CIVIL PROCEDURE

PERSONAL JURISDICTION (WHO CAN BE SUED?)

If a suit is brought in federal district court (diversity cases and federal questions), must consider the legislative authority for federal courts to exercise PJ FRCP 4(k): federal long-arm statute o (1) If state court has jurisdictions, so does federal (Same Steps)

o (2) If no state jurisdiction over This section addresses

Development of PJ Analysis

o Traditional Approach to Personal Jurisdiction was based on Presence (Pennoyer v. Neff- your body
or your property) (1) Territorial Authority over , and

Principles from Pennoyer (No state can exercise jurisdiction over person/property outside its territory)

o Every state possess direct/exclusive jurisdiction over persons/presence (in

personam) and property (in rem) within its territory

o If is outside state but owns property within the state Court has jurisdiction
Quasi-in-rem: attaching lien to s property and selling it off but s recovery is limited to the value of s property, as opposed to A dispute about the property itself (in rem) Must attach property at the outset! (this was the problem in Pennoyer)

In Rem: Court is exercising jurisdiction against the property itself (ex. Bankruptcy)

POLICY: commerce wasnt as sophisticated then and people didnt travel as much (2) Adequate notice to * (Still Needed)

Process: Summons and a copy of the complaint Lets know that a lawsuit has been filed against them and they have to appear in court to defend themselves

o Land must be properly attached at the beginning of the suit because you need to
have PJ from the beginning (not later when determining damages) In these circumstances substitute service by publication is valid

Rationale: Seizure of the property is the hook to bring it within courts control and you are supposed to know what is happening with your own property

Substituted Service: Serving someone other than

Expanding bases for PJ (Post-Pennoyer Exceptions) Consent

Hess v. Pawloski)

o o

Statute held that out-of-state motorists impliedly consented to jurisdiction (limited circumstance) Court did a lot of work here to go around the presence requirement o Court cited an NJ case which recognized express consent as an exception; its basing its decision off of this

Rationale: is doing something that is naturally dangerous (driving cars) and we want states to be able to exercise authority over people doing dangerous things within their territories o Need to make sure Due Process is satisfied because states are treating non-residents differently

Waiver: If D doesnt object to PJ in here answer to the complaint or her initial motion, then she waives her ability to object to PJ FRCP 12(b)(2) + 12(h)(1) Domicile

o Modernized Approach to PJ (International Shoe)

Examines Due Process: 2 part standard

(1) Requires minimum contacts with the forum state if that person is not present

o Examine: Frequency and regularity of s contacts, Sense of the impact and

quantity of s acts, and Concern over fairness/inconveniences to

(2) Maintenance of the suit cannot offend traditional notions of fair play and substantial justice

No longer have to embrace presence POLICY: Recognizes realities of modern commerce Very much a legal realist opinion (as opposed to Pennoyer- formalist) should understand that her activities within state will have an impact there and also, if

she chooses to take advantage of the benefits and protections of the law, she should be held liable for her actions Protects against the burden of litigating in a far away and inconvenient forum Ensures that the States dont reach out beyond the limits imposed on them by their status as coequal soverigns in a federal system

o IS also identified two types of contacts a nonresident defendant could have with the forum:
Specific Jurisdiction: s contacts with the forum state are directly related to the COA

Do not need as may contacts because they are targeted Long-arm of the law stretches out and grabs (predicated on specific activities)

General Jurisdiction: s contacts with the forum state are unrelated to the COA focuses on substantial or pervasive contacts

Contacts Chart: Casual/Isolated Contacts No Single Act Under Certain Circumstances Specific Jurisdiction Increasing Contacts RELATED UNRELATED Continuous or Substantial or Ongoing Pervasive Specific General Jurisdiction Jurisdiction

Decreasing Contacts Extent of None Contact Jurisdictional Consequences No

PJ Flow Chart

o After determining that there are no traditional bases for PJ

(1) Is there statutory authority? General Jurisdiction

o Yes (2)
Wont be on exam but some courts have provision in their Long Arm for GJ

o No Assuming statutory authority (2)

Specific Jurisdiction 2 types of modern statutes o Full/RI: goes to the limits of due process Very broad understanding of judicial authority Essentially collapses statutory interpretation and constitutionality prong into

