Civ Pro Outline 1l Summary Civil Procedure

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CIV PRO Outline 1L - Summary Civil Procedure
Civil Procedure (Brooklyn Law School)
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CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO
TABLE OF CONTENTS
SUBJECT MATTER JURISJICTION.............................................................................................................3
INTRODUCTION TO SUBJECT MATTER JURISDICTION............................................................................................3
DIVERSITY JURISDICTION................................................................................................................................4
Diversity: General...............................................................................................................................4
Domicile and Citizenship.....................................................................................................................4
Amount in controversy........................................................................................................................5
Citizenship of Non-Natural Persons.....................................................................................................6
Alienage..............................................................................................................................................7
Exceptions to Diversity Jx....................................................................................................................8
FEDERAL QUESTION JURISDICTION...................................................................................................................9
Well-Pleaded Complaint......................................................................................................................9
Evolution of FQJ................................................................................................................................10
Grable Test........................................................................................................................................11
SUPPLEMENTAL JURISDICTION.......................................................................................................................12
Evolution of Supplemental Jx............................................................................................................12
Impleader..........................................................................................................................................13
Back to Evolution of Supplemental Jx................................................................................................14
Supplemental Jx and Diversity..........................................................................................................16
REMOVAL.................................................................................................................................................18
Removal in Diversity Cases................................................................................................................20
PERSONAL JURISJICTION.....................................................................................................................21
INTRODUCTION TO PERSONAL JURISDICTION....................................................................................................21
Jurisdictional predicates....................................................................................................................22
Methods of Raising Jurisdictional Objections....................................................................................22
CONSENT TO JURISDICTION..........................................................................................................................22
Express consent.................................................................................................................................23
Implied consent.................................................................................................................................23
Forum Selection Cases......................................................................................................................24
MINIMUM CONTACTS – MEASURING PJ.........................................................................................................24
STATE AND FEDERAL LONG-ARM STATUTES.....................................................................................................25
MINIMUM CONTACTS (CONT.) AND PROPERTY................................................................................................27
In Rem Jurisdiction............................................................................................................................27
FAIRNESS IN PJ..........................................................................................................................................28
CONTRACT CASES.......................................................................................................................................29
STREAM OF COMMERCE CASES.....................................................................................................................30
INTENTIONAL TORTS...................................................................................................................................32
INTERNET CASES........................................................................................................................................32
GENERAL JX..............................................................................................................................................33
General Jx for Corporations..............................................................................................................33
General Jx for Natural Persons..........................................................................................................34
NOTICE.................................................................................................................................................35
NOTICE: IN GENERAL..................................................................................................................................35
MECHANICS OF SERVICE OF PROCESS.............................................................................................................36
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Rule 4: Summons..............................................................................................................................37
Special Situations..............................................................................................................................40
VENUE..................................................................................................................................................41
VENUE: IN GENERAL...................................................................................................................................41
DETERMINING VENUE IN FEDERAL COURT.......................................................................................................41
Venue Based on Connection to Lawsuit............................................................................................41
Venue Based on Residence................................................................................................................42
“Residual” Venue Category...............................................................................................................42
TRANSFERS OF VENUE.................................................................................................................................43
The Basics.........................................................................................................................................43
28 USC §1404(a)...............................................................................................................................43
28 USC §1406(a)...............................................................................................................................43
Forum Non Conveniens.....................................................................................................................43
Transfer Cases...................................................................................................................................43
APPLICABLE LAW..................................................................................................................................44
ERIE: THE BASICS.......................................................................................................................................45
CHOICE OF LAW APPLIED IN FEDERAL COURTS.................................................................................................46
EVOLUTION OF CHOOSING VERTICAL CHOICE OF LAW.......................................................................................47
1949 Trilogy/ “Triple Play” Cases......................................................................................................48
WHAT TO DO WITH A FEDERAL DIRECTIVE? “GUIDED” ERIE...............................................................................49
Rule Making Process.........................................................................................................................49
Validity..............................................................................................................................................51
Applicability......................................................................................................................................51
FEJERAL RULES OF CIVIL PROCEJURE..................................................................................................53
PLEADING.................................................................................................................................................53
Rule 7: Pleadings...............................................................................................................................53
Rule 8: General Rules of Pleadings....................................................................................................54
Rule 9: Pleading Special Matters.......................................................................................................55
Rule 10: Form of Pleadings...............................................................................................................56
Text of the Rule.................................................................................................................................57
Pleading Timeline..............................................................................................................................57
MOTIONS.................................................................................................................................................58
Rule 12: Defenses and Objections: When and How Presented; Motion for Judgment on the
Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing............................................58
Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions...62
Text of the Rule.................................................................................................................................63
Rule 18: Claim Joinder By π...............................................................................................................64
Rule 13: Counterclaims and Cross-claims..........................................................................................65
Text of the Rule.................................................................................................................................66
Rule 20: Permissive Joinder of Parties...............................................................................................67
Text of the Rule.................................................................................................................................68
Rule 19: Compulsory Joinder of Parties.............................................................................................70
Text of the Rule.................................................................................................................................70
Rule 56: Summary Judgment............................................................................................................73
Rule 56 Roadmap..............................................................................................................................76
PRIOR AJJUJICATION...........................................................................................................................77
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CLAIM PRECLUSION – RES JUDICATA..............................................................................................................77

Res Judicata: Basics...........................................................................................................................77
ISSUE PRECLUSION – COLLATERAL ESTOPPEL....................................................................................................80
Issue Preclusion: The Basics..............................................................................................................80
Non-Party Preclusion........................................................................................................................81
Mutuality of Estoppel........................................................................................................................82
SUBJECT MATTER JURISDICTION
INTRODUCTION TO SUBJECT MATTER JURISDICTION
Jurisdiction
Subject Matter
Personal Jurisdiction
Jurisdiction (SMJ)
(PJ)
(power over type of
(power over parties)
case)
Federal Courts State Courts

(limited jurisdiction) (general jurisdiction)
 Jurisdiction – court must have adjudicatory power consisting of:

1. Personal jurisdiction
2. Subject matter jurisdiction
c. Proper venue
 Subject matter jurisdiction – the authority of the court to hear cases of a particular type/
cases relating to a specific subject matter
1. Unlike personal jx, cannot be conferred by consent of the parties + cannot be waived
 State courts are courts of general jurisdiction – they are presumed to have power to hear
virtually any claim arising under federal or state law, except those falling under the
exclusive jx of federal courts
 Federal courts are courts of limited jurisdiction – Congress defines SMJ of the federal
courts, can only hear specific cases
1. In some rare cases, federal courts have exclusive jurisdiction – these are defined by
Article III §2 (9 types, ex. admiralty, patent)
 Federal courts must dismiss a case whenever it determines that SMJ is lacking and courts
can bring up the matter sua sponte (on their own, without a party’s motion)
1. Objections can be raised at any point in the process, not just at a certain stage
US Constitution Article III §2 Subject Matter

Jurisdiction
c
Federal
Diversity
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Amount in
Alienage
CIVIL PROCEDURE OUTLINE – EFFRON 2016 controversy TSESARENKO
The judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made, under their
authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases
of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a
party;--to controversies between two or more states;--between a state and citizens of another
state;--between citizens of different states;--between citizens of the same state claiming lands
under grants of different states, and between a state, or the citizens thereof, and foreign states,
citizens or subjects.
DIVERSITY JURISDICTION
Diversity: General
 Granted by US Constitution Article III (above) and 28 USC §1cc2 (below)

o §1cc2 mirrors Article III language but adds in requirement of amount in
controversy
 Suits between citizens of different states or between a citizen of US state and an alien
 Diversity: parties from different states
 Alienage: involves a party from another country
28 USC §1332 (a): Diversity of Citizenship
(a) The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state, except that the district
courts shall not have original jurisdiction under this subsection of an action between
citizens of a State and citizens or subjects of a foreign state who are lawfully admitted
for permanent residence in the United States and are domiciled in the same State;
(c) citizens of different States and in which citizens or subjects of a foreign state are
additional parties; and
(4) a foreign state, defined in section 160c(a) of this title, as π and citizens of a State or of
different States.
Domicile and Citizenship
 Citizenship – where a person is domiciled (only for purposes of diversity)

 Domicile = residence + intent to remain or return
o A natural person can only have 1 domicile, corporation can have 2
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o Ways to show intent to remain/return: taxes, new job/lease/contract/house,

changing your mailing address, getting a driver’s license, changing voter
registration (not a comprehensive checklist)
 A natural person only has 1 domicile, which is determined by one’s residence and the
intent to remain or return; one does not lose old domicile before fully acquiring new one
(Mas v. Perry)
o Facts: πs grad students in LA, married in MS, moved back to LA  landlord
watched them through hidden mirror in the bedroom (Mr. Mas (France) & Mrs.
Mas (MS/LA?) v. Perry (LA)
o Issue: Is a party who currently resides in one state, but does not intent to stay in
that state, domiciled there for purposes of diversity jx? NO
o Moving somewhere temporarily as a student does not change your domicile 
Mrs. Mas’ domicile did not change from MS to LA because she was a student
there – no evidence of intent to remain (only there until her husband graduates)
 If a US citizen is domiciled in a foreign country, that does not make them a citizen of that
country
o Because she’s not a citizen of a US state, she cannot be sued under diversity jx
 Complete diversity is required!  no π is a citizen of the same state as any ∆

o All ∆s must be completely diverse from all πs in order to obtain federal jx based
on diversity of citizenship (Strawbridge v. Curtiss)
o But does not prevent a pair of ∆s or πs from being co-citizens
o Common law interpretation of §1cc2, not a Constitutional requirement
o Exception: interpleader requires only minimal diversity (only need two diverse
parties on one side to satisfy minimum diversity)
 Citizenship is determined at the time of commencement of the action
 Presence of a foreign party (citizen, country, or company) does not destroy diversity
 Representatives and administrators are treated as having the citizenship of the party they
represent (§1cc2 (c)(1))
 Person suing on behalf of decedents/minors/incompetents for the purpose of the hearings
is considered to be a citizen of the same state as the person on whose behalf they’re suing
Amount in controversy
 28 USC §1cc2 (a): The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs…
 Amount in controversy – an amount in excess of $75,000 must be disputed in the suit

o $75,000 exactly does not count as meeting the amount in controversy, but
$75,000.01 does!
o Purely statutory, has changed over the years
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 The amount is claimed by π and is valid as long as it’s made in good faith (does not need
to specify the exact amount)
o In order to reject it, it must appear to a “legal certainty” that the possible recovery
is less than the claim (usually statutorily or contractually)
 Ultimate recovery is irrelevant, as long as in excess of $75,000 is claimed in good faith
when complaint is filed then it doesn’t matter how much π actually recovers (Mas v.
Perry)
 If π is asking for equitable relief and not money (ex. injunction), then 2 factors are taken
into account: (1) cost of compliance for ∆, and (2) cost of value to π  higher of 2
numbers considered by the court
Aggregation of claims:
 Only look at what π is claiming! Value of ∆’s counterclaim does not matter
 Claims against the same ∆ can be aggregated whether or not they are transactionally
related/several πs can join against one or more ∆s and aggregate their claims if they have
a common, undivided interest to the claim (joint liability)
 A single π cannot aggregate claims sought against multiple ∆s
 If a single π is claiming against 2 ∆s, and one of the ∆s meets the amount in controversy,
but the other one doesn’t, the second one cannot proceed in federal court, but the first can
 Multiple πs claims that alone do not meet the amount in controversy cannot aggregate
their claims against a single ∆
 Multiple πs, where one meets the amount in controversy, but the others do not, against
ONE ∆, are allowable under supplemental jurisdiction (Star-Kist)
 Class action – at least one named member must meet amount and you cannot aggregate
the named members’ claims (Exxon, Clark)
Citizenship of Non-Natural Persons
28 USC §1332 (c): Diversity of Citizenship
(c) For the purposes of this section and section 1441 of this title—
(1) a corporation shall be deemed to be a citizen of every State and foreign state by which it
has been incorporated and of the State or foreign state where it has its principal place of
business, except that in any direct action against the insurer of a policy or contract of liability
insurance, whether incorporated or unincorporated, to which action the insured is not joined as
a party-∆, such insurer shall be deemed a citizen of—
(A) every State and foreign state of which the insured is a citizen;
(B) every State and foreign state by which the insurer has been incorporated; and
(C) the State or foreign state where the insurer has its principal place of business; and
(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only
of the same State as the decedent, and the legal representative of an infant or incompetent shall
be deemed to be a citizen only of the same State as the infant or incompetent.
 Corporations have 2 domiciles:

1. State of incorporation
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2. Principal place of business

 State of incorporation is determined by where the entity has incorporated (papers were
submitted)
 A corporation’s principal place of business, for federal diversity jurisdiction purposes,
refers to the place where the corporation’s high level officers direct, control, and
coordinate the company’s activities (Hertz Corp. v. Friend)
o Facts: π brought a class action, representing the employees of Hertz, suing for
violation of wage & hour laws under CA state law
o Issue: For the purposes of determining a corporation's principal place of business,
can a court disregard the location of the corporation's headquarters? NO
o Nerve center test – principal place of business is where company controls and
coordinate most of its activity (usually corporate HQ)
 If HQ is not the actual center of direction, control and coordination of the
company then principal place of business will not be HQ
o “Place of activity” test (where majority of physical activity takes place) and “total
activity” test (balance of nerve center and place of activity) both rejected by
SCOTUS
 The citizenship of all partners (limited + general) should be considered in determining the
citizenship of a non-corporate business association for purposes of diversity jurisdiction
(Carden v. Arkoma Associates)
o Facts: Arkoma (AZ LLP) brought a breach of contract dispute against ∆ (LA), ∆
moved to dismiss for diversity because 1 of the LLP’s limited partners was a
citizen of LA
o Issue: Should the citizenship of limited partners be considered in determining the
citizenship of a limited partnership for purposes of diversity jurisdiction? YES
 Does a LLP count as a corporation for purposes of diversity? NO
o Limited partners = no interest in management, alike members; non-corporate
business association = LLP, LLC, PC etc.
o Puerto Rico v. Russell & Co.: foreign law equivalent of a corporation is
considered a corporation for US suits
o Navarro Savings Assn. v. Lee: If trustees of a company sue in their own name,
then the beneficiaries’ citizenship does not need to be considered
 MA business trust v. TX citizen (1 of trust’s beneficiaries from TX) 
trustees sued in their own name (so precedent doesn’t apply here)
o Narrow reading of “corporation” by Scalia  LLP citizenship not determined by
principal place of business
 Class actions: citizenship is that of the named members who sue on behalf of their class
 Trusts: citizenship of trustees, not that of the individual shareholders (Navarro Savings
Assn. v. Lee)
Alienage
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 Alienage jurisdiction – allows suits between US citizen and alien (foreigner) in federal
court
 Found in §1cc2(a)(2) + amount in controversy must also be met
 Citizenship of the alien does not matter  all regarded the same, as aliens
o Allowed when aliens are additional parties – cannot be 2 aliens suing each other
o Ex. P1 (France) v. D1 (England) = no (2 aliens, no diversity)
o P1 (NJ) & P2 (France) v. D1 (NY) & D1 (England) = yes (aliens additional)
 Jx is not destroyed if 1+ alien is present on each side of the litigation if US citizens are
present on both sides  jx is then considered conventional diversity rather than alienage
o See last example above  analyzed as if the foreigners are not present, hence
requirements for conventional diversity are met
 Permanent residents used to be treated as aliens and not US citizens
o New law: permanent residents now sue as citizens of the state they are domiciled
in (not in effect during Mas v. Perry!)
Exceptions to Diversity Jx
Fraudulent Joinder
 Parties joined for the purpose of destroying diversity (fraudulent joinder) are disregarded
when determining citizenship and diversity (Rose v. Giamatti)
o Facts: ∆ (MLB Commissioner) initiated an investigation into allegations that π
(Reds manager) wagered on MLB games  π sought investigation injunction
o Issue: Should a district court consider the citizenship of parties who are not real
parties to the controversy for purposes of diversity jurisdiction?
o Disregard citizenship of not real parties (difficult to prove sometimes that
someone is a nominal party and not a real one)
 Decide that MLB is nominal here because Commissioner is an
independent contractor (doesn’t actually work for them) + baseball is a
special exception
o 28 USC §1c59 – doctrine of fraudulent joinder (only used for diversity)
 Application of §1c59 does not invalidate assignment
o If A assigns her claim to B, then B sues ∆ on behalf of A because B satisfies
diversity requirement  B can still sue on behalf of A, court just ignores
assignment when evaluating diversity claims (looks at A’s citizenship)
28 USC §1359: Parties Collusively Joined or Made
A district court shall not have jurisdiction of a civil action in which any party, by assignment
or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of
such court.
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Domestic Relations
 Federal courts to do not hear domestic relations cases

 Domestic relations in this definition: “divorce, alimony, child custody”
o Besides this, federal courts can decide on interfamilial disputes
 Historically such disputes heard by church courts + state courts have developed expertise
Probate
 Probate – mechanism for winding up deceased’s affairs, paying her taxes, distributing
her assets for those specified in her will
 Federal courts do not oversee administration of one’s estate BUT can decide a case
against an executor to assert a claim against an estate
o Only if federal court does not take control over the estate or interfere with state
probate proceedings
FEDERAL QUESTION JURISDICTION

