Subject Matter Jurisdiction Checklist:

1. If in state court, can usually stay there.

2. Can it be in federal court?
a. Constitution: Article III, Section II-
i. Diversity plus amount in controversy
1. Citizenship:
a. Individuals: Domiciled -physical presence and intent
b. Corporations: incorporation and principle place of business
c. Non-corporate entities: citizenship of members
d. Complete diversity needed (Strawbridge)
2. Amount in controversy:
a. Plausibility at beginning of the case
b. P’s claim made in good faith
c. Same P can aggregate claims against single D
ii. Federal Subject Matter
1. Constitutional Requirements
a. Arising under the constitution, the laws of the US, and treatise made…
b. Mottley: arising under = federal statute must be the basis for plaintiff’s complaint, not
in defense or counterclaim
c. Can have state law claim with federal issue
d. Supplemental: if SMJ, can also bring state claim -tag jurisdiction
Personal Jurisdiction Checklist:
1. State has power to bring you if:
a. Constitutional Requirements
i. Specific Jurisdiction:
1. Sufficient contacts with forum state
a. Deliberate (purposeful availement of forum state) AND
b. Sufficient to meet the minimum contact requirement
i. Intn Shoe: visit state, do business
ii. Burger King: through contract
iii. Asahi: stream of commerce
iv. Rusinowski: internet
v. Calder: Harm
c. (single contact may be sufficient)
2. Claim arises out of contact
a. But-For test
b. Evidence test
3. Personal jurisdiction is consistent with traditional notions of fair play and substantial justice
a. Burden on D
b. Forum state’s interest
c. P’s interest in convenient forum
d. Interstate judicial system’s interest in efficient resolution of controversies
e. Shared interests of the several states in furthering substantive social policies
ii. General Jurisdiction
1. Contacts are so extensive (Continuous and systematic) that it would be reasonable for there to be
personal jurisdiction over the D
2. State has PJ even for a cause of action unrelated to those contacts
3. Continuous and systematic (international shoe) = must be “at home” in the sate (Daimler)
b. State Statute -Long Arm Statutes
i. May authorize up to constitutional limits or more limited
2. Proper Service of Notice
a. Constitutional requirements (Mullane) AND
i. Reasonable to inform those affected -are there better methods that P didn’t use?
ii. P is responsible for service
iii. Service cannot be by a party
iv. Handing papers to D isn’t necessary
v. Actual notice isn’t necessary
b. Relevant Statutory/Rule Provision
i. FRCP 4
1. 4(e)-individual
a. State law where district court is
b. Delivering copy to individual personally
c. Leaving copy at dwelling or usual place of abode with someone of suitable age and
discretion who resides there
d. Delivering copy of each to an agent authorized by an appointment or by law to receive
service of notice
2. 4(h) -corporation
a. 4e1 or
b. To an office, a managing or general agent, or any other agent authorized by appointment or
by law to receive service of process
3. 4(d)-waiver rule: P can notify D saying action will commence and request D waive service of
summons
ii. State Rule
Venue Checklist
1. Proper Venue: 28 USC 1391(b)
a. 1) judicial district in which any D resides, if all Ds are residents of the State in which district is located (if 2 Ds
in same state, either is okay)
i. Individual: citizenship like SMJ
ii. Corporation:
1. If state has 1 judicial district-proper if state has PJ over corporation
2. More than 1 judicial district-proper if state has PJ over corp and corp is deemed to reside in any
district in that state in which tis contacts would be sufficient under PJ as if district were a separate
state
3. If single corporate D, if subject to PJ in district, then federal venue is proper
4. If multiple Ds:
a. See where each D “resides” by seeing where each is domiciled and where each corp is
subject to PJ
b. Compare to see if there is a state in which all Ds are deemed to reside
b. 2) judicial district in which substantial part of the events or omissions giving rise to the claims occurred…; or
i. If dispute crosses state or district border, then could point to multiple permissible venues
c. 3) if there is no district in which an action may otherwise by brought…any judicial district in which any
defendant is subject to the court’s personal jurisdiction to such action (fall back and v rare)
