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Civil Procedure Professor Kathryn Kelly Spring 2014 Are we in the right court?: I. Personal Jurisdiction II. Notice III. Subject Matter Jurisdiction IV. Venue V. Erie Doctrine VI. Pleadings Amendments and Relation Back VII. Discovery Subpoena VII. Pre-Trial Adjudication IX. Trial X. Appeal XI. Claim and Issue Preclusion, (Res Judicata, Collateral Estoppel)

I.

PERSONAL JURISDICTION
In order to hear a case, a court must have personal jurisdiction, subject matter jurisdiction, and must be proper venue. For the forum state to have personal jurisdiction over a non-resident defendant, the court must have power over the defendant, and the defendant must have received notice acceptable to the Due Process Clause th of the 14 Amendment. To have power over a defendant, a court must have both statutory authority, usually provided by a long-arm statute, and Constitutional authority (as gained through the International Shoe test). Analytical framework 1. Is there a traditional basis? Does one of the traditional basis from Pennoyer apply? Might be enough! Must also tell professor that even though there is a traditional basis, some justices say that you have to go through the International Shoe test. 2. How do you do Shoe test? a. contacts must be a relevant contact b/t the D and the forum GOT TO HAVE IT i. purposeful availment ii. foreseeability must be foreseeable that the D would get sued in this forum b. fairness if theres a contact, assess fairness. Fairness factors: i. relatedness does the Ps claim arise from the Ds contact w/ the forum? If we have this, it may make up for a small amount of contacts ex. McGee. Dont need this if you have general juris. (continuous and systematic) Classic five fairness factors: ii. inconvenience for D and witnesses Burger King D has to show that forum is unconstitutional iii. iv. states interest best ex. McGee v. plaintiffs interest vi. legal systems interest in efficiency vii. interstate interest in shared substantive policies 3. Statutory analysis does a statute allow for in personam jurisdiction? a. watch for it on exam ever state has a series of in personam juris. statutes i. every state has a statute that mirrors the traditional basis from above ii. in addition, every state has some statute that is based on implied consent (non resident motorist statutes) b. every state has a long arm statute i. allows you to go after non-resident ii. CA says full extent of constitution iii. other states laundry list of things D can do to give state jurisdiction over them (enters contract, commits a tort, etc) iv. courts can disagree on the interpretation of a long arm statute. In what states can the P sue the D? Governed by 14th Amendment Due Process Clause The court must have power over something: Power over the D or over her property o In Personam: the ct has power over the D herself b/c connections (prefer in persona) o In Rem: the ct has power over her property (any kind of property) o Quasi in Rem: writ of attachments to property to get jx Due Process: if case falls within the circle then everything is good. If its outside the circle the judge would be void and not get full faith and credit; n Not enough to be within the Due Process circle, the state MUST have a statute that allows Pers. Jx. If no statute then you would not have Pers. Jx On Exam: 1.) Does State Statute Allow Pers. Jx? 2.) Constitution: Due Process Analysis

A. In Personam Jurisdiction FRCP 82: Jurisdiction and Venue Unaffected

In Personam Kelly Chart Presence of State Found within Doing Business Statues: if in state to do business, considered to be present; thus subj. Pers. Jx. Consent: (by coming in state to do business/drive car, implied consent) - Appearance (P or D) - Express (by K or Appointment of Agent) - Implied: Corporate dba o Corporate dba statute o Corporate Incorporation o Auto Accident Statute General or Specific Jurisdiction: ALWAYS REFERENCE ON EXAM PERS. JX General In Personam Jx- D can be sued in this forum in a claim that arose anywhere in the world; o A persons principle residence is where someone can always be sued o Corporation: PPB and Incorporation Specific Jx the D is sued for a claim that arose in the forum (eg. Could only be sued for claim that arouse in VA) PENNOYER V. NEFF: (personal power) Four Traditional Basis 1. D is served with process in the forum: Presence as a basis of Jx. (you were there in the state when served with processes: give the state General Jx. 2. The Ds agent is served with process in the forum 3. D is DOMICIELED in the forum: gives General Jx. 4. Consent: the D can always consent to Jx It is very tough to go after a non-resident because you have to serve process in the forum (catch them) so over time court b/g to expand HESS CASE (Car Statutes): D in PA, drives to Mass and gets into accident; left before could be served. Were able to get b/c Mass had a statue: if you drive a CAR in our state and you are in a wreck you have appointed a state officer as your agent for service of process : Sup. Ct. said ok; Jx upheld. b/c consistent with Pennoyer. Hess Expanded to included Implied Consent, every state now has Non-Resident Motorist Statute INTERNATIONAL SHOE (1945 court restates doctrine): MINIMUM CONTACTS THRESHOLD TEST: The ct has Jx if: o The due process requires only that in order to subject a D to a judgment in person,(if not in state) he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice o Court held mailed notice was ok b/c of the # of contacts w/ state and b/c the dispute arose out of contacts b/t the salesmen and the state Not just quantity of contacts but quality and natureHas the state offered benefits and protections to person or business that have been purposely availed? More Flexible then Pennoyer; has led to an expansion Two important parts: 1. D has minim contacts 2. fairness/reasonableness Does not overrule Pennoyer!! Minimum contacts only relevant if you don't have tradition al basis ( in forum) MCGEE: TX insurance co. sold 1 contract in CA. Suit in CA for B of K. Does CA have jx even with just one contact? Sup. Ct held Specific Jx present: o Suit arises out of K o NOTE: contacts do NOT have to be physical (ex - phone calls, fax, email, text) S. Ct. Emphasized: 1. D solicited that contract. D reached out - not an accident. 2. Relatedness - P's claim arose from D's contact with forum. 3. State's interest - CA had interest in providing courtroom for its people.

