper to join if same transaction or occurrence.
a. Sheriff wanted to sever cases b/c evidence that would not otherwise be admitted, but together it
may be prejudicial

C) Claim Joinder By the Defendant

1) Counter-Claim - Rule 13(a) and 13(b) –
a. claim against an OPPOSING PARTY (against someone that has sued D)
b. Must be asserted in ANSWER

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

d. STILL MUST ASSESS SMJ & PJ IF IN FEDERAL COURT

e. Using Supplemental Jurisdiction
(i) Shares claims (Gibbs) - CCC will always meet Gibbs
(ii) Does 1367(b) - yes this is diversity, but only takes away claims by PLAINTIFFS

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

3) Compulsory Joinder by Court

a. Joint Obligor - NECESSARY
b. If a party tried to intervene and judge would not allow - cannot be precluded; if could have joined
and did not, may be joined

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)

E) Necessary and Indispensible Parties - Rule 19 –

 1) Explain:
a. Who MUST be joined (cannot be hidden, structured where P has left someone out and may want
to put person in case; P on one side, D on other side, and A (absentee) is in middle but not in case,
court will grab A and pull into case)

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

F) Interpleader (not claims between existing parties)- Rule 14

1) Impleader - if D brings in somebody TPD (third party defendant) because TPD is or may be liable for
underlying claim from P against D (i.e. normally indemnity or contribution)

2) Rule 14(a) - 2 extra claims

a. Plaintiff can assert claim against TPD if arises t/o
3) Rule 22 & USC 2361 - Interpleader
a. Someone in possession of a particular piece of property that is subject to potentially conflicting
claims to join in one proceeding all potential claimants to that property
b. Relief = guarantee of finality, establishing final title
c. If property is over $500, federal court has SMJ if any single claimant is diverse from any other
claimant
d. No need for complete diversity
e. Nationwide PJ
f. Venue is proper where ever one claimant resides
4) Interpleader
a. Stakeholder - interested in getting all parties interested into court so that not bound by different
judgments
(i) i.e. Prudential has policy on car => insurance may file in federal court for a policy where
multiple parties are involved and have interest ->
(ii) Chaffee - Harvard

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) If not included - 2 options for court:

a. Bringing in other P or D
b. Dismiss litigation in absence of necessary third parties

H) Class Action - Rule 23 in Fed Ct -

1) Class Action Basics - rep is suing on behalf of the parties, could have multiple
a. Can have a D class, but most often P
b. Designed to bind as many parties as is PRACTICALE and FAIR
c. Can be good for anti-trust and lawyers may join to "right the wrong"
d. Getting preclusive effect on members of class must be greater than administrative burden
e. Tension b/t finding class representative & moving class forward
f. Certification - once classes are certified there is an enormous incentive for D to settle - most
arguments will revolve around the certification of the class
g. Mass Torts - historically, class action was preferred way to handle mass torts –

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

I) Consolidation & Severance

1) Rule 42(a) – Consolidations of Claims
a. Court may join cases together that have similar questions of facts or questions of law
b. In some major tort cases courts have moved to consolidate so that one judge is governing
discovery for all cases
2) Rule 42(b) – Severance of Claims
a. Court may split cases - avoid prejudice
3) Exit Class - members can leave and hire own lawyer to represent their own interests

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) Required Disclosures - Rule 26(a)

1) Controversial - parties are required even though no one asks
2) Come up at 3 different times:

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

C) Discovery Tools - 5 different tools to use during discovery

1) Deposition - Rule 30 and Rule 31
a. Questions are oral - rule 30; in writing are Rule 31
b. In a deposition, the deponent is sworn in and it is under oath, transcripts
c. Can dispose PARTIES OR NON-PARTIES… but non-party MUST be subpoenaed or else does not
have to show up; party just needs notice of depo
d. Rule 30(d)(1) – attorneys must work out differences
e. 7 hour rule – no longer, videotaped

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

3) Request to Produce - Rule 34 -

a. Documents/goods, can be used for non-parties OR parties, but a non-party must be subpoenaed or
else NP does not have to do it

4) Medical Examinations - Rule 35

a. Must get a court order
b. Can be used on party or somebody within party's custody or control, very narrow and does not
include employees (basically children)

5) Request for Admission - Rule

a. Force an admission or denial of a party
b. If do not deny within 30 days, then admitted

6) FOIA – Freedom of Information Act USC 552

a. Request production of documents with exceptions – custody of federal agency

7) Electronic Discovery – Rule 26

a. Subject to same rules
b. Unique problems – data mining
(i) Who organizes it? Whose responsibility is it to keep the documents in order?
(ii) Federal Rules – choice of the giver
 (iii) Deleted Documents – extremely expensive process (pay by giver) and must show a
specialized need

D) Scope of Discovery - what do we get?

