I.

Personal Jurisdiction…..1-3
II. Notice and Opportunity to be Heard…..3-4
III. Subject Matter Jurisdiction…..5-6
a. Diversity (1332) …..5-6
b. Federal Question (1331) …..5-6
c. Supplemental Jurisdiction (1367) …..6-7
d. Removal (1441) …..6-7
IV. Erie Doctrine…..7-8
a. Hanna Analysis…..7-8
b. Erie Analysis…..7-8
V. Venue…..9-10
a. 1404 Transfer…..9
b. 1406 Transfer…..9-10
c. Forum Non Conveniens…..10
VI. Joinder of Claims and Parties…..11-15
a. Claims by Plaintiff (Rule 18) …..11
b. Counter Claims (Rule 13) …..11-12
i. Compulsory…..11
ii. Permissive…..11-12
c. Joinder of Parties
i. Necessary and Indispensable (Rule 19) …..12-13
ii. Permissive Party Joinder (Rule 20) …..12-13
d. Indemnity (Rule 14) …..13-14
e. Class Actions…14
VII. Pleadings…..15-17
a. The Complaint (Rule 8) …..15
i. Motion to Dismiss (Rule 12[b][6]) …..15-16
ii. Twombly and Iqbal…..15-16
iii. Rule 11 Sanctions…..16
b. Amending the Pleadings (Rule 15) …..17
c. Discovery…..17
d. Summary Judgment (Rule 56)…..18
VIII. Claim and Issue Preclusion…18-21

I. PERSONAL JURISDICTION CHECKLIST

A. Long Arm Statute: Does the state’s long arm statute confer PJ over this defendant?
a. Does the statute authorize PJ to the full extent of the constitution?
b. Does the statute specify in which types of situations PJ would be satis]ied
i. Determine if the facts qualify for PJ
B. Constitutional Test: Does exercising PJ over this Defendant comport with the Due Process
Clause of the Fourteenth Amendment?
a. Traditional Bases for PJ:
i. In-state service of process? If yes, PJ proper (Burnham v. Superior Court)
ii. Voluntary Appearance? If Yes, PJ proper.
b. Exception to Traditional Bases
i. Consent? If defendant consented to jurisdiction in the state in a forum selection
clause like in Carnival Cruise v. Shute? If yes, PJ proper.
1
c. International Shoe Test: To have jurisdiction over the D, the D must have such minimum
contacts with the forum so that jurisdiction does not offend traditional notions of fair
play and substantial justice.
Are the contacts continuous and systematic or isolated and sporadic? Also, are the
contacts related to the litigation or unrelated?
i. Continuous and Related: PJ is appropriate
ii. Continuous and Unrelated: PJ might be appropriate under General Jurisdiction;
are the corporate headquarters within the forum state or is the business
incorporated there? Compare with the following cases
1. Perkins v. Benguet Consol. Mining Co., GJ appropriate because the forum was
corporate headquarters and sole place of operation during WWII
2. Goodyear Dunlop Tires Operations S.A. v. Brown where GJ is appropriate
when the defendant feels essentially “at home” in the forum state
3. Helicopteros v. Hall: purchases and sales not enough to exercise GJ
iii. Sporadic and Related: PJ might be appropriate under SJ analysis below
iv. Sporadic and Unrelated: No PJ
d. SPECIFIC JURISDICTION ANALYSIS: Sporadic and related contacts
i. Minimum Contacts? (International Shoe) must be purposeful and foreseeable
to give rise to litigation.
1. PURPOSEFUL AVAILMENT: Did the defendant purposely avail itself to the
forum and receive bene]its and protection from the state? (Quid Pro Quo)
(Hanson v. Denckla).
a. STREAM OF COMMERCE SPLIT
i. Asahi
1. Brennan theory: Putting your product into the
stream of commerce and having an awareness that it
might end up in the forum is enough to establish PJ
2. O’Connor Theory: Stream of Commerce plus
Purposeful Availment. D must have targeted the
forum in some way (designing the product for the
forum state/advertising in the forum state/having a
sales agent in forum state, etc.).
ii. McIntyre
1. Kennedy theory (4 justices): Apply the O’Connor
theory! There was no intent to serve NJ
2. Ginsberg theory (3 justices): Apply the Brennan
theory, if the company targeted the U.S. it can be sued
anywhere in the US where the product caused injury.
It is a single $25,000 machine!
2. FORESEEABILITY: D needs to be able to reasonably anticipate being sued
in the forum (NOT that the chattel will end up in the forum—WorldWide
Volkswagen, (car driven to Oklahoma not foreseeable to D)
a. Contractual Contact: Does D have a contractual relationship with
the forum resident? Details of the contract will determine whether
there is PJ in forum state. Consider place of negotiation, execution,
and performance of the contract to consider whether this is enough
to ]ind Purposeful Availment (PJ found in both Burger King/McGee)

2
 i. McGee v. Intl’ Life Insurance Co. where Insurance Co.
reached out to the resident plaintiff and solicited the
business
ii. Fairness and Reasonable Factors (dissent in Hanson v. Denckla, ]ive factors
considered in Asahi)
1. Burden on the Defendant
a. Would it seriously inconvenience the defendant to litigate in the
forum? (Note: Defendant has the burden of showing that the forum
is gravely inconvenient—small franchise needing to travel to FL from
MI not enough of a burden; BurgerKing case)
2. State’s Interest: Does the state have a strong interest in resolving the
dispute?
a. Consider if state’s laws are at stake, plaintiff from forum state, or
forum state the only place to get relief
3. Plaintiff’s Interests: Does the plaintiff have a strong interest in obtaining
relief in the forum state?
a. Ex: P from forum state? P injured and can’t travel? Witness and
evidence located in the forum state?
4. Systematic Ef]iciency: Would jurisdiction promote the interstate judicial
system’s interest in ef]iciency in resolving con]licts?
a. Are witnesses and evidence located there? Does it make sense to try
the case in the forum?
5. Furtherance of Social Policies: promoting social policies
a. Are the substantive policy interests of forum at stake?
C. In Rem and Quasi in Rem
1. Must satisfy an attachment statute.
2. Relief is limited to value of the property
3. D must still satisfy International Shoe Test (Shaffer)
a. Will only apply when P is attaching property D owns in the state in order to try to gain
PJ over D (QIR), because if D is sued over title of property in forum state, PJ will
always be satis]ied (systematic and related)

II. NOTICE AND OPPORTUNITY TO BE HEARD CHECKLIST

A. NOTICE:
a. CONSTITUTIONAL REQUIREMENTS:
i. Was the notice “reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to
present their objections”? (MULLANE v. CENTRAL HANOVER BANK & TRUST Co.)
1. Reasonably likely to inform the defendant?
2. Best notice under the circumstances?
a. Notice by publication can not be used instead of personal notice
when personal notice can be reasonably carried out.
ii. POLICY: We have a strong federal policy that everyone should get their day in
court and have their views presented and considered. It would unfair to deprive
defendants (or plaintiffs, in class actions) of their day in court because of a lack of
notice.