HANSEN: Ct does DENIES jx! Wealthy PA woman sets up trust fund with DE bank. Moves to FL and passes away there, maintaining transactions with bank. Does FL ct have jx over DE bank? Court held No Purposeful Availment: To have "minimum contact" under Shoe, contact must result from purposeful availment. D must avail herself to forum in some way. DE bank never reached out to FL. WORLDWIDE VOLKSWAGON - family buys car, leaves from NY driving to AZ. get in accident on the way in OK, sued 4 D's: manufacture of car, importer of car Issue was whether OK had jx over regional distributor D (WW VW - NY, NH, CN business) or Seeway motors (NY business) Court held says NO jx. those D's did not reach out or avail themselves to OK. Foreseeability - ct says relevant, but NOT just foreseeability that product would get there. Must be foreseeable that D could get sued in that forum. (criticisms of what this means) World Wide Fairness Balancing Factors: min. contacts: dont offend traditional notions fair play/subst. just. 1. Burden on the defendant 2. Forum States Interest in Adjudicating Dispute 3. Plaintiffs interest in Obtaining Convenient and Effective Relief 4. Interstate Judicial Systems interest in obtaining most Efficient Resolution 5. Shared Interest several States in furthering fundamental substantive Social Policies BURGER KING: 1985 2 franchisees in MI, sued by Burger King in FL; 4(k)(1)(A): Long Arm Federal court has same pers. Jx as the states long arm statues; gives the ct. power to get personal jx. over someone in another state: 1. if the states Long Arm Statute complies or 2. Is it Constitutional (if D not consented; been served w process w/in st. bound.) Case is Specific Jx b/c suit is directly related to the franchise agreement and thus need fewer contacts; need minimum contacts such that traditional notions Minimum Contacts Tests: Purposeful (Hansen)? Foreseeable (Worldwide)? Fairness Factors 1-5 (Worldwide) 1. Ct. emphasized there are 2 parts to International Shoe Test: Contact and Fairness 2. Must have a relevant contact b/t D and forum before fairness is even assessed 3. Contact was very easy to show because Ds reached out to FL to be with BK (20 year K: Extensive and Intense Relationship w/ forum) 4. Fairness: The ct. said the burden is on the D to show that that forum is unconstitutional; Must show its so gravely inconvenient that you are at a severe disadvantage in the litigation. The relative wealth of the parties does not matter ASAHI 1987 Stream of Commerce: I make component for something in state A and I sell them to someone in state B. company in state B puts into something and sells to state C, D, E. My components are now in other states but I didnt send them there. If explodes in other state have I availed myself to those states? No Answer from Sup. Ct. Split 4-4 o Brenen Approach: it is a contact if I have put the product into the stream and can reasonably anticipate that it will get to state C, D, or E. o OConnor Approach: need more than that; Need Brenan PLUS an INTENT to serve state C, D, or E (eg, advertised, cust. Serv there, etc). o MUST argue BOTH arguments on exam PAULOVICH (DVD copyright): Supreme Court held in case where it an intentional wrong doing and the actor knows will have an impact on the persons state; ONLY in Intentional tort case where Actually Aiming at the State o Ct held not case here: not an intentional act and cant be aiming at the whole movie industry PERKINS CASE (Philippines case continuous and systematic ties: Supreme court held a court had Gen. Jx. If a D has continuous and systematic ties with the forum (substantial)

HELICOPTEROS CASE (Columbia Helicopter deaths General Jx) Supreme court held these contacts (training in TX and purchase of helicopter be Columbian co s) not enough for General Jx. because then would mean anyone could sue them anywhere in the world BURNUM CASE (General Jx. Service of Process while in State) NJ D sued in CA, sued on divorce claim that arose in NJ. Will only work if CA ct has general jx. D was served with process while in CA for buisiness. Is serving process enough or does he need to also have min. contacts? No answer; 4-4 Sup Ct. Split o Scalia Approach: Traditional Service of process, Presence when served is ok; do not have to do International Shoe, min. contacts test b/c that is used only when D is not present o Brenan Approach: MUST asses by International Shoe on every case; while D was in state enjoyed the benefits of the state; minimum contacts dies apply and is satisfied o Stevens Note: This is an easy case and the court shouldnt speak to the issue when doesnt have to DO BOTH ON EXAM Ways of Consenting to General Jx: 1. Contract 2. Filing of a Lawsuit 3. Appear without Objection 4. Assigning an Agent 5. Domicile/PPB and Incorporation CARNIVAL CRUISE CASE (Reasonable forum clause): Supreme Court held Including Reasonable Forum Clause in form K may be permissible b/c 1. Cruise line has a special interests in limiting the for a in which it potentially could be subject to suit (Passes many different locals: would subject the cruise line to litigation in several different for a) 2. Dispels any confusion about where suits arising from the K must be brought; sparring litigants time and expense of determining 3. Passengers who purchase tickets w/ such clauses benefit from reduced fares reflecting savings the cruise line enjoys by limiting forum it may be sued in UNLESS Bad Faith, Fraud, Notice Issue, etc.) Constitutional Analysis Personal Jx: 1. Does one of the traditional bases apply? 2. If not, talk about Burnum Split (min contact/International Shoe) 3. International Shoe: Must have a relevant contact b/t the D and the forum (if not no jx) a. 2 Factors: i. Purposeful Availament: D reached out to the forum ii. Foreseeabley: must be foreseeable that the D could get sued in the forum b. Fairness Factors: i. Relatedness: does the Ps claim arise from the Ds contact with the forum ii. General or Specific Jx? If it does arise from Ds contact with forum its Specific Jx. If not then its Gen. Jx (D has consistent ties with forum) FIVE FAIRNESS FACTORS (burden on D to show not fair) 1. Inconvenient for the D and witnesses 2. The States interest 3. The Ps interest 4. The interest in efficiency (little case law in 4 and 5) 5. The Interstate Interest in shared substantive policy STATUTORY ANALYSIS Personal Jx 1. Statues that allow to go after non-resident 2. Non-Resident Motorist Statute. Specific

The Long Arm Statute (Rule 4(k)(1)(A): claims not about cars; different by each state (if studied a long arm statute then put in notes; Grey v. American Radiator) We have jx. Over a long arm D who commits a tort in our state; commits a tort is interp. Differently; Fact pattern: make product in state A, blew up in State B, want to sue in state B; some courts say does reach you b/c the tort was committed in B; some say no because was committed made in state A. B. In Rem/Quasi in Rem Jx. over the Ds Property: 1. In Rem: the suit is about who OWNS that property 2. Quasi in Rem: the dispute has nothing to do with who owns; its clear the D owns (ex. Pennoyer; suit was for BofK and used that property for the basis of the jx ) Pennoyer Holds that all you have to do is that the Ct. Seizes the property at the outset of the case ATTACHMENT STATUTE: Allow seizure of prop. On the basis of jx. that the D owns or claims to own Shaffer v. Heightener: in addition to seizing prop. At the outset the D must also show International Show

ANSWERING PERSONAL JURISDICTION QUESTION ON EXAM 1. Start with Chart Personal Jx 2. Traditional Way of Serving Process 3. Give Definition of Personal Jx. Matter of power 4. If no Traditional Means, Look at State Long Arm Statute (if not given on exam assume restricted like FL or Broad like CA); the Federal County uses 4(k)(1)(A) 5. Constitutional Due Process Clause puts limits on Personal Jx 5th Amendment b/c Federal Court 14th Amendment b/c State Court 6. Minimum Contacts Test: Defendant Must have minimum contacts with the forum state such that traditional notion of fair play and. 7. Apply Minimum Contacts Tests Foreseeability Purposeful Availement 8. If Find at least One Purposeful Contact do Fairness Factors 1-5

II.

Notice

Constitutional Requirement of Notice A. Service of Process 1. Governed in Federal court Rule 4: Process consists of a Summons and a copy of the Complaint Summons: symbol of the courts power over you (comes from the court) 4(a)(1) 2. Service can be made by any nonparty who is at least age 18. 4(c)(2) 3. How do we serve an Individual 4(e)(2): o Personal Service hand D documents (summons + copy of complaint) 4(e)(2)(A) o Substituted Service (very tested); MUST BE at the Ds DWELLING; usual abode; in ADDITION, must serve someone of SUITABLE AGE AND DISCREDTION who RESIDES there. (eg. No babysitter, butler works) 4(e)(2)(B) o Serve the Ds Agent: serve the agent (by contract, by law, etc.) 4(e)(2)(C) 4(e)(1): o Can use methods for service of process allowed by state law: o State were Fed. Ct. sits and the State that is affected 4. How do we serve a Business? 4(h)(1) o Serve by Rule 4(e)(1) rules- can use methods of Fed Ct. sit and State affected 4(h)(1)(A) OR o Serve an Officer or a Managing or general agent: must be someone with some sufficient responsibility (use facts of case to determine) 4(h)(1)(B) 5. Waiver of Service