 Federal question jurisdiction – cases “arising under” any federal law may be brought in
federal court
o Cases go to court because of the nature of the claim itself, not any characteristics
of the parties (like diversity of citizenship)
o Citizenship irrelevant, no amount in controversy required (until 1980 there was a
controversy requirement – could come up in old cases)
 Granted by US Constitution Article III (see “Intro to SMJ”) and 28 USC §1cc1 (below)
o 1cc1 doesn’t provide for exclusive jurisdiction, only concurrent jurisdiction
(claims can be heard both in state & federal)
o But specific federal laws – § 1cc7 (federal antitrust), § 1c4c (civil rights), § 1cc8
(patent) – grant exclusive FQJ
28 USC §1331: Federal Question
The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.
Well-Pleaded Complaint
 For a suit to arise under the Constitution and laws of the United States, giving a federal
court jurisdiction to hear the case, a π must allege a cause of action based upon those laws
or that Constitution (Louisville & Nashville RR v. Mottley)
o The federal question must arise on the face of a well-pleaded complaint
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 Well-pleaded refers to that part of the complaint supporting only π’s

claim (ignores extra material in the complaint)
o Facts: Mottleys injured, get lifetime passes for railroad travel  Congress issued
statute claiming such passes unconstitutional
o Issue: For a suit to arise under the Constitution and laws of the United States,
giving a federal jurisdiction to hear the case, must a π allege a COA based upon
those laws or that Constitution?
o The court looks only to π’s complaint (COA) - not to ∆’s asserted defenses or
counterclaims – to determine whether there is FQJ
o Here, federal law (Constitution) would only be brought up as a defense, π
wouldn’t be brought up fully by π – so does not arise on the face of a well-
pleaded complaint
Evolution of FQJ
American Well Smith Merrell Grable

Works (1916) (1920) Dow (1986) (2005)
 American Well Works v. Layne: If federal law creates your COA then the case arises
under federal law
o Justice Holmes’ narrow reading of FQJ
o Too narrow – there are state law claims with a federal question
 Smith: If the state law COA incorporates a federal question then it can be brought in
federal court (as long as π raises federal question)
o Too expansive – pretty much the opposite of American Well Works (pendulum
swing)
 Merrell Dow: The mere presence of a federal issue in the π’s claim does not confer FQJ
(no implied private right of action, not enough of a federal element)
o Facts: πs bring a bunch of state law claims, one of them misbranding (not labeling
according to FDA rules – violation; only available branding laws are federal)
o Issue: is misbranding a federal claim? Does the question arise under federal law?
o Court split on whether there was express right of action but conclude that there
was no implied private right of action here (4 part test used, see below)
o If there’s an implied private right of action, then more likely that claim “arises
under”
 Argument post-Merrell Dow whether implied right of action was not
required (resolved by Grable)
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 Express right of action – you have a right of action when the federal law explicitly
creates a right of action
o Mechanical test (Holmes test) – the law under which the suit arose and that
created the COA is the one used to determine jx (American Well Works)
 Ex. If a claim was created by state law but also includes federal elements,
the case did not arise under federal law and does not have centrality
 If federal law creates the claim, and those harmed by a certain behavior
sue under federal law (have “implied rights of action”) then invocation of
federal question jurisdiction would be upheld by the Holmes test
 Implied private right of action – circumstances when the law that creates rights also
allows private parties to bring a lawsuit, even though no such remedy is explicitly
provided for in the law (Merrell Dow)
o 4-part test from Court v. Ash used to determine whether implied right of action
exists (*don’t need to go through test for exam, but use for own consideration of
guessing whether right exists)
1. Is π part of the special class of people for whose benefit the act was
passed?
2. Did Congress intend to provide a private right of action (but left it out)?
c. Is the purpose of the statute served by creating a private right of action?
4. Is the subject of the statute one traditionally relegated to state law? (e.g
tort, family, criminal)
Grable Test
 Grable v. Darue – A federal court may have jurisdiction over a state COA, if the action
has a substantial federal component in actual controversy, and federal jurisdiction would
not disrupt the balance of labor between state and federal courts
o Clarified all outstanding inconsistences regarding FQJ, gave a test to determine in
the future whether a claim “arises under”
 Facts: IRS seized Grable’s property re: tax delinquency, Darue bought the property from
the IRS, Grable filed quiet title action & claimed improper service (certified mail but he
claims it should have been personal)  Darue removes to federal court arguing FQJ
o Quiet title – state COA (no federal counterpart), but improper notice – federal
issue
 Issue: When a state cause of action addresses a substantial federal question, may the case
be properly removed to federal court?
o Is it possible to bring valid FQJ claim without implied private right of action?
 Passes the Mottley test? Yes, Grable is π, brings up issue himself
 Passes the Smith test? Yes, incorporates federal issue
 Passes the Merrell Dow test? No, no federal implied private right of action
 4-part test (Grable factors):

1. Is it an essential element of the state law claim?
 Do you have to go through a federal issue to resolve a state issue? Is it
brought or implied?
2. Is the federal issue actually in dispute?
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 These parties must actually be disputing it and not resolved by stipulation

c. Is it an important issue in federal law?
 Is it substantial to federal interests? Is it unresolved? Not just relevant to
the case at hand but to the system/country in general – unsettled issue that
could be precedent
4. Does it disrupt the federal/state court balance? Does this overstep the
boundaries created by Congress for federal courts?
 Up to Congress to determine boundaries of federal courts
 Merrell Dow useful again: private right of action = good indicator of a
federal remedy (implied by Congress), but things like notice aren’t subject
to private right of action
 A state court’s resolution of a hypothetical question of patent law is not substantial

enough to mandate federal review (Gunn v. Minton)
o Facts: Minton brought malpractice action against Gunn (re: past patent case),
appellate court rules that should have been brought in federal court because
malpractice claim turned on a question of federal law
o Issue: Is a state court’s resolution of a hypothetical question of patent law
substantial enough to mandate federal review?
o Court uses Grable factors to come to answer – does not meet factors c and 4 
claim does not “arise under” (even if π wins malpractice suit, patent is still
invalid)
SUPPLEMENTAL JURISDICTION
 Every single claim asserted in a case in federal court (not just π’s original claim) must
satisfy a basis of federal subject matter jurisdiction
o Must satisfy independent basis for subject matter jurisdiction – would be
possible to bring claim to federal court if it was stand alone, even without the
other claims of the case combined with it (diversity or federal question)
 Supplemental jurisdiction – allows a federal court to hear claims that would not get into
federal court by themselves
o Applies to cases which do not satisfy independent basis
o Used to be referred to as ancillary or pendant jx, now just supplemental
 Supplemental jx is never available to get original/”jurisdiction-invoking” claim into court
o Only available for additional claims
o Original anchor claim must satisfy diversity/alienage/federal question etc.
 Supplemental jurisdiction is not needed if there is independent basis
Evolution of Supplemental Jx
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Owen v. 28 USC Exxon

Gibbs Finley
Moore (1926) Kroger §1c67 Mobil
(1966) (1989)
(1978) (1990) (2005)
 United Mine Workers of America v. Gibbs: A federal court can exercise pendent
jurisdiction over state and federal claims if the federal and state claims are the type that
would be expected to be heard at a single hearing and are “derive[d] from a common
nucleus of operative fact.”
o Facts: Union workers forcefully prevent opening of a new mine that was promised
to them but given to another organization (federal COA – secondary boycotts,
state – conspiracy & boycott)
o Issue: May a federal court hear a case based on a state claim if the federal claim is
dismissed but the claims arise from the same factual bases?
o No diversity, no independent basis for SMJ for state claims, federal claim
dismissed
o All claims arise from forcible prevention of opening the mine, company’s
misconduct and Gibbs’ problem with the company – same operative facts
 Moore v. NY Cotton Exchange: For purposes of supplemental jurisdiction, a

counterclaim that alleges, in part, the same essential facts as the original complaint
arises out of the same transaction that is the subject matter of the complaint
o Facts: Odd-Lot applied to get quotes from NY Cotton Exchange, then claimed
violation of anti-trust laws for barring them from quotes  NYCE counterclaim:
Odd-Lot and ∆ (OL president) were using information anyways, so it was fraud
o Issue: Does a counterclaim that alleges, in part, the same essential facts as the
original complaint arise out of the same transaction that is the subject matter of
the complaint?
o Anti-trust – federal claim, passes Mottley test, but counter-claim is state tort claim
o Logical relationship test – claims must “arise out of the same transaction”
 Transaction = series of occurrences that depend on their logical
relationship, not necessarily immediate connection
o Here, facts didn’t come from same nucleus, but the transaction binds them
together
Impleader
 Impleader – allows ∆ to join absentee to the case, “who is or may be liable to ∆ for all or
part of the claim against it”
o Rule 14(a) overrides π’s party structure
o Absentee joined is called “third-party defendant” (TPD)
 Impleader reflects that absentee owes ∆ for all or part of the claim that has been asserted
against ∆  claims are almost always for indemnity or contribution
 ∆ has a right to implead 14 days after serving original answer to π’s complaint
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o After 14 days, must make a motion seeking court permission to implead 

usually granted
 May (not must) implead – right, not requirement
o ∆ can filed the claim against absentee but the claim doesn’t come into fruition
until π wins the underlying case; then the court goes ahead and determines
whether ∆ is entitled to contribution from absentee
o Impleader ≠ crossclaim
 TPD, when joined to a case by impleader, can raise any defense against π that ∆ would’ve
o Compulsory counterclaim – In most cases, must assert the claim – if it’s not
raised then by either absentee or ∆ then will be estopped from suing on the claim
anywhere
 Upsloping 14(a) claim – π asserts a claim against TPD once TPD is joined
o Not counterclaim because they are not yet opposing parties
o Not crossclaim because not on one side
 Downsloping 14(a) claim – TPD asserts a claim against π
Back to Evolution of Supplemental Jx
 Owen v. Kroger: In an action in which federal jurisdiction is based on diversity, π may

not assert a claim against a third-party ∆ (TPD) when there is no independent basis for
federal jurisdiction over that claim unless the third party complaint depends at least in
part upon the resolution of the primary lawsuit.
o Facts: Kroger (IA) sues OPPD (NE) for husband’s wrongful death, OPPD
impleads Owen (NE) (crane owner/operator) under FRCP 14(a), claiming they
were the ones responsible for death
o Issue: Can a court exercise diversity jurisdiction when π amends her complaint to
add a state law claim against a party of her same citizenship? (basically what is
now §1c67(b))
o Kroger v. OPPD allowed because of diversity  Kroger amends complaint,
naming Owen as additional ∆  OPPD gets summary judgement
F (before) (then) (now)
o Because of a geographical issue (Missouri River), Owen becomes citizen of IA,

not NE  Kroger claims independent basis for OPPD and Owen suit is
supplemental
o SCOTUS: once parties are in suit they all count because otherwise would make
diversity too broad (π would be able to assert claim against diverse ∆ and then
implead whoever they want)  no supplemental jx (would hold only if impleader
remains TPD and π doesn’t assert direct claims against him)
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o IF π asserts a non-federal claim against a diverse ∆ and the ∆ impleads a non-

diverse TPD, then there is no supplemental jx over any claims that π asserts
against the impleaded ∆
 Finley v. United States: A federal court may not assert pendent-party jurisdiction
under the Federal Tort Claims Act with respect to additional parties over whom the
court does not have independent jurisdiction
o Facts: Finley sued FAA and the city over plane accident on runway
o No diversity, no FQ, can’t combine claims in state court and can’t go to
federal court because there’s a special one for FAA suits (risk of inconsistent
judgments)
o SCOTUS: must be independent basis of jx over each party  Congress
responds by passing §1c67
28 USC §1367 – Supplemental Jurisdiction
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal
statute, in any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution. Such supplemental jurisdiction shall
include claims that involve the joinder or intervention of additional parties.
(b) In any civil action of which the district courts have original jurisdiction founded solely on
section 1cc2 of this title, the district courts shall not have supplemental jurisdiction under
subsection (a) over claims by πs against persons made parties under Rule 14, 19, 20, or 24 of
the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as πs
under Rule 19 of such rules, or seeking to intervene as πs under Rule 24 of such rules, when
exercising supplemental jurisdiction over such claims would be inconsistent with the
jurisdictional requirements of §1cc2.
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction,
(c) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
 Structure of §1c67
o (a) – grant of supplemental jx
o (b) – withdraws supplemental jx in certain instances
o (c) – instances where court might decline to exercise supplemental jx
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o (d) – tolling provision, stops the running of statute of limitations in certain

instances
o (e) – defines “State” to include DC and other political subdivisions
 §1c67(a) – grants supplemental jx in the broadest possible terms

o Meant to codify Gibbs’ common nucleus test
o “Same case or controversy” language – mirrors Gibbs (“common nucleus of
operative fact) and Moore (“same transaction or occurrence”) test
 The use of Gibbs is more common, but consult Moore when it comes to
counter-claims
 §1c67(b) prohibits supplemental jx in certain cases, as to not eviscerate the complete
diversity rule (APPLIES ONLY TO DIVERSITY ANCHOR CLAIMS)
o Applies only in cases in which the jurisdiction-invoking claim was asserted under
§1cc2 (diversity jurisdiction) (!)
 Never applicable if π’s original claim invoked FQJ
o Applies only to claims asserted by π
 ∆’s claims not restricted by §1c67(b)
 In Gibbs, court gave c examples of when a court can refuse to exercise supplemental jx
o 1) If the federal claims were dismissed early in the proceedings
o 2) if the state issues “substantially predominate”
o c) If considerations of “judicial economy, convenience, and fairness to litigants”
counseled such a refusal to exercise supplemental jx
 §1c67(c) gives 4 factors of when there can be a refusal:
o 1) claim “raises a novel or complex issues of state law”
o 2) claim “substantially predominates” over the claim that raises fed subject matter
jurisdiction
o c) court has dismissed all claims over which it has original jx
 Related to the first Gibbs factor
 If early on, can be dismissed. If happens late in the proceedings, makes
sense to keep supplemental claim in federal
 Ex. Avoiding jury confusion in treating divergent legal theories of relief
(reflected in Gibbs but not 1c67)
o 4) in “exceptional circumstances”
 If supplemental jx is declined under §1c67(c), only the supplemental claim is dismissed

o Does not dismiss original claim that invoked fed subject matter jurisdiction
o Dismissed without prejudice, so that π can assert claim in state court
 §1c67(d) states that the statute of limitations is tolled while the case is pending in fed
court and for c0 days after dismissal
o Tolling – arresting or stopping a statute of limitations from running
o Applies only to claims dismissed under §1c67(c)!
Supplemental Jx and Diversity
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 A diverse π cannot use supplemental jx against third-party ∆  see Owen v. Kroger

above
 When the anchor claim is diversity,
1. §1c67 generally allows additional claims asserted by ∆s
2. But restricts additional claims asserted by πs
 Rationale: allowing such claims would allow πs to avoid diversity
requirement by only suing diverse parties and then adding claims against
non-diverse under supplemental jx
 Supplemental jx is NOT ALLOWED under 1c67(b) when:
1. Claims against third-party defendants: claims by π against TPD (Rule 14(a))
2. Compulsory joinder: neither claims against or by someone joined under 19(a)
c. Rule 20 joinder: claims by π against parties permissively joined under Rule 20
 EXCEPT: when someone joins as a Rule 20 as a co-π, rather than co-∆
(then supplemental jx allowed)
 When supplemental jx is STILL ALLOWED:

1. Compulsory counter-claims: Rule 1c(a)
2. Additional parties to compulsory counter-claims: Rule 1c(h)
c. Multiple πs joined under Rule 20: multiple πs who join together
 Supplemental jx applies for amount-in-controversy purposes but does not
apply to remove requirement of complete diversity (Exxon Mobil v.
Allapattah)
4. Class action πs: Joinder of πs for Rule 2c class actions based on diversity
 If 1 or more named πs meet diversity and controversy, the unnamed πs
don’t need to meet these requirements because they fall under
supplemental jx (Exxon Mobil v. Allapattah)
5. Cross-claims: Rule 1c(g)
6. Impleader: Rule 14 impleader of TPD
 Allows claims by and against third-party πs and claims by TPD, but not
clams by original π against TPD
 Rosario Ortega v. Star-Kist Foods - the lack of sufficient amount in controversy from the
joined parties does not “contaminate” the case for supplemental jurisdiction to apply, as
would the destruction of diversity by a joined party
o Facts: π was a young girl who sued ∆ based on diversity after cutting herself on a
can of tuna her family joined the suit under Rule 20 for emotional distress but she
was the only one that met amount in controversy
o Maximum diversity is necessary because without, there be no advantage to one
side because of citizenship
o The amount in controversy is only part of the rule to make sure the case is of
sufficient importance, and the lack of such by joined parties does not lessen the
significance of the party who meets it.
o * Case consolidated with Exxon and the two were decided by SCOTUS together
 Exxon Mobil v. Allapatah: Where other elements of diversity jurisdiction are present and
at least one named π satisfies the amount-in-controversy requirement, the court may
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exercise jurisdiction over other πs who might otherwise be properly joined but who do
not allege damages which reach the jurisdictional amount
o Facts: Class action of 10,000 gas station owners who buy gas from Exxon,
alleging fuel overcharging; not all owners’ damages met controversy
o Issue: Can a federal court in a diversity action exercise supplemental jurisdiction
over additional πs whose claims do not satisfy the minimum amount-in-
controversy requirement, even when those claims are part of the same claims that
do satisfy?
o Unnamed members of a class action suit were not all required to meet the amount-
in-controversy requirement, so long as at least one π did
o Clark rule still valid: can’t aggregate πs’ claims to meet amount
 Pre-§1367:
o Each π/claim in a case must meet the amount in controversy requirement for 1cc2
(Clark)
o Each class member in a class action must meet the amount in controversy
requirement for 1cc2 (Zahn)
o Complete diversity required
 Post-§1367:
o At least one π/claim must meet the amount in controversy requirement for §1cc2
o At least one class member in a class action must meet the amount in controversy
requirement for 1cc2
o OR the aggregate amount in controversy for the class exceeds $5 million (CAFA)
o Complete diversity still required
REMOVAL
 Removal – mechanism that allows ∆ to remove a case from state court to federal if π
originally filed in state
o Found in §§1441, 1446, and 1447 (amended by Jurisdiction and Venue
Clarification Act of 2011)
o No permission needed to remove a case – ∆ must file a notice of removal in
federal court, give written notice of removal to all adverse parties, and file a copy
of notice in state court (divests the court of jx)
o NOT called transfer
 Transfer – changing venue from one federal trial court to another
o Removal – one-way street, only from state to federal
 Case can be moved from federal to state but then it is called “remanded”
 By removing to federal court, ∆ does not waive the defense of lack of personal jx
 Can only remove to federal court which “embraces” (geographically) the state court
where originally filed
 ∆ can remove (to federal)  if ∆ removes, federal judge can remand
o If π files (in federal)  federal judge can dismiss
o ALL ∆s must agree to remove – “rule of unanimity”
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 §1446(b)(2)(A)
 Notice of removal must be filed in federal court within c0 days after receipt by ∆ of
service
o c0 days from service of process, not informal sending of a copy of the complaint
 “Last-served approach” – if 2 or more ∆s, c0 days refresh when each ∆ is served with
process
28 USC §1441: Removal of Civil Actions
(a) Generally.—
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State
court of which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States for the
district and division embracing the place where such action is pending.
(b) Removal Based on Diversity of Citizenship.—
(1) …
(2) A civil action otherwise removable solely on the basis of the jurisdiction under section
1cc2(a) of this title may not be removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action is brought.
(c) Joinder of Federal Law Claims and State Law Claims.—
(1) If a civil action includes—

(A) a claim arising under the Constitution, laws, or treaties of the United States (within
the meaning of section 1cc1 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court or a
claim that has been made nonremovable by statute,
the entire action may be removed if the action would be removable without the inclusion of
the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court shall sever
from the action all claims described in paragraph (1)(B) and shall remand the severed claims
to the State court from which the action was removed. Only defendants against whom a claim
described in paragraph (1)(A) has been asserted are required to join in or consent to the
removal under paragraph (1).
28 USC §1445
(a) A civil action in any State court against a railroad or its receivers or trustees, arising under
sections 1–4 and 5–10 of the Act of April 22, 1908 (45 U.S.C. 51–54, 55–60), may not be
removed to any district court of the United States.
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(b) A civil action in any State court against a carrier or its receivers or trustees to recover
damages for delay, loss, or injury of shipments, arising under §11706 or 14706 of title 49, may
not be removed to any district court of the United States unless the matter in controversy
exceeds $10,000, exclusive of interest and costs.
(c) A civil action in any State court arising under the workmen’s compensation laws of such
State may not be removed to any district court of the United States.
(d) A civil action in any State court arising under §40c02 of the Violence Against Women Act
of 1994 may not be removed to any district court of the United States.
28 USC §1446 – Procedure for Removal of Civil Actions
• ∆ must file a notice of removal within c0 days of being served with the lawsuit, or
•Within c0 days of the case becoming removable, but
•There is a one year time limit for removing cases after commencement of the action.
28 USC §1447 – Procedure After Removal Generally

(Remand)
 A motion to remand must be filed within c0 days of the removal, but

 The court may raise the issue of subject matter jurisdiction sua sponte at any point
 Remand orders are not appealable unless the case was removed under §144c, §1447(d)
Removal in Diversity Cases
 If removal is improper for any reason other than lack of SMJ (ex. improper notice), then
π must move to remand within c0 days after removal
o If π doesn’t, procedural defect is waived and case will not be remanded
o But, if there is no SMJ, then there is no time limit for π to move to remand
o Court must also remand sua sponte
 ∆ can remove only if case satisfies federal SMJ (diversity or FQJ)
 Even if late in the proceedings, court must remand whenever it discovers that there’s no
SMJ
o If originally filed in federal court, case will be dismissed
o If originally filed in state court, then case will be remanded
o If jurisdictional defect is cured before entry of judgement, then removal might be
upheld
 Ex. If π sues 2 ∆s and ∆2 destroys maximum diversity  if ∆2 is removed
before judgment is entered then diversity will be preserved and removal
might be upheld
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 ∆ has the burden of establishing federal SMJ, but must do so on the basis of π’s
complaint
o π’s complaint is the one that must invoke federal subject matter jurisdiction, not
the ∆’s counterclaim
o π’s dollar demand in her complaint is deemed to be amount in controversy
(§1446(c)(2))
 2 EXCEPTIONS to removal in diversity of citizenship cases:

1. Cannot remove diversity case if any ∆ is a citizen of the forum where state claim
is brought – home state exception  no need for the protection of federal court
2. Case invoking §1cc2 cannot be removed more than 1 year after commencement
of action
 ∆s still only have c0 days to remove from when case becomes removable!
 But if, If π sues 2 ∆s and ∆2 destroys maximum diversity, π later dismisses
the claim against ∆2  case then becomes removable
o §1446(c)(1) exception: can be removed more than 1 year is court finds π acted in
bad faith (ex. Initially joined non-diverse party simply to defeat removal)
o §1441(c) – If state claim joined that does not invoke diversity or supplemental jx,
then entire case may be removed to federal court but then federal court must sever
the state law claims and remand them to state court
PERSONAL JURISDICTION
INTRODUCTION TO PERSONAL JURISDICTION

Subject Matter Jurisdiction Personal Jurisdiction
- Rules apply to federal courts - Rules apply both to federal and state courts
- Can evaluate SMJ at any point + sua sponte - Parties are responsible for raising objections
+ right can be waived
- Parties may not consent to SMJ - Parties may consent to PJ
- Constitution grants authority for SMJ - Constitution provides limits on PJ
 SMJ: does the court have the power to hear the case?
 PJ: does the court have power over the parties to the action?
 Limitations only apply to ∆, courts always have PJ over π
 Personal jurisdiction cannot be exercised unless the forum state has a statute permitting it
 Traditional bases of jx are recognized as constitutional

1. Power
 Power over persons or property
2. Presence
 See Burnham (under general jx topic)
c. Domicile
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 Same test as for SMJ (residence + intent to remain/return)

4. Consent
 Express or implied
Jurisdictional predicates
 In Personam: Jurisdiction over the person herself. A judgment against this person creates
a personal obligation for the full amount of the judgment.
 In rem: Jurisdiction over the property in an action to determine the ownership of the
property itself.
 Quasi in rem (QIR) I: Jurisdiction over the property in an action to determine the
ownership of the property itself as between and among the parties to the case.
 Quasi in rem (QIR) II: Jurisdiction over the property owned by a party to a dispute that
is unrelated to the ownership of the property. A judgment in this case is valid only to the
amount of the value of the property.
Methods of Raising Jurisdictional Objections

 Direct Attack: Before raising any kind of defense on the merits by challenging
jurisdiction, ∆ can make a “special appearance,” contesting jurisdiction without
submitting to the forum (given by statute in all 50 states)
o If you are in federal court, you can make a 12(b)(2) motion to dismiss for lack of PJ
(or equivalent in state court).
 Collateral Attack: Defendant allows Default Judgment. Issue is then resolved when
either one of the following two occurs:
1. Original ∆ sues to get the property back that was taken by the court (just like
Pennoyer).
2. Original π sues to enforce the judgment (π sues and wins in one state, and then if
there is property in another state, π sues in the second state to attach the property)
CONSENT TO JURISDICTION
 Consent – a traditional basis for personal jurisdiction; c ways to get consent:
1. Express consent
 Voluntary appearance in the forum (special appearance)
 Not all US jurisdictions allow for a special appearance to contest forum
(not constitutionally required)
2. Implied consent
 Ex. non-resident motor vehicle statutes
c. Inferred consent
 Contract – choice of forum clause
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 It is constitutionally permissible for a forum state to retain PJ over persons domiciled

therein even when such persons are served with process outside of the forum state.
(Milliken v. Meyer)
 Due Process clauses of the Constitution require appropriate personal jurisdiction and
notice
Pennoyer v. Nef
Notice of the lawsuit

Power over the parties (mechanics of service -
(personal jurisdiction) constitutional
requirement)
Express consent
 Court may enter judgment against a non-resident only if the party (a) is personally served
within the state, or b) has property within the state, which is attached before litigation
begins (Pennoyer v. Neff)
o If you are going to use property as a jurisdictional predicate, it must be added at
the beginning (QIR II case)
 Attachment of property = notice (still good law today)
o Under the Due Process Clause, no person is subject to the jurisdiction of a court
unless she voluntarily appears in the court, is found within the state, resides in the
state, or has property in the state that the court has attached
o A forum state retains PJ over those domiciled therein even when those persons are
served out of state
o Facts: a state court entered a default judgment against a non-resident of the state,
∆ argued that the judgement against him was deficient
o Issue: Must a party who has no connection with a state other than ownership of
property there be subjected to its courts’ jurisdiction?
o Power theory of jx:
 State sovereignty supports jurisdiction over persons and property within a
state’s borders (territorial power)
 State sovereignty also limits ability of states to assert power over persons
and things outside of its borders (comity)
Implied consent
 A party’s consent to PJ in the forum state may be implied by certain activities

 Implied consent to service is the cost ∆ pays to engage in this dangerous activity and
drive under protections of MA law (Hess v. Pawloski)
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o Service of process on a gov’nt official made an agent of a non-resident by law is

sufficient to confer jx
o Facts: ∆ injured π in a car accident in MA, ∆ was served with process through the
Registrar of Motor Vehicles, pursuant to a state non-resident motor vehicle statute
o that made the Registrar an out-of-state driver’s agent for service of process
o Issue: May a state claim jurisdiction over a nonresident for claims arising from
the nonresident’s use of the state’s highways?
Forum Selection Cases
 Forum selection clause – clause/agreement in which the parties agree to litigate in a

particular forum
 Forum selection clauses confer PJ on the chosen forum and preclude jurisdiction in all
other forums.
 Forum selection clauses in standard form contracts are enforceable so long as they are
not the result of fraud or overreaching, even if they are not read or seen.
 No connection to the forum from either party necessary
o In America, court cannot deny to hear a case
 Validity of forum selection clause upheld because the parties negotiated the contract
extensively (Bremen v. Zapata)
o Facts: A company agreed to tow a boat from Louisiana to Italy. The towing
contract included a forum selection clause in London. A storm caused damage to
the boat. The suit was filed in Florida, where the court found that the forum
selection clause was valid and the suit needs to be filed in London.
 A forum selection clause is not fundamentally unfair solely because the clause was not
negotiated (Carnival Cruise Lines, Inc. v. Shute)
o Facts: Women injured in a slip and fall on a Carnival Cruise. The woman’s cruise
ticket indicated that all suits should be filed in Florida. Court held that the Forum
Selection Clause was enforceable.
o No fraud or malevolent act by π in choosing forum
MINIMUM CONTACTS – MEASURING PJ
 Minimum contacts test established by International Shoe Co. v. Washington

o Established general jx and specific jx
 General jurisdiction – jx over any claim in any suit
 Specific jurisdiction – jx for claims and lawsuits arising out of specific contacts with the
forum state
 For a ∆ not present within the territory of a forum to be subjected to a judgment in

personam, due process requires that he have certain minimum contacts with the forum
such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice. (Int. Shoe)
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o Regular contacts with a state will subject a ∆ to jx of that state’s court

 Facts: a DE corporation with HQ in MO regularly solicited orders in WA through
salesmen who resided in WA. The State of WA sued the corporation for unpaid
unemployment taxes
 Characteristics of the Minimum Contacts Test:
o “Neither irregular nor casual”
o “Systematic and continuous”
o “Resulted in a high volume of interstate commerce”
Examples of minimum contacts Characterizations of minimum contacts

Salesmen were under direct control of the “Neither irregular nor casual”
corporation
Salesmen lived and worked in WA “Systematic and continuous”
Salesmen were compensated based on “Resulted in a high volume of interstate
commissions from sales made in WA commerce”
Business costs reimbursed by the corporation
Orders were transmitted to St. Louis and
shipped back to WA
 FOB: delivery fully paid for by buyer

o If the buyer controls where product goes, then it’s not necessarily shipped to WA
o Int. Shoe wasn’t making decisions where to send the shows + wasn’t paying to
ship them to WA  controlled by buyer
STATE AND FEDERAL LONG-ARM STATUTES

 PJ is always authorized by a statute or rule from the forum jurisdiction
 Constitution cannot authorize PJ, it can determine if PJ is unconstitutional
State PJ Statutes Federal PJ Statutes

In-state service Found in FRCP 4(k)
Long-arm In most cases, federal courts are directed to
 General jurisdiction follow state law.
 Specific jurisdiction
“Sky’s the limit”
 Most states have 2 statutes granting jurisdiction over non-residents:

1. Non-resident motorist statute – grants jurisdiction only for the assertion of the
claim arising from the motor vehicle crash
 Grants personal jurisdiction over the operator and the owner of the vehicle
involved in crash
2. Long-arm statute – permits the state to exercise its power outside of state lines
 Claim asserted against non-resident must arise from something the
defendant did in (or having an effect in) the forum
Long-arm
statutes
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statute
Constitution
 2 general approaches to long-arm statutes:

o 1) Can exercise jx to the full extent of the Constitution
 Typified by the statute in California
o 2) Laundry-list statute – contains a list of activities that subject a non-resident to
in personam jx
 Usually provide for non-residents who do particular things
 Caution: study language carefully
 Ex. huge difference between “transacts substantial business” with
“transacts any business”
 If long-arm statute does not apply (hence in personam jx is not possible), but ∆
nonetheless has sufficient contacts with the forum to satisfy International Shoe, π should
try QIR II
 PJ will almost always be the same in federal court as in state court

o Exception: sometimes legislature expressly permits nationwide service of
process
 Statutory interpleader cases
 Federal securities, antitrust, racketeering under RICO claims
 Sometimes, Congress creates a claim but does not provide for nationwide service of
process
o In such cases, the question of PJ in federal court is informed by Federal Rule 4
 Doesn’t distinguish between cases involving diversity and those invoking
FQ
 Simply tells the federal courts to apply nationwide service of process
provisions when Congress has created them
o For more info, see Rule 4(k) under topic of Notice below in the outline
All bases of federal

court jx (including FQJ
FQJ)
∆ subject to jx under ∆ not subject to jx

under state law of the ∆ not subject to jx in
state law any state
forum state
Authorized by
Apply state law 100 Mile Bulge Rule federal statute
Rule 4(k)(1)(A) Rule 4(k)(1)(B) Aggregate minimum
Rule 4(k)(1)(C) contacts with the US
Rule 4(k)(2)
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MINIMUM CONTACTS (CONT.) AND PROPERTY

 A single contact is enough to meet the Minimum Contacts Test for PJ IF:
1. Contact is purposeful and bears a strong relationship to the basis for the lawsuit.
2. Although not systematic or a large amount of interstate commerce, there was
purposeful reaching out to the forum state. (McGee v. International Life
Insurance Co.)
 A state court has jurisdiction over an out-of-state company if the company has substantial
connections with the state.
 Facts: ∆’s son bought a life insurance policy with no offices/agents in CA, paid premiums
stably; ∆ brought suit for death policy against company in CA, won and then went to TX
to collect judgment
 Issue: Does the insurance company meet the Int. Shoe minimum contacts requirement?
 CA did have PJ because contract was delivered in CA, premiums were mailed from CA,
insured was resident of CA
o Specific jx, hence a single contact can be enough if the lawsuit arises directly out
of that contact
 Policy considerations:
o Interest of the forum state is important – CA has an interest in providing effective
means of redress for its residents
o Hard for small claimants to go to different state than to have big corporation to
come to CA  reminds of reasoning in Hess
 Contacts with the forum state that are the result of π’s unilateral acts are insufficient to
establish the minimum contacts necessary, as one must avail itself of the forum (Hanson
v. Denckla)
o Facts: Donner lived in PA, established DE trust, then moved to FL, where her will
was probated. Her crd daughter (Hanson) was the primary recipient of the will,
Denckla wanted FL to control trust so that Hanson would get no share of it. FL
assumed jx, which Hanson appealed
o Issue: Does a CA court has jurisdiction over a TX insurance company when the
company denies a claim of a CA resident?
o Even though the bank had some fleeting contacts with FL (sending Donner
statements there), when Donner had original contact with the bank, she was a PA
resident
o Donner took unilateral action to move to FL, bank did not reach out to FL, no
direct contact
In Rem Jurisdiction
 Pennoyer v. Neff: in order for a court to exercise QIR-II jx, the property must be attached
at the outset of the lawsuit
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 Harris v. Balk: intangible property (doesn’t exist physically) can be used as the basis for
in rem or QIR jx
o Intangible property (such as debt) travels with the debtor and is this “located”
wherever the debtor is located
 In rem: court has jx over a thing not a person
 Having property in state does not give state PJ if contacts have nothing to do with the
COA (property doesn’t have to be related to COA, but must meet minimum contacts)
(Shaffer v. Heitner)
o “Minimum contacts” test applies to in rem jx in addition to in personam
o Facts: π (OR) initiated a shareholder derivative suit in Delaware against
Greyhound (DE) for losing a large anti-trust suit (his stock devaluating as a
result). The legal situs of the stock was deemed to be in Delaware. The DE
sequestration statute allowed property within the state to be seized to allow the
DE court to obtain PJ over the owner. ∆ et al. made a special appearance to
challenge the court’s jx on the grounds that the statute was unconstitutional +
insufficient contacts to confer jx
o Issue: Must there be sufficient contacts between the state and the ∆’s interests in
the property seized before a court can exercise QIR jx?
o Tangible and intangible property may be in rem (or QIR I or QIR II) basis for jx
 Situs of the intangible property is often determined by state statute
o Mere presence of property within a state is insufficient to confer jx on a court
absent independent contacts within the meaning of Int. Shoe  based on the
fundamental concepts of justice and fair play
o Here, the stock is not the subject of the controversy, no claim to ownership of it
or injury caused by it (∆ does not reside in DE or have any contacts there, the
injury occurred in Oregon, no activities complained of were done within the
forum)
FAIRNESS IN PJ
 c step process for determining PJ:
1. Check the statute
2. Minimum contacts test
c. Reasonableness/fairness
 A stream of commerce does not necessarily confer jx if the π unilaterally brought the
product into the forum unless the ∆ could foresee the product being used in the forum
(World-Wide Volkswagen Corp. v. Woodson)
o Facts: Robinsons (NY) bought a car in NY, moved to AZ, got in a car crash in OK
on their way, brought products-liability suit
o Foreseeability alone is not sufficient to authorize a state court’s assertion of
personal jurisdiction over a non-resident defendant that has no contacts, ties, or
relations with the forum state.
o 2 prong analysis: minimum contacts + reasonableness
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 Purposeful availment – purposefully availing yourself of this specific forum