1 o Enumerated/NY:* carves out areas where judicial authority can be exercised Will be tested on this *These statutes are more limited than what constitution allows Consequences are considered part of the tort (Gray) Tortuous injury is enough for tortuous act [but compare with NY law where injury is not enough]

(2) Due Process Clause (relationship between the below two aspects are distinct but there is an argument that one makes up for the weaknesses in the other, Burger King)* MAKE SURE TO DISCUSS WHERE THERE IS ENOUGH FOR EITHER SJ OR GJ (i) Minimum Contacts/Purposeful Availment o Minimum Contacts Sales/activities in the state Advertising Benefits/privileges from the state gained a substantial benefit from activities

How much money/commission activities in forum state earned (International Shoe, substantiality: very few salesmen but earned a high % of total profit) POLICY: it would be unfair to allow s to escape liability for consequences that arise proximately from activities for which they derived a substantial benefit

Is there enough of a nexus between the injury and the acts (Gray) Compare tortuous injury v. tortuous activity In Gray SOL began running when the injury occurred so it makes sense to fix the place of the tortuous act in the place of the injury

Is there enough of a nexus between the act and the forum state?

McGee- activity was sporadic but the nexus was so tight that it was enough for SJ o contract sued upon had a substantial connection to the forum state, as well as Californias strong interest in protecting its citizens that this court recognized CAs interest and compare with

o *on exam, if comparing to McGee make sure to point out

present case

Generally, casual/sporadic activity is NOT enough (Hanson)

POLICY

BUT SEE McGee: if it related to the COA, may be enough Buying a ticket to fly to forum state or sending daughter to live in forum state is not enough (Kulko)

Rationale for Minimum Contacts (WW Volkswagon) Protects from burdens of litigating in an inconvenient forum Making sure that States arent exceeding their power

(ii) Purposeful Availment

Connection between and forum state must have come about by intentional/purposeful act by toward forum

i.e. if product winds up there randomly, could not have anticipated it see: stream of commerce debate

must have intentionally tried to take advantage of the laws of that state Unilateral activity of generally is not enough o Unilateral activity of X who ha a relationship with a nonresident () isnt enough

o has to be the one who precipitates the connection (not

X) court examines if gets some benefit from jurisdiction

o Hanson v. Denckla: Woman from PA established trust in

DE and maintained power over it. Moved to and died in FL. Heirs fought over the estate, FL said it had jurisdiction over the estate since that is where she died, and many of the heirs were from FL o Unilateral activity is insufficient, D must involve themselves and perform activities in the forum state. Must have evidence that D connected themselves in some way to the forum state

Contract is not enough (merely a threshold question), must also consider whether there were (Burger King) Initial negotiations Course of dealings Extent of future consequences

Terms of the contract itself o i.e. choice of law might reinforce the notion of predictability/foreseeability

Foreseeability alone is not enough but it is relevant to ask where , based on his interaction with the forum, should reasonably anticipate that someone would sue them in that jurisdiction (consider predictability, fairness, equality, finality)

WW Volkswagon: Noting that the only connection of the defendants with OK was that an automobile sold in NY to NY residents became involved in an accident in OK, the Court held that OK courts were without minimum contacts necessary to assert personal jurisdiction

o s did not sell cars, advertise, or carry on any other

activity in the state. could not have anticipated being sued in OK

o Unilateral activity is not enough (like Hanson) o POLICY: if we construe foreseeability too broadly (i.e.
was the accident here foreseeable), opens floodgates to mass litigation)

o Stream of Commerce Debate: is it enough that a corporation is merely aware that

some of its products might wind up in particular forum (Asahi)

Majority/OConnor: Stream of Commerce PLUS Placing product into Stream of commerce alone is not enough for purposeful availment You need more intent/direct activities at the forum (i.e. advertising in the forum, services products in forcum, customer service, design, etc.)