3
 1. Jurisdiction by necessity? Argument to put aside the notice issue.
a. P can argue, as the P did in Mullane, that there must be notice
because if jurisdiction will be granted anywhere, it is going to be here.
If the court doesn’t create this new standard for notice the idea of a
mutual fund will have to die. This is the only way for P to seek
redress.
b. We don’t want P to lose her right to redress because of the issue
of notice, on the other hand we want D to be notiXied and have a
chance to defend his interests.
B. OPPORTUNITY TO BE HEARD
a. CONSTITUTIONAL REQUIREMENTS: Weigh the factors set forth in Mathews v. Elridge
that were later used to decide Connecticut v. Doehr
i. THE AMOUNT OF HARM DONE TO DEFENDANT (is D’s interest very high):
1. What is the nature of the property that will be affected by the
deprivation?
a. POLICY: We want D’s right to his property to be protected under the
due process clause, especially if it is of vital importance!
i. Important: House, wages, freedom (imprisonment like
Hamdi)
ii. Maybe not important: vacant land, a television?
2. Is the P’s interest in attachment unusually high?
i. Usually will not be (exigent circumstances? See below)

ii. QUALITY OF THE PROCEDURE ON THE TABLE

1. Risk of erroneous deprivation: Is there a strong risk that the defendant
will be wrongfully deprived of his property?
a. POLICY: We want to impose measures to ensure to the best of the
court’s ability that D will not be wrongfully deprived of his property.
The following three mechanisms are ways to help ensure this.
i. Bond: Bond requirements help ensure that P’s claim is
meritorious and not frivolous.
1. The higher the bond requirement, the more likely that
plaintiff’s claim is plausible and that D won’t be
wrongfully deprived of his property.
ii. Showing: P has to demonstrate that he is likely to win the
case
iii. Judge: is the decision made by a judge or a non-judicial court
of]icial (like a clerk)?
1. When judge involved, more likely that D won’t be
wrongfully deprived
iii.GOVERNMENT’S INTEREST
1. Function involved
2. Fiscal and administrative burdens
a. Post-attachment vs. Pre-attachment hearings
i. The court in Connecticut v. Doehr said that they would have a
proceeding right after the seizure of the Doehr’s home
ii. An attachment hearing can take place just as easily before the
attachment takes place!
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 b. Emergency Situation? Temporary injunction sought because no time
to have a pre-attachment hearing?

III. SUBJECT MATTER JURISDICTION CHECKLIST

A. Is there jurisdiction on the basis of DIVERSITY (28 U.S.C. § 1332)?
a. Complete Diversity: All Ps must be citizens of different states than all of the D’s (cannot
have parties from the same state on both sides of the v.)
i. If D is person, citizenship is where D is domiciled (you only can have 1)
ii. If D is a corp., citizenship is where D is incorporated AND where D’s principal
place of business is (headquarters/nerve center, not head manufacturing center)
b. Amount in Controversy: Does the claim EXCEED $75,000?
i. Rules of Aggregation:
a) A sues B for $50K on one claim and $50K on another unrelated claim - OK
b) A sues B and C for $90K on a joint claim - OK
c) A sues B for $50K on one claim and sues C for $50K on diff. claim - NOT OK
d) A sues B for $50K, C also sues B for $50K - NOT OK
e) A sues C for $200K and B for $50K - C OK, B NOT OK
f) A sues C for $200K and X joins as co-plaintiff for $40K - OK under
supplemental jurisdiction

B. Is there FEDERAL QUESTION jurisdiction (28 U.S.C. § 1331)?

Must Satisfy BOTH Constitutional and Statutory Hoop
a. CONSTITUTIONAL HOOP: Article III, Section 2 of the constitution requires that the case
“arise under” federal law
i. The Osborn case gives an incredibly broad reading to this language in the
Constitution. As long as federal law is an ingredient of the case it can be heard
in federal court
ii. The makers of the constitution left it up to Congress to decide if they want to
narrow this phrase
b. STATUTORY HOOP: 28 U.S.C. 1331 uses the same language “arising under Constitution,
laws, or treaties of the U.S.” but it is interpreted differently.
i. Is there a Well Pleaded Complaint? (Mottley)
1. Did P plead the federal claim from the get-go?
2. D’s federal responses are ignored.
3. Look at the Federal law. Ask yourself, is the P enforcing a federal right
under that law?
ii. Does Federal law explicitly provide the remedy? (T.B. Harms and Holmes test)
1. IMPLIED RIGHTS OF ACTION
a. P can also argue that federal law creates the cause of action and
implies the remedy in “invisible ink” (Bivens, Merrell Dow)
i. Is there legislative history that seems to suggest that
Congress “forgot” to include this
ii. How important is it that there be a private party right to sue?
iii. The strength of the federal interest
iv. Do we need the federal court’s expertise to decide this issue?

5
 iii. Alternative test: Is there a federal interest of incredible magnitude at stake?
(Grable)
1. Everyone thought the test was killed in Merrell Dow, but it was actually just
limited in that case.
2. Grable allowed the case in through the alternative test, but it revolved
around an issue of federal taxes, this may be be a special instance and
should only be applied to egregious cases like taxes which will have global
ramiAications.
a. Historically, the test worked in cases like Smith, Moore, and
Shoshone.
b. We aren’t sure how it will be applied.
3. Gunn v. Minton tried to apply this test because it involved a patent
infringement which is in the exclusive jurisdiction of the federal court. IT
FAILED BECAUSE…
a. The ruling was conXined to those two parties on a patent case.
b. It was really a claim of malpractice against the lawyer and not of
patent infringement. Malpractice is a state claim (tort law).
c. POLICY: Lurking behind Subject matter jurisdiction is the policy that state courts are
often a perfectly good place to litigate; while we want federal courts to be able to hear
cases they have expertise in, state courts also have the ability to apply federal law and
solve federal questions. Both federal and state courts lead up the same path to SCOTUS so
chance for fed review regardless. Even within exclusive jurisdiction (for ex. patent
infringement claims), the federal courts are still bound by the restrictions of Mottley, etc.

