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11/12/2011 7:51:00 AM

Forum Selection Personal Jurisdiction (PJ) jurisdiction over persons or things   In what states can the Π sue the Δ The court must have power over something o o   o Over the Δ Over the Δ’s property if so go to constitutional due process clause?

Does a statute give us jurisdiction? Types: due process sets the outer boundary, tells us how far the courts can go in exercising jurisdiction (fact means that it falls within the due process circle, must have a statute that allows the exercise of jurisdiction) o In Personam   o o In rem   Power of the Δ’s property Power over Δ’s property Quasi In Rem Power over the defendant Always want In Personam

In personam jurisdiction: Power over the Δ o Relatedness: does the claim arise from what the Δ did in the forum  General: Δ can be sued in this forum on a claim that arose anywhere   Historically always thought this was true. If had continuous and systematic ties with the forum. Changes in Goodyear. Goodyear 2011: just having continuous systematic ties isn’t enough  Where the Δ is essentially at home (limitation) o o For a human being (domicile) What about businesses?     o  State of incorporation and principle state of business but maybe other places as well Purchases and sales in the state are not enough. Has to be a physical presence as well. Specific: the Δ is sued for a claim arises in the forum Pennoyer: gives us what are still called the traditional basis in personam jurisdiction:

Constitutional Analysis: must find out what principles the case gives us

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Δ was served with process in the forum when served with process (general jurisdiction) (presence) Δ agent was served with process in the forum Δ is domiciled in the forum (general jurisdiction) Δ consents to jurisdiction At it became more mobile it became easier to run into a state commit a tort and escape

Expansion of Pennoyer is Hess:  Upheld under the nonresident motorist act, by driving into this state you consent to jurisdiction for a motor vehicle crash case, you are appointing a state official for service.  Expands Pennoyer from consent to implied consent

International Shoe: (by now you can serve process outside of the forum, there seems to be 2 parts of the test: contact and fairness, it does not overrule Pennoyer (consistent with Pennoyer))   The court is not pushing the traditional basis, restate the prinicipal. (nothing in shoe that says pennoyer is dead) Test: Such minimum contacts with a forum that jurisdiction does not offend traditional notions of fair play and substantial justice

McGee: holds jurisdiction in California with a Texas insurance company when there was only one contact:   The Δ solicited the business from California California had an interest in providing justice in it’s residents

Hanson: teaches us under International Shoe the contact must result from purposeful availment   Cannot be an accident Δ must reach out to the forum

World Wide Volkswagen: NY family buying a new car in Messina NY. Moving to Arizona. Involved in a car wreck in Tulsa. Sue in Oklahoma. Court held that they could not sue in the NY retailer and NY distributor in OK.     There is no purposeful availment The Δ did not reach out to OK. The act of the Π got the car to OK Surprising because it was foreseeable that the car could get to OK.  Foreseeability is relevant

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Foreseeability that the product would get there is not enough Must be foreseeable that the Δ could get sued in the forum

Burger King: k case. Headquartered in Miami wants to sue little guys in Michigan. Can it sue in Miami      Clear that there 2 parts to shoe: contact & fairness (separately) Must have a relevant contact before can look at fairness On facts of the case: Michigan guys reached out to Florida Argued that the little guys said it was not fair Supreme Court: the burden is on the Δ to show that the forum is so gravely inconvenient that you are at a severe disadvantage in litigation.   Almost impossible to do that Relevant wealth of the parties does not matter

Asahi: Stream of Commerce  I make components like valves in state A. I sell components to a manufacturer to state B. That manufacturer B puts my components into its machine and sells it machines to states C, D, E. My valve gets into C, D,E but I didn’t send it there.  Do I have relevant contacts?   1: Brennan theory: it is a contact if I put it in the stream and reasonably anticipate that it will get C, D, or E. 2: O’Connor theory: you need what Brennan said plus need an intent to serve C, D, or E. (I.E., advertise or customer service there)

McIntyre (2011): the court split 4, 2,3 no law  English company manufacturing enormous machine. Reaches out only to a company in Ohio. The Ohio company then sells machines all over the company. Sells a machine in NJ, guy injured, sues the English company. Court says no jurisdiction.    Under Kennedy 4 Justices adopt the O’Connor theory, did not target NJ Bryer: 2 justices: on the facts here we do not need other one. No stream of commerce to NJ. Only one machine sold to NJ. Dissenters: Ginsberg: if you target the US then you can sued in any state where the product hurt someone. (only 3 votes)

Burnam: a NJ sued in California for a claim that arose in NJ.  Still have to argue the Brennan Theory and O’Connor Theory. Does California have general jurisdiction?  Does service of process in the forum?  Traditional Basis in forum enough? o  Scalia: presence when served is enough. International Shoe does not apply here.  Must be a relevant contact between the Δ and forum    Purposeful availment (Δ reached out to the forum) o o  Brennan and O’Connor Circular Foreseeability that the Δ could get sued in the forum Is it Specific or General Jurisdiction? Relatedness: does this claim arise out of Δ’s contact with the forum o o Yes? Specific No? General Jurisdiction: must be essentially at home in that forum  Fairness: Burger King  Burden is on the Δ to show that it is unfair o Factors:      Inconvenience for the Δ Forum state’s interest (McGee) Π’s interest Interest in efficiency Shared substantive policies (Kulko) o Statutory Analysis:   Every state has statutes that allow jurisdiction based upon the traditional basis State statutes that go after non-residents . Must still look at international shoe. o Framework:   Is there a traditional basis? Because of the Burnam split. International Shoe (contacts) o Brennan: Must apply shoe to every case.

