I.

Personal Jurisdiction
a. In personam jurisdiction
i. The Constitutional Limit
1. Pennoyer v. Neff – states have power over everybody and
everything in it’s boundaries
a. Pennoyer gave us traditional basis for general
jurisdiction– 3 types
i. D served with process in the forum – gives general
jurisdiction
ii. D is domiciled in the forum – gives us general
jurisdiction
iii. D consents – gives us general jurisdiction
2. Hess v. Polaski, 1927 – implied consent
a. Hess, a Pennsylvanian, drives his car up to Massachusetts
and is involved in a wreck. D wants to sue Hess in Mass.
Mass has non-resident motorist statute which states that
by driving on our roads you have appointed an agent for
service of process.
b. Expanded notion of consent to include implied consent
3. International Shoe v. Washington
a. “The defendant must have such minimum contacts
with the forum so that exercise of jurisdiction does not
offend traditional notions of fair play and substantial
justice.”
b. Flexible – leads to an expansion of jurisdiction.
c. It is clear that you can serve process on D outside the
forum.
d. Seems to have two parts
i. Contacts
ii. Fairness
e. Nowhere does it purport to overrule Pennoyer
4. McGee – 1957
a. D had only 1 contact in the forum. Texas company who
sold one policy to California. Court upheld jurisdiction.
b. D solicited contract from Cali. Reached out from TX to Cali
to get contract.
c. Stressed forum state’s interest
d. Relatedness – P’s claim arose from the D’s contact with
the forum.
i. Can make up for the fact that there was only 1
contact.
5. Hanson v. Denckla – 1958
a. Wealthy woman set up trust fund with Delaware bank.
She moves to FL, from FL she continues to have
 relationship with Delaware bank. Did Florida have
jurisdiction over Delaware bank? SCOTUS said no.
b. They said no b/c D had no purposeful availment of
Florida.
c. To have a contact under - Int’l Shoe - it must result from
purposeful availment.
i. Purposeful availment = “some act by which the
defendant purposefully avails itself of the privilege
of conducting activities within the forum state, thus
invoking the benefits and protections of its laws.”
Handon v. Denckla, 357 U.S. 235, 253
1. Cannot exist on the basis of the unilateral
actions of the plaintiff or third parties’
rather, jurisdiction must be based on actions
of the defendant Id.
ii. D must reach out to the forum.
iii. She must avail herself of the forum.
6. Worldwide VW
a. Must be foreseeable that D could be sued in the forum.
i. Minimun contacts/Purposeful availment
7. Burger King – 1985
a. D’s are two guys in Mich who get sued by BK based out of
Miami.
b. Court upholds jurisdiction
c. Makes it clear that there are two parts to Int’l shoe –
contact and fairness
d. You must have a relevant contact before fairness even
becomes relevant - if there is no relevant contact there is
no jurisdiction.
e. The two Mich D’s purposefully availed themselves
f. Fairness? SCOTUS says “the burden is on the defendant to
show that this forum is unconstitutional.”
i. Have to show that it is so gravely difficult and
inconvenient that you are at a severe disadvantage
in the litigation.
ii. D’s in Burger King could not make that showing
iii. Court says that the difference in wealth is
irrelevant.
8. Asahi – 1987 – stream of commerce case
a. No clear law from Asahi – 4-4 split = two approaches
b. 1st approach = Brennan approach = it is a contact. If I put
the product into the stream and reasonably anticipate that
it will get to state C,D, or E.
c. 2nd approach = O’Conner approach = you need what
Brennan said plus the intent or purpose to serve states
C,D, or E. i.e. advertising there or customer service there.
9. Burnam – 1990 – NJ D is served with process in Cali for a suit in
California but the case has nothing to do with Cali (the only way it
can work is if Cali has general jurisdiction).
a. Is this (service of process in the forum) good enough by
itself - under Pennoyer - or do you still have to apply the
Int’l shoe test?
b. Court didn’t give us an answer – split 4-4 again
c. 1st approach = Scalia approach = presence when served is
enough by itself - you do not have to go through the Int’l
Shoe test.
i. Reason = historical pedigree
nd
d. 2 approach = Brennan approach = you must apply Int’l
Shoe to every case. Traditional basis don’t matter
anymore.
e. All 9 justices agreed that Cali has general jurisdiction over
Burnam.
10. RECAP OF CONSTITUTIONAL ANALYSIS FOR IN PERSONAM
a. First - Flag whether the traditional basis applies – if one
traditional basis applies, tell professor that.
i. Then let professor know that you know about
Burnam “however, might not be good on it’s own
because of Brennan…”
b. Second - Go to Int’l Shoe
i. Because there’s a traditional basis and we’ll have to
go there anyway or…
ii. May have D who does not fall w/in traditional basis
1. Must have relevant contact between
defendant and the forum = point that out
on the exam – two things to discuss
a. First - Purposeful availment –
contact must result from purposeful
availment.
b. Secondly – forseeability that this D
could get sued in that forum.
2. Assess Fairness on the exam
a. First – relatedness – does the
plaintiff’s claim arise from the
defendant’s contact with the forum?
i. If not then only if you have
general jurisdiction.
b. Second – 5 classic fairness factors
i. Inconvenience for the
defendant and her witnesses
ii. State’s interest – forum State
where we sue may have an
interest in providing a forum.
 iii. Plaintiff’s interest
iv. Interest in efficiency
v. Interstate interest in shared
substantive policies
ii. The statutory inquiry – every state has statutes that allow jurisdiction
based on the traditional basis. In addition, every state has two more
statutes to go after the non-resident.
1. Non-resident motorist act
2. Long-arm statute
a. Laundry list long arm statute