C. Is there SUPPLEMENTAL JURISDICTION (28 U.S.C. § 1367)?

a. CONSTITUTIONAL HOOP: Article III Section 2 of the Constitution says one can “bring a
case into federal court that arises under federal law”
i. How do we de]ine “a case?” We have to look to the statutory requirements.
b. Section 1367(a): Do the claims share a common nucleus of operative fact? (UNITED
MINE WORKERS V. GIBBS)
i. Did the claims arise from the same set of facts? If so, it is functional to try the cases
together. Overlapping witnesses, similar discovery, etc.
c. Section 1367(b): Takes away supplemental jurisdiction over PLAINTIFF’S CLAIMS
against persons made parties under Rules 14, 19, 20 or 24, when plaintiff got into federal
court on DIVERSITY JURISDICTION (Owen v. Kroger codi]ied here as good law)
i. We don’t want plaintiff’s to take advantage of the federal court system to end-run
Congressional statutes such as diversity (Owen v. Kroger)
1. POLICY: We tend to feel bad for Ds because they are forced to litigate
against their will, therefore D doesn’t have to worry about end-running
complete diversity if he needs to bring in an insurance company to indemnify
him. D can use this vehicle but not P because D didn’t choose the forum!
d. Section 1367(c): Allows court to take away Supp J. if they so desire…this mimics the
discretionary test that was articulated in UMW v. Gibbs.
i. Is there a strong state claim that is riding the coattails of a weak federal claim? (as
in UMW v. Gibbs)
ii. Does the claim raise novel or complex issues of state law
iii.Has the district court dismissed all claims with federal question jurisdiction
iv. Would hearing the cases together confuse the jury?
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D. Can the case be REMOVED TO THE FEDERAL COURT (28 U.S.C. § 1441)?
Can only remove from state court to federal court
i. Removal is dependent on D showing that P could have gone to Federal Court in
the ]irst instance under either federal question or diversity.
ii. D in an diversity action cannot remove a state case that is brought in their home
state
iii.Also analyze if any additional claims by P can be brought in under supplemental
jurisdiction – D cannot dissect a single claim out of several claims brought in state
court and just have 1 of them removed to Federal. EITHER ALL CAN BE
REMOVED OR NONE CAN BE REMOVED
b. POLICY: The goal of removal is to bring the defendant to parity with plaintiff, to equalize
the playing chips. P had the right to bring this case in federal court but didn’t. (Can argue
that the court should adopt a functional rather than formal approach – look at Shamrock
below)
c. Shamrock: the right of removal is limited to the formal defendant (plaintiff can not
exercise removal in response to a counterclaim, where P is functionally in the position of
D)
i. This is a formal rather than functional approach.

IV. ERIE DOCTRINE CHECKLIST

A. Does it seem like there is a clash here? Point it out.
B. Diversity action? (If federal question à apply federal law, no Erie analysis)
1. The Rules of Decision Act requires that federal court apply state substantive law in
diversity actions
C. Presence of an FRCP or federal statute? (If yes, proceed with Hanna analysis below)
1. HANNA ANALYSIS:
i. Is there a federal directive on point (statute or FRCP) when it is read in its plain
and ordinary meaning? (Stewart v. Ricoh) (***In Shady Grove, Ginsburg used
Byrd Balancing test to determine no clash between FRCP and state law***)
a. Can the FRCP or statute be read as not applying to the issue before the
court? No real con]lict with the state rule (if this is the case, continue with
Erie analysis below)
b. If the FRCP or statute directly con]licts with the state rule, continue
through the next steps.
ii. If it’s a Congressional statute, it is to be used as long as it is Constitutional.
The test is to see if it is Constitutional is to see if it is “rationally capable of
being classiXied as procedural”
a. In order to determine this, ask if procedural aims have been satisRied!!!!
(Cutting down on court clogging? Cut down on stale evidence?)
b. An S of L for ex., which is always going to be substantive for an Erie
analysis, is always “arguably procedural” under a Hanna analysis.
iii.If it’s an FRCP (Big “R” rule), there are two schools of thought. The Xirst
(Warren theory) is that the same test for Congressional Statutes should
apply. The second (Harlan theory) is that the FRCPs were passed under the
Rules Enabling Act (REA) and under section (b) of the REA, an FRCP cannot

7
 abridge, enlarge, or modify any substantive right. If it does, then it is not
Constitutional, even if it is arguably procedural.
a. Under the second theory, Harlan argues that a rule can seem procedural in
the abstract but it may have substantive effects when applying it to this
particular lawsuit.
b. Despite 2nd theory, an FRCP has NEVER been held in violation of section (b)
of the REA

D. Is the clash between a state law and a federal practice? (If yes, proceed with Erie analysis below)
1. ERIE ANALYSIS
i. Is the federal practice (small “r” rule) substantive or procedural?
a. Can the issue be considered procedural?
1) Does it regulate every day behavior, or is it something that only
exists once there is litigation? If the small “r” rule regulates every
day behavior, it is invalid and state law is to be applied.
b. Is the state law bundled up with the substantive rights and obligations of
citizens?
1) We want to preserve state’s autonomy to create and regulate its own
laws according to Article I of the Constitution
ii. ModiXied Outcome Determinative Test in light of the twin aims of Erie
a. Forum shopping encouraged? Would this cause a party to sue in the federal
forum as opposed to state court?
1) POLICY: We don’t want people to take advantage of the federal
forum as they did in the Taxi Cab Co. case.
b. Promote inequitable administration of the laws? Would applying this
practice create a big difference between the law of the state and that of the
federal courts?
1) POLICY: We don’t want a P who can sue in fed. court under diversity
to be privileged in a way that someone who has to sue in state court
isn’t.
iii. Byrd Balancing Test: Weigh the state’s interest in having its law applied with the
interest of the federal court to apply its own policy. Federal law can win if federal
systemic interest in its practice.
a. State substantive policy furthered? Is the state law part of a substantive
legal reform?
1) Ex: Byrd itself, state practice of judge verdict vs. fed. practice of jury
verdict. Fed has strong interest in jury verdicts while state interest
in judge verdict is minimal. Federal practice applied
2) Ex: Gasperini state standard of “deviates materially” standard
rather than “shocks the conscious” standard of fed court. State’s use
of this practice is not some arbitrary rule but they purposefully
made it as such. State law applied
b. Opposing Federal Interest? Does the federal policy have a substantive
interest that outweighs the policy behind the state rule
1) The federal courts want there to be a unique federal character of
litigating in the federal court.