 No traditional basis. International Shoe o Is there a contact for clock maker in MD .  Clock shop owner didn’t do anything in MD my making clock in VA can say that the Π was injured in MD so owner did commit tortious act. Going to be a long arm statute. American Radiator: manufacture widgets in state A and sell in state B. Long arm statute says personal jurisdiction over nonresidents who commit tortious act in state B. It blows up and you are injured and want to sue in state B. go after other things)   California type: says we have jurisdiction to the constitutional limit Laundry list long arm: where the state lists a bunch of things that will subject the non resident to jurisdiction to a court. A spring breaks and the bird flys and hits him in the chest.  ARGUE BOTH WAYS  Hypo: Π lives in Maryland and takes a drive into VA. goes into the shop and buys it and takes it home to Maryland and put it on the wall. I am a nonresident. he sees a clock shops. Can the Π sue the clock maker in Maryland? o Is there a Maryland statute?   No traditional basis. Did a I commit a tortious act in state B? Courts are spoilt   Some say yes because you were injured in state B Some say no (NY) because tort was committed in state A where widget was made.  Non-resident motorist act (always specific jurisdiction: arising from a claim from you driving your car) Long Arm Statute: almost always specific jurisdiction (broader.  Maryland long arm statute has in personam jurisdiction who commits a tortious act in Maryland. o o Commits a tortious act in the forum** Gray v.

If we had done that Mitchell v.   Efficiency Shared substantive policies o In Rem: jurisdiction over Δ’s property  Law suit is about who owns the property o Quasi In Rem requirements: thing of value. Long arm statute is always going to be specific jurisdiction o Fairness factors: Burden is on the Δ. pursuant to notice. Purposeful availment: did Uncle Joe reach out to MD? LOOK AT THE FACTS. court can attach property that the Δ owns or claims to own. Uncle Joe (clock maker) look for facts. neighboring state so not inconvenient   Does the state of Maryland have an interest What about plaintiff’s interest: injured might be tougher to go to VA. present in jurisdiction. come to an answer  Inconvenience for the Δ. At some point it can look more like McGee (solicitation)  Foreseeability: argue it. This is an example of specific jurisdiction. Neff would have done that. Nobody knows the answer o Relatedness: does this claim arise from the contact with the forum?  Yes. Neff  Case that would have been in personam if could get in personam. Constitutional statute: . is the exercise over this Δ constitutionally fair?   How closely related is the thing that was seized to the Π’s cause of action? Suit has nothing to do with who owns the property  Pennoyer: all about Mitchell v. seized by the court. Used the land to gain jurisdiction. o It is ok but the court must seize the property at the outset of the case. apply facts.  Gotta have a statute: it is not the long arm   Going to be an attachment statute. belonging or arguing to the Δ.

      Often state law will give you service through mail How do you serve a business? 4(h)(1) can serve an officer or a managing or general agent (pretty open ended. Unless she has a good cause for returning the waiver form.  In regular law suit it means service of process o Governed by Federal Rule 4  Process consists of the summons (comes from the court) and copy of the complaint   Rule 4(a)(1) Service can be made by any nonparty that is at least age 18  Rule 4(c)(2)  How do we serve a human being?  4(e)(2): there are 3 choices   personal service: walk up to the Δ and hand him the documents. The constitutional test is the same as in personam Notice: Notice and a Chance to be heard. o Constitutional Standard Waiver of Service . can be done anywhere substituted service: o o o  must be done at the Δ’s dwelling or usual abode must serve of suitable age and discretion WHO RESIDES THERE Serve the Δ’s agent. Heitner: must seize property at the outset PLUS the Δ must meet international shoe. appointed by contract or law 4(e)(1): methods of service allowed by state law of the state where the federal court sits or where service is affected. not service by mail  mail the process and waiver forms to the Δ and send a self-addressed stamped envelope. someone with some job responsibility) 4(e)(1) also applies (state methods) 4(d): Waiver by mail. Shaffer v. fills out waiver form and mails it back to you  What happens if the Δ doesn’t mail it back? o Going to serve process in one of the formal ways but the Δ has to pay for it.

Whether the federal district court can hear this case. you are fine. o o Only have 1 domicile To establish a domicile:  you have to be present in the state physically . (notices to allow the Δ to see what the case is about and see what they are being sued for)   Jones v. if not then they cannot hear the case) Subject Matter Jurisdiction (SMJ): nothing to do with personal jurisdiction.  Diversity of Citizenship doesn’t have to bring the claim to federal court o 1332(a)(1) of judicial code (statute 28 USC)  case is between citizens (not residents) of different states   complete diversity rule: there is no diversity if any Π is a citizen of the same state as any Δ what is the citizenship of a human being (natural person)?  A US citizen is a citizen of the US state in which she is domiciled. (must invoke diversity or FQ)constitutional or policy values. Central Hanover Bank: must be reasonably calculated under all of the circumstances to apprise the party of the preceding. When nationwide statutes come into play it is possible that the court will make minimum contacts analysis that may different somewhat form those concept developed for domestic Δ o A court evaluating personal jurisdiction involving a federal cause of action will be less concerned with issue of state/federal relationships and more with issue of federal policies underlying the federal right that has been asserted by the Π o The court should examine only whether minimum contacts exist or whether the court should also look to whether an exercise of jurisdiction reasonable in a particular district Personal Jurisdiction—parties where SMJ—exercised over cases and claims (federal court can only hear certain cases. worried about what court you go to in the jurisdiction? State court or federal court. If you meet rule 4. Flowers: if you become aware that the Π did not receive then you might have to try another way Direct & Collateral Attack within the litigation on personal jurisdiction o o Collateral Attack can use when no direct attack(didn’t show up or defaulted)attack on PJ in later proceedings Direct Attack  Nationwide Personal Jurisdiction: statutes are generally the exceptions to normal practice. Malane v.

