Civil Procedure – Fall 2012 (Shipley)

Chapter 1 – Overview of Procedure

B. Where can the suit be brought?
1. Personal Jurisdiction
 Peters v. Dodge hypo
o Peters (MI student IL parents live) in an accident with Dodge (IL resident) in IL
o So here, Peters could sue Dodge in IL, but probably not in MI where he lives (Dodge has no
connection with forum)
2. Subject Matter Jurisdiction
 Diversity jurisdiction and federal question jurisdiction for federal courts
 Hawkins v. Masters Farms, Inc.
o Tractor driven by D hit P’s car  alleged diversity under 1332  D makes 12(b)(1) motion
for lack of SMJ
o P has burden of proof  they don’t meet it  no diversity  case dismissed
o Accident in KS, D from KS, P living in KS but tried to say he was from MS  didn’t work,
couldn’t show the proof
o Executor of estate takes citizenship of decedent  domiciled in KS  no diversity
 Peters v. Dodge
o After this case, could probably make a case for diversity to get into federal court based on MI
student
3. Service of Process
 D may accept service of process
 Rule 3  must have notice of the suit

C. Stating the Case

1. The Lawyer’s Responsibility
 Bridges v. Diesel Service, Inc.
o P sued D under Americans with Disabilities Act  P didn’t file a charge with the Equal
Employment Opportunity Commission until after commencement of the action
o Rule 11: imposes obligations for lawyers to do the ground work, background work
 Every pleading, written motion, and other paper must be signed by at least one
attorney of record in the attorney’s name – or by a party personally if the party is
unrepresented….an attorney certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances
 (1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation
  (2) the claims, defenses, and other legal contentions are warranted by
existing law or by a non-frivolous argument for extending, modifying, or
reversing existing law or establishing new law
 (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery
 (4) the denial of factual contentions are warranted on the evidence
2. The Complaint
 Bell v. Novick Transfer Co.
o Case filed in MD state court  removed to federal for diversity  D tried to get dismissed by
motion to dismiss for failure to state a claim upon which relief can be granted 12(b)(6)
o Motion for a more definite statement 12(e)
o Court denies the motion because in federal court under Rule 8  statement only needs a short
plain description of the claim
o If they had stayed in state court, D probably would have been granted more definite statement
o Only way they can get more info now is through discovery and interrogatories
 Tension between Rule 11 and Rule 8  obligations v. what you can get away with when stating claim
3. The Response-Motions and Answer
 Pre-Answer motions: does not respond to the allegations in the complaint
o Rule 12
 12(b)(1-5): don’t go to the merits of the suit but can get the case thrown out
 Hawkins v. Masters Farms
 12(b)(6): Failure to state a claim upon which relief can be granted  no claim,
saying, “so what?”
 Bell v. Novick Transfer (unsuccessful)
 The Answer: does respond to the allegations in the complaint
o Rule 8
 8(b) Defenses: Admissions and Denials
 Peters v. Dodge
 8(c) Affirmative defenses
o Much more detailed than the complaint

D. Parties to the Lawsuit

 Larson v. American Family Mutual Ins. Co.
o P brought case in CO state court  D (insurance co. )removed to federal court (diversity)
o Lawyer unethical  didn’t file suit in timely manner because trying to represent D

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 o Now P wants to add Lawyer to suit against D
 But would destroy diversity
o Rule 20. Permissive Joinder of Parties
 “any right of relief…arising out of the same transaction, occurrence, or series of
transactions or occurrences”
o D objected based on:
 Motion not timely
 Court rejected this argument…P didn’t have sufficient information to
support claim until after discovery
 Civil conspiracy claim not allowed under Rule 20(a)
 D’s denial of P’s claim was at least due, in part, to the fact that the law firm
was engaged in discussion with the insurer
o Court permitted joinder and remanded to state court because joinder destroyed diversity

E. Factual Development – Discovery

 Rules 26-37 and 45
 Discovery provides a range of tools to uncover the facts
o Interrogatories
o Deposition: not limited to parties
o Request for production of documents (Rule 34)
o Subpoena: non-party
o Rule 35 allows for physical exam
 Butler v. Risgby
o Appeal of a discovery ruling by a magistrate judge
o Rule 25(b)(1): Scope in General
 Very broad scope of discovery
o Court says D must pay ½ expenses for compiling information requested in the first part, but
privilege trumps relevance  cant get patient list because of LA law

F. Pretrial Disposition – Summary Judgment

 Rule 56: No genuine dispute of material fact and the court can rule, as a matter of law, one way or the
other
 Houchens v. American Home Assurance Co.
o P sues D for breach of K  insurance policy says “death muse be caused by an accident” and
we don’t know if P is even dead

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 o Must be more likely than not that he died by accidental death  but there is no proof so the D
wins motion for summary judgment

G. Trial
 Norton v. Snapper Power Equipment
o P bought lawnmower 2 years before accident  no dead man’s switch on the mower and the
blades didn’t stop in time during accident  cut off his hand
o D moved for directed verdict  denied  jury returns verdict for P  judge then entered
judgment notwithstanding the verdict (JNOV) for D
o Court of appeals overturned JNOV  enough evidence that jury could find for P
 Summary judgment (no dispute of fact) v. JNOV (dispute of fact, but no reasonable person could find
for one party)

H. Former Adjudication
 Rush v. City of Maple Heights
o Case about former adjudication  claim preclusion (res judicata) and issue preclusion
(collateral estoppel_  both come into play here
o Separate action for motorcycle damage and personal injures  should we continue to allow
splitting up COAs like this? Shouldn’t she be required to litigate them together
 Suit 1 property damage  court found city negligent
 Suit 2 personal injuries  court said the claim was precluded and should have raised
it in the first suit
o Majority view: single tort can be the basis of one action
o Most jurisdictions don’t allow splitting of COAs

I. Appeals
 Apex Hosiery Co. v. Leader
o You cant appeal unless its from a final judgment
o This was a discovery ruling  we don’t allow appeals of interlocutory rulings
o When do we allow it?
 If the judge made a mistake, allow interlocutory appeal only if it can stop it

Chapter 2 – Personal Jurisdiction

Personal Jurisdiction: court’s ability to exercise power over a particular D or property; 3 types
 In personam Jurisdiction: give the court authority to bind a party personally

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  In rem Jurisdiction: gives the court authority to decide all claims affecting a particular property;
decides rights of individuals with regard to piece of property
 Quasi in rem Jurisdiction: 2 kinds:
o Courts have power to determine whether particular individual owns a specific property
(doesn’t give court power over all persons with respect to the property)
o Courts can adjudicate disputes other than ownership based on the presence of the D’s property
in the forum
o D is not bound personally and cant be enforced against any other property owned by D
Limitations on PJ
 Statutory limitations  most states allow PJ when:
o D is present in the forum state and personally served with process
 Exceptions:
 Service by fraud or force invalid
 Immunity of parties and witnesses
o D is domiciled in forum state
 Exception:
 Even if domiciles abroad, a US citizen is subject to PJ in the US
o D consents to jurisdiction
 Express consent
 By contract
 By appointment of agent to accept service of process
 Appointment required by state: State can require nonresident
corporations to make appointments before doing business in the
state
 Implied consent
 Hess v. Pawlosk
 State’s interest in regulating in-state activity of nonresident, may provide
that by engaging in such activity nonresident appoints agent to accept
service for them
 Voluntary appearance
 Exception: “special appearance” to object to PJ
o D committed acts brining him within state’s long arm statute
 Unlimited: (CA) give courts power over any persons or property over which the state
can constitutionally exercise jurisdiction
 Limited: most states; specify in detail the situations in which courts can exercise PJ
 Constitutional limitations – Due Process

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 o Contact with forum state that the exercise of jurisdiction would be fair and reasonable
o D must be given appropriate notice of the action and an opportunity to be heard
 PJ in Federal Court
o Absent a federal provision, each federal court must analyze PJ as if it were a court of the state
in which it is located

A. The Origins
 Pennoyer v. Neff (U.S 1877)  3 elements: power, consent, notice
o Mitchell v. Neff (Oregon)
 Sherriff’s sale: obtain a judgment, get a writ of execution to seize the property  it
is a lien on the property and can sell it and collect judgment
 Constructive service: service through newspaper, etc.  the person being served
probably wont see it, courts assumed the seizure of property would be like service
 Attachment: literal seizure or posting notices on property or on title records so cant
be sold
 Mitchell sues Neff in OR state court providing only constructive notice  Neff not
in OR and doesn’t show up to defend
 After Mitchell gets default judgment, gets sheriff to seize land  Pennoyer buys at
auction  Neff comes back and wants his land back
o Pennoyer v. Neff (U.S)
 Collateral attack: when the D in a suit fails to appear, a default judgment is made
against him, he can then appeal and say no PJ
 The trial court rendered an personam judgment on Neff but they had no PJ
 Could only have PJ if:
 Personal service in the state
 Proceeded in rem, if Neff had the property before the suit
 Consent and appoint an agent to receive process for you
(usually to do business in the state)
 Voluntary appearance
 State has control over persons and property within the state
 Rule 4(k)(1)(A): Federal court has the same PJ as the state it is sitting in (unless
federal statute says otherwise) so wouldn’t have made a difference if litigated in
federal court rather than state court in OR
 Full Faith and Credit: “Full faith and credit…be given in each state to judicial
proceedings in every other state”  unless the court rendering judgment didn’t have
PJ  collateral attack!

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  Constructive service is not ok for in personam suits, only for in rem because we’ll
assume a D knows what’s going on with their property
o What does this case leave open?
 Marriage/Divorces  treats marriage like a thing (“marriage” follows you around),
so don’t need the other person there to get a divorce
 It was more difficult to get in touch with one another back then
 Could require people to have someone in the state that can be served for you
(consent)
 Contracts: require them to agree to be subject to jurisdiction
o Special appearance = could appear without conceding PJ to challenge it
o Rule 12 – especially interaction between (b)(g)(h)
 Every defense to a claim for relief in any pleading must be asserted in the responsive
pleading if one is required. But a party may asserd the following defenses by motion:
 12(b)(2)  move to dismiss for lack of PJ
 Lack of PJ motion = Use it or lose it (must be asserted early or cant assert it at all)
 You must raise a PJ claim first or at the same time as other things  you aren’t
allowed a second pre-answer motion
 12(h)(B)(ii)  realize you forgot to file 12(b)(2), and file an amendment as a matter
of course allowed by 15(a)(1)(B); so you can amend pleading as long as you do it
quickly (within 21 days after service)
 12(b)(1)  lack of SMJ is never waived, 2-5 are the ones you lose quickly
 Hess v. Pawloski (U.S. 1927) – Butler
o Hess (PA) and Pawloski (MA) in car accident in MA  Pawloski sues Hess in MA  non-
resident D
o MA statute: provides service and jurisdiction; registrar served for non-resident driver, implied
consent to PJ by driving on the roads  in line with due process and take steps to ensure D is
notified and has time to prepare defense
o Due Process considerations
 No violation because implied consent to PJ by driving on the roads
 P must take steps to ensure D is notified (registered mail and receipt), and D given
time to prepare defense (continuances allowed)
 Interest of the state in regulating highways  no due process violation (public policy
argument)
o Fair Play and Substantial Justice (Shoe)
 The claim must relate to the tort  so not general jurisdiction, only specific
o Minimum contacts (Shoe)

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  Yes  because low activity and a related claim + implied consent = PJ
Related Claim Unrelated Claim
High Activity Yes PJ (General) Maybe PJ (General?)
Low Activity Maybe PJ (Specific?) No PJ
o Milliken v. Meyer language?
 Driver used the privileges of the roads
 Reasonably calculated to give him actual notice of the proceedings and an
opportunity to be heard  fair play and substantial justice satisfied here
o Hess shows (1) direct attack by Hess (challenged PJ in the first suit) and (2) “legal fiction” of
implied consent (Shoe gets rid of this by developing test that depends on quality and nature of
the activities of the defendant in the forum state)

B. The Modern Constitutional Formulation of Power

1. Redefining Constitutional Power
 Milliken v. Meyer (U.S. 1940) – Douglas
o P(WY) sued D(WY), but D was in CO at the time  court said yes PJ
o General Jurisdiction
 Can be sued on any claim
 Domicile = sufficient alone for PJ, absence from state of domicile doesn’t defeat PJ
o Substituted service ok if domiciled in the state and service is reasonably calculated to give D
actual notice = fair play and substantial justice
o Enjoyment of the privileges of residence within the state, and the attendant right to invoke
protection of its laws are inseparable from various incidences of state citizenship (PJ)
o Translate to corporate Ds = can be sued in state of INC or state of HQ (changes to PPOB)
 International Shoe Co. v. Washington (U.S. 1945) – Stone
o State sues Shoe (INC in DE, PPOB in MO, has business in WA) for failing to pay certain tax
o “Personal service or other form or notice, due process requires only that in order to
subject a D to a judgment in personam, if he be not present within the territory of the
forum, he have certain minimum contacts with it such that the maintenance of the suit
does not offend the traditional notions of fair play and substantial justice”
o Presence for a corporation = defined by activities
o Service
 Agent served and mailed to corporate HQ
o Court said there was sufficient minimum contact here and the claim was related to the activity
 activities not “irregular nor casual” but “systematic and continuous”