 Foreseeability – should a ∆ foresee harm + defending lawsuit in certain state?
o Foreseeability of conduct, not being hauled into court
o Looking for a lot more specificity than just foreseeability that something bad
could happen (no foreseeability that car would enter OK, something more tangible
about this car + suit)
 WWVW Fairness Factors:

1. Is litigation in the forum burdensome to ∆?
 Is it far? Is it expensive? Is it logistically difficult?
 Don’t fall into trap of always answering “they’re a large company a have
lots of money to defend far away”
2. Is the forum state’s interest in adjudicating the dispute?
 Look for strong interest, not just an interest
c. Does it impact π’s interest in obtaining convenient and effective relief?
 Strongest factor when π is suing in home forum
 Used to determine when should we ask π to leave home forum in favor of
far away
4. Does it impact the interstate judicial system’s interest in obtaining the most
efficient resolution of controversies?
 Judicial system as a whole has an interest in a proper forum so that other
are comfortable for full faith and credit
 Not what the best forum is, just if its sufficient from a bird’s eye view
5. Does it impact the shared interest of the states in furthering “fundamental social
policies?”
 In some very limited circumstances, because of the type of issue, there
should be a specific forum (ex. custody cases should be heard where
kids/main parent live)
 Ordinary litigation will not trigger sensitivity to a certain state concern
 Focus on 1/2/c in analysis, 4/5 harder to understand
o Reality: court will acknowledge that almost all cases will have multiple forums
and don’t want to make this a narrowing process  looking for outlier that will
throw off whole system
CONTRACT CASES
 Minimum contacts for specific jurisdiction may be based on making a contract that has
connections with the forum state, BUT a contract with a party in the forum state, in and
of itself, is not itself, is not sufficient (Burger King Corp. v. Rudzewicz)
o Facts: ∆ opened BK franchise in MI, negotiated with MI district office + FL HQ,
attended management course in FL; unable to make payments, sued for breach of
contract, claim no PJ in FL
o Issue: Must the court look to ∆’s purposefully directed activities toward the forum
state and whether the harm arising out of or relating to those activities are the
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cause of the litigation when determining if a ∆ satisfies the minimum contacts

requirement for PJ?
 Look at the following factors when determining minimum contacts based on contract:
strength of relationship of contract, contract’s negotiation, performance and/or breach to
forum state, and knowledge/purposefulness in dealing with party in a forum state
 Including a choice of law clause does not mean that you’ve consented to the forum 
not a minimum contact
o Shows awareness that forum is central to issue
 Reasonableness/fairness factors entertained as separate inquiry
STREAM OF COMMERCE CASES

 If a corporate ∆ places its product into the “stream of commerce” and it is presumable
that they will be sold in the forum state, then this may confer specific jx under statute if
the relationship of contact and amount of contact to forum are substantial (Gray v.
American Radiator & Standard Sanitary Corp.)
o If a corporation elects to sell its products for ultimate use in another state, it is not
unjust to hold the corporation answerable in those other states for any damage
caused by defects in those products.
o Facts: π (IL) sues manufacturer of heater (OH) and manufacturer of faulty valve
(International) from an injury caused by the heater explosion in IL (authority is a
statute allowing specific jurisdiction over non-citizens based on tortious acts
occurring within the state)
o Damage – crucial part of tort, no difference between “tort” and “tortious act”, if
one part of the tort exists in the forum state, then it is enough (∆ tried to allege
difference between the two, that tortious act means negligence, not injury) 
examination of statutory language
 Example of a state court interpretation of a state long-arm statute – focus
on the words of the statute to determine the meaning and application of
“tortious act”
o Starts talking about ideas relating to stream of commerce and mentions term, but
concept itself doesn’t get created until much later (Asahi)
 Under the Due Process Clause, a foreign business’s awareness that its products will
reach a state within the United States in the stream of commerce does not satisfy the
minimum contacts needed for the forum state to exercise PJ over that business (Asahi
Metal Industry Co. v. Superior Court)
o SCOTUS has split decision: 1) all agree on the facts, 2) all agree that CA does not
have PJ, c) all agree on reasonableness, 4) do not agree on minimum contacts 
different definitions of stream of commerce
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Stream of Commerce Stream of Commerce Plus Volume, value, nature of

(Brennan) (O’Connor) goods theory (Stevens
concurrence)
If you manufacture a Merely placing a product in the If you sold enough
component and you can foresee stream of commerce with the volume to forum then
forum as potential market, then knowledge that it might end up maybe that’s enough
that’s sufficient in the state is not enough
_________
Product in stream of commerce Product in stream of commerce
+ foreseeability that product + additional
will reach the forum state is intentional/purposeful targeting
sufficient of the forum state
 Availment for SOC+ may take the form of: designing a product for marketing in the
forum state, advertising in the forum state, marketing through a distributor who is a sales
agent in the forum
 Brennan said PJ doesn’t meet fairness factors here: Japan far + foreign law + foreign
language  burden on ∆ much higher than in WWVW + interest of foreign state low
 Larger focus on fairness factors than minimum contacts
 Outcome:
1. PJ must meet with state law (statutory or common law) requirements
2. Party must have the requisite minimum contacts
c. Exercise of PJ must be reasonable
 For ∆ to be subject to a state’s PJ, it must purposefully avail itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of
its laws (J. McIntyre Machinery, Ltd. v. Nicastro)
o Provides more support for SOC+ but does not resolve Asahi split
o Facts: π (NJ) became seriously injured in NJ while using a metal-shearing
machine in manufactured by ∆ in England
o Kennedy Plurality Opinion I (NOT BINDING)
 Rejects Brennan’s SOC Theory from Asahi, says you need SOC+.
 SOC eliminates purposeful availment; purposeful availment must occur in
the state, not in the US as a whole.
 Heavy reliance on power of sovereign theory (Pennoyer)
o Breyer Plurality Opinion II (CONTROLLING because most narrow)
 This is not a good case to establish new precedent (should rule here like
previous cases)  future cases will be decided on factual similarities
comparing to Asahi and J. McIntyre
 This case is not about the internet so he can’t be decisive here
o Ginsburg Dissent:
 Foreseeability + targeting US as a whole (not a specific state) enough for
purposeful availment
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INTENTIONAL TORTS
 Calder Effects Test: (Calder v. Jones)
1. If a party intends for actions to have a certain effect in a forum state, then that
state may have PJ over ∆ within the bounds of the constitution
2. The ∆ must be expressly aiming and targeting the forum state.
o Facts: Magazine posted negative story about actress, who brought libel suit in CA
court against magazine (FL), editor (FL) and story writer (FL); Jones lived and
worked in CA + large circulation in CA which increased the injury
o Doesn’t look at product itself as being the contact with forum state (like SOC),
but instead considers the impact of the contact with resident in forum  harm is
not that the papers were physically sold but that reputation was harmed
o SOC wouldn’t exactly hold? Writer + editor would have to personally send
something to CA  harm of content expands SOC theory
 Direct sales into the forum state of harmful products are sufficient for a
manufacturer/publisher  magazine causes harm wherever it is sold (Keeton v. Hustler)
o Facts: Hustler challenging PJ based on defamatory article; π had no connection to
NH but sued there because of longer statute of limitations
o Related to all harmful products, not defamatory
 Connection between the suit and the forum state must be greater than π living in the
forum state. The mere injury to a forum resident is not a sufficient connection to the
forum (Walden v. Fiore)
o Facts: DEA agent seizes gambling money in GA but π files in NV (citizen)
o Actions do not have an effect in GA, only thing connecting ∆ to NV is π  no
direct connection to state
o Demands greater connection to forum than Calder but not at the level of SOC+
INTERNET CASES
 New technology and Internet, but under Int. Shoe there must be contact between ∆ and
forum, caused by purposeful availment
 Zippo Manufacturing Co. v. Zippo Dot Com, Inc.

o Divided internet space into c types of websites with a “sliding scale” for assessing
contacts under Int. Shoe based on website activity:
 “Active” website – transmitting files to forum/entering contracts with
residents of the forum  indicate a desire by ∆ to avail herself of forum
 “Passive” website - ∆ merely posts information  does little more than
make info available, not grounds for exercise of PJ
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 “Interactive” website - ∆ can send or receive info  court will consider

factors such as “the level of interactivity” and “the commercial nature of
the exchange of information”
 Simply creating a site, without more, is not an act purposefully direct toward the forum
 Only counts as purposeful availment when ∆ has done something more to serve or exploit
the forum (creating or maintaining the site in the forum, encouraging persons in the
forum to use site)
o Zippo increasingly questioned by courts  virtually every website is interactive
now
 Unlikely that extensive Internet activities can create general jx
 MacDermid, Inc. v. Deiter

o Good model for how to answer PJ questions:
 Set up facts
 Look at statutory interpretations
 Move on to constitutional analysis (minimum contacts, fairness factors)
o Facts: ∆ gets pissed that she’s about to get fired, steals computer trade secrets,
purposefully avails herself by using server in forum state (CT)
o Issue: Can a CT court exercise PJ over ∆ in Canada who stole info from computer
server in CT?
o Calder Effects Test is the primary vehicle for distinguishing purposeful availment,
targeting, and unilateral activity
o Server counts as “computer” for purpose of statutory definition, independent
contact with intended harm
GENERAL JX
General Jx for Corporations
 Specific jx: something in the statute will connect the COA to action to jurisdictional hook
o An action mentioned (ex. conducting business) ≠ COA (for purposes of
determining specific jx within statute)
 General jx statutes:
o Scope is determined by state statute
o Does not need to be relationship to COA
o Applies to corporations
 If the COA does not arise out of or relate to the foreigner’s activities conducted within the
forum state, the state may not exercise PJ over the foreigner if the general business
contacts by the foreigner with the state are not sufficiently continuous and systematic
(Helicol v. Hall)
o Int. Shoe language “systematic and continuous” applies to general jx as well
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o Isolated trips, unilateral activity, correspondence, and “mere purchases” – not

systematic and continuous for general jx
 A non-natural person is subject to general jx where it is “essentially at home” (Goodyear

v. Brown)
o Facts: π sues ∆ in NC state court for accident that occurred in France (no faulty
tires in NC but going to France would be burdensome); Goodyear doesn’t
challenge PJ but its subsidiaries do
o “Essentially at home”
 Where they’re incorporated/organized – definitely at home
 Not limited to just those but no exact definition besides that  open to
interpretation
o A small amount of products reaching the state through the stream of commerce or
even direct sales and distribution is insufficient for general jurisdiction.
o Other contacts such as purchasing ventures are insufficient if they are not at a
high level, are completely unrelated to the lawsuit, and do not show purposeful
availment.
o Clarifies Int. Shoe: “systematic and continuous” for general jx means more
systematic and continuous here (at home) rather than someplace else
Specific jx Systematic,
Domicile, General jx
Specific Regular principal
substantial
single act contacts that place of
and
gives rise to give rise to business,
continuous
claim claim state of
contacts
incorporation
 Daimler AG v. Bauman defines “essentially at home” as”

o State of incorporation
o Principal place of business (same test as SMJ)
o Where there is a high level of continuous and systematic contact with the forum
state
o Can’t assign subsidiary’s contacts to a parent corporation  must have
independent contacts
o Sales alone in a forum state not enough for general jx, even if it’s a large portion
of your overall sales (“limited set of affiliations”)  must have presence in state
besides sales
o “Essentially at home”  most of business + something else
o Foreign companies could theoretically be at home in the US but realistically
always set up subsidiaries
General Jx for Natural Persons
 A person who voluntarily and knowingly spends time in a forum state purposefully avails
himself to general jx in the forum state (Burnham v. Superior Court of California)
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o A state can gain PJ over a nonresident who was personally served with process
while temporarily in the state, even if his purpose for being in the state is
unrelated to the matter before the court
o Concept of “tag jurisdiction” – personal in-hand service in the forum (traditional
basis of PJ) – in personam jx predicate
o Facts: ∆ and wife used to live in NJ, wife + kids move to CA after separating, ∆
served with divorce papers when visiting CA, contests CA court having PJ
o Issue: May a non-resident party be properly served with process while
temporarily visiting a state for purposes unrelated to the suit?
o Plurality view (Scalia): it is constitutional without need to do minimum contacts
analysis; “minimum contacts” is confined to ∆s served outside the forum state
o Plurality view (Brennan): it is constitutional because of minimum contacts -
International Shoe replaced Pennoyer, so tag jx is permissible when ∆ is
voluntarily and knowingly in forum
o c situations of being in a state not knowingly and willingly:
 Compelled to be there because of a legal process (ex. testifying in court)
 On military orders
 Due to fraud
o
Voluntarily and
Persons
knowingly
physically
present in forum
present in forum
(Brennan
(Scalia approach)
approach)
Unquestionably permissible tag jx
NOTICE
NOTICE: IN GENERAL
 Due process requires that ∆ be given notice and opportunity to be heard before judgment
can be entered
a) 2 step process:
o Rule/statute must provide a method for giving notice
o Assess whether rule/statute complies with requirements of due process
b) Notice – formal notification from the court that the defendant has been sued and that she
must take certain steps to avoid the imposition of liability
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 Notice must be reasonably calculated under all of the circumstances to apprise interested
parties of the pending action and afford them an opportunity to present their objection
(Mullane v. Central Hanover Bank & Trust Co.)
o Facts: common trust fund send out notice of upcoming accounting by publication
(allowed by statute)
o Applies to both in rem and in personam
o Notice does not have to be the best possible method; it just needs to be reasonable
o Balancing test must be done by court – what’s required for known and unknown
beneficiaries is different (how many people are unknown and how hard it is to
find them?)  must reasonably calculate to not be burdensome but also fair
 Publication in newspaper okay as long as there is a strong enough
presence of known people (not everyone has to be reached because of
mutual interests – others would be able to represent them)
 Content of notice: as long as someone can read it, it’s usually fine (even if tiny font and
legalese)  has to have bare minimum
 Constitutionally okay to serve notice via email (but may not be statutorily allowed in
certain jx)
 Most parties can waive service. When you waive, you prevent π from having to undergo
formal process for every subsequent document
MECHANICS OF SERVICE OF PROCESS
Rule 3: Commencement of Action
• A civil action is commenced at the filing of a complaint.