HYPO: P lives in MD. Drives from MD to VA. P likes coo-koo clocks and buys one in VA.
He takes the clock back to his home in MD. He puts the clock up on the wall. On the
hour the bird comes out and a spring breaks and flies out and hits and injures the P. P
wants to sue the VA clock maker in MD. MD has jurisdiction over a non-resident who
commits a tort in MD.

ANSWER: Did Uncle Joe commit a tort in MD? On one hand, Uncle Joe did not commit a
tort in MD. On the other hand, based on Gray v. American Radiator, yes he did commit a
tort in MD b/c the act became tortuous when someone was injured which was in MD.
- points for statutory interpretation

Would jurisdiction in MD over Uncle Joe be constitutional? Since there are no

traditional bases we must look to the Int’l Shoe test. Int’l Shoe tells us that D has such
minimum contacts blah blah blah. Is there a relevant contact between Uncle Joe and
MD? There is obviously some contact b/c the clock got to MD but is it a relevant
contact? Did he purposefully avail himself of MD? Look at the facts this looks like
World-Wide VW the only way the clock got to MD was by the unilateral act of a third
party.

Forseeability. Is it foreseeable that Uncle Joe could get sued in MD? If your product is
defective and it could get to MD you could obviously get sued in MD.

Fairness. Relatedness. The plaintiffs claim arises from the defendants contact with
Maryland.
1) 5 fairness fairness factors
- Burden is on defendant. D has to show that he is so gravely inconvenienced
and his witnesses are so inconvenienced. Use the fact that he is in a
neighboring state.
- State’s interest. MD may have an interest in providing a forum for people
who are maimed by out of state clocks, etc.
- Plaintiff’s interest. Plaintiff has a big interest in litigating in MD b/c he is
injured. Maybe he can’t get to VA to litigate.
- Efficiency
- Shared substantive policies
 b. In Rem/Quasi in-rem jurisdiction
i. What’s the difference?
1. In-rem = the suit itself is over who owns the property.
2. Quasi-in-rem = the dispute is not about who owns the property.
ii. Steps when looking at exam question.
1. Start with a statute.
a. Every state has an attachment statute – they basically say
“we can exercise jurisdiction over property in our state that
the defendant owns or claims to own.”
2. Is it constitutional?
a. Schaffer v. Heitner said that you must attach the property
at the outset but that alone is not enough. Shaffer says that
you must also show that the defendant meets the Int’l shoe
test.