Minorty: Stream of Commerce is enough (as long as you know its marketed there) If puts product into stream of commerce, he can reasonably anticipate it would travel and could be sued in forum Rationale: is getting economic benefits from sale Roots in WW Volkswagon: knew that car would be driven around (flexible minimum contacts standard, broadening the foreseeability test) Recent SC cases: its enough that knew his product would be going to the general area and did not limit it from going to the forum state (Warzinski v. Empire Comfort Systems)

Stevens 3rd opinion: if it is clear that its unreasonable to subject to suit,

dont need to even go through min contacts analysis Brenna concurrence: if is selling enough of the product there, PJ should be allowed

(ii) Fairness Factors (Asahi)

o General Jurisdiction- courts dont tell us whether we have to apply the 5 factorspoint this out on the exam (Helicopteros) o Ask: Would it be reasonable to require to defend its suit in jurisdiction? Burden on Interest of the forum state

If is a resident of forum state, goes to that states interest

s interest in obtaining relief Interstate judicial systems interest in obtaining an efficient resolution

If international parties o broad/weighs against jurisdiction

Shared interest of the several states in furthering policy

Compare SJ vs. GJ o For GJ

Perkins: substantial and pervasive activities found to be enough can have continuous and systematic contact that are so numerous and pervasive, might be enough to exercise PJ where they're unrelated to the COA Compare with facts of Helicopteros the mere fact that the nonresident defendant made regular purchases in the forum state was not held sufficient to justify personal jurisdiction in a case not related to such purchases.--> not enough for continuous and systematic Contacts they had: sent pilots to TX to train, bought helicopters, equipment and training service there, funds were drawn out of bank in Houston, purchase of airplanes in TX, contract negotiation in TX Didnt have: no place of business in TX and not licensed to do business in TX

o For SJ

Brennan in Helicopteros: even COA does not arise out of contacts, might be enough if theyre related for SJ if theres some connection to the forum state, why isnt this enough? (different understanding of SJ)

Minimum Contacts and Other Traditional Bases for Jurisdiction

o Minimum contacts analysis applies to In Rem and Quasi in Rem (Shaffer v. Heitner)
Quasi in rem jurisdiction basically became obsolete due to Shaffer

Court held that presence of the property alone would not support exercise of jurisdiction Mashalls rationale: Pennoyer had created a fiction. It was the idea that you could have jurisdiction over a thing that would somehow be distinct from exercising jurisdiction over a person. He's saying that this just isn't true because even if you're exercising jurisdiction over property, you're doing it over the person. [Pennoyer recognized that property is different] Hes saying it doesn't make sense to think about them so differently. o Marshall highlights the importance of viewing these on a case by case basis

REMEMBER: is not present (distinguished from Burnham) Easy case: when property serves as basis for action is related to the forum state (i.e. slipping on someones land) Harder case: when property is in X, is being sued in X by resident of Y based on something done in Y Old Rule: OK Shaffer: none of act related to COA took place in X, might not have gone to X, didnt purposely avail himself no jurisdiction

Concurrences Powell: only apply minimum contacts to quasi in rem (leave in rem alone) Stevens: concerned this goes too far Brennan Dissent: Worried that this issue wasnt brought up merely an advisory opinion and furthermore that minimum contacts do exist.

Effect: Makes it harder to use quasi-in-rem jurisdiction because we need minimum contacts now Reasons to stick with Pennoyer: must be concerned with wrongdoers trying to get out of their obligations (D's who keep property in areas only where they know they wont have minimum contacts)

o not sure if we need to construct a rule to deal with 's who try to evade the rule and
even beyond this, it's not clear whether 's would do this. Even if they will, we have the Full Faith and Credit Clause

International Shoe standard is really hard to figure out. There's a problem with

uncertainty

o Might not be that difficult. And we cant allow history to determine what is fair o When is physically present in jurisdiction minimum contacts DO NOT APPLY
Note: this is a plurality opinion (no majority here) which means its still somewhat of an open question Rationale/POLICY Tradition for service is physical presence and Physical presence = Due Process enough to satisfy this requirement o o Waiver Minimum contacts is a place holder for presence so its not necessary here

Brennans Concurrence: we have already moved away from tradition and should apply minimum contacts analysis instead Stevens Concurrence: likes bright-line rule of presence but feels that fairness is also important For exam: dont apply minimum contacts but note that conflict exists

o Contract

Acts such as non-participation can as a presumption of a waiver to PJ objection

It is possible to consent to jurisdiction via contract (Carnival Cruise) There is a heavy burden of proof on to set aside jurisdiction based on fairness

SUBJECT MATTER JURISDICTION (CAN NEVER BE WAIVED- HAS BURDEN)

Constitution Art. 3 2 o Scope of judicial power of federal courts over: when U.S. is a party, controversies between states, between states and citizens of other states, between citizens of different states, Constitution/Federal Laws/Treaties but most importantly

Federal Question (28 1331) o District courts have original jurisdiction for all civil actions under the Constitution, Federal Laws, and Treaties of the U.S.

