Civ Pro Watts Fall 2023

TIMELINE FOR A CIVIL CASE:

Pleadings -> Discovery -> Trial -> Appeal

Pleadings: make them sufficient or get a 12(b)(6) bitch!!

 Rule 8 - state the complaint in a concise statement showing that pleader is entitled to
relief
o Rule 8(a) Claim for relief must contain:
1. Short plain statement for grounds of jurisdictions
2. Short and plain statement of the claim showing that the
pleader is entitled to relief
3. And demand for the relief sought.
o Rule 8(b) “Defenses; Admissions and Denials” also refers to answering the
complaint:
○ Ds must state in short and plain terms its defenses to each claim by
P
○ Ds must admit or deny each allegation asserted by the P
■ “General Denial” -- in good faith denying all allegations of
a pleading
■ Must specifically say which parts of the pleading you
deny and which party you admit are true
● Rule 8(b)(6) = if you don’t deny it, then you admit
it
● Ex: Zielinski v. PPI: D just did a general denial
and after it was found out that they shouldn’t have
been the one to be sued. Therefore their denial was
rendered ineffective.
○ Equitable estoppel can be applied to get
around statute of limitations and allow P to
 sue the correct D if the P was mislead by the
conduct of the D in answering
○ Ds must assert affirmative defenses for in their answer to a
pleading if they are going to use them
○ 12(b)(6)- can be filed before you answer and can be granted if
there are no facts to state a relief for P’s claim.
■ Even if these facts are true, the law grants no remedy for
this ← the point of 12(b)(6)
○ Rule 8(c): is a non-exhaustive list of affirmative defenses
■ Affirmative defense = saying yes I did this but here is why I should not
be liable
● A bad EX: Jones v Bock: P files suit against prison for making
him do labor while he was injured. D filed an affirmative defense
saying the P did not exhaust all his options under the prison
Litigation Reform Act. Court said that P was not required to show
this in his original pleading in compliance with 8(a).

Iqbal/Twombly Pleading
- New standard under the law for what is required in a pleading
- Must not be only legal conclusions – need to have some plausible facts in there
that support those legal conclusions
- In order to test to see if it would withstand a 12(b)(6), you need to take out
all legal conclusions and see if what remains is plausible on it’s face
- Big Idea: Plausibility Standard: a complaint must contain
enough factual allegations to state a plausible claim for relief. --
not just “possible”
- Applies to ALL civil cases (Iqbal tells us that)
- Goals of requiring more in pleading: 1) Very expensive to mount
defenses on these claims, 2) prevent Ps from going on fishing
expeditions, 3) If Ps can’t get past pleading bc of lack of facts
asserted in pleading to get to discovery, 12(b)(6) will kill the case
- Pleading Analysis:
1. Slice out legal conclusions
2. Accept all the fact allegations as true
3. Assess whether those fact allegations give rise to a
plausible claim
Plausible = more than conceivable (rise to the level
of likely)

 Rule 9(b): in alleging fraud of mistake, the party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person's mind may be alleged generally.
o Court finds that the counterclaims state correctly in giving rise to a strong
inference…
o But do not satisfy the particular circumstances requirement of the first sentence
o Time and place, nature of alleged misrepresentations, etc.
 o Can’t have notice of fraud without knowing what the lie was. They have to say
what you lied about.
o Primary Purpose of Rule 9(b) is to afford litigant accused of fraud “fair notice of
the claim and the factual ground upon which it is based.
 Stratford v. Zurich (2002): dentist who is claiming an insurance policy a
couple days after he reinstated his insurance for not paying – insurance is
alleging fraud but failed to state how/why

Amendment of Pleadings:
 In general, you have 21 days to amend a pleading before having to get permission from
the court or other party to amend 15(a): it is the usual practice to allow the defendant to
amend even after the 21 days – it is likely the court will let them anyway
o FRCP 15(c): Relation back of amendments
● This can be allowed when the amendment asserts a claim or defense that
arose out of the same conduct, transaction, or occurrence, in the
original pleading. AS JUSTICE SO REQUIRES – magic language
● Can use the same evidence to prove as you would in the original pleading
● Arose from the same conduct, same set of facts.
○ EX: Moore v. Baker (15(c)(2): P wanted leave to amend a claim
to add that she was suing her Doctor. She originally sued for
violating informed consent. The court said she could not amend,
because the facts for proving negligence would be different than
those stated in her original complaint.
○ EX: Beek v. Aquaslide ‘N’ Dive Corp. (Rule 15(a)(2): Defendant
wanted leave to amend a pleading when it was found that they did
not manufacture the slide P was injured on. D was allowed to
amend because a) there was not prejudice to P if they were to
amend, and b) D would be prejudiced in being liable for an injury
not caused by their slide.
■ To change the party or change the naming of the party sued, MUST
● 1) Arise from same conduct, transaction or occurrence AND
● 2) be within the period provided by Rule (4)(m) AND
○ 1) Receive such notice of the action that it will not be prejudiced in
defending on its merits AND
○ 2) knew or should’ve known that the action would have been
brought against it, but for a mistake concerning the proper party’s
identity
● Leave to amend is to be freely granted unless:
1. It would cause undue delay
2. Was made in bad faith
3. Is a dilatory move
4. There has been repeated failure to cure a defect
5. It would cause undue prejudice against the opposing party
6. Would be futile.
Sanctions: can only be filed against the attorney, and not for bad behavior
 Rule 11: Provides sanctions for written & signed materials (aka the pleading, etc).
o Gives attorneys 21 days to fix once they are aware of their mistake
o Given really only when it is needed to discourage bad practices or if the mistake
is done in bad faith
 EX: Walker v Northwest Corp: P claimed diversity citizenship when not
all of the D were from different states. D said no um all parties must be
from different states in order to claim that and P said eh that was too much
trouble to look into. D filed for sanctions and court said yeah that’s
reasonable. P got rule 11’d.
■ EX: BARBIE  Christian V Mattel: P sued D for copyright
infringement when barbie released a college doll similar to P. D claimed
the lawsuit was frivolous because had P done any research, they would
have known that the copyright to the doll was created before P released
their doll. P’s attorney was acting cray in the depositions and so D moved
for sanctions. Court said no we can’t do sanctions against non-written stuff
but we can over the pleading because wtf.
● Test for determining if sanctions are warranted under Rule 11:
1) does complaint have adequate, objective legal or factual basis AND
2) did attorney conduct a reasonable and competent inquiry prior to filing the
complaint?
■ DOES NOT apply to conduct unrelated to pleadings, motions, or filings
(like how you treat your client or the discovery process conduct)

