1

Personal Jurisdiction ………………………………………………………………………………. 1

Pennoyer, Burnham, & Shaffer ………………………………………………………………… 2

Helicopteros, McGee, Gray Radiator, BK, & WW VW …………………………………. 3

Asahi (O’Connor v. Brennan), McIntyre, Calder, Raju, Shaffer ……………………. 4

Test For Approaching PJ Q (Shoe, WW VW, Asahi) ……………………………………. 5

Notice, Service of Process, and Waiver ……………………………………………………... 6

Rule 4(K)(2) ……………………………………………………………………………………………. 7

Venue (1391), Forum Non Convienes, Transfer (1404) ………………………………. 8

Diversity & FQ Jurisdiction, and Well-Pleaded Complaint ………………………….. 9

Supplemental Jurisdiction, Two-part 1367 Test ……………………………………...… 10

Removal (1441, 1446, 1447) ……………………………………………………………………. 10, 11

Erie Test ………………………………………………………………………………………………….. 12,

13

Complaint (Twombly), Answer …………………………………………………………………. 14

Waiveable Defenses, Rule 11, Amending and Relation back Amendments …… 15

Discovery (tools, scope) …………………………………………………………………………….. 16, 17

Summary Judgment (Celotex), JMOL, Motion for New Trial …………………………. 18

Remiturrer, Const. Limits on Damages ……………………………………………………….. 19

Joinder, Counterclaim, Crossclaim ……………………………………………………………… 20

Proper Parties, Necessary & Proper Parties ………………………………………………… 21

Necessary but not Feasible, Impleader (TPD) ……………………………………………… 22

Intervention (non-party wants to join), Interpleader (“stakeholder) ……………. 22, 23

Class Action …..…………………………………………………………………………………………… 23,

24

Right to Jury Trial, Equitable & Remedies at Law, Jury Selection …………………… 25
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Appeals ……………………………………………………………………………………………………… 25

Res Judicata (claim preclusion) …………………………………………………………………… 26

Collateral Estoppel (issue preclusion) ………………………………………………………….. 27, 28

Injunctions, Standard of Appellate Review …………………………………………………… 28, 29

I. PERSONAL JURISDICTION – In what state can the defendant be sued?

A) Long Arm Statutes  States statutes allowing them to assert PJ over out-of-state parties
1) Multiple states can now have personal jurisdiction.

 Q of whether the forum State has either General jurisdiction or Specific jurisdiction
General Jurisdiction             Specific Jurisdiction

Continuous & Single and Isolated Activity
Systematic Activity “minimum contact” 
“Arising out of” or YES Sometimes*. 
Related to Ex: Hess v. Powlaski
*What constitutes “arising out of”
Ask if it is more or less activity 
than International Shoe.
Not related or  Sometimes* NO
Not Arising Out of *How much activity 
constitutes “continuous 
and systematic”

o General Jurisdiction
 If D has “continuous and systematic contact with the forum state” then they can
be sued in the forum for a claim that happened anywhere in the world.
 (Helicopteros) - no gen'l jurisdiction because contact was not continuous
and systematic
 Goodyear – must show D is “essentially at home” in the forum – higher
standard than continuous and systematic.
o Corporations are subject to general jurisdiction only where
essentially at home.
 Sales in the forum State are not enough.
o Specific Jurisdiction

B) Three kinds of PJ
(a) In personam –
(i) Can adjudicate all claims against person if the D is”
(i) Served in the state
(ii) Committed tort in the state; or
(iii) Domiciled in the state
1. Must be physically present in the state, and have intent of making it your home.
a. If born and raised in CA and moves to NY, MD, FL but hasn't decided to
make state new home, still in CA;
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(b) In rem – CT has power to adjudicate if the basis/point of the lawsuit is regarding property,
attached to the suit, that is in the forum
(c) QIR – the point of the property is NOT the lawsuit, but the property is within the forum
(i) Using the property to allow the court to assert PJ
(i) Can be any kind of property - land, wristwatch, bank account
(ii) Must determine if using the specific piece of property to assert PJ is constitutional
(i) Shaffer held that the D, not their property, must meet the Int'l Shoe test regarding
whether the exercise of jurisdiction would offend the “traditional notions of fair play
and substantial justice.”
1. Minimum contacts
2. Fairness
C) Constitutional limits of PJ: Must fall within Due Process Clause circle
1) There must be a state statute that allows for PJ in this case
2) And the exercise of jurisdiction must not offend the traditional notions of fair play and substantial
justice (minimum contacts and fairness)
D) Valid personal jurisdiction under PENNOYER v. NEFF
1) PJ valid when:
(a) D is PRESENT in the forum State:
(i) D served w/process while in the forum (gen'l jurisdiction)
(i) Burnham – husband visited kid in CA and was served w/process while in CA.
1. (4-4 split) Whether traditional basis for Pennoyer sufficient for a finding of valid
PJ or do you have to go through Int'l Shoe? Both approaches available
a. Traditional basis good by itself, don't need to look at minimum contacts -
good b/c historical pedigree (Scalia – in personam always good)
b. Every case must be assessed by Int'l Shoe – Burnham derived benefit &
availed himself of benefits of state (Brennan)
(b) D's AGENT is served w/process in the forum (gen'l)
(i) Hess v. Pawloski expanded basis for PJ to include implied consent.
a. Works out nexus and notice-served under 4(e)(2)(c) - agent appointed by law
brings someone under personal jurisdiction.
(b) D is DOMICILED in the forum (gen'l) – if you’re domiciled in state.
(i) Physically present in the state with the intent of making it your home.
(i) Corporations = principle place of business and/or place of incorporation
(c) D CONSENTS to PJ (gen'l) (can waive defense against assertion of personal jurisdiction)
(a) Exceptions:
(i) Divorce (can rule on status of marriage even though one party may have
fled state)
(iv) Contract – Burger King
E) Valid personal jurisdiction under INTERNATIONAL SHOE
1) D must have such minimum contacts with the forum such that the exercise of jurisdiction “does
not offend traditional notions of fair play and substantial justice."
(a) Two Part Test for Valid PJ:
(i) Did the D have such “minimum contacts” with the forum?
(i) What is D’s level of activity in the state?
(ii) Does the claim arise out activity in the forum state?
1. If claim is based on a single activity & arises from that activity, there is specific
jurisdiction if and only if:
a. Purposeful availment (of the benefits of the state), and
b. Reasonableness is required.
(ii) Would the exercise of PJ be “fair/just”?
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F) General Jurisdiction – Helicopteros

1) When general jurisdiction is found, the State can assert jurisdiction over any and all claims
against D – whether or not related to the in-state activity.
(i) Corporations. Standard is “continuous and systematic activity” or “doing business” or
“corporate presence” in State.
2) Specific: State only asserts jurisdiction over claims “arising from” or “relating to” D’s
activity in the forum state.
(i) Single and isolated, “transacting business,” gives rise to claims “arising out of”
(ii) Note: If subsidiary acts as an agent might give specific PJ over parent corporation -
3) Helicopteros: general jurisdiction case – D has relations with state but none of his contacts
with the state are source of lawsuit.
(i) No general jurisdiction. SCOTUS said no “continuous and systematic general business
contacts.”
(ii) Arguments between majority and Brennan’s dissent as to “arising out of” and “relating
to”
G) Specific Jurisdiction over a NON-resident
1) McGee – it is the quality, not the quantity, of contacts
(i) Solicitation - D reached out to CA to do business with McGee
(i) Relatedness - P's claim arises from the D's contact with the forum -
(i) Interest - CA has interest in providing justice its citizens.
(i) TX said no, refused to enforce judgment, said CA’s statute violates due process, CA
doesn’t have jurisdiction – collateral attack (full faith and credit question).
H) Gray v. American Radiator:
1) The tortious act took place where the injury occurred – not where product was manufactured.
(a) NY approach - tort not committed in the state it exploded in - manufactured elsewhere
(b) Illinois - yes, tort in that state b/c no tort until someone injured in state
I) Burger King – entering into K w/ a forum resident can constitute purposeful availment of the forum
State – allowing for PJ
1) Makes clear the two parts of Int'l Shoe test:
(a) Contact: Must have a relevant contact between D and forum before fairness is even
considered.
(i) D’s reached out to make a contract in the forum state!
(b) Fairness: D said not fair to make us litigate in FL. Burden is on the D to show that the forum
is so gravely inconvenient that he is at a severe disadvantage in the litigation.
(i) Almost impossible to meet this burden because "you can travel" anywhere and financial
burden of litigating there was considered irrelevant.
(ii) Also, D was on NOTICE (choice of law (and forum?) provision in K; also D was
accountant (not being taken advantage of).
J) World Wide Volkswagen PURPOSEFUL AVAILMENT of the forum state
1) Standard to determine whether the “minimum contacts” prong of International Shoe is satisfied
(a) D did not reach out to Oklahoma - did not send car to OK - P drove to OK
(i) Purposeful availment cannot exist based solely on a unilateral act by the Plaintiff
(i) Injection into the stream of commerce is NOT enough
(ii) Foreseeability that the product could get to Oklahoma is not relevant.
(b) Must be foreseeable that the D would get sued in the forum State.
3) Limits jurisdiction over “portable torts” – if you buy in one state and take to another this is
relevant.
K) Asahi – STREAM OF COMMERCE
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1) Manufacturer makes valves in State A and sell to manufacturer in State B, who puts valves in
widgets for states D, E, and F
(a) Does manufacturer meet the “minimum contacts” standard of International Shoe?
(i) Two Approaches:
(i) If defendant put the product in the stream of commerce and reasonably foresee it
would get to those other states than there is PJ - (Brennan)
(i) If defendant put the product in the stream of commerce and reasonably foresee it would
get to those other states + intent/purpose to serve the forum states - (O'Connor)
(i) Advertising in the forum State; or product designed specific for that market; or
distributor hired specifically for market in particular forum; customer service in states
1. W/o this purposeful availment by the defendant, it’s merely a unilateral act by a
3rd Party like in World Wide Volkswagen.