Diversity (28 1332) o District Courts have original jurisdiction if the controversy exceeds $75,000 and there is diversity of citizenship

Citizens of different states (NY v. NJ), citizen of a state and citizens of a foreign country (NY v. Germany), citizens of different States in which citizens/subjects of a foreign state are additional parties, and a foreign state as and citizen of a State or different State

o o

Rationale: fairness to , Privileges and Immunities Clause, Courts are just better, and concurrent jurisdiction sense of competition Complete Diversity

This requirement is read into 1332 but not Art. 3 (Strawbridge) Every party must be a citizen of a different state on different sides of the v. People on the same side of the v. can be from same place

Individuals Diversity = Domicile, not residency (Mas) Establishing True, fixed, and permanent home, and Intention of returning there when you are absent

Changing Take up residence in different domicile, and Intend to remain there

Domicile is a stricter standard than residence (helps with forum shopping problem) Factors we consider: Permanent address, School, Work, Vote, Stuff there, Sleep, Bank, Change of Address

1332(c)(1): Corporations

Principle place of business (PPB) and the state(s) it was incorporated in

PPB: look to the place where corporations officers directs, control and coordinate activities (Hertz)

Amount in Controversy Requirement: 1332(a)

Sum claimed by will control so long as it is made in good faith (AFA Tours) If there is no way amount exceeds $75,000, it may be dismissed Must be clear to a legal certainty that cannot recover the amount

Aggregate claims

can assert multiple claims against single (claims dont have to be related) can join several s to the same claim pursuant to FRCP 20 if they have a common undivided interest or title in the claim

2s CANNOT JOIN against single unless it is a single/indivisible harm (J/S liability), joint ownership (property, interest, easements, fund), supplemental jurisdiction

o Each has to satisfy jurisdictional amount (Zahn)

o Supplemental Jurisdiction (1367) o Allows courts to consider claims that otherwise would not fall within federal question or diversity jurisdiction but are closely enough related to claims that are already being brought if is already bringing a claim into federal court, can he latch onto it a claim that might otherwise be required for state court? Older Terminology Need more than an interest for joint ownership

Pendant: appends a claim lacking an independent basis for federal jurisdiction to a claim possessing such a basis Ancillary: either or injects a claim lacking independent basis for federal jurisdiction via counterclaim, cross-claim, or third-party complaint

Development of 1367

Pre-137: Zahn court held that in a class action suit all s must satisfy amount in controversy requirement Gibbs ROL: State and Federal Claims must derive from a common nucleus of operate fact such that it would make sense to bring the cases together Requires (1) common nucleus; (2) federal claim must be substantial and not merely appendages to state claims; (3) both must be such that P would ordinarily be expected to try them in one judicial preceeding Rationale/POLICY o o Avoids inefficient piecemeal litigation People are not going to be discouraged from going into federal court

This is basically the only way parties can exercise pendant party jurisdiction (essentially pendant-claim jurisdiction)

Pendant Party jurisdiction (adding a new who could never be brought into federal court) NOT ALLOWED (Aldinger essentially limits Gibbs to claims)

Recognized that this question is not merely constitutional (what Gibbs addressed) but statutory, as well Distinguished from Gibbs on two grounds:

o In Gibbs both parties were already in federal court and were just latching
on a state claim. Here, we have a in federal court trying to bring in a second based on a state claim on which there is no independent basis of

federal jurisdiction simply because the claims against both s derive from a common nucleus of operative fact

o Gibbs did not address the question we are trying to answer here: whether by
virtue of the statutory grant of SMJ Congress had addressed itself to the party as to whom jurisdiction pendant to the principal claim is sought