8
V. VENUE CHECKLIST
A. Is Venue proper?
a. Waiver
i. Forum selection clause? If the clause is valid and enforceable under the relevant
law, it typically prevents a party from challenging venue that is proper under the
clause
b. General Venue Statute: 28 U.S.C. 1391
B. A Federal Court sitting in diversity should follow the choice of law rule of the state in which the
court is sitting. See Klaxon

C. TRANSFER OF VENUE (§ 1404, 1406)

a. 1404 Transfer
i. Is there Personal Jurisdiction over D and Proper Venue without waiver in the
Transferee court?
1. According to 1404: A district court may transfer any civil action to another
district (within the same system) “where it might have been brought”
a. HOFFMAN V. BLASKI: we interpret this by saying this is the forum
where P could’ve contemplated suing, not where D could have
consented to.
i. POLICY: We want to keep the chips even between Ps and Ds
so that neither party has the tactical upper hand.
Interpreting the statute according to wherever D could have
consented would’ve given D the upper hand.
2. It can also be transferred to any district where “all the parties have
consented”
a. POLICY: Consent of both parties is just another way to ensure that
we are equalizing the strategic chips between the parties.
ii. Convenience Factors: Would a transfer be appropriate for convenience of the
witnesses and parties?
1. Is it the center of gravity?
2. Gilbert test: Public and Private factors:
a. PRIVATE FACTORS
i. Location of events giving rise to case
ii. Attendance of witnesses and impleaded parties
iii.Cost of discovery; this depends on location of accident,
relevant witnesses, documentary evidence
iv. Enforceability of a judgment if one is obtained
b. PUBLIC FACTORS

9
 i. Whether the dispute involves local people or events, or are
we forcing a jury or judge to decide a case they aren’t
connected to?
ii. Whether the dispute is likely to be decided under the local
law of the forum or will the court have to apply foreign law?
iii.Van Dusen Rule: In 1404 transfer situations, the transferee court applies the
transferor court’s laws to preserve P’s tactical advantage to choose the forum
while making it more convenient for D to litigate
b. 1406 Transfer
i. We use a 1406 transfer when the transferor court is an improper venue.
ii. 1406 can apply even if the transferor court lacks PJ
The court has two options
1. Can transfer for the interest of justice
a. Must transfer to a court with proper personal jurisdiction and
venue
b. The Van Dusen rule doesn’t apply because P didn’t tag D fairly and
squarely according to the rules.
2. Dismiss the case
a. The case may be dismissed and re]iled again; if this is the case the
statute of limitations may have expired and P might lose her claim
by needing to re]ile it all over again.
b. POLICY: in the interest of justice, we can transfer the case to a
venue in which it may have been brought. We don’t want P to lose
her case.
c. Forum Non Conveniens: Judge made small “r” rule; This results in a dismissal
of the case
i. Personal jurisdiction and venue may be satis]ied in the U.S., but the center of
gravity (the better place to litigate) is in a foreign country or another state if
case brought in state court
ii. Adequate Alternate Forum: Forum non conveniens is only proper when there is
an adequate forum elsewhere that P can bring her claim. (Gulf Oil Corp v. Gilbert)
1. Unfavorable law: In Piper Aircraft v. Reyno the court held that the
prospect that P will face unfavorable law if she is forced to litigate in the
other forum will not bar the application of Forum Non Conveniens
2. Bar to Relief: Is there some other bar to P’s relief, such as that the courts in
the alternative forum won’t allow her to seek relief at all?
a. If so, the exercise of FNC may not be a proper alternative
3. POLICY: We want P to have a route to remedy, on the other hand we don’t
want to inconvenience the D, witnesses, the jury, and the court to bend over
backwards and litigate in a forum that is inconvenient!!!
a. The court is more likely not to dismiss P’s case in Van Dusen
because the plaintiff there was a U.S. citizen whereas in Piper the
citizens were Scottish!
i. We want to limit the explosion of litigation in this
country, especially because the U.S. is an attractive place to
litigate for foreign plaintiffs. SCOTUS pushes back against this
in Piper Aircraft
iii. Gilbert’s Public and Private Interests:
10
 1. PRIVATE FACTORS
a. Location of events giving rise to case
b. Attendance of witnesses and impleaded parties
c. Cost of discovery; this depends on location of accident, relevant
witnesses, documentary evidence
d. Enforceability of a judgment if one is obtained
2. PUBLIC FACTORS
a. Whether the dispute involves local people or events, or are we
forcing a jury or judge to decide a case they aren’t connected to?
b. Whether the dispute is likely to be decided under the local law of
the forum or will the court have to apply foreign law?