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 o “Appellant received the benefits and protection of the laws of the state, including the right to
resort to the courts for the enforcement of its rights. The obligation which is here sued upon
arose out of those very activities”
o PJ depends on the contacts in relation to the claim being asserted – specific jurisdiction (chart
above)
o Ex: Shoe truck in car accident  No PJ because low activity and unrelated claim
o What about unrelated claims joined with related claims? Possible (federal rules, supplemental
jurisdiction in SMJ)
 McGee v. International Life Insurance Co. (U.S. 1957) – Black
o P(CA) bought insurance with D(TX)  estate sues TX company in CA after P’s death
o There was PJ over the TX company in CA because suit based on contract which had
substantial connection with the state
 High-water mark for jurisdictional reach because:
 Low contacts (for all we know this was their only policy in CA)
 Highly related claim
o CA not precluded from rendering a binding judgment on TX D
o Policy reasons court considers for allowing PJ in this case (high-water mark for jurisdiction):
 CA interest in providing effective means of redress for residents
 Modern transportation/communication  more business by mail than ever before
 Increasing nationalization of commerce
 Hanson v. Denckla (U.S. 1958) – Warren
o PA establishes trust with DE company  moves to FL  kids want to bring in DE company
as Ds  court doesn’t allow this because the DE company must have purposefully availed
itself to FL
o There are still state territorial limits and flexible Shoe standard doesn’t get rid of them entirely
 McGee and Hanson Distinguished
McGee Hanson
Has sufficient minimum contacts They did have contacts with FL (insurance)
TX company purposefully availed itself of  but not sufficient
CA (by selling insurance to P) DE company did not purposefully avail itself
States interest in providing relief for residents of FL (sold policy to PA resident who moved
 Purposeful Availment = “reaching out” to to FL)
a state FL has an interest, but there are state
territorial limits still
2. Absorbing In Rem jurisdiction – category comes out of Pennoyer, will that be altered or not?
 Harris v. Balk (U.S. 1905) - ?

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 o H owes B(NC), B owes E(MD)  E uses H (personal service in MD) to collect the debt that
B owes him by suing H (“you pay me what you owe B, because B owes me”)
o H pays E  then B sues H in NC for what H originally owed B  H’s defense is that he
already paid and MD judgment should be entitled to Full Faith and Credit  court upheld
o Essentially, dept is a thing that can be attached (in rem jurisdiction) and H has B’s “property”
with him, and his obligation to B wherever he goes  creditors are liable in any state their
debtors set foot
o Quasi-in rem attachment jurisdiction
 “Property” has been attached and if they want it back they will have subject
themselves jurisdiction by litigating claim in that state
 Also allows them to collect their money by treating the debt as a thing/property that
can be attached like land, car, etc.
o OVERRULED BY SHAFFER – no minimum contacts here, claim not related to the debt
owed to E
 Shaffer v. Heitner (U.S. 1977) – Marshall
o P brought shareholder’s derivative suit against several officers and directors of Greyhound,
DE Corp., gaining in rem jurisdiction by attaching their Greyhound Stock (like property)
o Court held: All assertions of state-court jurisdiction, including in rem and quasi-in rem,
must now be evaluated according to Shoe standards of “substantial minimum contacts”
and “fair play and substantial justice”
o If this had been under Pennoyer:
 Ok  quasi-in rem based on attachment created jurisdiction
o After Shoe standards applied:
 Property completely unrelated to COA
 Just a way to get PJ (this is what happened in Harris too)
o Some in-rem actions are still ok:
 When the cause of action is related to the property
 If property itself is at issue; interest related to thing within the state
 If there is an injury suffered on the land of an absentee owner
o Ruling and new rule applies when the property is not at the center of the suit
 Presence of property is not sufficient
 Need to satisfy minimum contacts and fair play/substantial justice
o Majority:
 DE could have enacted statute that made it ok to sue directors of a corporation in the
state of incorporation, but without this it is inconsistent with Shoe – this would be
only specific jurisdiction (part Brennan disagrees with)

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 o Brennan Dissent
 Agrees with everything except the holding; he thinks the officers of Greyhound have
purposefully availed themselves so they should be able to get them under Shoe
standards anyway (SHIPLEY FINDS BRENNAN VERY PERSUASIVE –
BRENNAN IS PRO-JURISDICTION, TALKS A LOT ABOUT THE FORUM
STATE’S INTEREST IN OTHER CASES TOO)
 Strong interest in providing restitution
 Manifest regulatory interest
3. Specific Jurisdiction: The Modern cases
 Remember Hanson and McGee here:
o McGee: Minimum contacts can be just one
o Hanson: purposeful availment by defendant; invoking the benefits and protection of laws; but
no unilateral acts
 Class Hypo: Buy a heater at a small store in Athens, heater is made by a NC company, one part of the
heater is made by a PENN company  you take the heater to CONN and it catches on fire…who can
you sue in CONN?
o NC Manufacturer – yes; they market through big companies an expect national distribution
o PENN company – yes; probably because they are giving part to company that is distributing
nationally
o Athens store – no; they could not have foreseen use of radiator in CONN
 World-Wide Volkswagen Corp. v. Woodson (U.S. 1980) – White
o Facts: Car accident…P tried to sue Audi, Volkswagen, WWV, and Seaway in OK
 Purchased car from Seaway (NY)
 Seaway’s distributor is WWV (NY)  distributes in NY, NJ, and CONN
 No problem getting Audi or Volkswagen because they distribute world-wide and can
reasonably anticipate being hailed into court  but P wants WWV and Seaway in so
they can stay in state court (with just P, Audi, and Volkswagen there is complete
diversity)
o Holding: OK court had no PJ over WWV and Seaway because they had no contacts, ties or
relations with the forum state
o Test: 2 pronged test for PJ
 Contacts: Must have a contact with the forum state first
 Reasonableness/Fairness inquiry: Then asses fairness considering:
 Forum state’s interests in adjudicating the dispute
 P’s interest in obtaining convenient and effective relief

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  The interstate judicial system’s interest in obtaining the most efficient
resolution of controversies
 Shared interest of the several states in furthering fundamental
substantial social policies
 Burden on the D
o Purposeful availment (from Hanson) by foreseeability and stream of commerce
 The contact must be brought on by D’s deliberate actions
 Foreseeability: based on D’s contacts with the forum, is it foreseeable that he should
be haled into court there?
 Stream of Commerce: D’s placement of goods into the stream of commerce with the
expectation that they will be purchased by the consumers in the forum may indicate
purposeful availment
 Very circular: you should be able to foresee that you will be hailed into court when
you place your produce into a market/stream of commerce  but how far does that
stream normally flow
o Dissent: Brennan
 Thinks majority reads Shoe too narrowly  majority doesn’t focus enough on
State’s interest in litigation, and thinks it wouldn’t be inconvenient for D to litigate in
Ok
 Burger King Corp. v. Rudzewicz (U.S. 1985) – Brennan
o Facts: 2 Ds franchise BK in MI, BK regional offices in MI, BK headquarters in FL, BK sues
in FL  do the courts have PJ over the MI Ds?
o Apply WWV test:
 Contacts: Ds had minimum contacts and purposefully availed themselves
 Because the Ds were dealing with corporation in FL, not the office in MI
 Had the benefits of the corporation
 Deliberately reached beyond MI to negotiate with SL
 Not random, fortuitous, or attenuated (Hanson)
 Reasonableness/Fairness inquiry: finds it is fair to exercise PJ here because “reached
out”
 Brennan says, once the contacts prong is established the burden shifts to D
to show it is not reasonable or fair to exercise PJ  so slim contacts, but
reasonable and fair can tip the scales toward PJ
 Doesn’t alter the test, but just emphasizes that the test has 2 parts that are
important

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 o If there are weak minimum contacts, the fairness/reasonableness factors can strengthen the
connection and find PJ
o Entering into a K is not a sufficient contact in itself
 Purposeful availment/reasonableness of being hailed into court:
 Entering into a K with forum selection clause
 Deliberate engagement with state activities
 Continuing obligations between D and state
o Dissent – Stevens and White
 Concerned about finding minimum contacts (first part of WWV test)
 BK has more bargaining power (unfair)
 Contract of adhesion, problems of mutuality
 Calder v. Jones (U.S. 1984)
o Tort version of purposeful availment – Effects Test
o FL based newspaper, P trying to sue in CA for causing an effect (defamation) in CA  D is
aware the writing will have an impact in CA
o PJ does exist here because this is considered purposeful availment, the writer and editor are
aware that this will cause an effect in CA
 Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (W.D. Pa 1997)
o Sliding scale approach to PJ over a website: the more active the website, the more likely that
you’ll be able to get PJ
 Conducting business on the site: probably get PJ
 Interactive – middle ground, PJ determined by level of interactivity and commercial
nature of exchange of information
 Passive site (advertising/links to other sites): probable no PJ
 Pavlovich v. Superior Court (Cal. 4th 2002) – Brown
o DVDs and CSS technology  P claims D misappropriated their trade secrets
o P is in CA, D is in TX but was in IN when launched the site  site only provides links
(passive site)
o Lower court said: PJ because of the Effects Test (Calder)
o Majority doesn’t go this far with Calder test because the D wasn’t TARGETING the P’s state
as in Calder
 Need effects + targeting to get PJ under Calder test
 Knowledge that a company will be hurt by your actions is not sufficient, you must be
targeting them
o Dissent – Baxter, George, Chin
 Targeted whole industry

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  D knew at least targets were primarily based in CA
 Said: “by acting with the broad intent to harm industries he knew were centered or
substantially present in this state, D forged sufficient minimum contacts with CA,
that he should reasonably anticipate being haled into court here for litigation arising
out of his forum related conduct”
o Majority admits this is a close call
 If there were profits for D involved this may have been a different case
 STREAM OF COMMERCE CASES (NICASTRO AND ASAHI)
 Asahi Metal Industry Co. v. Superior Court of Cal. (U.S. 1987) – O’Conner
o Courts last word until McIntyre (2011) about specific jurisdiction  disagreement about what
is sufficient for minimum contacts
o Facts: Husband and wife injured in motorcycle accident  sued Taiwanese manufacturer 
manufacturer brought in Asahi (Japanese manufacturer of valve on bike)
o Can we get PJ over Asahi? Did they purposefully avail themselves of CA by putting valve in
stream of commerce? (WWV)
 Part II of WWV Test:
 8 (all but Scalia) say it is not fair/reasonable (“fair play substantial justice”)
to litigate in CA
 Same 5 fairness factors considered in WWV
 Part I of WWV Test:
 4 say no minimum contacts: O’Conner, Scalia, Powell, Rehnquist
 4 say yes minimum contacts: Brennan, White, Marshall Blackman (enough
that D had an expectation the valve would be used in forum state)
o Plurality: Application of stream of commerce/foreseeability
 Brennan: pure stream of commerce (foreseeability and awareness is sufficient),
benefiting financially, could have foreseen being hailed into court
 Stream of commerce is enough
 O’Conner: stream of commerce PLUS (awareness not enough; requires some
purposeful direction, advertising, marketing)
 Wanted more evidence of purposeful availment
 Fairness analysis not necessary if no contacts
 Stevens: didn’t say anything about minimum contacts  but does go along with
no “fair play substantial justice” ruling
 J. McIntyre Machinery, Ltd. V. Nicastro (U.S. 2011) – Kennedy: similar to O’Conner opinion in Ashai
o Nicastro injured in metal-shearing machine in NJ, device manufactured in UK where
McIntyre is incorporated and has PPOB  sued in NJ

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 o Chain of distribution:
 OH Distributor  trade show in Vegas  gets to NJ (don’t directly market in NJ)
 Distributor is bankrupt, so only suing UK manufacturer  PJ?
o Plurality
 Kennedy:
 Target forum and submit to state sovereignty
 Follows O’Conner but adds “target” language from Calder
 Local Distributor: cant target US as a whole but must target forum
 Breyer:
 No precedent for PJ over an isolated sale so no need to examine
minimum contacts and fairness
 Not time to establish a new rule going into internet age, especially with
target language
 Ginsburg:
 Worried about evading PJ by employing a local distributor
 Says Kennedy is backtracking with implied consent and “doing
business” approach wehre submitting to forum was required
 If D is targeting the entire US, should be liable in ALL states
 SHIPLEY – PREFERS GINSBURG
 HE WOULD HAVE FOUND SUFFICIENT CONTACTS HERE
o 4-3-2 division  Still as messy as Asahi
 Overview
o McGee and BK  high watermarks for PJ
o Brennan’s view hasn’t won out here (extending PJ, interest in forum state)
4. General Jurisdiction
 Perkins v. Benquet Consolidated Mining Co. (U.S. 1952) [CITED IN GOODYEAR]
o Philippines-based mining company, president lived in OH, company fled to Japan during
WWII
o Could exercise general jurisdiction over an unrelated claim in OH court
 GM and principle stock broker lived in OH
 Maintained office there
 Conduced business on behalf of company
 Office files, bank accounts, etc.
o No test emerges, but general activities of company in OH allowed OH to have general
jurisdiction
 Continuous and systematic presence was sufficiently substantial to permit PJ