• When you serve the complaint, you serve the summons and the complaint.
Summons = apprises ∆ of action (pendency), Complaint = states COA
 c basic methods for service in a federal case: personal service, substituted service, service
on an agent
o State laws can also be incorporated, or ∆ can waive service of process
 No preferred method – any of the c basic methods is permissible
o Some states assign a “descending order” rule – second method of service is
allowed only if preferred method is not available
 1. Personal service – process servers deliver the process directly to ∆
o Permitted in every jurisdiction
o Rule 4(e)(2)(A) does not require this to happen in a specific place – can be made
anywhere within the forum state
o Effective if the process server does the best she can, even if ∆ does not take
documents into her hands
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o Exceptions: ∆ can be immune from personal service

1. Forced/tricked into forum
2. Parties who enter the state to participate in another civil case
c. Military service on a base
4. Some jurisdictions – immunity from service of process on Sunday
 2. Substituted service – service “at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there”
o Essentially appoints suitable person as ∆’s agent for service of process
o Nothing in Rule 4(e)(2)(B) requires that ∆ actually receive it
o Dwelling – where ∆ is living at present
o Suitable age and discretion – does not provide a specific age & does not require
that person be part of ∆’s family
 Ex. Service on doorman was upheld – decided on a case by case basis
o Person on whom service is effected must reside at the place where service is
effected – not a guest or temporary visitor
 Must have enough connection to ∆’s dwelling, but also decided on case by
case basis
 3. Service on an Agent – service on “an agent authorized by appointment or by law to
receive service of process”
o ∆ can specifically appoint someone to serve as her agent for service of process or
can be appointed by operation of law (ex. Nonresident motorist statute)
Rule 4: Summons
Rule 4: Overall Roadmap
Service doesn't have

∆ waives service
to comply w/ Rule 4
π must notice ∆ w/
π requests that ∆
summons and
waive service
compaint
Service must comply
∆ doesn't waive
w/ procedures found
service
in Rule 4
Rule 4(a)(1): Content
A summons must:
 Name the court and the parties;
 Be directed to the ∆;
 State the name and address of π’s attorney or—if unrepresented—of π;
 State the time within which ∆ must appear and defend;
 Notify ∆ that a failure to appear and defend will result in a default judgment against ∆
for the relief demanded in the complaint;
 Be signed by the clerk; and
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 Bear the court’s seal.
 Who may serve process?

o Someone who is at least 18 and not a party
o Can be interested in the lawsuit (ex. family) but cannot be party  In NY must be
not an interested party
Rule 4(c): Who May Serve Process
 (2) By Whom. Any person who is at least 18 years old and not a party may serve a
summons and complaint.
 (c) By a Marshal or Someone Specially Appointed. At π’s request, the court may order
that service be made by a US marshal or deputy marshal, or by a person specially
appointed by the court. The court must so order if π is authorized to proceed in forma
pauperis…or as a seaman…
Rule 4(d): Who Needs to Waive?
(1) Requesting a Waiver. An individual, corporation, or association that is subject to

service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the
summons. π may notify such a ∆ that an action has been commenced and request that the
defendant waive service of a summons. The notice and request must:
(A) be in writing and be addressed:
(i) to the individual ∆; or
(ii) for a ∆ subject to service under Rule 4(h), to an officer, a managing or general
agent, or any other agent authorized by appointment or by law to receive service of
process;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended
to this Rule 4, and a prepaid means for returning the form;
(D) inform ∆, using the form appended to this Rule 4, of the consequences of waiving
and not waiving service;
(E) state the date when the request is sent;
(F) give ∆ a reasonable time of at least c0 days after the request was sent—or at least
60 days if sent to the defendant outside any judicial district of the United States—to
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return the waiver; and

(G) be sent by first-class mail or other reliable means.
(2) Failure to Waive. If a ∆ located within the US fails, without good cause, to sign and
return a waiver requested by a π located within the US, the court must impose on ∆:
(A) the expenses later incurred in making service; and
(B) the reasonable expenses, including attorney's fees, of any motion required to
collect those service expenses.
(c) Time to Answer After a Waiver. ∆ who, before being served with process, timely
returns a waiver need not serve an answer to the complaint until 60 days after the request
was sent—or until 90 days after it was sent to the defendant outside any judicial district of
the United States.
(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not
required and these rules apply as if a summons and complaint had been served at the time of
filing the waiver.
(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive
any objection to personal jurisdiction or to venue.
 c reasons why ∆ would waive:

1. ∆ preserves any objections to venue, PJ or SMJ, so waiving formal service does
not waive these potential defenses
2. ∆ gets extra time to answer complaint  up to 60 days after π sends waiver form
(instead of 21 after formal service) (Rule 4(d)(c))
c. If waiver is sent and ∆ fails to sign/return without good cause, then court will
impose on ∆ the π’s costs of undertaking formal service (usually c0 days to return
waiver and sent pre-paid so ∆ doesn’t pay for anything)
Rule 4 Roadmap: Party Does Not Waive Formal Service
Service must comply with

procedures found in Rule 4
Party is an adult competent

individual or a business Party falls outside the
association within a US defintion
jurisdictional district
Look to special rules for

Serve according to Rule If a business association,
service on these parties in
4(e) according to 4(h)(1)(B)
Rule 4
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Rule 4(k)(1): Territorial Limits of Effective Service – In General
Serving a summons or filing a waiver of service establishes PJ over a defendant:

(a) who is subject to the jx of a court of general jurisdiction in the state where the
district court is located;
(b) who is a party joined under Rule 14 or 19 and is served within a judicial district of
the United States and not more than 100 miles from where the summons was issued; or
(c) when authorized by a federal statute.
Rule 4(k)(2): Federal Claim Outside State-Court Jx
For a claim that arises under federal law, serving a summons or filing a waiver of service
establishes PJ over a ∆ if:
(a) ∆ is not subject to jx in any state’s courts of general jurisdiction; and
(b) exercising jx is consistent with the US Constitution and laws.
 c exceptions:
1. Federal statutory exceptions – federal court can serve process outside the state in
which it sits “when authorized by a federal statute”
 Relatively rare, ex. Federal Interpleader Act
2. “Bulge rule”
 Extremely narrow – does not permit nationwide service
 Allows service out of state only if it is effect within 100 mils of the federal
courthouse in which the action is pending
 Bulge rule has absolutely nothing to do with serving a typical original ∆ -
only for persons not originally parties to the suit but brought in later under
Rule 14 (impleader) or Rule 19 (necessary parties)
c. Rule 4(k)(2)
 Applies only to claims that invoke FQJ (no use in diversity or alienage
cases)
 Can be met when ∆’s contacts with a particular state are not sufficient to
support PJ in-state but her contacts with US as a whole support PJ
 Does NOT apply if there is any state in the US that could impose
PJ
Special Situations
 Party in a foreign country. 4(f)
o Service according to the Hague convention; or Other alternatives consistent with
the Due Process requirements of notice.
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o Personal service under 4(f)(2)(c)(i) not available when the party is a business
association. 4(h)(2).
 Minor or incompetent person. 4(g).
 The U.S. government or governmental subdivision. 4(i).
 A foreign, state, or local government. 4(j).
Rule 4(m): Time Limits
• 90 Days to serve Complaint after filed.

• Court can extend at its discretion for good reason.
VENUE
VENUE: IN GENERAL
 Venue – the judicial district where a case is adjudicated
 State court: venue within a state is determined in each state by its own statute and
common law
 Federal court: venue is determined by statute
DETERMINING VENUE IN FEDERAL COURT

 28 USC §1c91
 Venue for normal 1cc1/1cc2 cases concerning natural persons, non-natural persons, and
aliens
o Don’t worry about venue when the US or another gov’nt or gov’nt agency 
specialized court in statute granting permission to sue
o Also don’t worry about venue in maritime/admiralty
 Venue is based on residence/connection to the lawsuit
 Venue Act of 2012 changed a bunch of shit  laws before 2012 no longer applicable! 
careful with old cases
Venue Based on Connection to Lawsuit
 Venue is proper in a judicial district in which a substantial part of the events or

omissions giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated – §1c91(b)(2)
o Substantial just means important here, not plurality/majority
o Goal isn’t to pick 1 proper venue, it’s to pick a venue that works (can be multiple)
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Venue Based on Residence
 Only concerns residence of ∆ (!)

 If ∆s are all residents of the same state, venue is proper in any judicial district in which
any defendant (not all, just any) resides – §1c91(b)(1)
o Only practical when all ∆s are from the same state, if not the case then can only
base venue on connection to lawsuit
o ∆s don’t have to be residents of same district, just state
 Residence of natural persons: judicial district where the person is domiciled.
o Includes US citizens and permanent residents
o In SMJ and PJ, decide what state domicile is in, here it’s based on district
o Use same SMJ domicile test (presence + intent to remain) just for district
 Residence of aliens: any judicial district – §1c91(c)(c)
 Residence of non-natural persons: any judicial district where they are subject to PJ -
§1c91(c)(c)
o Could be many forums/venues – might have to do a mini-PJ analysis for districts
besides just states (if more than 1 district)
o Also, where its principal place of business is (also district, not state)
 If a state has multiple judicial districts (like New York), a corporation resides in any
district where it would be subject to PJ if the district were a state, and if there is no such
district, it resides in the district with the most significant contacts. §1c91(d)
 Domicile for non-natural persons DIFFERENT from SMJ here: principal place of
business + where subject to PJ
“Residual” Venue Category

 If there is no district with venue under §1c91(b)(1) or (2), venue is proper in any judicial
district in which any ∆ is subject PJ – §1c91(b)(c)
o Increasingly small category but here to make sure nothing falls through the cracks
 Congress doesn’t want venue barring lawsuits if PJ and SMJ are proper
Authorization
§1391
Venue Venue Not

Authorized Authorized
Transfer if Case stays in

Transfer Dismissal
authorized venue chosen
§1406(a) §1406(a)
§1404(a) by π
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TRANSFERS OF VENUE
The Basics
 §1404(a) – if venue is proper in the original district, court can transfer to another proper
district for the convenience of the parties and witnesses and in the interest of justice
 §1406(a) – if venue is not proper in original district, court can transfer to a district with
proper venue or dismiss.
28 USC §1404(a)
 Occurs for the convenience of parties or in the interest of justice.

o §1404 looks at convenience of π, ∆, court, crd parties (not just a single person)
 Transfer only allowed to place where case could have been filed by the π originally.
 The receiving venue must have proper venue and jurisdiction over parties.
 Choice of Law: for §1404 Transfer, courts look to choice of law of the transferring
court
 It’s an alternative to motion to dismiss or forum non conveniens.
 It has no time limit, though it may be inconvenient to do it too late.
28 USC §1406(a)
 Occurs where venue is not authorized and there is no PJ over ∆

 Choice of Law: for §1406 Transfer, courts look to choice of law of the receiving court
 Court may dismiss, or if its “in the interest of justice”, transfer
 It has no time limit, though it will most certainly be done earlier, not later.
Forum Non Conveniens
 Forum Non Conveniens – discretionary doctrine in which a court can dismiss a case
with otherwise proper SMJ, PS, and venue
 Typically used in cases where a foreign forum would be more convenient (sometimes
state too)
o Federal court cannot transfer to state court  must dismiss + π can refile
o Based on inconvenience + unfairness (but not as much as the levels required for
PJ)
 Court will weigh “Private and Public Factors” (Gilbert Factors): administrative
inconvenience in keeping the forum, local interest, local controversies decided at home,
relative ease of access to evidence, and get control over everyone in the suit.
Transfer Cases
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 Van Dusen: ∆ wanted to transfer case, court upheld application of transferor court’s law
o Take choice of law with you from original court because otherwise you allow ∆ to
change the outcome of the case by changing laws that decide it
o §1404(a) is not supposed to transform anything about original case
 Ferens v. John Deere Co. – extends Van Dusen -- under §1404(a) transfers, whether π or
∆ moves for transfer, the choice of law rules of the original filing court apply
o Facts: PA π filed against ∆ in MS in order to gain the MS statute of limitations –
forum shopping; MS choice of law rules say MS procedural, but PA substantive
law will apply; ∆ subject to PJ in both PA and MS
o §1404(a) doesn’t specify which party can make a motion  transfer with Van
Dusen rules
o The receiving court must determine what original court's choice of law rules are
and also what state's law those rules would choose.
 Atlantic Marine v. US District Court of TX – exception to Van Dusen: in transfers based

on FSC, you don’t get to take choice of law (transferor’s court law) with you
o When parties have entered into a valid forum-selection clause (FSC) that
designates a federal venue, the case should be transferred to the designated district
unless extraordinary circumstances exist that are unrelated to the convenience of
the parties.
 The proper mechanism for enforcing a FSC in federal court is:
1. §1404(a) transfer when the original venue is otherwise proper under §1c91 and
the FSC names another federal forum
2. §1406(a) or Rule 12(b)(c) if the original venue is not proper
c. Forum non conveniens if the original venue is proper and the FSC names a state
or foreign forum
 Facts: contract for construction with FSC for VA, π disregarded it and sued in TX, ∆
moved for dismissal under 1406(a) or Rule 12(b)(c) or transfer under 1404(a) based on
FSC
 In a §1404(a) motion to enforce a valid FSC, the court should transfer in all but the “most
exceptional” cases
 Basically REVERSES Stewart v. Ricoh by stating that FSC must always be enforced and
judges have discretion on all parts of §1404(a) except for FSC
APPLICABLE LAW
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ERIE: THE BASICS

 Erie applies to choice of law between federal and state law in federal court
o Usually in diversity cases, because in FQJ claim arises under federal and federal
law will likely govern
 Source of authority:
o US Constitution 10th Amendment
 The Constitution requires application of state law to some aspects of
diversity cases
o Rules of Decision Act 28 USC §1652
 Rules of Decisions Act 28 USC §1652: The laws of the several states, except where the
Constitution or treaties of the United States or Acts of Congress otherwise require or
provide, shall be regarded as rules of decision in civil actions in the courts of the United
States, in cases where they apply.
o NOTE: The Rules Enabling Act (REA) says the federal courts are not obligated
by the Rules of Decisions Act (RDA) to apply State Procedural Law.
 US Constitution, 10th Amendment: The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States respectively,
or to the people.
 2 type of choice of law questions:

o Vertical
o Horizontal
Horizontal Vertical
 What law should a state apply to any  Federal court sitting in diversity
given claim  State court hearing a federal case
 Is a state’s choice of law rule (reverse Erie)
constitutional?
 Also includes foreign law
 Contacts can specify law selection clause as well as FSC – states enforce them as long as
they are reasonable and not overreaching
 In tort cases – apply the law of the place of injury (if horizontal Erie)
“How to”: Erie for Dummies
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“Guided” Erie
“Unguided” Erie
CHOICE OF LAW APPLIED IN FEDERAL COURTS

 Under the Rules of Decision Act, 28 U.S.C. § 1652, federal courts are not bound to apply
state common law doctrines (Swift v. Tyson)
o Segway to Erie – mid 19th century case (before Grable & Pennoyer), underlying
contract & property dispute, interprets RDA
o Brooding omnipresence view: common law doesn’t count as law under the RDA
 state supreme courts were not creating anything new, the judges were only
finding the right fit (but local laws still valid)
o Any area of state law that does not have an enacted state law would be governed
by federal laws
 Erie R. Co. v. Tompkins – overturns Swift v. Tyson: §1652 (RDA) requires that federal
courts sitting in diversity must apply the law of the state in which the court sits.
o Facts: π (PA) loses an arm when a broken piece of ∆’s (NY) train hits him; ∆
wants PA law to apply based on §1652, π wants federal law to apply (would apply
different standards for duty to π)
o Swift v. Tyson – lack of uniformity, decisions based on venue (forum shopping),
created bias between federal & state courts
o There is no federal common law!
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 Exceptions: maritime & admiralty

 The outcome furthers twin aims:
1. That the choice of law should prevent forum shopping
2. The choice of law should foster equitable administration of the laws between
state and federal courts.
 Equality: If you have a rule that allows for different decisions in state and federal court
you can forum shop if you have diversity.
 Uniformity: state courts can rule differently from federal courts, thought that federal
courts would do a better job, laws of several states should include state common law.
 Note: It is the RDA, not the Constitution that requires state common law to be enforced,
but to hold otherwise would be a constitutional violation—that is how it is implicated.
 Klaxon: horizontal choice of law – choice of law rules of the state where the court sits
will be applied
EVOLUTION OF CHOOSING VERTICAL CHOICE OF LAW

 Guaranty Trust Co. of NY v. York: A federal court, exercising jurisdiction based strictly
on diversity, must abide by any state legal rule that would be outcome determinative if
held in state court
o Facts: COA – breach of fiduciary duty (state claim), equity claim  Erie applies
to cases both in law and equity
o Doctrine of Laches: unreasonable delay in making an assertion or claim (such as
asserting a right, claiming a privilege, or making an application for redress) may
result in refusal  substitute for statute of limitations, courts decide on a case-by-
case basis
o Strict outcome-determinative test: If following a federal practice that differs
from state procedure might “significantly affect the result of a litigation” the
court must apply the state rule instead
 Maintains procedural/substantive distinction, but places emphasis on a
single law for π whether suing in state or federal court
o The outcome of the case should be the same as if it were litigated in state court.
Erie theory of
law
Statutory
Constitutional
(equality)
Equality – equal theory of Constitutional – didn’t want

π and ∆ and diverse/non- a system that encouraged
diverse parties forum shopping because of
differing laws
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 Erie eliminates vertical forum-shopping but horizontal still exists (Ferens)

 Egregious example of forum-shopping – Black & White Taxicab Co. v. Brown & Yellow
Taxicab
o Facts: ∆ (B&W) (KY) made an exclusive contract with RR, π made a fraudulent
TN corporation to be able to sue in federal court with diversity  manufactured
diversity just to exploit vertical disuniformity
1949 Trilogy/ “Triple Play” Cases
 c cases decided on the same date, based on Guaranty Trust – show that the pendulum had
swung too far to the “state” side of law, away from “federal”
 Woods: federal court could not entertain a claim brought by an out-of-state corporation
barred from bringing suit in state courts because of its failure to qualify as doing business
in the state under state statute.
o Facts: Door closing statute, non-resident corp in MS, you have to register with the
state or you can’t sue
o No competing federal rule (do you apply federal rule or proceed in federal court
with no other option)  federal court has to apply state law because outcome
determinative
 Cohen: must π post a bond for a shareholder derivative suit?
o NJ State law required posting of a bond for a stockholder derivative suit. FRCP 2c
applied in federal courts, and did not have this requirement
o State rule applied because outcome determinative
 Ragan: when does a claim commence for purposes of statute of limitations?
o State law required service within the statutory period of limitations. Action was
filed before limitations had run, but not served. FRCP c deemed an action as
commenced upon filing.
o FRCP c applies only for determining scheduling, and the state law should be
applied (outcome-determinative)  π cannot bring action in Federal Court that
would have been barred in State court
 Problem: Federal courts left without the ability to make their own procedure; had to
operate with 2 sets of rules for diversity and FQJ
 Byrd v. Blue Ridge Rural Electrical Cooperative, Inc.