Responding to the Complaint

o You have 21 days to answer the complaint or 60 days if you waive service
o Defendant has three choices when they get notice of case: 1) default, 2) pre-answer
motions, or 3) answer
1) Default; Default Judgment Rule 55: failing to respond to the complaint and
having a judgment entered against them.
● Default judgment occurs when the defendant fails to file a response or
fails to appear.
○ If a d knows fully that a court has no personal jurisdiction over
them, they can fail to appear.
○ people default because they don’t want to spend money on the
case/lawyer
■ According to Watts: broke people default. Why sue
someone who is broke??
○ people also default because they know they are going to lose and
they do not want to spend money/time to go to court (in collections
actions)
2) Pre-Answer Motion (12(b) Motions):
○ Can answer with a 12(b) motion
■ FRCP 12(b)-motions that can be waived if not brought up
early: 2-5
 ■ Every defense to a claim for relief in a any pleading (these are
Rule 12 motions to get the case dismissed)
1. Lack of subject matter jury - can never be waived
2. Lack of PJ- will be waived if not brought in proper time
3. Improper venue- will be waived if not brought in proper
time
4. Insufficient process- (contents of the process)-will be
waived if not brought in proper time
5. Insufficient service of process (type of service)-will be
waived if not brought in proper time
6. Failure to state a claim- can be raised at any time during the
trial – but cannot be raised on appeal
7. Failure to join a party under rule 19- can be raised up to
time of trial – cannot be raised on appeal
3) Answer:

a) A defendant can answer the complaint and can include procedural as well
as substantive defense
b) Must respond to the substantive allegations by either admitting or denying
- Rule 8(b)
c) Can state counterclaims if they're available (Rule 8(c) has a non-
exhaustive list)
FRCP 15 allows both parties to amend their pleadings.
(1) 15 © relation back- allows meaning pleadings where
amendment arose out of conduct, transaction, or occurrence
in original pleading
(a) May be sought where the applicable SOL has run
(b) Must share a “common nucleus of operative fact”

Discovery

 Discovery is the process by which evidence is collected for litigation.

o The Federal Rules of Civil Procedure recognize several discovery methods and
provide guidance for how each is to occur.
 Kinds of discovery:
 Oral Depositions -- FRCP 30
 Written Depositions -- FRCP 32
 Interrogatories -- FRCP 33
 Requests for Production -- FRCP 34
 Physical/Mental Exams -- FRCP 35 – must have court approval –
the court will only approve it when it’s part of the claim
 Request for Admissions -- FRCP 36
 Spoilation of evidence:
o Spoilation of evidence is prohibited and could result in sanctions if done in bad
faith
  EX: Zubulake v SBS Warburg LLP: D told their employees not to
destroy info over P – many of them did. They did not keep up with the
effort to make sure evidence was not deleted.

 Initial Required Disclosures – Rule 26:

o Information that must be given to the other side without a discovery request:
 Information that supports your claim or defense--stuff you plan to use.
 Names, contact information, description/location of documents,
calculations of alleged damages.
o Also, there is a duty to supplement.

 Scope of Discovery: Must be relevant and proportional

o FRCP 26(b)(1) Scope in General. Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
 EX: Favale v. Roman Catholic Diocese of Bridgeport(sexual nun): P
was alleging a nun of D’s employment of sexual harassment. P was
seeking to discover information about her prior anger management stuff
and mental health. Court held that it was not in the scope of her discovery
because those things had no correlation to sexual harassment.
 EX: Cerrato v Nutribullet: P had her bullet explode in her face and
caused hot liquid to burn her. P wanted all of the accidents that had ever
occurred handed over. Court limited it to 5 years within the same bullet
model. Rule 28(b)(1) covers this case
 EX: Wagoner v. Lewis Gale Medical Center: P alleged that he was fired
from the hospital for being dyslexic. He wanted to see all data concerning
him or being dyslexic from D. D said the cost of producing would be like
$45k and way more expensive than the results of the case – court said I
don’t care it’s not our fault you have a shitty document preservation
system. Rule 26 (b)(2)(B) covers this case

 Protective orders can be granted to protect a party from annoyance, undue expense,
etc. Rule 26(c)
o EX: Rengifo v. Erevos Enterprises, Inc: P sued his former employer to recover
unpaid overtime wages under the federal Fair Labor Standards Act and a New
York state labor law. He sought a protective order under FRCP 26(c) barring
discovery related to his immigration status, social security number, and work
status in the U.S. Court said yes we will protect u hun because they don’t want
companies doing shitty things to undocumented peeps and make them feel like
they can’t bring suits.
  Privileged Material – Rule 26(b)
o There are several privileges that result in information being protected from
discovery:
 Attorney-client
 Doctor-patient
 Spousal
 Clergy-Parishioner
 Psychological counselor-client
o In order to use one of these, the party claiming the privilege has to assert it!
 Privilege can be waived either expressly or by an action inconsistent with
claiming the privilege.
 EX: Hickman v Taylor: Tugboat sank and 5/9 crew members drowned.
Drowned crew member’s fams sued the company. P filed 39
interrogatories (number was okay because it was before the FRCP)
directed at the tugboat’s owners. They answered all of them besides #38,
which asked if statements were taken from the crews of the J.M. Taylor or
other vessels in connection with the towing of the car float and the sinking
of the tugboat. The tugboat owners didn't answer this on the grounds that
the request called for privileged matter obtained in preparation for
litigation. The court held that the material that was sought was protected
and not subject to discovery because it was attorney work product.
o The work product doctrine (Rule 26(b)(3)) may be invoked by attorneys to protect
information prepared by attorneys in anticipation of litigation (memoranda,
statements, mental impressions, etc.)
 Important for the preservation of the adversarial system.
 Adverse parties have a heavy burden if they are requesting this
information.
 There are exceptions to the privileges
 Ex: may be able to obtain in certain circumstances where a relevant party
has died (still may be denied).
EXPERTS
 Rule 26(b)(4): Expert testimony is not protected by the work product doctrine
o 26(a)(2): Must disclose identity of expert witnesses.
 Some experts must provide a written witness report.
 List of what the report must contain in FRCP Rule 26(a)(2)(B).
 Thompson v Haskell (case where girl was depressed after losing
job – other party wanted her DR’s eval info): Was not protected
because that DR was the only one to evaluate her while she was
depresso
 Chiquita International (Banana boat case) BANANAS HAVE
NO BONES: Non-tesiftying experts are immune from discovery
o 26(b)(4)(D)(ii): have to show exceptional circumstances
under which it is impractical for the part to obtain facts or
opinions on the same subject by other means.
Default Judgments:
 Rule 55(a): If a defendant has been properly served with a complaint and then fails to
respond, the plaintiff can go to the court clerk with proof of the defendants delinquency
and then the clerk will enter the defendants default
 Rule 55(b): A party may have a judgement entered against the defaulted party either by
Clerk(1) or Court (2)
o EX: Peralta case (Where the P was not given reasonable notice of his suit):
Could not enter default judgment because there was no due process

Voluntary and Involuntary dismissal:

 Provides for involuntary dismissal “if the plaintiff fails to prosecute”: Rule 41(b)
 Rule 41(a):
o (a)(1)(A)(i) - Allows a Plaintiff to dismiss any time before the Defendant answers
o (a)(1)(A)(ii) – Permits the Plaintiff to dismiss a suit at any time if all the parties
agree
o Rule 41(a)(2) – authorizes a voluntary dismissal after the defendant answers only
by permission of the court
 Caesars palace case (sexual harassment settlement case): you can
request info from a settled case just not about the settlement