15
 o Footnote in Shaffer  what if there is only 1 jurisdiction?  maybe jurisdiction by necessity
 Helicopteros Nacionales de Colombia v. Hall (U.S. 1984) – Blackmun [CITED IN GOODYEAR]
o Helicopter crashed with 4 US citizens on board. K negotiated in TX, signed in Peru, PPOB in
Columbia (Texas – had other Ks, purchased 80% of fleet from TX, bank accounts)
o Contacts with TX were not sufficient to satisfy Due Process clause
o They’re not at home here
 Goodyear Dunlop Tires Operations, S.A. v. Brown (U.S. 2011) – Ginsburg
o American kids in Paris  injured in bus accident with defective tire
o Tire manufactured in Turkey, tire designed in Luxembourg, distributed to Turkish company
by French subsidiary
o Who do we have PJ over?
 Goodyear – yes, not a problem
 We need the subsidiaries in because they are they ones liable for the tire (never in
US  they were specialized tires)
o Court says no PJ over the foreign subsidiaries because no specific targeting of NC forum, they
acted separately from Goodyear USA
o This case adds the “at home” requirement:
 General jurisdiction over foreign corporation when their affiliations with the
state are so continuous and systematic to render them essentially at home in the
forum state
 Majority view is that this made general Jurisdiction narrower than before (can
argue to combine ties to create sufficient contact, volume of sales, etc.  but
generally narrows GJ)
 Burnham v. Superior Court (U.S. 1990) – Scalia
o Divorce proceedings; agree to divorce on irreconcilable differences; Mrs. moved to CA with
the kids; Mr. broke agreement and filed for on desertion grounds in NJ; Mrs. served Mr. in
CA while he was there visiting the kids and on business  he was personally served; PJ?
o Majority says there was PJ  he was served in the state
o Both Scalia and Brennan agree that transient jurisdiction applies. But debate over whether
minimum contacts and fairness test should be applied to service in state
o Transient Jurisdiction (“tag” jurisdiction)
 Transient jurisdiction still legitimate because of longstanding tradition and the
majority of the states still adhere to it
o Scalia: founded on tradition
 Transient jurisdiction still find because it is continuing and favored tradition
 Minimum contacts is a proxy for physical presence

16
  Distinguishes Shaffer: quasi in rem (when minimum contact is property) it should be
held to Shoe standards
 Brennan’s fairness rule is too unpredictable, subjectice
o Brennan: should still apply the minimum contacts so that transient jurisdiction comports with
fairness, reasonableness, and contemporary notions of due process
 Tradition qualifies “notions of fair play and substantial justice”
 Need a continuing tradition PLUC fairness because transient jurisdiction will
generally be fair but should impose the check
 Shaffer: “all assertions of state-court jurisdiction must be evaluated according to the
standards set forth in International Shoe and its progeny”
 D purposefully availed himself and derived benefits (ex. Police protection)
o White: Common sense
o Stevens: Concerned that the holding is unnecessarily broad

C. Consent as a Substitute for Power

 Pennoyer: submitting to forum by showing up in the state
 Hess: implied consent and state appointed agent – legal fiction (overruled by
 Carnival Cruise Lines, Inc. v. Shute (U.S. 1991) – Blackmun
o Facts: P injured on cruise ship, tried to sue in WA
 Forum selection clauses: advanced consent agreeing to waive PJ in the FL  all
disputes must be brought in FL
 Court upheld forum selection clause
o Court considered
 Reasonableness of clause, bargaining parity? (adhesion/form K) – but valid if notice
and no fraud in obtaining consent
o Notice
 Did P have enough notice to retain and option to reject the K?
o Rationale
 Efficient
 Save customer’s money
 Forum must be a rational choice
 Need predictability
o This opinion based on maritime law  not binding on future forum selection clause litigation,
but persuasive
o Dissent – Stevens and Marshall

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  No bargaining and historic knowledge that courts don’t like to enforce these clauses
because of state jurisdiction

D. The Constitutional Requirement of Notice

 Mullane v. Central Hanover Bank and Trust Co. (U.S. 1950) – Jackson
o Bank established common trust in 1946 and petitioned for settlement of its first accound. A
total of 113 trusts participated in the common trust fund but it is unknown how many were in
state/out of state
 Constructive service
 Did no ID individuals
o Court found this notice inadequate  should have notified known beneficiaries, constructive
service still ok for unknown beneficiaries
o Notice must be reasonably calculated under all the circumstances to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections
 Consent must reasonably convey required information
 Time: must give D reasonable time to appear
 Cant be a mere gesture – must actually notify
 Due Process: only satisfied by service that is reasonable under the circumstances
o To show reasonableness
 Reasonably certain to inform those affected
 Means are not substantially less than likely to bring notice  doesn’t have to be the
best as long as its not substantially less
 Service of Process
o Rule 4  waiver of service

Overview

18
 Pennoyer

"Power" Consent Notice

Carnival
Over Persons Over Things Mullane
Cruise

Shaffer - in
Shoe and
rem Shoe
progeny
standards

E. Self-Imposed Restraints on Jurisdictional Power – Long Arm Statutes, Venue, and Discretionary Refusal
of Jurisdiction
1. Long-Arm Statutes as a Restraint on Jurisdiction
 Self imposed limits on PJ; applies to categories of D we can sue based on activities in the forum state
(choose not to extend PJ as far as constitution would allow them)
o For Long-Arm statutes, 2-step process to determine if PJ exists:
 1) Does the D fall within the long arm statute?
 Yes – continue to constitutional analysis
 No – No PJ
 2) Is asserting jurisdiction on the facts of this case constitutional (fair
play/substantial justice)
o 1-step long arm statute
 State has elected to give itself PJ over nonresidents to full extent allowed by
constitution (CA)  ask whether constitutional first
 Gibbons v. Brown (Fla. Dist. Ct. App. 1998) – Per Curiam
o D injured in car accident in car driven by husband, faulty directions by P
o Following P’s FL suit against Mr. Brown, D files suit in DL against P to recover for injuries
o Court said FL did not have PJ over P simply based on the previous suit
o Rule: previously availing oneself of jurisdiction as a P does not automatically render you
subject to defending later suit in same jurisdiction
o Not within the FL long arm statute  no need to analyze constitutionality of PJ because
we don’t get there
2. Venue as a Further Localizing Principle

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  Venue further localizes  the statute has changed and its easier now because everything is
consolidated
 28 USC 1391. Venue Generally
o Case may be brought in any judicial district in which any D resides, if all residents of state in
which district is located
o A judicial district in which a substantial part of the events or omissions giving rise to the
claim occurred
o If there is no district, any judicial district in which any D is subject to court’s PJ with respect
to such an action
 Dee-K Enterprises, Inc. v. Hevafil Sdn. Bhd. (E.D. Va. 1997) – Ellis
o Case: alleged anti-trust violations Ps = NC and VA; Ds = Malaysia, Indonesia, Thailand, US
o PJ over foreign Ds? Yes
 Rule 4(f)(2)(c)(ii)
 Clayton Act – provides for worldwide service for antitrust actions
 Fair play/substantial justice? Agents in US and market and manufacture for US
consumers
o Venue
 Foreign corps – Anywhere 28 USC 1391(c)(3)
 US Ds  limited venue, need to look at 18 USC 1391(b)
 (b)(1)  there is no venue in which all reside
 (b)(2)  there is no venue where substantial part of events occurred
 So now must analyze (b)(3)  any district in which any D is subject to PJ
o Venue complicates things  we have PJ, but still need to find the correct venue
 28 USC 1404. Change of Venue
o Venue is property but inconvenient
o Can transfer, in the interest of justice, where it might have been brought
 28 USC 1406. Cure or Waiver of Defects
o Venue is improper
o Must transfer in the interest of justice to where it might have been brought
o There is option to dismiss under 1406 but can be transferred because same judicial system
3. Declining Jurisdiction: Transfer and Forum Non Conveniens
a. Forum Non Conveniens – affects both state and federal courts
 Inconvenient forum – process for handling cases that would be better tried in different judicial systems
o Forum selected by P is really inconvenient and in a separate judicial system, then FNC
applies and D can file motion to dismiss
o Case must be dismissed and refilled in appropriate forum

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 o Piper: an unfavorable change of law is only relevant to the FNC inquiry and bars dismissal
only if there would be no remedy at all under the applicable law there
 Piper Aircraft v. Reyno (U.S. 1981) – Marshall
o Plane crash in Scotland. CA state court  removed under 1441(a) to CA district court (venue
automatically proper because removed, SMJ under diversity)  Moved for dismissal on FNC
grounds
 Dismissed by trial court using Gilbert factors  appeals reversed  Supreme Court
reversed, reinstated trial court’s dismissal
o Gilbert Analysis – Balancing test; factors that overcome P’s choice of forum
 Private interests
 Relative ease and access to sources of proof
 Availability of compulsory process for attendance of unwilling witnesses
 Cost of obtaining willing witnesses
 Possibility of view of premises, if view would be appropriate to the action
 All other practical problems that make trial easy, expeditious, and
inexpensive
 Public Interests
 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 must govern the action
 The unfairness of burdening citizens in an unrelated forum with jury duty
b. Transfer – affects federal courts
 1404(a) transfer – for the convenience of parties and witnesses, in the interest of justice
 Transfer to another federal court

Chapter 3 – Subject Matter Jurisdiction

A. The Idea and the Structure of Subject Matter Jurisdiction
 Power over the case/controversy
 SMJ is never waived and court can even raise the issue on its own
 Some kinds of cases federal courts have exclusive jurisdiction over (bankruptcy, patents, copyright)
 Concurrent: some kinds of cases fall within both federal and state SMJ

B. Federal Question Jurisdiction

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 Article III, Section 2: The judicial power shall extend to all cases, in law and equity, arising under
this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their
Authority.
 28 USC 1331: The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.
 Louisville & Nashville Railroad v. Mottley (U.S. 1908) – Moody
o Passengers injured by D’s negligence and released claimes in exchange for transportation for
the rest of their lives  RR later refuted based on act of congress
o The court held that the lower court did not have SMJ because the claim did not arise out of a
federal issue
o This case: Can’t anticipate what the D will raise as a defense and claim it falls under federal
 no federal question  no SMJ
o Holmes Creation Test: “suit arises under the law that creates the cause of action”
 Does the federal law create the cause of action?
o Well Pleaded Complaint Rule:
 A suit arises under the Constitution and Laws only when P’s statement of his
own COA show that it is based upon those laws
 Rationale: claims in federal court really do have federal element, SMJ decisions
made early in litigation (judicial economy)
 Federal question presented in counterclaim also insufficient
 Any defense raised by the D, or that the P speculated will be raised by the D,
involving federal question is not sufficient to sustain federal question
jurisdiction
o Pros: limit number of cases in federal court, state sovereignty issue, if no rule then would
need to look at merits/anticipate defenses/goes against judicial economy
o Cons: state courts deciding on federal issues
o Master of Complaint Rule: Well pleaded complaint rule makes P the maser of the complaint
and may avoid federal jurisdiction by reliance on state law
o Arising under
 This phrase has different meanings
 1331 is not as broad as Article III of constitution
 Smith v. Kansas (U.S. 1921)
o State law claim that implicates federal law  federalized the claim
o There are some claims we don’t think should get into federal court, but they do because they
are federalized
o Smith: bonds issues by federal agency  bonds unconstitutional  “arising under”

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 o Mottley: basic claim was for breach of K and you could plead it that way without mentioning
federal law
 Declaratory Judgment Act: 28 USC 2201-2202
o Federal court can hear cases in which potential D seeks not a coercive remedy but a
declaration of rights
o Does not expand SMJ of federal court because they aren’t getting a claim they wouldn’t be
able to hear normally
 Challenge to federal SMJ
o 12(b)(1) of 12(b)(6)
 Capron v. Van Noorden
o Federal Subject Matter Jurisdiction cannot be waived

C. Diversity Jurisdiction
 28 USC 1332  rationale for diversity jurisdiction
o Prevent bias from one state toward a citizen of another state
o Some cases are national cases
o Historical reasons not as important today  but 2005 talked about “neutral forum” so still
apply
 Hawkins v. Masters Farms, Inc. (D. Kan. 2003) – Bebber
o Tractor driven by D hit P’s car  alleged diversity under 1332  D makes 12(b)(1) motion
for lack of SMJ
o P has burden of proof  they don’t meet it  no diversity  case dismissed
o Accident in KS, D from KS, P living in KS but tried to say he was from MS  didn’t work,
couldn’t show the proof
o Executor of estate takes citizenship of decedent  domiciled in KS  no diversity
 Redner v. Sanders (S.D.N.Y. 2000) – Griesa
o P resident of France, US citizen, suing NY corp.
o Mere residence in France didn’t give citizenship (didn’t satisfy 1332(a)(2)  parties not
diverse
o Dual citizenship is still messy and permanent Resident aliens have special rules
 Complete Diversity Requirement
o Requirement of complete diversity; but Congress can pass legislation that provides for
minimal diversity in some situations
o Domicile
 Individuals: residency + intent to remain
 Insurance: PPOB, Place of incorporation, Place of citizenship of the insured