VI. JOINDER OF CLAIMS AND PARTIES (Rules 18, 13, 19, 20, and 23)
A. JOINDER OF CLAIMS
a. Plaintiff’s claims (Rule 18) (Rule 42)
i. Under Rule 18, there are no limitations to the number of claims P can join
against D
1. Each claim has to be assessed under Subject Matter Jurisdiction (§
1331 or § 1332) or Supplemental Jurisdiction (§ 1367) if SMJ is
unavailable
ii. DISCRETIONARY: Judge can use and D can ask for judge to apply Rule 42,
where judge can order separate trials on P’s multiple claims
b. Counter Claims by D (Rule 13)
i. Compulsory Counter Claims (Rule 13[a]):
1. Defendant must state a counter claim against P’s claim if it meets 13(a)
(1)(a) and 13(a)(1)(b), and either SMJ or Supp. J:
a. 13(a)(1)(A): D’s counter claim arose from the same
transaction or occurrence (T/O) that is the subject matter of
the P’s initial claim against him;
i. T/O is de]ined by some courts as a logical relationship
between the two claims
ii. T/O can also be de]ined as a functional relationship
between the two claims.
1. POLICY: Judicial ef]iciency; we would want these
two claims to be tried together
b. 13(a)(1)(B): does not require adding another party over whom
the court cannot acquire jurisdiction.
c. Does the claim meet the test for Supplemental jurisdiction
(1367)
i. 1367(a): The required test of “common nucleus of
operative fact” in 1367 will always be met by the “same
transaction or occurrence” test required for compulsory
counter claim.
ii. 1367(b): This only takes jurisdiction away on claims that
are in diversity actions brought by Plaintiffs! This is a
claim brought by the D.
11
 2. If D doesn’t raise the compulsory counter claim here, he will lose this
claim forever because of res judicata and ]inality.
3.
ii. Permissive Counter Claims (Rule 13[b])
1. A party may state a counterclaim against an opposing party
2. Does not need to arise from the same T/O; can be totally unrelated
3. Needs to meet the test for SMJ, and if not, Supplemental Jurisdiction
(T/O test is stricter than Gibbs test)
a. 1367(a): Does it arise from a common nucleus of operative fact
b. 1367(b): Doesn’t take jurisdiction away in a diversity case
because this claim is not brought by a plaintiff
c. Crossclaims against a Coparty (Rule 13[g])
i. Must arise from the same T/O that is the subject of the underlying action or of
a counterclaim against them.
1. (POLICY: this is to limit separate lawsuits over totally separate things
and we don’t want to turn P into a bystander in a her own litigation –
LASA)
2. A cross claim may include a claim that the coparty is or may be liable to
the crossclaimant for all or part of a claim asserted in the action against
the crossclaimant.
a. This looks like INDEMNITY: As we learn from LASA, its easier to
bring a crossclaim for indemniRication than it is to indemnify a
new party via Rule 14
ii. Also must be analyzed for SMJ, and if none, then Supp. J (like Compulsory
counter-claims, cross-claims by D will always have Supp J. since the cross-
claim must arise from the same T/O and that always satis]ies 1367(a)
B. JOINDER OF PARTIES
a. Permissive Party Joinder: Rule 20
i. Rule 20 applies to both joinder of multiple Ps or Ds
ii. Rule 20(a)(1) and 20(a)(2)
1. The claims must arise from the same transaction or occurrence (t/o)
2. The claims must raise at least one common question of law and fact
(M.K. v. Tenet)
iii.POLICY:
1. Ps are able to band together and pool their resources when they
otherwise wouldn’t have the resources to sue by themselves.
2. Judicial ef]iciency; avoiding multiple litigations when its functional and
efRicient to try them together.
3. COUNTER POLICY: We have to weigh this against the detriment to P
who is supposed to “steer the ship” and now becomes a bystander in her
own action! (think of LASA)
b. Compulsory Party Joinder: Rule 19
i. This is where we are FORCED to bring in absentee party into the action
because they are NECESSARY
1. Question 1: Is the absentee necessary? She is necessary if she meets
ANY of the following three tests

12
 a. RULE 19(a)(1)(A): Without absentee, the court cannot accord
complete relief. POLICY: Ef]iciency concerns, to avoid multiple
lawsuits
b. RULE 19(a)(1)(B)(i): Absentee’s interests may be harmed if she
is not joined. If absentee isn’t brought into the case she will be
hurt, so we make her necessary and bring her in.
c. RULE 19(a)(1)(B)(ii): Absentee’s interests may subject the D to
multiple or inconsistent obligations.
2. Question 2: Is joinder of the absentee feasible?
a. PJ over her?
b. SMJ over her? (would adding the party ruin diversity?)
3. Question 3: (RULE 19 (b)(1/2/3/4): If Joinder is not feasible, should
the court decide to dismiss the case or go on without the absentee?
Four Factors to consider:
1. the extent to which a judgment rendered in the person's
absence might prejudice that person or the existing parties;
a. we care more about the interests of the parties in this
litigation than the absentee’s interests, because they
aren’t the ones bound by the judgment (a person who did
not have his day in court for no fault of his own cannot
legally have his rights cut off; he could still bring his own
lawsuit)
b. on appeal, if the P has won, he has a strong interest in
preserving his judgment
2. the extent to which any prejudice could be lessened or
avoided by: protective provisions in the judgment; shaping
the relief; or other measures;
a. Courts can try to be creative in effecting relief in a way
that will make the judgment more binding;
Ex. trustee holds on to some of the money and gives some
of it away; this way they will have some money if
absentee sues later
3. whether a judgment rendered in the person's absence
would be adequate; and
a. this refers to the interest of the courts and the
public in complete, consistent, and ef]icient
settlement of controversies
4. whether the plaintiff would have an adequate remedy
(another forum to sue) if the action were dismissed for
nonjoinder **LIKELY MOST IMPORTANT FACTOR**
a. this argument worked in Bank of California v. Superior
Court; (there is nowhere else we can bring this lawsuit)
ii. POLICY
1. Res judicata can’t be applied to parties not in the action, so it can open
the D up to multiple and inconsistent litigation (think of Bank of
California v. Superior Court)
2. Absent legatee might be effected because person can run off with the
money and be hard to track down later or like Provident Tradesmen v.
13
 Patterson, his insurance policy might go up and less coverage in
accident
C. INDEMNITY/IMPLEADER: Rule 14 – Example 9 on pg. 321 and 327 of E and E
a. D may join someone new to the lawsuit only if this third party defendant may be liable
to the defendant for the plaintiff’s claim
b. The purpose of the joining is for INDEMNITY or CONTRIBUTION and there must be
some sort of INDEMNITY relationship between the parties
i. Could be contractual, insurance, joint tortfeasors
c. POLICY: Cardinal rule that P can sue whoever she wants. However, we don’t want D to
bear the sole burden for P’s injury if someone else is also responsible.
i. Right of contribution and indemnity: Often this isn’t common law but
statutory.
1. CAN LEAD TO ERIE PROBLEMS! What if state law doesn’t allow
indemnity or has a different indemnity relationship rule?
2. Jeub v. B/G Foods, Inc.: Erie problem; Minnesota law recognizes
indemnity but only after D is found liable to P. Federal rule allows
impleader before D is found liable. Both have an impleader rule but
there are two different procedural policies.
a. Ct holds: Minnesota recognizes indemnity as a substantive right,
this is just two different procedural philosophies (when during
the process the indemnity is to take place and therefore FRCP
applies).
b. If Minnesota didn’t recognize indemnity, court couldn’t have
applied rule 14.
D. CLASS ACTIONS: Rule 23
Policy: We want to encourage ef]iciency of litigation by having all parties who can
bring a suit bring them together
a. Pre-requisites for Class Action – Rule 23(a) MUST MEET ALL 4
I. So numerous that Joinder will not work
1. No magic number that satis]ies this
2. 50+ will pretty clearly suf]ice
II. There are questions of law or fact common to the class
III.Representative’s claim must be typical of the class members
IV. Representative will fairly and adequately protect the interests of the class
1. Class members will be bound by judgment, so we want rep. to do a good job so
the judgment to members is fair
b. Types of Class – Rule 23(b) 1/2/3 ONLY NEED 1
I. 23(b)(1) - separate actions by class members would create a risk of inconsistent
results or, as a practical matter, would impair the interests of other absent
members of the class
1. Parties may NOT opt-out and all are bound by judgment
2. Prevents ]irst P from getting all available money
II. 23(b)(2) - D has acted or refused to act on ground applicable to the class and
injunctive or declaratory relief is appropriate for the class as a whole
1. Parties may NOT opt-out
2. No $ damages – this is often a civil rights case