4(d) o (Not service by mail; this is WAIVER by mail) o Send/Mail to the D Process and a Waiver Form with self addressed stamped envelop 4(d)(1)(A); name court (B); with copy of complaint, 2 waiver forms, prepaid return(C) o If D returns w/in 30 days; deemed a waiver of formal service (just service) 4(d)(1)(D) o If D does not return w/in 30 days MUST serve process formally and the D will pay the cost 4(d)(2)(A) and (B)

In some states the statute of limitations is met w/ the service of process and thus you dont want to use waiver. Even in jx where filing of complaint meets statute of limitations you still dont want to wait for waiver because may have other Ds want to find B. The Constitutional Standard for Notice MULLANE v. BANK Ds argued no actual notice just constructive Court held Due Process Clause requires Notice and Opportunity to be Heard; does NOT require actual notice in order to comply with Constitutional standard Constitutional Standard: Notice is ok if it is reasonably calculated under all the circumstances to apprise the interested parties of the pendency of action and afford them an opportunity to preset their objections (all of 4 rules are ok) o Even if the D didnt physically get it (eg. Serve on Ds wife) it is still constitutionally served o Gold Standard was Personal Service by Written Notice w/in the Jx is classic form of notice and always adequate in any proceeding RED FLAG: Jones v. Flowers: o If the P becomes aware that service was not received by the D, she MAY have to pursue other means o Was very clear the D did not live there when Gov. kept getting retuned mail Rule 4 4(k)(1)(A): Long Arm Statue of Fed Court 4(k)(1)(B): 100-Mile Bulge if served under Rule 14 (3rd party complaint by P or D) 4(k)(2): Fed Court Jx: jx over persons that have contacts with the US BUT not enough w/ one state cut b/c conf. min. contacts w/ all US (Very Narrow when wouldnt get otherwise)

III.

Subject Matter Jurisdiction (SMJ)

Never confuse with Pers. Jx. (P can sue the D in particular state) (over parties) o Subject Matter Jx: The authority to adjudicate and decide a case. If a court lacks subject matter jurisdiction, any party may move to have the action dismissed; Sorting between which court a case should be heard in o Governed by Article III of the Constitution o STATE or FEDERAL COURT? General Jurisdiction. o State Court: can hear any kind of case (even those arising under fed q. law) o Exception: Some Fed. Q. cases that must go to Fed. Court: Exclusive Jx Courts: Bankruptcy, Patent Infringement, Family (eg Divorce), Traffic, Admiralty etc. Federal Courts: Courts of Limited Jx. by Article III of Constitution o Federal Question Jx. o Diversity Jx.

A. Federal Question (FQ) 1331 (state rule) o Must Arise under Federal Law o Well Pleaded Complaint Rule (Mottley): The ct. looks ONLY at the complaint; do not look at ANYTHING the D says (answer etc). Motley Case: Motleys had lifetime pass from RR; Congress passed law (fed law) saying RR cant give away free passes; RR revokes Motleys free pass; Motleys sue: Complaint: Claim = Breach of K; but in ADDITION said new Fed Law doesnt apply to us

Did not arise under Fed. Law. Because ONLY look at the CLAIM and the CLAIM was B of K; the Fed Q. part was in the rest of the complaint

How To Apply the Well Pleaded Complaint: o Is the P enforcing a RIGHT under Federal Law? o Does the Federal Law give the P a right? Must have SMJ for EVERY CLAIM you see in Fed Court: o Test for Diversity and Fed. Q. o If does NOT Meet Diversity or Fed Q might still get under Supp. Jx

B. Diversity of Citizenship Title 28 1332 Diversity o 1332 (a)(1): Must be a case between CITIZENS of different states 1332(a)(1) The amount must exceed $75k 1332(a) o Citizens of Different States: Complete Diversity Rule (Strawbridge): there is NO DIVERSITY if ANY PLAINTIFF is the citizen of the same state as ANY DEFENDANT! (state the rule THIS WAY) Citizenship of a Human Being/Natural Person : A US citizen is a citizen of the STATE where DOMICILED DOMICILE: only have ONE at a time! (can never be a citizen of more then 1 state); o You retain UNTIL: Are PRESENT in the new state FORM THE INTENT to make it your PERMANT HOME

Citizenship of Corporation 1332 (c)(1): Citizen of the State where Incorporated Citizen of the ONE state where it has its PRINCIPLE PLACE OF BUSINESS (PPB) (Corporation can be a citizen of two states: DE and MD) Principle Place of Business: o Hertz Case: The PPB is the companys NERVE CENTER: the place from which business is directed. Usually the headquarters (no more Muscle Center after Hertz case) Citizenship of an Non-Incorporated Business (eg. LLC, LLP, etc): Look to the citizenship of ALL MEMBERS (not where formed/nerve center) Eg. Law firm with 10 members and each citizen of diff state, its city. of all

Amount in Controversy o The claim itself must EXCEED $75,000; i.e.: $75,000.01 o The Ps claim GOVERNS, UNLESS it is clear to legal certainty that she cannot recover more the $75k. (pretty rare; eg a Statute saying cant recover) o Aggregation: where we must add multiple claims to get over $75k. CAN Aggregate claims if it One Plaintiff vs. One Defendant Can aggregate as many as you want and dont have to be related as long as ONE P and ONE D CAN NOT Aggregate if you have Multiple Ps or Multiple Ds. FOR JOINT CLAIMS: you use the TOTAL VALUE OF THE CLAIM and the number of parties is IRRELEVANT (eg. Freer goes on street and 3 students beat him up/tort; Freer has 3 Joint tort feasors; sues 3 Joint for $75,000.01)

C. Supplemental Jurisdiction 1367 Allows Fed. Ct. to hear a claim that by itself would not be in Fed Court P MUST have had a claim that got case into Fed Ct. but the additional claims dont meet Div/FQ GIBBS CASE: labor dispute b/t one P and one D

1st claim: FQ (got into Fed Ct) 2nd Claim: State Law (cant evoke FQ or Diversity and could never go to Fed Ct) Gibbs: Sup Ct. said Fed Ct. could hear 2nd claim IF it is part of the same overall case that got into Fed Ct. o If those claims share a COMMON NECLUS of operative FACTS i.e. = Transaction or Occurrence (T/O) (if so always meet Gibbs) This is Supplemental Jx 1367

1367(c) District court May Decline supplemental jx b/c Claim: 1-4 Supplemental Jx 1367 Analysis: 1. Does 1367(a) Grant Supp. Jx over Claim? a. Yes if meets Gibbs: Common Nucleus (T/O) 2. Does 1367(b) REMOVE Supp. Jx. (ONLY DIVERSITY CASES): 1367(b) ONLY Applies in DIVERSITY CASES ONLY kills Supp. Jx. over claims by PLAINTIFFS not Ds: o Claims by Ps against parties who are JOINED under Rules 14, 19, 20, 24 (Joinder Rules) o Claims asserted by Plaintiffs under Rule 19 o Claims asserted by Plaintiffs under Rule 24 3. Exceptions Ct May Decline 1367(c) 1-4

D. REMOVAL o o o o 1441, 1445, 1446, 1447, 1448 Removing from State trial court to Federal Trial court Done by the Defendant: D in State court MAY be able o remove the state court case to fed court Removal is One way Street: ONLY goes from STATE TO FEDERAL! If doesnt belong there it is REMANDED back to State

REMOVABLE if the case INVOKES FED. SUBJECT MATTER JX 1441(b) Could have been filed in Fed Ct. under FQ or Diversity EXCEPTION: CAN NOT Remove a DIVERISTY case if ONE of the Ds is a CITIZEN of that Forum (Exception does NOT apply in FQ case) o CATEPILLAR: Amended cases b/c removable o Can ONLY Remove to the Federal District Court that Embraces that State Court Non Removable Actions 1445 o Railroad, Damages for delay, loss unless $10k+, Workmans Comp, Violence Against Women Act 1994 Procedure for Removal 1446 Procedure After Removal 1447; Process After Removal 1448 Rule 81: Applicability of Rules in General, Removed Actions

IV.