1) Relevant to Claim or Defense - Rule 26(b)(1), to pleadings
a. Relevant - reasonably calculated to lead to admissible evidence
b. Broader than admissible, can obtain hearsay
c. Limits
(i) Unreasonable, cumulative, duplicative
(ii) Ample opportunity has been given
(iii) Burden/expense outweighs benefits of information

2) Express Rules of Electronically Stored Data - recent rule

3) Work Product (important) - aka trial-preparation materials - Rule 26(b)(3)

a. Define: material generated in anticipation of litigation and if have then immune from discovery
b. Getting around WPR:
(i) Substantial need AND
(ii) Not otherwise available BUT
(iii) Some kinds of WP are absolutely protected:
(a) Mental impressions
(b) Conclusions
(c) Legal theories

4) Duty to Continually Disclose throughout Discovery

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)

F) Blocking Privileged Information

1) Motion in Limine
a. “So” prejudicial – speak to judge to determine
b. Howard Stern Show – was prevented from talking about it
2) Objections
3) Motions to Compel

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) Rule 56 - Summary Judgment

1) Standard for granting - 56(c):
a. There is no dispute on a material issue of fact AND
b. Entitled to judgment as a matter of law
c. If this is true - do not need a trial, no need to resolve disputes of fact; if no dispute of fact then
JOML
d. Must have enough time for discovery
2) Where does evidence come from?
a. Parties proffer the evidence - normally in form of affidavits (sworn and treated as evidentiary),
deposition testimony, answers to interrogatories, deposition, police reports, admissions, reports
from hospitals, “any kind of routine business material”
b. Look at pleadings?
(i) Pleadings are NOT evidence because not signed under oath –
(a) EXCEPTION:
(b) Verified pleadings (under oath)
(ii) BUT - pleadings can be relevant to summary judgment, if D failed to deny then he is deemed
to admit
3) 2 Motions in Trial are very similar:
a. Judgment as a Matter of Law (JMOL) – before jury
b. Renewed JMOL – after verdict
4) Celotex - D can move for summary judgment by pointing out that P has not evidence on an element of a
claim; this forces non-moving party to bring forth evidence to prove existence of evidence on necessary
elements
5) Rules of Thumb
a. Rarely granted FOR the party with the burden at trial
b. Tougher to get in tort than in contract
c. Rule: the court can never resolve a dispute of fact on summary judgment
(i) If dispute on material issue of fact, must have trial

C) Final Pre-Trial Order

1) State:
a. What theories are
b. What uncontested facts are
c. Version of contested facts
d. Witnesses
e. Avoid unnecessary surprises at trial
XIII. Trial

A) The Right to a Jury Trial

1) Jury - resolves disputes of fact, decide what the facts are (including credibility and damages)
a. Generally job of judge to tell jury what law is
2) Rule 38(b) – Request for Jury (in writing)
a. Must demand for jury IN WRITING - can waive it by failing to make appropriate demand
b. Waived - if waived then judge will
3) When do parties have right to jury?
a. 7th Amendment:
(i) Applies only in FEDERAL court in CIVIL cases – “in any court” & “suits at common law”
(ii) "Preserves the right to jury in cases at law but not equity"
(a) Preserves - locked into historical test
1. Look at common law of England of 1791 (when 7th Amd was ratified), would party
have right to jury in 1791?
(b) At Law but not at Equity (a history)
1. Remedy at Law - money for damages to compensate the harm (jury on facts)
2. Remedy in Equity - different remedies (no jury)
Injunction - order from court to do something or not do something
Specific Performance - do something specific
Reformation of a Contract
Rescission of a Contract
Restitution
Accounting
(iii) Claiming both law and equity:
(a) History - used to be center of gravity of claim
(b) Beacon Theaters and Dairy Queen establish 3 rules:
1. Legal claims are finally decided before equitable claims - determine right to jury
issue by issue, not by center of gravity
2. If an issue of fact underlies both law and equity - must get a jury on issues
3. Generally, try the jury issues first before equity issues