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 III.23(b)(3) - there are questions of fact or law common to members of the class that
PREDOMINATE over individual issues and a class action is superior to alternative
methods of adjudication
1. This is most prevalent type of class action
2. The court must give individual notice to all members reasonably identi]iable
a) Potential class members MAY opt-out
b) They will be bound by the judgment if they choose not to opt-out
3. Usually suing for damages
4. Matter of convenience and ef]iciency
5. Allows relief where individuals could not economically pursue action
c. Subject-Matter Jurisdiction
I. If it invokes Federal Question – citizenship doesn’t matter
II. If it is a Diversity claim – only the citizenship of the representative matters
1. Rep must be diverse from all Ds
2. Rep’s claim must exceed $75,000
a. The rest of the claims can be under $75,000 and still get in under Supp.
Jurisdiction
b. 1367(b) takes away Supp. Jurisdiction from P’s claims brought under
diversity if persons are made parties under Rules 14, 19, 20, and 24. As
these persons are made parties under Rule 23 which is omitted, Supp.
Jurisdiction is proper

VII. PLEADINGS CHECKLIST

A. The Complaint (Rule 8)
a. TWO MAJOR POLICIES:
i. We want Ps with genuine claims to have access to the justice system and make it to
the Discovery stage; P doesn’t know all her facts yet.
ii. On the other hand, litigation in this country has EXPLODED and we need to cut
down on frivolous litigation.
1. Because of certain aspects of the American adversarial system such as the
American Rule that each party pays his own legal fees, there is a propensity
for Ps to bring legal claims to harass and Ds will pay to make it go away.
b. Rule 8 requires that Plaintiff include in her complaint:
i. A statement of the grounds for court’s jurisdiction
ii. A short and plain statement of the claim showing that the pleader is entitled to
relief
1. Historically this was easy because in Conley v. Gibson the purpose of
pleading was all about giving NOTICE to the other side about what the
litigation was about
iii. A demand for the relief sought
c. THE PLAUSIBILITY STANDARD
1. After Twiqbal (see below), it is not enough that P only give notice in the
complaint, P’s claim must be plausible… It’s all in the details!
a. Twombly: Showing “concert of action/parallel conduct” is not
enough to demonstrate collusiveness
i. We are beginning to reformulate Rule 8 into Rule 9(b)

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 1. RULE 9(B) pleading with speciXicity: If the action is
of such a nature that have a tremendous propensity
to be abused by Ps, almost akin to blackmail, then P
has to plead with speci]icity (ex: Fraud and
Shareholder derivative suits)
a. POLICY: An extra standard that P must
overcome to bring this sensitive suit
b. Iqbal: The extension of Twombly into Iqbal was severe; some
people thought the Twombly holding would be limited to antitrust
cases. Iqbal made clear that the new standard was
Trans-substantive.

d. “Winnowing out” Complaints, MOTION TO DISMISS (Rule 12[b][6])

iv. Rule 12(b)(6): Motion to dismiss for failure to state a claim for which relief
can be granted
1. Under the old system of notice pleading, the only way to get rid of P’s
complaint on a Motion to Dismiss (Rule 12[b][6]) this early in the game was
if P’s claim had no legal basis which the law provides relief.
a. This is because we had no way of testing whether P’s allegations are
true or not before P got to the discovery stage.
b. Ex: GARCIA v. HILTON HOTELS INTERNATIONAL: The court did a
rescue mission to save the case by reading closely into certain terms
like “slanderously” to imply that the slander was published.
i. This gives us a sense of how far we have come
2. This is why under the old system, summary judgment did most of the work
for winnowing out complaints.