Non-incorporated business can be members of all 50 states.000 and 50. I don’t want to go to California.000  aggregate plaintiff’s claims if there is 1 plaintiff v.  must form the intent to make it your permanent home Hypo: born and raised in California and goes to college in NY for 5 years. Wants to go to medical school in Oregon.000 (excluding interest) aggregation: where you have to add multiple claims to get over $75.  amount in controversy exceeds than $75. Doesn’t know where he wants to live.000   must exceed $75. can be totally unrelated claims)   1 Π against 1 Δ: Π sets out 2 claims 40.  World Wide Volkswagen: robinson never get to Arizona because of car wreck have formed in intent to move there however domicile is still NY b/c they never had a physical presence in Arizona. His citizenship is in California because he hasn’t formed an intent to live anywhere else.000 cannot aggregate if there are multiple Π or Δ . 1 defendant (no limit to # of claims.000 < 75.  Citizenship of Corporation: can have multiple citizenships  1332(c)(1) determines citizenship o o states where incorporated (prof has to tell you) AND citizenship of the one state where it has it’s principle place of business (ppb) (can expect you to know how to do)  Hertz: PPB is where the managers direct control coordinate corporate activities. Nerve center  What is the citizenship of non-incorporated businesses: partnerships. LLCs   Look to the citizenship of all the members of the business. Moves to DC for law school but doesn’t know where he wants to be.

Federal law 2. 2 Δ—cannot aggregate the claims If there are joint claims use the total value of the claim HERE THE # OF PARTIES IS IRRELEVANT  Look for the word joint o Federal Question Jurisdiction (FQ)   1331 of judicial code   Citizenship and amount of controversy don’t matter) Well completed complaint rule:   Look only at the complaint In that complaint focus on the claim itself and ignore everything else o o Ask if the Π is enforcing a federal right Louisville v. **no federal question jurisdiction: does not state the question in the claim. Motelys say 2 things: 1. State law D (TN) o o Claim # 1 does gets into federal court What about claim #2? No federal question or diversity . you are breaching the contract 2. congress passes a law that railroads cannot give away free passes. what if no diversity or FQ? Does not get a case get a case into court supplement can another claim into the case **can get it from an impleader or joinder or counter claim  1367 of judicial code: gets nonfederal non diversity claims into federal court  does 1367 (a) grant jurisdiction? Answer is yes if it meets Gibbs   United Mine Workers v. Motley: couple had lifetime passes on the railroad. The second part is just anticipation.  1 Π v. Gibbs (labor disputes and the Π sued the Δ on 2 claims federal law and state law) P(TN) -- two claims: 1. Motelys sue the railroad. Must arise on a well pleaded federal complaint Need a case that arises under federal law  o No amount in controversy & doesn’t matter if they are from the same state Supplemental Jurisdiction: Π must file at least 2 counts. That new federal statute does not apply to us.

 Can use supplemental/ pendant jurisdiction as long as it is part of the same case as claim #1  Test: if the two claims share a common nucleus of operative fact. Sometimes you are allowed even though you already made a direct attack b/c the federal value is so great it overrides the one bite at the apple rule o Removal: defendant is sued in state court and wants case (removed) to federal court. 24?   1367 APPLIES ONLY IN DIVERSITY CASES takes away supplemental jurisdiction only from certain claims by the Π not the Δ  Hypo: Gibbs under the statute:   Claim #1 federal question Claim #2. o Attack on Subject Matter Jurisdiction get either direct or collateral but not enforced as rigidly in personal. 20.   Arise from the same real world dispute Always met if those two facts from the same transaction or occurrence (T/O)  Does 1367(b) take it away? soley based on diversity? was it claim made by a Π? Was it made against an original Δ or one joined under 14. non federal question o o Did arise from a common nucleus of operative fact 1367(b) only applies in diversity cases therefore doesn’t bar claim  Means if you get to C the court has power to hear the claim but it can refuse. 19. Gives Δ that choice. state question: non diversity. If the case does not belong there the federal court remands to the state court. Takes the case from state to federal trial court. any count that establishes federal jurisdiction can be removed   1441.1446. Usually it means that if sued and litigate the merits you cannot be heard later to hear collateral attack. 1447 It is removable if the case if it meets Federal SMJ (case meets diversity and Federal Question) .