L) McIntyre – split regarding Stream of Commerce theory for asserting PJ

1) Foreign company reaches out to OH company - OH distributor reaches out to customer in NJ.
(a) Kennedy: O’Connor “purposeful availment plus” test finds no jurisdiction in NJ – no intent
to service NJ.
(b) Ginsburg in dissent: if you target the US, you can be sued in any state where your product
causes injury.
M) Calder: an intentionally tort targeting a resident of the forum State resident will support PJ, if:
1) Forum state is the victim’s state of residence, and
2) They suffer “the harm” in the forum state.
3) Targeting citizen in that state and the harm occurs in that state; the state has interest in protecting
its citizens.
N) Nationwide Federal Jurisdiction – FRCP 4(k)(2) – D is not subject to the PJ of any particular state,
and the claim arises under federal law.
1) GMAC v. Raju – whether contacts through the Internet are specifically aimed at forum state in
order to permit the contacts to serve as the basis for PJ.
(a) Aggregate contacts theory – all together had minimal contacts – APPLIES, only, to
FOREIGN DEFENDANTS
(b) 4(k)(2) – empowered federal courts to function as courts of general jurisdiction in instances
where the party is not subject to any state’s personal jurisdiction. In that, it has enlarged the
rights of federal courts and abridged rights of defendants.
O) Property-Based Jurisdiction
1) Shaffer – must be sufficient connection b/t the lawsuit and the attached property for
jurisdiction to be based on that property. Property was attached to the lawsuit, but it was not
exactly related to the suit.
(i) “Minimum contact” test sufficient to not offend traditional notions of fair play and
substantial justice (Shoe) must be applied to both in personam and quasi in rem assertions
of jurisdiction.