e. CUTTING BACK ON FRIVOLOUS LAWSUITS

v. The American Rule: Each party pays for his own attorney’s fees. In Great Britain,
all the fees are shifted to the losing party so this is an early incentive to prevent
plaintiffs from ]iling frivolous claims.
1. POLICY: Without preventions for frivolous suits, Ps can take enormous
advantage of the system because sometimes Ds will pay for things to go
away even when they are innocent—it is more costly to prove their
innocence in litigation than to settle
vi. RULE 11 SANCTIONS
1. This was a tremendous failure of an attempt to cut back on frivolous claims
by imposing sanctions
2. It requires that the attorney and party certiXies “to the best of the
person’s knowledge” that all the information is true and that they
“formed a reasonable inquiry under the circumstances”
a. SUROWITZ v. HILTON HOTELS CORP: This case shows the dif]iculty
of veri]ication and that often it depends on knowledge that P doesn’t
yet have.
i. The responsibility falls mainly on the attorney to form an
inquiry and verify. Lawyer can’t hide behind excuse “I
believed my client”
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 3. Tremendous failure:
a. Not cost ef]icient; it clogged the courts even more with satellite
litigation
b. Lots of abuse as Rule 11 became the most cited rule as attorneys
made unfounded Rule 11 motions to intimidate the other side
c. Destroyed the professionalism of the bar overnight
4. TO FIX IT: The rulemakers created a SAFE HARBOR PROVISION
a. The Safe Harbor Provision required the party making the rule 11
motion to notify the other party and allow the other party 21 days
to correct it.
b. Sanctions became discretionary for judges again
5. NEW PROBLEM ARISES: Now that Rule 11 had lost its teeth, we needed a
new mechanism for cutting down on frivolous claims.
a. This is how we get to Twombly and Iqbal; this is the court’s
newest experiment
B. AMENDING THE PLEADING (Rule 15)
a. WARRING POLICIES:
i. P is injured to no fault of her own and sues the wrong party, now the statute of
limitations has expired and she can’t get redress for the wrong done to her. We
want P to get redress for her wrong, if she would have realized her mistake
earlier she may have sued the right person!!
ii. However, why should the wrong D—who didn’t harm the P—have to pay for a
wrong that he did not commit? We want parties to be allowed to correct their
mistakes.
b. Rule 15(a)(1): Party can amend the pleading ONCE within 21 days after serving it or 21
days after the response to the pleading if one is so required .
c. Rule 15(a)(2): After that time frame, the party must get leave to amend (either from
opposing party or judge) THE COURT SHOULD GRANT IT FREELY WHEN JUSTICE SO
REQUIRES
i. Does it seem like D lured P in bad faith to sue the wrong party so that the statute
of limitations would expire? (Costa Crociere)
ii. Has P totally lost her claim if D corrects its mistake?
iii. Is the same insurance companies covering both Ds so that even if the wrong D is
sued, the money will be coming out of the same pocket?
iv. Was D acting in good faith the whole time
1. CONSIDER BEEK v. AQUASLIDE
d. RULE 15(c): RELATING BACK THE COMPLAINT
If dealing with amending claim or defenses – you just need B, if dealing with
amending persons or parties, you need B+C. A was put in to avoid Erie problems.
i. This allows P to amend her complaint and sue the right party but the date will
appear as the same date that she sued the wrong party. This is allowed when
1. 15(c)(1)(A): the law provides the applicable statute of limitations allows
relation back; (AKA STATE LAW ALLOWS IT)
a. This was added to avoid anticipated Erie problems, to give P another
way to relate back (even when changing parties) when you can’t
get in under C.
2. 15(c)(1)(B): the amendment asserts a claim that arises from the same T/O
that was attempted to be set out in the original pleading; OR
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 3. 15(c)(1)(C): the amendment only changes the party against whom the
claim is asserted; and that 15(c)(1)(B) is satis]ied; and if the other party…
(AKA THIS IS THE FEDERAL PROCEDURE)
a. received NOTICE OF THE ACTION that it will not be prejudiced (à
Justice Sotomayor says that this isn’t about the sincerity of Plaintiff’s
mistake, it’s a descriptive term about whether or not the D was
prejudiced)
b. knew or should have known that the action would’ve been
brought against it BUT FOR a mistake concerning the party’s
identity
C. DISCOVERY
a. POLICY: We want the parties to bring forth justice, not the government. But what is the
role of the lawyer? The lawyer is simultaneously part of the court but an advocate for his
party—We want to keep the lawyer separate enough so that he doesn’t become a witness
(Hickman v. Taylor)

i. Hickman v. Taylor: Laywer must hand over written testimony of the witnesses
but not his private notes on the testimony. The factual information, before the
lawyer added to it, must be handed over so that both parties can seek the truth and
full disclosure.

D. SUMMARY JUDGMENT (Rule 56)

a. POLICY:

i. The jury is peculiarly Anglo-American, we want the parties to be judged by their

peers. We also want the common man to play a role.

ii. Parties can capitalize on the sympathy of the jury or the objectivity of the judge.
Sending the question either to a judge or jury may lead to substantially different
outcomes

iii. Why should a judge be allowed to take away one’s right to a trial by jury? Because
sometimes juries will make nonrational decisions.

b. The different roles of the judge and jury

i. Judge: Monitors the burden of proof (Legal role)

1. Burden of Persuasion: This burden remains on the plaintiff the whole

time. P must convince the court by a preponderance of the evidence
(meaning that it is 51% likely that her story happened)

2. Burden of Production: This burden shifts between the plaintiff and

defendant.

ii. Jury: The jury makes credibility determinations, assesses the weight of the
evidence, and makes inferences

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 c. The judge is given the right to interject himself at the summary judgment stage, and
take the case away from a jury, by making LEGAL determinations about the BURDEN OF
PROOF—THE JUDGE MAY NOT OVERSTEP INTO THE JURY FUNCTION

i. This is the same function the judge would be doing AFTER THE JURY VERDICT
WAS RENDERED: judge is asking “could a rational jury Xind for P?”

ii. Even if everything goes the way that P hopes it will go, can a rationale jury ]ind for
P?

d. So what does D need to do to satisfy the burden of production and win the summary
judgment?

i. Celotex overrules the Adickes ruling that D can only win summary judgment if he
can conclusively show P’s lack of evidence and P need not produce more evidence.
After Celotex:

1. D just needs to show that P fails burden of persuasion because of a

weakness in P’s evidence. P can only stay in the game by producing
more evidence showing that there is in fact evidentiary support for
the allegations in her complaint and D need not show any new
evidence!

a. In response, P can make a motion for Rule 56(d) saying she needs
more discovery to meet the burden of persuasion

VIII. CLAIM AND ISSUE PRECLUSION

A. CLAIM PRECLUSION: This deals with what might have been litigated but was failed to be raised
and now the claim is lost. (Ex: failing to raise compulsory counter claims)
a. A lot of this depends on THE WAY A “CLAIM” IS DEFINED
i. Are we de]ining a claim in accordance with the FRCPs of rules 18 and 13? (Arising
from the same T/O)?
ii. ERIE: Does the state law de]ine a single “claim” in the same way”
1. Rush v. City of Maple Heights: Rush sues in small claims court for injury
to property and gets $100. Then she sues for personal injury in federal
court.
a. P argues: The bodily injury claim and property injury claim are two
separate claims and can be litigated separatelyà but I want to apply
issue preclusion from the ]irst claim to the second
i. If we accept P’s argument this will encourage P’s to split
their claims to get issue preclusion from the Airst to the
second. It will undermine efAiciency.
b. D argues: A claim is “one wrongful injury;” this is part of P’s old
claim and we should apply claim preclusion it should’ve been raised
there but now it can’t be raised at all.
i. COURT AGREES WITH D. Listen P, you had a claim but you
failed to raise aspects of the claim and now you are barred by
the judgment. P cannot now litigate personal injury.