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

C) Motions During Trial (JMOL/RAAML/New Trial)

1) Control over the jury - three motions at trial..
a. Judgment as a Matter of Law (JMOL) - Rule 50(a) => directed verdict, but now called JMOL
(i) Standard: "Grant if reasonable people could not disagree on the result" - based on evidence at
trial
(ii) No dispute of fact at trial
(iii) If fails and it goes to jury… move to 2)
b. Renewed Motion for JMOL (RJMOL) - Rule 50(b) - exactly the same thing as JMOL but after
jury
(i) Jury must have reached a standard that that no reasonable people could have reached
(ii) Undue the unreasonable jury, take judgment from jury winner and give to other side
(iii) Old Rule - could not move for RJMOL unless had moved for JMOL at close of evidence
 (iv) Changed Rule - 2006 - "to preserve right for RJMOL must have moved for JMOL at SOME
point at trial (even if not at end of evidence) then preserve right to use"
c. Motion for New Trial - Rule 59(a) - after go to jury, get jury verdict, then move
(i) Points out that there was some problem that there ought to be a new trial because it affected
the outcome of the trial
(ii) In discretion of trial judge (many reasons - i.e. judge gave wrong instructions, or misconduct)
(iii) Granting for new trial is less radical than RJMOL - with MNT judgment is taken away but still
chance for winning party to win, unlike RJMOL
(iv) Discretion of the court
(v) “against the weight of evidence” & “jury reaches seriously erroneous result”
d. Conditional New Trials
(i) Remittitur – lower the award given by the jury
(ii) Additur – forcing D to accept higher damages

D) Equity Relief v. Law Relief

1) When is equity relief available?
a. The threat of future harm (i.e. continuous trespass)
b. When imprisoned - conditions of confinement
c. If unique - automatically have a claim for specific performance (as opposed to easily liquidated)
(i) Real Property - always considered unique
(ii) Public law litigation - becomes perplexing problem
(iii) Balance of public/private interest in determining jurisdiction = public and private harms
weighed

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

F) Jury Verdict & Others

1) General Verdict – finding for an amount
2) Special Verdict – judge draws inferences from the verdict
3) General Verdict with Special Interrogatories
4) Others
a. Bench Trial – Rule 52(a)
XIV. Appeals

A) Who Can Appeal?

1) Losing Party
2) Winning Party – Only a Cross-Appeal
3) Parties in Privity
a. Recently – main party + party in privity has the right to file an appeal
4) When Can Appeal Be Take?
a. Final Judgment – when the judge has nothing left to do but enter judgment
5) Time Limits on Appeal
a. Supposed to be jurisdictional
b. Courts often waive the limit
c. Safe rule – file on time
6) Appellate Rules of Civil Procedure – govern appellate practice
7) Appellate Record – transmit record from trial court to circuit court
8) Supreme Court –
a. Petition for Certiorari
b. Petition on Rehearing on Bond
(i) Elements:
(a) Must show the panel ignored controlling precedent with precedent
(b) That there has been a superseding change in law, OR
(c) Some superseding issue of the utmost importance
c. Pullman-Standard v. Swint – circuit court does not trust the district court about judging case about
racism; Justice Wright was angry about Ct of Appeals shifting the rules to hear the case
(i) Remand – do not need to remand if there no reasonable way a trier of fact could find a fact
differently
(ii) Mixed Questions of Law and Fact – when mixed question, then appellate court need not give
deference to the trial court finding
(iii) Way to control racist/insensitive trial judge – SCOTUS is overruling
(iv) Marshall Dissent – trial courts would write opinions to avoid appeals
(a) Says how to analyze these types of cases:
1. Did it apply the right legal principale
2. Did it find that the trial judge’s findings were clearly erroneous?
3. If erroneous, should remand?
Only if a reasonable trier of fact could find one way, no remand
If question of fact, must remand

B) Final Judgment Rule

1) Cannot appeal until the trial court enters a final judgment:
a. Final Judgment: ultimate decision on the merits of an entire case
(i) All judge has to do is file judgment
(ii) Problems with Final Judgment –
(a) Bad judgment on FNC – stuck with forum until final judgment even if wrong
(b) Multiple Parties/Multiple Claims – when a party is kept or put out of a case =>
cannot appeal the ruling
b. Must make objection for every non-final judgment
(i) PRESERVE the record of the objection – must object
(ii) Fundamental Rule – Preserve it or lose it
c. May not include assessing costs
d. Must file Notice of Appeal within 30 days, filed in trial court after final judgment