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  Corps: Incorporation AND PPOB (nerve center test)
 Alien (nonresident)
o Time of filing: diversity is determined at the time of filing (but jurisdiction may be exercised
if a non-diverse party is subsequently dismissed)
 Amount in Controversy Requirement
o Has to exceed $75K absent interest and costs
o 1338: unless it appears to a legal certainty that the claim is less than the amount required no
dismissal
o Punitive damages: if it is clear beyond a legal certainty that P could not recover the amount
proffered, then no diversity jurisdiction based on summing speculative punitive damages
 Salami – dismissed because Punitive damages far exceeded claim for damages
o Aggregated Claims
 A single P with two or more unrelated claims against a single D may aggregate
claims to satisfy the statutory amount
 Two Ps each have claims against a single D, they cant aggregate if their claims re
regarded as “separate and distinct”
 Need a “Common Undivided Interest”  hard to satisfy
 Class actions: each P’s claim must individually meed amount requirement
 CAFA: can aggregate claims that total more than $5mm and any class
member is diverse from any defendant (minimum diversity)
o Counterclaims
 Compulsory and permissive counterclaims treated differently
 Compulsory
 Can get in even if you don’t meet requirement (example of supplemental
jurisdiction)
 Permissive
 Must have an independent jurisdictional basis  so need the amount
requirement to be met
o Either-or test
 In injunction cases, can measure the value of the relief to the P or the cost such relief
would impose on the D
 Alienage provisions in 1332
o Just cant have foreign v. foreign
o Must have US citizen on both sides
o Stateless persons: not qualified for federal diversity jurisdiction
 Non-US citizens who aren’t citizens of any foreign state

24
  Citizens of a foreign nation domiciled in the US (but not resident)
 US citizen domiciled abroad
 American Indian Tribes (expecting land claims)
 Hertz Corp. v. Friend (U.S. 2010) – Breyer
o How do we determine corporate citizenship?
 Incorporated
 Principle Place of Business
o The PPOB is determined by the “nerve center”  where the board is, etc.
o Rationale for “nerve center” test
 Technology today its easier
 Easier to determine where case will be litigated early
 More difficult to remove to federal court
 Partnerships
o Grupo Dataflux v. Atlas Global Group (U.S. 2004)
 Partnerships are a citizen of every state in which a partner is domiciled
 Time of filing, Atlas had TX and Mexican partners  Grupo lost  filed for
dismissal because on SMJ  dismissed
 Compare to Caterpillar later

D. Supplemental Jurisdiction
 Gibbs test:
o If two claims have a common nucleus of operative facts  SUPPJ valid
o Must be one constitutional case
o Justifications?
 Judicial economy
 Convenience
 Fairness to litigants – risk of inconsistent judgments
 28 USC 1367
o (a) gives supplemental jurisdiction if another claim has original jurisdiction
 Court must have original jurisdiction over any claim that goes forth
 Court will have SUPPJ over all other claims so related to claims within original
jurisdiction that they form part of the same case or controversy under Article III
 Pendant Party Jurisdiction (joinder or intervention) is authorized; includes claims
involving joinder or intervention of additional parties
o (b) Takes it away where there is diversity jurisdiction

25
  Where the district courts have original jurisdiction based on diversity jurisdiction,
there will be on SUPPJ over
 P v. D14
 P v. D19
 P v. D20
 P v. D24
 P19 v. D
 P24 v. D
o (c) district courts required to exercise SUPPJ but can decline IF:
 The claim raises a novel issue of state law
 The state claim substantially predominates over the claim over which there is
original federal jurisdiction
 The district court has dismissed all claims over which it has original jurisdiction OR
 In exceptional circumstances, there are other compelling reason for declining
jurisdiction
o (d) Tolling period
 Claims filed under A, being dismissed under C, that party now has 31 days to refile
in state court because tolls when state is pending and for 30 days after it is dismissed
(unless state provideds for longer)
 In re Ameriquest Mortgage Co. Mortgage Lending Practice Litigation (N.D. Ill 2007) – Aspen
o P sues D under TILA and state claim flows out of the transaction (here, conspiracy and fraud)
o The state claim falls within the SUPPJ of the federal courts; facts are common and operative
to both claims and they “tell one store”
o (c) could choose not to exercise, but don’t here because doesn’t satisfy (c) requirements
 Szendry-Ramos v. First Bancorp (D.P.R. 2007) – Casellas
o P is whistle blower on bank she works for  Federal Claim
o The court says no SUPPJ here  they satisfy part (a); but choose not to exercise because:
 Complex, novel issue that are related to state
o The federal claims go forward, but dismiss state claims without prejudice and must re-file
state claims
o Unresolved issue of PR law and federal court is better off remanding to state court
 Interlocutory
o 28 USC 1292 – Interlocutory decisions
o 28 USC 1291 – Final decisions of district courts
o Interlocutory appeals aren’t usually allowed

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E. Removal
 Removal Generally
o 28 USC 1441 governs removal jurisdiction
o A D in state court can have case removed to federal court in same geographic are of the state
court if the case could have been in federal court originally
o Still need SMJ over the P’s original claim (doesn’t matter what D’s counterclaim/defense is)
 Claims that qualify for diversity, federal question, or SUPPJ may be removed to federal court with
some restrictions:
o Only D’s may remove (asking for removal does not concede PJ)
o D from the same state as the court hearing the case may not remove actions to federal court
unless jurisdiction would be founded on a claim that arises under federal law
o All Ds must agree to removal, or no removal is possible
o Removal is only possible if Ds comply with the time limits in 1446
 Federal question
 D has 30 days to file for removal once P has filed complaint OR
 30 days from the time it becomes removable (if not originally so)
 Diversity
 One year limit on removal for diversity cases
o Remand
 P has 30 days to seek remand once D has filed for removal
 If remand granted
 D cant appeal
 If remand denied
 P can appeal but only after final judgment
 Rule 1441. Removal of Civil Actions
o (a) Generally
 Venue statute for removal
 A case can be removed to the federal court embracing the district in which the action
is pending
 To be removable the federal court must have original jurisdiction over the claim
consistent with the requirements of the well-pleaded complaint and the artful
pleading doctrine
o (b) Removal based on Diversity
 Forum state D rule: instate Ds cannot remove to federal court even where there is
complete diversity of citizenship; in state D can only remove when original SMJ
would be based on federal question

27
 Rule 1446. Procedure for Removal of Civil Actions
o (a) Generally
 D must file notice of removal with the district court in which the action is pending
 State why it should be in federal court
 Attack all papers up to that point in proceeding
 This does not waive right to object PJ
o (b) Requirements
 D has 30 days after receipt of complaint to remove
 If more than a year passes in diversity claim, cant be removed
 Court may find equitable exception to extend deadline
o (d) Notice to Adverse parties and state court
 D must give notice to all adverse parties of the motion to remove
 D can waive his right to removal by proceeding in state court
 Waiver must be clear and indicate specific positive intent to proceed in state
court
 Rule 1447. Procedure after Removal Generally
o (c)
 Ps can contest removal by moving to remand
 P has 30 days after notice of removal to seek remand or he waives right
 P can recover costs of removal if remanded
o (d)
 If remand granted – D cant appeal
 If remand denied – P can appeal, but only upon final judgment
 Rule 1442: Federal officers of agencies sued or prosecuted
o Officers can remove criminal or civil cases even if P couldn’t have done so in the first place
o Removal not subject to Well-Pleaded complaint rule
o Ds can unilaterally remove
 Caterpillar, Inc. v. Lewis (U.S. 1996) – Ginsburg
o P (KY) sues IL and KY  KY v. KY settles  now Caterpillar (IL) wants to remove for
diversity
o Court allows removal and says SMJ of federal court is ok  even though it wouldn’t have
been had they waited
 Alls well that ends well?
 At trial we have diversity (Lewis v. Caterpillar)
o Ginsburg: agrees that removal was initially improper, but alls well that ends well
 Justification?

28
  Judicial economy
 If this had happened a few days later, wouldn’t have been removable so the
D did it pre-maturely and just hoped it would work out  Ginsburg doesn’t
buy the argument because most courts will get it right the first time
L&M RR Capron Grupodataflux Caterpillar
No SMJ No SMJ No SMJ Yes SMJ
Throw it all out after full P loses then on an appeal Full trial Had full trial
trial says there was never No SMJ at the time of
diversity and court throws filing
it out
o Why is Caterpillar different?
 None of the other cases could have been in federal court unless there was diversity
 In Grupo, the change of parties doesn’t effect SMJ (because diversity based on
citizenship of parties at the time of filing), in Caterpillar the change of the party does
effect SMJ
 Grupo: no SMJ when case commenced and one party changed citizenship
 Caterpillar: jurisdictionally destroying party dropped  cured defect

Chapter 12 – Joinder
GENERAL: RULES ARE LIBERAL, BUT DO JURISDICTIONAL REQUIREMENTS PREVENT YOU
FROM JOINING CLAIMS OR PARTIES?
 Rule 13. Counterclaims and Crossclaims
 Rule 14. Third-party practice
 Rule 18. Joinder of claims
 Rule 19. Required joinder of parties
 Rule 20. Permissive joinder of parties
 Rule 22. Interpleader
 Rule 24. Intervention

A. Joinder of Claims – RULE 18

1. Joinder of Claims by Plaintiff – RULE 18
 a. Historical Background
o Common law: P could only join claims using the same writ but could do so regardless of
whether the claims were factually related
 b. The Federal Rules
o Rule 18: Joinder of Claims

29
  (a) A party asserting a claim, counterclaim, crossclaim, or third-party claim may
join, as independent or alternative claims, as many claims as it has against an
opposing party
 A court may decide claims joined under 18(a) only if the joined claim
independently satisfy the SMJ and Venue requirements
 Discretionary – a party failing to join such claims is free to raise them
in a subsequent action
 Closely related claims, however, might have to be raised concurrently
at the risk of being barred under the doctrine of claim preclusion in
any further actions
o Rule 42(b): judge may sever claims for trial convenience
o Rule 18 applies only when the party already has one claim that he has brought against the
other party according to some other rule.
o No compulsory joinder of claims under Rules
 But, if P fails to join claim and later court finds it related to one adjudicated, it may
be barred
 P will want to join all claims  powerful incentive to join claims
 Jurisdiction presents an obstacle
 c. Joinder and Jurisdiction
o Federal court still needs SMJ over the claims  only if Constitution and a statute grant SMJ
 If federal law, Article III and 28 USC 1331 (Federal Question)
o But if trying to join a stat claim, must fall with in SUPPJ
o 28 USC 1367 – Supplemental Jurisdiction
 Still very important here (Common nucleus of operative facts)
o 1367 Grants SUPPJ depends on 3 variables
 Basis of original jurisdiction over the case
 Identity of the party – P or D
 Rule authorizing the joinder of the party or claim over whom SUPPJ is sought
 Rush v. City of Maple Heights (OH 1958)
o Case about former adjudication  claim preclusion (res judicata) and issue preclusion
(collateral estoppel_  both come into play here
o Separate action for motorcycle damage and personal injures  should we continue to allow
splitting up COAs like this? Shouldn’t she be required to litigate them together
 Suit 1 property damage  court found city negligent
 Suit 2 personal injuries  court said the claim was precluded and should have raised
it in the first suit

30
 o Majority view: single tort can be the basis of one action
o Most jurisdictions don’t allow splitting of COAs
2. Claims by the Defendant: Counterclaim – RULE 13
 Rule 13. Counterclaim and Crossclaim
o (a) Compulsory Counterclaim
 (1) In General. A pleading must state as a counterclaim any claim that – at the time
of its service – the pleader has against an opposing party if the claim:
 (A) arises out of the transaction or occurrence that is the subject matter
of the opposing party’s claim; and
 (B) does not require adding another party over whom the court cannot
acquire jurisdiction
 (2) Exceptions. The pleader need not state the claim if:
 (A) when the action was commenced, the claim was the subject of another
pending action; or
 (B) the opposing party sued on its claim by attachment or other process that
did not establish PJ over the pleader on the claim, and the pleader does not
assert any counterclaim under this rule
o (b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing
party any claim that is not compulsory
o (g) Crossclaim against a coparty. A Pleading may state as a crossclaim any claim by one
party against a coparty if the claim arises out of the same transaction of occurrence that is the
subject matter of the original action or of a counterclaim, or if the claim relates to any
property that is the subject matter of the original action. The crossclaim may include a claim
that a coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the
action against the crossclaimant.
 Counterclaims
o Compulsory counterclaims
 Arise out of the SAME TRANSACTION OR OCCURENCE that is the subject
matter of the opposing party’s claims
 Must be asserted or the party waives right to assert that claim against the opposing
party in future and is barred from asserting it in a subsequent action
 TEST FOR SAME TRANSACTION OR OCCURRENCE:
 Logical relationship test: do they derive from the same underlying set of
facts, even if the subset of facts relevant to the claim differs? (majority)
 Exists where the claims are offshoots of the same basic
controversy between the parties or otherwise related in such a way

