CIVIL PROCEDURE OUTLINE

Personal Jurisdiction:
Courts Power to Adjudicate over someone
 Always concerned with the defendant – π can always go where the ∆ is located.
 In personam – claims against a particular person depending if sufficient territorial connection with the forum state.
 In Rem – (property  about the property) Action to determine state of property, ships, vacation homes, etc.
 Quasi in rem: Rights of a particular person to certain property (Property not about the property)
Dual Inquiry for Long Arm Cases:
 First ask: Statutory ground for PJ – from state
 Are these consistent with the constitution? (DP of 14th Amendment)
General versus Specific:
 General: Jurisdiction over any claim, even claims unrelated to instate activities justified by the substantial contacts
that the ∆ has within the state
 Specific Jurisdiction: Jurisdiction over a single act.

Pennoyer v. Neff
 Facts: Mitchell claimed to have done legal work for Neff who didn’t pay. Mitchell sued Neff in Oregon (lived in CA)
Mitchell sued in quasi-in rem. Default judgment was entered. Court seized Neff’s OR property to satisfy the
judgment, and Mitchell purchased for about $300. Mitchell sold to Pennoyer for $15k. Neff is suing Pennoyer in this
case. TC said judgment w as void because an affidavit was insufficient.
 Issue: Was the original judgment valid? did the lack of actual SOP violate DP?
 Law: QIR requires that court have power over some property that belongs to the , but the dispute here is not about
ownership of the property.
 Rule: The Oregon state court did not have jurisdiction over Neff’s property because it was not attached at the
outset of the case. In order to exercise QIR jurisdiction, the property must be seized at the outset of the case.
DP for states (14th Am.) was not enacted at the time of the original suit, but would definitely prevent jurisdiction
in a case like this. More broadly, the principle is that a state’s assertion of PJ is limited by the DP clause of the
14th Amendment.
 Notes:
o lithe original principles are still important, especially need to re-examine PJ with regards to increasing international
litigation and the internet.
o Neff made a collateral attack on the judgment – basically a brand new lawsuit.
o Jurisdiction here is territorial – people did not expect notice to be given interstate. Similar to where we are now with
international proceedings.
o Blackmer v. Us, Milliken v. Meyer: can authorize jurisdiction if living elsewhere – based on domicile
o Grace v. Macarthur: transient – tag jurisdiction, service on plane as fly over the state.

Hess v. Pawloski SCOTUS 1927( Nonresident driver v. Accident victim) – expanding Pennoyer for moving citizens
 Solution in state agent
 RULE: Expansion of Pennoyer for in personam. Allows for service of an agent in the state, consent to have this
agent accept service is implied by the ∆’s use of state highways.
 Key for implied consent – SOP within the state still
 Jurisdiction exists if (1) domicile (2) status, (30 acts with in the state (4) corporations
 Note: defendant appeared specially – means you appear but are just contesting PJ – if just appeared you’d be
consenting to it.

International Shoe v. Washington SCOTUS 1945

 Facts: Shoe is a Delaware corporation, have less than 10 salesmen in Washington. WA wants to sue Shoe
because it refuses to pay WA tax for companies that do work there.
 Law typically looks at jurisdiction of corporations by state of incorporation and primary place of business. Shoe
introduces a new test
 MINIMUM CONTACTS TEST: due process requires only that to subject a defendant to a judgment in
personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such
that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
  Long arm Statutes – emphasis on quantum and quality of defendant’s activities
o Minimum contacts are a standard, here letting small amount do the trick.
Cases Applying International Shoe
 Hanson v. Denckla (SCOTUS 1958): ∆ must have purposely availed itself to eh privilege of
conducting activities within the forum States, thus invoking the benefits and the protections of its laws.
(Deliberate Choice)
 Worldwide Volkswagen v. Woodson (SCOTUS 1980): NY Car dealer had not purposely availed itself of
the opportunity to conduct activities in Ok, and just because someone took a car there could not be
subject to PJ in Ok. ∆ had not sought any direct benefit from Ok.
 Keeton v. Hustler Magazine SCOTUS 1984: ∆ was considered to have purposely availed himself of NH
because it distributed magazines within the state. The π did not live in NH, but wanted it because the
statute of limitation hadn’t expired in NH.
 Kulko v. Superior Court : Holds just because defendant bought a ticket for his daughter to fly to
California did not make him reached by long arm because he had not purposefully availed himself of the
benefits of CA laws. Financial benefit fro daughter’s presence doesn’t count.
 Asahi Metal Industry v. Superior Court (SCOTUS 1987): Court was split as to whether selling goods out
of state x that were likely to make it into state x was sufficient for PJ. Some justices thought mere
awareness was insufficient for purposeful availment. As a result of the split, no clear law on stream of
commerce and whether it = purposeful availment. O’Connor pseudo-majority: stream of commerce +
o 5 factors:
 1. Burden on Defendant
 2. Interests of the forum state in the litigation
 3. interest of the plaintiff in that state
 4. jurisdiction serve interstate efficiency
 5. allowance of jurisdiction serving interstate policy interest.
o Wood is not a fan of 5-factor test if not weighted. Court here is talking about the burden of the
defendant and the remoteness of this case from California interest all together r- not really going
through all 5 factors.
 Rodriguez v. Fullerton Tires – adopted O’Connor’s view that mere awareness that a product will pass
through stream of commerce into the forum state does not satisfy the PJ requirement of purposeful
availment.
 Burger King: where a ∆ has purposely directed activities to the forum state, jurisdiction is presumptively
reasonable.
Personal Jurisdiction

Specific Jurisdiction within world of PJ

Due Process Limitations on the Exercise of Personal Jurisdiction:
 DP clause does not actually confer any jurisdiction on the state courts
 Always a 2 step analysis:
o Is there a state statute that authorizes the court to exercise PJ under the circumstances of the
case? In state court, look to long arm statutes. In fed court, look to rule 49k, which allows DC to
use long arm statute of forum state.
o If so would it be constitutional under DP clause to exercise PJ? if state court, ∆ needs minimum
contacts with forum state,. If federal court, needs minimum contacts with U.S.
 Long Arm statutes: states authorize jurisdiction over ∆’s based on specific types of contact with the
forum state. Sometime hit will be less than DP allows, sometime it might exceed
 IN cases where the long arm statute exceeds constitutionals cope of jurisdiction, just the bulge is
invalidated, not the whole thing.
 Some conduct that occurs outside of a state still have an impact inside of the state and are grounds for
PJ:

Gray v. American Radiator & Standard Sanitary Corp., Ill. 1961:

Facts: Gray buys a water heater with a faulty valve. One of the s made the valve in OH, the parts get put into a
water heater and eventually find way to IL. Construed the tortuous act to occur in IL. Criticized.
Rule: (not followed) example of long arm statute being construed such that the act as in IL even thought the D
never was in IL. Impact minimum contact rather than actual physical presence.
Wood: Stream of commerce theory  valve was introduced into the stream of commerce.

McGee v. International Life Insurance Co., SCOTUS 1957

Facts: π was the beneficiary of a life insurance policy, purchased from AZ corp. by CA res.
Rule: Uphold jurisdiction over claim arising out of a single contact solicited in the state (isolated and related).
Wood: Court noted that increasing nationalization of commerce, expanding scope of jurisdiction

Henson v. Denckla, SCOTUS 1958:

Facts: PA resident established a trust in DW, then moved to FL. Daughters challenged in FL.
Rule: The π’s unilateral contacts with the forum state did not create a constitutional basis for requiring the ∆ to
defend there.
 Court said go to Delaware. Limit on Shoe. Sending mail not enough. need PURPOSEFUL availment.
 Different from Burger King because the ∆ never purposefully availed himself to Florida.

Worldwide VW Corp v Woodson (limits Gray/stream of Commerce)

Facts: Car purchased I NY by π, who got in a car accident in ok. did not market in Ok.
Rule: A state court may exercise PJ over a nonresident D only so long as there are sufficient minimum contacts
and the suit does not offend traditional notions of fair play and substantial justice. Placing something in the
stream of commerce is not enough, must satisfy Shoe and be foreseeable.
Wood: it is at least foreseeable that a car will be in many states as the valve in Gray. Here the court says
“foreseeability” is about whether it is foreseeable to be haled (dragged) into court. Once you have satisfied the
min contacts, then look at judicial interest and witnesses to determine fairness.

Keeton v. Hustler Magazine, SCTOUS 1984

Facts: libel action, only 10-15 copies sold in NJ and Sol had not run in NH. P wants nationwide damage because
lives in NY – forum shopping, but did sufficient business.

Kulko v. Superior Court, SCOTUS 1978 (compare to Burnham)

Facts: CA court upheld jurisdiction over dad, NY resident who bought ticket for daughter to see mother in CA.
SCOTUS says NO jurisdiction
Rule: Insufficient contact with the state uner Shoe, no purposeful avialmenet.
CA court used “Effects” test, which can be used wehre the ∆ has (1) commited an intentional act (2) expressly
aimed at the forum state (3) causing harm, the brunt of which has been suffered in the forum state (and ∆ knew
it would be). Courts do not usually apply.

uburger King v. Rudzewicz, SCOTUS (expansion fo McGee)

Facts: Frnachise located in MI, BK owners in FL. There was choice of forum in K.
Rule: Continous but limited activity in the forum state, such as an on=going business relationshipw ill support
SJ. Purposeful availment.