A) Framework for approaching Personal Jurisdiction

1) Does one of the traditional basis apply? (Pennoyer: physically present when served? Is there in-
state property related to the claim?) If so, 4 justices under Burnham say PJ. On the other hand, 4
other justices, traditional basis alone do not enough, still have to assess under International Shoe.
2) Go to International Shoe - 2 steps
(a) Relevant contact between D and the forum?
(i) Purposeful Availment of the forum?
(i) Did they reach out to & target the forum
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1. It must be foreseeable that D could get sued in that forum, not just foreseeable
that the product would reach the forum – see World Wide VW
(b) Relatedness
(i) Does P's claim arise from the D's contact with the forum?
(i) Claim can arise from one contact. (Mghee)
(ii) If claim does not arise out specific act, then there is only PJ if the D has continuous,
systematic ties with forum.
(i) Plus “essentially at home” in forum (Goodyear)
(c) Fairness
(i) Inconvenience to the D and their witnesses - Burger King standard - burden is on the D
to show that it is so gravely inconvenient that he is at a severe disadvantage in the
litigation. Tough to show this.
(ii) Forum State's interest - may have an interest in providing a forum for its citizens
(watch for this!) (McGhee)
(iii)P's interest in litigating
(iv) Legal system's interest in efficiency
4) Hypo - WA citizen bought clock from OR advertised in WA, paid w/check from WA where a
lot of customers, on interstate highway 3 miles from border. Don't miss any of the facts. – in
order to assess have to judge under Int’l Shoe, WW & Asahi
(a) Assume statute
(b) Is constitutional?
(i) No traditional basis - not served in WA, no agent, not domiciled, not consented
(ii) Under Int'l Shoe - is there relevant contact? - DO UNDER INTERNATIONAL
SHOE – Minimal contacts, WW – fair play - Asahi
(i) Purposeful availment of WA - no, just like WWVW. But looking more like
McGee purposeful availment. Argue both ways! Courts would split 4-4
(ii) Foreseeable that he'd get sued there? Maybe yes, maybe no
(iii)Fairness - is there relatedness here? Yes, b/c P's claim arises from (helps us define
jurisdiction)
(i) Inconvenience – Burger King burden, and this very difficult to show. This is
a neighboring state so no burden here.
(ii) State's interest - WA may have an interest in providing courtroom
(iii)P's interest in litigating - P is injured so he has an interest in litigating at
home
(iv) Legal system's interest in efficiency
II. Shared substantive policies
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Notice - in addition to PJ, D must be given adequate notice. Notice is service of process.
A) Service of Process: FRCP 4
1) Process consists of summons 4(a)(1) & a copy of the complaint
(a) Commence a lawsuit in federal court by filing a complaint with the court, after
which time you have 120 days to serve the defendant.
(b) Cannot serve by mail under federal law (but can send the waiver by mail)
(c) Whether email or not is disputable;
2) How do we serve:
(a) Individuals in the USA. FRCP (4)(e)
(i) 4(e)(2) - THREE choices:
(ii) Personal service - done anywhere in that forum state, and if long-arm
statute can be outside state.
(iii)Substitute Service (some form of service other than directly handing
the papers to the defendant) is okay if at:
1. D's usual abode (can be summer home if summer) and
2. We serve someone of “suitable age and discretion” who resides there at the usual
abode. (Can't be a babysitter; can't be Trump's ex-wife visiting for the day)
3. Serve defendant’s agent
(ii) 4(e)(1) - Can also use the state law methods for service - can incorporate the
state in which the federal court sits and the state where service is affected.
(iv) If in federal court in MI, use MI state law (e.g. state law often has
service by mail, which federal laws do not use) – as well as any of the
three methods listed above under 4(e)(2)
3) Waiver of service – FRCP 4(d) - this is not service by mail it is waiver of service by
mail. Allows you to mail the process and waiver of service form to do D w/self-
addressed envelope and D can waive service, and have 60 days rather than 20 days to
respond to the complaint.
(a) Supposed to decrease cost of service: 4(d)(1) creates a duty to avoid unnecessary expenses of
serving the summons… so If D does not return waiver and doesn’t have “a good excuse” she
will have to pay the cost of service 4(d)(2).
4) Service a person in a Foreign Country: 4(f)
5) Service a corporation in USA 4(h)(1), in foreign country: 4(h)(2)
(a) Can serve officer or managing/general agent of the business.
(b) FRCP 4(e)(1) also applies here
6) Territorial Limits of Service – 4(k)(1) – 4(k)(1)(B) – 100 mile bulge rule under Rule 14
or 19
B) State Service of Process Statutes
1) Mechanics of Service of Process Under New York State Law
(a) NY State Law under 308: Does allow service at place of business with a mailing
(see 308)
E) Constitutional Requirement of Notice (Mullane) – notice must be reasonably calculated
under all the circumstances to apprise the party of the pendency of the litigation.
(i) Even if defendant does not “physically receive notice,” it can still be constitutional
(ii) Requirement is that notice is “reasonably calculated…”
(i) In the case of substitute service on defendant’s wife, which meets all the requirements
of FRCP 4 – but she shreds the docs… this is still constitutionally sufficient notice.
F) Long-arm statue for federal courts - 4(k) - Territorial Limits of Effective Service - specifies
when a federal court may assert PJ over a defendant served under Rule 4.
1) Has the relevant legislature authorized the jurisdiction? (i.e. does the state's long-arm
statute extend?)
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(a) Also, where party joined under Rule 14 or 19 and is served within a judicial
district of the U.S. and not more than 100 miles from where the summons was
issued; or when authorized by federal statute.
2) If so, would it be constitutional for the court to exercise jurisdiction in the circumstances
of the particular case?
(a) Federal Claims - 4(k)(2): D not subject to jurisdiction in any state's courts of
general jurisdiction and exercising jurisdiction is consistent with the US
Constitution and laws.
G) Questions: what instructions do you give if your process server calls from the D's residence
and says no one is home? What if no one is home for three consecutive evenings? What can
you do if D's whereabouts are unknown? What about Archie and Veronica hypo - wants to get
divorced but can't find Archie? Can she do anything?
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IV. Venue (28 U.S.C. §1391), Forum Non Conveniens / Transfer (§1404) SMJ tells us we can sue in a
federal court. Venue tells us exactly which federal court. You have to PJ, SMJ, and then, which
federal court is venue?
A) §1391(a) gives venue choices for DIVERSITY,
B) §1391(b) gives for FQ.
C) Rule: In every case, P may bring claim in proper venue in either of these two choices:
1) Choice 1: In any district where all D's reside (Humans reside where domiciled; a biz
resides where it is subject to PJ - Corporations = pp of biz or place of incorporation
(a) If all D's reside in different districts of the same state, you may sue them in a
district where one resides.
(i) Choice 2: You can have venue in any district where a substantial part of the claim arose.
(ii) Choice 3: Proper venue is in any district one of the D’s can be found if they all reside in
different states: 1391(b)(3).
C) Transfer of Venue: from one federal court circuit to another federal circuit
1) Transferor court is the original court; the transferee is the one where it is transferred.
2) §1404, 1406 - in both of these statutes, the transferee must be a proper venue & must
have PJ over the D.
(i) §1404 applies when the transferor is a proper venue but the transferee court is more
convenient to parties, witness, evidence and interests of justice
(ii) §1406 applies when the transferor is an IMPROPER venue
1. Court has the choice to transfer (in the interest of justice) or dismiss (w/o
prejudice). Can either dismiss or transfer it. Would make a 12(b)(3) motion.
a. Ferens v. John Deere (1404 transfer of convenience)
b. If you transfer under 1404, the choice of law from original state is what you
use.
3) Forum Non Conveniens (FNC) – ALWAYS results in a court dismissing because there is a
much more appropriate court where this case should be heard.
(a) Mostly for foreign country – central focus in most convenient) this is where a court
dismisses; it does not transfer! Cannot transfer to a different system like from AZ state court
UT state court or to a foreign country.
1) Piper Aircraft Co. - plane crash in Scotland: case dismissed in U.S. because all the
evidence, witnesses, and victims, and defendants were in Scotland. for court overseas.
(a) Weigh the factors to determine if there is an “adequate” alternative forum.
(i) Lack of jury trial, expansive discovery process, no pain-and-suffering remedy do not
prove alternative venue is inadequate.
B) Challenging forum selection - what if D wants to challenge? Historically, if wanted to
challenge had to make special appearance, and this is still true in a lot of states. Can only
challenge SJ; if raise anything more, you waive PJ. The federal rules do not have special
appearance doctrine and want defenses to be raised together. Rule 12 - within 20 days of
service of process, the D must respond by answer (pleading) or motion (a request for a court
order).
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III. SUBJECT MATTER JURSIDICTION – 1332 - tells us what court do we go to. You would say federal
court has PJ over the parties, and SMJ over the case or claims.
A) Some FQ cases that must be heard in federal courts – bankruptcy, patent infringement, securities,
antitrust).
1)  Exceptions – federal courts WON’T hear matters of probate or domestic relations)
B) Every SINGLE claim, not just the original one, has to be assessed for SMJ
C) Diversity Jurisdiction – 28 USC 1332(a)(1) – citizens of different states & amount in controversy
requirements.
1) Complete diversity rule: There is no diversity if any P is a citizen of the same state as any dD.
(Strawbridge).
(a) Human is a citizen of the state where she is domiciled.
(i) Only have one domicile at a time, so only a citizen of one state at a time.
(ii) Two elements of Domicile:
(i) (1) Physically present in the state, and (2) have the intent of making it your home.
(ii) If born and raised in CA and moves to NY, MD, FL but hasn't decided to make state
new home, still in CA;
(b) Where is a corporation’s citizenship - 1332(c)(1)
(i) Place where incorporated, and
(ii) Where it has its principal place of business
(i) Nerve center: where the managers direct/control corporate activities – their HQ
(c) Where is a Partnership & Unincorporated associations’ citizenship
(i) Citizen of every state in which its partners or members are citizens.
2) Amount in controversy MUST exceed $75K -- $75K.01 is OK, but $75K is not sufficient
(a) Punitive damages can be added in to reach the jurisdictional amount.
(b) Aggregation rules – when there is a single plaintiff vs. 1 defendant, you can have a hundred
claims in order to meet the amount in controversy requirement.
(i) Cannot aggregate if there are multiple parties on either side.
(i) Multiple P’s cannot aggregate to meet the amount in controversy, unless their claim is
based on a common undivided interest (then there’s SJ)
(ii) One P against defendant A for $80K and against defendant B for $50K - does not
meet the amount in controversy requirement.
1. But with joint claims, however, all that matters is the total value of the claim.
a. Ex: 3 people beat up plaintiff and damages is $75.01K – meets the amount in
controversy.
i. There are not three claims here – it will be clear that this a joint claim.
B) Federal Question Jurisdiction (FQ): §1331: citizenship & amount in controversy irrelevant.
1) Does the claim "arise under" federal law
(a) Is the claim created by or brought under federal law?
(b) Does the P’s right to relief depend upon application or interpretation of federal law?
(c) Is the P seeking to have a federal right enforced?
2) WELL-PLEADED COMPLAINT? (Motley)
(a) The essential federal element MUST appear on the face of the plaintiff’s complaint.
(i) Complaint must allege a violation of federal law, or federal law must be the source of the
remedy. That defendant will base their defense on a federal law is not sufficient to pass
the well-pleased complaint standard.
(ii) Mottley - lifetime RR pass on the railroad denied after Congress passed a statute. P said D
breached contract and the new federal law doesn't apply to us. This is not a federal
question, but they talk about the federal law not in the context of their claim
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1. Well-pleaded complaint rule – FQ must be raised in the claim of the complaint,

not as the defense.
2. Claim only addresses breach of contract – which is purely state law.
C) Supplemental Jurisdiction (SJ) – 28 U.S.C. §1367. [The rationality for SJ is to promote efficiency,
fairness, convenience, and avoid inconsistent state and federal judgments which are based on the
same exact facts.] Article III allows federal “cases” and “controversies”
1) Federal court can hear additional claims that by themselves the court would not SMJ over
because no FQ and not between diverse parties.
(a) Applicability of 1367 is not relevant to D’s motion to bring in third-party defendants.
(i) Valid as long as nonparty is someone nonparty who is or may be liable to it for all or part
of the claim against it
2) Gibbs Standard:
(a) To have SJ over additional claims, claim #2 and claim #1 must have:
(i) A common nucleus of operative fact…
(ii) Arising out of same transaction/occurrence (T/O)
(i) One of the claims must invoke SMJ
(b) How to Apply § 1367's two parts:
(i) First step, does §1367(a) grant Supplementary Jurisdiction (SJ) over this claim?
(i) Answer is “yes” if it meets Gibbs standard that (1) the additional claims share a
“common nucleus of operative fact” with the underlying case which the court had
SMJ over & (b) the original and additional claims arising out same T/O
(ii) Second step, does §1367(b) takes away SJ in this case?
(i) § 1367(b) applies only in diversity cases, never in FQ claims;
1. ONLY takes away SJ over claims by the P when exercising SJ over the specific
claim would be inconsistent with the requirements 1332
a. Does not apply to claims by D’s
Exception to 1367: (draw diagram here from your FRCP book)

(iii) § 1367(c), exceptions to when SJ should not be exercised:

(i) The claim presents a novel, or complex issue of state law.
(ii) State law claim “predominates over” the federal claims.
(iii)The federal claim has been dismissed.
3) Owen Equipment - FRCP 13(g), 14(a), 28 U.S.C. § 1367
(a) P brings diversity suit against D1 and D1 impleaded [bringing in new, third-party defendant]
D2 who isn’t diverse. When D1 is dropped from the case, the whole case was dismissed!
4) Allapattah – If P1, meets the amount in controversy requirement, 1367 allows supplemental
jurisdiction over P2 even if less than $75K, so long as the same T/O (ONLY UNDER RULE
20).
(a) Still requires complete diversity – this is only about the amount in controversy.
D) Removal Jurisdiction- allows D in state court to transfer case, if there is SMJ, to federal district
court in which the specific state court sits.
1) Ask, “Did federal court have original jurisdiction
(a) Exception: If D is sued in state court, he cannot remove to federal court based on his diversity
of citizenship from the P. {1441(b)}
2) D files notice of removal - and poof, it’s removed.
3) Governed by § 1441, 1446, 1447:
(a) Only D's can remove. P can never remove, even if she gets sued in counterclaim
 12

(i) All D's must join/agree on removal (Rule of Unanimity)

(b) P who believes removal to be erroneous moves in fed. court to remand to state court
(i) These are not appealable decisions
(c) Can remove only to the federal district that that the state court is within
(d) Must remove within 30 days of the receiving service
(i) If claim arises under federal law, that case is removable - in-State rule only applies in
diversity cases
4) Filing a notice of removal is NOT a response to the complaint, so it does not affect the right to
raise Rule 12(b) defenses.
5) Cannot improperly join for purposes of defeating diversity jurisdiction – joinder of fraudulent
parties does not defeat jurisdiction.
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IV. Erie Doctrine - (Erie R. Co. v. Tompkins responding to Swift v. Tyson)

A) Federal courts have to follow state “substantive law.”
1) Except in matters governed by US Constitution or Congressional legislation (FRCP, etc.)
(a) The federal judge must apply state substantive law, because of the
(i) Rules of Decision Act (RDA) § 1652
(ii) 10th Amendment “states keep all their rights not given to the federal government.”
(i) No general power for federal courts to prescribe state substantive law
2) What does substantive mean?
(a) See the elements of “the claim” for the pure substantive law.
(b) To answer the question of what is substantive law, there is a Hanna prong and an Erie prong
B) First, always start with Hanna  is there a federal statute or FRCP that conflicts with state law?
1) If YES, then apply the federal rule because it trumps state law (so says the Rules Enabling Act
(2072) based on the Supremacy Clause.
(a) Don't need to look at anything else at Erie – no twin aims, no outcome-determination tests.
(i) In Hanna, they did service in a way allowed under FRCP but considered not valid
according to the state laws governing service. FRCP trumps the state law.
C) Second, what if there is NO federal statute/FRCP on point.
D) This is Erie  if this issue is substantive you MUST follow state law.
1) Real Q of how to determine if this is issue of substantive law, address both tests in answer…
(a) OUTCOME DETERMINATION TEST (Guaranty Trust v. York)  SOL. The conflict
was between a state statue and a federal practice – not a Federal Rule.
(i) P's case dismissed b/c State SOL ran, but federal judge wants to ignore state law and
apply federal SOL - must apply state law b/c it is outcome determinative.
(i) If you ignore State law then the case goes forward, a different outcome - we want it to
come out the same.
(ii) It is “outcome determinative” when the outcome of the case would be different solely
based upon whether state law versus federal law was applied.
(i) State law re Statute of Limitation is consider “substantive law.”
(iii)State law MUST be applied if the outcome would be different based upon application of
federal or state law.
(b) BALANCING TEST (Byrd v. Blue Ridge Rural Electric)  re RT to jury trial and
(Gasperini)  state law capping damages applied, not the federal common law re capping
damages.
(i) State law says judge decides this type of case, so this a state law in conflict with Seventh
Amendment right to a jury trial.
(i) Federal judge didn't want to apply the state law….
1. Can only ignore if it is not a state “substantive” law.
(ii) Must balance the state law interest with the federal constitutional interest.
(i) Look at the rationale behind both the state and federal law in order to determine
which interest is more important to preserve.
1. What is the substantive right the federal and state laws are trying to promote?
2. Is the state or the federal interest stronger?
(ii) Federal interest was strong in allocating power between judge and jury.
1. Problem is we don't know how to apply Byrd beyond the fact of this case.
(iii)Should apply state law unless there is a prevailing interest federal interest.
a. Boyle – military defense contractor immunity is a “uniquely federal interest”
i. If there is a significant conflict between state law and the federal interest,
the federal law shall apply.
 14

(c) TWIN AIMS OF ERIE: where there is a direct conflict between federal practice, federal
statute, or a Federal Rule, the court must analyze under Hanna, which asked whether the
federal court was required to apply the state service rule or Rule 4(d)(1)?
(i) Hanna Part I: whether allowing federal courts use the federal practice instead of the state
statute lead to forum shopping or inequitable administration of law?
(i) If yes, apply state statute instead of the federal practice.
(ii) If no, the federal court should apply its “housekeeping rule” despite contrary state
practice.
(ii) Hanna Part II: Is there a “direct conflict” between state statute and a Federal Rule or
federal statute?
(i) Fed. Rule and federal statutes in direct conflict trump conflicting state law so long as
the F.R. is valid under the REA, so ask: does the Fed. Rule abridge or modify any
substantive right.).
1. Fed. Rules Enabling Act (“REA”): § 2072, 2073, 2074)
a. Congress and the Court have broad constitutional authority to promulgate any
rule that is “arguably procedural.” (Hanna)
(iii)Side note: Justice Harlan – if it is “arguably procedural” than comports with 2072(b)
 15

V. Pleadings FRCP 7, 8, 12(e), 15

A. Complaint: P’s pleading. Suit commences when complaint filed.
B. Rule 8A tells P that you need:
1. Statement of the grounds of SMJ
2. Short & plain statement of the claim FRCP 8(a)(2)
1. “Notice Pleading” - a lot of detail not needed, just put other side on notice
(FRCP does not explicitly require facts)
a. Connelly (you've pleaded in enough detail unless no set of facts are
imaginable which prove your claim) rejected by Twombly & Iqball
b. Current Rule re What Is An Adequate Claim?
i. Plausibility Standard - Ct will ignore statements deemed to be
“legal conclusions”: “D was reckless”
ii. Facts MUST be alleged that actually support the claim.
1. Need “facts” supporting a “plausible” claim
2. Iqball: SCOTUS held there MUST fact-based
allegations of their discriminatory intent. They
needed that smoking gun email to have a claim that
passes plausibility standard. That they’d find that
smoking gun email in the Discovery phase is not
sufficient to get over a 12(b)(6) motion.
iii. Ct will use its experience and common sense to determine if
the claim is “plausible.”
c. If alleging fraud or mistake must follow requirements of 9(b) & 9(g),
which require more particularity than “D defrauded me.”
3. Demand for relief - tell the court what you want (damages, injunction, etc.)
4. Rule 8(d)(2) allows for alternative allegations: if A is not found negligent, then I
allege B was, etc.
B. Defendant's Answer. (FRCP 12) Two things must be done in answer:
1. FRCP (8)(b): must respond to the allegations of the complaint w/in 21 days of
receiving process or risk default. Can respond by Answer or motion (request for a CT
order – this is not a pleading)
1. Admit
2. Deny: failure to deny is an admission
3. Lack Sufficient Evidence to answer [DKI – deny knowledge or information or
sufficient to form a belief.]
a. If its under your control (in your storage unit) can’t claim lacking
sufficient
2. Must raise affirmative defenses in your Answer under FRCP 8(c)(1) or in a motion with
your Answer under FRCP 12(B). Affirmative Defenses (injects a new fact) – can be
made in the D’s motion or Answer.
1. Classic AD: lack of SMJ; statute of limitations run; lack of PJ; improper venue
a. “Insufficient Process” affirmative defense is pretty rare, but
“Insufficient Service of Process” [12(B)(5)] is much more common.
b. (B)(6) Failure to State a Claim
c. (B)(7) Failure to Join an Indispensible Party (Rule 19 party)
2. Waive-able Defenses - (B) 2,3,4,5 MUST be put in D’s first Rule 12 response.
a. Improper venue; Prob. w/ Service; and Lack of “Personal
Jurisdiction” will all be waived if the D does not raise in the very 1 st
document (motion or Answer) submitted to the court.
 16