 Instate Δ rule: EXCEPTION: CAN’T REMOVE DIVERSITY CASE IF ANY Δ IS A CITIZEN OF THE FORUM (doesn’t apply in federal question)  Hypo: case filed in state court the Π is a citizen of south Carolina sues 2 Δ (NY & GA) amount in controversy a trillion. Can’t remove because a Δ is a citizen of the forum. does not apply to removal 1391(a) & (b): choices are the same o can lay venue in any district where ALL Δs reside   if all Δ reside in the same state you can lay venue where any of them reside Reside:   for a human being the court say it means domicile (citizenship) for businesses look to 1391(c)  o  o a business resides in all districts where it is subject to PJ when the case is filed any district where a substantial part of that claim arose Going from one federal trial court to another   o   Original trial court is the transferor Sending case to transferee Both of the statutes: TRANSFEREE MUST BE A PROPER VENUE AND HAVE PJ OVER THE Δ must be true without waiver by the Δ 1404(a): the transferor is a proper venue: we can transfer based on convenience of parties and witnesses and in the interest of justice    where we are now is a proper venue but there is another place that makes more sense Going to look at public and private factors (discretion of the judge) 1406(a): transferor is an improper venue: you can dismiss or transfer (up to the court) Transfer of venue: moving from one court or another in the same judicial system Transfer Statutes 1404 & 1406 . Venue: venue tells which federal court you can sue. o If FQ case rather than diversity. Sued in GA. If don’t remove then remanded to state court. it is removable     All defendants must agree Can remove only to the federal district that embraces the state court.

Therefore Federal rule wins.o Forum Non Conveniec: where a court dismisses because there is another court that makes more sense the Δ is saying it all might good but it is still not the right forum where this should be heard (primarily case law)  Dismiss because transfer is impossible because it is in a different judicial system   Can’t transfer from a state court in Kansas to state court in California Piper Aircraft v. weigh court.. Erie Doctrine  We are in federal court in a diversity case and the federal judge must decide an issue. . As long as it will get justice is what is matter. Reno: plane crash in Scotland (everything is Scottish but the plane manufactured in the US)  Federal court should dismiss because this case belongs in Scotland and let them litigate in Scotland. o Black Letter Law: federal judge must apply state substantive law o Eerie says it is commanded by:  Rules of Decision Act: section 1652 judicial code  Constitution: 10th amendment o What is a matter of substance?  Elements of a claim are pure substance  Starting point is  Hanna v. Weigh court congestion. o Transfer statute: normal remedy where it is found by the judge used to be to dismiss the action & let the Π refile. What do we do? Supreme Court—is there a federal directive on point? Yes.S. Plumer: federal rule 4 allowed substituted service of process but state law it did not. The federal court can use 1404 empowers the federal district judge to transfer the case to some other district court in the U. Δs let this they are not going to get strict liability. (go back)  Court allowed the dismissal even though not going to recover as much in the foreign country.  Factors the same as in the 1404 transfer (public and private factors) (footnote 6)  does the Π have anywhere else to sue? Is there good personal jurisdiction in that court. damages etc. The question is on that issue does she have to follow state law.

It is based on the supremacy clause of the constitution What if there is no federal directive on point?  What is substantive?  Outcome determinative: o Guaranteed trust: under state statute of limitations case would be barred. Showed us there is 2 parts to the Eerie doctrine: o Is there a federal law on point that directly conflicts with state law? If yes then apply the federal law as long as it is valid (FRCP is valid if it meets the Rules Enabling Act section 27(b)(2)—no FRCP has ever been held invalid). o Avoid  Forum shopping   . Does the federal judge have to follow state law or should she sent it to a jury. Can’t be substantive. Court said must apply state law: statute of limitations is SUBSTANTIVE. unfairness. strength of case procedure.  Twin Aims of Eerie: ask at the outset of the case: if the federal judge ignores this state law. There is no federal directive on point. Court can ignore the rule and do it’s own thing. Case comes up in diversity. will it cause litigants to flock to federal court? If yes? That is a bad thing. and is it outcome determinative o State law said that a particular question must be decided by the judge not the jury. No federal directive on point. Blue Ridgecase law you have a 3 part weighing test: strength of federal procedure. o When not obviously substantive you should follow state law UNLESS there is a federal interest in doing it differently. o Outcome determinative: if you ignore the state law it will lead to a different outcome Balance the Interests: Byrd v.

Every Π who can go to federal court  It is also unfair. The Π files in federal court under diversity. when the amended pleading arises from . Eerie issue: o Is this rule outcome determinative?  Who knows.   Does a federal issue apply? No. conflicts with state procedure. It always loses. o 28 is a source of federal procedure as opposed to the rules. your claim must go to arbitration before you go to trial.  First go to Hanna. Hypo #2: state X passes a statute aimed at reducing health care costs. Statute says that if you sue for medical mal.  Inequitable administration of law Hypo: under state law a particular kind of case cannot go forward as a class action. Pleadings: documents we file   15(a)amended pleadings (b) pleadings before or after trial Moore v. o What about balancing the interests? The state has an interest. Π hate this. Is there a federal directive on point? Yes rule 23 is on point. Moore (c) filed after the statute of limitations ran 3 circumstances where treated as a relation back to the original pleading: some statute allows relation back. you may go to trial and the jury will be told what the arbitrators said. After arbitration. only non-citizens of    state x can’t do it. statute is trying to drive down health care costs. federal procedure winssupremacy clause. You simply apply the federal as long as it is valid. Federal interest in jury trial you don’t lose it. Must sue individually.  Diversity case is filed against the doctor in state X. o Twin aims of issue: if the federal judge ignores this state law will it cause people to flock to state court?  Yes. Under FR 23 class action is appropriate. Valid under the rules enabling act because it is procedural. Can the federal judge do what it wants.

