CIVIL PROCEDURE OUTLINE

RES JUDICATA
CLAIM PRECLUSION -> LEGAL ISSUES
 Also known as res judicata = prevents a party from relitigating CLAIMS that he litigated or should have
in a prior case. Already Judged.
 A party who asserted a right to relief arising out of a particular transaction must join ALL claims arising
from it, or the omitted claims will be barred by res judicata.
 Claims need not have actually been litigated to be barred in a later action; they need only have been
available to the plaintiff in the first suit
• RULE 18 allows the plaintiff to join all possible theories of recovery in a single action
 Standard -> A claim is barred if it (or another claim arising from the same basic event) was litigated in a
prior suit that ended in FINAL JUDGMENT on the merits.
• A claim is the same IF…it uses the same legal theory to recover against the same defendant
Then how
based on the same facts
does • Test used to determine if a claim is sufficiently related to be barred by claim preclusion
collateral  Significant amount of same evidence
attack work?  Same cause of action or same primary rights (narrower)
 Does not apply if the court did not have subject matter jurisdiction
• Judgment on the merits
 A full trial followed by a verdict and a judgment
 Some dismissals do NOT bar a second action like improper venue or lack of personal
jurisdiction because the court never reached the merits
• Defense preclusion
 Compulsory counterclaim rule = bar factually related counter claims that were omitted in
the prior action -> RULE 13(a)
 Common law rule that applies when 13(a) does not…Applies if the omitted counterclaim
would have been a defense in the first suit.
ISSUE PRECLUSION -> ISSUES OF FACT (can’t say again, I didn’t do it! It was already decided)
 Also known as collateral estoppel = prevents the re-litigation of certain ISSUES that were already
resolved in prior litigation
 Standard
• If the two cases involve the same issue, that issue was litigated and decided, and the court’s
ruling was necessary to the judgment (Not satisfied when a party failed to raise an issue in a
previous action … different from claims preclusion!)
• Related issues (unlike in claim preclusion) are not barred -> The issue in the second case must be
the exact same as the issue in the first to be barred
 Parties that were not in the first case may sometimes take advantage of issue preclusion
 Exceptions = No review of the first suit was available, intervening change in the law, procedural
disadvantages in the first case, use of preclusion would defy public interest.
• Example = A sues B and B defends on the ground of fraud. A wins, the court rules that there was
no fraud. A sues B for another similar action, but B cannot claim fraud again because that issue
was already determined.
 A PARTY IS ESTOPPED FROM RELITIGATING AN ISSUE THAT HE LITIGATED AND LOST
• Defensive
 A new defendant in a new suit tries to invoke estoppel to prevent the plaintiff from
establishing a fact that the plaintiff had been unable to establish in the first suit (plaintiff
lost on that issue when it was already litigated). (Can’t argue claim preclusion because
there is a different party)
 Suit 1: P v. D1 (Plaintiff loses on issue A)
 Suit 2: P v. D2 (New defendant pleads issue preclusion to bar plaintiff from
relitigating issue A)

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 • Offensive
• A new plaintiff seeks to borrow a finding from a prior action to impose liability on a party who
was a defendant in the prior action. Foreclose the defendant from litigating an issue the defendant
previously litigated unsuccessfully in an action with another plaintiff
 Suit 1: P1 v. D (Defendant loses on issue A)
 Suit 2: P2 v. D (New plaintiff invokes issue preclusion to establish D’s liability on issue
A)
• Risks:
 Plaintiffs “wait and see,” and hold back fro joining in the first plaintiff’s suit
 The party might not have litigated the issue aggressively in the first action if the stakes
were small or the forum was inconvenient.
 It may not have been possible for the losing party to litigate effectively in the first action
because of procedural reasons
- Rush v. City of Maple Heights
 Court finds that personal damages and property damages resulting from the same act must be filed in one
suit.
 Reasoning = Public policy (to prevent multiple suits, burdensome expense, vexatious litigation)
 Vasu’s 4th rule shall not be followed = Injuries and property damages are infringements of different
rights and give rise to distinct causes of action. REVERSED
 Issue preclusion
- The issue that the city was responsible for motorcycle damages was confirmed. So when Rush
files the second suit for injuries, Rush will be awarded automatically because the liability of the
city has already been decided.
 Claim preclusion
- The defendant had requested claim preclusion (the claim against the city for negligence in
repairing the pothole resulting in damages)
- Only one cause of action arises because the defendant’s wrongful act is single, the cause of action
must be single, and the different injuries are items of damage proceeding from the same wrong
Final judgment
 Dismissal of case for improper venue or lack of personal jurisdiction do NOT bar a second action
- The court never reached the merits in the first action. The reason for the dismissal is that the court
does not have the power to reach the merits because the plaintiff chose an improper court.
 Only adjudications that have entered final judgments on the merits of the case can bar issues and claims
from being re-litigated
 Rule 18a allows plaintiff to join all possible theories of recovery in single action.
- Claim preclusion: if not raised and should have, then the claim is barred
- Issue preclusion: if not explicitly raised and decided, issue is not barred
SPECIFIC JURISDICTION
 (In order to argue lack of personal jurisdiction, a defendant must either make a special appearance only
arguing the jurisdictional question and not the merits of the case. OR. The right is waived if the defendant
omits it from his 12(b) pre-answer motion and does not put it in his answer.)
 LONG ARM STATUE FIRST, THEN MINIMUM CONTACTS
- Out of state acts with in state consequences
 D must have minimum contacts with the state even despite the authority of the long arm
statute.
 Need to show that D purposefully availed themselves of the privilege of conducting
activities within the state.
 RULE 4(k)(1)(a) makes it clear that the state’s long arm statute regarding personal jurisdiction governs
when a federal court is sitting in diversity
 Minimum contacts necessary as to “not offend traditional notions of fair play and substantial justice.”

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  {EXAM TIPS}
 Not only must the exercise of jurisdiction meet the requirements of due process, a rule/statute must also
authorize service.
 Determine whether contacts are purposeful. (If not, the connection does not count as a contact.) Whether
the claim arises out of the contact. (If not, then jurisdiction exists only if there is long-arm connection
sufficient to give rise to general jurisdiction.)
 Unless the forum is the party’s residence or a corporation’s state of incorporation, general jurisdiction is
not common
 Remember the 5 fairness factors. (Burden on the defendant, interest of the forum state, plaintiff’s interest
in obtaining convenient and effective relief, interest of interstate judicial system’s efficient resolution,
furthering fundamental substantive social policies.)

PERSONAL JURISDICTION
 It is intended, as a matter of basic fairness, to prevent a plaintiff from suing a nonresident defendant in a
state unless that defendant has established a relationship to that state that would reasonably lead her to
anticipate being sued there
 If a court does not have personal jurisdiction over a party, any order or judgment that the court renders
will not be binding on that party (can collaterally attack on default)
 Constitutional requirement = Due Process Clause of the 14th Amendment
 Domicile = current dwelling place + intent to remain indefinitely
 IN PERSONAM
– To obtain jurisdiction over a NON-RESIDENT one must personally serve that person with
process in the STATE in question -> physical presence in the state while served
– Pennoyer v. Neff (Before the Due Process Clause)
 Neff (a non-resident of Oregon) owed Mitchell (his lawyer) attorney fees. When they
were never paid, Mitchell sued Neff. Mitchell provided constructive notice in the
newspaper and Neff did not show up to trial. Mitchell won on default and attached Neff’s
Oregon land AFTER. When the land was auctioned to provide damages to Mitchell, Neff
reappeared and sued the buyer of the land, Pennoyer, for the title.
 If the judgment in the first action was valid, the second court would be required to treat it
as binding (Pennoyer would win).
 Supreme court held that the earlier judgment was invalid because it LACKED
JURISDICTION over both Neff and the land.
 Limits on Personal Jurisdiction
 Can exercise IN PERSONAM jurisdiction over a person found within the state’s
borders at the time the suit commenced
o Presence sufficient = Person must be served WHILE IN THE
STATE (even if just passing through)
– International Shoe v. Washington -
 (Issues ->
 1. Whether or not the court of Washington has the right to adjudicate …
Procedure. In Pennoyer, CA had jurisdiction over Neff because he was domiciled
there. But Oregon law would apply to the suit because that is where the action
took place.
 2. Whether Washington has the basic right to tax International shoe…Legislative
jurisdiction and the right of a governmental body to govern law of a situation =
substantive law)

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  Extended the reach of jurisdiction by allowing a state to exercise jurisdiction over
defendants who are not present in the state  Based on MINIMUM CONTACTS …
connections to the state
 Court held that although International Shoe was not present in the state (incorporated in
Delaware, place of business in Missouri), jurisdiction was constitutional with Due
Process and Full Faith and Credit because Shoe had sufficient contacts with
Washington and the claim arose out of those contacts.
 If the claim arose from the contacts, even a single or occasional act might suffice
-> Specific jurisdiction
 Contacts were so “continuous and systematic” that jurisdiction over the
corporation would be allowed in a claim that was unrelated to the contacts ->
General jurisdiction
 FAIR PLAY AND SUBSTANTIAL JUSTICE rather than an “inconvenience” of
litigating in a distant forum
 Limits on International shoe
– McGee v. International Life Insurance Co.
 CA resident purchased life insurance policy that was assigned to a Texas insurance
company. Purchaser paid premiums from CA to Texas until his death.
 Court held that maintaining an insurance policy in CA was sufficient to establish contacts
between the insurer and CA.
 The insurance salesman sought out the customer and thus PURPOSEFULLY AVAILED
itself of the forum state, CA.
 Compare to Asahi, where the manufacturer intended to place the product in the
stream of commerce of CA, but no jurisdiction was found despite substantial
contacts because jurisdiction would be unfair and unreasonable for two alien
parties.
– Hanson v. Denckla
 Woman established a trust with a Delaware trustee and later moved to Florida. When the
woman died, an action was brought under Florida jurisdiction over the Delaware trustee.
 Court held that the person’s UNILATERAL move to Florida did not establish contacts
between the Delaware trustee and Florida.
 Compare to World-Wide Volkswagon where the court found that the car
dealership and distributor should not be subjected to Oklahoma jurisdiction if it
was the car owner’s unilateral activity that placed the car in Oklahoma and the
businesses did not purposely avail it of that state’s forum.
 IN REM
– To obtain jurisdiction over PROPERTY, the property must be seized at the outset of the suit.
 True in rem = Adjudicate competing legal interests in the property in question.
 In rem judgment is limited to the value of the property.
 If the case directly involves the ownership of the property, the property is enough
to satisfy the minimum contacts test.
 Quasi in rem = Seizure of property not related or arising out of the actions of the claim;
the mere presence of property unrelated to the cause of action and establishing NO ties
does not support the jurisdiction (Opposite of general jurisdiction where there are a lot of
ties but not related to the claim and there is still jurisdiction)
– Shaffer v. Heitner
 Minimum contacts test of Shoe also applies to in rem (because in rem cases involve a
person’s interest in property rather than the property itself, they should be analyzed
according to the same due process standard as in personam cases)
 The property in Shaffer was stock; the claim did NOT arise out of actions related to the
stock