3. (B)6,7 can be raised for the first time anytime through trial – but raised on
appeal would be too late.
4. SMJ is never waived and can be raised anytime. 12(h)(3)
C. Rule 11: Garr v. U.S. Healthcare
1. P’s lawyer must make a reasonable inquiry under the circumstances that the factual
contentions have evidentiary support.
1. Safe Harbor Provision. Under Rule 11(c)(2), plaintiffs’ attorneys have up to
21 days after service of original complaint to withdraw or amend their
complaint.
2. P who brings a suit against a party that is issue or claim precluded, may be subject to
Rule 11 (bringing exact same lawsuit and bring a lawsuit under a different theory,
then can be issue/claim precluded, Rule 11).
1. Circuits are split regarding the question of whether a Rule 11 allegation
can/should proceed if the claim is found to be with merit.
D. The Answer
1. FRCP 8(b) general rules
2. 8(c) Affirmative defenses that MUST be listed in the answer of they are waived.
3. 11(b)(4):
4. Rule 15 – Amendments to Pleadings
5. Under 15(a)(1)(a) a party may amend its pleading within 21 days of filing it. Once
this window as expired, the decision to grant the amended pleading is at the
discretion of the judge 15(a)(2)
E. 15(c) – Relations Back of Amendments
1. An amendment relates back to the date of the original pleading when it asserts a
claim that arises out of the conduct, or T/O as the original pleading. 15(c)(1)(b)
2. Amendment changes the parties or naming of the party whom a claim is asserted
15(c)(1)(c)
1. Three requirements for adding a new party after the SOL have run:
a. Claim against new D arises from same T/O as the original claim.
b. New D had notice that the original, within in the SOL, that the action
against the original D had been filed.
c. New D knew or should have known that, but for mistake as to the
identity of the proper party, the original action would have been
against him.
 17

VI. Discovery, Summary Judgment and Post-Trial Motions

A. Discovery - federal rules are very liberal - want parties to know as much as possible.
1. Required Disclosures FRCP 26A - at 3x in the case, must cough up information even
though no one asks you for it.
1. 26(a)(1): The most important initial disclosure, but not the only one required
under the rule:
a. Have to identify everybody who has discoverable information that
you might use in your trial.
2. 26(a)(2): Expert Witnesses: who you plan to use and what they’ll say
3. 26(a)(3): Pre-trial Required Disclosures – have to tell them everything you plan
to raise at trial.
B. (5) Tools of Discovery - to be used against opposing party, and can also get info from non-
parties…
1. Deposition (Rule 30 and 31) – live oral testimony under oath under penalty of
perjury.
1. Can depose a party OR non-party.
a. Must subpoena the non-party B/C not have required to appear.
2. Interrogatories (Rule 33) - written questions answered in writing under oath.
1. Can only be sent to parties.
3. Request to produce documents & ESI (Rule 34(c) – request that someone give you
access to documents or electronically stored info or property.
1. Can be used against party OR non-party
a. Non-party should be subpoenaed under Rule 45 or else she does not
have to produce
2. Rule 26(b)(2)(B) Specific Limitations of ESI
a. Producing party may claim it is “not reasonably accessible” because
of the expense of locating, reviewing or reproducing the info.
i. Upon moving party’s motion to compel, the Ct will determine
whether to order the production, deny it, or order production
with restrictions.
1. Ct may decide which party will pay for the costs of
retrieving such “ not reasonably accessible” info.
4. Medical exam (Rule 35) – requires a court order to get this, otherwise it could be a
tool of harassment.
1. Only used against party to the suit or someone in their custody/legal control.
a. *Does not include employees*
5. A Request for Admission (Rule 36) - require you to admit or deny any discoverable
matter. If they don't deny, they've admitted it.
1. Can only send these to parties, never to a non-party.
C. Scope of Discovery (FRCP 33, 34)
1. Standard for Discovery - 26(b)(1): you can discover anything “relevant” to a claim or
defense.
1. Relevant = “reasonably calculated to lead to admissible evidence”
a. Even if what you’re asking for may not be admissible at trial, can still
ask for it if it is reasonably calculated to lead to...
i. Can take a deposition and ask someone about hearsay even
though hearsay is not admissible at trial.
ii. Can discover how much insurance the D has, even though that
would not be admissible at trial.
 18

2. Attny-Client Privilege - can’t discover privileged information: protects confidential

communications between lawyer & client
1. Privilege is destroyed if there is a 3rd party present.
2. When privileged info is accidentally disclosed, 26(b)(5)(b) must return the info
but it is up to the judge whether the disclosure waived the privilege.
3. Work Product (26(b)(3) - something created because you had an idea that litigation
might occur. Does NOT have to be generated by a lawyer.
a. Your private investigator’s report about the accident is also work
product.
2. Start with presumption that this is not discoverable.
3. Work product is not privileged, it is protected, which means if:
a. There is a “Substantial need” for the docs, and it is “otherwise not
available” the judge can compel disclosure.
i. Suppose a witness your investigator interviewed is no longer
available because they can’t be found.
b. Opposing parties will never get access to mental impressions,
conclusions, opinions and legal theories. (Hickman v. Taylor)
4. Failure to Make Disclosures (e.g., update) or to Cooperate in Discovery (e.g., motion
to compel) and Sanctions - FRCP 37
1. 37(e) Sanctions for failure to provide ESI may not be imposed for destruction
of ESI through “routine good faith operation an electronic information system.”
A. Pre-trial adjudication: adjudicate the case w/o going to trial…
1. Motion to dismiss for failure to state a claim 12(b)(6).
1. Court CANNOT look at evidence; only looks at face of the complaint.
2. Standard for granting 12(b)(6) is:
a. If everything in complaint were true, would P win?
i. Is this a claim at all?
1. Twombly / Iqbal: P must allege facts supporting a
plausible claim
2. Sloppy pleading: if only 3 of 4 elements pleaded, still
cannot win.
2. Motion for Summary Judgment (Rule 56) – CT can look at evidence (e.g.,
affidavits, depositions.)
1. Trying to weed out cases where we do not need a trial to resolve disputes of
fact.
a. Moving party must show there is no genuine issue as to any material
fact.
i. If no, then the court may enter summary judgment as a matter
of law, b/c do not need a trial. This is always discretionary.
Court doesn't have to grant summary judgment, but cannot
enter summary judgment under Rule 56 if there is an issue of
dispute on a material issue of fact.
b. Entitled to judgment as a matter of law.
i. Breach of a (non-ambiguous) contract
2. Regarding burden of proving there is no “genuine issue of material fact”
a. Plaintiff has the burden of production
b. Defendants have the burden of 18ersuasion
3. Celotex: p. 675 – can grant summary for D even if they only show that the P
lacks evidence! D does not have to give us new evidence
 19

a. If you are P and want summary judgment – must supply information

sufficient to show that no reasonable jury could rule for D.
C. Trial Motions – Dixon v. Wal-Mart example
1. JMOL – motion for judgment as a matter of law – FRCP 50(a)(1): judge takes case
away from the jury. Functional equivalent of summary judgment. If defendant, after
the plaintiff made their case, thinks plaintiff failed to meet their “burden of
production.”
2. Standard for JMOL:
1. Reasonable people could not disagree on the result.
a. e.g. didn't present all the elements needed to show negligence (same
as summary judgment but brought up after trial).
2. Appellate standard of review is De Novo, whether the trial judge made an error
of law
1. EXAMPLE: P crossing street and he had a green light. D said ran red light and
ran over him. D moves for Summary Judgment and says he has 25 affidavits
from eyewitnesses who saw this happen and said that D did not run red light
and the P was jaywalking. P has one affidavit from an alcoholic saying that D
ran red light. Cannot weigh the affidavits and weigh credibility - question of
fact. Since there is a dispute, going to trial.
2. 50(a)(2): can move only after the non-moving party has been heard at trial
1. Renewed JMOL (RJMOL) Rule 50(b): used to be a JNOV (judgment
notwithstanding of verdict). Exactly the same as JMOL except it comes later. Motion
made at the trial court level (within 28 days of entry of the judgment) as a way to
undue a decision by the jury
1. RJMOL is waived if you did not make the JMOL motion
2. JMOL was denied, so then the jury got the case and decided the case, but it
reached a conclusion that reasonable people could not have reached.
a. If P goes to trial and puts on evidence of 3 of 4, D grants JMOL,
judge lets go to jury and they screw it up, comes back for P. With
RJMOL, take judgment away from P and gives to D.
1. Motion for New Trial (Rule 59 A) - entirely different from JMOL because it deals
with Questions of Fact, not Q’s of Law, but timing is the same
a.  must be made within 28 days of entry of judgment.
1. Something happened that makes the judge nervous about the result, and judge
decides to start over.
a. Limitless grounds for judge deciding need to start over
b. Maybe judge gave wrong jury instruction; maybe juror did
something inappropriate.
2. Court can make this motion on its own. Does not require motion by P or D.
3. Denying a motion for a new trial is appealable based on an abuse of
discretionary power standard of appellate review
a. Granting a new trial is NOT appealable because it is not considered
a final judgment.
2. Can seek relief from a previously enterted judgment based upon “newly
discovered evidence.” Under 60(b)(2)
2. Remittitur & Constitutional Limitations on Damages - FRCP 59(e)
1. Punitive damages, which are above and beyond compensatory damages, are
meant to deter defendant from engaging in a specific behavior. Might also be use
as a way to punish the defendant for an intentional and/or grossly negligent act.
 20