2. If venue is improper?
a. 12(b)(3)-improper venue = defense for motion to dismiss
b. 1406: Can also transfer case -if in the interest of justice, transfer such case to any district or division in which it
could have been brought (court has PJ over Ds and proper venue)
3. If venue proper-
a. 1404: convenience of parties and witnesses, interest of justice, may transfer-discretionary
i. Parties can agree on venue
ii. MacMunn factors
1. Private interest
a. P’s choice
b. D’s choice
c. Where claim arose
d. Convenience of parties
e. Convenience of witnesses
f. Ease of access to sources of proof
2. Public interest
a. Transferee’s familiarity with governing laws
b. Relative congestion of calendars of the potential transferee and transferor courts
c. Local interest in deciding local controversies at home
Complaints Checklist:
1. FRCP Rule 8(a): Complaint must include short and plain statement:
a. 1) jurisdiction (SMJ, PJ, Venue)
b. 2) statement of the claim (law) and evidence that entitled to relief (fact); and
c. 3) a demand for the relief sought, which may include relief in the alternative or different types of relief
(judgement)
d. (applies to counter-claims, cross-claims, and third party complaint)
2. Twiqbal: plausibility as pleading standard
a. 2 part test:
i. 1) identify the cause of action and its elements
ii. 2) ignore any allegations that merely recite elements of the cause of action with no supporting
evidence (conclusory/legal elements)
iii. 3) consider whether the remaining factual allegations (taken as true) are plausible and support
liability under those elements
1. Taken as true unless clearly unbelievable
Responses to Complaint Checklist:
1. Options
a. Not responding = Default Judgement
i. Respond within 21 days
ii. Rule 55: When a party against whom a judgement for affirmative relief has failed to plead or otherwise
defend….” P can seek default judgement
1. Accept facts in complaint as true -P only wins if complaint adequately states a claim
2. Courts must make an affirmative inquiry into jurisdiction (SMJ)
3. May also hold hearings on issue of damages
a. May accept or hold evidentiary hearing
iii. Setting aside default judgement -D can later challenge the judgement and court can set aside default
judgement for “good cause”
1. Non-exclusive factors to consider:
a. Whether default was willful or culpable
b. Was D willful in ignoring the complaint?
c. Whether granting relief would prejudice opposing party?
d. Whether defaulting party has meritorious defense
b. Motion to dismiss -submit before answer
i. Rule 12(b)
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
a. consider:
i. documents attached to the complaint
ii. undisputed documents alleged or referenced in the complaint; and
iii. the public record
7. failure to join a party under rule 19
ii. may hold an evidentiary hearing
iii. Rule 12€: may move for a more definite statement of a pleading…which is so vague or ambiguous that
the party cannot reasonably prepare a response -get more info
1. Usually do 12(b)(6) over this
iv. Rule 12(h): Strike from a pleading an insufficient defense or any redundant immaterial, impertinent, or
scandalous matter
c. Answer + counterclaims
i. Rule 8(b):
1. Defenses (waived if not mentioned in the answer)
2. Admit or deny allegations in complaint
3. Plausibility (Twiqbal) applies
ii. Rule 8(b) 2-6:
1. Denial = fairly respond to the substance of the allegation
2. General denial; or specifically deny
3. Admit one part, deny the rest-break up the statement
4. State lack of knowledge or insufficient info for an allegation
5. If responsive pleading is required and allegation isn’t denied = admitted; if responsive pleading
isn’t required, allegation is considered denied or avoided
a. Statements of law are not required responsive pleadings
Amending Pleadings Checklist
1. Amendments before trial: Rule 15(a)
a. Very permissible
b. Party may amend as a matter of automatic approval to amend within:
i. 21 days after serving the other parry summons and complaint; or
ii. 21 days after service of a responsive pleading or motion under Rule 12(b), e, or f, whichever is
earlier
c. Otherwise, need party’s written consent or courts approval “when justice so requires
i. Court considers:
1. Amending party acting in bad faith? Undue delay? Dilatory motive?
2. Non-moving party be prejudiced?
3. Consider judicial economy and whether previously amended
ii. Beeck considerations:
1. Reason for amendment
2. Amending party’s diligence
3. Futile as a matter of law
2. Amendments During/After Trial: 15(b)
a. During Trial:
i. If opposing party discusses issue that is outside of pleadings: Object
1. Courts can:
a. Allow amendments of pleadings to encompass issue, or
b. Bar party from discussing issue
b. After trial:
i. Opposing party has discussed an issue that is outside of the pleadings
ii. Is court allowed to rule on that issue? Only if it were tried by implied or express consent
iii. Parties may move to amend pleadings to reflect issue, but it does not affect outcome of trial.