If diversity is destroyed treat the claim as new even if there was common nucleus at some point (Kroger) can defeat the statutory requirement (1332) of complete diversity by the simple expedient of suing only those Ds who were of diverse citizenship and waiting for them to implead nondiverse Ds Different scenario: asserts a cross claim against o Lenhardt: Thinks shouldnt be able to respond with her own counter-claim

1367: Anytime there is original jurisdiction (federal question or most likely, diversity) supplemental jurisdiction exists (when it would otherwise be deficient)

a response to the Finley decision where underlying jurisdictional statute contained no affirmative grant of pendent-party jurisdiction. 1367 overruled this (a) so long as it is part of the same case or controversy (like Gibbs) o Includes claims that involve joinder or intervention of other parties (what used to be pendant party jurisdiction)

(b) Does not apply to diversity cases (basically Kroger)

o District courts do not have supplemental jurisdiction over claims by when

they try to bring in additional parties if they are not already diverse

o cannot bring claims against non-diverse if they use: 14 (3rd party), 19

(required joinder), 20 (permissive joinder), or 24 (intervention) o dont care about bringing these parties in

what can do in these cases? bring a counter claim against s that would otherwise be jurisdictionally insufficient where has brought a claim against more than 1 , they can bring a counter claim against alternative and have supplement jurisdiction implead another (like in Kroger) in a situation where two s are sued and there's a counter claim asserted against 1 it might be possible to have SJ against another who has been brought in only for purposes of cross claim. You can do this because is not asserting a cross claim against them.

Hypo: (NY) v. (NJ)

brings in X (NY) OK

Lenhardt: X counter-claims ; cannot bring counterclaim back against X even if its compulsory

brings in X (NY) no supplemental jurisdiction

(c) Discretionary Elements (Factors) Gibbs o allow district court to decline to extend SJ if

(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Executive Software: theres a dispute about whether 1367 just codified the Gibbs factors or if its broader than them

Application of 1367 to s (Exxon)

As along as you have one that satisfies the amount in controversy (original jurisdiction) All are good where the amount of controversy is lacking

o The fact that they are all part of the same civil action is what is
important/district court has original jurisdiction

Constructivist view: look to statutory construction there is a civil action under the meaning of 1367(a) 1367(b) doesnt take it away either since parties have been joined under Rule 20. Ginsberg dissent: Congress didnt mean to exclude Rule 20, its actually an oversight.

o These parties must still satisfy diversity o Exceptions of 19 and 24 present problems with another
Court says dont worry about Rule 20 s

Removal Jurisdiction: deals with s power to transfer the case from state federal as long as the state court case could have originally been brought in federal court o Concerned with fairness to (dont want to have sole discretionary power for forum)

Dont want bias towards foreign s

28 1441

(a) removal jurisdiction in cases when district court had original jurisdiction over the matter (diversity and federal question) (b) If a is sued in his home state, he may not remove on the basis of diversity

Federal question dont care about citizenship Diversity removable only if isnt from state where suit was brought

o shouldnt have to worry about bias of home state o We dont worry about bringing a suit where they hail because they pick
where suit is brought

(c) allowing courts discretion in this context

similar to 1367 (c)(supplemental jurisdiction)

o doesnt give you anything different that 1367(c) gives you, so at the end of
the day, look at 1367 (if you cite 1441(c) this cant end analysis, must still do 1367 analysis)

o will necessarily be limited by what Article III allows

permits federal claims to be remanded along with state claims

(e) allowing removal in certain circumstances (mass accidents)

encourage consolidation of claims involving mass accidents in federal court

If brings a counter-claim against in state court cannot remove to federal (Shamrock)

o o o

s cannot remove since they picked the forum originally Although they are a in some sense, they have to be a true to take advantage of removal Remember: if asserts an entirely new claim then can remove (because original is now new )

Applies to the entire case, not just claims if removes, must do so to all claims, not just some Removal is a one way street so is not permitted to move from federal to state court Generally, all s need to remove (1441(e))

PJ and Removal

Removal does not waive s right to contest PJ (can still do so after removal) If a state court ruled on PJ and then case is removed to federal court, federal court will generally apply this ruling (1441(j))

1446: lays out procedures for removal that must follow

must file removal within 30 days of receipt of initial pleading/complaint If amended complaint by includes something that makes it federal (i.e. gives original jurisdiction) 30 days from then Exception: diversity suits can only be removed up to a year form original complaint