the same transaction or occurrence it displaces. request for a court order  Under rule 12:    (e) motion for a more definite statement (f) motion to strike (to knock stuff out of pleadings) (b)**important: 7 defenses. motions to dismiss can be put in a motion or an answer o o o o o o o SMJ PJ Venue Insufficient process: there was a problems with the documents Improper service of process Failure to state a claim Failure to join a rule 19 party (indispensable) 9(b) and 9(g) . relation back where you are adding a party the other side got notice in a reasonable timely matter & they weren’t unfairly prejudiced o Complaint: the pleading by the Π. filing this starts a case  Rule 8(a) requirements   Statement of SMJ must state why in federal court Short and plain: statement of the claim o o Historically did not need to do much “notice pleading” only had to put enough detail to put the other party on notice Supreme Court in Twombly and Ickball (this applies to all cases): changed the rules      Demand for relief The court will ignore conclusions of law Π must plead facts supporting a plausible claim Court will use it’s own experience and common sense to decide if it is plausible (subjective) There is some situations where must plead with detail under fraud.  You can respond: o Motion: not a pleading. mistake and special damage (that does not normally flow from an event)  o Response  Rule 12 tells us: the Δ must respond within 21 days of being served with process.

(those 2 defenses are waived because they must be in the first rule 12 response) o Answer: is a pleading  Must do 2 things in an answer  Must respond to the complaint o o Admit Deny   o  Failure to deny is an admission not true for damages Say you do not know (cannot use that if the info is in that control) Must raise affirmative defenses: Rule 8(c) o o Going to raise new fact  E. (g) & (h) timing o defenses 12(b)(2)-(5) must be put your first rule 12 response (by motion or answer) (waivable defenses) o o defenses 12(b)(6)-(7) can be raised for the first time anytime through trial 12(b)(1) can be raised anytime  Hypo: Π sues Δ. Δ files a motion 12(b)(5) failure for service of process (motion denied) now Δ files her answer and in the answer no personal jurisdiction and no venue.g statute of limitations Must plead them or risk waiver  Joinder: determines the scope of the litigation (ALWAYS EXPECT SMJ) o Claim joinder by the Π   o  18(a) a Π can join any claim: don’t have to be anything same Can we get it into federal court (SMJ) Counter Claim: claim against and opposing party (someone who sued you)  13(a) & (b) o (a) compulsory counter claim: one that arises from the same transaction or occurrence as the Π’s claim  MUST BE ASSERTED IN THE PENDING CASE OR CLAIM IS LOST Claim joinder by the Δ: Δ is suing someone else .

Does 1367(a)? does it meet Gibbs? (yes T/O) compulsory counter claim always meets Gibbs. try to invoke Supplemental jurisdiction. SMJ: This claim does not invoke diversity.   o Compulsory counter claim must assert it here same transaction Address SMJ: diversity NY v.000 Hypo: same but B files a compulsory counterclaim against A but for $50.000. B files a compulsory counter claim for her injuries B’s claim is for $125. PA and greater than $75. o (b) permissive counter claim: one that does not arise out of the same transaction or occurrence of the Π’s claim. collide. 1367(b): no diversity. A sues B litigate someone wins.000.000—gets into federal court under Diversity. and the pleader does not assert any counterclaim under this rule. the claim was the subject of another pending action o the opposing party sued on its claim by attachment (quasi in rem) or other process that did not establish personal jurisdiction over the pleader on that claim.   Compulsory counter claim same transaction or occurrence. Case 1: A (NY) sues B (PA) claim for $100.  How to address:  Points for 13(a) counter claim . Ex: A and B driving around each in their own car. Case # 2 B sues A— dismissed because it was compulsory counter claim. Can sue on this separately o Hypo: A and B driving around and have car wreck.  4 Exceptions: o o o when the action was commenced. only takes away by the claim by the Π this is a claim by a Δ—we are ok. also does not invoke federal question.

May assert a cross claim against B (don’t have to) against a co party and arises out of the same transaction or occurrence.000. Absentee (A) can be grabbed into the case because it is necessary.000. Why 1367 (A) met Why 1367(b) not met Cross Claim against a co-party (one def against a co def.   Does not invoke diversity. o o o File a compulsory counter claim against A (must assert it here) Subject Matter Jurisdiction? Yes it invokes against diversity NY v.) must arise from the same transaction occurrence. o Proper partiesΠ can sue multiple parties  20(a): who may be joined: tool that is available to the Π when structuring the case (multiple Π? Multiple Δ?)  How to figure out if have co-Π o  20(a)(1): can have co-Π if they arise from the same T/O and raise at least one common question How to figure out if have co-Δ o  20(a)(2) exactly the same: same T/O and raise at least one common question. o Is the absentee necessary? .     Points why no FQ Why No Div. however this is a claim by a Δ so you are ok. Supplemental Jurisdiction:   1367(a): Gibbs (cross claims always arise out of same transactions or Δ) 1367(b): no diversity. Must assess subject matter jurisdiction** o Necessary and Indispensable Parties:  Rule 19 (who should be joined in a case)  Hypo: Π is the architect of the case Π sued the Δ absentee is not the party.C: 3 way collision A (MS) going to sue B (NY) C (NY) assume claims for more than $75. MS and greater than $75. NEVER COMPULSORY   13(g) HYPO: A. Going to represent C what claims are you going to filing against C.B. Case is in federal court under diversity. No diversity.