C) Interlocutory (Appeal) Review

1) Define: non-final judgment review - categories of interlocutory
2) Statutory 2 Exceptions (Injunction & Law Certification):
a. 1292(a) – Granting/Denying Injunctions
(i) Lists certain orders (mainly injunctions)
b. 1292(b) – Certifying Law (barely used)
(i) Elements:
(a) “Controlling Question of Law”
(b) “Substantial Ground for Difference of Opinion”
(c) “Materially Advance Litigation Process - Shortens”
(d) Circuit Court agrees to take the litigation

3) Federal Rules 2 Exceptions

a. Rule 23(f) –
(i) Class Certification Order =>
(a) Grant or deny certification, can appeal - discretion of Ct of Ap

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

c. Rule 62(h) + 54(b) – Stay of Judgment ->

(i) Escrow Accounts
(a) Judge will hold money in escrow so that judgment recovery is not lost

d. Rule 52(a) – Standard of Review (not 1st amendment)

(i) Review of documentary evidence findings made by a trial judge are subject to the “clearly
erroneous” standard – DOES NOT APPLY TO 1st AMENDMENT
(ii) Many cases come up about questions about
1. Question of Fact – “clearly erroneous”
2. Question of Law – de novo review
(iii) Exceptions:
(a) Will not apply to defamation cases because Appellate Court will independently review
the facts of the case (de novo review)
1. Appellate court had duty “on their own” to raise
2. 1st Amendment protection
(b) Harmless Error Doctrine
1. Materiality

e. Discretion – 3 major ways that discretion is used by judges

(i) When court does not have obligation to explain its decision
(a) i.e. when the SCOTUS denies Cert
(ii) When state highest court makes decision on state law that does not impose on federal
questions then no one can review the decision
(a) Court does have an obligation to explain b/c major decision
(iii) When court makes a decision denying motions
 f. Punitive Damages
(i) No long subject to clearly erroneous test – Discretionary review
(ii) Appellate court may review punitive damage award b/c of due process

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

F) Supreme Court Jurisdiction

1) Certiorari
a. Almost all cases are heard on cert nowadays
b. Limits
(i) Must ask the Supreme Court to hear a case
(ii) Government gets 120 days, private citizens get 60
c. How to get a case heard:
(i) When the General Solicitor will hear a case
(ii) Review = extremely circuitous
d. Roughly 1% of cases asking for cert get it
e. General Ways
(i) Different interpretations between Federal Circuits on each side
f. Examples of extremely important cases:
(i) Bush v. Gore – new law, no one knew
(a) Did not go through the circuit courts
(ii) Watergate Tapes
(a) Did not go through circuit courts
(iii) Gitmo Bay
g. Rule for Jurisdiction
(i) May issue cert for any case in any court so long as the case comes from highest court
(a) “Shufflin Sam” (Police court)
(ii) 4 Justices – Case will be heard (no matter if 7 judges for odd reasons)
(iii) Only Federal Issues – cannot take a case from state if about state law
h. Amicus
2) Reapportionment
3) Secret Laws

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

B) Claim Preclusion - Res Judicata – Rule 41

1) Rule: If have cause of action, get to sue once and only once; cause of action = denial or right
2) If accepted - all relevant claims that could have been brought in first case, MERGE into the second case
and prevent claims from being heard
3) Rule 41(b) –
a. Preclusion for all claims of summary judgment that are not jurisdiction are on merits
4) Restatement 2nd of Judgment S. 24 – Same T/O must bring all claims
a. Any claim that grows out of the "same transaction" can be brought in the original proceeding, and if
it is not brought then the P is forever prevented from ever being litigated

5) 3 Elements of Claim Preclusion:

a. Both cases were brought by the same claimant against the same defendant (same parties in same
configuration)
b. Show that case 1 ended in a VALID final judgment ON THE MERITS
c. Both cases involve the same claim or cause of action [normally most discussion]
(i) On the Merits (not through trial only) - Rule 41(b) –
(a) ALL judgments are on the merits unless they were based on:
1. Jurisdiction
2. Venue OR
3. Indispensible parties
(ii) Default judgment can be precluded - but doubtful
(iii) Some jurisdictions add to this (i.e. judgment on statute of limitations)
(iv) Final –
(a) 30 days after judgment without appeal; after circuit ct, even with standing motions (i.e.
cert) then judgment is final - once final, losing party must perform
(v) Claim Preclusion has 2 Classic Tests:
(a) Majority View - Transaction or Occurrence or a Related Series of
Transactions/Occurrences, one lawsuit to vindicate EVERYTHING out of the event
(b) Primary Rights - different claim for each RIGHT INVADED (i.e. body is different from
property and may sue on them separately)