II. Notice
a. Service of Process – the way we notify the defendant.
i. Governed by Fed R. Civ. P. 4 which says:
1. Process consists of the summons and a copy of the complaint
a. 4(a)(1) says what goes in the summons.
2. Service can be made by any non-party who is at least 18.
3. Service on a human being = 4(e)
a. 4(e)(2) = 3 alternatives for serving process on a human
being. None of them are preferred.
i. Personal Service = 4(e)(2)(A) – walk up and hand
documents to the plaintiff anywhere in the forum
state.
ii. Substituted service = 4(e)(2)(B) – MUST be done at
D’s dwelling or usual abode. Must serve someone
of suitable age and discretion who resides there.
Babysitter no good. Butler is good.
iii. Service of agent = 4(e)(2)(C) – might be an agent
appointed by law i.e. non-resident motorist act.
b. 4(e)(1) – we can also use methods for service from state
law.
i. Can use the methods of the state where the federal
court sits.
ii. Can use the methods of state where the service is
effected.
4. Service on a business = 4(h)(1)
a. Serve an officer or a managing or general agent of that
business.
i. Officer = easy. Prof has to tell who the officer is.
 ii. Managing or general agent = someone with
sufficient job responsibilities that we can expect
her to transmit important papers.
5. Waiver of service = 4(d)
a. Almost always done by mail.
b. Allows P to mail to D the process and waiver form and
send a self addressed stamped envelope. Then D can
waive formal service. Easy way to serve and avoid costs.
c. What if D fails to return waiver?
i. we must serve her with process and she may have
to pay the cost of the service
b. Constitutional Standard for Notice
i. Mullane v. Central Hanover Bank (1950) = “constructive notice is okay if
it is reasonably calculated under all the circumstances to apprise the
party of the proceeding.”
ii. If you meet Rule 4 you have satisfied Mullane
iii. Jones v. Flowers (2006) = tells us that “if you become aware that D did
not receive service, you may have to take additional steps.”
1. Local gov’t sent notice of proceeding by certified mail to the
house but was stamped not received and returned to local gov’t
therefore P knew that D didn’t get it. It became incumbent on P to
take additional steps.

III. Subject Matter Jurisdiction – HAS NOTHING TO DO WITH PERSONAL

JURISDICTION BUT YOU HAVE TO HAVE BOTH.
a. Diversity of citizenship = great way to get into Federal Court. - U.S.C. 1332(a)(1)
– 2 requirements
i. Case must be between citizens of different states
1. Complete Diversity Rule – there is no diversity if any plaintiff is
a citizen of the same state as any defendant.
2. What is the citizenship of a human being?
a. A U.S. citizen is a citizen of the state in which she is
domiciled.
b. YOU ONLY HAVE ONE DOMICILE AND YOU ALWAYS HAVE
A DOMICILE.
c. At birth you are given the domicile of your parents.
d. Once you’re 18 you can change your domicile. 2 ways to
do that.
i. Physically you must go to the new state.
ii. You must form the intent to make that your
permanent home.
HYPO: Someone born and raised in California. Then they turn 18
and go to college in MD for 4 years. Then goes to law school in IL
for 3 years. Then goes to med school in CT for 4 years. Then joins
 merchant marine and sails around for 60 years. What is his
domicile?

ANSWER: California b/c he never formed an intent to make a

different place his new home.