Arbitration:
 Parties can enter into contracts to settle lawsuits
 Can employee mediators to help them reach such settlements
 Arbitrator decides a dispute after hearing from both sides (resembles adjudication)
  Binding arbitration results in an award that is essentially final and not subject to further
challenge
 Arbitration permits the parties to determine what substantive rules apply
o Ex. They can have the arbitrator not refer to rules of contracts but instead to
traditional rules that have developed around particular commercial relationship
o Parties can dictate what procedural rules apply
o More private than normal adjudication
o Can avoid appeal in arbitration
 Federal Arbitration Act – favors arbitration agreements. Mandates they are enforced.
o Ferguson case (arbitration agreement that only benefited one side):
Unconscionability Elements to render a contract unenforceable: Procedural and
Substantive
o In order to potentially get around an arbitration agreement, you must allege
something that would invalidate a regular contract. (EPIC CASE)

Summary Judgment – Rule 56

 REMEMBER THAT SUMMARY JUDGMENTS ARE VIEWED IN THE LIGHT
MOST FAVORABLE TO THE NON-MOVING PARTY. SUMMARY JUDGMENT
IS WHETHER THERE IS A GENUINE DISPUTE OF MATERIAL FACT. KNOW
CELOTEX CASE.
o FOR THE MIDTERM MAKE SURE TO GIVE A COUNTERARGUMENT TO
WHY THE COURT WOULD/WOULD NOT GRANT SUMMARY
JUDGMENT – RULE 56
 THE MOVANT MUST DEMOSTRATE THERE IS NO DISPUTE OF
MATERIAL FACT. ONCE THEY SHOW THAT, THE EVIDENCE TO
SHOW THERE IS A DISPIUTE SHIFTS TO THE NONMOVING
PARTY
 CELOTEX
 o Judge recusal: Caperton case – judges must recuse themselves if there is such a risk of
actual bias or prejudgment that the practice must be forbidden
o Judge recusal is in 28 USC not FRCP

 Everyone has a right to a jury trial under the 7th amendment

 1983 claim: Discrimination from an employer

 Jurors are selected through a process called voir dire – cannot be struck for
discriminatory reasons – Rule 51

o Have three peremptory challenges

 Monfore v Phillips: Amending pretrial order – cannot do unless it is to prevent manifest

injustice
o Amending to a different defense that would require different facts cannot just be
amended because it is prejudice to the other party

JMOL – Rule 50
o No reasonable jury could find for the nonmoving party
 Rule 50 a is moved for during trial
 Rule 50 b is moved after the jury has reached a verdict.
 If you do not move for a 50 a motion, you cannot move for a 50
b motion – ALWAYS FILE BOTH 50(A) AND 50(B)
 PA Railroad v Chamberlain (railroad crash case) – there was no
dispute of the facts because you cannot rely on an inference that
had other explanations against hard evidence
 Unitherm Food (case where ConAgra did not file for 50(b) or
new trial): if a party fails to file post-verdict motion under 50(b),
an appellate court doesn’t have the power to enter judgment
contrary to the one it had permitted to stand – IT IS NOT ERROR
FOR THE COURT TO DENY A 50(A) MOTION
 Lind v Schenley (lind was promised a raise and she never did –
trial judge granted new trial because he would have voted
different): New trials should only be granted when the verdict was
contrary of the weight of the evidence, but judges cannot just grant
a new trial because they would have gave the verdict differently

Motion for New Trial – Rule 59

 Often times the motion for a new trial is moved for at the same time as 50(b)
o More often granted because there was a mistake in the trial, not because the
verdict was against the great weight of the evidence
 Peterson v Wilson (Sued for damages because he lost his job at TSU):
Jurors made comments to the court and was basically told the jury did not
follow instructions from judge. Judge granted new trail WRONGLY – you
cannot grant new trial because of comments made after the verdict
 UNLESS its because of outside influence improperly brought to the jury.
FRE 606 – can also talk about 7th amendment right to jury

Appeals
 Only a party can appeal
 Cannot appeal if you settle
 Can only appeal from a final judgments
o Final judgment – nothing left for trial court to do
o Exceptions are called interlocutory appeal
 Can only appeal adverse judgments
o Can’t appeal rulings made in your favor
 Error is not reversible if harmless
o Even if the judgment is thought it be wrong it won’t be reversed unless the
appellate court finds it was harmful to the party appealing
 Sandbagging: the winner of a decision at the trial court can refine their argument if it
goes up on appeal, the loser of that decision at trial court is stuck with that argument they
made at the trial court level.
o Aetna Casualty (case about breach of contract and fraud contract with
construction company): court found for breach of K but not fraud – Aetna
wanted to appeal the fraud judgment. Only a losing party can appeal unless a
party claims they are entitled to more relief (here they said OK because a fraud
verdict would allow Aetna to collect the money on their breach of K because of
bankruptcy) Normally you cannot appeal a claim that was denied usually if you
won on a different claim in the same suit unless it would give you more relief.
o Liberty Mutual Insurance (liberty is appealing the summary judgement
regarding liability for being mean to women in their insurance policies): When
a court issues an order as to just liability, but damages still remain to be
determined, the decision is not appealable because it is not a final judgment.
 Rule 54(b) – says that a party in a multi-claim case can appeal an order
on one or more claims when the judge says that there is no just reason
to delay the appeal
 28 USC 1292 – only final decisions are appealable
 42 USC 1983 – employee discrimination
o Lauro Lines v Chasseer (Pirates took over cruise ship and killed the man –
form selection clause on the back of the ticket): A court order denying a motion
to dismiss on the grounds that a contractual forum selection clause denying
jurisdiction is not a final judgment
 Collateral order doctrine: must conclusively determine the disputed
question, resolve important issue that is separate from the merits, and be
effectively unreviewable on appeal from final judgment
o Anderson v Bessemer City (not hired lady because of her sex): COA said that
the trial courts judgement was erroneous and reversed the judgment – SC said
that either verdict could be found for and therefore the TC judgement was not
erroneous
 The court of appeals give great deference to trial court’s decisions on
issues of facts and will only reverse if clearly erroneous
 o Fact question = clearly erroneous
o Legal question = look at it with fresh eyes (de novo)
o Discretionary questions = abuse of discretion

 Van Zee (man wanted to join the army and signed release form for his juvenile
records): TC granted 12(b)(6) when they should have done SJ. Appellate courts
will only reverse a decision if the error the trial court made was harmful to the
party

o Interlocutory Appeals: 28 USC 1292

o Up to the judge if they want to allow an interlocutory appeals – has to
involve a controlling question of law that would effect the outcome of the
issue litigated

Claim Preclusion – Res Judicata

o Rule 54(b): judgement on multiple claims involving multiple parties
o DEFINED: Bars an entire second action--occurs when the case concerns the same claim
as a prior action, is litigated by the same parties to the prior action, and when the first
action resulted in a final judgment on the merits.