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B. ISSUE PRECLUSION: Issues that were already litigated and we want to give res judicata/]inality
of judgment; we don’t want to relitigate issues that already reached Xinality.
a. Requirements for issue preclusion:
i. The issue in the 2nd case must be the SAME as the issue in the ]irst case.
ii. The issue must have been ACTUALLY litigated and clearly DECIDED (Cromwell v.
County of Sac)
1. We don’t want issue preclusion if the issue could logically be decided
differently in the 2nd lawsuit
iii. The issue must have been NECESSARY to the judgment in the prior action (Russel
v. Place)
1. Meaning, it can’t be like in Russel v. Place where there was a judgment but
it could have been made on either of two issues so we aren’t sure which
one was necessary
iv. We do not preclude issues of adverse ]indings against judgment winners! (Rios v.
Davis)
1. No incentive to appeal adverse ]indings when one is a judgment winner.
This is an efRiciency and fairness question. We don’t want winners to appeal
everything to prevent further harm down the road, even though they won
the case. It would increase litigation and not make sense.
b. EXCEPTIONS to issue preclusion
i. Two limitations we’ve already seen:
1. We don’t preclude issues if we don’t know whether or not they were
necessary to the ]indings.
2. We don’t preclude issues against judgment winners
ii. We don’t give issue preclusion when there is a large PROCEDURAL DISPARITY
between the quality of the ]irst tribunal and the second tribunal. (Rush v. Maple
heights)
1. Otherwise people can sue in small claims court and issue preclude in state
or federal court.
iii.We don’t give issue preclusion when THE STANDARD FOR LIABILITY IS
DIFFERENT: ex: when one is found not guilty by the “beyond a reasonable doubt”
standard, we don’t give preclusion because they may be guilty by a
“preponderance of the evidence” (OJ Simpson)
iv. Was the ]irst lawsuit a CLASS ACTION or representative lawsuit? If so, the court
must determine that the interests of the party in the Rirst lawsuit are the same as
the party of the second lawsuit before granting issue preclusion (Bernhard)
C. ISSUE PRECLUSION AND NEW PARTIES
a. DEFENSIVE ISSUE PRECLUSION:
i. HYPO: Railroad Co. litigated against P1 because of injuries arising from a train
crash and was found not guilty of negligence. Then P2 sues Railroad Co. for
injuries sustained from the very same train crash. Railroad Co. wants to say—I am
not guilty! This was already litigated.
1. POLICY (cardinal principle): P replies that there is a cardinal principle
that everyone gets their day in court!
a. We can’t allow this because it is a due process violation!
2. In Bernhard we saw that if it was the same plaintiff twice (once suing in
class action, once by herself) then issue preclusion is ok because P already
had her day in court.
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 3. As long as the issue decided is identical in both cases, the adjudication of
the issue was ]inal and necessary, and the party AGAINST WHOM the issue
is asserted was a party to the orig. action, then a stranger can assert issue
preclusion defensively.
b. OFFENSIVE ISSUE PRECLUSION (this states the rule for FEDERAL COURTS -- small
“r” rule à look for Erie issue)
We generally allow the RENDERING COURT’S Preclusion Rules to apply
POLICY: We want to respect state sovereignty and fairness in that the rendering court
should get to dictate the bounds of its judgment
i. Hypo: Railroad Co. litigates against P1 through P6 and is found not negligent. In
lawsuit #7 RR is found negligent. Since then, every plaintiff that sues RR wants
issue preclusion that RR was negligent. (Professor Kurry) This is the problem with
offensive issue preclusion. Same thing applies to 2nd case after RR loses in ]irst.
No reason why D couldn’t win the next 99 cases and therefore Off. IP shouldn’t be
allowed.
1. Technically this isn’t a due process violation because RR had their day in
court already.
ii. PARK LANE: Offensive issue preclusion should be allowed sometimes. Within the
discretion of the court to consider:
1. Was there an opportunity for the plaintiff in the second lawsuit to have
joined the Xirst action?
a. Would they be rewarding plaintiff for adopting the “wait and see”
approach (we don’t want to allow this)
b. We don’t want to give Ps this tactical advantage of waiting
2. Was there a signiXicant disparity between the quality of the Xirst and
second tribunals or its procedural rules?(Rush v. City of Maple Heights)
a. MAJOR CONSIDERATION: IS D BEING DEPRIVED OF HIS RIGHT TO
TRIAL BY JURY? (argument in Park Lane)
i. The ]irst tribunal was an administrative hearing without a
jury. Park Lane Holding: not fair to bind D when he didn’t get
a jury.
ii. Perhaps the 2nd court’s discovery rules allow crucial
evidence excluded in the ]irst case

3. Were the stakes much smaller in the Xirst case such that the D had little
incentive to litigate against it?
a. For ex. 1st P brought case in small claims court for $100 while 2nd P
is suing for $100k.
4. Have there been inconsistent judgments or verdicts? (Professor Kurry’s
example)
a. Would it be fair to bind the D to a single adverse binding when they
were successful in other trials.

iii.WHEN WE RELAX THE CARDINAL PRINCIPLE AND ALLOW ISSUE

PRECLUSION (Class action suits)
1. The policy reasons behind Martin v. Wilks and Taylor (virtual rep. not
enough because P wasn’t fairly represented and didn’t agree to be bound by
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 1st court’s decision) explain the circumstances where SCOTUS will relax the
cardinal principle
a. When the FRCP’s sanction it
i. We don’t give people the beneAit of issue preclusion if they
remained out of the Xirst lawsuit but could’ve joined—
aka the wait and see approach (Park Lane).
ii. FRCPs do not put the onus on the absentee party to join an
action or suffer the effects of issue preclusion. Rather the
onus is on the parties litigating to bring the absentee in
according to rule 19. (Martin v. Wilks)
a) Martin says we don’t want to turn permissive Joinder
rules into compulsory ones by not allowing Ps to
bring litigation when they COULD have joined in the
]irst time
b) States can still adopt such rules since doing so would
not be unconstitutional (Poss. ERIE issue)

b. Class action lawsuits or representative lawsuits

i. Lean toward applying issue preclusion because…
ii. We have special proceedings to protect the interests of
parties in class action/representative suits where the court
checks both before the case and after whether the
representation was proper before giving preclusion.
c. Montana case: when your agent or privity litigates the issue you
become bound by it because they are standing in your shoes.
Issue preclusion ok!

You don’t need to do Erie analysis as per Semtek.

If it’s a Diversity suit, the adopted small “r” federal rule of preclusion is to apply STATE law
preclusion rules of the STATE in which the RENDERING (aka 1st suit) fed court is sitting,
unless there is a MAJOR counter-federal interest at stake, then perhaps apply the federal law.

In Federal question suits, apply the federal rules of Issue Preclusion.

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