VENUE
Difference b/t Venue and SMJ: o SMJ: Only tells us IF case can go to Fed. Court o Venue: tells us EXACTLY WHICH district court in Fed. Court to go to (in state court, what county to be filed in) A. Basic Rules 1391 Venue Choices 1392 Venue D/Property in Different Districts in Same State 1404 Change of Venue 1406 Improper Venue 1407 Multi-District Litigants 1631 Transfer to Cure Want of Jurisdiction Forum Non Convenience: Piper case Rule 44.1 Determining Foreign Law 1391Venue Choices:

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Jx by Diversity Only 1391(a): Can be brought ONLY o District where ANY Defendant Resides IF all reside in Same State (a)(1) o Distrct Where substantial part events giving rise to claim/subst. prop (a)(2) o District where any D subject to Personal Jx IF there is no district otherwise (a)(3) o RESIDE: For a Human being refers to domicile (same as test for citz) For a BUSINESS 1391 (c): Resides in ALL Districts where it is subject to Personal Jx. when the case Is filed Note: Corporation can never have more then one citizen ship but could RESIDE in all 94 districts Can Lay Venue in a District where a SUBSTATIAL Part of the Claim Arose. 1391

B. Transfer of Venue 1404; 1406 Going from one court to another in the SAME judicial system (eg. Fed dist ct in DC to Fed Dist. Ct. in Arizona) The Original Federal Court: Transferor; Case we transfer to is Transferee Transfer Statutes: In Both, the Transferee MUST be a proper venue and MUST have Personal Jx. (without waiver by the D) 1404: If have proper Venue by D or P wants different: Determines where it might be brought 1404(a) : The Transferor is a proper venue o Allows for transfer based on convenience of the parties and the witnesses AND the interest of justice; Because center of gravity o In deciding wheatear to transfer ct. Because center of gravity: will look at Public Factors and Private Factors 1406(a): The Transferor is an INPROPER Venue o Court may transfer or Dismiss

1631 Transfer to Cure Want of Jurisdiction: if ct fnds want of jx, may transfer to another ct that the action could have been brought in AT TIME was filed/noticed; and shall proceed as if filed in that ct. on date filed Venue Continued C. Forum Non Convenience Where a court DIMISSES because there is another court that is the Center of Gravity; better Dismiss because transfer is legally impossible because the other court is in a DIFFERENT JUDICIAL SYSTEM Rule 44.1 Determining Foreign Law PIPER AIRCRAFT v. REYNO better court in different country Scotland; Sup. Ct. held to dismiss and let parties go to foreign country Defendant Must Show for Forum Non-Convenience: 1. Must have Adequate Alternative Forum 2. P Choice of Forum is Rarely Disturbed 3. Gilbert Factors (Footnote 6) Private Factors: Location of witnesses; Evidence Location Public Factors: Burden on the system; PA has little interest 4. Conditional Dismissal Based on Waiver: Pers. Jx, Statute of limitations Footnote 6: The factors pertaining to the private interests of the litigants included - the "relative ease of access to sources of proof; - availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; - possibility of view of premises, if view would be appropriate to the action; - and all other practical problems that make trial of a case easy, expeditious and inexpensive." The public factors bearing on the question included the Administrative difficulties flowing from court congestion; - the "local interest in having localized controversies decided at home"; - the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action;
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- the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; -and the unfairness of burdening citizens in an unrelated forum with jury duty. Conditioned on letting them sue you in other court Footnote 6: Public and Private Factors Listed: Ds usually like because liable for less often in other countries

V.

Erie Doctrine
Usually Only comes up in Diversity Cases: Choice of Law Rule Fed. Court must decide an issue; Must the Fed. Judge apply State Law to decide that issue? = Erie

ERIE v. TOMIPKINS RULE: The Fed. Judge must apply State SUBSTATIVE Law o In actions in diversity, federal courts must apply state common law in addition to statutory law o If the issue judge has to decided is a SUBSTANTIVE issue she must apply state law Compelled by the Rules of Decisions Act (RDA) 1652 Compelled by the 10th Amendment to the Constitution: Power not given to the Fed. Govt. Stays with the State If Fed. Ct. ignored would violate Constitution How do we know if SUBSTANTIVE: o Elements of the Claim: if purely substantive o Eg Erie walking around the track and injured, wheatear RR liable was purely substantive KLAXON: Choice of Law Principles are Substantive Law If not OBVIOUSLY SUBSTANTIVE: o Starting Point: Hanner v. Plumer 1968: Hanna Prong 1st Question to Ask: Is there a Federal Directive/Law on point? Is it covered by Fed. Law (Statute or FRCP?): If Yes: Apply Federal Rule/Law (as long as it is valid) o If its an FRCP know its valid by: Rules Enabling Act 2072 (check) Shady Grove Case o 2nd Question: No Fed. Directive on Point: Erie Prong MUST follow State law if issue is SUBSTANTIVE Three Tests: (no order, always have all 3, but know Kellys) 1. Outcome Determination: a. Guaranteed Trust Case: i. Fed. Ct. must apply state law because it would effect the outcome of the case; ii. If fed. Judge ignores the state law will it case a different outcome? If yes then CANT do that b/c outcome determinative 2. Balance The Interest Test: a. Bird Case: i. Ordinarily Fed. Ct.s will follow state law UNLESS there is a Federal Interest in doing it a different way; Fed. Interest outweighs State interest Twin Aims of Erie: a. Hanna Case: i. Want to Avoid: 1. Forum Shopping 2. The Inequitable Administration of the Law b. How to Apply: i. Ask: (Forum Shopping) if Fed. Judge ignores this State law will it cause people to flock to Fed. Court? If yes bad idea, because only allows non citizens into Fed Ct. to ignore State law

3.

VI.