Sanctions Checklist:
1. Rule 11
a. Signature: Every pleading, written motion, and other paper must be signed by at least one attorney of
record in the attorney’s name….The court must strike an unsigned paper unless the omission is promptly
corrected after being called to the attorney’s or party’s attention.
i. Safe harbor: if forgot to sign, can do so promptly -within 21 days; court can still impose sanctions
on its own if it wants
b. Representations to the Court. By presenting to the court a pleading, written motion, or other paper…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:
i. Improper purposes
ii. Frivolous legal contentions
iii. Factual contentions that lack support and are not likely to have support
iv. Denial of facts without justification
v. (what does reasonable mean)
1. Complexity of factual and legal issues in q
2. Extent to which pertinent facts are under control of opponents and third parties
3. Extent to which lawyer relied on clients for facts
4. Whether case was accepted from another lawyer
5. Resources available to lawyer to conduct an inquiry
6. Extent to which lawyer was on notice and further inquiry might be appropriate
c. 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.
Joinder Checklist:
1. Joinder of Claims: Rule 18(a)-Permissive
a. Against an opposing party: any claims may be joined
b. Against co-party: only if arises out of same transaction/occurrence
2. Joinder of parties: Rule 20 -Permissive (need to still do jurisdictional analysis)
a. Ps: may join in one action if:
i. Assert same right to relief with respect to or out of the same transaction [or] occurrence and…
ii. Question of law or fact in common to all Ps will arise in the action
b. Ds: persons…may be joined in one action as Ds if:
i. Any right to relief is asserted against them of the same transaction [or] occurrence and…
ii. Any questions of law or fact common to all D will arise in the action
3. Rule 19: Required Joinder
a. A person who (can be served, fulfills SMJ and PJ) if
i. Cannot determine dispute/allocate relief; or
ii. That person claims an interest relative to the subject of the action and is so situated that
disposing of the action in the person’s absence may:
1. Impede the person’s ability to protect the interest; or
2. Leave an existing party subject to a substantial risk of incurring inconsistent obligations
b/c of the interest
b. Consequence of not bringing = dismissal
Crossclaim and Counterclaim Checklist:
1. Do I have any possible disputes with any of the parties in this case?
a. If no: don’t need counterclaims or crossclaims
b. If yes:
i. For disputes against parties on the other side (counterclaims):
1. Is the counterclaim compulsory? (Rule 13(a))
a. Arises out of the transaction or occurrence that is the subject matter of the
opposing party’s claims; and
i. Factors for same occurence (King v. Blanton):
1. Similar fact and legal issues
2. Whether res judicata would bar subsequent suit if not brought
3. Same evidence supports or refutes principal claim and
counterclaim
4. Logical relationship exists between claim and counterclaim
b. Doesn’t require adding another party over whom the court cannot acquire
jurisdiction
2. Is the counterclaim permissive?
ii. For disputes against parties on my side (crossclaims-always permissive)”
1. Do I want to bring the claim as a matter of strategy? (no legal requirement)
Discovery Checklist:
1. Scope of Discovery:
a. Rule 26(b)(1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claims or defense and is proportional to the needs of the case, considering:
i. The importance of the issues at stake in the action
ii. Amount in controversy
iii. Parties’ relative access to relevant info
iv. Parties’ resources
v. Importance of the discovery in resolving the issues, and
vi. Whether the burden or expense of the proposed discovery outweighs its likely benefits
2. Initial disclosures: Rule 26(a)(1)
a. Must disclose:
i. Name/address/phone number for each individual likely to have discoverable info along with the
subjects of that info
ii. Copy of all docs and things that the disclosing party may use to support its claims or defenses
iii. Materials relating to damages -nature and extent
iv. Any insurance agreement under which an insurer may be responsible for part or all of a possible
judgement
3. Request for Docs and Things
4. eDiscovery-ESI
a. Rule 26(f): the parties must confer and developed a proposed discovery plan. The plan must state any
issues about disclosure, discovery, or preservation of ESi
5. Cost shifting
a. Rule 26 (c)(1)(B): permits courts to issue orders on allocation of expenses for discovery aka allows cost
shifting
b. Cost-shifting Factors (Zubulake)
i. Degree to which request is specifically tailored to discover relevant information
ii. Availability of requested information from other sources
iii. Total cost of production, compared to the amount in dispute
iv. Total cost of production, compared to resources available to each party
v. Relative ability of each party to control costs and its incentive to do so
vi. Importance of issues at stake in the litigation and