Asahi Metal Indsutry Co. v. Superior Court, SCTOUS 1987

Facts: All about stream of commerce. Should a component part manufactured by foreign D mean that hety are
subject to PJ? – this case had NO majority.
Rule: Continous but limited activity in the forums tate, such as ongoing business relationship wills upport. SJ
Wood: Post-Asahi, most courts require at least a little more than stream of commerce, also consider items like:
burden on ∆, interests of he forum state, π’s interest in obtaining relief, efficient resolution of controversies state
policy issues.
General Jurisdiction within world of PJ
∆ can be sued in the state for any claim, even one compelely unrelated io its instate activtieis where the
activities of the D in the state are substantial enough hat she would expect to be subject to suit there,a nd would
suffer little inconvenience.

Helicopteros Nacionales de Columbia v. Hall, SCOTUS 1984

Facts: Helicopteros is a Columbian company operatin gin Peru, providing transportation for a US company.
Crash occureed, 4 US citizens died. P’s sue in Texas
Rule: Apply minimum contacts test Insufficient contact here, though dissent argues purposefula vialment.
Wood: This case starts to narrow general jurisdiction. Dissent maeks a distinction between arising out of and
relating to.
There was SPECIFIC jurisdiction in this case just not general jurisdiction
technological Contacts as a Basis for Personal Jurisdiction
Pebble Beach CO. v. Caddy 9th Cir 2006
Rule: Where a D has not purposefully aviled himself of the prvielg of conducting activtieis in the forum or
purposefully directed hisa ctivtieis toward the forum,t eh minimum contacts test for personal jurisdiction is not
satisfied.
 Caddy had just lived in California for a short time, Caddy’s actions were not expressly aimed at
California his website was for a b&b using the name Pebble Beach but the acts were not aimeda t
California. Even thought hey ahd a forseeabel effect, they are insufficient to establish jurisdiction
 Need something more than just foreseeable. An intenreat domain name and passive website alone are
not something more, and therefore by tehsmelves are not enough to subject to jurisdiction.
 Difference between interactive, active, and passive.

Wood: Particualrly w/ internet, may see states trying to cut back and in some sense draw lines athat are less
than what the maximum might be in the interest of clarity and allowing peopelto have an idea whether they are
subject to a lawsuit in the courts of a state.

Internet Cases:
 Consulting Engineers v. Geometric – no jurisdiction with 4 phoenc alls and 24 emials, did not alter
minimum contacts
 Headstrong v. Jha – plaing info on the interent does not subject he sneder to PJ because the email
might be accessed in the forums tate even thought the d forwarded the email to recipients
 GTE News Media SErvics v. Bell South: declined to find that nonresident company did business in the
forum because residents accessed the websites
Power over Property as a Basis for PJ
Shaffer v. heitner, SCOTUS 1977 (overrules Harris v. Balk)
Facts: Shareholder’s derivative suit (shareholder suign the company)
Rule: Apply Shoe test to alla seertiosn of jurisdiction not just in personam. Doesn’ change for in rem, DOES
changes things for Quasi in Rem.
Wood: Post Shaffer, have to give more evidence about why it is Ok to attach property.

Burnham v. Superior Court

The 14th Amendment does not deny a state jurisdiction over a person personally served process wile
temporariliy int eh state –e ven in an airplane.
Nothing changes related to Shaffer because this case is decided by plurality, no majoiryt.

Consent as Basis for Personal Jurisdiction

Insurance Corp. of Ireland v. Compagnie des Bauzietes de Guinee
Facts: π was an overseas business that was incorporated in De, purchased insurance from PA and other
brokerage firms (foreign) π sued in PA when isureres would not pay up.
Rule: Not really consent as far as coercion – company thoguth no jurisdiction so werne’t cooperating with
discovery and the penalty was to find that they did have minimum contacts in the jursidictoin. By submitting for
limtedpurpsoes of challenging jurisdiction they gagreed to abide by the court’s determination of the issue.

Carnival Cruise Lines v. Shute When you decide to go on a cruise, your’e buying a package of things, room,
port,s food and sytstem of courts

Jursiditional Reach of Federal District Courts

Fed courts piggy-backoff the rules of the state in which they sit, per FRCP 4(K).
Rule 4(K) (20: a limited federal logn arm provisiont hat applies to Ds against whom “claims arising under federal
larw” are asserted when there is no applicable federal process provision,a nd who are not amenable to suits in
any one of the 50 states.
Three Parts:
 1. if the state courts could have served the person, you cans erve
 2. Bulge Proiviosn: 100 mile – if the party has been joined properly int eh federal law suit, you can go
100 miels out ofrom the court house, eve thoug In is different than Il and the CIrcuti of Cook conyt can’t
serve unless long arm,t he federa court of Chicago can go 100 miels out and serv somebody
 3. When authorized by federal statue, - some fed. statut’es have special reuls for service (antitrust
sercurity)
4k2: Limited federal long arm provision that establishes PJ for a claim that varies under federal law if the D is not
subject to jurisdiction in any state’s court of genral jurisdiction and exercising jurisdiction is consistent withteh
Constitution ( expat)

Omni Capital Interantioanl v Rudolf Wolff & Co

sued in LA, Omni is a NY coroporation D impleaded Rudolf Wolff. RW not present in LA not reached by long
arm. No rule at teht ime, led to 4k2

United States v. Swiss American Bank

A D who wants to preclude the use of Rule 4k2 just ahs to name a state in which they can be sued.

Pendent Personal Jurisdiciton:

US v. Botefuhr: suggests that with same facts can bring more than one claim – once DC has PJ for on eclaim
can add claism that arise form the saem facts as the claim wehre it has proper PJ. (convenience, economy and
fairness to litigants)
 SUBJECT MATTER JURISDICTION
If the court determines at any time that lacks SMJ, the court must dismiss the action. Can’t agree to it.

Background:
 Comes from Art. III, 2 of the Constiuttion, which lists categories that the federal courts can hear.
Anything not listed must go to state
o Between states
o Between citizens of different tates
o Between citizens and aliens
o Cases involving foreign ministers and consuls
o admiralty and maritime cases
o Cases arising under the Federal COnstiutiton and Federal law
o Few other narrow categories
 Learn 1332! Diversity of Citizneship, amount in controversy, costs
o The DC shall have jurisdiction of all civil actions where the matter exceeds $75k and is
between:
 Citizens of different states
 Citizens of a state and citizens of a foreign state
 Citizens of different states in which citizens are subjects of foreign state are additional
parties
 A foreign state and citizens of a stare or different state (where foreigner is plaintiff)
o A corporation is a citizen of Any State by which it has been incorporated and the state where it
has principal place of business
 Corporaiton can only have one principle place of Busienss for DJ
 Nerve Center Test: locus of corporate decision making authoritie
o Bryer in Boeing
 Policy debate about why we have it P 275
 §1359: can’t collude and assign rights to create Diversity Jurisdiction
 Determining Citizenship = domicile..You still have your old one until you get a new one.
 Domiciled Alien – alien with permanent residence is a citizen of their domilcile
 Expats cant use dj because cant be sued under jurisdiction


Mas v. Perry , 5th Cir 1974

Facts: Mas (husband and wife, P) from Miss. and France Spetn some time in LA for school then Il and intended
to return to LA. Perry is a citizen of LA. P sued over a two way mirror in her LA Apartment.
Rule: Complete diversity of the parties is needed to support DJ. Diversity that matters is at time of filing
Wood: This case isa stretch CoA faces that if they say considered LA then whole thing is out the window.
Probably should have dismissed and sent to state court.
Amount in Controversy
Must be GREATER than $75k
 Plaintiff good faith controls (pain and suffering, intangible)
 Only where the judge concludes to “legal certainty” that the P could ony be awared $&5k or less is the
requirement not met
 Aggregation of claims:
o Single P  against single D, can add amounts even if unrelated claims
o Single P  multiled D’s – cannot aggregate. Must meet against each D.
o If One P satisfies the amount then may join co-Ps that are seeing less via supplemental. But
cannot bring in co-Ds this way
o If altenrative theories, themoney can’t count twice
 Injunction: 3 approcahtes for value of injunction:
o Value to the P
o Value to the D
o Either side, if one is bigger than $75k, sufficient
Afa Tours v. Whitchurch
Rule: the sum claimed by the P controls if the claim is made in good faith. Must appear to legal certainty that is
less than jurisdictional amount to justify dismissal

Classes and Jurisdictional Amount:

Exxon Mobil v. Allapattah – when a representative satisfies the amount inc ontroversy requirement,a fedral
court in diversity may exercise supplement jurisdiction voer additional plaintiss whoseclaism do not satisfy the
amount if part of same case or controversy. – overturns Zahn

SUBJECT MATTER JURISDICTION

Federal Question: “Arising Under”

§1331: Federal Question: The district court shall have original jurisdiction of all civil actions arising under the
Constitution, laws, and treaties of the USA.
 Osborn was broad interpretation – Ingredient test.
 28 USC §1331: Statute which Congress bestos arsing under jurisdiction. Courts interpret it Narrowly
 Arising under is based on the PLAINTIFF’s claim.
Arises under if satisfies the Holmes Test (where fed law creates and authorizes the claim of action)
Merrll Dow: where fed law creates a substantive right but there is no express federal authorization to sue.
Parites MAY bring action to federal court if SMJ is satisfied, not a must – can chosoe state.
Diveristy jurisdiction does not have to be satisfied
Can be raise dat any time and court can raise it on its own.