Pleadings
FRCP 1-10, 84

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Rule 1: Scope and Purpose Rule 2: One Form of Action Civil Action Rule 3: Commenced by Filing Complaint with the Court Rule 4: Summons (Notice) Rule 5: Serving and Filing Pleadings and Other Papers Service: When Required; If Fail to Appear; How Made; Serving Numerous Ds; Filing; Rule 6: Computing and Extending Time Rule 7: Pleadings Allowed, Forms of Motions and Other Papers Rule 8: General Rules of Pleading; Affirmative Defenses Rule 9: Pleading Special Matters Rule 10: Forms of Pleadings Rule 11: Signing Pleadings, Motion and Other Papers; Representations to the Court; SANCTIONS A. The Complaint by Plaintiff Twombly and Iqbal Cases 1. The P must plead FACTS supporting a PLAUSIBLE Claim (not just a possible claim, must also be plausible) 2. The Court will IGNORE conclusions of LAW (eg. Ds conspired, etc) 3. The court uses its OWN experience and common sense to asses Plausibility (the JUDGE is able to look at the plausibility subjectively) Rule 9(b): Allegations about Fraud or Misstatements: MUST plead with particularity, details Rule 9(g): Must give specifics for SPECIAL DAMAGES: damages that do not normally flow from an event; unusual o Eg. AZ case: guy hit by car, had normal damage and suffered nerve damage that gave permanent erection: SPECIAL DAMAGE B. The Response by D - Rule 12: o D must respond w/n 21 days after service of process o Can respond by MOTION or by ANSWER o MOTION: is not a pleading; is a request for a court order o 12(e): Motion for more definite statement (rare b/c vague) o 12(f): Motion to strike (doesnt belong) o 12(b): 12(b) DEFENSES: Can be raised by Motion OR by Answer 12(b)(1) Motion to Dismiss for lack of SMJ 12(b)(2) Lack of Personal Jx 12(b)(3) Improper Venue 12(b)(4) Insufficient Process (summons, etc) 12(b)(5) Insufficient SERVICE of Process (docs not served properly) 12(b)(6) Failure to State a Claim 12(b)(7) Failure to Join an Indispensible Party o 12(g) and 12(h) 12(b) 2, 3, 4, and 5 MUST be in you first Rule 12 Response or they are WAIVED 12(b) 6 and 7 may be raised ANY time through TRIAL o 12(b)(1) lack of Subject Matter Jurisdiction can be raise ANY TIME AT ALL ANSWER: Rule 8(b) Must RESPOND to the COMPLAINT o Admit o Deny o Dont know 8(b)(5) o FAILURE TO DENY IS AN ADMISSION! EXCEPT FOR DAMAGES (never deemed to have admitted amount of damages) o RAISE AFFRIMATIVE DEFENSES: 8(c)(1) D is injecting new fact, raising something new, if right, Win (eg. Statute of limitations, statute of frauds, res judicata) MUST PLEAD AFFIRMATIVE DEFENSE IN YOUR ANSWER or else you risk WAIVING

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I. Counter Claim o Rule 13(a), 13(b) o Counter claim is a claim against an OPPOSING party; against someone who has asserted a claim against you o File the Counter claim WITH YOUR ANSWER Compulsory Counter Claim 13(a) One that arises from the same transaction or occurrence from the Ps claim Claim must be asserted HERE in this case; if dont assert the claim here and try to later it has been waived; if DONT you will LOSE it! Permissive Counter Claim 13(b) Does not arise from the same transaction or occurrence from the Ps claim May be asserted here but does not have to be; can sue on it separately II. Cross Claim 13(g) o Claim against a Co-Party o Must arise from the same transaction or occurrence as the underlying case o NOT compulsory however; does not have to be asserted here Rule 14: Third Party Practice Bringing in someone new; 3rd Party Defendant o Can ONLY be used by a DEFENDING party (eg could by P for its counterclaim from D) o Bringing in someone new who IS or MAY BE liable to you for that claim against you o Usually for Indemnity or for Contribution Amendments and Relation Back Rule 15 Amended and Supplemental Pleadings 15(a)(1) Amend as Matter of Course 15(c) Relation Back

VII.

Discovery
ESI: Electronically Stored Information. can get

Rule 26(a) Required Disclosures o Parties MUST produce certain information without being asked by the other side o 26(a)(1): The Initial Disclosure Must identify people and things (docs, ESI etc) that have discoverable information that you may use at trial o 26(a)(2): Expert Testimony Must identify the experts, report Time to Disclose Expert Testimony 26(a)(2)(C)(i) at least 90 days before set trial date or (ii) if to rebut/contradict w/in 30 days after o 26(a)(3): Pre-trial Required Disclosure Must say EVERYTHING you will use at trial B. The Scope of Discovery 1. Discoverable: 26(b)(1): Can discover anything RELEVANT to a claim or defense; this means reasonably calculated to lead to admissible evidence (Note; broader then Admissible) 2. Privileged Matter is NOT discoverable: Privileged matter is confidential communication between particular people - Attorney Client - Spousal Communication 3. Work Product/Trial Preparation Materials Rule 26(b)(3) o it is work product if it prepared IN ANTICIPATION of LITIGATION; prepped with an eye toward litigation o If it is Work Product it is PROTECTED from Discovery

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o o o o o

Eg: go on boat and it sinks. I know you are going to sue me and in anticipation I get private eye to interview witness. PI sends me the memo. You sue me and ask me to produce documents. I do NOT have to produce the memo because it is WORK PRODUCT: done in anticipation. Of litigation CAN OVERIDE Work Product if show: 1. Substantial NEED 26(b)(3)(A)(ii) 2. It is otherwise discoverable 26(b)(3)(A)(i) Some Work Product is ABSOLUTE (cant get): o Mental Impressions 26(b)(3)(B) (all of these) o Conclusions, Opinions o Legal Theories Work Product does NOT have to be by an attorney o 26(b)(3) By any representative of the party: eg, PI, etc Trial Preparation: Experts 26(b)(4) Protective Orders: 26(c) Timing and Sequence of Discovery 26(d); o Conference of Parties/ Planning Discovery 26(f) ON EXAM Always start with Relevnce; Privileged; Work Product to see if Discoverable

Rule 45 Subpoena Getting someone to attend and testify 45(a)(1) Service of Subp. 45(b) Sanctions 45(c)(1) Quashing or Modifying Subp. 45(c)(3) Duties in Responding to Subp. 45(d) Contempt 45(e) B. Discovery Tools: Rules 27-37 (Note: which can be used to get information from a non-party) 1. Deposition: o Rule 30: Depo is oral o Rule 31: Depo is written - under both answers are ALWAYS oral; testify under oath - Can DEPOSE a Party OR a Non-Party but - MUST SUBPEANO a Non-Party or they dont have to show up 2. Interrogatories Rule 33 : Written questions answered under oath. Can ONLY be sent to Parties 3. Request to Produce Rule 34: Requesting documents - 34(c) makes clear can use to get information from a party OR non party but muse use a SUBPEANA for nonparty 4. Medical Exam Rule 35: - Need court order; must convince court that it is needed - Only available for PARTIES or someone who is in the custody of a party and that custody/control is very narrow (parent/child) 5. Request for Admission Rule 36: - Force another party to admit or deny ANY discoverable matter - Only goes to parties, never goes to non-parties - If they do not deny it is an ADMISSION 6. Failure to Make Disclosures or Cooperate; SANCTIONS Rule 37 Pretrial Conference Rule 16

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DISCOVERY FLOW 1. Conference 2. Initial Disclosures 26(a) 3. Not Necessarily in this Order: Interrogatories; Documents Request; Depositions; Expert Witnesses (must list and turn over report at least 90 days before trial) Request For Admissions (anytime during Discovery) 4. Summary Judgment Request 5. Final Pretrial Conference Rule 16 6. Witness List to Testify at Trial 30 days before trial Interrogatory: If refuse must then prove at trail/motion to compel; if at trial you prove and refusal was unreasonable you can then get sanctions for attorney costs of proving Impeachment is challenging the credibility of witness; under 26 don t ever have to disclose witness that is solely for impeachment

VIII.

Pre-Trial Adjudication
Voluntary and Involuntary Dismissal Rule 41 Rule 12(b)(6) Failure to State a Claim Summary Judgment Rule 56 Default Judgement Rule 55

IX.