a. State Farm : single digit ration between compensatory and punitive

damages is preferred… otherwise it would be considered to fail the
“shock-the-conscience” test.
2. For when you believe there is a mismatch B/T the evidence of the harm and the
award: damages award is not justified as a matter of law
a. There is no power under the VII Amendment for a federal judge to
increase a damages award he thinks is too small.
3. Williams v. Philip Morris: you can’t use punitive damages unreasonably –gives a
rough standard, can’t punish D for injuries to non-parties.
a. Due Process Clause forbids the jury, when deciding on damages award,
from taking into consideration harm done to non-parties
i. May consider: reprehensibility of conduct,
1. STANDARDS OF REVIEW – can mention in answer
2. Clearly erroneous is no fact finder can find on facts
3. Abuse of discretion is standard when discretionary judgment – like
allowing discovery or deciding about injunctions.
4. If applying the law it’s de novo
 21

VII. Joinder – tell us how big a case can be. *Every claim must have SMJ. [If it starts with “C” then it is
a claim between existing parties. If it starts with “I” then it is a claim joining someone NEW.]
A. Claim joinder (18A): P can assert any additional claim you have against the D.
1. Next step is to test whether these claims can go to federal court – SMJ?
B. Claim joinder by Defendant – here the D is asserting suing someone
1. Counterclaim: suing an opposing – someone who has sued D – party (13A & B). As
part of D’s Answer, make claim by D back against the P.
2. First, identify whether it is a compulsory or permissive counterclaim. Second,
determine if the federal court has SMJ to hear the specific counterclaim.
1. Compulsory counterclaim (13A)(1) – when the claim arises from the same t/o
as the P’s claim it MUST be asserted in this case, or you lose the right to make
the claim.
a. Look to see if there is a logical relationship between the two claims to
determine whether it’s a compulsory counterclaim.
i. Connectedness between the claims is not at important as the
connectedness of facts underlying the two claims.
b. Grumman: danger of inconsistent adjudication and with judicial
economy. Inconsistent adjudication: could have two cases decided
two different ways which isn’t fair – also, why have parties testify
twice. Arises from the same t/o as the P's claim. Compulsory b/c must
be asserted in this case (can't be raised in another case) - use it or lose
it here.
2. Permissive counterclaim (13B) - does not arise from the same T/O as the P's
claim –may assert in this case but you don't have to, you can sue on it
separately.
a. Example: waitress got fired and boss said you damaged his car same
time at work.

HYPO - P&D collide in car accident in same T/O. P is from NY, D is from FL, and amount is 100k.
Does it invoke SMJ? Yes, FL v. NY & +75k so diversity case.
Question: If same case that it is 45k, we say that it is compulsory counterclaim b/c
arose from same T/O. Next, SMJ. Doesn't invoke FQ jurisdiction. Does it invoke
diversity? No, b/c even though FL v. NY, only $45K.
 So now we have to go to Supplemental Jurisdiction:
1. Does 1367(a) grant supplemental jurisdiction:
a. First, it arises out the common nucleus of operative fact. (Gibbs)
b. 2nd q: does 1367(B) take away supplemental jurisdiction
i. Applies in diversity cases, but only takes away claims by P,
and this is claim by D: it’s OK. BE HYPER MECHANICAL.

1. Crossclaim: 13(g) - against a co-party and must arise from the same T/O as the
underlying case. These are never compulsory. May assert here, but don’t have to.
1. When seeking indemnification against a co-party
a. 18(a) interpreted as meaning that as long as you have one valid cross
claim (e.g., arises from same T/O) than you can make as many
“unrelated” cross-claims as you want.
i. If additional claim is so far removed from the original claim
and cross-claim, one may move under 42(b) that they be
separated into two trials so as to not confuse the jury.
 22

2. HYPO - A, B, C collide - A (NJ) sues B & C (both VA) and both claims exceed
$75K. Car accidence = no FQ, but diversity gets us SMJ.
a. As attorney for B, tell them they must file a “compulsory counter
claim” against A.
i. Asses that the compulsory counter claim invokes diversity.
b. And C may file a “Crossclaim” against B because it is against out of a
coparty and it arises out the same t/o as 1st case.
i. Assess SMJ. Problem is no diversity. And no FQ.
1. Does this claim get Supplemental Jurisdiction?
1. Does 1367a allow - yes, because same T/O
and this always meets common nucleus.
2. Does 1367b take away Sup Juris? No, b/c only
takes away claims from plaintiffs, and this is a
case of Defendant.
D. Proper parties: Rule 20(a) - who belongs in the case / who may be joined.
1. Rule 20 is a tool available to the P when putting case together.
2. Allows P to join multiple P's and D's.
1. Two-part test:
2. For co-P's [Rule 20(a)(1)] may be joined if (1) claims arise from the same T/O
and (2) raise at least one common question of law or fact.
a. All four of us injured in cab crash, can we all sue together? Yes.
b. GUEDRY v. MARINO - They all got fired, but they all had slightly
different theories as to why they had been fired.
3. For co-D's [Rule 20(a)(2)] - we may join co-D's if (1) arises from same T/O
and (2) raise at least one common question.
a. All four of us injured in cab crash, can we sue cab company and
driver together? Yes.
4. Still have to apply SMJ Test
3. Rule 42(a) allows for consolidation when separately filed cases involve a “common
question (of law or fact).”
B. Necessary and Indispensable parties: Rule 19 - issue of who must be joined.
1. Rule 19 – three step test:
1. Is Absentee (A) Party necessary or required?
a. Yes, if A meets any of the three tests under 19(a)(1).
i. Without the A can the court accord complete relief?
1. Will this action spur multiple litigation? Make things
whole between the 2 parties already who brought the
action?
2. 19(a)(1)(a)
ii. May A’s interests be harmed if she is NOT joined?
1. 19(a)(1)(b)(1)
iii. A’s interests may subject the D to multiple or inconsistent
obligations
1. 19(a)(1)(b)(2)
b. Note: Joint tortfeasors can never be forced into a litigation under
19(a)(1)
2. HYPO: I own shares of XYZ corp. P says we bought jointly, and that the stocks
should have been issued in our names jointly. Here's the litigation. P sues the
corp. for court to order cancellation of my name, and reissue stock in joint
names. I am the absentee.
 23

a. Am I necessary and indispensible?

b. Lets see... meets all 3 tests, but let's focus on 2nd test - if I'm not
joined, my interests can be hurt. If P wins, my stock gets cancelled,
and I can be harmed by the judgment of this case. Since necessary, go
onto the question, is joiner feasible?
c. If necessary, is joinder feasible?
i. Must be PJ over me
ii. Can we bring you in w/o destroying diversity (SMJ)?
C. If joinder is necessary, but NOT feasible
1. CT must decide to either proceed w/o A or dismiss the entire case.
2. Under 19(b), 4 factors to decide whether to proceed or dismiss
3. 4th factor most important  should never dismiss the case unless there's an
alternative court where an “adequate” remedy is available. (Broussard).
1. The extent to which a judgment rendered in the person's absence might
prejudice that person or the existing parties
2. The extent to which any prejudice could be lessened or avoided by: protective
provisions in the judgment; shaping the relief; or other measures
3. Whether a judgment rendered in the person's absence would be adequate; and
4. Whether the P would have an adequate remedy of the action were dismissed for
nonjoinder (in Broussard could go to State Court)
D. TPD/Impleader (Rule 14(a)) - joining someone new. Called the TPD (third party defendant).
A defending party is bringing in the TPD, but only for a very narrow reason:
1. TPD may be liable to the D, for the P’s claim against you.
1. Indemnification or contribution from joint tortfeasors
1. Does not require compliance with the 1367(b) - statute does not control here.
1. This is not a “cross claim” because TPD is not party to the original action.
2. 4(k)(1)(b) expands jurisdiction to cover a TPD that the court normally would not
have PJ over.
3. P can file a claim against the TPD, once the D has brought them in.
1. 14(a)(3) – this is an OK claim as long as it arises from the same t/o. (Owen
Equipment v. Kroger)
4. TPD can assert a claim against the P 14(a)(2)(d): also OK claim as long as it arises
from the same t/o.
5. Every time test claim for SMJ under FQ, Diversity, and if those fail then test for
Supplemental Jurisdiction.
1. Appellate standard of review is discretionary, whether the trial judge abused
their discretion.
F. Intervention (Rule 24) - Someone wants to become a party. Same language as in 19(a) - here
party says "I'm necessary, I want to join" - my interests will be impeded. Always test for
SMJ.
1. Intervention of right (Rule 24(a)(2)) - absentee has a right to come into case if:
1. Her interest may be harmed if she is not joined.
a. Same test for “necessary parties” under Rule 19(a)(1)(b)(1):
i. Impede person’s ability to protect their interest, or
ii. Leave existing party subject to double or multiple inconsistent
obligations/judgments.
2. Her interest is not adequately represented now.
3. Need to have a right to intervene under a federal statute (not very common)
2. Permissive intervention (Rule 24(b)) - People magazine hypo.
1. Deferential standard of review.
 24