o Is the joinder feasible? Yes then brings it in   Personal jurisdiction Subject matter jurisdiction as long as doesn’t screw up diversity o What if joinder is not feasible? BAD. I am the absentee. 19(a)(1): yes necessary if she meets any of the tests in (a)(1)    (a) if without A the court cannot accord complete relief (b)(1): if A’s interest may be harmed if he is not joined (focus on the A) (b)(2): if A’s interest may subject the Δ to multiple or inconsistent obligations o  o o o o joint tort-feasors are never necessary Fair to absent parties How can you repair the damage Will the judgment be adequate Does the Π have anywhere else to sue Weighing factors:  Hypo: I own 1000 shares of stock in XYZ. You sue the corporation wanting an order cancelling my stock. Can my interests be hurt if not joined my stock would be cancelled and can lose half of stock My interest may subject the company to multiple or inconsistent obligations to me and you.  Options   Either proceed without me Or dismiss the case o  19(b) factors  4: whether there is alternative forum available Labels absentee indispensible (label you put in at the end) 12(b)(7) as a basis of dismiss . Cannot accord complete relief if I’m not brought in. Am I necessary?    If not brought in it is going to be inefficient. You come along and say we agreed to buy it jointly so it should be half yours.

Rule 14  (a)(1): only can do this that may be liable to you for the Π’s claim against you     indemnity or contribution watch for it with joint tort-feasors Π sues the Δ. the rep sues on the half of the class. Going to being in with someone new. Impleader: third party practice. If it starts with the letter I we are joining somebody new.: once the TPD is entered then the Π can assert a claim against TPD but must arise out of the same T/O. 4 requirements .  Must assert SMJ over the claims  Intervention: absentee brings herself in. o o if it starts with the letter C they are claims between existing parties. interest in the action. Called third party Δ (TPD). only done by the Δ. 23(a) before you start. permissive always and don’t have to bring it in. Δ wants to sue someone new (TPD) that action is a impleader claim Owen equip. interest is at risk. Timely application to the judge to intervene. o up to you to do two things:   o intervene timely absentee must choose which side of the case to come in Intervention of right: Rule 24(a)(2): you have a right to intervene if you’re interest may be harmed if not joined. current parties do not adequately represent the interests of the current party   Same test for necessary parties Must assess SMJ o Permissive intervention: Rule 24(b)(2): may be able to do it if your claim or defense and the pending case have at least one common question with the case (up to the court) (timeliness & common question of law or fact)  Must assess SMJ  Class Action (joinder on steroids) o Rule 23   Always brought by the rep..

mandatory class actions o b(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class. no magic # up to the court. claim must be typical of those of the class. gives you a choice (don’t have to satisfy all)  (b)(1) & (b)(2) very specific. who is going to be there to represent the person beyond the Π   Rep. Usually are suing for damages. Commonality: there is some question(s) in common Typicality: Reps.  Rule 23(g) Court must define the class and must identify class council  Notice of pendency  23(d) may direct to appropriate class (b1) (b2) . will fairly and adequately protect the interests of the class 23(b) Types of class. so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole  (will not certify the class if monetary damages outweigh the equitable relief)  (b)(3) must show 2 things: o o common questions predominate over individual questions The class action is the best way to handle this dispute  Higher the stakes the higher the interests are the class members in filing their own claims. so numerous that joinder of all members is impractical.   numerosity.  Motion to certify: not a class action until court certifies it. usually after money.

 23(c)(2)(b) IN THE (B)(3) CLASS THE COURT GIVES INDIVIDUALS REASONABLEY IDENTIFIABLE o o o notice tells you that you can opt out and if not you will be bound only required in the (b)(3) representative has to pay for the notice  Who is bound by a class judgment?   All class members except those who opted out of a (b)(3) There is no opt out of a (b)(1) or (b)(2)  Settlement or dismissal of a certified class must be approved by the court. being diverse from all citizens Amount in controversy:  Allapata: we are ok if the rep’s claim exceeds $75. ESI. must tell them everything you are going to raise at trial Discovery Tools: which can be used to get information from a non party . and things that may relevant in the case as well 26(a)(2): witnesses 26(a)(3): later.  26(a)(1): initial required disclosure (very early in the case) o o   o must identify people with discoverable information that you may use on the merits. Identify documents.000  Discovery: Federal rules are pretty liberal about information allows electronically stored information (ESI) **always weighing costs against benefits o Required disclosure  Rule 26(a) Must produce certain information without a request for it.  Rule 23(e) o Judge will notified class members  SMJ   Could be a federal question Tougher is what do you do with a diversity jurisdiction with a class action o o For citizenship you look only at the rep.

answers are always oral Can depose a party or a non party but must subpoena a nonparty o Lose spontaneity  Interrogatories  Rule 33: written questions answered in writing under oath o o o 30 days in which to answer can only be sent to parties. never to nonparties Shaded to  Request to produce  Rule 34: asking to see things (only to be used by parties) o Make a written request and it appears like it can only be sent to parties BUT (c) can use it with nonparties but must hit the nonparty with subpoena  Medical Examination:  Rule 35 request to the court o o Must get a court order Must show:    Condition is actually in controversy Good cause Can be only ordered by a party or someone in a party’s custody or control.  Subpoenas  Rule 45 o Ordered to show up at a deposition and bring evidence including an electronic file o Scope of Discovery:  Standard 26(b)(1) can discover anything that is relevant to a claim of defense.. Deposition    Rule 30: oral deposition Rule 31: written deposition. *pretty narrow  Parent and child  Request for admission  Rule 36 ONLY BE SENT TO PARTIES o They force you to admit or deny any discoverable matter.   Can get stuff that is reasonably calculated to lead to admissible evidence o This standard is broader than admissible Privileged matter is not discoverable .