 Facts: π was injured on the job as an independent contractor for ∆, sued for negligence; ∆
argued that π was regular employee because doing the same work as them; SC – if
employee gets injured they can’t bring tort suit, instead get statutory compensation under
Workers Comp
 Issue: should the judge or the jury determine the π's status as an employee of the ∆? 
breaks Guaranty Trust
o Holding: Judge didn’t see that the state had any real interest in having judge
decide. Federal has an interest supported by the Constitution
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 State rule (Workers Compensation Act) vs. federal rule (US Constitution 7th Amendment-
preserves the right to jury trial but doesn’t guaranty it) – countervailing federal policy
o Jury trial – common law rule, not mandated by Constitution
Byrd Balancing Test
Purely "Form and Purely

substantive mode" procedural
(ex. Erie itself) (ex. how litigation (ex. what font to use on a
State law governs works) brief)
(per 10th Amend.) Balancing test Federal law
when the rule is governs governs
“bound up” with Consider the
state law created interests of each
rights and judicial system
obligations
 For purely substantive issue of law (where the rule is "bound up" with state-law created
rights and obligations)  state law governs
o Ex. “local law” Erie case itself
 For purely procedural issues of law  federal law governs
o Ex. what font does a court require you to use submit a brief
 Where the question is one of form and mode and the federal interests favor application of
the federal rule, federal procedural law should apply
o A rule of Form and Mode is a procedural rule that's meant to further a
substantive state purpose
o Must consider the balance between federal countervailing policy and state
interests in hearing the case
 * Begin with preference for state rule (Place a thumb on the scale in favor of the state
interests)
o BUT we don’t presume that state interests overshadow federal interests
 * Apply Byrd when you have federal common law  if federal directive then look below
WHAT TO DO WITH A FEDERAL DIRECTIVE? “GUIDED” ERIE

Rule Making Process
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 Federal Directive – codified federal rule (legislative enacted OR law making body
(FRCP))
 Rules Enabling Act – 28 USC §2072
o SCOTUS has the power to prescribe general rules of practice and procedure
o Rules must not “abridge, enlarge, or modify any substantive right”
Standing Judicial
Advisory Committe Supreme Court Congress
Committee Conference
 Where a federal rule, constitutional provision, or statute exists, it must be both valid and
applicable to the issue in question (Hanna v. Plumer)
 Facts: π (OH) got into car accident with ∆ (MA), who died; π sued for personal injury,
served ∆'s executor with service of process to someone at his residence (in line with Rule
4, but MA law required personal in-hand service)
 Hanna doesn’t abandon “outcome determinative” test, but gives a “modified outcome
determinative” test
o Think about how π will look at the outcome + the twin aims of Erie at the outset
of the case, not the end
o Twin aims: 1) avoiding forum shopping 2) inequitable application of the law
(inconsistent judgments)
Erie
"Unguided" Federal Rule

Erie choice or statute
o Where a federal rule, constitutional provision, or statute exists, it must be both
valid and applicable to the issue in question
 Federal rule is valid if the rule-maker was authorized to make that rule:
1. Need to know whether it violates the Rules Enabling Act (REA)?
 Any rule that does not “abridge, enlarge, or modify any substantive
right” is valid
 Weak test: No rule every found invalid (FRCP & FRAP)  but still have
to go through this analysis
2. Is the rule or statute unconstitutional?
 “Arguably procedural”
 The rule is not beyond Congress’s power to legislate in that area or make
the rules for federal courts
o Applicability
Presence of a federal
HANNA PRONG directive
STRUCTURE (Constitution, statute, FRCP)
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Validity Applicability
Statutory (REA)
 Burlington
Constitutional (Article III) NorthernRule
RR v. Woods: BROAD reading of applicability for Hanna prong
of "practice and Broad interpretationrule
of the Narrow interpretation of the
o “Unmistaken
Directive is "arguably conflict”
procedure"; does not between
"abridge, state and federal
directive directive
procedural"
o Rule is “sufficiently broad”
enlarge or modify any and there’s a “direct collision” between state and
substantive right"
federal
 “Sufficiently broad” = federal rule sufficiently broad to encompass state
 “Direct collision” = can’t satisfy both (would be inconsistent judgments
o Holding: Damages are in judge’s discretion under FRCP c8, broad enough that it
consumes state rule
 Walker v. Armco Steel: NARROW reading of applicability

o Holding: The Court held that Rule c governs “commencement” of an action for
purposes other than tolling the statute of limitations
o Doing so allowed the Court to avoid a conflict between federal and state
o Court said it would give Rule c its “plain meaning”  narrow reading of FRCP
Validity
 Statutory
o Was the rulemaker authorized to make the rule?
o Does the rule violate the Rules Enabling Act? Have they exceeded their authority?
 We are always thinking about the rule in the abstract
o Does it “abridge, enlarge, or modify” any substantive right? *Only applies to
federal rules.
 REA analysis needed ONLY when looking at FRCP/FRAP (!)  If comes
directly from Congress then does not by definition abridge/enlarge etc.
 Constitutional
o Is the rule (or statute) unconstitutional? The rule is not beyond Congress’ power to
legislate in the area or makes rules for the federal courts.
o Applying the directive must be constitutional (Any federal rule that is arguably
procedural, thus satisfying the necessary and proper clause and Article III)
 Applying Rule must satisfy the REA (a federal rule that is a general rule of practice and
procedure §2072(b))
 So, a rule that is procedural under §2072(a) but impinges on substantive rights is an
invalid rule
o This never really happens
Applicability
 The federal directive must be broad enough to apply to the question being asked
 Broad Interpretation: Want federal rule to apply
o Is the directive broad enough that it covers this situation? (See Burlington above)
o The federal directive and state rule “occupy the same field of operation” and the
policies behind both rules are “sufficiently coextensive”  then the federal
directive applies over the state law
 Narrow Interpretation: Want state law to apply
o Is the directive arguably narrow and not applicable here? (See Walker— Give
Rule it’s “plain meaning”)
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o The federal directive “does not replace such policy determinations found in
state law”
o The federal directive “can exist side by side” with the state statute
 Look to the unguided Erie analysis here
o Federal courts must apply state law standards of review for jury awards, even if
they conflict with federal standards (Gasperini v. Center for Humanities)
 Issue: When can the size of a jury award be reviewed?
 Strong state interest here: federal rule governs the question of who reviews
the award and state governs how its reviewed
o Purpose/Legislative Intent
 Relative state and federal interests?
 After Shady Grove, not entirely sure how much focus needs to be put on
these, so reference but don’t go in
 Stewart v. Ricoh – broad v. narrow interpretations
o Facts: contract dispute, had forum selection clause for Manhattan but π files in AL
federal court; ∆ tries to transfer to SDNY under 1404/1406 (or dismiss)
 Maritime law an exception – technically Bremen and Carnival Cruise the
standard for FSC, but do not apply because of exception
o Where a federal statute is arguably procedural in scope, the statute must be
applied over a conflicting state statute because federal statutes, even if they
conflict with state law, are the “supreme law of the land” and Congress has the
authority to enact the statute
o Scalia dissent: contract are part of a state law doctrine  no federal or procedural
rule for FSC (no validity), instead question of basic contract law
 Federal rule can only tell us what to do with FSC no whether it’s
enforceable or not
o Basically REVERSED by Atlantic Marine (in terms of FSC, not Erie application)
 Shady Grove Orthopedic Assoc. v. Allstate Ins. Co.

o Cause of Action: NY state law statutory penalty of 2% interest for late payment
of insurance claims.
o Direct conflict between rules; broad reading
o Holding: FRCP 2c provides that a class action may be maintained provided that
all of the rule’s criteria are satisfied
o Binding Authority
 1. Rule 2c governs all aspects of whether a class may be certified
(applicable and valid)
 2. In the Hanna prong, the clash is determined primarily by looking at the
scope of the federal directive
 c. Legislative intent behind the state rule is not dispositive
o Persuasive Authority (Scalia)
 1. Byrd Balancing Test and Modified Outcome Determinative Test are not
appropriate for Hanna clash analysis
 2. Scalia’s Validity Analysis: advocates broad readings of Federal Rules to
prevent dis-uniformity of interpretation
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o Dissent (Ginsburg)
 This is an Unguided Erie question – Byrd and modified outcome
determinative test applicable here
FEDERAL RULES OF CIVIL PROCEDURE

PLEADING
Rule 7: Pleadings
Text of the Rule
(a) Pleadings. Only these pleadings are allowed:

(1) a complaint;
(2) an answer to a complaint;
(c) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
(b) Motions and Other Papers.
(1) In General. A request for a court order must be made by motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.
(2) Form. The rules governing captions and other matters of form in pleadings apply to
motions and other papers.
Interpretation of the Rule
 Pleading – factual allegations (complaint + answer)  defines the parameters of the

lawsuit, each party’s factual and legal contentions that shape discovery and trial
 Motion – asking the court for something
Note: Pleading ≠ motion
 Complaint – document that sets out COA – asserting right to relief (given as a matter
of right)
 Answer – document that answers the allegations set forth in the complaint (matter of
right)  a document can be both a complaint and answer!
 Reply – document that responds to the assertions made in the answer (matter of
discretion)
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 You, technically, only get one complaint and one answer  anything beyond that is a
matter of discretion
 BUT, you can amend (Rule 15)
 Rule 15 within a certain, limited, time frame you can amend, as a right. After that it
is within the Judge’s discretion
 Affirmative Defenses – ∆ claims that for some other reason why π should not recover
 set of defenses that give some other reason that π should not get relief besides “I
don’t meet the standards.”
 Affirmative defenses must be made in the Answer or cannot use in trial.
Rule 8: General Rules of Pleadings
Text of Rule
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief;
and
(c) a demand for the relief sought, which may include relief in the alternative or different
types of relief.
(b) Defenses; Admissions and Denials.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials—Responding to the Substance. A denial must fairly respond to the substance
of the allegation.
(c) General and Specific Denials. A party that intends in good faith to deny all the
allegations of a pleading—including the jurisdictional grounds—may do so by a general
denial. A party that does not intend to deny all the allegations must either specifically deny
designated allegations or generally deny all except those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of
an allegation must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge or information
sufficient to form a belief about the truth of an allegation must so state, and the statement
has the effect of a denial.
(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of
damages—is admitted if a responsive pleading is required and the allegation is not denied.
If a responsive pleading is not required, an allegation is considered denied or avoided.
(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including:
accord and satisfaction; arbitration and award; assumption of risk; contributory
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negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow

servant; laches; license; payment; release; res judicata; statute of frauds; statute of
limitations; and waiver.
(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or
a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it
were correctly designated, and may impose terms for doing so.
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
(1) In General. Each allegation must be simple, concise, and direct. No technical form is
required.
(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more
statements of a claim or defense alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative statements, the pleading is sufficient
if any one of them is sufficient.
(c) Inconsistent Claims or Defenses. A party may state as many separate claims or
defenses as it has, regardless of consistency.
(e) Construing Pleadings. Pleadings must be construed so as to do justice.
 Statement: short and plain statement of the case

 Rule 8 tells you what you have to have in your pleadings
 Rule 8(a) covers complaints
8(a)(1): statement of the grounds of the court’s SMJ
8(a)(2): statement of the claim
8(a)(c): Demand for relief
 Prolixity doctrine: too much information in a complaint (overly repetitive,
inappropriate), Rule 10 has provisions to prevent prolixity
 What do you need for a sufficient complaint? – 8(a)(2)
o Legal Sufficiency – Assuming all facts to be true, has π stated COA?
 If not enough, dismiss sua sponte or grant motion to dismiss – Rule
12(b)(6)
 Look only to face of the complaint and not evidence
 If clear that π’s claim is legally insufficient then dismiss with prejudice
o Factual Sufficiency – Claim is supported by sufficient facts that the COA is
recognizable  key facts, essential to claim
 Requires that π give ∆ fair notice of her claim and the grounds
 See below Rule 12 for Twiqbal explanation
 Answer: admit, deny, or insufficient information to answer
 Notice pleading – all π must do is put ∆ “on notice” of what the claim is (Conley)
Rule 9: Pleading Special Matters
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Text of the Rule
(a) Capacity or Authority to Sue; Legal Existence.

(1) In General. Except when required to show that the court has jurisdiction, a pleading
need not allege:
(A) a party's capacity to sue or be sued;
(B) a party's authority to sue or be sued in a representative capacity; or
(C) the legal existence of an organized association of persons that is made a party.
(2) Raising Those Issues. To raise any of those issues, a party must do so by a specific
denial, which must state any supporting facts that are peculiarly within the party's
knowledge.
(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person's mind may be alleged generally.
(c) Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that
all conditions precedent have occurred or been performed. But when denying that a condition
precedent has occurred or been performed, a party must do so with particularity.
(d) Official Document or Act. In pleading an official document or official act, it suffices to
allege that the document was legally issued or the act legally done.
(e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or
quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision
without showing jurisdiction to render it.
(f) Time and Place. An allegation of time or place is material when testing the sufficiency of a
pleading.
(g) Special Damages. If an item of special damage is claimed, it must be specifically stated.
 Certain matters must be pleaded with particularity (more specificity in allegations,

must show basis for allegation)
 Fraud and Mistake (9(b)) and Special Damages (Punitive) (9(g))
Applies whether the matters are complaints OR motions.
Rule 10: Form of Pleadings
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Text of the Rule
(a) Caption; Names of Parties. Every pleading must have a caption with the court's name, a
title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the
parties; the title of other pleadings, after naming the first party on each side, may refer
generally to other parties.
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading
may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity,
each claim founded on a separate transaction or occurrence—and each defense other than a
denial—must be stated in a separate count or defense.
(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference
elsewhere in the same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.
Pleading Timeline
∆ files answer
(If motion is
Rule 8
∆ has 21 (or 60/90) denied, ∆ must fle
answer)
π files complaint days to respond Motion is denied
Rule 12(a) ∆ makes a motion
to dismiss
Rule 12
∆ wins entire Lawsuit is
motion dismissed
 Motion to dismiss can be denied in whole or in part
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o It is possible for judge to dismiss part of a claim and not dismiss other party 
answer must then deal with remaining claims
MOTIONS
Rule 12: Defenses and Objections: When and How Presented; Motion for
Judgment on the Pleadings; Consolidating Motions; Waiving Defenses;
Pretrial Hearing
Text of the Rule
(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specifed by this rule or a federal statute, the time
for serving a responsive pleading is as follows:
(A) A ∆ must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request
for a waiver was sent, or within 90 days after it was sent to the defendant outside any
judicial district of the US.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after
being served with the pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an
order to reply, unless the order specifes a different time.
(2) United States and Its Agencies, Officers, or Employees Sued in an Official
Capacity. The United States, a United States agency, or a United States officer or employee
sued only in an official capacity must serve an answer to a complaint, counterclaim, or
crossclaim within 60 days after service on the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity. A United States
officer or employee sued in an individual capacity for an act or omission occurring in
connection with duties performed on the United States’ behalf must serve an answer to a
complaint, counterclaim, or crossclaim within 60 days after service on the officer or
employee or service on the United States attorney, whichever is later.
(4) Efect of a Motion. Unless the court sets a different time, serving a motion under this
rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading
must be served within 14 days after the more defnite statement is served.
(b) How to Present Jefenses. Every defense to a claim for relief in any pleading must be
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asserted in the responsive pleading if one is required. But a party may assert the following
defenses by motion:
(1) lack of SMJ;
(2) lack of PJ;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive
pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive
pleading, an opposing party may assert at trial any defense to that claim. No defense or
objection is waived by joining it with one or more other defenses or objections in a
responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough
not to delay trial—a party may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)
(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under Rule 56. All parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.
(e) Motion for a More Jefinite Statement. A party may move for a more defnite statement
of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous
that the party cannot reasonably prepare a response. The motion must be made before fling
a responsive pleading and must point out the defects complained of and the details desired.
If the court orders a more defnite statement and the order is not obeyed within 14 days after
notice of the order or within the time the court sets, the court may strike the pleading or
issue any other appropriate order.
(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response
is not allowed, within 21 days after being served with the pleading.
(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed
by this rule.
(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that
makes a motion under this rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted from its earlier motion.
(h) Waiving and Preserving Certain Jefenses.
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(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)
(1) as a matter of course.
(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to
join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks
SMJ, the court must dismiss the action.
(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether
made in a pleading or by motion—and a motion under Rule 12(c) must be heard and decided
before trial unless the court orders a deferral until trial.
 If first response is a Rule 12 motion or an answer, then include 12(b)(c) - (5) motions or
they are waived as per 12(g) & (h).
 12(b)(6): motion to dismiss for failure to state a claim (=demurrer)