31
 that separate trials on each of the claims would involve a
substantial duplication of effort and time by parties and the courts
or the presentation of similar bodies of evidence
 Policy for the standard: judicial economy, minimizing burden on
litigants, avoiding unnecessary imposition on testifying witnesses
 Same evidence test (minority test)
o Permissive counterclaims
 Don’t arise out of the same transaction or occurrence  may be raised but need not
be
o BOTH must independently satisfy jurisdictional and venue requirements
 Compulsory arise out of same transaction  so generally will be WILL be SUPPJ if
they lack independent basis for federal jurisdiction
 Permissive are less likely to qualify for SUPPJ, although it is possible for claims not
arising out of the same transaction to satisfy the common nucleus of operative fact
standard for SUPPJ
o Plant v. Blazer Financial Services (5th Cir. 1979)
 TILA claim  federal question jurisdiction (both GA citizens)
 P claims D didn’t disclose required information, but P didn’t make any payments on
the loan  D counterclaims for unpaid balance on note
 Was this a compulsory or permissive counterclaim  matters because:
 Permissive: needs an independent jurisdictional basis
 In this case, doesn’t arise under and lacks federal question, not
diverse
 Compulsory: claim only needs to be related
 If the court decides this is a compulsory claim, the P will end up owing the D money
at the end of the suit
 Applying the logical relation test  court said this is CUMPOLSORY and must be
asserted or lost  focused on efficiency of process, want to provide D who has been
involuntary brought into court a level playing field, overlapping evidence
 BUT SPLIT IN LAW: some jurisdictions treat TILA counterclaims as
permissive…why?
 There will be counterclaims in all these cases  flood of litigation
 Allowing counterclaims would destroy TILA class actions, defeats
congressional purpose of TILA
o NO BRIGHT LINE RULE FOR COMPULSORY V. PERMISSIVE  CASE-BY-CASE

32
 o Penalty for not asserting compulsory counterclaim (you lose it), but no penalty for asserting a
claim later found not to be compulsory  so Ds assert them
 Crossclaims
o Claim brought by one co-party against another co-party  must arise out of the same
transaction of occurrence that is the subject matter of the original action or of a counterclaim
that has been asserted
o May assert contingent or derivative claims for liability on claim against crossclaimant
o Generally, there will be SUPPJ because transactionally related to claims
o BUT  these are permissive, not compulsory; can fail to assert without fear of losing claim
o Once a coparty asserts a crossclaim against a co-party  adversarial relationship  the party
against whom the crrossclaim is asserted must assert all transactionally related claim available
as compulsory counterclaims under Rule 13(a) or they will be waived
 X crossclaims against Y  Y must assert any compulsory counterclaims against X
arising out of the same transaction or occurrence
o Ex: P in car accident in D1’s car  sues D1 and D2…possible counterclaim?
 D2 could make a claim against D2 and D2 could make a claim against D1
 SUPPJ  same set of operative facts, rule doesn’t allow for unrelated crossclaims so
it will fall within SUPPJ
D1
Claim (8, 18)
crossclaim (D2  D1)
P D2 (D2 joinder: Rule 20)
Counterclaim: D2  P 13(a)(b)

B. Joinder of Parties
1. By Plaintiffs RULE 20
 Larson v. American Family Mutual Ins. Co.
o P brought case in CO state court  D (insurance co. )removed to federal court (diversity)
o Lawyer unethical  didn’t file suit in timely manner because trying to represent D
o Now P wants to add Lawyer to suit against D
 But would destroy diversity
o Rule 20. Permissive Joinder of Parties
 “any right of relief…arising out of the same transaction, occurrence, or series of
transactions or occurrences”
o D objected based on:
 Motion not timely

33
  Court rejected this argument…P didn’t have sufficient information to
support claim until after discovery
 Civil conspiracy claim not allowed under Rule 20(a)
 D’s denial of P’s claim was at least due, in part, to the fact that the law firm
was engaged in discussion with the insurer
o Court permitted joinder and remanded to state court because joinder destroyed diversity
 Rule 20. Permissive Joinder of Parties
o (a) Persons who may join or be joined
 (1) Plaintiffs. Persons may join in one action as a plaintiffs if:
 (A) they assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and
 (B) any question of law or fact common to all Ps will arise in the action
 (2) Defendants. Persons-as well as a vessel, cargo, or other property subject to
admiralty process in rem-may be joined in one action as Ds if:
 (A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to arising out of the same transaction, occurrence or
series of transactions or occurrences; and
 (b) any question of law or fact common to all Ds will arise in the action
 Same transaction or occurrence? Determined by logical relationship test, and must also share at least
one common question of fact or common legal question
 PJ, SMJ, and venue all have to be satisfied with respect to parties and claims against them
 Mosley v. General Motors Corp. (8th Cir, 1974)
o 10 Ps sue employer, alleging that they had been the victims of race and sex discrimination.
Court allowed the 10 to join. Even though Ps were subject to individualized acts of
discrimination, the court relied on the fact that the Ps had alleged a “general policy of
discrimination” within the company. All claim arose from same general policy.
o Rule 13(h): allows a party who files a valid counterclaim or cross-claim to add additional
parties to the claim under the conditions of Rule 20. If the counter/cross-claim was a separate
suit, could the claimant add the additional party as a co-D? If so they can be joined
o Court says they can proceed jointly  read (A) liberally
 Generous definition of same transaction or occurrence
o But has the court jumped into the merits of the case here by saying that these claims arose
from the same general policy of discrimination?  The only way the P can win is to prove a
patter of discrimination, but the court has implied this by allowing them to proceed jointly
 GENERALLLY  expansive reading of Rule 20

34
  Joinder is a 3 player game:
o P  choice with Rule 20(a)(1)
o D  can challenge joinder of parties under Rule 21
 Rule 21: Misjoinder and Nonjoinder of parties
 Misjoinder of parties is not a ground for dismissing an action. On motion of
on its own, the court may at any time, on just terms, add or drop a party.
The court may also sever any claim against a party.
o Judge  Rules on challenges under Rule 20, power to consolidate and sever claims under
Rule 42
2. By Defendants: Third-Party Claims (Impleader) RULE 14
 Rule 14(a)  a defending party can assert a claim against a non-party (“third party”) claiming that the
third party is liable to the defending party (now the “third party plaintiff”) for all or part of the claim
being asserted against the defending party
o Cant be for “its not me, its him”
o A  B, B feels C should be liable to B if B is liable to A = A  B  C
o There are many possibilities here (DRAW DIAGRAM ON PAGE)
 Such claims against third parties can only be for reimbursement for all or part of any amount a
defending party would owe to its opponent if the opponent prevails (so cant implead for a related
claim, even if same transaction or occurence)
 Once a third-party claim is properly asserted, the third-party P may join additional claims against the
third-party defendant under Rule 18(a)
o In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join,
as independent or alternative claims, as many claims as it has against the opposing party
 These are permissive
 Court must have PJ against the third-party to join, SMJ must exist over the claims against third-party
o SUPPJ statute provides that claims involving joinder of additional parties are included
o Generally will qualify,
o BUT…state-law claims by Ps in diversity actions against non-diverse third-party Ds will
not qualify for SUPPJ under the terms of 1367
 Ex; GA(P)  IL(D1)  GA(D2)…in court based on diversity this is prohibited
by 1367(b) (Kroger)
o Venue doesn’t appear to be a problem assuming it is properly established in the original
action
 Defending party may assert claims against third parties without permission of the court within 14 days
 Third-party Ds can also assert claims:
o Counterclaims against party impleading them (third party P)

35
 o Crossclaims against other third-party Ds
o Claim against P arising out of the same transaction or occurrence giving rise to P’s claim
 P can bring a claim against third party D (arising out of the same transaction of occurrence as P’s claim
against the defendant/third-party P), become opposing parties under Rule 13  third-party D would
have to bring any compulsory counterclaims it had against that P or they would be waived
 Price v. CTB, Inc. (M.D. Ala. 2001)
o Underlying suit  Price suing Latco (builder) and CTB (supplier of the equipment)  Latco
joins the producer of the nails (ITW)
o Lacto has 40 similar suits against it
o Indemnification  implied indemnification by the manufacturer
o There is a basis to implead ITW  could make a claim against Latco if the haven’t paid for
the nails yet, Price could assert claim against ITW
3. More Complex Litigation
 Kroger v. Omaha Public Power District
o Suit based on diversity in federal court for wrongful death by electrocution  sued employer
o Most states, compensations laws bar tort actions against employers
o OPPD didn’t actually own the power lines, but still impleaded Owen
 14(a)  Doesn’t matter Owen’s citizenship because D is in defensive posture and
claim is transactionally related
o 14(a)(3) allows Kroger to make a claim against Ownen, OPPD wins summary judgment 
only Owen left in the suit
 Owen Equipment & Erection Co. v. Kroger
o Owne’s answer  very ambiguous, if they are from Iowa there is no diversity anymore 
then SOL expires
o SUPPJ  satisfied, same case or controversy, common nucleus of operative facts
o BUT  the fact that diversity is now destroyed makes the court throw it out  couldn’t have
this suit originally, so we’re not going to let them do it indirectly
 SMJ cant be this easily defeated
o Why will lack of diversity in Kroger v. Owen get the case thrown out but lack of diversity
when OPPD impleads Owen wont?
 OPPD was in a defensive posture…Kroger was not
o What about judicial economy, convenience to the parties, finality, judicial economy…
 Distinguish from Caterpillar
 Elimination of a part is different from changing characteristics of parties  non-
diverse party eventually is out of Caterpillar (alls well that ends well)
 Impact of Kroger in SUPPJ

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 o No SUPPJ over claims by P against persons made parties under Rule 14, 19, 20, or 24
 Kroger – parties under Rule 14 and we now lack diversity
4. Compulsory Joinder – RULE 19
 Rule 19. Required Joinder of Parties
o (a) Persons required to be joined if feasible
 Certain parties must be joined if feasible in order for the court to be able to render a
just resolution of the action
 “Necessary parties” are those who fit into three categories:
 In person’s absence, complete relief cannot be accorded among the existing
parties
 Person claims an interest relating to the subject of the action and disposition
of the action in the person’s absence may impair of impede that person’s
ability to protect that interest
 Person claims an interest relating to the subject of the action and disposition
of the action in the person’s absence would leave existing parties subject to
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations
o (b) When joinder is not feasible
 If you are a necessary party under 19(a)  joinder is mandatory and parties who refuse to join the
action will be declared to be a party and the results of the action will be binding against them
 If joinder of necessary party is not feasible?
o Joinder wont be feasible if:
 Court cannot obtain PJ over the party
 No SMJ over the claims asserted (typically because joinder would destroy diversity)
 Court lacks venue over the claims pertaining to the party to be joined
o If the court determines that the party is indispensible and cannot be joined  must dismiss the
case
o Whether a party is indispensible depends on how court evaluates factors in 19(b)
 The extent to which a judgment rendered in the person’s absense might be
prejudicial to the person or those already parties
 The extent to which, by protection provisions in the judgment the prejudice can be
lessened or avoided
 Whether a judgment rendered in the person’s absence will be adequate
 Whether the P will have an adequate remedy if the action is dismissed for non-
joinder
 Temple v. Synthes Corp. (U.S. 1990)

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 o P (MS), gets surgery at hospital, from doctor based in PA  P suing Synthes in state court in
LA  D says that the doctor and the hospital are required parties
o Supreme court says they are not required parties because (even though it would be feasible to
join them all):
 P doesn’t have to sue all tortfeasors if they don’t want to
 Policy to go the other way  judicial economy, conflicting results, could be both
negligent in product defect and negligence of the doctor
o RULE  P is the master of the claim and his authority takes precedent over judicial
economy, etc.
 But this is an exceptional case because most would bring them all in to make them
point the finger at each other  do some of the P’s work for them
 Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center (8th Cir. 1977)
o P had a K with D that said they wouldn’t put any more than 3 full line jewelry stores in
shopping center  Lords want to operate as full line store, even though their lease says they
cant
o Court says Lords is an necessary party under 19(a), but court goes forward with the analysis
in 19(b) and decides the case can still go forward without them
 Not feasible because lack of PJ
 The only way the court had PJ over Valley West was with long arm statute
 Lord’s K entirely separate from original lease
o But this could lead to inconsistent results  the court might have gotten it wrong here