3. What is the citizenship of a corporation? NEVER USE THE WORD

DOMICILE.
a. Corporations have citizenship defined by U.S.C. 1332(c)(1)
i. State where incorporated
ii. The one state where it has its principal place of
business.
iii. CORPORATION CAN BE A CITIZEN OF TWO
STATES.
1. i.e. if it’s incorporated in Deleware and PPB
in Arizona.
iv. THERE IS ONLY ONE PPB – how to determine this?
Two different ways to determine based on
jurisdiction you’re in.
1. Corporation’s nerve center = where
corporate decisions are made.
Headquarters.
2. Muscle Center/Place of Activities = where
corporation does more stuff than anywhere
else.
3. Total Activities Test gives us rules of thumb.
If corporation’s activity is far-flung (does
stuff in a whole bunch of states) then we
usually use the nerve center as the PPB. One
the other hand, if all of the activity is in one
state then we usually use the muscle center
as the PPB.
ii. Amount in Controversy
1. Must exceed $75,000. Exactly $75,000 is no good has to be at
lease $75,00.01. The plaintiff’s claim governs unless it is clear to
a legal certainty that she can not recover more than $75,000. One
way would be a statutory cap on recovery.
iii. Aggregation – when we have to add multiple claims to get over $75,000.
1. We can aggregate if it is one plaintiff vs. one defendant. We can
add all the claims the plaintiff has even if they’re unrelated.
2. Can not aggregate if there are multiple parties on either side.
3. For joint claims use the total value of the claim. The number of
parties is irrelevant.
a. How do I know it’s a joint claim? Look for the word
“joint.”
b. Federal Question
i. U.S.C. 1331
ii. Citizenship is irrelevant
iii. No amount in controversy requirement.
iv. Could have an Ohio resident vs. Ohio resident for $.01.
v. MUST ARISE UNDER FEDERAL LAW
1. How do we know if something arises under federal law?
a. WELL-PLEADED COMPLAINT RULE – in figuring out
whether or not it’s a federal question the court looks only
at the complaint and considers only the claim itself.
b. Louisville and Nashville R.R. v. Mottley - leading case on
well-pleaded complaint rule.
i. The Mottleys have lifetime passes on the railroad
then Congress passes a law that says the Railroads
can not honor free passes. When R.R. refuses to
honor Mottley’s free pass they sue. They claim that
the (1) R.R. breached the contract and (2) the new
federal law does not apply to the Mottleys. Court
ruled that this is not a federal question b/c looking
only at the claim (breach of contract) is not a
federal question. The second part was federal
question but it was not their claim, it was made in
anticipation of a defense.
c. If P enforcing a right it arises under federal law
i. In Mottley case the answer is no. They were saying
the law did not apply to them.
c. Supplemental Jurisdiction – “common nucleus of operative fact” –
supplemental jurisdiction does not get a case into federal court. Comes up if
there is already a case in federal court and there is an additional claim.
i. For every single additional claim ask “whether it invokes federal
question or diversity?”
1. YES – great it can come in, no problem.
2. NO – you might still be able to get it in through supplemental
jurisdiction.
ii. United Mine Workers v. Gibbs (1966)
1. We have supplemental jurisdiction if the claims share a “common
nucleus of operative fact” with the claim that invoked
jurisdiction.
2. Common nucleus of operative fact is always met when same
transaction or occurrence.
iii. U.S.C. 1367
1. Does 1367(a) grant supplemental jurisdiction over this claim?
a. Answer is YES if it meets Gibbs b/c 1367(a) codifies Gibbs.
2. Does 1367(b) take away the supplemental jurisdiction?
a. Answer is YES when:
 i. In diversity cases and
ii. Claims by plaintiffs and
iii. Certain claims by plaintiffs:
1. Claims by plaintiff against parties joined
under Rules 14, 19, 20, 24.
d. Removal – gives defendant chance to pick the forum
i. Comes up when D has been sued in State court but she wants the case in
Federal Court. Removal is where D has the case removed to Federal
Court. She basically removes (transfers) to Federal Court.
ii. One-way street. Only goes from State to Federal.
iii. Things to remember:
1. General rule: It is removable if it invokes Federal Subject Matter
Jurisdiction (if it meets diversity or federal question jurisdiction).
2. Exception to general rule: We can not remove a diversity case if
any defendant is a citizen of the forum state.
a. i.e. P of NY sues D of TX and D of GA and P sues in state
court in GA. Even though we have diversity of citizenship
Ds can not remove b/c we have an in state defendant.
b. Exam trick = exactly same fact pattern and claim is for
violation of Federal Employment Law. YES YOU CAN
REMOVE! b/c federal law is the basis for the claim the in-
state defendant rule doesn’t apply b/c it’s a federal
question case NOT a diversity case.
3. All defendants must agree to remove. If there are10 defendants
and 1 doesn’t want to remove then you can’t remove.
4. Timing: You must remove w/in 30 days of service of the
document that first made the case removable.
a. 30 days from SERVICE! NOT KNOWLEDGE!
5. Can remove only to the Federal District that embraces the state
court where it was filed.
a. i.e. if proceeding is filed in St. Louis it can only be removed
to the eastern district of MO.
IV. Venue – tells you which federal court is appropriate. Extremely mechanical stuff.
a. Basic Provisions for Venue
i. U.S.C. 1391 – gives us our 2 basic venue choices.
1. Any district where ALL defendants reside
a. If all D’s reside in different districts of the same state we
can lay venue where any one of them resides.
b. What does “resides” mean? It’s different that citizenship
i. For a human being = resides is same as
domicile/citizenship.
ii. For a business = U.S.C. 1391(c) = corporation
resides in all districts where it’s subject to personal
jurisdiction when the case is filed. Very broad
definition of residence.
 2. We can go to any district where a substantial part of the claim
arose.
b. Transfer of venue
i. Transfer = moving a case within a judicial system
1. i.e. in state court in PA can we transfer to a state court in NJ? NO
b.c they’re different systems.
2. If we’re in a federal court in PA we can transfer to a federal court
in NJ b/c they’re in the system.
ii. Transferor = court from where it was filed.
iii. Transferee = court where it is transferred.
iv. 1404 and 1406 = two transfer statutes.
1. UNDER BOTH STATUTES THE TRANSFEREE MUST BE A
PROPER VENUE AND MUST HAVE PERSONAL JURISDICITON
OVER THE DEFENDANT.
a. Must be true independent of waiver by the defendant.
2. 1404 applies when transferor is a proper venue – says “we’re a
proper venue but there may be another place that’s better/there
may be a place that makes more sense.”
a. Based on convenience of the parties and witnesses
b. Interest of justice
3. 1406 applies when the transferor is an improper venue
c. Forum non-conviens – where a court dismisses b/c the litigation would be far
more appropriate somewhere else.
i. Docrtine of dismissal
ii. Happens when transfer is impossible b/c courts are in a different judicial
system.
iii. Piper v. Reyno – SCOTUS upheld dismissal of case under forum non-
conviens b/c it should have been
1. Footnote 6 tells us the factors to look at when deciding whether
to dismiss under forum non-conviens. Public and private factors.
They’re the exact same things we look at under a 1404 transfer.