Avoiding Trial

Rule 41: Dismissal of Actions (a) Voluntary Dismissal: Effect Thereof P can file for dismissal before answer or by stipulation signed by all parties; w/o prejudice By notice; stipulation or Court Order (b) Involuntary Dismissal: Effect Thereof If P doesnt comply with rules/court order, D moves for 41b; judgment on the merits (except if dismissal is for SMJ, PJ, Venue, Failure to join under Rule 19) (c) Dismissal of Counterclaim, Cross-claim, Third-Party Claim (d) Costs of Previously Dismissed Action nd st Court can stay action on 2 suit until 1 suit costs are paid Rule 55: Default; Default Judgment (a) Entry default entered by clerk when party against whom relief is sought has failed to plead or defend & other party motions (b) Judgment (1) By the Clerk After default is entered, then clerk enters judgment, when claim is for a sum amount; or (2) By the Court Party applies to court and court determines amount entered as part of judgment. (c) Setting Aside Default Def, after getting notice of default judgment, can motion for court to set aside, for good cause, in accordance with 60(b). (d) Plaintiffs, Counterclaimants, Cross-claimants (e) Judgment Against the U.S. Peralta v. Heights Medical Center, p467 A default judgment was entered against the Peralta, for non-payment of a former employee's hospital bills. He sought to overturn the judgment on grounds that he was not properly served notice of the initial complaint.

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Rule: A default judgment against a party, entered without sufficient notice, is void for violating due process, even though the party lacked a meritorious defense to the claim upon which the default judgment was based. Motion to Dismiss 12(b)(6): Failure to State a Claim Court does NOT look at evidence: Only looks at complaint and judge asks If everything she says is true would the Plaintiff win? o This sometimes points out sloppy pleading; eg. Law has 4 elements and only shows 3 12b6 should be granted Motion for Summary Judgment Rule 56 Court can look at evidence. Movant Must Show 56(c)(2): 1. There is no dispute on a material fact (harder) 2. Entitled to judgment as a matter of law Difference b/t 12(b)(6) is that Summary Judgment is saying P has stated a claim but there is NO NEED FOR A TRIAL because there is no dispute of fact and can have summary judgment. Evidence is anything given under oath: o Affidavits or Deposition Testimony Pleadings are NOT evidence Unless have Verified Pleadings (hardly ever in Fed Ct.) Outside of Admittals, pleadings dont help with Summ. Jdg Under Judges Discretion Can have partial Summary Judgment

Summary Judgment Rule 56 To analyze motion for summary judgment: 1. analyze the elements of the PFC of the underlying cause of action; 2. determine which factual evidence is material; 3. see if the party with the burden of proof has a minimum of evidence on each element of the PFC which would permit a reasonable fact finder to decide in her favor; and 4. deny the motion if there is a sufficiency of evidence, even if disputed, or grant the motion if there is an insufficiency of evidence. Rule 56: Summary Judgment Houchens v. American Home Assurance Co., p35 Plaintiff Alice Houchens is trying to collect upon two life insurance policies issued by Defendant American Home Insurance Co. on her husband, Coulter Houchens, who disappeared in 1980. Rule: Upon a motion for summary judgment by the Defendant, the Plaintiff has the burden of establishing facts showing the existence of an element essential to the Plaintiff's case in order to survive the motion. Summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v Catrett Celotex Corp. v. Catrett, p516 Rule: To survive a motion for summary judgment under Rule 56(c), the party with the burden of proof at trial must make showing sufficient to establish the existence of an element essential to that party's case. Moreover, the party moving for summary judgment is not required to support its motion with evidence negating the opponents claim. Bias v. Advantage International, Inc., p521 Rule: In order to withstand a summary judgment motion once the moving party has made a prima facie showing to support its claims, the nonmoving party must come forward with specific facts showing there is Misa genuine issue for trial. Rule 60 Relief from Judgment or Order (a) Corrections for Clerical Mistakes; Oversigts; Omissions (b) Grounds for Relief from a Final Judgement, order Proceeding (c) Timing and Effect of Motion

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X.

TRIAL
When you need to make the decision of fact A. Right to a Jury Trial Rule 38 Right to Jury Trial Rule 39 Trial by Jury or by Court (see chart) Rule 40 Scheduling Cases for Trial Court; Judgment on Pretrial Findings Rule 52 Findings and Conclusion of the Rule 57 Declartory Judgment; Rule 58 Entering Judgment Challenging Judges: 144, 455 The 7th Amendment Governs (See List Attached): o Only applies in FEDERAL CIVIL Cases o The 7th Amendment PRESERVES the right to a Jury in actions at LAW and not equity o Whether you get a Jury Trial depends on if you would have had a right to one in a court of law or a court of equity, in England in 1791. Whichever it would have been in England in 1791, is where it would be today. Only if you would have gotten a jury trial in 1791 in a court in England in a Court of Law o Distinction Between Law and Remedy focuses on REMEDY : Law: DAMAGES money to compensate you for harm Actions at law in England in 1791 (can get damages for): - Trespass to property and person, including assault, battery, and false imprisonment - Trespass on the case, including negligence, trademark infringement, nuisance, fraud, slander, libel, and malicious prosecution. - Trover (to recover damages for unlawful takings of personal property) - Detinue and replevin (to recover personal property unlawfully detained or converted) - Ejectment (to recover possession of land) - Covenant (to recover on a sealed instrument) - Assumpsit (to recover for breaches of informal, usually oral, contracts) - Breach of contract (to recover damages) - Debt (to recover a sum certain) - Writs of Habeas Corpus and Mandamus Actions in courts of equity in England in 1791 (series of different remedies): - Bill of peace - Quiet title and remove cloud from title actions - Actions seeking contract rescission, cancellation, reformation, or specific performance - Action to declare a constructive trust or to enforce a trust - Action to set aside a fraudulent transfer - Interpleader - Action for an accounting - Injunctions to enjoin enforcement of or compel compliance with statutes and administrative orders; to enjoin patent, copyright, or trademark infringement; to enjoin repeated trespasses or injury to property; and to enjoin enforcement of a judgment Right to Jury Trial in New Causes of Action: If didnt exist in 1791 (Teamsters Case): 1. Look at closest historical analogue 2. Look at Remedy Sought Beacon Theatre Case/Dairy Queen Case: 1. We Determine the Jury right Issue by Issue 2. If an Issue of fact underlies both your claim of Law and claim of Equity: YOU GET A JURY 3. Usually try the Jury Issues FIRST

Rule 38: Jury Trial of Right (e) Right Preserved th right under 7 Amendment (f) Demand