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  Shaffer got rid of quasi in rem  When the property is the ONLY contact and the action
has nothing to do with the property.
– World-Wide Volkswagon v. Woodson
 NY resident bought Audi in NY, traveled to AZ and was in a car crash in Oklahoma
where a defect in the car caused bad burns during the crash. Defendants were
manufacturer, importer, regional distributor World-Wide and retail dealer Seaway
 Court found that there were NO CONTACTS between the dealer, distributor and
Oklahoma
 PURPOSEFUL AVAILMENT TEST = A connection counts as a contact if it results
from an act that the defendant PURPOSEFULLY DIRECTED at the forum state.
 Unlike in McGee where the insurance company reached out to the forum state
(CA) to get the insurance deal, it was the car owner’s unilateral act in World-
Wide that put the car in Oklahoma, not the purpose of Audi. -> Stream of
Commerce
 No activity in Oklahoma, did not avail themselves of any privileges or benefits of
Oklahoma law, Oklahoma is seeking jurisdiction based on one isolated
occurrence
 The foreseeability should not be that the defendant could have predicted the car
entering the forum state. The defendant’s conduct and connection is such that he
should REASONABLY ANTICPATE BEING HALED INTO THE FORUM
STATE COURT
 Fairness  PUBLIC POLICY
 Burden on the defendant, interest of the forum state, plaintiff’s interest in
obtaining convenient and effective relief, interest of interstate judicial
system’s efficient resolution, furthering fundamental substantive social
policies.
 Fairness factors are NOT to be considered UNLESS there are purposeful contacts
between the defendant and the forum
 Constitutional Test (analyzing personal jurisdiction based on the above cases)
- Contacts
 Does the claim ARISE out of the contacts?
 Purposeful activity (purposeful availment)
 Burger King v. Rudzewicz
 Michigan resident obtained a Burger King franchise. The contract specified that
suits are under the jurisdiction of Florida courts, were Burger King headquarters
are located.
 Rudzewicz had no connections to Florida, had never been there, but had to
communicate solely with the headquarters there to resolve issues with the
franchise.
 The court held Florida did have jurisdiction because the party purposefully
availed themselves by signing the contract. The activities of operating the
franchise were purposefully directed to Florida. It was also unfair to have the
forum be Florida.
– Fairness
 Factors emphasize the inconvenience on the defendant (Worldwide)
 If there are purposeful contacts, there needs to be a VERY strong showing of unfairness
in establishing jurisdiction
 Asahi Metal Industry v. Superior Court
 Plaintiff was in a motorcycle accident in which a defect in one of the parts caused
substantial injury. The plaintiff sued the manufacturer of the tube, Cheng Shin,

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 who impleaded a Japanese 3rd party Asahi, manufacturer of the tube assembly.
The suit that remained was Cheng Shin v. Asahi
 The forum was CA, which had no interest in a foreign case
 The court held that despite connections to the state (accident occurred there,
products were placed in the stream of commerce there, parties purposefully
availed themselves of CA by doing business in CA), there was no justification of
personal jurisdiction because it would be unreasonable, unfair, and there were
little forum state interests.
 Stream of commerce = when a defendant distributes goods nationally through a 3rd party
(Asahi)
 Issue is whether purposefully injecting goods into the stream of commerce
constitutes purposeful availment with a state in which one of those goods causes
injury? (In World-Wide, it did not because it was the customer’s unilateral
activity that placed it there)
 Justices’ view
o O’Conner (+3) agued that the mere awareness that defendant’s goods
would enter CA was INSUFFICIENT. Contact must be accompanied by
other acts specifically directed at the forum. -> Awareness plus = the
product will end up in the forum state coupled with activities aimed at
the forum state (ads, marketing, designed for that state, etc.)
o White (+3) argued that mere awareness was enough to establish a
contact to provide for personal jurisdiction
o Stevens (dissent) argued that the volume of the goods that entered CA
was enough to qualify as a minimum contact
GENERAL JURISDICTION
 General jurisdiction refers to the authority of a state’s courts to hear any claim against a particular
defendant, whether or not it is related to the defendant’s in-state contacts. Based on domicile in the state
or substantial and continuous in-state business activities
 Helicopteros Nacionales de Columbia, S.A. v. Hall
- Issue of whether the contacts of Helicopteros to Texas were sufficient and substantial enough to
allow Texas to assert personal jurisdiction over Helicopteros in an action unrelated to the
contacts.
– Contacts were not sufficient, not related, not systematic or continuous to allow jurisdiction
 Outside the minimum contacts test
- Domicile
 Milliken v. Meyer
 Individuals can be sued in the state of their domicile for ALL claims
 State of incorporation
– Presence
 Pennoyer allowed a state to exercise jurisdiction over anyone who was served while
present in the state.
 Burnham v. Superior Court
 Supreme court upheld CA in personam jurisdiction over a defendant who was
served while in the forum state on a trip unrelated to the claim (divorce).
 Scalia (+3) argued that the long tradition of exercising jurisdiction over people
who were present was enough to comply with due process. It was unnecessary to
apply minimum contacts because that test was developed for jurisdiction over
people who were NOT PRESENT. Presence automatically complies with due
process. Jurisdiction over a defendant served in the state always satisfies due
process and is not subject to the minimum contacts test.

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 
Brennan (+3) argued that the minimum contacts test applied but that Burnham’s
voluntary presence coupled with service established general jurisdiction.
Presence qualifies as a contact for purposes of the minimum contacts test.
Fairness is relevant.
 Presence in the forum state while being served is insufficient if presence is involuntary.
– By necessity
 Perkins v. Benguet Consolidated Mining Co.
 Mining properties and incorporation was the Philippines. During WWII the
president of the business operated in Ohio and carried out continuous and
systematic supervision of the company’s activities.
 Court held that personal service to Benguet in Ohio was adequate notice. The
business done in Ohio as sufficiently substantial and of such a nature to allow
Ohio jurisdiction over a foreign corporation even though the cause of action DID
not arise entirely out of the activities there.
 It was impossible to have a trial in the Philippines either due to the circumstances
so this was also fair because there was no other available forum.
– Consent
 If a party consents to a court’s jurisdiction (such as through a contract), it is unnecessary
to evaluate minimum contacts.
 Express consent through a contract
 Forum-selection clause
o Carnival Cruise Lines v. Shute (Non-negotiable forum clause on a cruise
ship ticket was enforceable. Shutes could bargain because they had
notice and it was not done through fraud.) (No bad faith)
 CHALLENGING PERSONAL JURISDICTION
- Default and collateral attack
 If the defendant does not appear, a default judgment is entered.
 Defendant could challenge jurisdiction if plaintiff attempted to enforce the judgment ->
Collateral attack (Used by Neff in Pennoyer v. Neff)
 Risky because if the defendant lost on the jurisdiction question, he could not
litigate the merits of the case and would be bound to the default judgment. 
Issue preclusion
 Full faith and credit requires the enforcement state to bind the judgment
- Special appearance
 Defendant is allowed to appear and argue ONLY lack of personal jurisdiction
 If defendant loses, he can proceed to defend the case on the merits (conceded to
jurisdictional question) or can take no action and when a judgment is entered
against him he can APPEAL on the jurisdictional question.
o If the defendant loses that appeal, he cannot reopen the merits of the case
-> Issue preclusion
– Federal Rule 12(g) and 12(h)
 Time limits on objecting to personal jurisdiction
 Pre-answer motion
 If a party files a pre-answer motion raising any Rule 12 defense or objection, he
must include ALL objections to personal jurisdiction in that motion. If not, the
objection is waived.
 No pre-answer motion
 Must object to personal jurisdiction in the answer or in an amendment to the
answer
FEDERAL SUBJECT MATTER JURISDICTION

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 The type of cases that federal courts hear is extremely limited and is defined in Article III section 2 of the
Constitution. The federal government has the authority to exercise powers expressly or impliedly granted
in the Constitution, but all others (those not granted to the feds) are reserved to the STATES
 State courts have concurrent jurisdiction over cases within the federal judicial power unless Congress
has made federal court jurisdiction exclusive for a particular type of claim. By contrast, the federal courts
do not have concurrent jurisdiction over state law claims (unless the parties are diverse)
 RULE 4(k)(1)(A) Federal personal jurisdiction
- A federal court is authorized to exercise jurisdiction over a defendant who could be subjected to
the jurisdiction of a court of general jurisdiction in the state in which the district court is located
– The federal court may exercise personal jurisdiction only to the extent it could be exercised
by the courts of the state in which the federal court sits
 ARISING UNDER JURISDICTION
- The constitutional reach of arising-under jurisdiction is broad. However, Article III does not
confer subject matter jurisdiction to the lower federal courts.
 1) Is this case one which constitutionally may be granted to the federal courts because
the power for them to hear it is granted in Article III?
 2) If the case does fall into one of the categories, has Congress actually conveyed
jurisdiction over this type of case?
– Congress bestowed arising-under jurisdiction to the federal district courts in §1331
 The district courts shall have original jurisdiction of all civil actions arising under the
constitution, laws, or treaties of the US -> ARISING UNDER
 Has been interpreted much more NARROWLY than the constitutional scope
 ONLY APPLIES IF THE PLAINTIFF’S CLAIM REQUIRES PROOF OF
FEDERAL LAW
– Louisville & Nashville Railroad v. Mottley
 After honoring the Mottley’s passes for 30 years as repayment for an accident, the
railroad refused because Congress passed a statute barring free transportation. Court finds
that there was no subject matter jurisdiction over the claim because it was not a question
“arising under” the constitution; the statute only arose as a defense in responding to the
Mottley’s suit of breach of state contract law.
 Well-pleaded complaint rule = The court asks whether the plaintiff would have to raise
the federal issue in a complaint which includes the elements she needs to prove to
establish their claim, and only those elements (In Mottley, they only needed to state the
breach of the contract; the statute was the railroad’s defense.)
 PUBLIC POLICY  Judicial efficiency of letting the court decide if it has subject
matter jurisdiction over the claim based on the plaintiff’s pleading, before the defendant
even answers; court determines if it has jurisdiction at the outset
 Other implications:
 When a federal statute authorizes suit, but only to enforce a state cause of action,
the court may conclude that arising-under jurisdiction does NOT exist
 Sometimes, a state cause of action can suffice if proof of that cause of action
requires proof of a proposition of federal law (Smith)
– Choices for dismissal:
 12(b)(1) the case does not arise under federal law
 12(b)(6) the federal law chosen does not apply to the facts stated
– Appeals:
 Judgments on lack of federal subject matter jurisdiction are final; you cannot appeal the
final judgment based on lack of SMJ, nor could you if you never raised the question
before the judgment was entered. -> You can only appeal the big overreaching final
decision