V. Erie Doctrine – only comes up in diversity cases

a. Rules of Decision Act and 10th Amendment of the Constitution which says the
Federal Gov’t can not invade powers that are reserved for the State.
b. Trouble = is this matter an issue of substance?
i. It was easy in Erie. Mr. Tompkins got smacked in the back of the head by
something that flew off the train. It was substantive b/c the issue was
whether the railroad owed a duty to Mr. Tompkins and whether or not
they breached that duty.
c. Analytical approach to Erie.
i. Is there a Federal directive on point? (including the
FRCP/Constitution/Statute/etc.)
1. If YES then apply Federal Law as long as it’s valid and do not even
discuss Erie b/c it’s a Hanna problem
 a. Hanna v. Plummer – if there’s a federal directive on point it
trumps state law as long as it’s valid.
i. In Hanna it was FRCP 4 that was on point.
ii. Comes from the supremacy clause in constitution.
b. How do we know if it’s valid? Test it under the Rules
Enabling Act.
i. It is valid if it is arguably procedural. Every one of
the FRCP’s is valid b/c it is arguably procedural and
SCOTUS will not hold it invalid b/c SCOTUS writes
them.
ii. If there is no federal directive on point then what? Then we have an Erie
problem. 3 cases to help approach this…
1. Outcome Determinative Test – Guaranty Trust v. York (1985)
a. Under state law the SOL barred the claim. In fed court the
judge asked if he could ignore the state law the SCOTUS
said no b/c it was outcome determinative.
b. Test = look at it and say “if I ignore the state law will the
outcome be different than if I apply the state law?”
i. In Guaranty Trust YES b/c if you apply the SOL it
was dismissed. If ignored it could go on.
2. Balancing the Interests – Byrd v. Blueridge
a. State law said that a particular question had to be resolved
by a judge not the jury. The state had no reason for that
law, so the fed judge said he wanted to ignore it and have a
jury hear it. SCOTUS said to go with state law unless the
federal court system has some interest in doing it
differently. They found that the federal interest won in
Byrd b/c the Federal interest was greater than the State
interest.
3. Twin Aims of Erie – comes from Hanna v. Plummer
a. To avoid forum shopping
b. To avoid inequitable administration of the law
c. Ask one question to apply the twin aims test – “If the
federal judge ignores this state law will it cause people to
flock to federal court/lead to forum shopping?”
d. ERIE HYPOS: SOLID GOLD HYPOS
i. Federal Rule 23 allows class actions. Let’s say we have a diversity case
and Rule 23 is met (this would qualify as a class action under Rule 23).
So we’re in Federal Court under diversity and under Rule 23 it would be
a class action but under state court it would not.
1. Ask first: Is there a Federal Directive on point? YES! Federal
Rule 23! Under Hanna v. Plummer it is on point if it is valid. It is
valid if it is arguably procedural.
ii. Let’s say we’re in state X. The legislature is worried about health care
and passes a statute that says “if you file a medical malpractice case
 before you can ever go to a jury you must go to arbitration. If P does not
like the arbitration result you can still go to a jury trial but the jury gets
told of the arbitration result.” Citizen of state Y sues doctor in state X.
Diversity case. Does federal judge in diversity case have to follow this
state statute?
1. Ask first – is there a federal directive on point? NO
2. Erie Problem – ask three more questions:
a. Is it outcome determinative? We don’t know.
b. Balance of the interests (Byrd v. Blueridge) – Here the
state has a huge interest b/c it’s trying to drive down
healthcare costs. The federal interest (federal interest in
jury trial) is not maimed or lost it’s just delayed.
i. Balance is in favor of going with state law.
c. Twin aims – if federal judge ignores this state law will it
cause people to flock to federal court?
i. YES! Everyone who can will flock to state court b/c
they will be able to avoid arbitration.