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any party may demand a trial by jury ... no later than 10 days after the service of the last pleading directed at issue (g) Same: Specification of Issues specify the issues which the party wishes so tried, otherwise all issues so triable will be deemed demanded (h) Waiver raise it or waive it (i) Admiralty and Maritime Claims no jury trial for you! Rule 39: Trial by Jury or by the Court (a) By Jury (b) By the Court issues not demanded for trial by jury shall be tried by the court; the court may order a trial by jury (c) Advisory Jury and Trial by Consent (d) Assignment of Cases for Trial Rule 52: Findings by the Court; Judgment on Partial Findings (a) Effect (b) Amendment on partys motion filed no later than 10 days after entry of judgment, the court may amend its findings or make additional findings and may amend the judgment accordingly. (c) Judgment on Partial Findings Challenging Judges 28 U.S.C. 144: Bias or Prejudice by Judge 28 U.S.C. 455: Disqualification of Justice, Judge, Magistrate, or Referee in Bankruptcy B. Selecting the Jury Voir Dire o Each side has an unlimited number of strikes FOR CAUSE (Thompson Case) (eg, bias, etc) o Each side gets THREE PREMPTORY Challenges: o Historically didnt need a reason; NOW Exceptions (Battson Case): PREMEPTORY STRIKES MUST BE USED IN A RACE AND GENDER NEUTRAL WAY Edmunson case and JEB case Juries Controled by: Instr.; Voir Dire; Evid of Law; Sequester; Size- Fed Ct. 6 is ok need unanomus; Some St. Ct. need only majority C. Motions that come up at Trial Rule 50 Judgment as a Matter of Law Rule 51 Instructions to Jury, Objections, Preserving Claim of Error Rule 59 Motion for a New Trial Directed Verdict 1. Motion for Judgment as a Matter of Law: JML: o Rule 50(a) o 50(a)(1): Will grant if reasonable people could not disagree; so clear o Court can NOT do this on its own. MUST be a motion o Rule 50(a)(2): can ONLY make this motion AFTER the other side has been heard at trial; put on their evidence o This is Just the same as Summary Judg. but This is AT TRIAL vs. Before Trial 2. Renewed Motion for Judgment as a Matter of law o Rule 50(b) o Comes up latter after JML has been denied; case goes to jury and the jury decides the case; the LOSER makes a RJML o If win RJML means the jury reached a conclusion that reasonable people could NOT have reached o Eg. P. only proved 3 out of 4 elements and jury still rules for them can o Take judgment away from Jury o Perquisite: To Make this RJML you MUST have moved for JML 50(a) at Trial or lose it 3. Motion for New Trial

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o o o o

Rule 59(a)(1) Jury has made verdict The court feels there was a mistake at the first case and need to start over vs. going up on appeal. Pretty limitless grounds on why (bad jury instructions, misconduct, etc.) Difference between New Trial and RJML: o New Trial is less drastic; just starting over. RJML is an actual JUDGEMENT entered for the other side; no new trial o Often make motion for RJML and New Trial in the Alternative Flaw in Process; in Verdict; Newly Discovered Evidence; Conditional New Trial Remitur/Aditur

Rule 50: Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings (a) Judgment as a Matter of Law after party is fully heard on an issue, before going to jury, if no legally sufficient evidentiary basis for reasonable juror to find for that party. Same test as SJ (b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial JNOV: failure to raise a 50(a) directed verdict results in waiver of ability to raise 50(b). Must be made within 10 days of judgment Plaintiff presents case in trial. Def moves for DV. If denied, def puts on case. Then pl moves for DV. If denied, then decision goes to jury. If jury finds for pl, then def moves for JNOV (or vice versa) (c) Granting Renewed Motion for Judgment as a Matter of Law; Conditional Rulings; New Trial Motion (d) Same: Denial of Motion for Judgment as a Matter of Law Pennsylvania Railroad v. Chamberlain, p594 Rule: A defendant is entitled to a directed verdict in a case where the proven facts give equal support to each of two inconsistent inferences, where the plaintiff has the burden of proof. Judicial Control Rule 59: New Trials; Amendment of Judgments Judge empowered to grant motion by moving party or its own initiative (flawed verdict or procedure) (a) Grounds new trial granted on issues (1) in action in which there was trial by jury and (2) in action without jury. Logically, two categories: (1) when jury clearly reached the wrong verdict; or (2) when a serious procedural error occurred during trial (b) Time for Motion new trial granted on issues (1) in action in which there was trial by jury and (2) in action without jury (c) Time for Serving Affidavits (d) On Courts Initiative; Notice; Specifying Grounds Court may, on its own initiative, order new trial; no later than 10 days after entry & after giving parties notice & opportunity (e) Motion to Alter or Amend a Judgment Lind v. Schenley Industries, p604 Rule: The reversal of a trial court's motion for a new trial is reversible if the trial court failed to apply the proper legal standards in granting the motion. Jury as a Black Box: what jury does inside room is protected; not included attempted bribery, etc. external influences the judge can look at to determine if need new trial Peterson v Wilson Rule: Judge cannot use information post verdict ex-parte meeting w. jury, to impeach the Jury (inside internal jury info). Automatic reveral when judge uses jurys own words to impeach them

XI.

Appeal

o Appeal from the Fed. Dist Ct. to the Fed. Court of appeals A. Final Judgment Rule In federal court you can not appeal until the Trial court enters a Final Judgment must wrap up all the merits of the case To figure of it Order is a Final Judgment: o After making this order, does the trial judge have anything left to do on the MERITS of the case? If yes; you can NOT appeal B. Interlocutory Review/Appeals

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Interlocutory non final Three Categories: o By Statute: 1292(a): certain interlocutory That are appealable automo (injuct) 1292(b): allows court to agree o By FRCP Rule 23(f): allows you to ASK the court of appeals to hear an order about Class Certification (for Class Action) Rule 54(b): Only for cases with MULTIPLE CLAIMS or MULTIPLE PARTIES; the court can certify that a ruling on one of those is going to be certified as final (eg. Claim, counter claim, can make final) o Judge Mage: Collateral Order Rule: Allows you to ask for review on an ISSUE that is COLLATERAL to the merits (has nothing to do with the underlying merits of the case) Also must show that this is effectively UNREVIEWABLE/LOST if we have to wait for final judgment (eg. 11th Amendment Immunity cant sue a State in Fed. Court; eg State Agency deemed a state, can make collateral order appeal)

XII.

Claim and Issue Preclusion (Res Judicata and Collateral Estoppel)

Claim and issue preclusion is always the story of 2 cases Case 1 has gone to judgment and case 2 is pending Case 2 question: Does the Judgment in Case 1 Preclude us from litigating anything here in Case 2 Always care about which one went to Judgment First (not filed 1st)

A. Claim Preclusion (Res Judicata): Claim Preclusion: you get one case to vindicate a claim; better ask for everything in that case. Must SHOW: Valid (ct had subject matter jx and personal jx) Final (Judge has entered judgment and can collect appeal does not affect this) On the Same Claim Between the Parties or in Privity On the Merits Article 4 1 Full Faith and Credit Clause: Sister states must respect each others judgments; 28 USC 1738 requires the Federal Cts. do the same 28 U.S.C. 1738: Full Faith and Credit every court in the US must give full faith and credit to judgments from any other court in the US requires federal courts to give state court judgments the same preclusive effect such a judgment would have in a state court Claim Preclusion must be put into partys answer: Party brining files for Motion for Summary Judgment If by D, its an Affirmative Defense; put in Answer File Motion for Summary Judgment; If P in Pleadings Three Elements Claim Preclusion 1. Both Cases are brought by the same Claimant against the same Defendant 2. That Case 1 Ended in a VALID FINAL Judgment on the Merits: Rule 41(b): Every Judgment is on the merits UNLESS it was based on jurisdiction, venue or indispensible parties (eg. A Default Judg. is On the Merits) 3. Show that both cases asserted the SAME CLAIM: - Majority View: the Claim is the Transaction or Occurrence (Rush Case) - Minority View: Primary Rights: You get a different claim for each Right Invaded (the harms you suffered) (Frier Case)