Two Statutory Limitations on §1331 imposed by Congress:

 Well Pleaded Complaint Rule: federal law must be part of the P’s well pleaded complaint. Court wil
ignore material in the complaint that is not essential to the claim (Mottley)
 Centrality – federal question must be sufficiently central and important (holmes)
Lousiveill & Nasihville v. Mottley, SCOTUS (the RULE in ariaisng under Federal SMJ) Well Pleaded complaint
 Rule: Arising Under Federal SMU only applies if the P’s claim requires proof under federal law.
 Listing an anticipated defense that is federal is not enough. D’s counterclaism on federal rights not
enough

Smith v. Kansas City Title and Trust

Where it appears from statement of the plaintiff that the right to relief depends upon the construction of the
constitution or laws and that such federal claim is not merely colorable and rests upon reasonable foundation,
the DC has jurisdiction. (holmes dissented)

Merell Dow Pharmaceuticals Inc v. Thompson Scotus 1986

Federea law creates a substantive right but no express authorization to sue. Is there an implied right of action?
Facts: Ps sued for ddamages caused by a drug. All state tort law theories, but needed to establish a federal law
proposition (fdca act) in order to recover. Parites agreed that Congress dd not intend to create an implied right of
action.
RULE: No arising under SMJ because not an implied right o faction from the statute. Unsure as to whether this
means that “federal issues embedded in state claim”exception to Holmes’ test is gone.

Wood thinks: thi sis stronger argument than Mottley because the P’s need to prove that the FDCA was
violated.But the FDCA does not proveide the remedy – the state tort claim does.
 Even thought he FDCA appeared on the complaint, ti was a negligence theory – it was part of the way
they were going to prove negligence and not enough to turn it into a claim under federal law.

Grable & Sons Metal Products v. Darue Engineering nd manufacturing:

 decies that this is one of those strong federal interests. Requires you to analyze each case on the hard
side.
 Supplemental Jurisdiction
Ask: If a claim does not qualify for diversity or federal question jurisdiction, does the claim qualify for
supplemental jurisdiction under 28 USC §1367?
1367a – does the broad grant of Supp Jur in 1367 apply?
 Freestanding – claim over which the court has original jurisdiction
 Common Nucleus of Operative Fact (UMW v. Gibb)
if 1367a satisfied, does 1367 b nevertheless bar supplemental jurisdiction?
 Diversity Claim - if based solely on diversity, court can prvenet supp jur
 If cliaim is brought by plaintiff joined under rule 19 or 24, the claim will not qualify for supp jru if it is
inconsistent with div jur. – if claim against joined parties then supp jur not permissible
1367b says – if its diversity and the P wants toa dd a claim against T, the P has to find independent basis fo
jurisdiction to do it – suppelemntal will not suffice.
Congress wont’ let you use suppelmenetal if plaintiff brings in extra people under 14, 19, 20, 24 – not 23, then
there’s no supp jur – important because congress is using DJ in conservative way.

1367c – four reasons why DC may decline to exercise supp jur.

 if dismissed all claism over which it had original jurisdiction, if novel issue of state law, if state law
predominates, other

Removal
Defendant decides removal
 P chooses the forum in which to bring a suit, subject to Pj, SMJ, venue.
 Removal = exception to the rule. D can remove some types of cases from state to federal. once
removed, state court loses jurisdiction.
 28 USC 1441a only authorizes removal of state court actions of which the DC of the US have original
jurisdiction
 1441b provides that a diversity case is only removable if none of the parties in interest properly joined
and served as Ds is a citizen of the state in which such action is brought.
 Only preopr of the state court jurisdiction was proper in the first place
 1441 f – fed court is not precluded from hearing the case simply because the stat lacked jurisdiction
over it.
 1441a still requires it to be properly within fed jurisdiction.
 The federal disctrict court that sits in the district wher ehte state court action was brought is the only one
that can host a removed action. (P still has some power to choose based on this)
 Applies to Cases, not claims – even if only one element gives rise to removal, all go with it under
suppelmenetla jurisdiction
 If mutlipel D’s they all have to agree
 Procedure for 1446 – D files notice to remove in the appropiriate DC within 30 days of pleading. Federal
court maeks the decision to remand if not proper – P can ask for this.

Differnece between Removal (1441) and Venue Transfer (1404a)

 1404a provides for geographical transfer from one DC to another.
 Removal authorizes tranfer from state court system to federal court within the same state. Displaces
P’s choice between state and federal

For reasons why to be in state court –s ee class notes.

Borough of West Mifflin v. Lancaster

Rule: where there is a single injury to P from which relief is sought, there is no separate or indpeendnet claim or
cause of action under 1441c tha towuld allow for removal. Can only remand back to state cort if the federal
claism are truly separate and independent from state claims. Would rather keep them together.
Congressional intent was to restrict removal to cases falling within federal question SMJ to harmonize with 1367
 Venue, Transfer, forum Nonconveniens
VENUE:
 Venu rules are meant to further restrict he places wehre the P may chosoe to bring suit to assure that
sutis are tried in a place that bears some relationship to the claims or the parties.
 Can waive venue
 Federal statute: 28 USC 13981

Venue based on individual residence

 1391 (A) and B authorize venue ina judicial district where ANY D resides IF all reside in one state.
 different from PJ that says person subject to jrusidiction in a state is subject to jurisdiction anywhere in the
stae
 Residence is roughly equal to domicle - residence inquiry rather than citizenship like in PJ

Venue baed on events or omissions giving rise to the claim

 1391 a2 and b2 say that venue is proper in the jduicaild istrict in which a substantial part of the events or
omissions giving rise to the claim occurred ora substantial part of he property that is subject to the
action is situation.

Fall Back Provision in 1391

 1391a3 – authorizes venue in a judicial district in which any D is subject to PJ at the time the action is
commenced if there is no district in whicht eh action may otherwise be brought. Allosws venue in a
dstirct where any D is subject to PJ
 1391 b3 – authorizes venue in a jduicail district in which any D may be found, if there isno other.
 Rare – by definition will mean that the claim arose entirely outside the USA

Venue for Coprorations 1391c

 Corporate residence for venue pruposes in any judicial district in which subject to personal jurisdiction at
time action is commenced
TRANSFER OF VENUE TO FEDERAL COURTS
 The court doing the transfer decides if it is ok
 Can transfer because of improper venue or if the vneue is proper to a more convenient proper
venu forum.
 Court can do it sua sponte, D is usually the one to move for a transfer
 When transfer is not allowed, because would have to go to a different judciail system, use forum
non conveniens (which is dismissal for purpose of refilling elsewhere)
 1404a is whent eh original federal court is a proper venue and 1406a is when the original is
improper
 1404a is the convenien of parties and witnesses and interest of justice – transfer is exception
not the rule
 1406a gives choice of dismissal or transfer. Tramsfer is better for the P because it won’t mess
with the SOL.
 Even when x initates transfer, use the saem choice of law rules in new court. Does not appl to
1406 transfers – cnage of court, not a change of law. If you transfer from PA  mA, use Pa laws.
Bates v. C&S Adjusters Inc:
Facts: Debtw as incurre din PA, bates move to NY , collection notice was forwarded by mail to new address in
Ny – did a substantial aprt of the events giving rise to the claim take place in NY? (1391b2) – yes.
Rule: In interpereting 1391b2 forwarding of collection notice to state x is sufficient to have evenue in x.

hoffman v. Blaski – Scotus 1960

The transferee court (receiving the case) must have proper venue and vpersonal jursidicitona nd must be met
independently without wavier byt eh D. (1404 and 1406 a transfers)
D wood says this si pre Carnival Curis e- so now SC might decide that transferee that as permissible by contract
at filing would also be district in modern world.

1407 = [rvides for transfer to one district of related complex cases such as multidistrict antirtrust actions.
 Forum Non Conveniens
1404a is codification fo the docrine. – applies in both international and intrastate context

Gulf Oil v. Gilbert – outlines factors to consider:

 private interest of litigant, availability of process for ttenacne of unwilling, cost of obtaining attendance of
willing witnesses, possibility of view of premises, if view would be appropriate to the action,a nd all other
practical problems that make trial fo a case easy, expeditious an dinexpensive enforceability of a
judgment if one is obtained.
 Unless the balance is stornlgy in favor of the D, the plaintiff’s choice of forum should rarely be disturbed

Piper Aircraft Co. v. Reyno

Facts:
 An airplane crashed in Scotland, 5 passengers died were Scottish , the company that owend the palne
was Scottish, the charter company was Scottish, the hris and next o fkin were Scottish. The plane was
manufactured in PA by Piper, and the propellers were made in Ohio by Hartzell. Ps sued the two US
manufactures for PL torts. Reyno – legal secretary lving in CA, appointed to serve as administratrix (US
Law way more favorable)
Posture
 Ds removed to fed court in CA, then transferred to fed court in PA, who dismissed for forum
nonconveniens
Rule
 Not a valid argument that you can get more money in one forum than another. The fact that the law will
change upon transfer is not sufficient t keep the case.
Wood
SC says in Piper that not going to give as much deference to P’s choice of forum if the P is a foreign citizen
because concerned about strategic behavior and no link. In some instances the court developed a sliding scale
test if you have a strong reason to be in a forum they may let you stay. Forum non convenines very useful for
international litigation.
Joinder of Claims and Parties

Joinder of Claims
Once a party ahs made a cliam against some other party, he may then make any other claim eh wishes against
that party (18a)
Joinder of claism si never required by rule 18a – but res judicata may play into it.
Subject Matter jurisdiction must be estbalisehd independently but usually won’t be a problem. (diversity wont’
be affected and P may add all claims together for purposes of meeting the 75k requirement under aggregation
doctrine)
If at least one plaintiff meets jurisdictional amount in controversy, supplemenetal jursidction applies
(Allapattah)
Rule 20: Permissive JOinder: done at the discretion of the Palintiffs
 Right of multiple plaintiss to join together
 A plaintiffs right to make several parties co-defendants to her claim

Mk v. Tenet
Rule 18a permits joinder of all claimsa party has against an opposing party.
Rule 18 works in tandem with Rule 15 (amendment of pleadings and Rule 20 joinder of parties)

Test fore Permissive Joinder:

 if single transaction or occurrence or series
 Common questions of law or fact to all plaintiffs
Must meet Personal Jursidiction for each individual defendant:
 Each D must be personally served
 Each D must fall within in personama jurisdiction (minimum contacts
  Each D must be amenable to suit – long arm stattue of stat wehre they sit, even if ahs the requriesitm
inimum contacts, must be reachable by long arm statute if in divsersity.
All Parties must meet Subject Matter Jrusidcition.
Requires compelte diversity.
Supplemental jrusidcition only applies to Rule 20 joinder of multiple plaintiffs

Wood theme: drafters thought that by having liberal joinder rules, all related litigation was going to be efficient
and allow resolution foe verything related to a single transaction all at once but by adding this complexity, there
isa serious question as to whether thieve achieved that.