1447: Remanding after removal (going back to state court if its been improperly removed)

(c) For anything other than lack of subject matter jurisdiction Must be done within 30 days

Subject matter jurisdiction Can be brought up anytime (Courts have to remand these)

Other Removal Statutes

1443: civil rights 1442: federal officers 1453: class actions

VENUE (CAN BE WAIVED)

Additional requirement for where trial will take place

o This is a statutory requirement (P..J. is Constitutional)

Procedure:

o (1) Subject matter jurisdiction? (if no all over) o (2) Does court have personal jurisdiction over ? o (3) Is venue proper?
Defense of improper venue can be asserted by motion (12(b)(3)) Possible to waive an objection to venue (12(h)) 1391

o (a) Diversity cases can be brought in any:

District where any resides if all s live in same state, District where substantial part of events occurred or property is situated, or District where any is subject to Personal Jurisdiction if there are no options above

o (b) Federal Question cases can be brought in any:

District where any resides if all s live in the same state, District where substantial part of events occurred or property is situated, or District in which any may be found if there are no options above

Found= served or present or subject to PJ Subtle difference from (a)s catch-all May need if all the relevant events took place overseas and none of your s reside in same state

o (c) Corporations = deemed to reside in any judicial district where it is subject to Personal
Jurisdiction when action is commenced

If state has multiple district resides in any district within which its contact would be enough to PJ if that district were a separate state

If no such district resides in district within which it has the most significant contacts

Easy to test if were talking about multiple districts Individuals = domicile NOTE: this only becomes relevant if resides is an issue; we still need to apply (a) or (b), regardless

Venue compared to PJ

o Venue is far more specific (going to the district) o Venue is a statutory matter; PJ is constitutional o Venue rules under 1391 apply only to state court; PJ applies to federal and state
Focuses on the location of the transaction- Bates

o Notice the minimum requirement for venue in Bates the mailing of a debt collection notice is
considered a substantial part of events even though did not explicitly consent to it being mailed there (it was forwarded)

Very fact specific

Concerned with convenience and allocating resources (not that concerned about ) Transfer of Venue 1401(a) o Used to cure a defect or convenience venue and personal jurisdiction, and SMJ) -- Hoffman o o This is dealing with moving within the system (as opposed to 1441: Moving between systems) If you transfer: Apply the law of the transferors state (state from which you transferred) Transfer is concerned with convenience, not law Remember: This only applies to Diversity

o Only allowed to transfer to a district where it might have originally been brought (think about both

Forum Non Conveniens: Even where venue is proper a case can be dismissed if transfer to another (more appropriate) court is not possible and a clearly superior forum is available elsewhere (different system) Piper o o could move to dismiss for lack of venue or F.N.C. doctrinal, not statutory

o Comes into play with foreign jurisdictions (small set of circumstances in which this applies)
o Factors (Balancing Test) Whether the laws of another state (Nation-State) would be more advantageous, Access to sources of proof, Availability of compulsory process, Viewing the site, Public interest, and Administrative costs, jurors have interest, local interests etc.

Question of convenience

WHICH LAW APPLIES? (DIVERSITY ACTIONS) CHAIN OF CASE LAW

Traditional View/Swift: Without State statute saying what law would be, Federal court are free to apply their own sense of the general law

o
o

permitted Federal judges to displace state common law with federal common law in diversity actions Ascertaining the applicable law often depended upon distinguishing matters of local concern

from matters of general concern o Partially had to do with lack of adequate state-court case reporting systems

o Argument for Swift

For certain matters whose nature is universal there is no need to adhere to single jurisdiction; instead, universal principles should serve as guideline which requires examining all available authorities Federal government was seeking great uniformity and stability in interstate commerce and wanted to encourage businessmen to trust out-of-state negotiable instruments. The attitude was also guided by provincial concerns, such as trying to protect local debtors from foreign creditors. So it helped simplify commercial law and simultaneously encouraged nationalist goals of the federal government

o Problems with Swift

Problem if the law you are applying means different things in different states (Brown & White Taxicab) Creates incentive for forum shopping Certain level of unfairness introduced into the mix for An out of state could fare better than in state with the same claims

o Holmes/legal realist view: law does not derive its force from inherent rightness but from the fact
that the authorities empowered to make such a rule have made it Erie: Federal Courts should follow both State Statutory and Common Law (=State Laws in Rules of Decision Act) o Substance versus procedure test: substantive would be governed by state law, and those characterized as procedural would be governed by federal law

o Rejected Swift (which said that in RDA, laws = statutory only)