G. Interpleader (Rule 22 and §1335 and §2361) - permits someone in possession of a particular
piece of property (“stakeholder”) that is subject to potentially conflicting claims to join in one
proceeding all potential claimants to that property. (Pimental)
1. Can bring under statute (nationwide PJ and venue wherever one or more claimants
reside, as long as there is any claimant diverse from any claimant and total obligation
is $500 or more)
2. C §1335 sets for the SMJ jurisdiction requirements that are different for Interpleader
cases.
1. $500 is sufficient amount in controversy
2. Diversity standard does not require that the all the Plaintiffs be diverse – just
two or more of claimants.
H. Class Action -- representative sues on behalf of a group (more efficient). (See Eisen). Denial
of certification, under 23(f) is appealable as an interlocutory motion. 1407: Judicial Panel on
Multidistrict litigation.
1. Rule 23(a) Must meet/show ALL four initial prerequisites of Rule 23(a):
1. 23(a)(1) Numerosity- too numerous, impracticable to be workable as co-
plaintiffs under Rule 20.
2. 23(a)(2) Commonality - Q's of law or fact common to all members of the class
(De Novo or Discretionary power standard of appellate review)
a. Wal-Mart v. Dukes: required a common policy or act by the defendant
resulting in a common injury among all the P’s.
i. Must prove the existence of such common issues.
ii. Being female, suing based upon gender-based employment
discrimination does not meet this threshold.
3. 23(a)(3) Typicality – rep.’s claim must be typical of class
a. Same basic harm: not stronger or weaker
4. 23(a)(4) Adequacy of Representation – named party/class counsel must have the
class’s interests in mind.
a. Prevents conflicts of interests between named parties and the class
they seek to represent.
2. Subdivision/Class that action must fall under
1. 23(b)(1): when separate actions  varying adjudications; b)  dispositive to
non-parties (e.g. if the defendant was in bankruptcy and had limited funds) OR
2. 23(b)(2)- more common class suits seeking injunctive and declaratory relief
(e.g. desegregation (affects everyone in community), prison reform that affects
prison, etc. - class action most appropriate way of doing this kind of thing) OR
a. Money damages can be sought, but not individualized claims. (Wal-
Mart v. Dukes)
3. 23(b)(3): Damages Class - Must show that:
a. Common questions predominate over the questions of law or fact
individual class members
b. Class action is the superior way to resolve the case.
i. May be no way to adjudicate small claims (Eisen).
1. “negative value class action”
a. If the class is CERTIFIED, the court must appoint class counsel.
i. If not certified the class is dismissed as a class action, and
individuals have to bring separately.
2. Notice of Pendency: In a 23(b)(3) class action, individual class members
MUST receive individual notice to all members “reasonably identifiable.”
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a. NOT required for B1 or B2 class actions, because there is no right to

to opt-out of a B1 or B2 action.
b. Rep. has to pay to give notice to all class members of a B3 action, in
order to give the class members an opportunity to opt-out and pursue
the litigation individually on their own.
i. All members who fail to opt out of a class are bound by the
final decision. Res judicata.
ii. In Eisen concurrence said can divide into smaller subclasses
to reduce notice costs. Eisen had negative value class actions
less desirable to bring (if you can't identify class members you
can do it with publication notice). Email is allowed and makes
it more feasible to do this. This is an issue - efficiency vs.
constitutionality (not as much due process).
3. Settlement or dismissal: requires court approval, Rule 23(e) - is the settlement
fair? 23(f) can be appealed within ten days
4. SMJ: for diversity, to determine citizenship & amount in controversy, you look
only at the class rep. (do not care about the other class members).
a. Only the rep has to be diverse and only the rep.’s claim has to exceed
$75K. (Allapatah)
5. Settlement Classes: “predominance” requirement must be met, but meeting the
“superiority” and “manageability” standard are not required. (Amchem)
7. §1332(d)(2) - CAFA - (discourages state forum shopping, where plaintiff lawyers
bring in friendly state jurisdictions and get certified and have more leverage to settle).
CAFA makes it much easier to remove to federal court.
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VIII. Trial
A. Determine facts - if no dispute of facts, summary judgment. Facts include damages,
credibility of witness. When no jury, bench trial.
B. Right to Jury Trial
1. Have to demand under Rule 38. Seventh Amendment preserves the jury in cases at
law but not equity. The Seventh Amendment only applies in Federal Court - does not
apply to state courts. May have jury right in state court but under the state
constitution.
1. So how do you know if you have a trial by jury? Two things to have jury trial:
a. Claim being asserted must have a 1791 common law analog!
i. Did this claim, or at least an analogous claim, exist during
1791?
b. Examine at the remedy sought. What is the P seeking?
i. Seeking Remedy at Law - compensatory damages ($$$)
ii. Or seeking Equitable remedies – injunction, rescission,
specific performance - have to show that legal remedy of
damages won't make you whole.
2. HYPO: bought house with porch overlooking land and see trespasser and sue.
Damages will not compensate (make you whole) for him trespassing; wants a
court order to stop him from trespassing. Sue for damages for past trespassing
and ask for injunction against future trespassing (legal and equitable remedy).
a. Do you get a jury?
i. Beacon Theaters and Dairy Queen. Create three rules:
1. Determine jury right issue by issue - not all or nothing
anymore
2. If an issue of fact underlies both law and equity, you
get a jury.
3. Generally, try the jury issues first, then try equity with
judge.
C. Jury Selection: FRCP 48 - what is more important is the voir dire process: interview potential
jurors, 3 rules:
1. Each side has unlimited strikes for cause (bias, related to parties, etc.)
2. Each side has three peremptory strikes
3. Peremptory strikes must be used in a race and gender neutral way
1. Edmonson and JEB v. Alabama

IX. Appeal
A) Final judgment rule - cannot appeal until the trial court enters a final judgment – a decision on the
merits of the ENTIRE case.
1) To determine whether there was a final judgment… ask, “After entering this order, does the trial
judge have anything left to do on the merits of the case?
(a) If yes, then it is not appealable, b/c not final judgment
(i) E.g. - you make a motion for summary judgment and you know the trial judge is wrong,
you cannot appeal.
(ii) Judge grants motion for new trial – this is not a final judgment that can be appealed.
2) Interlocutory review - exceptions to appeal a non final judgment rule
(a) Two bases found in statutes: 1292(a) and 1292(b)
(i) Under (a) denial of preliminary injunctions orders can be appealed.
(b) Two more bases found in FRCP:
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(i) 23(f) - trial court's decision whether to certify (or not) a class action. It’s up to the CoA
whether to hear this appeal or not.
(ii) 54(b) - case w/multiple claims or multiple parties, and tells you when you can go upstairs
even though not final judgment
3) Collateral Order rule
4) Extraordinary Writ – proceeding in Court of Appeals asking them to order the trial court to do
something.

