Freer Lecture Outline

Saturday, March 15, 2014

8:44 PM

I. Personal Jurisdiction (PJ) - Can P sue D in this state

a. In personam - Court has power over D, himself
i. Constitutional Limit
1) Pennoyer - Traditional Basis of in personam PJ
a) D is served with Process in the Forum (Presence)
i) Gives General Jurisdiction
b) D's agent is served with process in the forum
c) D is domiciled in the forum
i) Grants general jurisdiction
d) D consents
2) Hess v. Pawloski - PJ upheld on Non-Resident Motorist Act (every state
has this)
a) By driving in our state, you:
i) consent to claims arising out of driving
ii) appoint a state officer
b) Expanded from consent to implied consent and agent to implied
agent
i) Consistent with Pennoyer
3) International Shoe - Minimum Contacts Test - "D must have such
minimum contacts with the forum so that jurisdiction does not offend
traditional notions of fair play and substantial justice"
a) By now, clear we can serve process outside the forum
b) Has two parts (Minimum contacts and fairplay and substantial
justice)
c) Did not overrule Pennoyer, tests coexist.
4) McGee - Upheld PJ in CA of TX Ins Co. based on ONE contact/policy.
a) Court emphasized:
i) Ins Co. solicited that business
ii) State has a right to seek justice for their citizens
5) Hanson v. Denckla - Evil Sisters in PA, trust in FL, case. D's contact must
result from "purposeful availment"
a) D must reach out and avail himself to the forum
6) WW Volkswagen - Bought car in NY, wreck in OK. No purposeful
availment for VW dealer and distributor
a) Availment was from unilateral act of third party
b) Like Hanson, D did not direct activities at forum state
c) Must be foreseeable that D can be sued in a forum
7) Burger King - PJ for MI franchisers in FL at corporate HQ
a) Ct Emphasizes, there is both a contact and fairness part
b) But, D must have a relevant contact before even looking at fairness
c) For unfairness must be: "So gravely inconvenient that you are at a
severe disadvantage"
i) Almost impossible to show
One. Relative wealth of the parties does not matter
8) Asayhi - Tire Valves Stream of commerce decision. No majority opinion.
No law
a) Two Arguments though
i) Brennan - Is a contact if put in a stream and reasonably
anticipate it will get to state C, D, and E
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anticipate it will get to state C, D, and E

ii) O'Connor - Need what Brennan said PLUS intent to serve state
C, D, and E
One. Must TARGET those states
First. Advertisement? Customer Service?
McIntyre - English Machine Mfg Stream of Commerce. Sells to OH,
distributor sells NJ. Ct holds NO PJ, but now Maj view
a) 6 vote no PJ. Two camps
i) Kennedy - uses O'Connor theory, no targeting of NJ
ii) Breyer - Says it doesn't meet either test, doesn't take a position
b) Dissent (Ginsberg) - Uses Brennan test. Targeted US and should
have known that it would get into NJ so there was purposeful
availment, and PJ
c) This split has not been settled.
Burnham - Claim arose in NJ, sued/served in Cali (General PJ case)
a) Does presence when you are served give general PJ, like in
Pennoyer?
b) No majority reasoning, although unanimous gave PJ, even though D
had only been in California for 3 days.
i) Scalia's 4 - Presence when served is ok. Shoe is irrelevant.
Good law under Pennoyer.
One. If you have traditional basis of PJ, you don't have to fuck
with Shoe
ii) Brennan - You must apply Shoe to all cases. (Do the Shoe)
Goodyear - Leading case on General in personam PJ. Unanimous.
a) Helicoptoro - Gen PJ only if "Substantial Continuous Ties with
Forum"
b) This case - Ties must be SO continuous and systematic, that D is
"essentially at home"
i) Examples in Case:
One. Human - Domicile
Two. Corporations - Where incorporated, general place of
business
c) Gen PJ CANNOT be based on buying and selling in state - need
physical presence
Framework
a) First, Does a traditional (Pennoyer) basis apply?
i) If yes - "Based on Burnham, maybe sufficient by itself, but
maybe you need Shoe"
ii) If no - Have to do Shoe anyway
b) International Shoe Minimum Contacts Test
i) Is there a Relevant contact between D and the forum (Fact
based)
One. MUST have this, if not no Jurisdiction
Two. Access:
First. Purposeful availment (McGee, WW VW)
Second. Forseeability D can be sued there (WW VW)
ii) Relatedness - Is this specific or General PJ?
One. Does THIS claim arise from the D's contact with the
forum?
First. Yes - Then Specific jurisdiction
Second. No - Must have General PJ and meet Goodyear
iii) Fairness. Is PJ fair in this case?
One. Factors:
First. Inconvenience for D and his witnesses (HUGE
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First. Inconvenience for D and his witnesses (HUGE