Brandeis: there is no federal general common law Reasons for rejecting Swift

The goal of Swift (uniformity) was not achieved and quite opposite occurred Research showed Congress wanted common law to be read as well Uncertainty and unfairness under Swift forum shopping; discrimination of citizens by non-citizens *Swift violated the Constitution (no explanation for this statement, could be talking about 10th Amendment violating States rights or Equal Protection Clause violation in forum shopping

Concurrence: Wanted to draw a distinction between substantive and procedural law

court should not have overruled Swift but only should have added that "the laws" includes judicial opinions

o What was the choice of law about? Should a NY Federal court applying PA common law v.
general law of the federal courts (notice: there was no constitutional authority here) PA common law o Whats up nextthe substance v. procedure issue

York: rejected the substance v. procedure test instead, adopted the Outcome Determinative Test o Federal court should apply state law where it would significantly affect the result of the case to apply federal law Reasoning Federal court should be applying state law as a state court would, Federal courts shouldnt be trying to make available an outcome that couldnt be available in state court

o This, after all, was the purpose of Erie o Doesnt feel right for to get away with something
Makes sense if we want to bind federal courts (a reason for Erie)

Problems

If applied literally, almost every procedural rule would be displaced in diversity cases by any different state rule because all procedural rules could affect the outcome of the case to some degree would leave no use for FRCP in diversity cases The limits of the test are obscure and the prediction of outcome determination is especially difficult at the outset of a lawsuit when parties factual and legal theories may be framed only in general terms If uniformity is what we want to achieve this doesnt work since were ultimately focusing on state law

You cannot have different outcomes in state and federal courts

o What was the choice of law about? Whether a federal court must apply the NY state SOL or
federal equity defense of laches NY State statute

Couldnt automatically apply Erie since that case didnt specifically address rules of decision for federal courts sitting in equity Also, Erie involved a situation where there was no constitutional federal authority; here, there was a governing federal rule!!

Byrd: Erie was about federal courts respecting definition of state created rights and obligations/Federal system

is independent/Use a Balancing Test o Tri-part opinion

Reaffirms that federal courts must honor the definition of state-created rights and obligation (constitutional prong) but some state rules arent intended to be bound up with rights and obligations (theyre simply procedural or administrative practices) as we have here

Note that York evinced a broader policy than Erie requiring federal court to follow state practices even of form and mode

Outcome determination test is good, but should be reevaluated in light of affirmative countervailing considerations at work such as potential for interference with the federal system of allocating functions between judge and jury When interpreting balancing test, must also look to degree of certainty an predictability that a different result would actually occur when employing federal rather than state rule

o Final Result Balancing Test: Outcome + Balance Underlying policies of State and Federal Rule
Weighing policies underlying federal and state laws

i.e. in Byrd state practice was found to reflect a weak state policy, not bound up with the underlying statute, of preferring a judge determination of the employment issue. When balanced against the strong federal policy of the 7th Amend. And the fact that there was no substantial likelihood that a different result would be obtained by using a jury federal practice is preferred

Adding policy into York (a more balanced approach) Not universally popular because different courts will weigh policies differently (its easier just to use Outcome/York)

What was the choice of law about? Applying state law v. federal law (there is a direct conflict here)

o Note: Brennan is saying that the jury v. judge issue is procedural o Post-Byrd Principles Doesnt matter because this isnt the end of the chain
State Substantive Right created by State Law Apply State Law (Erie) State matters of form and mode that might affect outcome Apply State Law (York)

Strong federal policy Apply Federal Law (Byrd)

State matters of form and mode where federal law wouldnt affect outcome Apply Federal Law (Lenhardt)

Hanna: Federal Rules of Civil Procedure Applicability Test

o Hanna 1 ROL: Apply state law when federal law (judicial practice rule) fails the Modified
Outcome-Determinative test O-D test + consider Twin Aims of Erie