X. Claim & Issue preclusion (res judicata and collateral estoppel)

A) Always a story of two cases:
1) Case #1 has gone to judgment. Case #2 is pending.
(a) Q: does the judgment in Case #1 preclude us from litigating anything in Case 2?
(b) Res judicata – a final judgment on the merits of an action precludes the parties or their
privities from relitigating issues that were or could have been raised in that action.
(c) Collateral Estoppel – once a court has decided an issue of fact or law necessary to its final
judgment, that decision may preclude relitigation of the issue in a suit on a different cause of
action involving only one of the two parties from the first action.
(i) Litigant not a party to the first action is allowed to use collateral estoppel “offensively” in
a new federal suit against the party who lost on the decided issue in the first case.
Parklane Hosiery.
(d) Once you've had a lawsuit it bars not just the claims that were litigated but also the claims
that could have been litigated in this action. Collateral estoppel or issue preclusion. Case 2 is
pending
2) Res judicata (Claim preclusion): One shot only – can’t sue twice on the same claim.
(Federated Department Stores v. Moitie)
(a) Three Requirements to Have Res Judicata:
(i) Both cases were brought by the same claimant ag/st the same defendant
(i) Can't just say both cases have same parties - also need them to be on the same side.
(ii) Cannot use claim preclusion to bar someone who was not a party to the first action!
(ii) Case #1 ended in a valid, final judgment on the merits. (41(b)
(i) Every judgment is considered on the merits, unless it is based on jurisdiction, venue
or indispensable parties. See 41(b) for the complete list.
1. Dismissal for improper venue or lack of PJ does not bar a second action.
(ii) On the merits doesn't necessarily mean we tried everything!
1. Failure to State a Claim, and Default judgment is considered “on the merits”
(iii)Both cases involve the same claim arising from same T/O
1. Only get to sue once, so you better ask for everything that arises from the same
T/O. (See Rule 13: Compulsory Counterclaim)
2. Yablon - 2nd Restatement (p. 816) is ground now.
(b) HYPO: Lucy and Ethel collide and each suffers personal injuries and property damage. Case
#1: Lucy sues Ethel to recover for property injuries from wreck. Valid final judgment is
entered and it's done. Case #2: Lucy sues Ethel to recover personal injuried from that same
crash.
(i) Do we dismiss Case #2 under doctrine of claim preclusion?
(i) Let’s see… element 1 is met because both cases were Lucy v. Ethel.
(ii) Element 2 is met b/c case ended in valid, final judgment on the merits.
(iii) Element 3 did case 1 and case 2 involve the same claim?
1. Yes, she is suing twice under the same claim because it arose from the same
transaction/occurrence.
2. Dismiss claim #2.
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(c) HYPO: Lucy and Ethel collide. Case 1: Lucy sues Ethel for personal injury, property
damage. Litigate get a final judgment. Case 2: Ethel sues Lucy to recover for her personal
injury and property damage. Do we dismiss the second case because of claim preclusion?
(i) Let’s see… Be mechanical - don't pass case #1.
(i) Claim preclusion is only when you have brought the same claim twice. In case 2
different P bringing suit against different D – there sides of the v. have changed.
(ii) There is no claim preclusion. But we might dismiss under 13(A) compulsory
counterclaim - Ethel did not assert it in case 1, she would lose case #2.
3) Issue Preclusion (Collateral Estoppel)
(a) Precludes Smith relitigating issues that were actually litigated and decided in a prior action
with Jones.
(i) An issue in case 1 that was decided and the same issue came up in case 2 - we will not
relitigate the issue.
(ii) If court decided in case 1 that a, b, c, d were established facts. If in case 2, need to show
x, y, z, and a, “issue a” is deemed established under issue preclusion and only need to
only show xyz.
(iii)To determine Issue Preclusion, Five Mechanical Requirements:
(i) Case 1 ended in a “valid final judgment on the merits” (same as claim preclusion).
(ii) Have to show that issue in the second case is the same issue which was actually
litigated and determined in case 1.
(iii) Have to show that that issue is necessary and essential to the judgment in case 1.
1. Did the losing party have a strong incentive to defend her action vigorously?
a. One argument for the losing party to prevent collateral estoppel.
(iv) Against whom is issue preclusion used?
1. Can only be used against one of the parties from the first case.
2. The party from the first action cannot seek collateral estoppel against a party in
the second action who was not a party in the first action,
a. Due Process – everyone is entitled to their day in court.
(v) By whom is issue preclusion used?
1. Nonmutual issue preclusion: issue preclusion being used by plaintiff or defendant
in case 2 who was not a party in case 1.
a. Allows a new party to invoke collateral estoppel against a party who litigated
and lost on an issue in a prior action.
(b) HYPO: I own a car and have a roommate, to whom I lend my car. I know I am vicariously
liable for what my roommate does. Roommate collides with Rich who is injured.
(i) Case 1: Rich v. Roommate: Rich loses and roommate wins – final judgment says Rich
was negligent, his fault
(ii) Case 2: Rich v. Me: I'm vicariously liable. No res judicata b/c not same P & D. Can I use
issue preclusion that Freer was negligent?
(i) Requirement 1: Yes
(ii) Requirement 2: Yes - his negligence was litigated and determined
(iii)Requirement 3: Yes, roommate won b/c he was negligent
(iv) Requirement 4: Yes
(v) Requirement 5: Yes, if, Rich had a full chance to litigate in case #1 (which he did)
and I can use that against him in case 2.
(c) HYPO – Non-mutual Offensive
(i) Case 1: Rich v. Roommate: Rich loses and roommate wins – final judgment says Rich
was negligent, his fault
(ii) Case 2: I v. Rich: My car is wrecked, I know that Rich is negligent, my car is busted. Can
I use this?
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(i) Requirement 1: Yes

(ii) Requirement 2: Yes - his negligence was litigated and determined
(iii)Requirement 3: Yes, roommate won b/c he was negligent
(iv) Requirement 4: Yes
(v) Requirement 5: Being used by me. Majority view does not allow non-mutual
offensive. But there is a strong trend to say you can do this if it is fair (Park Lane
Hosiery).
(vi) What does fair mean? Park Lane Hosiery Fairness Factors:
1. Rich had a full chance to litigate in case 1
2. In case 1, Rich could foresee multiple suits
3. I could not have joined easily in case 1
4. There are no inconsistent judgments about this wreck (would be unfair if I could
pick the judgment I liked)
C. Rule 60(b)(6)
 30

INJUNCTIONS AND STANDARDS OF REVIEW:

3 different standards of review ­ (1) clearly erroneous standard ­ ruling on a question of fact ­ deferential 
standard (2) de novo (judgment as a matter of law are appealable and de novo standard of review) and (3) 
motion for a new trial (abuse of discretion standard ­ if this is denied there is a final order and this can go up 
to be appealed ­ but if it is not granted, can this be appealed? To be appealed, the trial has to be over). 
 
Look at 1291 and 1292
1291 ­ gives district courts jurisdiction of appeals
1292(a) ­ interlocutory decisions ­ there is a right to appeal from interlocutory orders ­ (1) like granting or 
refusing (2) appointing receivers
1292(b) ­ everything that is not a right ­ hypo ­ big issue comes up during discovery and district judge rules 
ag/st you as to whether this evidence is admissible ­ can only get an interlocutory opinion if the district court 
judge agrees, and then you have to get approval from the CoA judge ­ much harder to get it here. 

Preliminary Injunction: Rule 65 Injunctions and Restraining Orders 
2. P has to show that damages would insufficient  “no adequate remedy at law” and denial of the
injunction would do irreparable harm
3. Appellate standard of review is discretionary – did the trial judge abuse their power?
4. WALGREEN – efficient breach – what remedy would you recommend – injunction – P has to show 
that damages would be inadequate and that the denial of the injunction would do irreparable harm.

A pending motion for a PI is required prior to make a motion for TRO

4 part rule – under Abbot Laboratories

1. Threshold: Some likelihood of succeeding on the merits
2. No adequate remedy at law and will suffer irreparable harm
If moving party clears both thresholds, the court must then consider
3. The irreparable harm the non-moving party will suffer if preliminary relief is
granted, balancing that harm ag/st the irreparable harm to the moving party if
relief is granted
4. The public interest, meaning the consequences of granting or denying the
injunction to non-parties.

Abbott Laboratories v. Mead Johnson & Co. (1992 7th Circuit)

 Must demonstrate, with some likelihood, case will succeed on the merits
 Moving party faces irreparable harm between the PI injunction hearing and
the end of the trial if the PI is not granted.

Under Rule 65(c) can recover damages for PI that was granted and the moving party ends up losing the
case.
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INJUNCTIONS – Preliminary injunction interlocutory - can be appealed under 1292 – can force mandatory
actions as well. vs. Temporary Restraining Order (can’t be appealed – so short anywhere)