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 §1338 Exclusive jurisdiction  If it doesn’t have the word “exclusive,” then the jurisdiction is concurrent
and you can go to the state court
 DIVERSITY JURISDICTION
- Framers singled out diversity cases for federal jurisdiction because of a fear that out-of-state
citizens would suffer prejudice if they were forced to litigate against local citizens in the local
state courts
– §1332 (narrower because it includes an amount in controversy amount, and Article III only
requires minimal diversity, that at least one claimant is diverse from another)
 (a) Over $75k, and between: (1) citizens of different states; (2) citizens of a State and
citizens of a foreign state; (3) citizens of different states and in which citizens or subjects
of a foreign states are additional parties; (4) a foreign state as plaintiff and citizens of a
State or different States
– Article III permits but does not MANDATE federal jurisdiction of diversity citizenship  states
have concurrent jurisdiction
– Citizenship is determined when the suit is filed, not when the event/transaction took place.
– If a plaintiff gets into a federal court based on diversity and then amends the complaint to include
another defendant that is from the plaintiff’s same state, then the court must either deny the
amendment or dismiss the case for lack of subject matter jurisdiction
 PUBLIC POLICY -> Otherwise, the plaintiff would be able to gain access to the
federal court by suing diverse parties in the initial action and adding home-state
defendants later on.
– Do not need to have complete diversity in impleader cases
 Ex. AZ vs. NY and NY impleads someone from AZ
– Saadeh v. Farouki
 Does diversity jurisdiction exist between a resident alien and an alien in the US?
§1332(a) “an alien admitted to the US for permanent residence shall be deemed a citizen
of the state in which such alien is domiciled.” To read the statute literally would allow a
resident alien and an alien to be able to bring action in a federal district court, but the
intent of the statute is more NARROW
– JURISDICTION OVER CORPORATIONS
 §1332(c)
 If an opposing party is a citizen of either the state of the business’s principal
place of business or where the business is incorporated, then diversity does not
exist
 PUBLIC POLICY  The rationale underlying general in personam jurisdiction
is that extensive corporate presence within the state reduces the inconvenience of
litigation and affiliates the corporation with the state in such a substantial way as
to make it fair to sue
 “Nerve” test = corporate headquarters (operational)
 “Muscle” test = principal place of business (administrative)
 -> Corporations are domiciled where they are headquartered (nerve) and/or where their
principal place of business is (muscle)
– REACHING THE MINIMUM $75,000
 Judge can, by looking at the pleaded facts, conclude “to a legal certainty” that the
plaintiff could only be awarded less and the amount-in-controversy requirement is not
met
 Aggregate: (because of supplemental jurisdiction §1367)
 One plaintiff with 2 or more UNRELATED claims can aggregate to fulfill the
statutory minimum -> Still small claims, just a lot of them

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 o PUBLIC POLICY  Argument against aggregating them because you
are turning federal courts into civil, small claims courts; but it increases
efficiency if the defendant is already hauled into court
 If two plaintiffs are against a single defendant, they can NOT aggregate claims if
the claims are separate and distinct
o Ex. In the Rush case, if Mr. And Mrs. Rush had separate claims against
the same defendant, you can argue that both suits arise out of the same
action.
 If one plaintiff meets the statutory amount and a second plaintiff with the same
claim cannot, they can aggregate and both sue in federal court. (One plaintiff
must satisfy the amount-in-controversy requirement, and other plaintiffs can add
their claims under supplemental jurisdiction)
o PUBLIC POLICY -> The courts are already taking the first case,
making the two plaintiffs into one so there are not inconsistent
adjudications
 If there are multiple plaintiffs and multiple defendants, the value of the total
interest will be used to determine the amount in controversy, UNLESS the
various claims are several and distinct
 COUNTERCLAIMS are different!
o A compulsory counterclaim may be heard regardless of the amount
o A permissive counterclaim requires an independent jurisdictional basis
{EXAM TIPS}
 Venue typically arises when a case is in a federal court.
 Even if all defendants do reside in the same state, venue is not proper in all districts, but only in a district
where at least one defendant resides. (§1391(a)(1) and (b)(1))
 For forum non conveniens, consider the availability of the transfer venue. If it is in the US, the court
will not use forum non conveniens but will transfer under §1404. Grant of forum non conveniens results
in dismissal, not transfer.
VENUE
 Venue locates litigation not just in a state (forum under personal jurisdiction) but in a particular district
within the state.
 Venue rules are meant to further restrict the places where the plaintiff may choose to bring suit, to assure
that suits are tried in a place that bears some sensible relationship to the claims asserted or to the parties to
the action.
 28 U.S.C. § 1391
- (1) Civil action where jurisdiction is founded ONLY on DIVERSITY may be brought in:
 (a) District where any defendant resides, BUT all defendants must reside in same state
 If all defendants reside in the same state, any district where at least one defendant
resides is appropriate.
 (b) District in which a substantial part of the events given rise to the claim occurred or
where property is situated
 (c) If there is no other option, any district in which any defendant is subject to
PERSONAL JURISDICTION at the time the action commenced (only a single defendant
needs to be subject to personal jurisdiction, unlike #1)
 If multiple parties, need to find a place where all defendants are subject to
personal jurisdiction. (Pennsylvania for Hartzell and Piper Piper Aircraft v.
Reyno)
– (2) Civil action where jurisdiction is NOT founded ONLY ON DIVERSITY may be brought in:
 (a) District where any defendant resides, BUT all defendants must reside in same state
 (b) District in which a substantial part of the events given rise to the claim occurred or
where property is situated

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  (c) District in which any defendant may be FOUND. (Persuant to a long-arm statute)
–
(3) Corporations shall be deemed to reside in the district in which it is subject to personal
jurisdiction (incorporated, place of business, contacts would be sufficient to subject to personal
jurisdiction)
 If there are more than one district in a state, each district is treated as a separate state and
provides that a corporation is deemed to reside in that district only if it has minimum
contacts with that district (substantial business)
 A corporation can always be sued in ANY district in its state of incorporation.
– (4) An alien may be sued in ANY district
 Court must also have personal jurisdiction over the alien defendant
 If a plaintiff sues an American citizen and an alien, the venue would be proper where the
US citizen resides.
– SUMMARY -> Require in most cases that the defendants must be sued in a district where they
reside or where important events relevant to the suit took place
CHALLENGING VENUE
 RULE 12 MOTION
- Do it either through motion via Rule 12(b)(3) or raise the objection in the answer (say they
violated 28 USC 1406(a), another improper venue attack.) Venue cannot be collaterally attacked
because it involves a mere discretionary decision for the sake of convenience of the parties.
 FORUM NON CONVENIENS
- Allows courts to dismiss an action even if venue was proper
- If the more convenient court is FOREIGN, federal courts use forum non conveniens
- Factors considered:
 Is there an alternate forum available?
 Private factors (effecting the personal litigants)
 Where the underlying events occurred
 Witnesses and physical evidence
 Comparative costs of litigating
 Language issues
 If a judgment would be enforceable in the place where defendant’s assets are
located
 Public factors (related to the court system)
 Choice of law questions
 Policy implications
 Backlog of the court chosen
 Burden on the court system and its citizens
• Requirements
 The more convenient forum must have subject matter and personal jurisdiction
 REMOVAL
- Instead of dismissing it, State court can remove case to federal court or federal court can remand
the case back to the state
– The defendants do NOT waive their right to object to personal jurisdiction by removing to
federal court. They could seek dismissal on this ground in the federal court after removal.
(As long as they did not raise any other 12(b) motion and therefore waived their right to assert
lack of personal jurisdiction)
– 28 U.S.C. § 1441
 (a) Any action brought in a State court of which the district courts have original
jurisdiction, may be removed by the DEFENDANT to the district embracing the place
where such action is pending.
 (b) A DIVERSITY action (§1332) is NOT removable if any of the defendants is a citizen
of the state where the action is brought

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 TRANSFER
- Applies ONLY to federal courts
- Nothing allows a state court to transfer to a court of a different state, or a foreign court.
- Transfers from a court with venue and personal jurisdiction
- 28 U.S.C. § 1404
 Allows a court that has venue and personal jurisdiction to transfer a case to another
federal district (based on convenience)
 Private factors:
 Convenience of witness and parties; where the claim arose; location of evidence;
forum-selection clause in contract cases
 Public factors:
 Ease of enforcing the judgment; judges need to be familiar with governing law;
judicial economy; local interest
 In a DIVERSITY CASE, a § 1404 transfer does NOT change the substantive law
that will be used to decide the case. The transferee court will apply the same
law that would have been applied in the transferor court
– Transfers from an improper court (court that lacked either personal jurisdiction or venue)
 28 U.S.C. § 1406(a) OR 1631
 If a VENUE is improper, the court may dismiss or transfer the case using §1406(a)
 Unlike in § 1404 the transferee court does NOT apply the law that the transferor
court would have applied. The law that applies is the law of the state where the
case was transferred to (transferee).
 Not designed to make litigation more convenient.
o Gives the court that lacks venue an alternative to dismiss.
o Allows for transfer only if transfer is more just than dismissal for lack of
venue.
 If a court is lacking personal jurisdiction, it can transfer to any federal district in which
personal jurisdiction and venue requirements are met under § 1631.
 Applies mostly when a court lacks only personal jurisdiction but not venue
because § 1406(a) covers for both. Do NOT apply the law that the transferor
court would have applied; apply the law of the tranferee court
– Piper Aircraft v. Reyno
 There was an airplane crash in Scotland in which the pilot and passengers, all Scottish,
died. The probate court determined administratix sued the aircraft manufacturer, Piper,
and the propeller manufacturer, Hartzell in state court of CA.
 Piper and Hartzell removed to federal district court on diversity jurisdiction under
1332(c)(2).
 Piper sought transfer under §1404(a) to district court of Penn, where Piper does its
business.
 Transfer under convenience to a district in which the case may have originally
been brought based on jurisdiction
 Hartzell moved to dismiss for lack of jurisdiction in CA or to transfer the case to
Pennsylvania under §1631
 Hartzell’s business with Piper supported the jurisdiction in Penn.
 District court of CA transferred cases to Middle District of Pennsylvania (Piper under
1404(a) and Hartzell under 1631)
 With both cases now in the federal district court in Penn, both defendants sought to
dismiss the cause on the grounds of forum non conveniens
 District court granted those motions
 The holding was that the forum of Scotland is more suitable and just based on public and
private factors even if the substantive law of Scotland is less favorable to the plaintiffs.

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  Private factors in granting it:
 If the case were tried in the Middle District of Pennsylvania, Penn law would
apply to Piper and Scottish law would apply to Hartzell
o Piper transferred under 1404 when there was proper jurisdiction over
them in CA. The federal court of CA applied the Pennsylvania law 
Penn law transferred with Piper
o There was no jurisdiction over Hartzell in CA, so the law decided does
not go with the transfer to Pennsylvania. Pennsylvania applies the law
and chose Scottish law to apply to Hartzell
 The trial involved two sets of laws that would be confusing to the jury and the
judge (who might not be familiar with Scottish law); court wants to get rid of the
case
 What if the court had denied the motion for forum non conveniens and the case was in
Penn. Can the parties appeal?
 NO…it is not a final judgment. If the case goes to trial and the plaintiff wins,
then Piper and Hartzell can appeal arguing that they should have dismissed the
case. (But the interests in moving the case to Scotland may have changed after
the progression of the trial.)
SUPPLEMENTAL JURISDICTION
 Purpose:
- Relieve the courts of many related claims; don’t want inconsistent adjudications; economics and
efficiency; benefits the plaintiff; if there is no choice of bringing the federal question to the state
court because it is under a statute that is an exclusive federal jurisdiction, then you can bring the
state claim also; IF YOU SEPARATED THE CLAIMS AND THERE WAS A JUDGMENT ON
ONE, THERE WOULD BE RES JUDICATA ISSUES IN ONE COURT OR THE OTHER
– By granting broad authority to hear related claims, Congress acknowledged the good sense of
allowing those related claims to be settled in a single action.
– Allows the parties to bring additional claims and parties into a federal case without
independently satisfying subject matter jurisdiction requirements. The grant of
supplemental jurisdiction is broad the federal district courts are given jurisdiction to add
any claim and any part to an additional claim as long as that claim is so RELATED to the
original one as to be part of the same case or controversy.
 §1367 MUST BE TRANSACTIONALLY RELATED!
- (a) 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
the original claims that they form part of the same case or controversy. Such supplemental
jurisdiction shall include claims that involve the JOINDER or intervention of additional parties
(impleaded party still has to be about a claim that is transactionally related.)
– (b) If the district courts have original jurisdiction ONLY because of DIVERSITY, the district
courts shall NOT have supplemental jurisdiction over claims by PLAINTIFFS against persons
made parties under Rule 14, 19, 20, or 24
 Purpose = Don’t want the plaintiff adding others; only precludes the PLAINTIFF from
adding; defendants can still implead
 A 3rd party plaintiff (impleader) is not treated as a plaintiff  If a defendant brings
in another party (impleads under Rule 14) and that party is from the same state, it is not a
diversity claim because the defendant (a 3rd party plaintiff in the impleaded claim) is
NOT an actual plaintiff
– (c) The district courts may DECLINE to exercise supplemental jurisdiction if (1) the claim raises
novel/complex issues of state law; (2) the claim (state) substantially PREDOMONATES over the
claim over which the district court has originally jurisdiction…(4) exceptional circumstances 
Court’s discretion