o ELEMENTS
o Same claim;
o Same parties;
o Final judgment on the merits on the first action (on the merits = applying law to
the facts of the case)
o Goals: efficiency and preventing inconsistency.
o Claim preclusion is an affirmative defense per Rule 8(c).
o Magic language: common core of operative facts, same transaction or occurrence.
o Freer v City of Vandalia (case where the guys cars got towed and then he sued
the city for due process – court said his case was barred under preclusion):
RULE: use whatever claim preclusion laws of where the FIRST suit was
brought.
o Semtek v Lockheed (case where the party brought the case to CA court which
was dismissed for SoL, then brought in Maryland where it was not expired – was
dismissed for CP but USSC said they should have not): Takeaway: when the case
is in federal court due to diversity jurisdiction, use the claim preclusion law of
the state where the federal court physically sits where the first suit was filed.
 On the Merits: includes some judgments that hadn't been decided the
claims substantive merits.
 Dismissal without prejudice = dismissal without barring the defendant
from returning to the same court, with the same claim
 Doesn't necessarily prevent them from bringing the claim in a
different court.
Exceptions to Claim Preclusion:
1. Agreement by the parties to be bound by a prior action
2. Pre-existing “substantive legal relationships” (such as preceding and succeeding owner
for property)
3. Adequate representation by someone with the same interests who was a party (trustees,
guardians, and other fiduciaries)
4. A party “assuming control” over prior litigation
5. A party who loses an individual suit then sues again, this time by an agent who was not a
party in the litigation; and
6. Special statutory schemes such as bankruptcy and probate proceedings, provided those
proceedings comport with due process

Virtual representation = man 2’s interests were represented by man 1’s claims.
→SCOTUS says this isn’t a thing
Each party should have their own chance to litigate the claim.
Claim preclusion only applies when it is the SAME parties.
o Taylor v Strugell (airplane information case where the guys friend filed the
same suit and it was originally barred because of VR): SCOTUS said this did
not matter

Counter Claims
Rule 13(a): Compulsory counterclaim
 Watts hit by Roseon on 19th, Watts sues Rosen, if Rosen wants to sue Watts on this
issue, he MUST bring it as a counterclaim.
 Must bring all claims that arise from the same transaction or occurrence at
once.
o For efficiency.
 EXCEPTIONS 13(a)(2)

Final Judgement on the Merits

1. Full Jury Trial → Yes, it is on the merits

2. JMOL → Yes, it is on the merits.
3. Summary Judgment → Yes, it is on the merits.
4. Granted 12(b)(6) → Yes, it is on the merits.
5. Granted 12(b)(2) “PJ” → No, not on the merits (you can refile).
6. Dismissal for Failure to Prosecute → Yes, on the merits. (frcp 41(b))
o Gargallo v Merill Lynch (case where court gave judgment on an issue then
barred it for CP even though it was exclusively under federal jurisdiction):
Whether a prior state court judgement by a court lacking subject matter
jurisdiction bars subsequent claims on claim preclusion grounds? No.
 Federal securities law is within the exclusive jurisdiction of federal
courts, not Ohio state courts, so Ohio courts would not give a judgment
rendered by an Ohio court on this issue preclusive effect.

Issue Preclusion – Collateral Estoppel

1. Same issue of law or fact;
2. Is actually litigated and determined;
3. A valid and final judgment;
4. The determination of the issue was essential to the judgement;
5. The party burdened with issue preclusion (the party it’s being used against) had an
adequate opportunity and incentive to litigate the issue in the prior proceeding.

1. Doesn’t have to be same parties!

1. Can only be used against someone who was a party in suit 1

o Illinois Central Railroad v Parks: FACTS: Bertha and Jessie Parks injured in
car crash with train. Jessie driving the car. Bertha sued for personal injuries and
Jessie sued for loss of services and consortium. Claimed defendant's negligence
caused the accident and the defendants claimed Jessie was contributorily
negligent. Jury found in Bertha's favor. Found Railroad negligent. Jessie then
sued for his injuries. Made same claim about defendant being negligent and
defendants claimed he was contributorily negligent again. Both moved for SJ.
o Court denied Railroad's motion because negligence had already been
adjudicated. Said Railroad couldn't deny their negligence because the
lower court's judgment in Bertha's favor already decided they were
negligent.
 Previous judgment against Jessie wasn't a judgment regarding his
contributory negligence ‚Üí Jessie's claim not precluded.
o Parkland Hoisery v Shore: Shore owned shares in Parklane; merger went bad.
He filed suit against Parklane claiming that Parklane violated federal securities
laws. While this suit was pending, SEC commissioner also sued Parklane.
 Bench trial in SEC case resulted in judgment that Parklane did
violate federal securities laws.
 Shore wanted to use this judgment in his case.
o Non-mutual offensive issue preclusion.
 Allowed if fair (see previous slide).
 Here, SCOTUS said the non-mutual offensive collateral estoppel
was okay because Shore couldn't have easily joined the SEC case
and Parklane had every incentive/opportunity to defend itself in
the SEC case.

 Non-mutual Defensive issue preclusion – using against P and D was not a party to
litigation 1
o Defensive = party using issue preclusion defendant in suit 2.
o Issue preclusion is being used by a DEFENDANT who wasn’t a party to suit 1.
o Allowed as long as plaintiff had a fair chance to litigate issue 1.
 Courts are likely to not grant this – they want the P to be able to get their
opportunity to go to court
 Non-mutual Offensive issue preclusion – using against D and P was not a party to
litigation 1
 o Issue preclusion is being used by PLAINTIFF in suit 2 who was not a party to suit
1.
o Trend now in federal court is to allow it if it is fair (Parklane).
 Defendant had a full and fair chance to litigate case 1;
 Defendant could foresee multiple suits (ensures they had incentive to
litigate to the best of their ability);
 Plaintiff couldn’t easily have joined in case 1;
 No inconsistent judgments (multiple lawsuits about the issue where ruling
on the issue was different).
 Parklane case: Shore owned shares in Parklane; merger went
bad. He filed suit against Parklane claiming that Parklane
violated federal securities laws. While this suit was pending, SEC
commissioner also sued Parklane.
 Bench trial in SEC case resulted in judgment that Parklane
did violate federal securities laws.
 Shore wanted to use this judgment in his case.
 Non-mutual offensive issue preclusion.
 Allowed if fair (see previous slide).
 Here, SCOTUS said the non-mutual offensive collateral
estoppel was okay because Shore couldn't have easily
joined the SEC case and Parklane had every
incentive/opportunity to defend itself in the SEC case.

 Full Faith and Credit Clause:

o Other states have to give full faith to judgments made by other states
  VL v EL case: Same sex couple; one partner was biological parent of the
child. They wanted the other partner to adopt. They adopted while living
in Georgia. Ended their relationship while living in Alabama. The non-
biological parent wanted visitation with the child and the Alabama
supreme court claimed the Alabama court didn't have SMJ.
 Alabama S. Ct. also stated that Georgia didn't have SMJ to grant
the SMJ.
 Did not have to apply the Full Faith & Credit Clause because the
original judgment wasn't valid.