C. Intervention – RULE 24
 Involves a non-party intervening in an action and making themselves a party
 Rule 24. Intervention
o (a) Intervention of right
 Non-party has a right to intervene in an action when (1) it claims an interest in the
subject of the action, (2) the non-party is so situated that disposition of the action
would impair its ability to protect its interest, and (3) the non-party’s interest is not
adequately represented by existing parties in the action
 Must be “timely” application to intervene  no fixed time limit
o (b) Permissive intervention
 Intervention may be permitted when the absentee’s claim or defense shares a
question of law or fact with the main action
 Want to promote judicial economy

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  But this doesn’t ensure that the court will have the ability to hear the claim (need SMJ and venue) 
SUPPJ not available in diversity-only actions for state-law claims
 BOTH forms are permissive in the sense that the intervener has the discretion to decide whether to
intervene
 Natural Resources Defense Council v. US Nuclear Regulatory Commission (10th Cir. 1978)
o Before license uranium mills, need to get a license
o In federal court (federal law)  United Nuclear is allowed in (already have a license)
o KM, Anaconda, Gulf, Phillip, and AMC want in  KM and AMC are the only ones left
trying to get in
o The court allows them in because interests not adequately represented by UN (who already
has a license)
 Martin v. Wilks (U.S. 1989)
o Suit brought by black firefighters against city  Consent decree  put out for public
comment and a number of groups come in to attack the consent decree at the fairness hearing
o Wilks (group of white firefighters) come in and sue to get consent decree set aside
o Supreme court says it was the burden of those already litigants in the first suit to bring them in
under Rule 19 and we’re not going to put the burden on those that aren’t parties to move to
intervene in the first suit
D. Interpleader
 Deals with the situations where a party faces multiple, inconsistent claims  allows the party who
owes the obligation to bring an action against all the claimants and let the claimants fight it out
amongst themselves
 Typically used by a party who is liable to someone but is not completely sure whom
 The stake is the thing that is being claimed by two or more people
 The stakeholder is the person who is in possession of the stake
 The claimants are the parties who seek to obtain the property or performance of the obligation
 Two types of interpleader:
o Rules interpleader Rule 22
 Allows a stakeholder to commence an interpleader action in a federal court
 The federal court must have a basis for jurisdiction over every separate claim by the
stakeholder against each claimant
 There must be PJ over all claimants  quasi-in-rem jurisdiction not allowed
 For venue, it is proper either where all Ds reside or where a substantial portion of the
events or omissions giving rise to the claim occurred

39
  If the stakeholder brings interpleader as an original action, the claimants
are the Ds. If the stakeholder brings the interpleader by counterclaim, the
stakeholder is the D
o Statutory interpleader 28 USC 1335
 Separate and distinct from rule interpleader
 SMJ
 Requires only minimal diversity among the claimants and amount in
controversy of only $500
 Minimal diversity
o When one of the claimants is diverse from any other
claimant
 Some courts hold that statutory interpleader is not available when the sole basis for
SMJ is a federal question. The parties must satisfy the minimum diversity
requirement of 28 USC 1335 before they can use the special PJ and venue provisions
in the statutory interpleader
 PJ
 28 USC 2361 allows the court to serve process anywhere in the
US…Therefore as long as the claimants reside or can be found anywhere in
the country, the federal court can exercise PJ over them
 Venue
 28 USC 1367 says venue is proper in any judicial district where one or
more of the claimants reside. Unlike rule interpleader, the statute does not
look to where a substantial portion of the events or omissions occured
 The stakeholder may initiate an interpleader action by naming the claimants as Ds in an original action,
or if the stakeholder has been sued, the action may be initiated by a counterclaim or cross-claim
 Interpleader is not available merely because a party is faced with multiple claims, the claims must be
inconsistent, leaving the stakeholder exposed to double of multiple liability
Issue Statutory interpleader Rule interpleader
SMJ – Diversity Minimal diversity (determined Complete diversity (determined
between claimants) between stakeholder and
claimants)
Amount $500 $75,000+
PJ Nationwide service of process Must meet ordinary jurisdiction
rules; contacts with claimants
required; service under Rule 4

40
 Venue Residence of one or more Ordinary venue rules under 28
claimants USC 1391
Injunctions (typically to freeze Specifically provided for No specific basis; courts have
assts or require their delivery to interpleader cases in 28 USC used 28 USC 2361 (“where
a claimant) 2361 necessary in aid
of…jurisdiction)
 Paragon Molding, Ltd. V. Safeco Insurance Company (S.D. OH 2010)
o Fire at Paragon and sued AEIC for withholding fire insurance money  many other parties
intervened in the suit, alleging various claims, cross-claims, and counterclaims with regard to
the insurances proceeds
o Court need to give more information to the court about the grounds for jurisdiction, etc.
o But all these parties will not be able to fight it out amongst themselves

Chapter 5 – State Law in Federal Courts: Erie and Its Entailments

A. State Courts as Lawmakers in a Federal System
1. The Issue in Historical Context
 What law applies to cases in federal court?
 Rules of Decision Act: The law of the several states, except where the Constitution or treaties of the
US or Acts of Congress otherwise require or provide, shall be regarded as the rules of decision, in
cases where they apply
 Swift v. Tyson (U.S. 1841) – Story
o Problem is with a vertical choice of law…does the federal court have to apply NY state law or
can it disregard NY case law and apply general common law? This would make the decision
completely different between federal and state court
o Interpreted RDA to require federal courts to apply the statutory law of states, but not state
court decisions law
o Result:
 Forum shopping
 Disparate bodies of law between federal courts and state courts where they were
located
 What was viewed as “federal common law” expanded greatly
 Story was hoping that we’d get uniformity in the law  but didn’t happen
2. Constitutionalizing the Issue
 Erie Railroad v. Tompkins (U.S. 1938) – Brandeis
o Overruled Swift  held that the RDA required application of written and unwritten
substantive law of the states in diversity cases

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 o The power to develop substantive common law was a privilege not to be delegated to
Congress  exclusive province of the states (no federal common law)
o Limited the power of the federal government to develop and enforce procedural law
applicable in federal courts
 HOWEVER…the difference between substantive and procedural law is not always so easy to identify
 Important considerations in Erie cases:
o Outcome Determination
o Forum Shopping
o Unequal Administration of the Law (litigant inequality)
o State Interests (Byrd)
o Federal Interests (Byrd)
 Klaxon Co. v. Stentor Elec. (U.S. 1941)
o Applied Erie principles to conflicts rules: Under Erie a federal court sitting in diversity must
apply the conflicts principles from the forum state  “horizontal” choice of law rules
B. The Limits of State Power in Federal Court
1. Interpreting the Constitutional Command of Erie
 Guaranty Trust Co. v. York (U.S. 1945) – Frankfurter
o Court must determine whether a state statute of limitations period prevented a federal court
sitting in equity from hearing the diversity case  rejected substantive v. procedural test from
Erie
o New Test: “Outcome Determinative”
 Whether disregarding the sate law that would be controlling in an action on the
same claim in a federal court would significantly affect the result of the
litigation in federal court
o The outcome in a federal court should not differ substantially from what the outcome would
be were the case tried in state court
 Ragan v. Merchants Transfer (U.S. 1949)
o When does lawsuit begin, of SOL purposes, when filed (RULE 3) or when served (KS
practice)
o STATE law followed
o “We cannot give the claim longer life in the federal court than it would have had in the state
court consistent with Erie”
o QUESTIONED BY HANNA
 The viability of Ragan was uncertain because Hanna indicated that Erie doctrine was
inapplicable where there was a valid and controlling Federal Rule involved and that
in such a case the Federal Rule must be followed

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  HOWEVER this is still good law
 Cohen v. Beneficial Indus. Loan Corp. (U.S. 1949)
o NJ Statute required small shareholder suing a corporation to post bond for expenses; Rule
23.1 did not so require
o STATE law followed
o “This statute is not merely a regulation of procedure. With it or without it the main action
takes the same course. However, it creates a new liability for litigation expenses where none
existed before
 Woods v. Interstate Realty Co. (U.S. 1949)
o MS statute barred out-of-state corporations not paying MS taxes from suing in state courts;
should federal diversity court do so?
o STATE law followed (without discussing Rule 17(b), which suggests that the governing law
should be that of the state of company’s incorporation)
o “Where in such cases one is barred from recovery in the state court, he should likewise be
barred in the federal court”
 Bernhards v. Polygraphic Co. (U.S. 1956)
o VT barred arbitration of employment practices; federal statute arguable required arbitration
o STATE law followed
o “the outcome of litigation might depend on where the suit is brought…substantially affects
the COA created by the state”
 Considerations
Outcome Determinative Forum Shopping Litigant Equality
Ragan Yes - Filing does make Yes – want to be in Yes – not equal
a difference in outcome state court because if they wait too
long to file they cant be
sued
Cohen Yes - If they cant post Yes - P would rather Yes – D, if I’m in state
the bond, cant go be in the court where court I get this
forward in state court you don’t have to post protection, but in
bond federal court I don’t
Woods Yes – if you cant be Yes – definitely Yes
sued cant have an
outcome
Bernhards Maybe Yes – definitely Yes
 Byrd v. Blue Ridge Rural Electric Cooperative (U.S. 1958)

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 o After Guaranty Trust “outcome determination” test, every rule of law could feasibly be
described as outcome determinative
o This case, question of whether a judge (the state rule) or jury (the federal rule) would decide
certain factual issues
o Revised the standard:
 Balancing approach
 The outcome determination test must be evaluated with reference to the importance
of the state rule to state substantive policies and the countervailing federal interests
embodied in the federal practice
o Followed FEDERAL law here  no evidence that state practice was central to state’s worker
compensation regime (important to maintain the balance of judge/jury in federal courts)
o Since the state law neither determines the outcome nor is bound up with substantial rights and
obligations, the federal courts are free to accept or reject the state practice
2. De-constitutionalizing Erie
 Hanna v. Plumer (U.S. 1965)
o Case involved the applicability of Federal Rule in the face of a contrary state practice
o State rule required personal in-hand service, and federal rule allowed service of someone at
domicile
o Here, the decision not to apply state law was clearly outcome determinative  but Court
indicated that Erie line of cases was not applicable to the situation where there is a valid and
applicable Federal Rule of Civil Procedure on point
o As long as FRCP is valid under the Rules Enabling Act and the Constitution, and
directly applicable to the issue at hand, the federal court is bound by it
o Key Question: whether the application of federal law would undermine the “twin aims” of
Erie:
 Discouragement of forum shopping
 Avoidance of inequitable administration of the laws
o Forum shopping:
 To be addressed from perspective of litigants  court must ask whether the
application of a federal practice would affect the choice of a state v. a federal forum
at the outset of litigation
 Test for Choice of law
o If there is a Federal Rule or statute ON POINT and it is valid and constitutional it will
control (Hanna)
o If there is not a rule on point  go to typical unguided Erie choice
 Substantive v. Procedural?

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  State practice prevails when substantive
 If no clear answer…determine whether the “twin aims” of Erie is undermined:
 Would application of the federal law lead to forum shopping?
 Would application of the federal law lead to inequitable administration
of the laws in federal v. state courts?
 Then go to Byrd balancing approach:
 Determine respective policy interests underlying the state and federal
practices  strong interest on either side may impact which choice of
law to apply
 DRAW CHART FROM PG. 264
3. Determining the Scope of Federal Law: Avoiding and Accommodating Erie
 Gasperini v. Center for Humanities (U.S. 1996)
o SHIPLEY LIKES THIS CASE MORE THAN SEMTEK
o D moves for a new trial  Rule 59 controls standard for new trials in federal courts
o Federal standard  can be the basis if the verdict is so large it shocks the conscious
o NY standard  verdict can be set aside as excessive if deviates material from what would be
reasonably compensation
o Court said both state and federal interests could be accommodated here by allowing federal
district judge to make the decision
 Semtek Int. Inc. v. Lockheed Martin Corp. (U.S. 2001)
o Case filed in CA state court  diverst  D move to federal court  motion to dismiss
because 2 year CA SOL has run  case dismissed “on the merits and with prejudice”  but
then try to re-file in MD state court with a 3 year SOL
o Court says you have to look at the preclusion law of the of the state in which the decision was
rendered as a matter of federal common law
o STATE law controls here  problem with Rules Enabling Act if we don’t