vii. Relative benefits to the parties of obtaining the information
6. Depositions: Rule 30
7. Interrogatories: Rule 33
8. Mental and Physical Exams: Rule 35
9. Requests for Admissions: Rule 36
a. Narrower and shorter that interrogatories
Discovery Control and Abuse Checklist
1. Tools for Preventing Abuse
a. Litigation holds
i. Memo to employees to preserve all docs that might be relevant to litigation
b. Motion to compel: Rule 37(a)
i. To compel disclosure or discovery
ii. Must include certification that the movant has in good faith conferred or attempted to confer
with the person
iii. Complaint must follow complaint standards
c. Protective orders
i. Asking for protection of confidentiality from the court to not include
ii. Must show good cause
1. Requires specific demonstration that disclosure will cause serious injury
iii. If imbalance of power, seek protection order
d. Sanctions
2. Tools for Punishing Abuse
a. Rule 26
i. G(1): every disclosure and doc request, etc must be signed; signing certifies that”
1. Complete and correct as of the time it is made; and
2. Is consistent with these rules, not interposed for improper purpose; and neither
unreasonably nor unduly burdensome or expensive, considering the needs of the case,
prior discovery of the case, amount in controversy, and importance of the issues at stake
in the action
ii. G(3): if violates this rule without substantial justification, must impose appropriate sanction on
the signer, party on whose behalf signer was acting, or both. Sanction may include order to pay
the reasonable expenses, including attorney’s fees, caused by the violation
1. Unlike rule 11, requires sanctions
b. Rule 37
i. B: failure to comply with a court order
1. Leads to default judgement against you
ii. Failure to admit
1. Pay expenses
iii. Failure to disclose
1. Pay expenses, inform jury, other sanctions
3. Spoliation = intentional destruction or alteration of evidence
a. Retain docs that:
i. Might be relevant to the action
ii. Could lead to discovery of admissible evidence
iii. Are likely to be requested for discovery; or
iv. Are the subject of a pending discovery request
b. Sanction worthy spoliation (Stanley)
i. Had duty to preserve
ii. Culpable state of mind
iii. Evidence that was destroyed was relevant to the claims or defenses of the party that south
discovery
Summary Judgement Checklist:
1. Rule 56(a):
a. Any party can move for SJ
b. SJ shall be granted if:
i. Shows no genuine dispute as to any material fact and movant is entitled to judgement as a
matter of law.
1. Material fact: fact that might affect the outcome of the suit
2. Genuine Dispute: can a jury could reasonably find for the nonmoving party?
a. Evidence for non-moving party must be insufficient for jury to reasonably find
for nonmoving party.
2. Evidence to use:
a. Answers to requests for admissions
b. Mental/physical exams
c. Documents and things
d. Depositions
3. What are the elements of the claim?
a. For each element:
i. Is there any dispute about whether this element is met?
1. If no: this element is amenable for SJ.
2. If yes: is the dispute one of fact or law?
a. If law, amenable to SJ
b. If fact:
i. Is the dispute genuine? If no---SJ
ii. Is the dispute material? If no---SJ
Trial Checklist:
1. Judgement as a matter of law (JMOL)
a. No genuine issue of material fact and so clear
b. Made before case is submitted to jury
c. Must specify judgement sought and basis for motion
i. Same standard as SJ
d. Court’s options:
i. Rule on it
ii. Wait until after jury verdict
2. Judgement notwithstanding the verdict (JNOV)
a. After jury verdict
b. Must have previously moved for JMOL
c. Must specify grounds for motion -jury returned verdict that no reasonable jury could; jury was irrational
d. Court’s options:
i. Grant motion and enter judgement as a matter of law -no new trial
ii. Allow existing judgement to stand (deny motion)
iii. Order a new trial (not popular)
e. Only okay when evidence on one side is so weak or so strong
3. Types of verdicts (titles are not dispositive)
a. General verdict: Asks jury about liability (yes and no) and damages)
i. If inconsistent: order a new trial
b. Special verdict: Rule 49(a) -Series of factual questions
i. Asks questions about factual issues
ii. Questions should be clear, unambiguous, and limited to a single issue
iii. If inconsistent verdict,
1. Resubmit to the jury, if jury hasn’t left
2. Attempt to harmonize (unless it is impossible after a fair reading)
3. New trial
c. General verdict plus questions: Rule 49(b)
i. General verdict with written questions on one or more issues of fact that the jury must decide
ii. When consistent, court must approve unless JNOV
iii. When answers are consistent with each other, but one or more is inconsistent with the general
verdict, the court may:
1. Approve an appropriate judgement according to the answers, notwithstanding the
general verdict
2. Direct the jury to further consider its answers and verdict; or
3. Order a new trial
iv. When answers are inconsistent with each other and verdict, judgement must not be entered;
court must direct the jury to further consider its answers and verdict, or order a new trial.