 The Doctrine of Independent Action:

o The doctrine of independent action could be used to circumvent the time limits
and establish jurisdiction, but an independent action can be sustained only to
prevent a “grave miscarriage of justice.”
 US v Beggerly: Beggerly sued the United States after there had been a
settlement for a piece of land that allegedly had been sold to a private
party prior to the Louisiana Purchase.
 Pretty much that the U.S. had sold their property.
 Beggerly motioned to the court 12 years after the settlement.
 HOLDING: there is a STRICT 1-year limit to submit a motion to set aside
a judgment.
 It was the party's fault, for not performing an adequate job to find
evidence that would have helped their case.
 Applied FRCP 60.
 A case can only be reopened unless the action is independent from
the case itself.

Will be tested on joinder

Permissive Joinder of Parties:

o Permissive (not required) joinder of parties → Rule 20

 Multiple plaintiffs or defendants → Rule 20(a)
 Co-plaintiffs → Rule 20(a)(1)
 MUST arise out of SAME TRANSACTION OR OCCURRENCE.
 Co-Defendants → Rule 20(a)(2)
o We allow joinder of PARTIES when:
 Common question of law; AND
 Involves a common transaction or occurrence
 Transaction means all logically related events.

Required Joinder of Parties:

o Necessary and Indispensable Parties → Rule 19

 o If the case is pending but the plaintiff left someone out.
o The court can also pull an absent party and pull them into the suit.

1. Is the absent party necessary?

a. Yes if meets tests in 19(a)(1)
i. Note--joint tortfeasors are NOT necessary.
2. Is joinder of the absent party feasible?
a. Need both:
i. Personal jurisdiction over them AND
ii. Their addition will not mess up diversity jurisdiction.

o Rule 19(b) → if joinder is NOT feasible, the court can either dismiss or proceed
without absent party.
o If the case is dismissed, the absent party is “indispensable” under rule 12(b)(7).

Supplemental Jurisdiction:

 Gets a claim in FEDERAL court that would otherwise be in STATE court.

 State court claim must come from same case or controversy.

o This means the same real world event.

28 U.S.C. §1367 Supplemental Jurisdiction

1. In any civil action in which the dist courts have original jurisdiction they will also have
jurisdiction over all other claims which are so related to the original claim in that they make
up the same case or controversy
1.1. Federal Question - other claims that are same of the case or controversy as the
federal question claim are allowed in under this provision - can bring in state law
claims that would otherwise not be allowed if it meets this criteria.
1.1.1. Federal Q is only looking at the plaintiff’s complaint – not anticipating the
defendant’s answer
2. Diversity (U.S.C. 1332)
2.1. Can’t bring claims over plaintiffs made parties by FRCP 14, 19, 20, or 24 if would be
inconsistent with the jurisdictional requirements of 1332
2.2. Need COMPLETE diversity → No plaintiff can be the citizen of the same state as ANY
defendant
2.3. Also need to meet AOC – over $75,000
3. May decline supplemental jurisdiction

 Cordero v Voltaire: allowing claims outside would clutter proceedings, hearing

counterclaims outside could prevent from bringing of claims in first place
(employees suing employer for no overtime and employer was like well ya you
stole)
 Mosley v General Motors: (discrimination – 10 claims that wanted to join
together) Can join claims that require the same evidence, just has to arise out of
the same T or O and be similar in facts

Counterclaims and Crossclaims:

 Counterclaim is a claim you bring as a defendant against a plaintiff--Rule 13

 Crossclaims if there are two or more defendants, defendants can asserts claims against
each other
PERMISSIVE COUNTERCLAIMS

 Not arising out of the same transaction/occurrence

o Can bring this claim OR bring it as a whole different suit.

o **you still need subject matter jurisdiction

 Can use diversity, federal question, or supplemental jurisdiction.

COMPULSORY COUNTERCLAIM

 Rule 13(a)(1)
 Filed with the answer
 Counterclaim that arises out of the same translation/occurrence as plaintiff’s original
claim.
 IF YOU DO NOT ASSERT IT IN THE ANSWER IT IS WAIVED.
 **still need subject matter jurisdiction.

Cross Claims:

 Rule 13(g)
 Against a 3rd party.
 Same transaction or occurrence.
 Never compulsory.

o Can bring it, but you don’t have to.

 If plaintiff used rule 20 to join parties the two other parties can sue each other
with a cross claim.
 Plaintiffs are the only ones who can join parties into the suit unless D are doing
impleader
o Price v CTB: Chicken farmer and chicken houses case.
 Third Party Complaint → Asserting that if I am liable this other
party also has to pay (not saying I didn’t do it, they did).
 Impleader Rule 14(a) → a defendant can assert a claim against
anyone who is not a party to the original suit if that their party’s
liability is in some way dependant upon the outcome of the
original case.
 Must be asserting that the defendant is trying to pass all or part of
the liability onto that third party.
 Basically, just someone saying that if they are found liable,
someone else is responsible for paying all or part of the damages;
they claim 3rd party needs to pay them back.
 o Temple v. Synthes Corp:
 Compulsory joinder
 Back surgery where screw and plate was put in and
eventually broke in the person’s back.
 Plaintiff filed suit against manufacturer in federal court and filed
against Doctor and Hospital in state court and did not attempt to
join the two suits.
 Manufacturer filed motion to dismiss for failure to join the
necessary parties under FRCP 19 → District court ordered
manufacturer to join the doctor and the hospital as defendants.
 Manufacturer failed to join and case was dismissed.
 It would be prejudicial to the defendants to have separate lawsuits
because they would likely blame each other (doctor and hospital
claiming the device was defective and the manufacturer claiming
the doctor/hospital were negligent.
 Temple argued that requiring joint-tortfeasors to join under Rule
19(b) was incorrect and thus, the case shouldn’t have been
dismissed.
 RULE: SCOTUS said that joint-tortfeasors are NOT
required to join (they’re permissive parties), so they don’t
all have to be named as a defendant on a single lawsuit.

Intervention/Interpleader: Rule 24:

 Someone else wants in the case.

o Can join as a plaintiff OR defendant.
 Intervention of right → Rule 24(a)(2) right to intervene if you have an interest that is
not adequately represented.
 Permissive Intervention → Rule 24(b) your claim/defense have at least one common
question of law.

 Natural Resources Defense Council v. USNRC: American Mining Congress

and Kerr-McGee Nuclear appeal after being denied permission to intervene.
o Whether the denial of intervention was correct.
 No; should’ve allowed intervention.
o Whether the chance of impairment is sufficient to fulfill the
requirement of rule 24(a)(2).
 Yes.
o Whether the trial court was correct in its conclusion that United
Nuclear would adequately represent Kerr-McGee and the American
Mining Congress.
 No; should be allowed to intervene.
o Reasoning: Since although United’s interest was SIMILAR to those
of Kerr-McGee and AMC, it could be less important to them since
United already had a license granted.
  Martin v Wilks: African Americans filed lawsuit against the local government
claiming the hiring practices and promotion of firefighters violated Title VII
of the Civil Rights Act. Parties agreed to make more efforts to hire and
promote African American firefighters. Group of white firefighters moved to
intervene but were untimely. Another group of white firefighters, including
Wilks filed a separate lawsuit alleging that the new system discriminated
against white firefighters. Plaintiffs from the other suit intervened to defend
the new system. Martin moved to dismiss.
o SCOTUS says: people who were not a party to the original suit are
not precluded from challenging the legality of the actions taken
because of the judgment in the first case.
 In order to enforce a judgment against someone you have to
bring them in as a party to the lawsuit.