Joinder of Claims by Defendant: Rule 13

Compulsory:
 When same transaction or occurrence
 Counter claim cannot require adding another rparty voer whom the court cannot get jurisdiction
 If compulsory counterclai, will fal within the supplemenetla jurisdiction fo the court.
o 1367 defendant’s 15k counterclaim falls within the supplemental jurisdiction even thought the
defendant dind’t have the option to start the case out in federal court – if responding to the suit,
entitled to bring a counterclaim
o If 3rd party is required to be added and is outside the jrusidcitio, not compulsory to bring the
counterclaim.
Permissive: 13b – creates a class of things called permissive counterclaims
 Jurisdiction need to establish independent jurisdiction because if permissive 13b counterclaim need to
find independent basis of jurisdiction. No supplemental.
US v. Heyward-Robinson Co.
Rule: Ancillary should be broadly interpreted to require not absolute identity of factual backgrounds but logical
relationship between them. Here the conterclaim was the same transaction or occurrence.
Wood: See elasticity of same transaction or occurrence test – have to decide, is there some general rule that
you can applyt aht suggests how related is related enough- making a policy judgment, do you want to force
litigation into one proceeding.

Test for Arising out of Same transaction or occurrence –

 Are the issues of fact and alw raised by the claim and the counterclaim the same?
 Would Res judciata bar a subsequent suit on defendant’s cliam absent the compulsory counterclaim
rule?
 Will substnatiallyt eh same evidence support or refute plaintiff’s cliam as well as defendan’ts
counterclaim?
 Is there any logical relation between the cliam and the counterclaim.
Consequence: if fail to plead a counterclaim, can’t bring in federal court or in any other court.

Cross Claims 13gh

Example: P1 + P2 vs. D1 + D2 then D1 sues D2
13g – transaction or occurrence of the subject matter of original claim.
D2 does need indpenednet jurisdiction, bt 1367 with same transaction requirement, odds are overwhelming that
1367 is goin got exist if you’ve got jurisdiction over a basic acse.
Not required to bring the cross claim – does have to arise out of the same transaction.

Lasa Per L’industria Del Marmo Soceita Per Azioni v. Alexander

Issue – how to interpret same transaction or occurrence
Holding: Cross Claims and Counterclaims and 3rd arty complains arising from the same transaction or
occurrence as the subject tmatter in original may be joined.
Transaction or occurrence given broad interpretation in order to expeditiously avoid multiplicity of lawsuits.
13 and 14 are intended toa void circuity of action and to dispose of entire subject matter arising from one set of
facts in one action thus administering complete evenhanded justice expeditiousl and economically.
If DC thinks will be confusing – can authorize separate trials under Rule 42b
Who is coparty for 13g?
Earle Jorgenson v. US: Opposing parties are parites that formally oppse each other on a pleaded lcaim. Doesn’t
say defendants – and when the rules meand efendnat they say so. D wood ahs trouble reading it to mean that
only the dparty happens to be a defendant so there are times when itw old be appropireate to assert against two
plaintiffs.

IDENTIFYING PARTIES WHO MAY SUE AND BE SUED – RULE 17

to sue you have to have 1. capacity (Minor doenst have) 2. Real Party (Rule 17) 3. Standing
Rule 17- an action must be prsoectued in the name fo the real party in interest – an executor, administrator,
guardian, bailee, trustee can sue for someone else without naming that other person.

Ellis Cannign Co. v> International harvester Col – Kansas court

Insurer must bring the case – because real party in interest. An insured who ahs been fuly paid is not the real
party in interest.

Reynolds v. Laney – Florida

Opposite of Ellis Canning – insured has to enforce the claim even after payment by the insurer. This sprocedural
and not susbtanitve
All insurance has duty to defendand dut to indemnify –

Ryder v. Jefferson Hotel

Plaintiff and his wife were guests of the hotel and sued for issues of reputation – arose out of the same
transaction, relationship does not interferr with tort intereference, here they are several and their relationship
does not affect the othe’rs cause of action.

Permissive Joinder – Rule 20

Permissive Joinder for Plaintiffs (transaction, occurrence or question of law in common)
 If they assert any right to relief jointly, severally or in alternative with respect to or arising out of the
same transaction, occurrence or seires
 Any question of alw or fact common to all plaintiffs will arise in the action
permissive Joinder Defendants
 Any right to relife is assessed against them jointly, severally or arising out of same transaction
 any qestion of law or fact common to all defendants will arise in the action
Rule 21: misjoinder and Nonjoinder
 not a ground for dismissing, on motion or its own, court may at any time add or drop a party may also
sever any claim
Rule 42: Consolidation – if a common question or fact may join for hearing or trial or consolidate to avoid cost
and delay, evalutated giving the benefit of doubt to plaintiff

MK v. Tenet
uCourt says things negatively effecting all of them – CIA letter is preventing lawyers form access to files. Gets
you somewhere, but that’s not what their case is really about – it’s a claims processing rule, case is about lots of
thing.
Courrt trying to promote tiral convenience, expedite the final resolution of disputea and act to prevent multiple
lawsuits and expense and time.

George v. Smith
Prisoner alleged 24 defendants, and Easterborok said no – need to be separated because unrelated claims
against different defendants belong in different suits.
Prisoner Litigation Reform Act limists the number of lawsuits a prisoner can file without payng a fee

Tanbro Fabcrics Corp v.Beaunit Mills iNc.

Consolidation of claims within one suit –
Even though there are separate relationsips, contracts or duties exsiting between parties in a multiple action,
modernly a plaintiff to consolidate his cliamse ned only show: 1. prima faciet hat one of the d’s caused the injury
2. the d’s alternative liability arose from a common transction and 3. that there exist questions of law and fact
common to all parites
Tanbro would be a t a disadvantage to prvoe responsibility for the defect in separate trials – thus consolidation
affords a safer adjudication fo the dispute and prevents costly and time consuming multiple suits.

Required Joinder of Persons under Federaal Rule 19 - IF feasible.

A person who is subject to service of process and whose joinder will not deprive the court of SMJ must be joined
as a party if:
 in that person’a absence, the court cannot accord compelte relief among existing parties
 that person claims an interest relationg to the subject of the action and is so situated that disposing of
the action in the person’s absence may:
o as a practical matter impair or impede the perosn’a bility to protect the interest or
o leave an existing party subject to a substantial risk of incurring double, multiple or otherwise
inconsistent obligations because of interesst
If a party ahs not been joined, court must order htat person made a party. If joined party objects to venue and
joinder would make venue improper the court must dismiss that party

These criteria are rearely met – pragmatic inquiry – in the persons absence they can’t do compelte or a huge
practical problem

19b- when joinder is not feasible

Court must determine wehtehr in equity and good conscience the action should proceed among the existing
parties or should be dismissed
Pimental – can’t join the Philipies so dismissed