Appellate Review Checklist:
1. Where to appeal?
a. Circuit court corresponding to your district court
2. What to appeal?
a. Adverse decisions where the court made prejudicial errors and the error was preserved
i. Properly preserved: must have objected court’s decision or if court didn’t consider issue, must have called
court’s attention to failure to consider
1. Exceptions:
a. Pure questions o flaw
b. Appellant raises an objection she couldn’t have raised in district court
c. Interests of substantial justice is at stake
d. Where the proper resolution is beyond doubt
e. Issue presents significant questions of great public concern
f. Only claims raised on appeal
3. When to appeal?
a. Final decisions -ends litigation on the merits and leaves nothing for the court to do but execute the judgement
i. Exceptions:
1. Collateral orders
a. Appealable b/c they are to the side of the main issue
b. Reviewable if the order involves (need first 3, not necessarily 4th):
i. An issue unrelated to the merits of the main dispute
ii. A complete resolution of the issue
iii. A right incapable of vindication on appeal from final judgement
iv. An important and unsettled question of controlling law, not merely a question of the proper
exercise of the trial court’s discretion
2. Interlocutory orders
a. Injunctions (orders compelling discovery are not appealable as injunctions)
b. Involve a controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the ultimate
termination of the litigation
c. Is it appealable as of right?
i. If no, has it been certified as appealable by the district court judge?
3. Multiple claims/parties: rule 54(b)
a. If more than one claim for relief or when multiple parties are involved, may direct entry of a
final judgement as to one or more claims or parties only if the court expressly determines that
there is no just reason for delay
b. has it been certified as appealable by the district court judge?
4. Extraordinary circumstances (special writ)
a. Can petition court of appeals for writ of mandamus (very rare) -order lower court to do its duty
b. Must show: Some special risk of irreparable harm and clear entitlement to the relief requested
4. What is the standard of review?
a. De Novo
i. Questions of law
ii. No deference to trial court-don’t care what they said
b. Clearly erroneous
i. Questions of fact
ii. Firm conviction that there is a mistake
c. Abuse of discretion
i. Judge’s orders and decisions -jury instructions, discovery
ii. Usually doesn’t question
d. Reasonable jury
i. Could a reasonable jury have returned this verdict?
Preclusion Checklist:
1. Claim Preclusion (Res Judicata): prevents parties from relitigating claims that they already fully litigation
a. Claim must be the same one litigated in previous case
i. Out of same transaction or series of transaction
ii. Transactional test: valid final judgement on a claim extinguishes all rights of P to remedies
against D with respect to all or any part of the transaction out of which the action arose
iii. Essential similarity:
1. Whether acts complained of and the demand for relief are the same
2. Whether the theory of recovery is the same
3. Whether the witnesses and documents necessary are the same
4. Whether the material facts alleged are the same
b. Parties who litigated the previous claim are the same parties litigating the current claim
i. Privity: if parties are very close together
ii. Exception that allow binding a non-party:
1. non-party agrees to be bound
2. pre-existing substantive legal relationship
3. non party adequately represented by someone who the same interests who is a party
4. nonparty assumed control over the litigation
5. Party in later litigation is a proxy for party in earlier litigation
6. Special statutory scheme (as long as its consistent with due process)
c. Previously litigated claim must have resulted in valid, final judgement on the merits
i. Valid: not valid if no SMJ/PJ
ii. Final: after trial court made decision-if appealable = finals
iii. On the merits -jury verdicts, bench, JMOL, SJ, Default, Motion to Dismiss cases (Some)
d. Exceptions:
i. Parties have to agree to split the claim
ii. Courts expressly reserved P’s right to bring second action
iii. P was unable to rely on certain theory, remedy, or form of relief b/c of SMJ
iv. Limitations or restrictions on courts authority
v. Judgement in first action plainly inconsistent with fair and equitable implementation of statute
or constitution
vi. For a continuing or recurring wrong, P can sue from time to time for damages incurred to the
date of suit
vii. Policy favoring preclusion of second action are overcome for an extraordinary reason
2. Issue Preclusion (Collateral Estoppel)
a. Issue is the same
b. Issue was actually litigated in prior lawsuit
c. There was a full and fair opportunity to litigate the issue
Class Actions Checklist:
1. Implicit Requirements:
a. Jurisdiction -SMJ, Notice