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Checklist Sarah Richards

Personal Jurisdiction
A. Federal or State Court? If the case is in state court, the limits on state court jurisdiction apply. Proceed to Part
B, if case is in federal court, Rules 4(k) and 12 must be consulted
 Possible waiver? Consult Rule 12 – FRCP Rule 12 requires D to raise any challenges to PJ in their
initial response or the challenge is waived. Thus, it is critical at this point to determine whether D has
waived PJ challenge. If so, PJ is appropriate
 Rule 4(k) – Does the general rule of 4(k)(1)(A) apply or is there an alternate application provision for
establishing jurisdiction? If one of the alternative provisions applies, then compliance with 4(k)(1)(A)
– which incorporates state’s standards or PJ – will be unnecessary. Possible options under Rule 4(k) to
consider:
o 100-Mile Bulge Rule: is the party one that was joined under Rule 14 or Rule 19 within a
judicial district not more than 100 miles form the place where summons issued? If so,
jurisdiction can be established under Rule4(k)(1)(B).
o Federal statutory provision: is there a federal statute involved here that has its own service
provision, compliance with which would establish PJ? If so, jurisdiction can be established
under Rule 4(k)(1)(C) by complying with the special service provision.
o Alien provision: is the claim arising under federal law against a person not subject to PJ in
any state? If so, service will render the D subject to PJ if it has minimum contacts with the US
(Rule 4(k)(2)). Proceed to the constitutional analysis below in Part C but analyze minimum
contacts with reference to the US as a whole
o Rule 4(k)(1)(A): if none of these alternative provisions of Rule 4(k) apply, you will have to
follow Rule 4(k)(1)(A), which requires you determine whether the D could be subjected to
jurisdiction of a court of general jurisdiction in the state in which the district court is located.
Refer to analysis in Part B to make this determination
B. Long-Arm Statute: does the state’s long arm statute authorize PJ under these facts?
 Type of long arm statute
o Rhode Island model – authorizes court to exercise jurisdiction to the constitutional limit 
proceed to Part C
o Enumerated Act Model – specifically articulates factual circumstance where court can
exercise PJ  statutory analysis
 Statutory Analysis: do the facts fall within one of the categories articulated by the long-arm statute
o Yes. Go to part C
o No. PJ cannot be exercised here…analysis ends.
C. Constitutional Analysis: does the assertion of jurisdiction satisfy the requirement of due process?
 Traditional basis for PJ – is one of the traditional bases for PJ applicable?
o In-State service: was the D served with process within the state?
  Yes – PJ is proper (Burnham v. Superior Court)
 However, where the D’s in-state presence is procured by fraud, jurisdiction may not
be proper
o Voluntary appearance: has the D voluntarily appeared and proceeded to defend itself in the
action without challenging PJ?
 Yes – PJ is proper
 Exceptions to Jurisdictional Analysis – if no traditional basis for PJ, does an exception apply?
o Consent – did the D consent to jurisdiction in the state?
 Forum selection clause – is there a forum selection clause? If so, does it apply to the
dispute? (Carnival Cruise Lines v. Shute)
 State domestication statute – is there a state statute exacting consent from the D? if
so, such consent is generally disfavored; look to actual consent and question whether
jurisdiction should be based on fictitious consent
 If D knew that certain actions constitute consent to service on a particular
agent, that is more akin to actual consent
 However, if the D can be said to have been unaware of the consent to
appoint an agent for in-state service, such a case with non-resident motorist
statute, consent will be more suspect. In such a case, ordinary minimum
contacts analysis applies  Go to shoe analysis
 State Citizens – is the party challenging PJ a citizen of the forum? If so, the forum
courts may exercise PJ (Milliken v. Meyer)
 International Shoe Test – if none of the above exceptions apply  go to Shoe standards
o In rem actions – is this an in rem action?
 If so, Shaffer has indicated that such actions will generally meet minimum contacts,
isolated but directly related to the contacts that warrant jurisdiction
 If not  proceed to next question
o Four-Position chart – determine whether the contacts serving the basis for PJ are systematic
and continuous or single and isolated and whether they are related or unrelated to the cause of
action
 Continuous and systematic and related – PJ is appropriate
 Continuous and systematic and unrelated – Possible situation permitting general
jurisdiction. Are the contacts substantial and compare them with contacts in:
 Perkins v. Benguet – find GJ here
 Helicopteros v. Hall – don’t find GJ here
 Goodyear

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  If unrelated contacts are insufficient to support GJ, proceed to specific
jurisdiction analysis to see if any related but isolated contacts exist
 Single and isolated and unrelated – no PJ
 Single and isolated and related – Specific jurisdiction fact pattern  proceed to that
question
 Specific Jurisdiction Analysis – can SJ be exercised over the D? Answer depends on minimum
contacts and reasonableness
o Minimum contacts – are there minimum contacts between the D and the forum?
 Purposeful availment – has the D purposefully availed himself to the privileges of
acting within the forum state such that he has received benefits and protections of the
state? (Hanson v. Denckla). If so, minimum contacts are satisfied. Proceed with
reasonableness
 This requirement assures that the D will be able to reasonably anticipate
where his conduct will subject him to PJ (WWV)
 Purposeful availment cant exist on the basis of unilateral action or parties
other than the D
 Intentional torts – if an intentional tort has been alleged, has the D intentionally
targeted its tortuous conduct at a forum resident and caused harm to that resident in
the forum? If so, PJ is appropriate under Calder “effects” test. Calder v. Jones.
 Contractual contact – does the d have a contractual relationship with a forum
resident? If so, use contracts-plus analysis (i.e. Consideration of the place of
negotiation, extension, and performance of the K) to consider whether a K
solicitation, negotiation, and course of conduct support a finding of purposeful
availment Burger King v. Rudzewicz. McGee v. Int’l Life Ins. Co. If purposeful
availment is found, proceed to reasonableness analysis.
 Stream-of-commerce cases – is this is a stream-of-commerce case (meaning that a
product of the D has caused harm to P only after traveling through the stream of
commerce) do the facts satisfy the O’Conner of Brennan standard for purposeful
avaliment? Asahi Metal v. Superior Court and McIntyre v. Nicastro
 Asahi
 O’Conner standard: the D must have intended for its product to be
marketed in the forum state in order to have purposefully availed
itself of the forum
 Brennan standard: the D merely must have been aware that its
product would be marketed in forum state in order to satisfy the
purposeful availment requirement of Shoe

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  Reasonableness Analysis: if purposeful availment is found here,
proceed with reasonableness analysis in later section. If not, still
proceed with reasonableness analysis in light of the approach taken
in Asahi where O’Conner analyzed reasonableness even after
finding no purposeful availment.
 Nicastro:
 Kennedy:
o Target forum and submit to state sovereignty
o Follows O’Conner but adds “target” language from
Calder
o Local Distributor: cant target US as a whole but must
target forum
 Breyer:
o No precedent for PJ over an isolated sale so no need to
examine minimum contacts and fairness
o Not time to establish a new rule going into internet age,
especially with target language
 Ginsburg:
o Worried about evading PJ by employing a local
distributor
o Says Kennedy is backtracking with implied consent and
“doing business” approach where submitting to forum
was required
o If D is targeting the entire US, should be liable in ALL
states
 Quasi in rem cases – is jurisdiction being asserted based on property located within
the state? If so, you must still analyze the in-state property as you would any other
contacts. Property ownership is considered an isolated contact for jurisdictional
purposes. Shaffer v. Heitner
 Internet cases – if purposeful availment found, proceed to reasonableness analysis
 Zippo – a website alone is not enough to support jurisdiction. The propriety
of jurisdiction depends on the location of the site and the active/passive
spectrum
 Passive: no jurisdiction

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  Interactive: jurisdiction will depend on the degree of interactivity
and the commercial nature of the site. Highly interactive will
generally support PJ
 Active: yes jurisdiction
o Reasonableness – if your analysis has indicated that the D has purposefully established
minimum contacts with the forum state…would the exercise of jurisdiction be reasonable?
Analyze Ashai factors (first three are typically determinative). Balancing of these interests is
subjective and depends on the facts
 Burden on the D: would inconvenience on D be unconstitutionally burdensome?
 State interest: does the state have a strong interest in resolving the dispute? (state
interest greater where laws or policies are at stake, or where state citizens or corps.
are involved)
 Plaintiff interest: does the P have a strong interest in obtaining relief in the forum?
 Systematic efficiency: would jurisdiction promote interstate judicial system’s interest
in efficient resolution of controversies?
 Furtherance of social policies: would jurisdiction promote the shared interest of the
states in furthering fundamental substantive social policies?

Notice
A. Notice – was adequate notice given to D? Was notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to present their objections?
Mullane v. Central Hanover Bank and Trust Co.
 Adequate information – does the notice convey sufficient information to notify the party of how and by
when it should respond?
 Timeliness – does the notice allow reasonable time to appear?
 Method – is the method of giving notice a method that one desirous of actually informing the party
might reasonably adopt to achieve actual notice? Was the most reasonable means available employed?
o No. if there is a better means that is available and reasonably practical, then it should be
employed
o Yes. Where a superior method exists but is too expensive, time consuming, or burdensome,
then it need not be employed over more practical matters under Mullane.

Subject Matter Jurisdiction

A. Original Federal Court Jurisdiction – is there original jurisdiction over the claim by the P?
 Diversity Jurisdiction – does the action satisfy the requirements of 28 USC 1332 such that the court
may hear the case on the basis of diversity?

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 o Citizenship of the parties – what is the citizenship of each of the parties?
 Individuals – citizenship is determined on domicile (physically present is a place and
have the intention to remain there)
 Corporations – place of incorporation AND the principle place of business 28 USC
1332(c)(1)
 Partnerships – citizens of every state and country of which its partners or members
are citizens
 Legal representatives – citizens of the state of the party whom they represent. 28
USC 1332(c)(2)
o Diverse parties – are the parties diverse in one of the enumerated ways identified in 1332?
 Are the parties diverse as citizens of different states?
 State v. alien
 Citizens of different states with aliens as additional parties on either or both sides?
(permanent resident aliens are treated as state citizens for purposes of destroying
diversity)
 Does the case involve a foreign state as a P versus a state citizen?
 Non permissible: alien v. alien; state citizen + alien v. alien; alien v. alien + state
citizen; state citizen v. permanent resident alien from same state
o Complete diversity – are all parties on the side of the action form all parties on the other side
of the action
 Yes  if so, then complete diversity is required
 No  if not, there is not complete diversity and there can be no diversity jurisdiction
over the claim
o Amount in controversy – is the claim for more than $75,000? 28 USC 1332(a). If so, diversity
of citizenship requirement has been satisfied, then diversity jurisdiction
 Aggregation – can P’s separate claims be aggregated to satisfy the amount in
controversy? Only is one of the following circumstances exist:
 There are multiple claims by one P against one D
 There are multiple Ps asserting an undivided interest
 Claims alleging joint and severally liability against multiple Ds are valued
based on the entire amount claimed
 Federal question jurisdiction – does the action satisfy 28 USC 1331 or one of the other statutes
conferring federal question jurisdiction?
o Is the claim related or brought pursuant to federal law?  is yes, jurisdiction appropriate

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 o Well-pleaded complaint rule – does the essential federal element appear on the face of the P’s
well-pleaded complaint? Louisville & Nashville RR v. Mottley. If so, federal question
jurisdiction is appropriate
B. Supplemental Jurisdiction – if a claim does not qualify for diversity or federal question jurisdiction, does the
claim qualify for SUPPJ under 28 USC 1367?
 Section 1367(a) – does the broad grant of SUPPJ in 1367(a) apply to the claim?
o Freestanding claim – is there a claim over which the court already has original jurisdiction?
o Common nucleus of operative facts – is the supplemental claim at issue based on the same
common nucleus of operative facts as the freestanding claim? United Mine Workers of
America v. Gibbs.
 Section 1367(b) – if (a) is satisfied, does (b) nonetheless bar SUPPJ in this case?
o Diversity claim? Is the court’s jurisdiction based solely on diversity?
 No  1367(b) does not prevent SUPPJ
 Yes  proceed to the next question
o Supplemental claim by P? Does the supplemental claim at issue consist of a claim by the P or
by Ps joining the case under Rule 19 or Rule 24?
 No. if the claim is not made by the P or by Rule 19 or Rule 24 P, then (b) will not
prevent SUPPJ. (claims by Ps joined under Rule 23 or Rule 20 may enjoy SUPPJ,
provided the complete diversity rule not violated
 Claim by a Rule 19 or 24 P  claim will not qualify for SUPPJ if jurisdiction would
be inconsistent with the requirements of the diversity jurisdiction statute
 Claim by a P. if the claim is by the original P proceed to next question
o Against certain joined parties? – is the claim against persons made parties under Rule 14, 19,
20, or 24?
 No  (b) will not prevent SUPPJ
 Yes  no SUPPJ
 Discretionary basis for denial of jurisdiction? – If (b) not an obstacle, are one of the circumstances of
(c) present such that SUPPJ shouldn’t be exercised?
o Novel state issue
o State claim predominates
o Federal claims dismissed
o Other circumstances
C. Removal Jurisdiction – if the case has already been filed in state court, may the D remove to federal court?
 Original jurisdiction – would federal district have original jurisdiction over the P’s claims if they were
filed in federal court? 28 USC 1446(a)