Provident Tradesmen Bank and Trust Co. v. Patterson

Facts: In a multiparty action arising out of an auto accident, Provident Tradesmen Bank & Trust sought
indemnifiation from other plaintiffs from Lumbermens Mutual Casualty Co. (D)
Have to look at these effects:
 The prejudicial effect a judgment would have on the absent party and parties in the action
o Provident and the other plaitniss were prejudiced by having fully litigatedj dugment set aside
o Lumbermans would not be prejudiced since they failed to complain at trial of NDutcher’s
nonjoinder and dutchter was not harmed by his nonjoinder. If plaintiss sought damages against
him personally he could alwys assert the permission defense, as did Lumbermaens – claiming
any payments made by Lumbermens on behalf of Cionci’s estate should eb credited to
Duchter’s liability
 Alternative measures the court might use to lessen any prejudice.
o The CoA could have accepted a limitatin of all claims to the amount of the insurance policy, thus
precluding an y subsequent suitagainst the nonjoined party, Dutcher. This would have
effectively protected all parties’ interests
 Whether the judgment rendered in the asbecne of a nonjoined party would be adequate
o Court should have considered modification of the jdugmetn as an alternative to dismissal. This
element refers to the public stake in having controversies settled in one litigationg.
 Willt he plaintiff have an adequate remedy if the action is dismissed for nonjoinder?
o There was nor eason for the ocurt of appeals to throw away a vlaid judgment just because it did
not settle the whoel controversy as between Duthcer and the plantiffs. Thus, efficency
onsideratiosn should have given way to the need to preserve a valid judgment for the plaintiss
so they would not be forced to relitigate. It was more efficient to rpresever the judgment than to
dismiss and force relitigation.
 Whether the party is indispensible so should be dismissed in their absence is a case by case basis.
Here the court of appeals dopted a too rigid approach in applying joinder rules. Judgment vacated.
Wood says that Ducther’s interst is speculative enough –t eh fact that he’s not going to be bound by the
outcome cuts in favor of going forward with the judgment – see the court working through the policy reasons and
see whether ther is a way once you understand the interets to let it stand even though Dutcher wasn’t available
rule 14: third Praty Practiec – Impleader.
 Defending party, as a 3rd Party Plaintiff can bring in a third party defendant.
 Plaintiff can assert aginast the third party defendant any claim arising out of the transaction or
occurrence that is the subject matter of plaintif’fs cliam against the third party plaintiff.
 If after 14 days of answer must get court permission
Jeub v. B/G Foods
Rule: Rule 14 permits impleader of a party who is or may be liable. Purpose is to determine rights of all aprites
in one proceeding, avoiding subsequent independent acitons for indmenification. Don’t’ want B/g to have tow ait
then file against Swift. Rights of P and 3rd party Defndnatare fine, ends of justice will eb served by doing it all at
onces.

Too, Inc v. Kohls

Rule: A TC should permit a 3rd party complaint if the allegations involve the same core of facts as those stated in
the originalc ompalint btu not fi the3rd party allegations are facially without merit. A third party complaint is
appropriate where either the 3rd party d’s liability to the 3rd party P depens on the resolution fo the main claim or
the 3rd party defendant contributed to the 3rd Party Plaintiff’s liability.
Here, permitted contribution claim but not indmenifciation. because without merit.

Interpleader: Rule 22, 1335, 1397, 2361

Device available to parites that if one entity is holding a fixed asset and ltos of otherp eopel are claiming they
have a right to it, the holder doesn’t car ewho gets money, they just don’t’ want the hassle of repetivie conflictin
litigation over it – insurance policy, or bank account.
Stakeholder will pay money into the court and say figure it out.

Rule 22 Interpleader:
By Plaintiff: if may expose a plaintiff to 2x or multiple liability may be joien das defendants and required to
interpleade. Proper even thought eh claims lack a common origin aor are adverse rather than indenitcal or the
plaintiff denise liability in whoel or in part to any or all claimants
By Defendant: Make seek INterpleader through a cross claim or counterclaim
 Supplemental to 1335 – nothing that changes what would otherwise be the jurisdiction of the court
 For subject matter, have to go through your jurisdiction inquiry thatyou do for any case
 If you can satisfy 1332 you have that, but no jurisdictional break for you in Rule 22 – useful only if get
throughjursidictional hurdle
 Nothing special about Pj – same PJ that ydou’ have for any case
 One reason to useis because you don’t’ whave to pay over to the court.
1335:
Federal court jurisdiction when statke is $500 – Dc has original jurisdiction for interpelader if involves value of
more than $500 if:
 2 or more adverse claimants of diverse citizenship are claiming or may claim to be entitled to the money
property
 The plaintiff has deposited money to the court or clerk with future compliance
 can be entertained eve thoug do not have common origin
Tashire – minimal diversity qualifies for 1335. Doesn’t have to be ruedced to judgment, can litigate your
entitlement while going through interpleader case. Plaintiff has to deposit the money or property int eh court.

1397:
Venue laid in any judicial district where a cliamnt resides
Any interpleader brought under 1335 can be brought in the judicial district in which one or more of the claimants
reside

2361: Process and Procedure

Nationwide service of process to reach all claimants.
DC may issue its process for all claimaints and enter order restraining them from prosecuting any proceeding
affecting the property involved until further order of the court.
 Statutory – 1335 Rule 22
If no fed question Some claimants must be diverse. Stakeholder msut not have the
(min div) same citizenship as any claimant
Where served? Anywhere in USA Regular procedure
Money in controversy Must be greater than $500 Greater than $75k unless fed quest
Deposit with court? Yes No
Claim that he is not liable to any? Yes Yes
Venue Very easy – where any claimant
resides.

Third Party INterpleader:

 TPP (original D) vs. TPD – SJ applies, no diversity required or 75k required
 IF claim by TPD vs. TPP from same transaction or occurrence (compulsory counterclaim ) SJ applies
 TPD vs. TPP NOT from same occurrence  permissive counterclai, SJ does not apply
 Orig P vs TPD – SJ does not apply
Hancokc Oil v. Independent Distributing Company
If adverse claimants both claimt eh right to the same debt or property the party owing the debt or hodling the
property can itnerplead both and force them to litigate the issue of which cliamaint has the superior claim to the
debt or property.

4 Elements of Interpleader:
 The same thing, debt or duty must be claimed by both or all aprites against whom eht erelief id
emanded.
 All fo the adverse title or claims must be dependent or be derived from a common source
 the one seeking the relief must not have or claim any interest in the subject tmatter
 allowing tenant to interpelad a landlord has bene relaxed overtime
These elements from Hancock are narrower than what we now have, didn’t wantthe stakeholder to have its own
cliam.

Interpleader in Federal Courts

Insurance companies want a single proceeding because risk inconsistent adjudications

Pan American Fire And Casualty Co v. Revere

In the federal courts an insurer can interpelad al claimants to a particular policy if the claims would exceed the
policy limit.
Federal court may not enjoin pending state court preceedings unless one of theree exceptions is satisfied (on
page 726):
 expressly authorized
 necessary and aids jurisdiction
 protctection fot he federal courts judgment
SCOTUS has interpreted this fairly stricty way to protect comity between the state and federal courts
IF statutory,t he statute says the federal court can enjoin other proceedings, federal court can make suret that it
will provide one unifed forum.
Court worries about interpelaer right oa jur trial – yes.
Rul einterpelader – no injunctione sbceaus not stautes no authorized exception – wood thinks this is a hard
question but in this case it didn’t have to be resolved.

State Farm Fire and Casualty v. Tashire

Rule: Insruance companies can invoke federal interpleader before claims against htem have been reduced to
judgment.
Most important thing ist hat the court syas that the order that the DC had issue enjoining prosecution of cases
outside interpleader was too broad. Court says this is not a bill of pecace for bringin in everything about other
cases. You can enjoin things that specifically pertain to the allocation of the stake, but otherwise, sattelite
litigation not included in interpleader. Not giant consolidation device - for resolving only who has rights to the
stake.
If you see an injunction people not fighting about insurance policy allowed to keep going forward.

Trienies v. Sunshien Mining

Hold: Federal court could constitutionally assert jursidciton under the Federal Interpleader Act despite the
coccitizneship fo the stakehold and one of the claimanats.
Stakeholder’s disinterestedness as betweent he claimants and as to the proeprt in dispute was demonstrated by
his deposit of the fund in the court, and his discharge which left the dispute to be ironed out between the
adverse claimants.

Intervention – Rule 24
If a person hears of a lawsuit thatmght affect her, allows 3 rd party to interject.
24a – on timely motion, court MUST permit anyone to intervene who:
 is given an unconditional right by federal statute or
 claims an interst relating to the property or transaction that is the subject of the action and that disposing
of the action amy impair or impede the mova’t sability to protect its interest, unless existing parties
adequately represent that interest
24b – Permissive Intervention – in general court MAY permit anyone to intervene who:
1. is given a conditional right to intervene by federal statute
2. hasa claim or defense that shares with the main action a common question of fact or law
Court must consider delay an dprejudice, happens a lot in public interest.

 Very discretionary – a claim or a defsne that is shared a common question of law or fact – the rule
addrsess agency intervention too. The coru tmay intervene because they say you come along too late.
Legal ability to intervene lasts a long time but court coudls ay too late
 Cour tasks is there already a spoeksperson in this litigation representing your viewpoint prospective
intervener?
o Note case page 738 – American Petroleum institute wanted to intervene in suit brought by other
agencies. Court says difference between the motive to take a position and how vigorously
you’re tkain git. The state agencies and the EPA had every incentive to defend their own rules
no need for API to come in with party status – as son as you interven you are a party. So court
is saying if you want just filean amicus brief.
 Attorneyg General has unconditional right to intervene by federal statute
 Interest can be nay kind of interest, similar to rule 19 but a bit broader

Smith v. Hobson
Federal courts allow intervention when the party has an interest to be protected, denial of intervention would
impair the party ability to protect the interest and the party is not adequately represented by others.
IN this case, motion to intervene wasn’t made until after judgment, strong showing is required. Hansen has no
interest related to the property or transaction and his motion to intervene is denied. Parents have an interest and
so they are allowed to intervene.