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 – If the plaintiff brings a proper federal claim or diversity claim so that the federal court has
“original jurisdiction,” the court may hear all the claims that are part of the same case or
controversy under Article III (unless the plaintiff in diversity brings a claim against a
party/claim added under those rules)

– (1) The court must determine whether there is a constitutional power under Article III to hear the
supplemental claim. (Gibbs = constitutional power exists if there is a proper claim within the
jurisdiction of the federal court and the related claim arises from the same nucleus of operative
facts)
 A causal relationship between events/claims probably does not satisfy the test that they
arise out of the same nucleus of operative facts or that they are so related
– (2) The court must determine whether there is a statutory grant of jurisdiction over the related
claim. (1367(a) except those cases prohibited under (b))
 §1367 defines the statutory reach of supplemental jurisdiction by the same test as the
outer reach of constitutional authority under Gibbs.
 If a counter/crossclaim could have stood alone based on general jurisdiction of the
federal court (the claim stands alone as an “arising under” case or meets its own diversity
requirements), then there is no need to invoke supplemental jurisdiction based on any
relationship between the claims
– (3) The court must decide based on the various discretionary factors in (c) if it should hear the
case
– First, look at the claim over which there is original jurisdiction, venue, personal jurisdiction
 If there is original jurisdiction, then the question comes down to if under the
circumstances, there is jurisdiction over the related case. Is it so related, if it were
standing alone, could it NOT be brought?
 The federal court can hear all claims that arise out of the same nucleus of operative facts
as the proper federal claim.
 Ex. with res judicata
– A v. B (federal antitrust claim) and A v. B (supplemental state claim)
 If A wins on the 1st case, the second case has to follow. This is NOT full faith and credit
because that is state to state. This is Federal to State which is governed by the Supremacy
Clause (adhere to the laws of the US; a federal claim is a law of the US)
 If the 2nd case was decided first, and A wants to proceed in the federal case, B says claim
preclusion. BUT, the federal claim and the state claim could not have been both brought
in the federal court. -> Lesson: don’t split the claims, to avoid claim preclusion
– What if the claims are brought together, and the federal court dismisses the state supplemental
claim (1367(c))?
 You would bring A v. B in the state court.
 Should the state court claim be precluded by the final decision of the federal court? No!
The federal court said you can’t bring them together.
 BUT, there could be issue preclusion. If the same issue of liability is true in the state
claim, B cannot use the same defense (i.e. that they are not liable.
– Assuming there was no statutory authority (§1367) to exercise supplemental jurisdiction. How
would a plaintiff recover on related federal and state claims if the federal court has no jurisdiction
over the state claim? The plaintiff could either bring two lawsuits (one in federal court the other
in state court). Or, he could bring a single action in state court seeking relief on both claims since
state courts have concurrent jurisdiction over federal claims unless Congress makes federal
jurisdiction exclusive.

JOINDER
 If the court lacks independent jurisdiction over the claim as a separate suit, it lacks independent
jurisdiction when it is brought as a 3rd party claim as well.

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 Rule 20 allows multiple parties to join as plaintiffs and allows the plaintiff(s) to sue more than one
defendant
– Jointly = plaintiffs share the right
– Severally = each plaintiff has an individual right to recover
– In the alternative = allege that one plaintiff, but not both, is entitled to recover
 Rule 14 (3rd party impleader claims) gives a defendant a limited right to implead (bring into the suit)
new parties against whom he has claims related to the main action. The defendant may bring in a person
not yet a party to the suit who MAY be liable to him (the defendant) for all or part of any recovery the
plaintiff is asserting
 Service is effective to create jurisdiction on any party joined under Rule 14 who is served at any
place within 100 MILES of the court that issued the summons
 RULE 14
– (A)(1) A defending party (3rd party plaintiff) may serve a summons and complaint on a
nonparty who is or MAY be liable to it for ALL OR PART of the claim against it. (within 10 days
of filing the answer)
 RULE 18(a) allows the 3rd party plaintiff to add an independent claim if the 3rd party
defendant was first impleaded properly under Rule 14 with a claim related to the main
one. -> Once a 3rd party defendant is in the case, the Rules might as well allow the
defendant to settle all her differences with the 3rd party defendant in a single action.
– (2) The third party (3rd party defendant) brought in:
 (A) must assert any defense against the third party plaintiff’s (def’s) claim (Rule 12)
 Treats the impleader as a “suit within a suit” and the 3rd party defendant must
respond to the 3rd party complaint just as if it were an original complaint
 (B) must assert any counterclaim against the 3rd party plaintiff (defendant) under rule
13(a) and may assert any counterclaim against the 3rd party plaintiff (defendant) under
Rule 13(b) or any cross claim against ANOTHER 3rd party defendant under Rule 13(g)
 (C) may assert against the PLAINTIFF any defense that the 3rd party plaintiff has to the
plaintiff’s claim
 (D) may assert against the PLAINTIFF any claim arising out of the transaction or
occurrence that is the subject matter of the plaintiff’s claim against the 3rd party plaintiff
 But, the 3rd party defendant cannot implead their own party who is also liable
with the plaintiff.
– (3) The plaintiff may assert against the 3rd party defendant any claim arising out of the
transaction that is the subject matter of the plaintiff’s claim against the 3rd party plaintiff
(defendant). The 3rd party defendant must then assert any defense and any counterclaim
 Once the plaintiff files a claim against the 3rd party defendant (which is not required), the
third party defendant MUST file any claims that he has against the plaintiff ->
Compulsory counterclaim (not clear if the compulsory counterclaim rule applies when
the 3rd party defendant files against the plaintiff first.)
– (5) A 3rd party defendant may proceed against a NONPARTY who is or may be liable to the 3 rd
party defendant for all or part of any claim against it
– (6)(b) When a claim is asserted against the plaintiff, the plaintiff may bring in a 3rd party if this
rule would allow a DEFENDANT to do so (14(A)(1))
 The impleaded party may escape liability by defeating either the plaintiff’s original claim or the
defendant’s derivative claim. The rule allows the impleaded party to assert defenses against both
 The 3rd party’s citizenship is irrelevant to determining diversity.
 The 3rd party defendant is also disregarded in determining whether venue is proper
– If the 3rd party defendant’s residence were considered in applying the venue statute (§1391),
defendants would be able to defeat federal jurisdiction in which the plaintiff had properly invoked
it, simply by impleading defendants from other states

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  BUT, the court must still have personal jurisdiction over the impleaded 3rd party. Their due
process rights would be abridged if they were forced to defend a 3d party action in a forum where
they lack contacts, etc.
 If the defendant impleads a 3rd party on a claim that is totally independent from the claim with the
plaintiff, then it is not a proper impleader claim
 Counterclaims or cross claims may be asserted by any defending party against her opponent
– A v. B … B impleads C
 B can counterclaim against A
 C can crossclaim against B
 C can crossclaim against A
 A can counterclaim against C
 A defendant can NOT use impleader by arguing that it is not liable to plaintiff at all and that plaintiff has
sued the wrong defendant. However, a defendant who joins a 3rd party defendant may allege that she is
not liable to the plaintiff and that the 3rd party defendant is responsible
 In favor of impleader
– Efficiency of hearing the related claims together; avoiding repeated suits and inconsistent
judgments
 Against impleader
– Undue delay in seeking it; complications of the issues in the main action; potential prejudice to
the plaintiff from impleading a sympathetic third party
HYPO (Rules of joinder)
 Car accident…NY = injured driver…AZ1 = owner…AZ2 = driver
 NY v. AZ1 and AZ 2 ($500,000)
– AZ1 counterclaims (AZ1 v. NY) for $5k  13(a) or 13(b)
 IS IT RELATED? Counterclaim has to arise out of the original claim
– AZ1 Cross claims (AZ1 v. AZ2)
 Does the claim have supplemental jurisdiction?
 Arising out of the same issue
 Related claims in the action that had original jurisdiction (NY as the plaintiff), then the
court has jurisdiction over this claim
 All the parties are already brought into the court! Why not combine the claims
– AZ2 impleads AZ 3 (like Asahi) Rule 14
 1367(b) (diversity) does not prevent it because AZ2 is not a PLAINTIFF who joined AZ3
under Rule 14, they are a defendant
– AZ1 impleads NY2 (Rule 14)
 Does it destroy diversity?
 But it is still related (1367(a)) and a defendant brought in the new New Yorker; 3rd party
plaintiff (dragged into court; was not an original plaintiff in the suit so they should be
allowed to bring in who they think are responsible…1367(b) only puts limits on the
plaintiffs)
– NY2 v. NY
 No diversity, but they are related
 It is not a suit by a PLAINTIFF, it is a suit by the person who was brought in as another
defendant
– Counterclaim NY v. NY2
 Still has to relate
Appealing (within 30 DAYS of the entry of the judgment)
 Can only appeal after ALL the claims have a final judgment entered
 RULE 54(b) JUDGMENT ON MULITPLE CLAIMS OR INVOLVING MULTIPLE PARTIES
– When an action presents more than one claim for relief (claim, counterclaim, crossclaim, 3 rd
party claim) or when multiple parties are involved, the court may direct entry of a final judgment