VI. Pleadings – documents that the parties file setting forth claims, defenses, etc.
a. The Complaint – the pleading by the plaintiff. Filing this is what starts the case.
i. What goes in the complaint? - Rule 8(a) tells us there are 3 things that
the plaintiff must put in the plaintiff if they fail to it will be dismissed
(probably w/out prejudice). Those three things are:
1. Statement of the grounds of subject matter jurisdiction
2. Short and plain statement of the claim
a. Bell Atlantic v. Twobley – most important pleading case in
last two decades.
i. Gave us this standard: “In federal court the plaintiff
must allege facts supporting a plausible claim.”
ii. Requires more detail in pleading than you used to
it’s just hard to decide how much is enough.
3. Make a demand for the relief sought (damages, injunction, etc.)
ii. Rule 9(b) and 9(g) = you must give more detail/particularity/chapter
and verse when you’re alleging the things listed in these rules.
1. 9(b) – allegations about fraud or mistake must give more detail
2. 9(g) – allegations of special damages must give more detail.
a. those that do not normally flow from an event. i.e. man
gets nerve damage that gave him a 24/7 erection when he
gets sued by a car.
b. Defendant’s response – Rule 12
i. Rule 12 says When you get sued you must respond w/in 20 days after
the service of process.
ii. Rule 12 gives you 2 choices – respond by (1) motion or (2) answer
1. Rule 12(b) give us 7 bases under which we can move to dismiss.
(can be either in motion or answer).
 a. 12(b)(1) - Lack of subject matter jurisdiction
b. 12(b)(2) - Lack of personal jurisdiction
c. 12(b)(3) - Improper venue
d. 12(b)(4) - Insufficient process
i. 2 documents – one of them isn’t right.
e. 12(b)(5) - In sufficient service of process
i. Documents are okay but not served right.
f. 12(b)(6) - Failure to state a claim
g. 12(b)(7) - Failure to join an absentee (indispensible party)
iii. Waiveable defenses = 12(g) and 12(h) when read together = 3 rules
1. 12(b)(2)-(5) must be put in the first rule 12 response or they are
waived.
2. 12(b)(6) & (7) can be raised any time through trial.
3. 12(b)(1) can be raised anytime in the case (even in the first time
on appeal) 12(b)(1) is NEVER waived!
iv. What must be in the answer?
1. 8(b) says you must respond to the allegations of the complaint.
a. Admit
b. Deny - Failure to deny is an admission on anything except
damages
c. Say you don’t know but watch out for 8(b)(5)
2. Raise affirmative defenses – 8(c)(1)
a. Affirmative defense = P is injecting a new fact and if she’s
right she wins.
b. i.e. Statute of limitations; Statute of frauds; etc.
c. Failure to assert affirmative defenses can lead to waiver.