Class Actions
Rules:
In Federal court you have to satisfy all 4 parts of 23a:
 Numeroisty (so numerous that joinder is impracticable)
 Common questions of alw or fact (similar to 20)
 Typicality – named plaintiffs claim ahs to be typical of the claims everyone else is brinigng
 Adequacy of Representation
Then choose one of the criteria in Rule 23 b:
 Necessity:
o b1a: concerned about end result that would establish incompatible standards of conduct for
defendant
o B1B: Need adjudicated as class ebcasue practically adjudicating everybdoy’s rights anyway
 Like rule 19
  Both of these aren’t very popular and criteria difficult to meet – common fund is where
you might see them
 Injunction (b2)
o Social change
 Common question (b3)
o Common questin of law or fact predominate over any other questions that are particular to class
members
 Reason to refuse would eb to say that I think the indivdiaul questions aremore important
than common questions
 have to think about is group control is ok what other litigation is out there, is this the
right forum, difficulty in managing. All kinds of question go into the superiority and
predominance inquiries
 At the end of the day, the court will go through eary for certification:
o Some name plaintiff files a alwsuit on behalf of herself and oall others and court decides should
this be a class action or not, discovery for the question but there is a formal order certifying that
makes it a class action
Certification: Subpart C – supposed to happen early “an early pratciable time”
 Incentive shift –a s long as class action that defendant thinks is likely to be litigate, defendants
reflexively oppose calss litigation – they’d rather defenda against individual beacsue of manageable
stakes. Defendants oppose class certification until the moment the plaintiffs lawyers negotiate a
settlement with the defendants
o There is a settlement class – incentive class. The minute you talk about settlement, the
defendants really want the class because if they can settle the case against the entire class and
buy global peace then they don’t have to worry about other people coming along andsuing
them. Anybody who is within the definition fo the class is bound by the settlement.
o Defendants oppose when going to be litigated and strong defenders if a settlement class
 This is the moment where the DC defines the class in C1b – description can be singular or the judge
can carve out subclasses from the description

Notice:
 if b1 or b2 class (necessity or injunction) no requirement that its going on. Court may direct notice –
discretionary – or may use sampling techniques
 B3 (common question) court MUST give direct notice – this is expensive.
o notice to all, predominance and superiority, opt out right – if you don’t respond then your’e in!
23e5 – any class member may object

Policy Considerations:
 23g – class council appointing – various things to consider – attorneys fight for this
 Sc says can never worry too much about someon’es rights ( are we worrying too much about the due
process rights of absentees)
 Eisen – indivdiaul notice require,d court focusing on rights of idnividals
 People who say we’re worrying too much in small cliam are saying that there is a group of cases that
will never be brought except as a group action – small claims class actions wehre the value of the injury
is so low at the individual level that people are just going to take their loss. At the aggregate level it is
significant – so in a social justice sense, don’t want them getting away with it.

Criticisms:
 Uses hook of common question to bring in much too much that’s different.
o Court can certify a parituclar issue or group
o Some say too much that’s different and the court is left with huge administrative procedure
 Can be long, complex and expensive
 Stakes for defendant are very high, aggregated
 Named plaintiff + absentees structure. In today’s class actions, the judgment is binding on everyone
including absentees so people are concerned about that (see above)
  Concerned about P and nature of atty client relationship adequate monitoring of the lawyer. Fear that
class actions are about the lawyers not the plaintiffs who are looking for a big fee

Castano v. American Tobacco CO.

Facts: Castano filed class action and sought certification under 23b3 claiming the class consisted of all nicotine
dependent person in the US and entities related to them.
Rule: class actions can be certified uner 23b3 only if the requirements of predominance and superiority are met.
Here: Castano has not met burden because has not considered the effect that variation in state law will have on
predom and superiority. Not enoughtha tbecause common issues are involved in every trial that they would be
significant – not clear that common questions predominate over indivdiaul questions. denied certification.

Applicable Law:

Two types of choice of law problems:

 State to State Conflicts – states have 2 or 3 diferent models to determine choice of law:
o CHoie of interest plan (assess state interests)
o Most significant contacts (where did the claim arise, which state has the most significant contact
o Set o fpresumption depending ont eh type o flaw (e.g. property rules based on wehr eland it
owned – follow that state law)
o We allow states to differe; they retain a certan amount of soeverignthy)
 Erie (federal courts and whether to use federal or state law)
State Laws as Rules of Decision 1652:
the laws of the several states, except wehr ehte Constitution or treaties of the US or Acts of Congress otherwise
require or provide shall be regarded as rules of decision in civil actions in the courts of the US in cases wher
ehtey apply. (rules of Decision act: forces federal courts to use state law unless..)

2072 Rules of procedure and evidence; power to prescribe

The supreme court shall have the power to prescribe general rules of practice and procedure and ruels of
evidence for cases in the US district courts (including proceedings before magistrates thereof and court of
appeals.
- Such rules shall not abridge, enlarge or modify any substantive irhgt. All laws in conflict with such rules hsallbe
of no further force or effect after such rules have taken effect
- Such rules may define when a ruling of a DC is final for th purposes of appeal under Section 1291 of this title
(rules enabling act: forces federal courts to use state procdeur unless..)

State law in Feeral Courts

 if the state law being followed by the fed court is unclear, they usually try to make an educated
judgment on what the state supreme court would decide today. Som estates have certification
procedures to ask tehs tate supreme court how they would decide a particular qusiton so lfaw.
 Hardest Erie question: Whih issues are governed by Eir/e what do we do about procedural
rissues?

Swift v. Tyson, SCOTUS 1842

Facts: federal diversity suit, D wanted NY state law to apply. Court tried to interpret the RDA.
Rule: RDA did not require the federal court to follow Ny law. “the laws of several states” in the RDA refers only
to statutes, not judicial decisions. Rather, federal judges shodl apply ALL the laws and common law and
CHOOSE the right/best rule. – holmes hated this

Erie v. Tompkins Scotus 1938

Facts: P lost an arm due to RR’s negligence, but would not likely have succeeded under state law. Fed court
applied fed law and the P won – D Appealed
RULE: Overturn Swift. Unconstiutional because it authoriezed federal judges to make law. in diversity cases
federal courts must apply the law that would be applied by the courtsof the state in which they sit
Wood: Pre-Erie, diversity cases had horizontal uniformity (federal and state very different, but similarity across
federal decisions). Post –Erie, no federal uniformity. Vertical uniformity between federal and state courts in each
state.

Guaranty Trust co . v. York:

Facts: issue was whether a federal diversity court must applyt eh state statue of limitation sto a cliam, or wheter
it was free to apply a more fliexble doctrine to the case
RULE: Outcome determinative test. If following a federal practice that differed from state procedure might
“significantly affect the result of litigation” the court must apply the state rule instead, to prevent diverse parties
from gaining unfair advantages simply because tey can choose federal court.
 this is the vertical consistencey Wood talks about – goal is that there hsold be no difference between
federal court and state court in terms of law that applies to the case. If you have no statute of limiation
son the federal side and you have one on the state side, you definitely are going to have a difference.
 Issue was whether a federal diversity court must apply the state statute of limitations to a claim or apply
its own more flexible laches doctrine
 Court said that York rule was procedural and that the court should apply the rule that would result in the
same outcome to rpevent forum shopping. Court must apply the state rule to prevent diverse sparties
form gaining unfair advantages simply because they can choose federal court.
 This is theotucome determinative test.
 Couts under Article 3 and 8 have abilityt o make proecdeural laws to determine – so the court here is
distinguishing as a matter o fpolicy not constitutional compulsion.
Policy Question:
 suppoes maybe congress took the next step after expanding commerce clause and said if you satisfy
the class action fairness act the federal courts do have the power to create rules of decision could they
do that?
o Can’t be filed in state court under Class Action Act. Step 2 is to say but here are these people
from all over the US and the tort regime is going to govern one peron different form another
Step 3. – rule 23b3 and say hthis is going to be such a nightmare to administer that the class
action isn’t superior and we’re going to refuse to certify the class, which takes you bac k to
individual litigation and the inability to ahndle this as a group matter and whether its really just
an eleaborate way of saying there aren’t going to be class actions in thi areas is an oen
question at the moment
o The other thing Congress could do is whether than open up the posisbiliyt of federal common
law, Congress could just legislate a regime for this and the courts would apply whatever stautes
support
o Question of constituional basis of Erie and what relation it has to 1651 has spillove reffecs even
now.

3 Cases Decided on the same day by the Court (1949)

 Ragan: discrepancy re; when action is considered commenced (upon filing v. SOP) state rule requires
sooner filing, chooses to follow state rule.
 Cohen: state staute says yo have to post a bond, FRCP does not require – go with state.
 Woods: when with the state law re: door closing statute – TN corporation couldn’t maintain diversity if MI
courts are closed. If not entitled to sue in MI can’t file in Federal court there

Byrd v. Blue Ridge Rural

Court backs off of outcome detemriantive test and says if that were the tehst the SC rule would apply
Rule: Affirmed general hodligns of Eire and York. Almost gets to the idea that if the issue is a matter of
procedure (as here) the fed court is not constitutionally compelled to apply the state practie. Ends up deciding
that the right o fjury trial is very important so follows federal.
 issue: whether the judge or the jury should determine the P’s status as an employee of the defendant
State law left the qusiton to the judge but federal left to the jury.
 Court reiterated that fed courts must honor the definition fo state-created rights and obligations –
constitutional aspect of Eire..substantive issue that constitution reserved to the states
 Here court reaffirms that fed coru tmust follow state law because no power to create a separate fed rule
  Court held that the isusew as procedure to which the court was not cnonstitutionally compelled to apply
state practice
 Then reaffirmed that Under york, federal courts should appy outcomedeterminative state law even on
procedural issues as to which there is constitutional authorityt o make its own rule but went ont to say
also ahs to consider the policy fo the Constitution –and the 7 th amendment right to a jury si central to the
Constituional right.