16
 as to one or more, but fewer than all ONLY IF the court expressly determines that there is no just
reason for delay
– Otherwise, any order or other decision that adjudicates fewer than all the claims does not end the
action as to any of the claims (not appealable)
– Authorizes the trial court in multi-claim actions to make express direction for the entry of
judgment on fewer than all of the claims or parties upon express determination that there is no
just cause for delay. Not an exception to the final judgment rule, just a statutory standard for its
application in multi-claim and multi-party cases. The presence of the certification does not itself
guarantee the right to an immediate appeal, however. The appellate court will review the court’s
order to determine whether the entry of judgment was appropriate.
REMOVAL
 The federal removal statues allow the DEFENDANT, after the plaintiff has chosen a state court, to
second guess that choice by removing the case from the state court to the federal court
– PUBLIC POLICY  Defendants as well as plaintiffs should have the option to choose federal
courts for cases within the federal jurisdiction
 The defendants do NOT waive their right to object to personal jurisdiction by removing to federal
court. They could seek dismissal on this ground in the federal court after removal. (As long as they
did not raise any other 12(b) motion and therefore waived their right to assert lack of personal
jurisdiction)
 §1441 (only if the plaintiff could have chosen the federal court initially)
- (a) Any civil action brought in a State court of which the district courts have original
jurisdiction may be removed by the DEFENDANT to the district court embracing the place here
such action is pending.
 The “original” defendant satisfies this language; if there is a counterclaim by the
defendant, making the plaintiff a defendant in that suit, they still can’t remove based on
1441(a) language
– (b) Any “other such action” (DIVERSITY) shall be removable only if none of the parties in
interest properly joined or served as defendants is a citizen of the state where the action is
brought.
 If a defendant is sued in his home state, he may not remove on the basis of diversity
 Timing = diversity must exist in the state court when the case was filed AND at the time
of removal (if the plaintiff adds a nondiverse party after the complaint was filed but
before removal, removal is impossible.)
– (c) If there is a federal claim and an unrelated state claim in a state court, the court can remove
the entire case.
 Limited to cases where one of the claims is a federal question. The state and federal
question claims are independent (allows for removal of state law claims that are not
covered by supplemental jurisdiction)
– What if a case becomes removable after the filing of the original complaint? The defendant has
30 DAYS from the amendment to file a notice of removal
 PUBLIC POLICY  Otherwise, plaintiffs could avoid removal by suing in state court
on a state law theory alone and later amending to assert their federal claims
– If a defendant successfully removes to the federal court in a diversity action, and then the plaintiff
amends to add another defendant who destroys diversity…The court will either need to remand
the case back to the state court because the federal court has no subject matter jurisdiction absent
diversity; or deny the amendment
 PUBLIC POLICY  When the amendment was apparently offered for the sole purpose
of defeating removal, some courts have simply refused the amendment and preserved
diversity jurisdiction. In other cases, if the nondiverse party was added in good faith for
independent reasons, courts have allowed the amendment and then remanded the case
back to the state court

17
 – 1441(e) Provides that the federal court acquires jurisdiction on removal even if the state court
where the case was brought lacked the power to hear it (battling 4(k)(1)(a) that only gives federal
court jurisdiction if the state court where it sits had jurisdiction)
– United Mine Workers v. Gibbs (The entire action comprises but one constitutional “case.” A
plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial
proceeding, then there is power in federal courts to hear the whole.)
– Caterpillar v. Lewis (A district court’s error in failing to remand a case improperly removed is not
fatal to the case if federal jurisdiction requirements are met at the time judgment is entered. The
absence of complete diversity at the time of removal was not fatal because if Caterpillar had
waited, the statute of limitations would have run.)
– Compare with the transfer statute (§1404(a))
 §1404(a) provides for geographic transfer from one district court within the federal
system to another in a different state or district
 Removal authorizes transfer from the state court to the federal court system within the
SAME state
– Procedure
 The notice must be filed within 30 DAYS of receiving the plaintiff’s pleading in the state
suit
 If the plaintiff contends that the case is NOT within the federal court’s subject matter
jurisdiction or that the defendant did not properly remove, his recourse is to move in the
federal court to remand the case back to the state court
 A motion to remand on the bass of lack of subject matter jurisdiction may be made at any
time prior to final judgment (does not have to be waived as a 12(b) defense in the pre-
answer motion or answer)

CHOICE OF LAW / CONFLICTS OF LAW

 State and federal courts not only share power, but they have overlapping jurisdiction. Who needs to
follow who’s rules and requirements?
 Swift v. Tyson
- Federal courts exercising jurisdiction on the grounds of diversity did not need to apply the law of
the state; they were free to exercise independent judgment (federal general law); abused the
powers given to the states in the 10th amendment and interfered with the separation of powers
 -> Not the purpose of the Rules of Decision Act: In all matters except where federal
law controls, the federal courts exercising jurisdiction in diversity cases would apply the
rules of decisions of the law of the state
 Under Swift, the federal courts had authority to reach their own conclusion on the
common law issues. By invoking diversity jurisdiction, the plaintiff was able to choose a
substantive rule of law
– The court thought there would be uniformity, but the circuits did not follow each other and the
state courts didn’t follow the decisions because there was no supremacy clause requiring states to
follow general federal law; courts wanted to stop discrimination of state courts against non-
residents
Erie Railroad v. Tompkins – 1938 – supreme court
 Erie was arguing for Pennsylvania law to control (not to abolish “federal law”); argued the “local law” ->
apply the law of the State (under Swift, local translates to state); state law of Penn would make Tompkins
a trespasser and the Railroad would not be liable unless they were reckless
 Tompkins was arguing for “general” federal common law; that would have made the railroad liable for
ordinary negligence

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  The court held that the Swift doctrine is unconstitutional because it authorized federal judges to
make law in areas in which the federal government has no delegated powers. The federal court
must look to the state. The law to be applied in diversity federal actions is the law of the state where the
court sits. Federal common law may not displace that of the states in areas where the constitution grants
lawmaking power to the states; the court decided to use Pennsylvania law, and on remand the standard of
care is not determined by federal common law; goes to the conflict of law statute of NY and NY’s choice
of law is Penn.
 The Swift doctrine was unconstitutional since it authorized federal judges to “make” law in areas in
which the federal government had no delegated powers. (Adopting Holmes’ view, the dissent in the
Black and White Taxi case), the federal court must look to the body with the authority to make rules
when choosing its rules of decision -> the state!
– If Story had interpreted the Rules of Decision Act correctly, that the “laws of the several states”
includes the state common law decisions, the federal courts would have been required to apply
those decisions and these issues would have been avoided.
 No more “federal common law”!
 Federal courts are to apply state substantive law and federal procedural law
Do not forum shop and no inequitable administration of the laws!
– Look to the law of the place of the injury governs a tort case.
– Law of the forum is _______
– -GOAL of ERIE is to make the State or Federal court use the same law.
– Erie/York/Glaxon doctrine
– ----The meaning of a federal statute must be interpreted by federal law/federal court.
Guaranty Trust v. York
 The issue was whether a federal diversity court must apply the state statute of limitations to a claim, or
whether it was free to apply its own more flexible doctrine.
 Justice Frankfurter refused to distinguish Erie on the basis that it involved state “substantive” law while
this case involved “procedure” (but in procedure, EVERYTHING arguably affects the outcome!)
 Follow the “policy” of Erie . The rejected any conclusory labeling of statutes of limitations as substantive
or procedural
 If following a federal practice that differed from state procedure might significantly affect the
result of the litigation, the court must apply the state rule to prevent diverse parties from gaining
unfair advantages because they chose the federal court  Outcome determinative test!
 PUBLIC POLICY -> Uniformity of outcomes was more important than following a separate federal rule
whenever it constitutionally could (every time when the rule is covered by FRCP). Since just about every
procedural rule can be outcome determintive, York would mandate use of the state rule in each of these
cases, although there is a federal constitutional authority to establish a different rule. Defeats the purpose
of the FRCP.
 Does a statute of limitations rule actually affect “substantive” rights if the parties should have known the
rules all along and didn’t follow them?
Byrd v. Blue Ridge Rural Electrical Cooperative
 Issue was whether the judge or the jury should determine the plaintiff’s employment status. State law left
the question to the judge, but the practice in the federal court was to send such issues to the jury
 Not an issue of “substantive” law as in Erie…this involved a rule that was NOT “bound up with the rights
and obligations of the parties” (substantive) but was just a form and mode of enforcement.  Procedural
 The court found that the possibility of a different outcome was less important than preserving the judge-
jury function allocated in the federal system
 Following the state practice would disrupt the federal system of allocating functions between judges
and juries (7th amendment). The state law should not be allowed to interfere with this part of the
federal process.
 Is the state practice “bound up with the definition of the rights and obligations of the parties?”
(Substantive rights)

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 – If yes, then the state law governs
– PUBLIC POLICY -> A procedural practice can be so much a part of the substantive law that it
should be followed
 If it is NOT part of the substantive rights, would its application determine the outcome of the case?
– If yes, are there “affirmative countervailing considerations” of federal juridical administration?
– Balance state against federal interests!
Hanna v. Plumer
 (Before Hanna, the cases involved conflicts between federal judicial practices (informal or required by
federal statute or rules) and state law. Erie = practice of “making” common law vs. following state law.
York = federal practice of loches statute of limitations vs. state statutory limitations. Byrd = choice of
judges to give cases to the jury. So in Hanna, the court established an entirely different aanalysis for cases
in which an official FRCP conflicts with state law.)
 The plaintiff served process on the defendant by leaving it at his home with “a person of suitable age and
discretion” (Rule 4(d)(1)). But the state statute required in-hand service upon the executor. If service was
valid, the case would go forward; if not it would be dismissed. Which rule should be followed?
 Defendant argued for the state rule because the difference was outcome-determinative
 If following the federal practice would lead to forum shopping and inequitable administration of
the laws, then the state law prevails. A federal court should NOT be required to apply ALL state
law whenever the outcome might differ, but only when that difference in outcome would contravene
one of the policies of Erie. (While there is forum shopping in some instances, choosing a different forum
does not result in inequitable administrations of the law or differing outcomes)
– Ex. The filing fee in federal court is $100, while in state court is $10,000. The difference is likely
to cause forum shopping, but the federal court does not need to charge the state fee because any
forum shopping will not be designed to procure a more favorable outcome.
 The court held that the Rules Enabling Act by Congress enforced the effect of the Federal Rules; the
Hanna court found broad constitutional authority to make rules that are “procedural.” But the Rules “shall
not abridge, enlarge or modify any substantive right” (REA)  The “substantive” right must be different
than in the context of the outcome-determinative test
 If a federal rule of civil procedure conflicts with state law, the federal rule applies if it is valid
 While the outcome of the current case is determined by which law is applied, the rights in question
are not substantial enough to create problems of unequal protection. There is no constitutional
reason not to follow the federal rule
 Part 1 = modified outcome determinitive test; if the different outcomes would affect the underlying
policies of Erie (forum-shopping and inequitable administrations of justice) then follow the state law/rule.
Not every difference between the state law and federal practice lead to these outcomes
 Part 2 = enforcing the validity of the Federal Rules; a federal rule will be followed unless it is not
procedural and it enlarges/abridges/modifies (affects) a substantive right of the parties/state (Rules of
Decision Act)
 How does a rule affect substantive rights? If it is so significant.