VII. Joinder – the joinder rules determine the scope of the litigation (they determine
how many parties and claims are in the case) NOT ONLY DO YOU HAVE TO KNOW
THE JOINDER RULES BUT YOU HAVE TO ANALYZE JURISDICTION AS WELL!!!
a. Claim Joinder by the Plaintiff – Rule 18(a)
i. Rule 18(a) – the plaintiff can assert ANY claims against the defendant.
They do not have to be related they can be completely separate and
unrelated claims.
ii. Next look at jurisdiction.
iii. The fact that 18(a) is open season and you can add as many claims as
you want may raise aggregation – if it’s one plaintiff and one defendant
you can aggregate the claims in order to get over the $75,000 threshold.
b. Claim Joinder by the Defendant – when the D asserts a claim. There are two
types of claims.
i. Counterclaim – 13(a) & (b) = claim against an opposing party.
1. Counterclaims are filed with the answer.
2. Compulsory Counterclaim 13(a)(1) – one that arises from the
same transaction or occurrence (T/O) as the plaintiff’s claim.
 “You must assert it in this case (you cannot sue on it separately) if
you don’t you waive the claim and it’s gone forever.”
3. Permissive Counterclaim 13(b) – a counterclaim that does not
arise from the same T/O as the plaintiff’s claim. You may assert it
here but you do not have to.
4. HYPO: Plaintiff A (New York) and Defendant B (Florida) are out
driving their own cars and they collide. $100,000 claim for
damages. B has a compulsory counterclaim back against A for
$90,000. This compulsory counterclaim invokes subject matter
jurisdiction of diversity because it’s by a Florida against New York
and it exceeds $75,000.
5. 2nd HYPO: Same as before except B’s compulsory counterclaim
against A is only for $45,000. Now what? We have to tell the
professor that it’s a compulsory counterclaim but that the claim
doesn’t have subject matter jurisdiction. No federal question and
no diversity b/c it doesn’t exceed $75,000. Now it’s time for
supplemental jurisdiction. YOU SHOULD NEVER MENTION
SUPPLEMENTAL JURISDICTION UNTIL YOU”VE SHOWN THAT
THERE IS NO FEDERAL QUESTION OR DIVERSITY (otherwise
you’re throwing away points).
a. Supplemental Jurisdiction – does §1367(a) grant
supplemental jurisdiction to this counterclaim? Yes if it
meets Gibbs (common nucleus of operative fact)? In this
case it does meet Gibbs A COMPULSORY COUNTERCLAIM
WILL ALWAYS MEET GIBBS (COMMON NUCLEUS TEST).
Same T/O is a subset of common nucleus of operative fact.
b. Does §1367(b) take it away? It only applies in diversity
cases – UH-OH…this is a diversity case! It only takes away
supplemental jurisdiction over claims by plaintiffs, this is a
claim by a defendant so §1367(b) does not take it away.
ii. Cross-claim – 13(g) – claim against a co-party, NOT an opposing party. It
MUST arise from the same T/O as the underlying case. This is NOT
compulsory; there is never a compulsory cross-claim.
iii. HYPO: Plaintiff A (Connecticut), Defendant B (New York), and C (New
York) are driving in their own cars and have a collision. Every claim
exceeds $75,000. The original claim, A vs. C, gets us into Federal Court.
What claims could C file? C should file a compulsory counterclaim
against A because it’s against an opposing party and it arises from the
same T/O. This counterclaim invokes subject matter jurisdiction b/c it
invokes diversity b/c it exceeds $75,000. C MAY also file a cross-claim
against B. She doesn’t have to but she MAY. The problem with this cross
claim is that THERE IS NO SUBJECT MATTER JURISCITION. It’s a New
Yorker vs. a New Yorker. Go to Supplemental Jurisdiction. Does
§1367(a) grant supplemental jurisidcion? Yes, cross-claims always meet
Gibbs b/c they arise out of same T/O. §1367(b) doesn’t take it away b/c
it’s a claim by a defendant not plaintiff.
c. Proper Parties – Rule 20(a) – Who MAY be joined in a case?
i. Rule 20(a) is a tool for the plaintiff. It is the only way for P to get
multiple parties into the case at the outset. Allows her to have more
than 1 P on the same side and more than 1 D on the opposing side.
ii. Two part Rule 20(a)(1) test for co-plaintiffs – Do the claims arise from
the same T/O? Do the claims raise at least 1 common question?
iii. Two part 20(a)(2) test for co-defendants – same test as 20(a)(1)
iv. MUST LOOK NEXT AT JURISDICTION
d. Necessary and indispensible parties – Rule 19 – who SHOULD be joined in the
case?
i. Three step process to determine whether or not the absentee is
necessary. . .
1. 19(a)(1)(a) – absentee is necessary or required if without her the
court cannot accort complete relief among the parties. If we do
not bring absentee into this case there will be more litigation
down the road.