burden, BK)
1. Relative wealth doesn't matter
Second. Forum State's Interest (McGee)
Third. Plaintiff's interest (Injured?)
Fourth. Legal system's interest in efficiency
Fifth. Shared substantive policies (Kulko - family policy)
ii. Statutory Requirement - MUST have a statute that allows it
1) If given a long arm statute (Non-resident D did something in state), study
the language carefully.
2) Same language may be interpreted different ways
a) "D committed Tort in forum"
i) D sends widget over state line, blows up in other state? Where
was tort committed? (Gray v. American Radiators)
One. Authority Split
First. Some say tort was where injury was
Second. Some say it was where it was sent
iii. General - D can be sued in this forum from claim arising anywhere in world
iv. Specific - D is sued on claim that arose in the forum (Doctrine of Relatedness)
b. PJ over defendant's property
i. In Rem - Dispute is about who owns that property
ii. Quasi in Rem - Dispute has nothing to do with ownership
1) Would have been personam if we could get it
2) Mitchell v. Neff (Underlying Pennoyer) - uses land as jurisdictional basis
a) Constitutional requirement is that property is attached at outset of
case
iii. Stautory Requirement - We have jurisdiction over property that D owns or
claims to own"
iv. Constitutional Requirement
1) Shaffer v. Heitner - D must meet International Shoe and property must be
attached at outset
a) Same constitutional test for all types of PJ.
II. Notice (Service of Process)
a. Service of Process (FRCP 4)
i. Process consists of:
1) Summons (Rule 4(a)(1)) - symbol of court's power
2) Copy of complaint
ii. Can be made by any non-party that it is at least 18 - Rule 4(c)(2)
iii. Service on an individual - Rule 4(e)(2)
1) Personal Service - Exactly what it sounds like
2) Substituted Service a) Only possible at D's "dwelling or usual abode"
b) Must serve someone of "suitable age and discretion who resides
there"
3) Service on D's agent
4) Rule 4(e)(1) allows using state law of either state the court sits in, or
where process is served
a) Most important of these is service by mail, not allowed under FRCP
iv. Service of a business - Rule 4(h)(1)
1) Serve an "officer or a managing or general agent"
a) Looking for someone with enough responsibility that we can expect
him to transmit important papers
2) 4(e)(1) - Incorporates state service laws here as well.
v. Waiver of service under Rule 4(d)
1) P mails D process and two copies of waiver form, including selfFreer Outline Page 3

1) P mails D process and two copies of waiver form, including selfaddressed, stamped envelope
2) If D sends back, she waives ONLY formal service of process, nothing
else.
3) If D doesn't mail back, still need formal service but D pays cost of service.
b. Constitutional Standard
i. Mullane v. Central Hanover Bank - "Notice must be reasonably calculated
under all the circumstances to apprise the party of the proceeding"
1) All in FRCP 4 suffice
2) Actual service does not matter
a) BUT if you become it is aware it is not received, you may have to try
other means of giving notice. (Jones v. Flowers)
III. Subject Matter Jurisdiction (SMJ) - Do we go to the state court or Federal court that we
have PJ in
a. Diversity of Citizenship - 1332
i. Between citizens of different states
1) Complete Diversity Rule
a) No diversity if any P is a citizen of the same state as any D.
2) Citizenship of a human being (Natural Person)
a) For a US citizen, you are a citizen of the state where domiciled
i) Only ONE domicile
ii) Retain it until you change it
iii) To establish a new domicile:
One. Be present in the new state AND
Two. Form the intent to make it your permanent home
3) Citizenship of Corporation - 1332(c)(1):
a) States of incorporation
b) Principle place of business (PPB)
i) PPB is the corporation's nerve center (Hertz)
One. Where managers direct control and coordinate corporate
activities
First. USUALLY headquarters
4) Citizenship of unincorporated businesses
a) Use citizenship of ALL members
ii. Amount in controversy exceeds $75,000
1) Amount must EXCEED $75,000
a) Not interest, costs, etc claim itself
2) Aggregation - adding multiple claims to get to $75k
a) Aggregate P's claims if there is one P and one D
i) No limit on number of aggregated claims
ii) Can be totally unrelated
b) CANNOT aggregate if multiple parties on either side
c) With a joint claim, you use the total value of the claim
i) Number of parties is irrelevant
ii) Prof has to say "joint" if it is
b. Federal Question (FQ) Jurisdiction - 1331
i. Claim has to ARISE under federal law
1) Well pleaded complaint rule
a) Look ONLY at the Complaint
b) IGNORE everything except the complaint itself
c) "Is the P asserting a federal right?" (Motley - Lifetime RR passes
case)
i) Can't anticipate a Federal defense, even if it raises a federal
issue
c. Supplemental Jurisdiction - 1367
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c. Supplemental Jurisdiction - 1367