6) Alternative Holding - split decision:

a. Option 1 (against preclusion):
(i) not used because we don't know which question was actually necessary – Fairness – Keir Test
b. Option 2 (for preclusion):
(i) judicial efficiency – Ferguson Test

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

10) Rule 50 Motions - JMOL

a. Dixon v. Wal Mart - Rule 50 denial by district court overturned; dissent - summary judgment
dismissal was too quick; slip and fall case, dismissed because no established breach (with prejudice)
b. Little v. Blue Goose Motor Coach Co –
(i) Privity – is bound by same preclusion effect

11) Dismissal With Prejudice v. Without Prejudice

a. With Prejudice - cannot file a new complaint, preclusive effect
b. Without Prejudice - no preclusive effect, can bring another claim
c. Costello v. United States –
(i) Rule 41(b) dismissal, claimed not to be because jurisdictional so gov't could bring case again;
SC says D was not inconvenienced filing a motion for good cause to pursue claim of
denaturalization, in first case, gov't did not file this document; in second case
(ii) Rule 41(b) = Preclusion Rule

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

13) FINAL Judgment - becomes final when…

a. In most states - after district court judgment after 30 days without appeal (entitled to preclusive
effect)
b. Less states - require an appellate judgment
c. Cannot look at Jury Verdict only for the final judgment, must be put in the docket

C) Issue Preclusion or Collateral Estoppel - more narrow

1) Elements Showing Issue Preclusion:
 a. Case 1 ended in valid final judgment on the merits (same as res judicata)
b. Show same issue was actually litigated and determined in case 1,
c. Must show that issue was ESSENTIAL TO THE JUDGMENT in case 1 - (default - will not
preclude an issue later if defaulted in prior case - must be LITIGATED AND DETERMINED to have
preclusive effect)
d. Can only use it against a party in privity in case 1 - someone that was a party in case 1
(constitutionally required - due process)

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

d. By whom is estoppel used?

(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:

(b) Non-Mutual Defensive (not a party in case 1)

1. If party against whom being used had full chance to litigate in case 1

(c) Non-Mutual Offensive Issue Preclusion

1. Trend led by federal law so long as it is not UNFAIR
2. Park Lane Hosiery Factors: Assuming not in Privity
i. Person against whom had full chance to litigate in case 1
ii. Final judgment in case 1 and issues was essential to judgment
iii. Party being used against could foresee that it would be used to litigate
against them
iv. Non-mutual party must show that could not joined easily (tough to
understand)
v. No inconsistent judgment on the record
vi. UNLESS good reason not to (conjoined, inconvenient forum, administrative
remedies)
If several cases that are different - cannot use b/c unfair
(d) Court will apply the preclusion law of the SYSTEM that decided case 1
1. i.e. if case one state ct in KA and case 2 in NJ, must use system
2. Symtek – using federal law of preclusion which was state law because Erie/Full
Faith/Klaxon

D) Exceptions when NOT allowed:

1) Major procedural differences?

2) Criminal Law - burden of proof?

a. Restatement 28/29- D is precluded in criminal case
b. Majority Law - not preclusion
 3) Public Policy Reasons (pg 858 - KNOW THESE - argue fairness with reasons)?
a. Remedies are incompatible
b. If the P could have been joined in the first action? (court is going in this direction, get all involved)
c. Relationships in 1st action are not present in second action - example of family court
d. Inconsistent with another determination of same issue
e. Subsequent action or prejudice the interests of another party thereto
f. "other compelling reasons available"
g. More exceptions available

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

E) Federal Rule of Preclusion

1) Diversity Cases –
a. Federal court will look at state law of preclusion but there is exception if the state law undermines
federal procedure law
b. F2 must look at F1's state law to determine F1's preclusive law - Semtek, CA does not bar issue
preclusion for statute of limitations
2) Federal Question - not mentioned in Semtek, but is more complicated

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)