Personal Jurisdiction

Jurisdiction: WILL BE ON THE EXAM

 You need both Personal Jurisdiction (PJ) and Subject Matter Jurisdiction (SMJ)
o PJ is NEVER an issue for the plaintiff because by filing the lawsuit the plaintiff
consents to PJ.
o **Note that you can consent to PJ but NOT SMJ.
o Need PROPER notice.
 Full faith and credit clause says that every state needs to recognize and enforce the
judgments of other states.
 Personal jurisdiction is the state’s ability to assert power over a defendant.
o Based in the constitution.
 General PJ: any lawsuit or cause of action arising anywhere can be brought where:
o A person’s domicile (physical presence & intent to stay) is.
o A corporation has their:
 Principal place of business (where the big guys in suits are)
 Place of incorporation
 Is sufficiently “at home” (this one is rare)(EX: Perkins case: where the
war was happening and they moved to the US but it wasn’t their PPOB)
 Specific PJ: contacts with the forum state (where the suit was filed) render it fair for the
defendant to be bound by the court’s judgment regarding a specific claim.
Subject Matter Jurisdiction is the power of the courts to decide certain kinds of cases.
 Pennoyer v Neff: Not good law anymore.
o All you need to know: Personal jurisdiction is required by the Due
Process Clause of the Constitution.
 Court can have PJ if:
 Voluntary appearance.
 Service of process in the state where the suit was filed (this is
called tag jurisdiction). Cannot do in bad faith
 o Quasi In rem jurisdiction--when the court claims PJ over someone
who has land within the forum state (dispute doesn't have to do w/the
land--no good
o In rem jurisdiction--when the suit involves the land in the forum state
(because they would have sufficient minimum contacts).
 International Shoe: FACTS: International Shoe company had multiple
salesmen in WA but weren’t paying the State’s unemployment tax. Lawsuit
was filed in WA by the state who personally served one of the salesmen in WA
and sent notice via registered mail to Int. Shoe’s principal place of business
(in Missouri).
o What does due process require when brining a person or company to
court in a state where they are not present (domiciled)?
o For NON-RESIDENTS to be given due process they must have
minimum contacts with the forum state such that the maintenance of
the suit does not offend traditional notions of fair play and
substantial justice.
o Here, systematic and continuous contacts in the forum state allowed
the state to enforce the company’s obligations.
 McGee v. International Insurance: D purposely avail themselves and had
sufficient contact
 Hanson v. Deckla: Defendant reached out to the forum state AND the suit
concerns that transaction
 Property itself is only one contact with a state and is not on its own enough to
establish PJ → the property must be related to the claim in order to use it to
gain PJ.
o Quasi in rem jurisdiction is not valid; property in a forum state is only
one contact--might not be sufficient.
 World Wide Volkswagen v Woodson:
 Stream of commerce is not enough to establish PJ
o AKA taking it over to a different state or giving
to 1 state that sells to other states
 FACTS: Roberts bought a new Audi in NY and left for
AZ. On their way to AZ, while they were in Oklahoma,
they were in a car accident where the car caught on
fire. Brought products liability suit in Oklahoma.
Defendant WWVW argued that OK didn’t have PJ over
them.
o WWVW had no contacts, ties, or relations with
Oklahoma, so Oklahoma doesn’t have PJ over
them.
o Must have contacts relating to the specific
claim being brought.
 There must be PURPOSEFUL availment
to the forum state.
 TAKEAWAY:
 PJ is NOT established by “foreseeability” alone.
  Foreseeability can be a factor.
 When a company puts a product in the “stream of
commerce” it doesn’t subject a company to PJ
everywhere the product is found.

o J. McIntyre Machinery v. Nicastro

o FACTS: Nicastro sued McIntyre (foreign company) for
product defect claim regarding a metal machine. Independent
distributor sold McIntyre machines in the US and McIntyre
attended conferences to advertise. There were 4 total McIntyre
machines in New Jersey.
 Can a court get PJ over a corporation that at no time
marketed or shipped goods to their jurisdiction?
 Placing a good in the “stream of commerce”
isn't enough → need “purposeful availment”
 Mere foreseeability isn't sufficient.
 McIntyre didn’t purposefully avail themselves
to NJ courts because they utilized a different
company to sell and market in the US.
 Purposeful availment to the United States in
general is not enough--must purposefully avail
to the specific state.
o Possible for a foreign corporation to be subject to PJ in the US
but not in any state in the US.

****PURPOSEFUL AVAILMENT as that “of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws.

Abdouch v. Lopez: website tests:

 Zippo Sliding Scale Test → internet contacts

o Determines if a website could be grounds for PJ based on the interactivity and

commercial nature of the site.

 Passive information posted and made available → interactive sites where a

user can exchange information with the host computer → defendant
clearly does business over the internet.

 Not interactive would be something like Microsoft where you buy

something and download it right then and there.

 Calder Effects Test -> intentional torts

o Defendant’s tortious actions can serve as a source of PJ where the plaintiff can
show:
  Defendant committed an intentional tort

 Uniquely or expressly aimed at the forum state

 Caused harm, the burden of which was suffered in the forum state and
defendant knew would likely be suffered in the forum state.

General Personal Jurisdiction

o Goodyear Dunlop Tires Operations v. Brown:

o FACTS: bus accident in Paris killed two boys from North Carolina. The defective
tires on the bus were manufactured in Turkey by a subsidiary of Goodyear.
o Does a state court have jurisdiction over foreign subsidiaries of a US parent
corporation in a forum state that is unrelated to activities of a defendant
subsidiary?
 No specific, PJ, can we get PJ another way?
o Can have general PJ where a corporation is “domiciled”
 Principal place of business
 Place of incorporation (can be incorporated in more than one state)
 Sufficiently “at home” (Perkins case)
 Continuous and systematic activities with the forum state to render
it “at home”
 This one is rare! (Like Perkins was the only time it’s happened)