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Midterm ends here
Gasperini v. Center for Humanities
 Post-Hanna decision addressing a conflict between state and federal law for review of jury verdicts. This
case suggested that district courts should consider the strength of federal interests (Byrd).
 The case involved an issue of what standard should be used by a federal court in measuring excessiveness
of a jury verdict. The standard in the federal courts (Rule 59) was that a verdict was excessive if it
“shocked the conscience of the court.” The state had recently changed their standard as a part o tort
reforming, finding that an award was excessive if it deviated materially from what would be reasonable
compensation. Was the standard substantive or prcedural? (Erie applied state substantive and federal
procedural law)
 Ginsburg held that the federal trial court should apply the state standard for excessiveness. The case was
distinguished from Byrd because it did not involve a distinct choice and presented an opportunity to serve
both interests (compromise).
 The federal interest was in the 7th amendment which precludes review of facts tried by a jury. The court
ordered for a new trial so that the TRIAL JUDGE could test the jury’s verdict against the state standard.
There was no review power given to the appellate court.
 The case could have been resolved by reading the 7th amendment broadly, treating it as controlling in the
federal court. Instead, it held that the federal court should apply the state’s lower standard of review by
having the trial judge assume the role of reviewing the jury finding rather than the appeals court
 Where a federal statute or rule is not directly implicated so that the choice between state and
federal law involves the broader Erie policy of uniformity, Byrd’s caution to weigh important
federal policies against that uniform policy remains a factor in the analysis
 -> Blending state and federal laws rather than choosing one to follow
Semtek Intl Inc. v. Lockheed Martin Corp.
 The first decision is by a federal court sitting in diversity, the state court in the second suit must
give to the earlier federal judgment the same preclusive effect as such judgment would have been
given by the courts of the state where the first court sat. Maryland state court must give the CA
district court’s judgment the same effect that the CA state court would give it.
 (The court held that the claim preclusion effect of a federal judgment sitting in diversity and applying one
state’s law did NOT extend to the filing of similar state law claims in other states.)
 Semtek filed breach of contract in a CA state court. Defendant removed the case to the District court
based on diversity. The district court granted the defendant’s motion to dismiss because the plaintiff was
barred by CA’s statute of limitations. (On the merits “with prejudice”). The dismissal was upheld on
appeal.
 Semtek then filed the suit in a Maryland STATE court (longer statute of limitations) alleging the same
cause of action. The court dismissed the case under claim preclusion. Appeals held that the CA federal
court’s dismissal barred the Maryland complaint because of the res judicata effect of federal diversity
judgments under federal law
 Issue was whether the claim-preclusive effect of a federal judgment dismissing a diversity action on
statute-of-limitations grounds is determined by the law of the state in which the federal court sits
 Scalia held that the federal court’s dismissal “on the merits” is governed by a federal rule (41(b))
that incorporates the res judicata law applied by the state court where the federal court sits.
 Only applies to “substantive” dismissals
 Not about what law (state or federal) should be applied in a federal court diversity action (like in all the
preceding cases). It was a question of how a state court should understand a federal diversity decision’s
preclusive effects
 The state court should NOT give the federal diversity judgment a broader scope than it would have given
a state judgment
(Klaxon Co v. Stentor Elec. Mfg. Co. -> Under Erie, a federal court sitting in diversity must apply the conflict
rules of the forum state, the state in which the court sits.)
Summary (There is only a problem when there is a direct conflict between the two rules/practices)

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  Erie broadly reversed Swift, requiring under the Rules of Decision Act (“the laws of the several
states…”), that federal courts sitting in diversity to apply the same laws the states would to prevent forum
shopping and inequitable administration of the law (generally, substantive law, not procedural)…
 York modified that general rule and required that federal courts sitting in diversity should apply the law
of the states when the conflict between the state law and the federal practice would lead to different
outcomes  outcome-determinitive test (but, arguably, every procedure affects the outcome)…
 Byrd narrowed the rule of Erie and the outcome determinitive test in recognizing that every conflict might
result in a different outcome, and would thus force the federal courts to always apply state laws and have
no consideration of their own.  The Byrd court instituted a balancing act in which they considered
federal policies weighing in favor of following a federal practice…
 Hanna further narrowed the Erie decision and reverted back to the underlying policies of Erie. Hanna first
modified the outcome-determinitive test, only requiring the federal courts to apply the state law if the
outcome would effect forum shopping. If the applications lead to different outcomes, but were not such
substantial differences that would cause forum shopping, then the federal court should follow the federal
rule. Second, Hanna also revitalized the effect and validity of the Federal Rules. If a federal rule always
made for a procedurally different outcome, then the Rules have no effect or use at all (under York). So,
under the Rules Enabling Act in which Congress granted power to create the rules, Hanna required that
the Rule is valid if it is “procedural” and if it does not “substantively” impinge on the rights of the states
and the parties by abridging, enlarging or modifying them…
 Gasperini focused on the efficiency of the federal courts and delegating powers to the trial courts so as to
not interfere with their substantive rights. The court granted the trial courts the power to review damage
awards but did not require the appeals courts to review. Rather than choosing between following one law
or the other, the court blended the state and federal laws and made a compromise…
 Semtek involved a reverse Erie question that did not involve whether a federal court should apply a
state’s rule of the statute of limitations. It involved the question of whether a state court is required to
apply the preclusive effects of a federal court ruling. The state court should not give the federal judgment
a broader scope (preclusive effect) than the state in which the federal court sat would give the decision.
STEPS
 1) Is there a direct conflict between the state law/practice and the federal rule/practice?
 2) Is the rule valid under the Rules Enabling Act?
 3) Is it procedural?
 4) Does the Rule abridge, enlarge or modify a substantive right granted to the states?
Transfer
 §1404(a) Federal courts have the discretionary authority to transfer a case to another federal district “for
the convenience of the parties and witnesses, and in the interest of justice” if it makes more sense to
litigate the case in a different district
 Apply the choice of law of the transferor court (the law goes with you)
 Determine what the choice of law rules of the transferor state are, and what state’s law the courts of the
transferor state would have chosen under that choice of law rule. Then, under Erie, determine what the
substantive law of that state (the state that the choice of law rule indicates) is and apply it
RES JUDICATA
 Ex. In a federal district court of CA, a defendant is found guilty of some civil wrong. Other people want
to sue and use the same findings so that the defendant is precluded from arguing the issue; he was already
found liable
– Issue: What are the claim preclusive effects of that judgment? Do you protect the defendant from
the effects of that judgment because the new plaintiffs were not a party?
– What if the next case was brought in a different state (Kansas)?
 What are the federal claims preclusive effects of the ruling in another district? Does the
new court (Kansas) follow their federal law or the rules of the CA court
 Kansas cannot give MORE preclusive effect than the CA court would  Full faith and
credit

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 If Kansas gave it more it would be unfair to the defendant who is not on notice of where
the next case will be brought

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PLEADINGS
PUBLIC POLICY
 Courts are getting rid of cases on the grounds that the complaint is not plausible and that the quantum of
evidence is not substantial enough
 The court is deciding based on efficiency, economy, and even on cases that they just don’t like (Iqbol)
DIFFERENCE BETWEEN A PLEADING AND A MOTION
 RULE 7(a)(1)-(7) Pleadings include: complaint, answer to a complaint, answer to a counterclaim,
answer to a cross claim, 3rd party complaint, answer to a 3rd party complaint, reply to an answer (if
court ordered)
COMPLAINT  RULE 8
 (a) A pleading that states a claim for relief must contain:
– (1) Short plain statement of the basis for subject matter jurisdiction
– (2) short plain statement of the claim showing that the pleader is entitled to relief
– (3) a demand for the relief sought
 (b) Defenses…(1) In responding to a pleading, a party must:
– (A) state in short and plain terms its defenses to each claim asserted against it
– (B) admit or deny the allegations asserted against it by an opposing party
 (3) 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
 (6) An allegation is admitted if a responsive pleading is required and the allegation is not denied.
 Short plain statement = low threshold  a claim is sufficient as long as it provides the defendant
adequate notice of the plaintiff’s claims
 (d) Each allegation must be simple, concise and direct.
 Plead with SPECIFICITY
 Conley v. Gibson (overruled – charleton’s - )
– A complaint should NOT be dismissed for failure to state a claim UNLESS it appears beyond
doubt that the plaintiff can prove NO set of facts in support of his claim  Basically allowing all
pleads and cases
– A complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim
– “No set of facts” = Any statement revealing the theory of the claim will suffice UNLESS its
factual impossibility may be shown
– Under that interpretation, a conclusory statement could survive a motion to dismiss when the
pleadings left open the possibility that a plaintiff might later establish some set of undisclosed
facts to support recovery
– CRITICIZED  Described the breadth of opportunity to prove what an adequate complaint is,
not the minimum standard of adequate pleading to govern a complaint’s survival
 Leatherman v. Tarrant County Narcotics

Pleading Rules – Rule 8 – all federal actions are governed by federal rules.

 Bell Atlantic Corp v. Twombly – Rule 8

– Twombly brought a class-action suit against large telephone companies alleging that they
engaged in anti-competitive behavior in violation of the Sherman Act. Acted in order to
disadvantage smaller companies and chare consumers more
– The attorney for the plaintiffs included in the pleading only CONCLUSORY statements
– Need to allege facts from which one could infer conspiracy. The suggestive facts need only
be alleged; a suit can go forward even if the facts are unlikely to be proven by the plaintiff.
– Require sufficient detail such that the INFERENCE can be made is more plausible than the
other inference (i.e. liability vs. no liability)
– Twombly failed to identify any facts that suggested illegal conspiracy over the alternative.

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 – Dissent: the majority was acting on the basis of practical concerns over “enormously expensive”
antitrust lawsuits with the potential to confuse juries
– Changed the interpretation of the notice pleading requirements of Rule 8(a)(2) creating a stricter
standard of a pleading’s required specificity. Under Conley a complaint needed only to state a
“conceivable” set of facts to support its legal claim (a court could dismiss a claim through failure
to state a claim if it appeared beyond doubt that the plaintiff would be able to prove no set of facts
of her claim that would entitle her to relief). Twombly adopted a stricter “plausibility” standard
requiring enough facts to raise a reasonable expectation that discovery will reveal evidence in
support of the allegations
 Ashcroft v. Iqbol – Rule 8
 IF THERE is a statute on point, First read the statute – Hanna says if there is a statute on point,
then you must follow the statute.
 Supplemental jurisdiction 4-c -
– Forcing the plaintiff to plead more and more and then they get to court and they can’t prove it
– The court strengthened Twombly’s plausibility standard by adding a “probability requirement.”
– Allows federal courts to dismiss a complaint whenever they believe that, given the allegations in
the complaint, it is more likely than not that no illegal conduct occurred. (substantial hurdle in
litigation)
– Unlike the Twombly complaint, Iqbol did more than simply allege facts consistent with illegal
conduct. Rather than finding the complaint implausible because it failed to provide a context that
would suggest unlawful conduct (like the court held in Twombly), the Court here found the
allegations of illegal conduct implausible because the court believed legal conduct to be a more
likely explanation.  Suggests that the complaint should be dismissed if another explanation is
more PROBABLE
– When the case was first heard, Twombly had not been decided, and the district court dismissed
Ashcroft’s motion to dismiss based on Conley’s standard that there must be SOME facts that can
prove the case. In the interim before the appeal, Twombly was decided. The appeals court
affirmed that Iqbol met the plausibility standard. The Supreme Court reversed and remanded.
– The case showed how broadly Twombly’s “plausibility” standard could be interpreted.
– PUBLIC POLICY  Gives judges more discretion to weed out cases before they reach
discovery; plaintiffs have the burden of pleading facts showing why alternative explanation are
not as likely as their claims; obstacles in complaints where a plaintiff does not have concrete
evidence of a defendant’s wrongdoing before discovery
 No Settlement Bludgeoning. Very limited discovery.

 Accident -
 Deny contributory negligent.
Deny and submit for positive rule. Who has to put on the proof. Matter of state law, it is substantive because it is
outcome determinative.
State court says in fraud actions it is always clear and convincing. If fed is by perponderonce, and state is clear
and convincing, then what plaintiff wouldn’t bring it in a fed court.
-Pleading rules are clearly the rules if start out in federal court.