i. Gibbs - Must be same case, meaning claims share "a common nucleus of
operative fact" to attach a non FQ, non diversity claim
1) Does 1367(a) grant Supplemental Jurisdiction - Codification of Gibbs
Test
2) 1367(b) takes it away in certain circumstances.
a) Applied ONLY in diversity cases
b) Only takes away claims by P, not any from D
d. Removal - 1441, 1446, 1447
i. Can remove if the case could have been brought in Federal Ct.
1) Cannot remove if any defendant is citizen of the forum (In-State
Defendant Rule)
a) ONLY APPLIES TO Diversity of Citizenship (NOT FQ)
ii. Must remove within 30 days of service of process
iii. All D's who have been served with process must join the removal (Rule of
unanimity)
iv. 30 days starts anew with each newly served D
IV. Venue
a. 1391
i. 1391(a)(1) - Can lay venue in a district where ALL D's reside
1) BUT if ALL D's reside in the forum state, you can lay venue where any
one resides
a) Human being resides in the district where domiciled
b) Any kind of business resides in all districts where subject to PJ for
this case
i) Extremely broad
ii. 1391(b)(2) - Any district where a substantial part of the claim arose
1) Can be more than one
b. Transfer of Venue
i. 1404, 1406
1) In BOTH, transferee must be have Venue as described above and PJ (not
waivable)
2) 1404 - Transferor is proper venue
a) May transfer in the.. interest of justice
b) "Center of Gravity"
i) Public and Private Factors
3) 1406 - Transferor is an improper venue
a) Court may dismiss OR transfer in interest of justice
c. Forum non-convieniens - When a court dismisses bc there is another one that is more
convenient
i. Transfer is impossible because the more convenient court is in a different
judicial system
ii. Piper Aircraft v. Reyno - Plane crash in Scotland Case, S.Ct. dismissed.
1) Center of Gravity elsewhere
a) Public and private factors (Footnote 6)
iii. The other court MUST be adequate and available
1) Hasn't bought that a lower remedy qualifies
2) Basically, all it requires is a day in court
V. Erie Doctrine
a. Hannah Prong - Is there a Federal directive on point? (Hannah v. Plumer)
i. If yes, the Federal law wins, as long as it is valid
ii. We test whether a FRCP is valid by testing it against the Rules Enabling Act
(REA)
1) Does it modify substantive rights?
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1) Does it modify substantive rights?

2) SCOTUS upholds if it is "arguably procedure" (Shady Groves)
b. Erie Prong - Must the Federal Judge follow state law?
i. They must if it is substantative
1) Is it "outcome determinative?" (Guaranty Trust - SOL is outcome
determinative, thus substantive)
a) If you ignore it, you get a different law than when you apply it.
b) The outcome should be the same
c) BUT at some point, every rule is outcome determinative at some
point
2) "Balance the Interests" - (Byrd - If it is not obviously substantive, we
should apply state law, unless the Federal Court system has an interest in
doing it differently - required bench trial had no reason, so you can go
with federal law)
3) Twin Aims of Erie (Hannnah)
a) To avoid Forum Shopping
b) Avoid the Inequitable administration of the law
c) Ask: "If the federal judge ignores this state law, will it cause parties
to flock to federal court?"
VI. Pleadings
a. Complaint - Rule 8(a) - what must be in the complaint
i. Statement of Subject Matter Jurisdiction
ii. "Short and plain" statement of the claim
1) Twombly & Iqbal
a) Court ignores conclusions of law and looks only at alleged facts
b) Facts must support a plausible claim (Used to be just a possible
claim)
c) Ct uses experience and common sense to access plausibility
i) Very subjective
2) Some things require greater detail
a) Rule 9(b) - for Fraud claims, you need details with particularity
iii. Demand for relief
b. Response - Rule 12 - Must respond within 21 days of service of process
i. Either by motion or by answer
1) Rule 12(e) - Motion for more definite statement
2) Rule 12(f) - Motion to strike a part of the pleading
ii. Motions to dismiss - Rule 12(b) - all can be raised by motion of answer
1) SMJ
2) PJ
3) Venue
4) Insufficient Process (problem with document)
5) Insufficient service of process
6) Failure to state a claim
7) Failure to join an "indispensable party"
iii. 12(g) and 12(h)
1) 12(b)(2-5) must be in FIRST Rule 12 Response, or they are waived
2) 12(b)(6-7) can be raised for first time at any time through trial
a) NOT at appeal
3) 12(b)(1) - Can be raised at any time throughout case (SMJ) - not waivable
c. Answer
i. Must respond to the complaint
1) Admit
2) Deny
a) Failure to deny is an admission of any allegation except damages
3) Say you do not know (Lack sufficient information) Rule 8(b)(5)
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3) Say you do not know (Lack sufficient information) Rule 8(b)(5)