b. Well Defined Class: defined with sufficient precision to make it administratively feasible for the court to
determine that individual is a member of the proposed class
i. Cannot need extensive and individualized fact finding
ii. Cannot use subjective evidence to define class
c. Class representatives are members of the class
i. In privity with other class members, represents their interests
2. Rule 23 Requirements
a. 23(a): must meet all:
i. Numerosity: enough that joinder is not feasible
1. 20 or fewer -insufficient; 40 or more usually sufficient
2. Factors to consider for b/w 20-40:
a. Number of class members
b. Benefit in avoiding multiple actions
c. Geographic dispersion of the class members
d. Claimant’s ability to institute individual suits
e. Whether injunctive relief could benefit non-class members
ii. Commonality: common questions of fact or law
1. One question is sufficient
2. Shared questions of law with divergent factual predicates sometimes sufficient
iii. Typicality: class rep’s case must be typical
1. Does the rep’s claim arise from the same events, practice, or conduct, and is it based on
the same legal theory as the other class members
a. Some factual differences acceptable
b. Difference in amount of damages acceptable
2. Cannot have unique defense or individualized facts that would be central to litigation
iv. Adequacy: class rep is fair and adequate
1. Fiduciary for the class
a. Owes class a duty of loyalty
b. Cannot have conflict of interest
2. Doesn’t have to be the best, just adequate is sufficient
3. Must vigorously prosecute action
4. Cannot delay litigation, cannot abdicate decisions in case to counsel
5. Ill health may sometimes be disqualifying
a. Must be competent
b. 23(b): must fall into one of the listed class action categories:
i. 1): Prosecuting separate actions by or against individual class members would create a risk of:
1. (A) inconsistent or varying adjudications....
2. (B) adjudications...that, as a practical matter, would be dispositive of the interests of the
other members...
ii. (2): The party opposing the class has acted or refused to act on ground that apply generally to
the class, so that final injunctive relief...is appropriate respecting the class as a whole; or
1. Civil rights, etc
2. Can’t require individualized remedies
3. Can’t certify action involving money damages unless damages are “incidental” to
injunction
iii. (3): Questions of law or fact common to class members predominate over any questions
affecting over individual members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.
1. Predominance-common questions central to case
a. Same proof
 b. Mutual interest
c. Resolution of issue common would significantly advance litigation
d. One or more common issues constitute significant parts of each class member’s
individual case
e. Common questions are central to all members’ claims
f. Same theory of liability is asserted by or against all class members and all Ds
raise same basic defenses
2. Superiority
a. Class members’ interests in individually controlling the prosecution or defense of
separate actions (due process);
b. Extent and nature of any litigation concerning the controversy already begun by
or against class members (people who are capable and want to bring their own
litigation);
c. Desirability or undesirability of concentrating the litigation of the claims in the
particular forum (if Ps are from many states and brought in state court, court will
have to apply 20 state laws); and
d. Likely difficulties in managing a class action (administrative management)
Choice of Law Checklist:
1. Vertical: in federal court and choosing between federal and state law
a. A conflict between a federal law of procedure and a state law – where it isn’t clear if the state law is
procedural or substantive
i. Step 1: If there is a valid federal rule of procedure that is directly on point, apply the federal rule
(not the state rule)
1. To be valid, FRCP must “not abridge, enlarge, or modify any substantive right.”
2. Valid = cannot be substantive
3. Directly on point to the exact question of concern
ii. Step 2: If there isn’t a valid federal rule of procedure that is directly on point:
1. If the federal rule isn’t valid but is directly on point, it is a substantive rule, so apply
state law
2. If the federal rule is valid but isn’t directly on point,
a. Ask whether applying federal law would encourage forum shopping or
inequitable administration of laws
i. Which would create more policy problems
ii. Inequitable: out of state residents would be treated differently than
in-state
2. Horizontal: Applying state law, but just don’t know which states law
a. If applying state procedure; apply procedure of state where federal court sits
b. If applying substantive law, apply choice-of-law rules of state where federal court sits
i. Many states have different choice-of-law rules depending on the type of case (e.g. tort v
contract) and the type of harm