o Bristol-Myers Squibb v. Superior Court

o FACTS: 600 plaintiffs (only 86 of which were from CA) sued Plavix makers
(BMS) for products liability claims. BMS was incorporated in DE and
headquartered in NY with substantial operations in NY and NJ. They have some
research labs in CA with hundreds of workers.
o Can non-residents of a forum state attach their claims to the residents of a forum,
when the defendant is from a separate forum and the claims did not arise from
that forum?
 Plaintiffs can either elect to sue where there is specific PJ over the claim
(where the incident took place) or general PJ over the company.
 Must determine where the relevant acts occurred.
 For a state court to assert specific personal jurisdiction, there must be
an affiliation between the forum state and the specific claim at issue. It
is not sufficient for the defendant to have other contacts with the forum
state; the contacts must be related to the claim at issue.
o Burnham v. Superior Court: Tag jurisdicition: court can excersie jurisdiction over a
defendant for any claim in which the defendant is served in the forum state: has to be in
good faith
o Carnival Cruise Lines case
o FACTS: Plaintiff sued for injury that occurred on the deck of Carnival Cruise
ship while it was in international waters. The tickets for the cruise had a forum
 selection clause setting Florida as the forum for any litigation. Plaintiff wanted to
sue in Washington.
o Forum selection clause will be upheld if they are not designed to discourage
litigation; must be in good faith and FAIR.
o Fairness factors:
 Was notice given?
 Was it an adhesion contract?
 Companies interest in convenient litigation.
 Cost saving measure for both litigation and cruise tickets.
 No indication of bad faith on the part of the company.
o HELD: Clause could be enforced b/c Carnival had principle place of business in
Florida and most cruises depart from Florida.
o Ford Motor case:
o FACTS: Car crashes in different states: Montana and Minnesota. Ford argued
there was no PJ.
 Plaintiffs argue for Specific PJ.
o → Different than BMS → The out of state plaintiffs had no relationship to CA.
 SCOTUS reasoned: Ford marketed and sold its products in MT and MN
→ thus, the suits related to Ford’s contact with the states → Specific PJ
proper.
 “Arise out of or relate to the defendant’s contact with the forum” → Is
the claim a result of the defendants contact with the forum state?
o Due Process requires some causal link between the defendant’s activities and a
plaintiff’s injury → Here, the marketing to those states counted; the Court noted
that Ford had a “substantial presence” in both states and that it did not matter
that those contacts did not cause the plaintiffs’ injuries.
 Ford, sold, marketed, advertised, and serviced Ford vehicles in Montana,
they enjoyed the benefits of the forum state. (Purposeful Availment!!)
o * * Alito noted in his concurrence that he thought the majority unnecessarily
expanded the concept of what it means to have a claim that arises out of contacts
with a forum state.
o Mallory Case:
o Norfolk railroad case where old employee sued in Pennsylvania for asbestos stuff
o TAKEAWAY: If there is a state law that requires a corporation to “register” to
do business, that will establish the minimum contacts with the forum state, thus
giving rise to Personal Jurisdiction over them.
o Mullane case:
o FACTS: Only notice given of lawsuit was in the newspaper because NY Statute
held publication in newspaper for notice as sufficient → Mullane files suit
alleging proper notice was not given under due process clause.
 Issue: What sort of notice is required under due process amendment?
 → Notice must be reasonably calculated to inform
interested parties of an action and give them an opportunity to
present their objections.
 → You have to notify someone as if you actually want them to be
notified.
Service of process
 Notice must be reasonably calculated to inform interested parties of an
action and give them an opportunity to present their obligations

Rule 4:
(1) Summons must be served with a copy of complaint. Plaintiff is responsible for
having the summons and complaint served within the time allowed by Rule 4(m) and
must furnish the necessary copies to the person who makes service.

(2) Any person who is at least 18 years old and not a party my serve a summons and
complaint.

(3) At plaintiff’s request, the court may order that service be made by a US marshall
or deputy marshall or by a person specially appointed by the court. The court must so
order if the plaintiff is authorized to proceed in forma pauperis under 29 USC 1915 or as
seamn under 28 USC 1916.

Rule 4(d): Requesting a waiver – On Colleen’s final as MC Q

(1) An individual, corp., or association that is subject to service has a duty to avoid unnecessary
expenses for serving the summons. The plaintiff may notify such a defendant that an action has
been commenced and request that the defendant waive service of a summons. The notice and
request must:

(A) be in writing and addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under 4(h), to an officer, managing or

general agent, or any other agent authorized by appointment or by law to receive
service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint and two copies of the waiver and
prepaid means for returning the form;

(D) inform the defendant of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant reasonable time of at least 30 days (or at least 60 days if sent

outside any judicial district of the US) to return the waiver; and
 (G) be sent by first class mail or other reliable means.

If you fail to waive or don’t have a good reason, you may have to pay the service fee and or
attorneys fees

Long Arm Statutes

o Long arm statute: allows courts to restrict PJ further than Due Process requires.
o Cannot extend long arm statute further than the constitution allows – but
can be more restrictive

Venue

o Venue = what federal DISTRICT will the case be heard in?

o Venue is not proper if none of the events giving rise to the plaintiff’s claim occurred
within the district.
o Comes from statutes → 1391(b) (Greyhound bus case where watts was mad)
o → use 1391(b)(1) and (2) BEFORE (3)
o → (b)(1) a judicial district in which any defendant resides, if all defendants reside
in the state where the district is located.
o → (b)(2) a judicial district where a substantial part of the events or omissions
giving rise to the claim occurred.
o → (b)(3) if there is no district where an action can otherwise be brought,
any judicial district where a defendant is subject to PJ. (LAST RESORT)

Transferring Venue

o 1404(a) → Use when current venue is proper, but there’s another that would be more
convenient.
o → Court can transfer based on convenience of parties and witnesses, and in the
interest of justice.
o → Courts have a lot of discretion in granting transfer under 1404(a).

 1406(a) → Used when the original venue is improper.

o → Courts can transfer or dismiss.
o
 Piper Aircraft case:
 FACTS: case originally filed in CA state court regarding plane
crash in Scotland. Everyone who died was from Scotland.
o Cali → Cali Federal → Pennsylvania (PPB) → Forum
Non Conveniens
 Forum Non Conveniens allows for cases to be heard in forums
that are better suited to litigate the issue.
  RULE: We do not take into consideration that the change of
substantive law in case could impact the outcome when deciding if
venue is correct. (unfavorable to plaintiff does NOT matter)
 We DO consider:
o → Private interest factors: convenience (witnesses)
o → Public interest factors: administrative burden
o → This is a matter of court discretion.
o ** Alternative forum still just have PJ and SMJ.
o Forum non conveniens is the proper way to enforce a
forum selection clause
 Seeking to have a case heard in a state court:
forum non conveniens dismissal.
 Seeking to have case heard in another federal
court: 1404(a) transfer of venue.
Removal

 When a case is filed in state court, but would otherwise satisfy the subject matter
jurisdiction of a federal court, the DEFENDANT can choose to remove the case to
federal court.
o → The case must be subject to federal subject matter jurisdiction under either
federal question or under diversity jurisdiction.
o Doesn’t require permission, defendant just does it.
 §1441: Removal based on civil actions.
 §1446: Procedure for removal of civil actions. – consent is required by all defendants
 §1447: Procedure after removal.
 → Defendant can remove if case could have been brought in federal court due to federal
question or diversity jurisdiction.
o → EXCEPTION: In state defendant rule → In a DIVERSITY case if any
defendant is a citizen of the forum cannot remove.
 → Must remove within 30 days of service of process.
 → All defendants who have been served with process must join in the removal.
 → 30 days for removal starts over with each newly served defendant.
 → Remove only to federal district court that geographically embraces the state court
where the case was filed.