Hanna v. Plumer Scotus 1965 (rescues the rules)

Fcts: SOP at issue, shold we follow state or FRCP? Direct conflict. Definitely outcome detmerinative
Tiwn aims – prevent forum shopping and enhcance equitable administration of justice.
RULE:
 Part 1 (choice): modified outcome determinative test. Whether a federal procedure is outcome
determinative must be viewed in light of the policies (twin aims) underlying Erie to prevent forum
shopping and inequitable administration of the laws. (then went with state rule)
 Part 2 (where conflict): THer eis constitutional and statuory authority for adoption fo FRCP. Can adopt
any Federal rule that is arguably procedural.
Notes:
 Tiwn aims is the sorter that the coru thas settled on.
 1. is there a federal rule govering th case – if yes, does it cover? fvalidly promulgated? cosntituitonal? if
no  pure Eire analysis
 IN hanna important hta tocurt says when in doubt the federal rule is it
o IMPORTANT: arguably procedural pulls a certain amount of subject matter away from statesa
dbakc to federal.

Review:
 Does the federal law address the problem?
o Federal law oculd mean the Constituiton, statute, federal rule, fed common law
 If no, then really just looking at basic Eri analysis
o Whether this is the kind of question that ought to be addresd by which
o Twin aims of Eire – avoidforum shopping and even measurement of justice
o and otcoem determinative.
 Is this the kind of question that merely the mechanics of processing a law suit or is this
a question that reflects osme sort of public policy? if its mechanics then each court is
going to apply its own rules

Walker v. Armco Steel Scotus 1980

Facts: SOP interpretation issue – federal or state?
RULE: Avoiding a Hanna Part 2 clasih via interpretation of FRCP so it clash. Frcp 3 is not intended to govern
SOL issues

Stewart Organization v. Ricoh

Facts: potential conflict between Rule 59 and a state statute re; new trials
Rule: yes conflict, gavew iehgt to Eir twin aims –

Gasperinni v. Center for Hmanities

Facts: Potential conflict between Rule 59 and a state statute re: new trials
Rule: Yes conflict, gave weight to EIR twin aims. \

Policy question: what happened to Hnana in light of this decision? and what happesn to byrd? why did the court
strain so hard to find a way to implement hti sNY law?

Federal Courts Choosing State Law

Klaxon Co. v. Stentor Manufacturing Co
Court held that the policy underlying Eire mandates the application fo the forum state’s choice of alw rules as
well as its substantive law.
  Combo of Klaxon and Erie results in vertical uniformity between the stae and federal but destroys
ohrizontal uniformity among the federal courts in different states

Mason v. American Emery Wheels Works:

Facts: P was a Miss. citizen, D was a RI corporation, P filed suit in Ri. Injuies occurred in Mi. Ms had
not reconsidered their rule regardin PL in a long tiem and in dictat it seems like they would change
their mind.
Rule: assumed Mi would change their rule absed on relevant dicta.

Van Dusen v. Barrack :

If transferred for 1404a (requst of defendant to move forum) the law of the original court follows – nothing wrong
with it,t he plaintiff crafted a good complaint so the law of the trenasferor court hsoud follow

Federal Common Law

 Interstitial gaps in federal law, state law and between federal and state law
 Broad enabling statutes (antitrust, labor, pension)
 Admiralty, maritime
 Legal actions, relations fo hthe US
 International Law

Clearfield Trust v. US – Scotus 1943

Facts: us issue da check that was thereafter stolen and cashed
Rule: Federal common law governed the liability for the funds. The authority to issue the chek was with the
COnstiutitona nd federal statutes. Need a uniform standard to subject the US to

United States v. Kimbell

Question of priority under the loan – whoc get so tocllect fir
Interpreted Clearfield broadly – federal law controls but what should it be
Adopted a state rule as the federal rule. Signal to Congress that if they pass a uniform rule, it will be applied.

Miree v. DeKalb County

Facts: Family – 3rd party beneficiary – trying to sue the FAA for breaching contract betwenet eh D (county) and
FAA (city agreed to not operate a garbage dump near the airport site  birds -> jet enginge
Rule: Would definitely be an Erie question if the FAA/US wer not involved. Private litigants, cannot adopt a rule
that would ignore Eire anytime a US interest was implicated. State law unless a significant federal interest.
There is no question in this case about the liability of the US – if there had been might be different. Court says
the question has nothing to do with how the gov tis behaving – it’s a lawsuit survivors. When the interests are
the US strong enough to jusityf federal common law and displacing state law. Uyou need to see US as a party.

Boyle v. United Technologies Corp

Facts: helicopter crash. litlgation as to whether there was a design defect. US Contracted with D
Rule: Federal interest in uniform decision making here was SO great that federal rule applies. Significantfederal
interest.
Court begins with presupposition that obligatiosn fo the USA under contracts are governed by federal law
exclusively (Clearfield Trust)
Civil liability of federal officersa lsog overned by fed law if acting in scope of employment.
Not a uge leap between govt contractor and fed officer also working under gov t- protcection fo governmental
decision making because price will go up.

Federal Law in State Courts:

1. Claim is under federal law. Civil Rights Case, FELA (Dice) etc
2. Federal Defense to a state law cliam
3. Federal Procedures? (See Dice)
Dice v. Akron, Canton, & Youngstown R. Co.
Facts: RR employee injured whiel sorking sued under the FELA (federal law). In Ohio state cout. must there be
a jury? Federal law would have guaranteed one.
Rule: Must have aj ruy because it is a substantial right and part of wht the statute granted to the railroadworkers.
– Black opinion who loved the jury. Overrides Ohio’s normal allocation
 The Law of Judgments
SEcurign and Enforcing Jdugments:
Key Questions:
 is it a final judgment or is itan interim/provisional judgment?
 What is the nature of the judgment? Money, specific relief (equitable relief? )

Provisional Remedies and the DPC:

(1) Federal Rule 64 and the Availability of State PRovisonal Remedies. Federal courts borrow the state
procedures for collecting judgmest based on the state in which they sit.
a. Attachemnt – prejudgment attachment of property as security
b. Garnishment – P askes the court to seize the preoprty of a third party that is owed to the D
c. Preliminary Injunction
d. TRO – don’t need notice or a hearing
e. Receivership – someone hodls takes care of the property in trsut so it isn’t alterted damaged
before suit the suti si over
f. Lis Pendens (Notice of pendency) prospective purchasers are advised of on going litigation
protects P
g. Civil Arrest – Imprisonment of the D who fails to satisfy an awarded judgment
(2) The effect of the DP Clause – notice is key.

Methods of Securign the Judgment – Provisional Remedies

(1) Attachment – Court will deny if the harm to D is greater than likelihood fo P’s success – some property
exempted
(2) Prelimianry injunction and the Temporary Restraining Orders – FRCP 65 – notice for PI where there is a
threat of irreparable injury to the P or scoeity
(3) Receivership – governed by Rule 66 – may be utilized if worried about insolvency
(4) Civil Arrest – to put in juail until trial was over
(5) Notcie of Pendency – want to giv enottice to prospective purcahaser so they won’t find out later that
they lose property. DP argument that this deprives a D of the ability to do what they want with (Sell) their
property
Methods of Collecitng and Enforcing the Judgment:
(1) Execution

Terminology:
Res Judicata:
 generic description of all preclusion dotirnces mostly just preclusion – not stare decissi or la of the case
 More particularlized – to refer to cliam preclusion when used in narrow sense contratsted with CLE
Colalteral Estoppel = Issue Preculsion
 Merger – after first round cant’ come back and get more (if all really same cause of action,t he claism
merged into the judgment)
 Bar: after first rond acnt come back and see if someone else would be favorable to your position –
maybe in another state, P’s action get sincroproated into first judgment whcihs tands as a bar that
blocks from getting another bite at the apple.
Claim and Defense Preclusion:
Rush v. City of Maple Heights:
Facts: P was injured while on motorcycle because the street was a mess and sued the city. Suit #1 - $10
in damages. Trying to bring #2 to get damages for personal injry
Rule: Court is trying to determine how to evalute whether it is the same claim (options, look at evidence, look at
right invaded, look at transaction) Court chooses transaction test.
Wood: When people talk about claim splitting – its derogatory
Preclusion is an AD so can be waived.
Claim preclusion covers all aspects of your cliam, means you’re done – with actually litagetd and everything
else.

Mathews v. New York Racing Association

Facts: in Suit #1, P sues 3 employes for claism and loses. In suit 2 he suses the racetrack itself and the
company that the 3 employees work for.
Rule: Barred by RJ because the second group of people are just agents of the first suit’s peop.e Respondeat
superior/privity makes them the saem people for purspoe of claim preclusion.
Wood: FRCP are liberal and allow P to get a lot in, so RJ is very hars in barring relitigaiton.

Few ares ehre first jdugmetn can be disregarded and can go forward with second case:
 If you can show that there is fraud tha ttaints the first judmgnet
 If the first judgment rendered by court that lacked jurisdiction (subject or personal)
 If the firsst court simply wasn’t authorized – not competent to hear your claim like small claims.

Jones v. Morris Bank fo Portsmouth:

Facts: P sued for conversion (D repossesd his car) P’s evidence was excluded so verdict for D in suite 1. Later d
tried to get $ owed by P for alter moths and P tried to claim RJ.
Issue: was it essential that te D institute an action for all fo the installments due at the itme of the first suit or
could ti institute an action for only two of the installmens and institute an action for the rest later?
RULE: If a contract is indivisible and judgment has been rendered, a second action is barred by RJ. IF divisible
(monthly payments) then may not be barred.
Notes: Usual rule is thatan action on one of the notes on a debt does not bar a subsequent action on others. For
jdugmetns where there is a continuing conduct (eg a permanent injunction against a nuisance, preclusive effect)
if temporary nuisance not preclusive.
Problem here was tha thte ocntrcat had an acceleration clause – which made the montly payments due in full
upon missing a single payme.t
Court hodls that second action was precluded by 1st because ht contract and accerleation clause were one
transaction represented by single, indivisible contract so the conditional contract and acceleration clasuer are
one agreement.