a) Must be something not in your control
ii. Raise Affirmative defenses Rule 8(b)(1) - Adding a new fact, which if true, D
wins
1) Risk waiver if not put in answer
VII. Joinder - Determine scope of litigation - must ALWAYS access SMJ for EVERY claim
after joinder
a. Claim Joinder by P
i. Rule 18(a) - P can join ANY claim he wants
1) Then you have to access SMJ
b. Claim Joinder by D
i. Counterclaim Rules 13(a)-(b) - Claim against an opposing party (someone who
has sued you)
1) Compulsory counterclaim R 13(a)(1) - Arises from the same transaction or
occurrence
a) Must assert claim in pending case, or it is waived
2) Permissive counterclaim - Does not arise from same T/O
c. Cross-Claim - Rule 13(g) - Claim against a CO-party
i. MUST arise from same t/o as underlying case
ii. NEVER compulsory
d. Proper Parties - How we get multiple parties - permissive Rule 20 (a)(1)-(2)
i. Claims arise from same t/o
ii. Raise at least one common question
e. Necessary and Indispensable Parties - Who SHOULD or MUST be joined - Rule 19
i. Is Absentee(A) necessary? Rule 19(a)(1): any of these
1) Without A, court cannot accord complete relief among parties (efficiency)
2) A's interest may be harmed if not joined (focus on A)
3) A's interest may subject D to multiple or inconsistent obligations (D's
interest)
ii. Is joinder of A feasible? Access:
1) PJ and
2) SMJ (bringing you in will not destroy diversity)
iii. If joinder not feasible, then Court must either proceed without or dismiss the
case - Rule 19(b)
1) Factors:
a) If court dismisses, will P have an adequate remedy? (can P go to
state court)
2) If we dismiss, A is called indispensable - Rule 12(b)(7)
f. Impleader (3rd Party Practice) - D joins somebody new, 3rd party defendant (TPD)
i. TPD may be liable to D for P's claim (indemnity or contribution)
ii. All TPD claims must arise from same T/O
g. Intervention - Rule 24 - When A brings himself into case
i. Must be "timely"
ii. Intervention of Right - 24(a)(2)
1) If A's interest may be harmed if she doesn't intervene
a) UNLESS someone else is already looking out for their interests
b) Same test as for necessary party, difference is who raises
iii. Permissive Intervention - 24(b)(2)
1) Pending case has at least one common claim or question as what you want
to assert
h. Class Action - Rule 23 - where the Rep sues on behalf of the group
i. Prerequisites - 23(a)
1) Numerosity - Too numerous for practicable joinder
a) No magic number (40ish is borderline)
2) Commonality - At least one question in common to class
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2) Commonality - At least one question in common to class