o Just based on the pleading, there’s no recovery in the judgment
o ∆ does not have to file answer if she files demurrer
o Once an answer is filed, ∆ can't file a 12(b)(6) motion to dismiss, but they can
accomplish the same objective by filing a 12(c) motion for judgment on the
pleadings.
 2 ways case tested before trial:
1. Motion to dismiss
2. Discovery – expensive process
 Summary judgment – any material facts for jury to end
 Discovery – part of litigation where parties are exchanging info
o Most cases get settled during discovery
 Both parties can make a motion for summary judgment
o If there aren’t any contest facts (produced by discovery) for a jury to consider,
then judge can decide before trial
o If ∆ loses on summary judgment, then case goes to trial but only on questions of
material fact
 A complaint is sufficient as long as π sets forth an assertion upon which relief may be
granted; specific, detailed recitations of fact are not necessary to survive a motion to
dismiss (Conley v. Gibson)  pre-Twombly
o Establishes language of requiring that π gives ∆ “fair notice”
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o Creates term “notice pleading”

o Re: motion to dismiss under 12(b)(6) – complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that π can prove “no set of
facts” in support of his claims that would entitle him to relief
 Bell Atlantic v. Twombly establishes Plasability Pleading standard that replaces “no set
of facts” test from Conley
o Facts: Allegation of restriction on trade which violated the Sherman Act;
complaint asserted no actual facts, court says parallel conduct + conclusory
statements not enough
o Plausibility pleading: π needs to allege enough facts to show they are plausibly
entitled to relief
 2 objections: 1) courthouse doors should be open to majority of people,
and 2) Conley standard much easier to apply
o Dissent: parallel conduct gives rise to a strong conspiracy  think this is enough
to show that there probably would be an agreement and harder evidence would be
found in discovery
 Motion to dismiss not the stage where the judge should be evaluating
strength of argument
Plausibility
Possibility Probability
(Twombly)
 Erickson: possible attempt at balance with “any set of facts” standard

o Facts: π filed 198c suit against prison for withholding Hep C medication for his
association with lost syringes
o Alleged enough, do not need more fact  does it give any more than Twombly?
Raises confusion
 Under Twombly, a complaint will only survive a motion to dismiss if it alleges non-
conclusory facts that, taken as true, state a claim to relief that is plausible on its face
(Ashcroft v. Iqbal)
o Facts: fall out from 9/11 for racial profiling – high interest suspects held in SHU;
5c ∆s but 2 main ones are Mueller (FBI Director) and Ashcroft (AG) (complaints
for authorizing such treatment)
o π had not alleged any facts that actually proved ∆s enacting discriminatory
policies (but doesn’t have to “prove” anything at this stage, just alleging facts) 
court finds it unprecedented that π simply recites elements and gives legal
conclusions, no facts
 Court must disregard all merely conclusory statements in pleading
(clarification of Twombly)
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o Absolutely must have legal conclusions in your complaint (otherwise will lose on
legal sufficiency), but they would be disregarded under the Twombly standard 
have to be backed up by additional factual statements
 Twiqbal standard:
1. Ascertain any statements in the pleadings that are “bare” conclusory statements
and discard them for purposes of assessing 8(a)(2) (statement of claim)
2. Accept remaining statements as true for purposes of evaluating the pleadings
c. Assess whether such allegations give rise to “plausible” claim for relief (more
than possible, need not be probable)
Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to

the Court; Sanctions
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Text of the Rule
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one
attorney of record in the attorney's name—or by a party personally if the party is
unrepresented. The paper must state the signer's address, e-mail address, and telephone
number. Unless a rule or statute specifically states otherwise, a pleading need not be verified
or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is
promptly corrected after being called to the attorney's or party's attention.
(b) Representations to the Court. By presenting to the court a pleading, written motion, or
other paper—whether by signing, filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law;
(c) the factual contentions have evidentiary support or, if specifically, so identified, will
likely have evidentiary support after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack of information.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose an appropriate sanction
on any attorney, law firm, or party that violated the rule or is responsible for the violation.
Absent exceptional circumstances, a law firm must be held jointly responsible for a
violation committed by its partner, associate, or employee.
(2) Motion for Sanctions. A motion for sanctions must be made separately from any other
motion and must describe the specific conduct that allegedly violates Rule 11(b). The
motion must be served under Rule 5, but it must not be filed or be presented to the court if
the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately
corrected within 21 days after service or within another time the court sets. If warranted, the
court may award to the prevailing party the reasonable expenses, including attorney's fees,
incurred for the motion.
(c) On the Court's Initiative. On its own, the court may order an attorney, law firm, or
party to show cause why conduct specifically described in the order has not violated Rule
11(b).
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what
suffices to deter repetition of the conduct or comparable conduct by others similarly
situated. The sanction may include nonmonetary directives; an order to pay a penalty into
court; or, if imposed on motion and warranted for effective deterrence, an order directing
payment to the movant of part or all of the reasonable attorney's fees and other expenses
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directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(c) before
voluntary dismissal or settlement of the claims made by or against the party that is, or
whose attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing a sanction must describe the
sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery
requests, responses, objections, and motions under Rules 26 through c7.
 Punishes people for make allegations that are known to be false

 Rule 11 governs everything you do in a lawsuit except for discovery – covers both
factual and legal assertions
* Novel legal contentions are permissible as a good-faith extension of the law
 Pleadings must be signed by counsel and this signature constitutes a certification.
 Must be based on the best of signer’s knowledge, information, and belief and it is
formed after a reasonable inquiry.
 Can be fact-specific: if statute of limitations is about to run in 2 days, the standard of
reasonable inquiry expected is lower than for non-rushed cases
 Sanctions may be ordered by the court sua sponte, imposed after a motion made by a
party where the motion must describe the specific violative conduct
 Sanctions can apply to individual lawyer, law firm or client  but client can’t be
responsible for bad faith legal claims
 Must serve notice on opposing party + wait 21 days before moving for sanctions before
the court  safe-harbor rule
 Attorney is subject to sanctions from bar, separate from Rule 11
 An attorney has a duty prior to filing a complaint to conduct a reasonable factual

investigation and to perform adequate legal research that confirms whether the
theoretical underpinnings of the complaint are warranted by existing law or a good faith
argument for an extension, modification or reversal of existing law (Christian v. Mattel)
o Did Hicks (attorney) file a frivolous case?
o Two-Prong Test
 1. Legally or factually “baseless”  objective test
 2. Reasonable and competent inquiry
 District Court considered actions made during discovery and oral arguments this was
improper because these are not covered under Rule 11
Rule 18: Claim Joinder By π
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Text of the Rule
(a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may
join, as independent or alternative claims, as many claims as it has against an opposing party.
(b) Joinder of Contingent Claims. A party may join two claims even though one of them is
contingent on the disposition of the other; but the court may grant relief only in accordance
with the parties’ relative substantive rights. In particular, π may state a claim for money and a
claim to set aside a conveyance that is fraudulent as to that π, without first obtaining a
judgment for the money.
Interpretation of Rule
 Any party can assert any claim and they don’t have to be related
 Do not forget SMJ! – assumes that SMJ is ready checked for all the claims that are
being added
Rule 13: Counterclaims and Cross-claims
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Text of the Rule
(a) Compulsory Counterclaim.

(1) In General. A pleading must state as a counterclaim any claim that—at the time of its
service—the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing
party's claim; and
(B) does not require adding another party over whom the court cannot acquire
jurisdiction.
(2) Exceptions. The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pending
action; or
(B) the opposing party sued on its claim by attachment or other process that did not
establish PJ over the pleader on that claim, and the pleader does not assert any
counterclaim under this rule.
(b) Permissive Counterclaim. (Can amend or bring letter) A pleading may state as a
counterclaim against an opposing party any claim that is not compulsory.
(c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the
recovery sought by the opposing party. It may request relief that exceeds in amount or differs
in kind from the relief sought by the opposing party.
(d) Counterclaim Against the United States. These rules do not expand the right to assert a
counterclaim—or to claim a credit—against the United States or a United States officer or
agency.
(e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to
file a supplemental pleading asserting a counterclaim that matured or was acquired by the
party after serving an earlier pleading.
(g) Crossclaim Against a Coparty. (Anything arising out of the same transaction before the
court) A pleading may state as a crossclaim any claim by one party against a coparty if the
claim arises out of the transaction or occurrence that is the subject matter of the original action
or of a counterclaim, or if the claim relates to any property that is the subject matter of the
original action. The crossclaim 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.
(h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to
a counterclaim or crossclaim.
(i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b),
it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has
jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise
resolved.
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 Compulsory counterclaim – 1c(a)

o Pleading must state a counterclaim arising out of the same transaction or
occurrence. (Mandatory claims)
o NOTE: Because compulsory counterclaims arise out of the same transaction or
occurrence as the claim asserted by the opposing party, there will generally be
supplemental jurisdiction over such claims even if they lack an independent
basis for FQJ.
o Not forced to bring a claim but will be punished for NOT bringing claim.
o Very fact-specific inquiry
 Permissive counterclaim – 1c(b)
o Pleading may state that as a counterclaim against an opposing party (not
compulsory)
o As long as they’re SMJ, can bring any counterclaim, does not need to be related
o NOTE: Less likely to qualify for supplemental jurisdiction, although it is
possible for claims not arising out of the same transaction or occurrence to
satisfy the common nucleus of operative fact standard of supplemental
jurisdiction.
 Crossclaim against a co-party – 1c(g)
o Permissive, not compulsory  no penalty for not bringing crossclaims in
already existing action
o A pleading may state as a crossclaim any claim by one party against a co-party
if the claim arises out of the transaction or occurrence that is subject matter or
original action
o Crossclaims MUST be related unlike counterclaims and standard claim
 A claim is compulsory if the essential facts of the various claims are so logically
connected that considerations of judicial economy and fairness dictate that all of the
issues be resolved in one lawsuit (Grumman Syst. Supp. Corp. v. Data Gen. Corp.)
o If transactionally related, then it is a compulsory counterclaim
o Is there sufficient overlap between the factual underpinnings of the two actions?
 Facts do not need to be identical, just sufficiently related.
o AIM ∆s not indispensable because both DG and Grumann could obtain relief
from one another
o Compulsory because came out of same transaction  allowed to transfer to MA
with AIM, but split cases
Rule 20: Permissive Joinder of Parties
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Text of the Rule
(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to
or arising out of the same transaction, occurrence, or series of transactions or
occurrences; AND
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty
process in rem—may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of transactions
or occurrences; AND
(B) any question of law or fact common to all defendants will arise in the action.
(c) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or
defending against all the relief demanded. The court may grant judgment to one or more
plaintiffs according to their rights, and against one or more defendants according to their
liabilities.
(b) Protective Measures. The court may issue orders—including an order for separate trials—
to protect a party against embarrassment, delay, expense, or other prejudice that arises from
including a person against whom the party asserts no claim and who asserts no claim against
the party.
 Parties may be joined if they assert:

1. Claims arising out of the same transaction or occurrence AND
2. That involve at least one common question of law
o Commonality does not need to belong to all parties, so long as each party has at
least one commonality with each other
 Requirements for PJ, SMJ, and venue will have to be satisfied with parties and claims
brought under Rule 20
 Rule 20(a) permits a joinder whenever there will be at least one common question of
law or fact (Guedry v. Marino)
o As long as some πs have some common question of law or fact, then they can join
(Same transaction and occurrence is in the background)
o Claims don’t all have to do with the same common questions of law or fact (Here
re-election bid is what tied them all together)
o Splitting up facts would have negative effect on judicial economy
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Rule 42(b): Severing Parties
 Allows for judges to use discretion to sever the parties of a suit into different and
separate trials
Not separate lawsuits  just different trials before the same judge and same discovery
 Can be done to prevent jury confusion or prejudice
Rule 21: Misjoinder
 Judge separates case into entirely different law suits

 Another tool to make sure Rule 20 doesn’t go too far
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Rule 19: Compulsory Joinder of Parties

Text of the Rule
(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of process and whose joinder will
not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief among existing
parties; or
(B) that person claims an interest relating to the subject of the action and is so situated
that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest;
or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because of the interest.
(2) Joinder by Court Order. If a person has not been joined as required, the court must
order that the person be made a party. A person who refuses to join as a π may be made
either a ∆ or, in a proper case, an involuntary π.
(c) Venue. If a joined party objects to venue and the joinder would make venue improper,
the court must dismiss that party.
(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot
be joined, the court must determine whether, in equity and good conscience, the action should
proceed among the existing parties or should be dismissed. The factors for the court to
consider include:
(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:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(c) whether a judgment rendered in the person's absence would be adequate; and
(4) whether the π would have an adequate remedy if the action were dismissed for
nonjoinder.
(c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must
state:
(1) the name, if known, of any person who is required to be joined if feasible but is not
joined; and
(2) the reasons for not joining that person.
(d) Exception for Class Actions. This rule is subject to Rule 2c.
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 Rule 19 identifies a limited set of situations in which certain persons must be

joined in an action.
 Principal concerns are the possibility that the court may be unable to grant
complete relief in the absence of an absent party and related concern that the absent
party’s interests may be compromised by the proceeding
 2 Types of Parties:
o Necessary (19a) – persons π did not join but whose presence is so desirable
that the court will override the π’s choice by requiring them to be joined if
joinder is possible
 In this person’s absence the court cannot afford complete relief
amongst existing parties
 Required Parties Interest: Disposition in a lawsuit that the required
party is absent, will result in dispensing of any COA that party could
bring on the same issue
o Indispensable (when joinder not feasible – 19b) – persons whom π did
not join and who should be joined but can’t be joined (usually because of
the lack of PJ for them)
 If 19(a) applies but party can’t be joined
 4 factors to be considered (is there a way to make the absent party
less injured?):
 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:
o Protective provisions
o Shaping the relief
o Other measures
 3. Whether a judgment rendered in the person’s absence
would be adequate
o This is looking at all parties’ protection; judgment
cannot be adequate without all parties’ present
 4. Whether the plaintiff would have an adequate remedy if
the action were dismissed for non-joinder
o Concerned w/ protection of the plaintiff  They
brought the suit, but are unable to proceed because a
required party can’t be joined
o Possible adequate remedy for this: Another forum
that would get the required party joined and relief can
be sought.
 Balancing test! All factors are considered and weighed  leads to a
lot of judicial discretion (one factor could be enough to render a
party indispensable)
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 Marries couples have joint interest in property, must sue both OR sue one and then
join the other under Rule 19
 Joint tortfeasors are not compulsory parties unless there’s a joint interest
o Could join them but don’t have to (not a required party)
o But ∆ can assure that their tortfeasor will be added through Impleader (Rule
14)  Impleader because other party not yet a ∆ (if already was a ∆ then
would be a crossclaim)
 If a party is NOT required under 19(a) then don’t do the rest of the analysis  just
don’t join them
o If it IS required under 19(a), then just join them
o Do 19(b) analysis in the case that parties are required but can’t be joined
(SMJ, PJ etc.)
Rule 19 Roadmap
Joinder is feasible
Join party, end of
(SMJ + PJ over
inquiry
parties)
Yes, then go on
Case can proceed
Is the absent party without absentee
required?
Joinder is infeasible
Rule 19(a) (lack of SMJ, PJ, or
No, end of inquiry valid venue objection) Absent party is
required Lawsuit must be
dismissed
Rule 19(b)
 Under Rule 19(b), a federal district court must dismiss a lawsuit if it cannot, in equity and
good conscience, proceed in the absence of a necessary party (Republic of Philippines
v. Pimentel)
o Issue: Could the interpleader case proceed without the Republic and Commission
because they enjoyed sovereign immunity:
o Distinction between general interest in litigation and specific interest (interests
will be hurt if you’re not in court)
o Republic and Commission were necessary under 19(a)(1); if they were not joined,
the assets would be distributed to others and lost to these claimants.
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 Dismissal of the action must be ordered where there is potential for injury
to the interests of the absent sovereign.
 No way to adjudicate case and not prejudice foreign party.
o Under 19(b), the case had to be dismissed because in equity and good conscience,
it had to allow a sovereign nation to determine in its own courts who owns the
assets stolen by their former leader.
 Reaffirms that 19(b) calls for a case-specific approach in which competing
facts are weighed and an equitable balance is struck
Rule 56: Summary Judgment
Text of Rule
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for
summary judgment, identifying each claim or defense — or the part of each claim or defense
— on which summary judgment is sought. The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. The court should state on the record the reasons for
granting or denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders
otherwise, a party may file a motion for summary judgment at any time until c0 days after the
close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support
the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object
that the material cited to support or dispute a fact cannot be presented in a form that would
be admissible in evidence.
(c) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition,
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the court may:

(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(c) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required
by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(c) grant summary judgment if the motion and supporting materials — including the facts
considered undisputed — show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to
respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party;or
(c) consider summary judgment on its own after identifying for the parties material facts
that may not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief
requested by the motion, it may enter an order stating any material fact — including an item of
damages or other relief — that is not genuinely in dispute and treating the fact as established
in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or

declaration under this rule is submitted in bad faith or solely for delay, the court — after notice
and a reasonable time to respond — may order the submitting party to pay the other party the
reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or
attorney may also be held in contempt or subjected to other appropriate sanctions.
Interpretation of Rule
 Motion for summary judgment – counterparty to motion to dismiss