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 o Yes  case may be removable, provided requirements are met. If in diversity, proceed to next
question
o No  not removable
 Time limit – have 30 days passed since the D received service of the initial pleading setting forth the
removable claim or notice of a change in the removability of the case? 28 USC 1446(b)
o Yes  D waived right to remove
o No  proceed to next question
 Diversity basis – if the claim could have been brought in federal court based only on diversity, is the d
who is seeking removal a citizen of the state where the case has been brought? 28 USC 1441(b)
o Yes  cant remove
o No  removal may be proper, next question
 Defendant agreement – have all Ds agreed to remove?
o Yes  removal is proper
o No  court will remand after removal
 Federal Question basis – if the claim could have been brought in federal court based on federal
question jurisdiction, then the claim is removable, provided there is D agreement and the 30-day time
limit for removal has not expired
 Motion to remand – if an action has been removed can a party seek to remand the case to state court?
This can be done only if a motion to remand is filed within 30 days of the filing of the notice of
removal

Venue
A. Waiver – has the party challenging venue waived the challenge? If so, venue is proper
 Forum selection clause
 Failure to object – has the party challenging venue already made a response to the complaint without
challenging venue such that the challenge is waived under Rule 12(h)?
B. Special Venue Statute – is there a special venue statute that applies?
 Title 28
 Other federal statute
C. General Venue Statute – if no waiver has occurred and no special venue provision applies, apply general venue
statute (28 USC 1391)
 First test under the general venue statute: do all the D’s reside within the same state?
o Identify the residency of each D
 Individuals – domicile
 Corporations – residents where subject to PJ. For multi-district states, resident only
in those districts where they would be subject to PJ were the district a separate state

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 o If all D from same state, venue is proper in a district where any D resides
o Continue to next question because it could possible present another viable alternative venue
 Second test under the general venue statute: is there a district where a substantial part of the events of
omissions giving rise to the claim took place or where property that is the subject of the action is
located?
o Yes  venue is proper in any such district
o No  if no, and venue couldn’t be determined under first test, proceed to fallback provision
 Fallback provision: if no proper venue can be identified based on tests 1 and 2, determine venue with
reference to fallback provisions in 28 USC 1391(a)(3) and 1391(b)(3)
o Diversity cases – is there a district where any D is subject to PJ? Venue is proper
o Non-Diversity cases – is there a district where any D can be found? Venue is proper
D. Transfer of Venue – if venue is improper, can the case be transferred under 28 USC 1404, 1406
 Jurisdiction and venue in transferee court? – Is the transfer being made to a district within the same
judicial system, where the action could have been brought initially?
o No  may not be transferred to that district
o Yes  proceed to next question
 Convenience and Justice? – would a transfer be for the convenience of the parties and witnesses (1404)
and in the interest of justice (1404 and 1906)? If so, may transfer to another district
E. Forum Non Conveniens – have the two prerequisites for a dismissal on forum non conveniens grounds been
met?
 Adequate alternate forum – is there a forum outside of the federal system that is available for the P’s
claim? If no adequate alternate forum exists, a dismissal for FNC grounds is not proper. (Gulf Oil
Corp. v. Gilbert)
o Unfavorable law – will the P face less favorable law in alternate forum? Even if yes, this is no
bar to recognition of the forum as a viable alternative (Piper Aircraft Co. v. Reyno)
o Bar to Relief – are the doors to the courts virtually closed to the P for some reason, preventing
the ability to seek relief in the alternate venue?  if yes, alternate venue might
 Public and Private Interests – do private and public interests weigh in favor of having the case heard in
the alternate forum?
o Private Interest Factors – the following factors should be used to evaluate the viability and
desirability of hearing a case in a proposed alternate forum:
 Location of the events giving rise to the case
 Availability of compulsory process for attendance of the unwilling
 Ability to implead other parties in the court
 Ability to take a view of premises involved in the dispute

54
  Ease and cost of access to sources or proof, which depends on the location of
relevant witnesses and documentary evidence
 Enforceability of a judgment if one is obtained
o Public Interest Factors – the following factors reflect interests of the government and local
community of the proposed alternate forum that should be considered in determining whether
hearing the case in that forum would be desirable:
 Whether the dispute involves local people or events; and
 Whether the dispute is likely to be decided under the local law of the forum

Joinder
A. Permissibility of the Claim. Is the joinder of the claim permitted under the Rules?
 Defending Party’s Claim against Opposing Party – is the claim in question being asserted against a
party who has asserted a claim against the claimant?
o No  go to “claim against non-aggressor”
o Yes  claim may be asserted as a counterclaim.  does it arise out of the same transaction or
occurrence (Logical relationship test) will requiring separate trial result in duplicative
multiple litigation?
 Yes  Compulsory and must be asserted or it will be waived
 No  Permissive and may be brought at the counterclaimant’s option
 Claim against Non-Aggressor – if the claim is not being made against an opposing party asserting a
claim against the claimant, against whom is the claim being asserted?
o An opposing party D –claim may be joined with the claimant’s original existing claim under
Rule 18(a)
o Co-party – does the claim arise out of the same transaction or occurrence as the subject matter
of the original claim or a counterclaim therein or assert that the party against whom it is
asserted is or may be liable to the claimant for all or party of the claim against the claimant?
 Yes  claim may (not must) asserted as a crossclaim under Rule 13(g)
 No  the claim may not be asserted as a crossclaim unless the claimant has already
successfully asserted a claim against the co-party, in which case the claim at issue
could be joined to that existing claim under Rule 18(a)
o Rule 14 Party – if the claim is against a third-party D, what is the party statute of the
claimant?
 Third-party P: the claim at issue can be joined under Rule 18(a)
 P: does the claim against the third-party D arise out of the same transaction or
occurrence as the P’s claim against the third-party?
 Yes  may (not must) be asserted

55
  No  claim is not permitted under rule 14(a). However, if P has already
successfully asserted a claim against the third-party D, the claim as issue
can be joined to the existing claim under Rule 18(a)
 Co-party: if the claimant is a co-party of the third-part D, go back to part A” Co-
party”
o The P by a third-party D – if the claim is by a third-party D against the P, does the claim arise
from the same transaction or occurrence as the P’s claim against the third-party P?
 Yes  claim may (not must) be asserted
 No  claim is not permitted under Rule 14(a). However, if the third-party D has
already successfully asserted a claim against the P, the claim as issue can be joined
to the existing claim under Rule 18(a)
o Rule 19 or 24 Party – the permissibility of claims against such parties depends on their statute
in the suit once joined.
B. Permissive Party Joinder
 Joinder of D – is the P asserting against the Ds a right to relief arising out of the same transaction or
occurrence and involving a common question of law or fact?
o Yes  P may join the Ds in a single action Rule 20(a)
o No  P may not join Ds
 Joinder of P – are their Ps asserting a right to relief arising out of the same transaction or occurrence
and involving a common question of law or fact?
o Yes  Ps may join together in single action 20(a)
o No  Ps may not join together
 Joinder of nonparties – is the party seeking joinder a defending party?
o No  the party may not implead a nonparty into the action as a third-party D under Rule
14(a). proceed to part C
o Yes  is the party seeking to assert against the nonparty a claim that the nonparty is liable to
the impleading party for all or part of the P’s claim against the defending party?
 Yes  the claim is proper and may be properly asserted against nonparty; nonparty
becomes third-party D
 No  not able to implead
 Joinder by nonparties – if the party seeking joinder is a nonparty, do they have a right to intervene
under Rule 24(a)(2)?
o Interest in action
 No  no right to intervene  move to permissive analysis
 Yes  proceed to next question

56
 o Impairment to interest – would disposition of the action impair the nonparty’s ability to
protect its interest>
 No  no right to intervene  move to permissive analysis
 Yes  proceed to next question
o Adequate representation of interest – is the nonparty’s interest adequately represented by
existing parties?
 Yes  no right to intervene  move to permissive analysis
 No  as long as previous questions answered affirmatively, has a right to intervene
under Rule 24(a)(2)
o Permissive intervention – do the nonparty’s claim or defense and the main action have a
question of law or fact in common?
 Yes  may intervene at court’s discretion under Rule 24(b)
 No  cant intervene
C. Compulsory Party Joinder
 Necessary party statue – is the absentee a necessary party under Rule 19(a)
o Availability of complete relief – in nonparty’s absence, is the court able to afford complete
relief among those already parties?
 No  Necessary party  proceed to feasibility analysis
 Yes  proceed to next question
o Impairment to absentee’s claimed interest – would disposition of the action in the nonparty’s
absence impair of impede the nonparty’s ability to protect their claimed interest relating to the
subject of the action?
 Yes  Necessary party  proceed to feasibility analysis
 No  proceed to next question
o Threat to existing parties – would disposition of the action in nonparty’s absence leave
existing parties subject to a substantial risk of incurring multiple or inconsistent obligations by
reason of the non-party’s claimed interest relating to the subject of the action?
 Yes  Necessary party  proceed to feasibility analysis
 No  not a necessary party
 Feasibility of joinder – if a nonparty is deemed a necessary party, is their joinder feasible?
o Personal jurisdiction
 No  not feasible. Proceed to determine whether party is indispensable.
 Yes  proceed to next question
o Subject matter jurisdiction – will the joinder deprive court of SMJ?
 Yes  not feasible. Proceed to determine whether party is indispensable.
 No  proceed to next question

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 o Venue – has the necessary party objected to venue?
 Yes  does the joinder of the party make venue improper>
 Yes  not feasible. Proceed to determine whether party is indispensable.
 No  and PJ and SMJ exist, joinder is feasible and must be joined in the
action
 No  and PJ and SMJ exist, party is feasible and must be joined
 Indispensability of party – if joinder of necessary party is not feasible, should the court dismiss the
action in the party’s absence?
o Lessening of prejudice – fan the prejudice to existing parties or the necessary party that would
result from necessary party’s absence be lessened or avoided through protective provisions in
the judgment, the shaping of relief, or other measures?
 Yes  may not be considered indispensable
 No  may be considered indispensable
o Adequacy of remedy – will the judgment rendered in the absence of the necessary party be
adequate from the P’s perspective?
 No  indispensable
 Yes  might not be considered indispensable
o Adequate remedy elsewhere – if the action is dismissed, will the P have an adequate remedy?
 Yes  favor indispensable determination and dismissal
 No  should not be deemed indispensable and not dismissed

Erie Doctrine
A. Diversity Action – is this a federal question case or a diversity case? There is no need to conduct an Erie or
Hanna analysis for a federal question case. If this is a diversity case, then proceed to the next question
B. Presence of a federal rule or statute – Hanna instructs that the initial question should be whether the issue
before the court is potentially covered by a Federal Rule of Civil Procedure or a federal statute as opposed to an
uncodified federal pracice
 Federal practice not embodied in a statute or rule – if there is no rule on point, the federal practice will
have to be evaluated by “unguided Erie” doctrine analysis in Part E
 Federal practice embodied in a statute or rule – if there is a rule on point, go to part C
C. Controlling federal rule or statute – is the federal rule or statute sufficiently broad to control the issue before
the court? (Walker v. Armco Steel). Is it intended or designed to govern the issue at hand such that the rule’s
purpose would be served by applying it?
 Not controlling – go to Erie analysis
 Controlling – Hanna analysis
D. Hanna Analysis

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  Direct Conflict – is the applicable federal rule or statute in “direct collision” with the law of the
relevant statute? Hanna v. Plumer
o No direct conflict – federal law should be applied and no further analysis required
o Direct conflict – go to next question
 Constitutionality of the rule or statute – does the rule regulate matters that are procedural or capable of
being classified as either substantive or procedural? Does the rule regulate judicial process for
enforcing rights and duties recognized by substantive law and for justly administering remedy and
redress for disregard or infraction of them?
o Regulates substance – may not be enforced instead of state law
o Regulates procedure – procedural, or both procedural and substantive, then it satisfies
constitutional standard
 Compliance with the Rules Enabling Act – if the Federal Rule is at issue, does the rule comply with the
REA?
E. Erie Analysis – if no valid federal statute or Rule covers the issue…question is should federal practice or
conflicting state practice be applied?
 Substantive v. Procedure test
o Substantive  federal rule may not be applied
o Procedural  consider next sections
 Modified outcome-determinative test – if the competing state and federal rule is not readily susceptible
to classification as substantive or procedural, then outcome-determinative test modified by Hanna
should be applied
o Forum Shopping Encouraged?
 Yes  proceed with Byrd analysis to determine if there are any countervailing
federal policies that warrant application of the federal rule notwithstanding its
promotion of forum shopping
 No  proceed to next part
o Inequitable Administration of laws likely?
 Yes  proceed with Byrd analysis to determine if there are any countervailing
federal policies that warrant application of the federal rule notwithstanding its
promotion if inequitable administration of laws
 No  neither of the “twin aims” of Erie are implicated and the federal rule should be
followed
 Byrd Balancing approach – outcome determinativeness must be evaluated against policy interest
o State substantive policy furthered – is the state practice “bound up with the definition of the
rights and obligations of the parties” such that the practice furthers some substantive state
policy?

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  Yes  must determine whether there is a countervailing federal policy that would
warrant application of federal practice
 No  presence of federal policy that will be furthered by the application of the
federal rule will allow the court to ignore state practice
o Countervailing federal interest – Does the federal legal rule promote an importance federal
substantive policy interest that outweighs the significance of the policy underlying the state
legal rule?
 Yes  federal rule should be followed
 No  state rule should be followed

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