Remand:
You can remand a case in federal court to state court if SMJ does not exist – Rule 1467
Subject Matter Jurisdiction

 Don’t need to worry about it if it’s in state court

 SMJ is the ability of a court to hear the matter that is being litigated → it’s about the
court, not the defendant like PJ.
 If a court notices they do not have SMJ, they must raise the issue on their own even if a
party doesn’t object (sua sponte) and dismiss if they find lack of SMJ.
 SMJ is NOT waivable.
 Federal courts have limited jurisdiction → ex: congress has forbidden federal courts from
hearing some cases such as state tax collection cases.
 State courts have general jurisdiction → they can hear most cases → there are also some
cases that HAVE to be heard by federal courts like bankruptcy, admiralty, etc.
 There are two ways to get a case in federal court:
o → Federal Question Jurisdiction
o → Diversity Jurisdiction

Federal Question – can add it into the essay but it’s not likely to be a direct q

 USC 1331 → the district court shall have original jurisdiction for all civil actions arising
under the Constitution, laws, or treaties of the United States.
 Citizenship of parties is irrelevant and no amount in controversy requirement.
 Well-pleaded complaint rule
o → Federal question is necessary for a well-pleaded complaint.
o To determine if it’s a federal question: is the plaintiff enforcing a federal right?
 If the federal court grants motion to dismiss on Rule 12(b)(1) (lack of SMJ), ruling that
the claim does not arise out of federal law, the plaintiff CAN refile in state court.
 o Cannot anticipate the defense’s argument to be able to bring to federal court – has
to be in the complaint (EX: case where lifetime pass was revoked)

Diversity Jurisdiction – WILL BE ON EXAM – do a table with scratch paper so you don’t
get confused

 USC 1332 → When a claim would otherwise be a state matter, but the parties are from
different territories and the amount in controversy is over $75,000.
 Complete Diversity = the requirement that ALL of the plaintiffs and ALL of the
defendants be from different territories.
o → Ex: Martin is a citizen of MT and sues Todd, a citizen of ND, for a contract
dispute in US Dist. Ct. of MT alleging $200,000 in damages → this is OKAY
because it meets complete diversity.
o → Ex: Martin is a citizen of MT and Jasper is a citizen of ND and the sue Todd
who is a citizen of ND together and allege $200,000 in damages → this is NOT
OKAY because no complete diversity.

 Domicile test:
 → For an individual: physical presence and intent to stay.
 → For a corporation: where the principal place of business is → Nerve center (place
where officers direct, control, and coordinate the corporation’s activities).
o EX: Case where guy lived in france but was a U.S. citizen – you have to be
domiciled in a state to establish diversity
 Hertz Corp. v. Friend
o FACTS: Respondents were California citizens who sued Petitioner, Hertz, in
California state court seeking damages for alleged violations of California’s
wage and hour laws (state law claim). Hertz moved to remove the suit to federal
court alleging diversity jurisdiction (that the respondents were citizens of
different states) and that Hertz’s leadership and domestic subsidies were located
at their corporate office in New Jersey and that executive and administrative
functions were carried out in Oklahoma City. California court found that Hertz
was a citizen of California.
o Principal place of business is where the officers direct, control, and coordinate
the corporation’s activities. – Hot shots in the suits test
o Here, Hertz’s nerve center was NJ, not CA.
o RULE: “Nerve Center Test” where are the corporation’s marching orders
coming from is where it is domiciled.
o → In practice, the nerve center is often where the headquarters is.

Amount in Controversy

 Must be over $75,000

 Not constitutionally required.
 Whatever amount claim by plaintiff will stand unless it is clear to a legal certainty that
they cannot recover that much.
o → Rare for it not to stand.
  Aggregation → Where we are are combining to reach $75,000
o Allowed if a single plaintiff seeks to aggregate two or more of their own claims
against a single defendant OR
o If two or more plaintiffs unite to enforce a single right in which they have a
common and undivided interest.
o Permissive counterclaim (not same transaction or occurrence)--needs to meet its
own jurisdictional requirements

Supplemental Jurisdiction

 In Re American Mortgage
o FACTS: Plaintiff alleged that she executed a mortgage with Ameriquest.
Ameriquest had another company appraise the home they planned to buy.
Plaintiff disagreed with the value that was assigned to the house. Plaintiff argued
that because of inflation the amount of the loan she could qualify for increased
which increased Ameriquest’s potential profits. Plaintiff alleged a claim under
the federal Truth in Lending Act and state law fraud claim.
o Supplemental jurisdiction appropriate here because it’s all about the appraisal.
o WILL BE ON FINAL: 1367(c): The district court can decline to exercise
supplemental jurisdiction over a claim if:
 (1) The claim raises a novel or complex issue of state law;
 (2) The claim substantially predominates over the claim or claims over
which the district court has original jurisdiction;
 (3) the district court has dismissed all claims over which it has original
jurisdiction,
 (4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction
 As long as federal jurisdiction is proper at the time of judgment it’s okay (Caterpillar
case)
 Courts have held that where the defendant files a third-party claim against a party who is
not diverse from the original plaintiff, the court will not lose subject-matter jurisdiction
for lack of complete diversity. (1367b)

Erie Doctrine

 Tompkins (Penn) got smacked by a train owned by Erie (NY), he fell and got his arm
severed. Tompkins sued in NY Fed court. Court used Swift, to state that there is general
federal law and they could disregard state law. WRONG. Court overruled Swift, When
Fed court exercises diversity, must respect and enforce state law.
o In actions that are in federal court due to DIVERSITY JURISDICTION, the
federal court must apply the STATE law where the federal court is
PHYSICALLY sitting.
 Reasoning is to prevent forum shopping and inequitable administration of the laws.
 Erie overruled Swift v Tyson
o THERE IS NO FEDERAL COMMON LAW
 o Federal courts sitting in diversity must apply the choice of law principles of
the forum state
 Guaranty Trust Co . York
o If the law is substantive -> apply state law
o If the law is procedural -> apply federal law
o Outcome determinative test: if federal court is hearing the case bcuz of
diversity jurisdiction, must apply state law that would change the outcome of
the case
 Byrd v Blue Ridge
o Requirement that the employee determination be made by the judge appears
to one of form and mode and not rule intended to be "bound up" with state
law.
 Rule -- When a rule is "bound up" in state law, state law applies.
 A rule that is "bound up" in state law and is outcome
determinative, then state law applies; if not, federal law
applies.
o Byrd Balancing Test (Balancing interest test)
 Is the state law "bound up" in preserving state interest of party rights
and obligations?
 YES, then use STATE law.
 Is there a federal countervailing interest that outweighs state interest?
 Yes, then use FEDERAL law.
 Hanna v. Plumer
o RULE--Federal courts hearing state claims are to apply federal procedural
law and state substantive law.
 The goal is to reduce forum shopping
 Basically, if the case is in federal court bcuz of diversity jurisdiction, use state law of
the forum state unless there is a conflicting procedural federal law
o Use the outcome determinative test and the balancing test