2. 19(a)(1)(b)(1) – will the absentee’s interest may be harmed if she
is not joined.
3. 19(a)(1)(b)(2) – will the absentee’s interest subject the defendant
to the risk of inconsistent obligations?
4. Joint Tortfeasors are never necessary – Temple v. Synthes (1990)
5. HYPO: You hold 1000 shares of stock in a XYZ corporation.
Freer claims that him and you bought the stock together to own it
jointly. Freer sues the corporation asking for an order canceling
your stock and then reissuing it in both our names. You are the
absentee b/c he didn’t sue you. Are you necessary? Yes! Walk
through the steps. 19(a)(1)(a) yes b/c without you the court
can’t wrap it up. 19(a)(1)(B)(1) focuses on you. We meet this
because if Freer wins you will be hurt. 19(a)(1)(B)(2) harm to the
defendant. If Freer wins the corp will be harmed b/c the corp will
cancel your stock, you sill sue the corporation and if you win then
the corp will have to reissue the stock in your name creating
INCONSISTENT OBLIGATIONS.
ii. Is joinder of the necessary absentee feasible?
1. First two steps = personal jurisdiction and diversity. It will be
feasible if we have personal jurisdiction over the absentee and if
bringing her in will not screw up diversity.
2. 19(b) - Third step. It comes up if we can’t get in with the first two
steps. If this is the case go to 19(b). We only have two choices in
this scenario. Proceed w/out absentee OR dismiss the entire case.
Four factors in 19(b)
a. Fourth factor is the most important. It counsels the court
to NEVER dismiss under Rule 19 unless the plaintiff has
some alternative forum.
 b. If court decides to dismiss then the absentee is now
labeled indispensible. 12(b)(7).
e. Impleader – Rule 14 – the only person who can use Rule 14 is a defending party.
i. TPD – third party defendant.
ii. 14(a)(1) – the TPD is brought in for the reason that they are or may be
liable to the defendant for the underlying claim. Usually boils down to
indemnity or contribution.
1. Indemnity = deflect entire liability (i.e. insurance company)
2. Contribution = shared liability (i.e. joint tortfeasors)
3. Also created 2 additional claims
iii. 14(a)(2)(D) – TPD can assert a claim against the plaintiff as long as it
arises from the same T/O.
iv. 14(a)(3) – Plaintiff can assert a claim up against the TPD is okay as long
as it arises from the same T/O.
f. Intervention – the absentee is joining herself. Rule 24
i. Rule 24 says that the absentee can come into the case. It’s up to the
intervenor to decide what side to come in on.
ii. Two types of intervention under Rule 24. In both the application must
be TIMELY (that’s all it says, there is no day limitation)
1. Rule 24(a)(2) Intervention of right – you have a right to intervene
under this rule if the absentee’s interest may be harmed if she is
not joined. Unless there’s already someone else there who’s
looking out for your interest. This is the exact same test as 19(a)
(1)(B)(1).
a. HYPO: same as above. 1000 shares of stock in your name.
Freer sues the corporation seeking and ordering
cancelation of your stock. You already meet 19(a)(1)(B)
(1) and for the same reason you meet rule 24(a)(2).
2. Rule 24(b)(2) Permissive Intervention – very easy standard to
meet.
a. All you have to do is show that your claim or defense in the
pending case have at least one common question.
b. The court does not have to let you in. It’s at the court’s
discretion that’s why it’s called permissive intervention.
3. MUST DO SUBJECT MATTER JURISDICTION AFTER
DETERMINING INTERVENTION!!!
g. Interpleader – Rule 22
i. Issue: Federal Subject Matter Jurisdiction – Diversity
1. “Statutory” Interpleader = minimal diversity, determined as
between claimants.
2. “Rule 22” Interpleader = Complete divertisy, determined as
between stakeholder and claimants.
ii. Issue: Amount
1. “Statutory” Interpleader = $500
2. “Rule 22” Interpleader = $75,000+
 iii. Issue: Personal Jurisdiction
1. “Statutory” Interpleader – Nationwide service of process
2. “Rule 22” Interpleader – Must meet ordinary rules; contacts with
claimants required; service under Rule 4
iv. Issue: Venue
1. “Statutory” Interpleader – Residence of one or more claimants
2. “Rule 22” Interpleader – Ordinary venue rules under 28 U.S.C.
§1391
v. Issue: Injunctions (typically to freeze assets or require their delivery to
a claimant)
1. “Statutory” Interpleader – Specifically provided for interpleader
cases in 28 U.S.C. 2361
2. “Rule 22” Interpleader – No specific basis; courts have used 28
U.S.C. 2361 (“where necessary in aid of . . . jurisdiction”)
h. Class Action – Rule 23
VIII. Discovery
IX. Pre-trial adjudication
X. Trial
XI. Appeals
XII. Claim and Issue preclusion