Rush v. City of Maple Heights, p46

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Rule: Where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises because the different injuries are really separate items of damage from the single act. Frier v. City of Vandalia, p658 Cars towed by city he first filed suit in state court seeking replevin, later filed 2nd suit in federal court alleging due process violation Issue: Whether a litigant's state court traffic law claim precludes a second suit alleging a Due Process violation. Holding: No. The court relied on its belief that two of the goals of claim preclusion are efficiency and judicial economy. Here, because Plaintiff's procedural due process claim required an entirely different showing than his suit to recover his cars from the garage without paying a fee, the court held that Plaintiff's second suit was not barred because of claim preclusion. Martino v. McDonalds System, Inc., p667 McDonalds owner who helped his son open a Burger King, violating his contract with Mc-Ds Rule: When facts form the basis of both a defense and a counterclaim, the defendant's failure to allege these facts as a defense or a counterclaim does not preclude him from relying on those facts in an action subsequently brought by him against the plaintiff. rule is not absolute - precedent and policy require that res judicata bar a counterclaim when its prosecution would nullify rights established by the prior action Issue: Whether a consent judgment against Plaintiffs precludes the cause of action in the present lawsuit. Holding: claim preclusion bars the action. Searle Brothers v. Searle, p673 Rule: The plea of collateral estoppel can only be asserted against a party in the subsequent suit that was also a party or in privity with a party in the prior suit. Issue: Whether claim preclusion precludes an action by a plaintiff who was not a party to an earlier divorce decree, contesting the ownership of a piece of property partitioned in the divorce decree. Held: No Tests to determine the applicability of res judicata as a basis for applying the collateral estoppel doctrine: 1. Was the issue decided in the prior adjudication identical with the one present in the action in question? 2. Was there a final judgment on the merits? 3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? 4. Was the issue in the first case competently, fully, and fairly litigated? privity means one whose interest has been legally represented at the time. This includes a mutual or successive relationship to rights in property. The right to intervene as a party in a prior suit does not bind the party in the subsequent suit where he failed to so intervene Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, p683 Rule: A state court final judgment on the merits has no claim preclusive effect with respect to federal claims not within the jurisdiction of the state court, even though the federal claims arose out of the same transaction as the state court claims. The first rule in determining whether a prior state court judgment has preclusive effect in a federal court is that the full faith and credit statute requires a federal court to give a state court judgment the same preclusive effect such judgment would have in a state court. Issue: whether a federal district court may give claim preclusive effect to an Ohio judgment regarding federal securities laws that are within the exclusive jurisdiction of the federal courts. Held: No. Claim preclusion holding: Ohio claim preclusion law would bar the claim asserted in pl's district court complaint had it been filed in an Ohio court Federal Exclusivity holding: Ohio court did not have subject matter jurisdiction over pl's federal securities law claims, therefore they do not give claim preclusive effect Hypo: Louise and Meg are each driving and collide. Each injured. Case 1 Louise sues Meg for Personal Injury. Litigate and go all the way to judgment. Case 2 Louise sues Meg for property damage from same crash. Do we preclude Case 2? Element 1: Met, both brought by same claimant and D 2. Case was final and valid on merits

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3. Same Claim: Majority: the same claim is trans/occ YES Dismiss for claim preclusion Minority: Primary Rights; get a different claim for each right and this is a separate right, 1st was body this is property Hypo 2: Case 1 Louse sues Meg. Valid Final Judgment Case 2 Meg sues Louise 1. Not Met. Not same claimant and defendant because different. No Claim Preclusion HOWVER is Dismissed because did not assert Compulsory Counter Claim B. Issue Preclusion (Collateral Estoppel) The Issue Case 1: Facts decided in Case 1 will be deemed established in Case 2; Must Show: Final Valid Incidental Issue: of Fact or Law Actually Litigated And Determined And was Essential/Necessary to the Judgment Against Same Party/In Privity [Mutuality] Parklane Fairness Factors 1-4 Illinois Central Gulf Railroad v. Parks, p688 husband who originally sued for loss of consortium of wife then sued for his own injuries. claim is different, so res judicata does not apply. Issue preclusion applies from the facts and questions determined from his wifes injury claim from the same accident. Rule: Issue preclusion, which allows the judgment in the prior action to operate as an estoppel as to those facts or questions actually litigated and determined in the prior action, only applies if the moving party can show that the specific factual issue in question was actually adjudicated on the merits in the prior suit. PARKLANE CASE MUTUALITY (controls in federal system): Mutuality- conditions under which both parties could benefit or be burdened with preclusion; in order for one to benefit from preclusion, must also be burdened by it Parklane Factors: 1. Could the stranger party have easily joined the 1st case 2. Was there sufficient incentive for the defendant to fully litigate the issue in the 1st action - Whether or not it was Foreseeable to the D that there would be future litigation (if yes should fully litigate) 3. Reason to Doubt/Inconsistent Verdicts 4. Procedural Opportunities: is there a procedural opportunity that was not available in the 1st case that is now available If in jx. that requires Mutuality then look at Parklane 1-4: fairness must be proved by nonmovant in jx that does must prove would be unfair to allow despite fact all issue preclusion element are met 5. Ask BY WHOM is preclusion used: MUTUALITY: o Can only be used BY someone who was a party in case one (not required by due process) o Can change depending on court o Majority of Courts allow NON-MUTUAL: being used by someone who was not a party in the 1st NON MUTUAL DEFENSEIVE ISSUE PRECLUSION Used by someone who was not a party in case one who is a DEFENDANT! State Farm Fire & Casualty Co. v. Century Home Components , p703 48 property owners consolidated an action against a home building company following a fire. Rule: where there are several lawsuits with varying and inconsistent verdicts, issue preclusion should not apply. Durfe v. Duke: Every court has power to hear whether it has SMJ; once it decides, its binding

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Collateral Attack: may collateraly attach a judgment on grounds court rendering it lacked jx. 1738: Full Faith and Credit as a bar to Collateral Attacks Rule 42: Consolidation; Separate Trials Hypo: Own a car. Lend car to your roommate. You are Vicariously liable for what roommate does. Runs into Freer. Case 1: Freer sues Roommate for damages. Litigate and Roommate wins. Proves issue litigated and decided, the accident was Freer Faulty Case 2: Cant get Claim Precl. b/c diff Claimant and Def. Issue Precl: 1. Met, valid final jd 2. Met, was litigated 3. Issue was essential to the judgm..; reason Roommate won was b/c Freer found at fault 4. Met, using it against someone who was a party to Case 1 5. Being used NON-MUTUALY BUT: Majority; ok by Non-Mutual by Defendant if person against whom using it had a full chance to litigate in case 1 Hypo Non-Mutual OFFENSE: P in case 2 is using even though was not a party in case 1. (same facts) Case 2: I the owner of the Car sue Freer. I want issue Preclusion on the issue that the wreck was Freer Fault 1-4 all met 5. MUTUALITY: Not Mutual OFFENSE - Majority view today says NO to Non-Mutual Offense - Very strong trend: PARKLANE HOISERY CASE: Non Mutual Offense ok if Fair Parklane Hosiery Fairness Factors 1. Did Person have full chance to litigate in case 1 2. Show that Def could FORESEE multiple litigation 3. Can use UNLESS could have JOINED EASILY in case 1 4. No Inconsistent Judgment; If there are inconsistent judgments can NOT get issue preclusion 5. No new procedural opportunity available now that was not available in the first case