DEFENDANT’S RESPONSE
 Pre-answer motions
- Must be made before a responsive pleading is served, or if no pleading is served then within 20
days of service of the pleading
– RULE 12(b) DEFENSES
 (1) lack of subject matter jurisdiction

25
  (2) lack of personal jurisdiction
 (3) improper venue
 (4) insufficient process
 (5) insufficient service of process
 A court dismisses the plaintiff’s suit if there is no reasonable way to construe a
complaint to allege a recognized cause of action.  Treats the motion as one for
summary judgment
 Before dismissing, the court will grant the plaintiff leave to amend the complaint
to allow it to cure the defect
 (6) failure to state a claim
 If a party raises any Rule 12 defense but omits 12(b)(2)-(5), the party waives
the omitted defense for the remainder of the actions
 Does not apply to lack of subject matter jurisdiction or failure to state a claim 
Too fundamental to be subjected to any rigid early waiver requirements. (But
they still can’t be raised in a second pre-answer motion; must be raised at trial or
in his answer)
 A defendant’s removal does not waive their right to object to personal jurisdiction if they
have made no pre-answer motion and only filed the notice to remove. Once the case has
been removed, the defendant must respond to the complaint by motion or answer.
 RULE 15(a) allows a party to amend their pleading once without leave of courts before
the opponent files a responsive pleading. Filing a motion is not a responsive pleading, so
the other party is still free to amend once without the court’s permission.
 If a party left out a 12(b) defense in their answer, they have 20 days under RULE 15 to
amend their answer.
– Answer
 The defendant’s required response in which they deal with all of the plaintiff’s
allegations
 The defendant must serve its answer within 20 DAYS
-Rule 8c
Exam question – Must affirmatively state any affirmative defense including….
Federal statute in federal question. If no guidance in federal statute, I don’t know if state practice is even relevant.
– Denials
• RULE 8(d)(6)
 Failure to deny an allegation made in a pleading constitutes an admission of the matter
in question
• A denial must fairly meet the substance of the averments denied (8(b)). A denial that fails to meet
this standard is called an ineffective denial and may constitute an admission of the matter in
question
• Partial denial = If a defendant intends to deny only part of an averment, it must specify which
portion it denies
Beeck v. Aquaslide ‘N’Dive Corp.
Amendment allowed after Aquaslie

Worthington v. Wilson
Rule 15(b) – right before trial – I have a better case, instead of X, want to do Y. Move under Rule 15 to amend
pleadings. 15(a)(2) . Problem is they don’t want to do it.

Other thing to do is to go to trial, bring out X info and get it out indirectly X1 – X2 to get to Y. Other side has
waived.

Bael case?

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 Zielinski v. Philadelphia Piers
– It is an ineffective denial for defendant simply to deny plaintiff’s allegation that defendant
“owned, operated, and controlled” a forklift when defendant owned the forklift, but did not
operate and control it
  The answer did not make it clear to the plaintiff which defenses he needs
 to prepare to meet  Rule 8(b) required the defendant to file a more
 SPECIFIC answer than just a general denial. A specific denial of parts of
 the complaint and specific admissions of other parts would have warned
 the plaintiff that he had sued the wrong defendant
  Issue was whether a defendant can be estopped from denying alleged
 facts in a complaint if he made an ineffective denial of those facts and
 knowingly allows a plaintiff to continue to rely on them
  Court held that a defendant who knowingly makes inaccurate
 statements may be estopped from denying them in trial
  Philadelphia Piers did not have a right to knowingly foster a mistake by
 its acts of omission.
 Default
  RULE 55(a)
• When a party against whom a judgment for affirmative relief is sought has failed to plead
 or otherwise defend, the clerk must enter the party’s default
  RULE 54(c) A default judgment must not differ in form or exceed in amount what is demanded in
 the pleadings.
• Why can’t the amount exceed what was pleaded originally?
 On default judgment, the defendant wants to know what they will have to pay as
 was projected in the pleading (might not be worth going to court for)
• Every other final judgment (after trial…no default judgment) should grant relief to which
 each party is entitled even if the party did not ask for that relief in its pleading (not bound
 by the complaint)
  Res judicata effects
• What laws control the res judicata effects of the default judgment? The first forum!
• Ex. A v. B … A wins by B’s default
 A v. B … B says failure to state a claim, A says res judicata  Look to the law
 of the first case regarding a judgment about a failure to state a claim when B
 failed to raise it (because he defaulted)
- REPLY
 Only results when the defendant’s answers contains a counterclaim that is explicitly designated as a
 counterclaim
 If the allegations in the answer are labeled as affirmative defenses, then no reply is required even if they
 should have been labeled counterclaims
- ETHICAL LIMITATIONS  RULE 11
 Restricts the lawyer’s ability to file a pleading when he has no more than a hope that favorable facts or
 law will emerge as the case progresses
 Regulates the way lawyers and clients conduct themselves, establishing standards of investigation 
 standard of professional conduct
 It is NOT just a PROCEDURAL rule, and may affect “substantive rights” (violating the Rules Enabling
 Act?)
- Ethical limitations in pleading and litigation

27
 
Rule 11 restricts the lawyer’s ability to file a pleading when he has no more than a hope that favorable
facts or law will emerge as the case progresses
- Regulates the way lawyers and clients conduct themselves, establishing standards of investigation
– Standard of professional conduct
 Does it violate the Rules Enabling Act that requires that the rules shall not abridge, enlarge or modify any
 substantive right?
 11(a) requires that certain documents be signed (only papers that are filed; discovery not included);
 signed by at least one attorney or the party representing themselves
 11(b) Representations to the court…Attorney certifies that to the best of their knowledge, information
 and belief, formed after an inquiry reasonable under the circumstances:
  (1) it is not being presented for any improper purpose
  (2) the claims, defenses, etc. are warranted by existing law or nonfrivolous argument
  (3) the factual contentions have evidentiary support or will likely have that support after a
 reasonable opportunity for further investigation/discovery
  (4) the denials are warranted by the evidence or are reasonably based on belief or lack of info
 11(c) Sanctions
  Safe harbor provision = the offender has the opportunity to cure their error
• Sanctions are not immediately filed. The motion may be filed only if the offending party
 does not withdraw or correct the challenged paper within 21 DAYS of service of the
 motion
  The court can impose sanctions of its own initiative
SUMMARY JUDGMENT
 Eliminate baseless claims
 Force opponent to divulge information
 Avoid Jury, have the judge. (If there is no issue of fact, then the judge will still take it away from the
jury.) What appeals to a judge may not be what appeals to a Jury.
o (P) sues A,B,C. ABC move for summary judgment. Never met, never discussed anything, never
said anything. Summary Judgment motion made by ABC. Witness X. convicted Perjurer, ½
blind, hard hearing. Overheard ABC making statements. Summary judgment denied. If I put on
the stand this witness, I’m going to lose, but I put him on the stand, or get non-suit. But that gets
me to bring ABC to the stand.
 Get a “partial Judgment/relief”
 Bludgeon Opponent
 Settlement
 Educate the Judge –
 Old rule – A scintilla of evidence would withstand directed verdict.

Celotex is to summary Judgment as

Ichby/Twombly is for pleadings – motions to dismiss.(pleadings/plausibility)

Overarching concern – harmless error. – jury presented with harmless error – prevent retrial.

RULE 56
 No genuine issue to any material fact…concerning the particular element of the claim that is challenged
by the motion
 (e) A party opposing summary judgment may not simply rest on the allegations in his pleading, but is
required to come forward with evidence in support of those allegations  It is not appropriate to grant the
motion if the moving party’s evidence itself raises doubts as to the relevant facts. It is only where the
moving party’s materials would suffice to establish that party’s version of the facts that the burden shifts
to the opposing party to introduce contrary evidence

28
Adickes v. SH Kress
 “Convinces” = more than plausible
 The plaintiff accused the defendant store of conspiring with the police to arrest her, alleging that an
officer was in the store at the same time.
 Because the defendant (who moved for summary judgment) was unable to establish that there were no
officers in the store, the court held that a jury might infer a conspiracy.
 Court reversed the lower court’s grant of summary judgment because the defendant had not met its
burden of affirmatively refuting an essential element of the plaintiff’s case.
 The non-moving party was not bound to respond when the movant failed to meet its initial burden
Whether the motion should be granted can turn on whether the moving patty can get summary judgment by
pointing out that the party with the burden of proof lacks adequate evidence to meet that burden, without
producing any evidence of its own to disprove the alleged facts.
 Celotex Corp (petitioner) v. Catrett (respondent)
– Issue was whether Celotex’s attempted showing that Catrett had put forth inadequate evidence
that her husband was exposed to asbestos was a sufficient basis on which to grant summary
judgment
– The court held that if the defendant demonstrated that there was no evidence to support the
plaintiff’s claim of exposure to the product, and the plaintiff did not produce evidence tending to
prove exposure, the defendant could get summary judgment without presenting any evidence of
their own to show lack of exposure.
– Shifts the burden of proof for summary judgment from the moving party to the respondent.
The movant in a motion for summary judgment must show the absence of genuine factual
issues in the non-movant’s case, although the movant is not required to negate any aspects
of his opponents claims (no burden on movant). If the defendants can show that there is
absence of evidence to support a non-moving party’s case, the burden is shifted to the
nonmoving party. (Can not merely rest on what is presented in their pleading 56(e))
– Language of the opinion reflects the court’s opinion to get rid of cases
– Expanded the test for getting rid of cases through summary judgment
– Non-moving party must aggressively develop the evidence before the motion.
 RULE 56(f) allows the court to grant continuances to allow the opposing party to develop
his case; discretionary
 Anderson v. Liberty Lobby, Inc.
• When the Jury is required to have a higher standard, then a higher standard required to the judge
also.
 Matsushita Electric Industrial
 Section – How the court changes and moves int eh process and continues to make. Instead of overruling
a statement.

QUESTION 1
A. Baker may seek review to the US Supreme Court if the dismissal of his claim constitutes a final
judgment. If that holding constituted a final judgment and the Supreme Court of North Dakota was
the highest court of the state, then the US Supreme Court has appellate jurisdiction over the claim and
Baker can appeal his federal question of constitutionality of North Dakota’s statute to the US
Supreme court.

B. The answer to whether North Dakota SHOULD apply the South Dakota law is a more difficult
question than if it MAY apply the South Dakota law. If North Dakota’s choice of law rules allowed
for the application of the South Dakota law in this case because the land in question is located there,
for example, then North Dakota could apply South Dakota’s law. However, in considering this issue,

29
 one has to evaluate the purpose of the statute and North Dakota’s interest in applying its statute rather
than South Dakota’s. It appears that the statute is intended to protect North Dakota buyers, which
includes Able. On the other hand, South Dakota may have statutes that protect the sellers and the land
purchased in that state, which appears to cover Baker. On the other hand, both of the parties involved
are from North Dakota, so the North Dakota courts may have a stronger interest in the claim and in
applying their laws despite the fact that the land is in another state. This question does not present any
analysis under the Erie doctrine because the case is not in a federal court and therefore does not raise
any issues of whether the federal court should apply federal law or state law. Thus, whether North
Dakota should apply the South Dakota law comes down to statutory construction and the purpose of
the North Dakota statute in contrast to what the applicable law of South Dakota would focus on.