 Made AFTER discovery when parties think that there’s no issue of fact for jury to
decide because facts favor 1 party (judge would still rule on matters of law)  no
contrary evidence
o Not discretionary – if there’s no genuine dispute then must grant motion (judge
must give reasons in written form)
 Court shall grant motion if:
1. There is “no genuine dispute of material fact”
2. Movant is entitled to judgement as a matter of law
 Any party can bring summary judgement on all or some of the claims  don’t have to
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be non-claimant
The 1986 “Trilogy”
 Celotex
 Anderson: Non-moving party must produce sufficient evidence from which a reasonable
jury could find in favor of the non-moving party
o This is affected by the standards the jury would apply at trial
 Matsushita: Non-moving party should receive benefit of all reasonable doubts as to
whether there is a genuine dispute of material fact, but speculation is not permitted when
the non-moving party is a claimant and has set forth an implausible theory of liability
 The only evidence you can use in opposing summary judgment must be of a type that is
admissible at trial (Celotex Corp v. Catrett)
o However, it doesn't need to be in a form that would be admissible
o Facts: π sues for wrongful death on behalf of her husband, asbestos inhalation but
unsure whose asbestos it was (15 manufacturers)
o SCOTUS: documents were insufficient evidence, burden of proof not met because
evidence was inadmissible
o ∆ has no affirmative burden  all he has to say is that π was wrong by pointing
to the facts but doesn’t have to bring new info, can just refute what is offered by π
o When a non-claimant moves for SJ:
 It does not bear a burden of production of evidence that affirmatively
disproves that there is a genuine issue of material fact
o When a claimant opposes SJ:
 It must meet a burden of production on its claims
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 But if the non-claimant produces evidence that shows an absence of a

genuine issue of material facts
 In deciding a SJ motion, all facts are viewed in the light most favorable to the non-
moving party unless no reasonable jury would be able to accept that version of the facts
(Scott v. Harris)
o Becomes a question of reasonableness
o People not thrilled that judge becomes factfinder for purposes of SJ  was there
actually no genuine dispute of material fact?
o Case signals to trial courts that they have pretty broad authority to look at
evidence and assess its strength
Rule 56 Roadmap
1. Diagram or note to yourself which parties are moving parties and which are claimants
o Helpful to make chart like Celotex
o Any party can move for SJ
o Cross-motions for SJ are allowed
o Goal is to avoid confusing the movant w/ the claimant
o Motion must be made within c0 days of the close of discovery
2. Establish the applicable substantive law
o Law that applies to underlying claim
o Will affect quantum of proof (ex. preponderance of evidence or clear and
convincing evidence) that court will evaluate (Anderson)
c. Determine which facts are material
o Facts that are relevant to the dispute + would affect outcome (Consult underlying
substantive law)
o Failure to prove any essential element of the claim renders all other facts
immaterial (Celotex)
4. Determine which facts are disputed
o Not every fact is disputed
o Check for facts deemed admitted by virtue of pleadings/stipulations/requests etc.
o Other questions of “genuine fact” are resolved pursuant to case law
5. Determine what evidence the court may consider in ruling on a SJ motion
o Check Rule 56(c)(1)(A) for list of materials
o Facts must be supported by admissible evidence
o Affidavits can be used to summarize admissible evidence
o Court has discretion to consider other materials no tin motion
o Court considers the evidence in the light most favorable to the non-moving party
6. Has the moving party met its burden?
o If the moving party is the claimant, it must produce evidence showing that there is
no genuine dispute of material fact
o If the moving party is the claim opponent, it must show that the materials cited
show that there is no genuine issue of material fact or point to lack of evidence in
the record
7. If so, has the non-moving party met its burden?
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o If the non-moving party is the claimant, it must produce evidence showing a

genuine dispute of material fact
o Affirmative defenses must require additional burden of production
8. How should the court resolve this motion?
o Judge can grant or deny the motion in whole or in part
o If more facts are needed, judge can allow further discovery or give further
opportunity to properly support facts
o Judge can grant SJ sua sponte after giving prties notice and a reasonable time to
respond
 For exam only need to know #1,c,4!
PRIOR ADJUDICATION
 Claim Preclusion – a party is barred from bringing a claim that it has or should have
already brought
 Issue Preclusion – a party is barred from re-litigating an issue that has already been
determined in a prior proceeding
 Collateral Attack – a party challenges the outcome of a decision or issue in a new
lawsuit
o May or may not be allowed based on the issue or claim preclusion
o Only possible if one of the criteria is not met (final, on the merits etc.)
 Appeal – a party challenges the outcome of a decision or issue in a court of appeals in the
same lawsuit
o Cannot appeal without final judgment
o Appeals ≠ collateral attacks
o Appeal considered part of the same lawsuit
 Stare Decisis – a court must follow the rules and holdings established by prior cases in
the same jx
o Establishes the rules of the case (precedent) but not what can be litigated 
guides the judge
CLAIM PRECLUSION – RES JUDICATA
Res Judicata: Basics
Requirements
1. Same parties
o Case 1 and case 2 were brought by same claimant against same ∆ (need same
configuration)
o Note: If parties switched  probably dismissed because it’s a compulsory
counterclaim
2. Same claim
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o Any claim that has been brought

o Any claim that should have been brought
o Majority view - same transaction or occurrence
 Primary rights view – get a lawsuit for each right invaded (injury/property
damage separate) – not used anymore
o Must give specific facts when assessing if they are part of the same transaction-
River Park (first about this, second suit about this)
c. Final judgment
o District court has nothing left to do but execute the judgment
4. Valid judgment
o Court had proper jx, may require detour to SMJ or PJ
5. On the merits- In federal court, governed by 41(b); All dismissals are on the merits
unless based on:
a) Lack of jx
 In deciding whether a requiring is jurisdictional, a court will look at:
 Whether at least one right between the parties has been adjudicated
 Whether the ∆ incurred the burden and inconvenience of mounting
a defense
b) Improper venue
c) Failure to join a party under Rule 19 (indispensible parties)
d) 12(b)(6)
 Legal insufficiency always on the merits
 Factual insufficiency probably not on the merits
 Parties bound and advantaged – both for claim AND issue preclusion
(Who can be punished by prior adjudication and who can take advantage of it?)
1. Virtual representation
2. Privity (rules of privity set by contract)
 Where two harms come out of the same underlying act, the harms must be litigated in the
same suit (1 COA) (Rush v. City of Maple Heights)
o Facts: π injured in a motorcycle accident sued in one claim for property damage
and another claim for personal injury
o Holding: where a person suffers both personal injuries and property damages as
a result of the same wrongful act, only a single COA arises
 River Park v. City of Highland Park: “same evidence” v. transactional test

o Facts: Lawsuit 1: In federal court for violation of constitutional rights (due
process property deprivation). Dismissed for failure to state a claim.
 Lawsuit 2: in state court for tortious interference, implied contract, and
abuse of gov’t power
o Holding: state claims are the same COA as the federal claims
o “Same evidence” test: “if the evidence needed to sustain the second suit would
have sustained the first, or if the same facts were essential to maintain both
actions”
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o Transactional test: the assertion of different kinds of theories of relief still

constitutes a single cause of action if a single group of operative facts give rise to
the assertion of relief.
 Broader – focuses on the factual question, prevails over “same evidence”
 No exceptions to res judicata for change in law (Federated Dept. Stores v. Moitie)
o Facts: The plaintiffs were 7 classes of retail purchasers who sued various dept.
stores in a federal anti-trust action (except for Moitie who sued for state antitrust);
law changed in the middle of his suit
 Plaintiffs in 5 of the suits appealed and had their cases reversed because of
a change in law; Brown and Moitie filed a new suit in state court. Holding:
Res judicata can be applied to Moitie and Brown’s new suit
 Mandatory counter claims are res judicata if not brought in first suit--they stem from the
same transaction or series of events of the first claim (Mitchell v. Federated
Intermediate Credit Bank)
o Supports efficiency, judicial authority, and repose
o Facts: In lawsuit 1: the bank sued Mitchell to recover debt, a verdict for Mitchell
based on his defense that the bank was assigned the crop proceeds
 In lawsuit 2: Mitchell sued the bank to recover the surplus money not
needed to satisfy the debt
o Holding: The transaction of the case at bar is the same transaction that Mitchell
pleaded as a defense in the federal suit, barring the claim as res judicata
 Costello v. United States: “on the merits” test

o Facts: In lawsuit 1, the US filed suit against Costello for denaturalization, but did
not file an affidavit of good cause; Lawsuit 2, US re-files against Costello for
denaturalization
o Holding: The government was not barred from instituting the present proceeding
 There has been an adjudication on the merits except when it was dismissed
for lack of jurisdiction, improper venue, or failure to join a party under
rule 19
o Test for deciding “jurisdictional” (1 part of on the merits test):
 1) Whether ∆ has been burdened with inconvenience in meeting the
merits?
 Have they started considering the meat of the case?
 Investigating substance of underlying claim
 2) Court needs to have adjudicated at least 1 substantive right between
the parties
 That’s how you decide whether something’s “jurisdictional” (=
prerequisite to the court going forward, not just SMJ/PJ, can be
other requisites)
 If both have happened, then not jurisdictional and not on the merits
 If something is prerequisite to dismissal and it was dismissed, then it is not on the merits
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 Summary judgement is almost always on the merits

o Developed a record, and in fact were deciding a substantive right
o A few technicalities when SJ decides procedural issue, not substantive  then not
on the merits but this is a rare exception
 If you’re in discovery, then case is almost always on the merits because you’re basically
dealing with the merits (facts)  depends on jx
 Motion to dismiss for legal insufficiency – always on the merits
 Factual insufficiency debatable
 * ALL dismissals are on the merits unless: *

1. Lack of jurisdiction (any prerequisite)
2. Improper venue
c. Failure to join a Rule 19 party
ISSUE PRECLUSION – COLLATERAL ESTOPPEL

Issue Preclusion: The Basics
Requirements
1. Actually litigated and disputed
o Parties actually argued and court actually ruled.
2. First lawsuit produced a valid, final judgment
o Not on the merits only claim preclusion
3. Issue was essential to the judgment
o Logic, could jury have come to the conclusion without going through this issue
4. Issue in the second lawsuit is the same as the first lawsuit.
5. Check for parties bound or advantaged
Terminology
 Mutuality of Estoppel: Estoppel is only available if both parties would have been bound
by the original judgment
 Offensive Non-Mutual Estoppel: used by a non-party of lawsuit to establish liability in
lawsuit two.
o Claimant is using issue preclusion
 Defensive Non-Mutual Estoppel: used by a non-party of lawsuit one to defeat liability
in lawsuit two
o Used as a shield against claimant’s claims
 Facts needs to come from the same issue, not just “same transaction or occurrence”
(Little v. Blue Goose Motor Coach)
o Facts: In lawsuit 1, Mr. Little brought suit against bus company to recover for
property damage sustained in a collision
 In suit 2, Mr. Little brought a suit for personal injuries, but due to his death
Mrs. Little was substituted
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o ∆’s negligence essential to suit because of the definition of negligence  Little’s

death doesn’t matter for issue preclusion
o Holding: π is precluded from maintaining an action based on estoppel by verdict
 An earlier judgment should not be given preclusive effect unless the party against whom
it is used had a full and fair opportunity to contest the judgment (Kaufman v. Eli Lilly &
Co)
o Facts: DES case, mom sued and tried to use previously decided case on this topic
to move for partial summary judgment
o Not precluded – want to make sure there was an actual litigation before if issue
will be precluded
 How to deal with issue preclusion and prior adverse judgments:

o If there are many prior adverse judgments, then you don’t have to rely on the one
in your paperwork
o Try to avoid this by consolidating claims
Non-Party Preclusion
6 exceptions to non-party preclusion – established in Taylor v. Sturgell

1. Consent
2. Pre-Existing Legal Relationship (Privity)
o Look at underlying law
3. Adequate Representation by a party with similar interests
o Not enough to say P1 & P2 have the same interests  P1 must know he is
protecting P2’s interest and the court must be away and set up special procedures
(affirmative evidence)
4. Assumption of control of previous litigation
o Usually comes up when company has similar interests to a litigation, don’t join as
party but pay for the lawyer or come to a lot of meetings (#1 Clue=Money)
5. Avoiding preclusion by litigating through a proxy
o Having a different party re-litigate same issue through different π
o (Why Court sends Taylor back)
o Ginsburg thinks it could be relevant if Taylor could prove it  ends up being not
enough of a record whether it was intentionally planned
6. Express foreclosure by statute
o Sometimes there are statutes which say only 1 person can sue and future πs would
be barred (not common)
 Taylor: In lawsuit 1, Herrick filed suit against the FAA because they denied airplane
documents.
o In suit 2, Taylor filed suit for the same cause of action, which was said to be
barred by claim preclusion because of virtual representation.
 Holding: the judgment against Herrick does not bar Taylor from maintaining this suit.
o It is not clear that Herrick understood himself as protecting Taylor’s interests.
 Rejects doctrine of virtual representation (but SCOTUS not binding on states  some
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states still retains VR doctrines)
Mutuality of Estoppel
 An issue is precluded in a 2nd suit by defensive non-mutual estoppel if the π in the 2nd
suit had privity with a π or was the π from the 1st suit + the issue being estopped was
actually decided, was essential to the judgment, is the same issue in that action as here,
and was subject to a valid, final judgment (Bernhard v. Bank of America)
o Facts: In lawsuit 1, the beneficiaries sued Cook to assess the validity of the
transfer of money, which resulted in a judgment for Cook because the transfer of
funds was considered a gift
 In suit 2, the beneficiaries sued the bank also for validity of the transfer
o Holding: Case dismissed as res judicata because the issue of Cooks’ ownership of
the money was already established
o Court wants to allow non-mutual defensive collateral estoppel broadly
o Efficiency rationale: suing each ∆ individually and waiting to see how each case
turns out before filing next doesn’t work
 Fairness rationale: care about fairness to π  don’t want an adversary
getting a second bite at the apple
 Multiple inconsistent judgements rationale: still a problem, even with
issue preclusion
 Non-mutual offensive estoppel is allowed in cases where certain concerns can be allayed
(listed below) (Parklane v. Shore)
o Facts: In lawsuit 1, the SEC filed suit against Parklane, saying they issued a
materially false and misleading proxy statement in connection with a merger,
which resulted in valid, final judgment on the merits for SEC
 In suit 2, private plaintiffs sued Parklane based on the same false
statements, and wanted issue preclusion on the finding that defendants
issued a materially false and misleading proxy statement
o Holding: Parklane collaterally estopped from relitigating the issue
o SCOTUS allows it but not a blanket right – 4 factors spelled out (below)
 4 factors for non-mutual offensive estoppel:

1. Stakes in lawsuit #1 have to be sufficient, not a tiny amount/action
 Otherwise would have incentive to not litigate fully in case 1
2. Multiple inconsistent judgements decided?
 Don’t want π taking advantage of 1 outlier case that fits their goals and
disregarding the rest
 If there are such judgments, offensive CE not allowed
c. Did ∆ fully litigate lawsuit 1? Are there any procedural differences?
 International court procedures don’t get disregarded, allowed as long as
the full court system is available (ex. shortened motion practice or
inability to file brief would be a procedural difference)
4. Could π have joined in lawsuit 1?
 Squishy factor, no mandatory joinder under Rule 19
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 Fact-dependent
o Any one of these factors could defeat use of offensive CE, not a “totality of
circumstances” test
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CIV PRO Outline 1L - Summary Civil Procedure

Civil Procedure (Brooklyn Law School)

StuDocu is not sponsored or endorsed by any college or university

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

CLAIM PRECLUSION – RES JUDICATA..............................................................................................................77

SUBJECT MATTER JURISDICTION

INTRODUCTION TO SUBJECT MATTER JURISDICTION

Federal Courts State Courts

 Jurisdiction – court must have adjudicatory power consisting of:

US Constitution Article III §2 Subject Matter

 Granted by US Constitution Article III (above) and 28 USC §1cc2 (below)

28 USC §1332 (a): Diversity of Citizenship

Domicile and Citizenship

 Citizenship – where a person is domiciled (only for purposes of diversity)

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

o Ways to show intent to remain/return: taxes, new job/lease/contract/house,

 Complete diversity is required!  no π is a citizen of the same state as any ∆

 Amount in controversy – an amount in excess of $75,000 must be disputed in the suit

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

Citizenship of Non-Natural Persons

28 USC §1332 (c): Diversity of Citizenship

 Corporations have 2 domiciles:

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

2. Principal place of business

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

28 USC §1359: Parties Collusively Joined or Made

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

 Federal courts to do not hear domestic relations cases

FEDERAL QUESTION JURISDICTION

28 USC §1331: Federal Question

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

 Well-pleaded refers to that part of the complaint supporting only π’s

American Well Smith Merrell Grable

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

 4-part test (Grable factors):

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

 These parties must actually be disputing it and not resolved by stipulation

 A state court’s resolution of a hypothetical question of patent law is not substantial

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

Owen v. 28 USC Exxon

 Moore v. NY Cotton Exchange: For purposes of supplemental jurisdiction, a

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

o After 14 days, must make a motion seeking court permission to implead 

Back to Evolution of Supplemental Jx

 Owen v. Kroger: In an action in which federal jurisdiction is based on diversity, π may

o Because of a geographical issue (Missouri River), Owen becomes citizen of IA,

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

o IF π asserts a non-federal claim against a diverse ∆ and the ∆ impleads a non-

28 USC §1367 – Supplemental Jurisdiction

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

o (d) – tolling provision, stops the running of statute of limitations in certain

 §1c67(a) – grants supplemental jx in the broadest possible terms

 If supplemental jx is declined under §1c67(c), only the supplemental claim is dismissed

Supplemental Jx and Diversity

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

 A diverse π cannot use supplemental jx against third-party ∆  see Owen v. Kroger

 When supplemental jx is STILL ALLOWED:

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

CIVIL PROCEDURE OUTLINE – EFFRON 2016 TSESARENKO

28 USC §1441: Removal of Civil Actions