Can be generated by the party herself or any rep. of the party  Pretrial Adjudication o 12(b)(6)—motion to dismiss for failure to state a claim   the court never looks at evidence that cannot be 12(b)(6) The court only looks at the face of the complaint. Might be able to get witness statement. Some work product is absolute  o Mental impression. can overcome work product protection if you show:   Substantial need Not otherwise available  o Ex: witness statement and you cannot find that witness. opinions. you can’t get it. maintenance records. Hire a private investigator to go down and investigates and finds an eye witness and gets a statement. you hire me to take you on a 3 hours tour. can she win. You sue me. Can you get the file? It is work product. Write it all in a report to me. Work Product  26(b)(3): trial prep materials o o material prepared in anticipation of litigation protected from discovery. and legal theories you cannot get. doctor and patient. Checks weather. conclusions. free loader problem  Hypo: I operate a charter boat service. The boat sinks and you are injured. The person sues me. Can the law recognize a claim here? If not then no claim stated  o Twombly and Ickball: remember that the Π must plead facts supporting a plausible claim Motion Summary judgment   Rule 56 judgment without a trial (radically different from 12(b)(6)) Must show:   The moving party must show that there is no genuine dispute on a material fact Entitled to judgment as a matter of law . trying to determine if everything the Π said is true.  Confidential communication ie: between lawyer and client. Work product DOES NOT have to be generated by a lawyer. It is in my file. o Not absolute. spouses etc.

only preserves it in actions at law not equity  preserves: locked into a historical test o o whether we get a jury today depends on whether we would have a jury in 1791 in England. Pleadings are not under oath. o o Law: remedy at law is damages & $ to compensate you for the harm Equity: no jury for equity   Injunction Specific performance Focus on the remedy . Must demand a trial in writing Rule 38(b)   Must demand a trial in writing or you waive it 7th Amendment: right to a jury trial in federal jury civil cases (not required by a state court ) preserves the right to a jury. No jury: bench trial and the judge with decide the facts in a bench trial. They all say Δ didn’t have a red light.  Hypo: Π walking across the street the and he gets hit by Δ’s car. Π does come up with an affidavit from a alcoholic. Is there a dispute on a material fact? Yes. the only reason to go to trial is when there are disputed issues of fact Evidence in summary judgment given by the parties . in writing (usually in affidavit form) are given to the judge are under oath Is there a genuine dispute on a material fact? If yes? Must deny summary judgment If no? then might give summary judgment Supreme Court: loosen up a little bit smaller courts.  Trials & Motions o 1 reason to go to trial is to resolve questions of fact     o Jury decides the questions of fact. (1791 when the 7th amendment was ratified) Chauffer’s union v. Δ moves for summary judgment and gives affidavits from clergy. Terry:  You ask is this claim analogous to a claim that existed in 1791? Common law analogue in 1791    Almost always yes Remedy that the Π wants. drug addicted. Π must respond with evidence. he really had a green light. convicted swinger: must deny summary judgment. b/c ran a red light.    Trying to weed out cases where we don’t need a trial. give more summary judgment.

Under 50(a)(2) timing . You want an injunction which you would have to go to equity. o  o Must be done on motion Cannot move for this until the other side has been heard at trial. A guy is trespassing on your property. You sue at law: you will get damages. Standard 50(a)(1): reasonable people could not disagree on the result. I’m just going to rule here. He gives you gesture and says no. You yell at him to not to. o Do you get a jury?    Trespass? J Damages? J Injunction? N/J  Beacon Theaters and DQ: you get 3 rules o o o Determine the jury right issue by issue. Looking at the evidence coming in at the trial and says this can only go one way therefore. no longer get a center of gravity If the issue of fact underlies both law and equity claims you get a jury Usually we try to jury issues first. Enforced in personam: puts him in jail.    Rescission Reformation How to determine the trial when both? Hypo: own a house and have a wonderful back porch and to survey the view.  Motions:  Relate to the function to the judge o Motion for judgment as a matter of law Judgment as Matter Of Law  Rule 50 (directed verdict)   At trial and if this granted the judge takes the case away from the law. On weekend morning you enjoy coffee and croissants.

the jury comes back with a decision for Π now the Δ is going to move RJMOL now going to take away from Π and giving to the Π   Must move for this w/in 28 days after the judgment To make this motion must have moved for JMOL at a proper time at trial  If you did not move for JMOL during trial you have waived JMOL o Motion for New trial  Rule 59(a)    Same timing as RJMOL Here we have a mistake. We are at trial the court denies JMOL now the jury returns a verdict and the court enters judgment on the verdict. can do this on it’s own New trial is a much less drastic than RJMOL .  o  Functional equivalent of summary judgment Renewed motion for matter of law RJMOL Rule 50(b) JNOV   Comes up after trial. o Denies it.c. That judgment isn’t a judgment that reasonable people would have reached.d nothing C. Hypo: law requires showing a. Δ moves for JMOL because reasonable people could see that C was missing.b.d are true a.  Hypo: law requires showing a.d nothing C.b.d are true a.b.b. Let it go to the jury. o o  Limitless grounds for this This can be granted without a motion. Only to fix some problem that might get reversed on appeal anyway. Δ moves for JMOL because reasonable people could see that C was missing. something that went wrong and it affected the outcome. If we grant new trial we are going to start over.c.