a) WalMart - Too many different episodes based on individual facts
3) Typicality - Rep's claim has to be typical of class
4) Rep will fairly and adequately protect the interest of the class
ii. Types - 23(b)
1) 23(b)(1) 2) 23(b)(2) 3) 23(b)(3) - Must show that:
a) Common questions predominate over individual questions
b) Class action is the superior way to resolve the dispute
iii. Motion to certify - Not a class action until the court certifies
1) Court must define the class
2) Court must appoint class counsel
iv. Notice of pendancy
1) In (b)(3), must give individual notice to all members reasonably
identifiable
a) Must contain 23(c)(2)(b)
i) Must inform of ability to opt out
2) No required notice in (b)(1) or (b)(2) types
v. Who is bound by a class judgment?
1) All class members, except those who opted out of a (b)(3)
a) No right to opt out of mandatory class actions (b)(1), (b)(2)
vi. Settlement or dismissal of a certified class
1) MUST be approved by the court - 23(e)
vii. Subject Matter Jurisdiction
1) FQ is Easy
2) Diversity of Citizenship
a) Citizenship
i) look ONLY at the Rep, not class members
ii) Rep MUST be diverse from ALL D's.
b) Amount in Controversy
i) OK if Reps claim exceeds $75k (Exxon v. Allapattah)
One. Don't care about members (invoke supplemental SMJ)
VIII. Pretrial Adjudication
a. Rule 12(b)(6) - Motion to dismiss for failure to state a claim
i. NEVER looks at evidence
ii. Looks only at face of complaint
1) Twiqbal standard - ignore conclusions of law, look only at allegations of
fact
2) Do facts alleged state a plausible claim based on judge's experience and
common sense
b. Summary Judgment - Rule 56 - Do we need a trial (to resolve disputes of fact)?
i. Have to show - R56(a)
1) No genuine issue of dispute on a material fact
2) You are entitled to judgment as a matter of law
ii. Court CAN look at evidence (stuff that is sworn to and admissible)
1) Proffered by the parties
2) Does NOT access credibility of parties
iii. Matssoseita, Anderson, Celotex - Courts should loosen up a little bit
iv. Scott v. Harris - A videotape can show that there is no dispute
IX. Trial
a. Right to a jury - 7th Amendment
i. Preserves the right to a Jury - get one if you would have gotten one in England
in 1791
ii. Does so only in cases at law, not equity
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ii. Does so only in cases at law, not equity

b. Motions - Is there enough evidence to justify to go to the jury?
i. Motion for judgment as a matter of law (JMOL) - Rule 50(a)
1) Rule 50(a)(1) - Grant if reasonable people could not disagree about the
result
a) MUST be by motion - court cant do it on its own
2) Rule 50(a)(2) - Cannot move for this until other side has been heard at trial
ii. Renewed Motion for JMOL (RJMOL/JNOV) - Rule 50(b)
1) Exactly the same as JMOL EXCEPT that it comes up after trial
a) Jury reached a conclusion reasonable people could not of reached
2) Must make this motion within 28 Days of judgment
3) MUST have moved for JMOL at proper time at trial or you WAIVE
JNOV
iii. Motion for New Trial - Rule 59(a)(1)
1) Must make motion within 28 days after judgment
2) Judge feels that SOMETHING went wrong which affected outcome, so
we should start over
3) Can be by motion or sua sponte
4) Much less drastic than JNOV
X. Appeals
a. Final judgment rule (FJR)
i. Every order the judge makes is either final or interlocutory
ii. Can only appeal from a final judgment
1) After making order, does the trial judge have ANYTHING left to do on
merits of case?
b. Interlocutory review (Exceptions)
i. By statute
1) 1292(a) - mostly injunctions
2) 1292(b) - Certification issues
ii. By FRCP
1) 23(f) - Allows COA discretion to review class certification decisions
2) 54(b) - Allows for case with multiple claims or multiple parties, up to trial
judge
iii. Common Law
1) Collateral Order Doctrine - important issue which is collateral to the issue
of case
XI. Claim/Issue Preclusion
a. Preclusion
i. Always two cases
1) Case 1 - gone to judgment
2) Case 2 - pending
ii. Question is always about whether Case 1 precludes something in Case 2
iii. Apply preclusion law of system that decided case 1.
b. Claim preclusion - you only get to sue once on a claim
i. Three requirements:
1) Case 1 and Case 2 brought by same claimant against same defendant
2) Case 1 must have ended in a valid final judgment on the merits
a) EVERY judgment is on merits, unless based on:
i) Jurisdiction
ii) Venue
iii) Indispensable parties
3) Have to show that case 1 and 2 asserted the same claim
a) MAJ: Claim is transaction or occurrence
b) MIN: "Primary Rights" - Diff claim for each right invaded
c. Issue Preclusion Freer Outline Page 9

c. Issue Preclusion i. Requirements:

1) Case 1 must have ended in a valid final judgment on the merits
2) Same issue must have been LITIGATED and decided in case 1
3) That issue must have been ESSENTIAL to judgment in case 1
a) If we decided differently on this issue, outcome would have been
different
4) Can only be used against somebody who was a party in case 1
a) Party includes those in privity (Taylor v. Sturgill)
b) Due Process issue
5) Who is using issue preclusion? Mutuality issues
a) Non-mutual defensive - D in case 2 is using it, who was not a party
in case 1
i) Most allow, as long as P had a full chance to litigate in case 1
b) Non-mutual offensive - P in case 2 using it, who was not a party in
case 1
i) MOST courts reject
ii) TREND led by Federal law to allow if fair (Parklane Hoisery)
Factors:
One. D had a full chance to litigate in case 1
Two. D could foresee multiple suits
Three. P Could not have joined easily in Case 1
Four. No inconsistent judgments

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