Issue Preclusion Requirements:

(1) Court of Competent Jurisdiction
(2) Issue actually must be litigated
(3) Actually decided
(4) Necessary to the outcome..dificult to decide what was hiding and what as dicta
(5) Finality
(6) Merits of the Issue
(7) Same Parties/Privitiy – close enough that appropriate to bind them.

Actually Litigated:
Look at behavior of parties in complaint – or whether the parties are introducing evidence on a part in a trial. is
there attention being paid by the parties to this issue.

Exceptions to Issue Preclusion

1. First court couldn’t adjudicate the issue (maybe it’s a court of limited jurisdiction)
2. No appellate review available in first court
3. Differnece in rocedures between first and current
4. Difference in burden of persuasion
5. Difference in stakes (little in first, big in second) – incentives to defend

Cromwell v. County of SAC:

Facts: In Suit 1 P (Smith who ahd a business relationship with Cromwell) v. County, subject matter – bonds
coupons. P loses because there is evdiene of fraud and illegality. IN suit 2 – Cromwell v. County Precluded by
CE?
RULE: Escapes issue preclusion, the issue is different enough. Key issue in this case is to what level we
generalize the facts. The issue here was not actually litigated before
Notes: if the issue was just a side show may be able to relitigate – arbitration not usually preclusive
Figure out what was litigated or decided by jduge’s findings and if have jury using special verdict – rule 49

Ruseel v. Place (necessarily decided requirement)

Facts: #1 – patentee sues D for infringement. D manufactures anyway Suit 2 patentee wants to stop D from
manufacturing, says we do not know from the first litigation whether both claims in the patent were invalid and D
only falls into ONE fo the claims.
RULE: No CE/issue preclusion on a speicifc issue already tried whent eh prvious judgment does not sepcifcy
outcome on that issue (wehre the previous judgment ahd multiple issue)
Woo: Law moving in direction fo saing if an appellacte court writes an opinion or a TC, rule 52 – and says I am
deciding this on two alternative grounds they are clear that these are both findings that have been made to
cokeep litigation from going on forever

Rios v. Davis (Necessarily decided requirement)

Facts: P suing from a car collision, arguing negligence. D argued CN and RJ and CE. D’s employer already
recovered money damages for damage to the truck that the D was driving in suit 1. Suit 1 turend out in D’s
favor.
Rule: The right of appeal is from a judgment and not from a finding. Cannot use CE.
Notse: this is a reason to do special judgments and have judgments on idivndiaul issues that would otehwrsei be
considered findings. The individual findings will not eb given preclusive effect unless the outcome depends on
them.

Commisioner of IRS v. Sunnen

Facts: The tax law has changed since suite1. Each year is a new liability in tax law.
Rule: Enough difference int eh facts that issue preclusion does not apply.
Wood: Note, pure law is not subject to issue preclusion.
Takes a strict view of the identity of underlying facts and stresses that point.

The Required Quality of Judgment

 The judgment must be valid, final and on the rmerits.
 Valid: SMJ, PJ Venue Proper
 Final: Being up on appellate review does not deprive it of finality
 On the emrits (where we see a difference between claim and issue preclusion). Involuntary
dismissial (judge decides to dismiss) counts as adjudication on the merits unless dismissed for
iproper venue jurisdiction or joinder.

Hanover Logansport v. Robert Anderson

Facts: P sued D for breach of lease, D delivered property before trial and P tried to puta caveat in the transfer of
property to say that it was only accepted for purposes of mitigation and not ns ettelement of damges for the
delay. Basically, the P accepted one type of relief – did he waive his option for Money relief? yes.
Rule: A consent judgment is a contract. The resevrvation must be incorporated into the offer of judgment itself
and it must be an inherent part of the original complaint.
Notes: consent judgmens ordinarly supportclaim preclusion but not issue preclusion
Wood: Settlements do not usually have issue preclusive effects, we do not want pepoel to be able to opt out of
judgments. Has to be clear with stiputlation sthat both arpties are agreeitnand not clear in this case.

Issue preclusion NEVER applies to consent judgment because no actual litigation.

If you admit things in Rule 36 does not have preclusive effect because people would be reluctant to admit if they
thought it would have unforeseeable cases in the future.

Housing Authority for La Salle County v. Young Men’s Christian Association

 Case 1: Us v Dennis + first Trust
  Case 2: housing (Dennis) v. YMCA (first trust0
 Deenis and First Trust were adverse to each other in the first lawsuit btu Deenis defaults
 Res judciatat bars relitigation despite the fact that she defaulted
 Sometimes in the absence of intenctive to litigate in suit 1, we do not apply Rj. Example – if first suit
worth $100 and not worth it to litaget probably will not RJ bar a second suit if worh ! million.

Holmberg v. State Division of Risk Management:

Facts – P (different!) trying to use REJ to their benefit. Filed 2 claism with different agencies and wanted the
onethat came out in their favor to be the one that was binding. The one that came out against htem was actually
decided first but was up on appeal.
Rule BARred by RJ

Person Bound by judgment and Bennefitted by a Judgment

Who is bound? Simple things to Remember:
We are not in the world where the mutuality rule applies.

Person Benefitted and Person Bound by Preclusion (non-mutual Collateral Estoppel)

 Allows a new party to invoke CE against a party who litigated and lost on an issue in a prior
action.
general rule used to be that estoppels must be mutual – could only invoke CE if you wer
einvoled int eh suit that was initially decided. Reasoning: not fair for someone to get benefit of
CE without taking any risk (wait and see)
 Another reason to keep it within the original parties: people might fear unknown risk or issues
and overlitigate a case

Defensive NonMutual Estoppel

 I shouldn’t be liable because in this earlier case, some key fact has already been established in
my favor.
 IN Bernhard and Blonder Tongue the party seeking to use CE was the new party, and a D.
 Defensive use of non-mutual estoppel occurs when A D seeks to prevent a P from asserting a claim the
P has previously litigated and lost aginst another D.

Offensive Non-Mutual Estoppel

Offensive use when the P seeks to foreclose the D from litigating an issue the D has previously litigated
unsuccessfully versus another party.
A new p takes advantage of a previous finding ainst the same D. – like a sword
Due Process means this can NEVER happen: P1 v D1, P wins P1 v D2, P 1 cannot use CE to estop D2 from
anything, D2 needs chance to litigate.

Bernhard v. Bank fo Amercia (defensive nonmutual CE)

 Facts: Mrs. bernahrad claimed that certain funds held by Cook belonged to the estate rather than him
personally (he says the deceased gave him a gift). In #1, a probate court said the funds were a gift to
Cok. Mrs. Bernhard then sued the banke that allowd the transfer to happen (suite@) blank pleaded CE>
 Rule: Ok for a new party to take advantage fo findings in an earlier suit to estopthe party that had
litigated the issue in the privou saction – ok as a defensive measure.
 Glannon: the bank’s invocation fo CE was nonmutual because they ewre not a party to the original suit.
 Wood: with inconsisten results we worry about bidnign parties to the first result – anitrust suit #1 is in
Fargo, are we worried about this being bdinign?
 Case; Three question test:
o 1. was the issue decided in the prior adjudication identical with the one presented in the action
in question?
o 2. Was there a final judgment on the merits?
o 3. was the aprty against whom the please is asserted party or in privity whith a aprty to the prior
suit?
Blonder –Tongue Laboratorise v. U of I Foundation
 Facts: U of I sued one D for infringing a patent but lost on the ground that the patent was invalid. Then U
of I sued a different d alleging infringmenet of the same patent.
 Rule: SCotus endoreses the use of nonmutual estoppel. Do not need to relitigate the new d can use CE.
 Glannon: court noted that it was only fair if the party being estopped had the opportunity to litigate the
issue already

Parklane Hosier v. Shore (offensive nonmutual CE)

 Facts: Wood: even though the second filed is the first to come to result – crucial point, race to judgment
– first to finish not firs tto file.
 Facts: Suit 1, SeC sued the D and itw as found that the D issued a false and misleading statement. Ps
in suit 2 sued the same D and wanted to bar D from litigating the statement. Suit 2 was filed first, suit 1
went to trial first and was for a declaratory judgment, no jury. Suit 2 moved for parital SJ
 Rule: did not categorically endores a reject offensive NMCE. Exercise discretion and consisder factors.
IF the court is in doubt hta tht eparty being estopped did not have the full bite at the apple in round 1,
then do not apply CE.
 Wood: what matters in the law of judgments is who FINISHES first. – is it unfair tha the d is denied a
jury trial in suti 2?
 Glannon: reasons for caution in utilizing offenive NMCE: DD did not get to choose the forum, may lead
ps to take the wait and see approach, d might not have litigated the issue aggressively if the stakes
were msal, fi the procedural ruels differedn in the first coru tit may tchnag the outcome.
 offensive use doesn’t promote judicial economy in same manner as defensive –d efensive precludes
switching adversaries wehras offensive encourages everyone to wait and see and let someone eels
engage in upfront invesmtne and court is concerned about this.