the 2nd claim is dismissed  Must show 3 elements: o Both cases were brought by the same claimant against the same Δ  Same parties in the same configuration . o o    If yes.  Appeals o Going from US trial court to the US court of Appeals  Final judgment rule: in federal court you cannot appeal until the trial court enters a final judgment. then not final. Claim Preclusion  Going to get one suit to vindicate a claim . allows you to ask court of appeals to look at it court decides the case to one of the parties 54(b) multiple parties or claims Interlocutory Review:  Claims & Issue Preclusion o Res Judicata.  Only thing usually is a claim of immunity from suit. it is interlocutory If we make a motion for summary judgment: the judge denies it. Still have the rest of the case Can’t appeal a motion of a new trial. Federal Rules o o  23(f) orders for class certification   Judge-made o Collateral order rule: very narrow  When you have a collateral issue and it is unreviewable if you have to go through a case.o New trial a party may win again where RJMOL takes verdict away from one party and gives it to another side. if you sue twice on the same claim. does the trial judge have anything left to do on the merits of the case. Can you appeal? No. By statute: o o  1292(a) injunctions and things like that 1292(b) where there is a big issue of law that the trial judge and court of appeals should be appealed now.   How do we know what is a final judgment? After making this order.

z Case #1 ended in valid final judgment on the merits Must show that same issue was actually litigated and decided in case #1 Must show the issue was essential to the issue in case #1 Elements: .y. o Hypo: L and M are driving around. b. o Both cases involved the same claim  How do we define claim:   Majority view: the claim is the T/O Minority view: Primary Rights. M sues L for accident because of #1 same claimant against the same Δ  Might dismiss because of compulsory counter claim because of T/O  Going to be obvious. you get a different claim for each right invaded. venue.a     Deem section a established and prove x.y.z. PI & Property right o Hypo: case #1 L sues M litigate case over. they collide. L sues M for PI from the car wreck.c. case determined.   1 case has gone to judgment the other case is pending o o does the judgment in case 1 stop us from litigating us in case 2 **order of judgment o Issue Preclusion/ Collateral estoppel   Litigated and determined a.o Show that case 1 ended in a valid final judgment on the merits  41(b): everything is on the merits unless it was based on jurisdiction.    Is element #1 met? Both cases are L against M #2: valid final judgment on the merits #3 both involve the same claim?   Majority view: L suing M twice about the same wreck Minority view: not dismiss because it is a different claim for each right invaded. or indispensible parties.d case # 2 comes along x. we don’t care L sues M for property damage from the same crash. there is always 2 cases. Litigated.

  Case #1: person sues the roommate and litigate and the roommate wins—all the other person’s fault Case #2: I sue the person for the accident. o o o Person already litigated Elements 1-4 are all met. Your roommate goes out and collides with someone. (not constitutionally required. Under mutuality I can’t do it. want collateral estoppel. You lend your car to your roommate. You lend your car to your roommate. Your roommate goes out and collides with someone. o Steps 1-4 are met exactly the same as before . Most courts say it’s ok if the other person had a full chance to litigate in case #1. Against whom is issue preclusion used? Same in every court: you can only use it against somebody who was a party to case #1. eroding and can erode)  Non mutual Issue preclusion used by a person who was not a party to case #1  Scenarios where it has been eroded o Non mutual defensive issue preclusion: used by someone not in case #1 who is the Δ in case #2. You are vicariously liable for what your roommate does. Element 5: used by me and I wasn’t a party to case 1. This rule can change. (includes people represented by a party) (required by due process)  By whom is issue preclusion used? Doctrine of mutuality: you can use it by someone who was a party in case #1.  Hypo: you own a car and have a roommate.   Case #1: person sues the roommate and litigate and the roommate wins—all the other person’s fault Case #2: person sues me for lending my car: no claim precludes different defendants. You are vicariously liable for what your roommate does. Going to get a collateral Issue o Non mutual offensive issue preclusion: using by someone not a party in case #1 someone is the Π not a party in case #1  Hypo: you own a car and have a roommate.

34. I could not have joined easily in case #1. diversity jurisdiction is usually used but amount in controversy is only 500.31. 1391.1332.20.56. 1404. claims adding up to over 100%  Rule 22  Statutory interpleader nationwide personal service of process.  Parklane Hosiery: Factors: Δ had a full chance to litigate case # 1. no inconsistent judgments can’t pick out the one you like   Rules 4 (excluding k-m). offensive (Π) most courts say no. diversity of citizenship only requires 2 claimants are diverse .33.1367. Title 28 1331. Important trend says yes as long as it is fair.o 5: its being asserted by you not a party to case #1 non mutual. 30.35. Δ could foresee multiple litigations. 24. 13.15. 1441.36. 26(a)(b)(3).1446 Interpleader: must be multiple claims that are inconsistent with eachother.22 (statutory interpleader).18. 23 not 1 or 2. 12.45.19. 14.