C. If Baker had initially gone to a South Dakota court rather than a North Dakota court to receive a
deficiency judgment on the amount owed by Able, Baker likely would not have encountered personal
jurisdiction issues over Able. First, the claim relates directly to the purchased land of South Dakota,
representing a true in rem case rather than a quasi in rem issue that was thrown out by Shaffer v.
Heitner. Sometimes in a true in rem case, the property is enough to satisfy the minimum contacts test.
Thus, the mere fact that Able owns land in South Dakota may be a substantial enough contact to
establish jurisdiction over Able in that he could have reasonably expected to be haled to court their
because of the land. Additionally, if the contract for the sale of the land took place in South Dakota,
Baker has an even stronger case for establishing personal jurisdiction over able. Lastly, under
Burnham, if Baker served Able while Able was in South Dakota, then that presence alone would be
sufficient to establish personal jurisdiction.

If these assumed facts such as where the sale of the land took place and where Able was served did
not in occur in South Dakota, then Able may be successful in asserting a motion for lack of personal
jurisdiction. For example, if he has no contacts with South Dakota other than the land he owns, then a
court may view that the land alone does not meet the requirements of the minimum contacts test of
International Shoe. Furthermore, the reasonableness of the case being tried in South Dakota must be
considered by the court. It appears fair and reasonable that the defendant travel to the bordering state
of South Dakota for court; however, South Dakota may not have a strong interest in the case
considering it involves two outof-staters. While South Dakota would be obligated to honor the
judgment of the case if it was tried in North Dakota, South Dakota may not want to burden its courts
with a dispute involving two non-citizens. Able is entitled to seek declaratory judgment in North
Dakota before Baker takes any action in court. Because Able has a strong backing to his defense that
the North Dakota statute precludes Baker from receiving a deficiency judgment on the amount owed
by Able, it would be proper for Able to assert the invalidity of Baker’s claim before it even gets to the
courts. Additionally, such a declaratory judgment relieves the burden on the system from having to
go through Baker’s pleading and Able’s likely 12(b)(6) motion of failure to state a claim on which
relief can be granted. Therefore, Able’s pre-emptive tactic of seeking declaratory judgment is a valid
strategic move on his side as well as an efficient alternative for the courts in this case.

Assuming Able did receive such a declaratory judgment, South Dakota would be required to honor
the judgment on the grounds of Full Faith and Credit. Baker may argue that the judgment was not on
the merits because he never had the chance to litigate the case and South Dakota should therefore not
honor such a judgment. However, that argument by Baker will likely fail because he had no merits on
which to litigate, hence the success of Able’s declaratory judgment. Baker never had a claim on
which he could seek recover in North Dakota anyway because of the state’s statute precluding
recovery for sellers under deficiency judgments. Therefore, just because he did not litigate the claim,
the declaratory judgment should still be allowed Full Faith and Credit in South Dakota because it
constituted a final judgment on Baker’s merit-less claim.

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D. One argument Able can raise to counter Baker’s suit in the federal court of North Dakota is that the
claim is barred under res judicata. Though under a different citizenship, Baker already had his day in
court regarding the claim for deficiency judgment on the balance of the sale of the land owed by
Able, and that claim was dismissed under the state statute. By bringing up an identical claim, Able
will likely successfully argue that claim preclusion prevents Baker from retrying the same case. The
underlying claim of seeking deficiency judgment is the same as was presented in the state court, and
the parties involved are the same, both of which are factors in raising claim preclusion. Furthermore,
it is likely that Baker’s suit should be precluded based on collateral estoppel. Collateral estoppel, or
issue preclusion, would bar Baker’s claim he was raising the same issue in the federal court as he did
in the state court claim. It appears that Baker is raising the same issue that North Dakota’s statute is
unconstitutional and he should therefore recover a deficiency judgment against Able. However, that
issue and claim already had a final judgment entered against them in the state court.

Furthermore, Able should raise an argument based on the Erie doctrine that will likely be successful
in countering Baker’s claim. Besides the preclusive effects of Baker’s first state court claim, the
federal court here will be required to follow the same analysis that the state court would. Baker is in
federal court based on diversity, and according to Erie federal courts sitting in diversity must follow
the “laws of the several states” as enumerated in the Rules of Decision Act. Therefore, if the state
court dismissed Baker’s claim rejecting his argument that the state statute is unconstitutional, then the
federal courts would have to follow the same analysis. The progression of the Erie doctrine over the
decades would lead to the same result as recent cases portray a trend toward federalism and the
federal courts’ recognition of following state standards in diversity cases.

One argument that Able cannot make is that the federal court has no subject matter jurisdiction over
Baker’s claim. Though Baker was a citizen of North Dakota at the time of the transaction for the sale
of the land, citizenship is determined at the time the party filed the suit. Therefore, because Baker
changed his domicile to South Dakota before filing this claim, there is complete diversity between
him and Able, a North Dakota citizen. Furthermore, the amount in controversy requirement is
satisfied as the balance in question is $100,000.

QUESTION 2
A. This statement by Justice Frankfurter in York is contrary to the modern view today. The decision in
Hanna v. Plumer emphasized the importance of the policies underlying Erie of preventing forum-
shopping and inequitable administrations of the law. Such a statement by Frankfurter arguably could
lead to forum-shopping and inequitable administrations of the law that should be avoided when
considering applying federal law or state law in a case in the federal courts. Under Frankfurter’s view,
if an in junction was allowed in state court, it does not necessarily need to be awarded in a federal
court. Conversely, if injunctions were not granted in state court, a federal court does not necessarily
need to follow that practice. Such discrepancies in remedies would clearly cause parties to choose one
forum over the other. If a plaintiff concerned with the outcome of recovery available to them would
not be granted an injunction against the defendant in a state court, but the federal court would allow
such a remedy, the plaintiff will certainly forum-shop for the more desirable remedy. In contrast, if a
state court grants injunctions but a federal court does not, a defendant in a diversity case who is not
from the state in which the suit is brought will certainly want to remove the case to federal court to
avoid the injunction. Such inconsistencies in the system are undesirable under the Erie doctrine and
are addressed in later decisions like Gasperini. Ginsburg in Gasperini opted for a compromise
between federal law and state law when reviewing damage awards so that neither the state practice
nor the federal practice was abandoned. Justice Frankfurter’s analysis could be interpreted as not
requiring the federal courts to follow state practices and would further a lack of uniformity between
the courts and lead to forum shopping. The modern view, in contrast, reverts back to the idea of
federalism in pushing the federal courts to abide by state laws and practices.

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B. Different legal terminology and phrases are often given different meanings in different contexts. One
example is the term “arising under.” Under Article III of the constitution, “arising under” is given a
broad, liberal meaning. In contrast, the same “arising under” term has a different connotation in its
statutory definition. §1331 gives the federal courts a narrower reach than the same term implies in
Article III. Under the 1331 meaning, arising under jurisdiction only applies if the plaintiff’s claim
relies on or requires proof of federal law. Such a strict meaning leads to the well-pleaded complaint
rule in which the plaintiff is required to specifically demonstrate how their claim arises under a
question of federal law. Such subject-matter jurisdiction will not be found if the defendant raises an
issue of federal law or if the plaintiff’s anticipated defense arises under federal law. Such stretches of
the meaning were not recognized in Mottley and show the strict interpretation “arising under” is
given in the statutory sense.

Another example are the distinguishable meanings of “diversity” when deciding federal subject-
matter jurisdiction. Diversity jurisdiction as defined in Article III is once again more broad than
diversity requirements in the statute. §1332 includes an amount in controversy minimum while
Article III does not include such criteria.

Another instance involving diversity jurisdiction is the different meaning of “alien.” Under §1332, an
alien admitted to the US for permanent residence shall be deemed a citizen of the state in which such
alien is domiciled.” Reading that statement literally would allow a resident alien and an alien to bring
action in a federal court. However, the case Farouki demonstrated that the statute is intended to have
a much more narrow interpretation and did not allow diversity jurisdiction over an alien permanently
residing in the US as if a citizen of its state of residence.

C. The issue is whether a federal court sitting in diversity should apply the state statute of limitations or
the federal rule on point. The decision in Hanna directly relates to such a situation and goes through a
two-part determination of whether to follow a federal rule or a state rule. First, the Hanna court
recognized the outcome-determintive test as laid out in York but framed it in relation to the policies
underlying the Erie doctrine. In other words, if the application of a federal rule as compared to the
state law would result in an outcome that would lead to forum-shopping and inequitable
administrations of the law, then the state law should be applied. Here, if the state law were applied,
the plaintiff would not be permitted to amend their complaint and add the appropriate defendant, thus
possibly leading to a failed case if the defendant in court was not found liable. If the federal rule were
applied, the appropriate defedant would be haled into court and the plaintiff may arguably have a
better chance in winning their case against the appropriate defendant. It therefore appears that
different applications would lead to different outcomes, and under York, the federal court would
automatically have to apply the state law. However, the second part of the Hanna decision carries
weight in re-enforcing the significance of the federal rules and recognizing how York’s outcome
determintive test destroys their effect. Because every “procedural” rule is likely to affect an outcome
in some way, part two of Hanna required that the rule be valid both procedurally and according to the
Rules Enabling Act. The rules enabling act prohibits the federal rules from abridging, enlarging or
modifying the substantive rights of the parties. Therefore, under Hanna, the different rules may lead
to different outcomes but may not affect substantive rights because the statute of limitations is purely
a procedural rule that does not reach farther. Thus, the federal rule would apply.

After Hanna, however, decisions such as Gasperini and Semtek reflect the trend toward federalism
and the position of the federal courts to apply the state laws. So in contrast, the federal court of state
X would apply the appropriate state law and the plaintiff would not be able to amend their complaint.
If the plaintiff lost their suit on this basis because they could not bring in the other party, the plaintiff
could arguably bring the case against the appropriate defendant in another federal court with a longer
statute of limitations. Res judicata would likely not preclude the case because the parties were are
different and the issue raised would be different because it is applied to a different defendant. The

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 only issue that would have been settled in the first claim was that the original defendant was not
liable; such a final judgment should not affect a claim against a different defendant.

D. The main issue here is whether the defendant waives their right to assert a rule 12(b) motion when
they are granted a motion to extend the time to answer a complaint under rule 6. Under Rule 12, a
defendant must either assert defenses 12(b)(2) through (5) in a pre-answer motion, or in their answer
if no pre-answer motions are filed. However, does the language of “this rule” in Rule 12 mean that
the defendant’s right is waived only if motions under rule 12 are asserted, or does the motion of rule 6
to extend the time to answer also waive that right? If any pre-answer motion, whether one under Rule
12 or under another rule, waives the defendant’s right to raise a 12(b) motion, then the plaintiff would
not be able to raise lack of personal jurisdiction. Rule 12 says that if there was a pre-answer motion,
then the defendant must include all rule 12 defenses. If there was no pre-answer motion, then the
defendant must put defenses 2 through 5 in their answer, or an amended answer within 20 days. Thus,
because it is unclear whether Rule 12 precludes other pre-answer motions or if it only precludes
motions specifically under rule 12 that have been made, then it is not certain whether the defendant
can move to dismiss for lack of personal jurisdiction. If it is determined that the rule 6 motion for
more time does not affect the preclusive nature of rule 12 motions, then the defendant can include the
lack of personal jurisdiction in their answer.

In contrast, 12(b)(6) failure to state a claim is never waived. The rule does not apply to failure to state
a claim because it is too fundamental to be subjected to any rigid early waiver requirements.
However, the defendant still can’t raise it as a second pre-answer motion if a rule 12 pre-answer
motion was already filed. They must include it in their answer or raise it at trial.

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