(1) Prevent forum shopping (2) prevent inequitable administration of the law *if these two things are very unlikely/impossible and outcomes not too different federal

o Policy

Should not blindly follow York because every procedural rule will be outcome determinative to a degree Called a simple and clear test for determining the validity of federal procedure practices under Erie and for safeguarding the FRCPs from being encroached upon by conflicting state practices (not the same as Byrd because that was related to the Constitution)

o If direct conflict between State and Federal Rule Apply Federal Rule as long as it is valid (not
in conflict with Constitution/Statute) Rationale: Federal courts derive from Constitutional power and rules cant fall outside that power, and Uniformity in federal courts is important to some extent (procedural)

Harlan/Concurrence Test: Whether choice of a particular rule would substantially affect those primary decisions respecting human conduct which our constitutional system leave to state regulation Seems to draw that procedural/substantive distinction Seems to call for a new definition of substantive

Hanna 2 ROL/analysis (1) is the Federal Rule in direct conflict with State law (or whether FRCP is actually narrower in its coverage than the state statute)

o No Erie analysis o Yes continue

(2) Did the Supreme Court have the authority under the REA to promulgate the rule because it is arguably procedural o *presumably, the standard for procedurality is met since the FRCP addresses the issue of when/where the claim may be litigated before the court

(3) Does adoption of the rule impinge on substantive right under 28 U.S.C.

2072(b) must not abridge, enlarge or modify and substantive right o *the [whatever FRCP is addressing] seems to be/not to be bound up with the substantive claim, modifying the underlying legal right

Strong presumption that FRCP applies There is constitutional and statutory authority for the adoption of FRCP

Constitutional: Article III and the Necessary and Proper Clause Congress and the [federal] Court have broad constitutional authority to promulgate any rule that is arguably procedural

o NOTE: much lower standard than York

Statutory: Pursuant to REA 2072, advisory committee appointed by SC drafted FRCP

Effect= to invalidate one of the FRCP, would be difficult because you would have to prove that Advisory Committee, SC, and Congress erred in their judgment that the rule could validly be applied in federal court NOTE: substance must mean something different under the in the FRCP context than in the O-D test otherwise there wouldnt be a need for two part test So, conflict between FRCP and state law apply FRCP if it is valid and does not impinge on any substantive rights

Walker: When applying the Hanna 2 test, we must determine if the Federal Rule is sufficiently broad to be in conflict with the state statute

o if yes Hanna 2 analysis o if no Erie

o Matters of Custom and Practice Federal Rules/Enough to conflict

It does not matter that as a matter of practice a federal court would have treated it differently Must make sure that the terms of the rule itself is whats causing the conflict

Court found no such conflict because a courts refusal to apply the federal rule at issue would not in fact thwart some purpose the federal rule was intended to achieve. Thus, Walker reminds that favored treatment for federal procedural rules under the Rules Enabling Act is only appropriate when a rule is in fact applicable. NOTE: in this case its not Rule 3 thats in direct conflict with OK statute, but the custom surrounding it.

Stewart: When there is a conflict between state statute and federal statute Hanna 2 analysis

o so long as statute is valid apply Hanna 2 analysis

Federal statutes should be treated just as FRCP

Gasperini: Hanna 1 = Outcome Determinative + Twin Aims of Erie o Attune to the nature of the state laws that is of issue bit still accommodates the underlying federal policy

o Basically did a York Byrd analysis

There is so no real test for substantive right

o NOTE: Ginsburg isnt completely following York (which says different outcome = end of story);
but she wants to find a way to accommodate federal interest while applying state law. She does this by saying that the re-examination clause of the 7th amendment is a different characteristic of the federal system

Erie History o Rules Enabling Act (REA) was enacted by Congress in 1934, authorizing SC to draft and promulgate independent set of procedural rules for federal courts Became effective in 1937

o Erie decision (1938) along with REA tells federal courts to apply the substantive law of the state
in which it was located, and the procedural law prescribed in the Federal Rules

o York (1945): rejecting the substance/procedure state law would be applied to matters that
usually would be though of as procedural in order that the outcome of litigation in the fed court should be substantially the same

o Byrd (1958): Outcome Determinative + Policies (balancing test)

Erie and FRCP could co-exist

o Hanna (1965)
Part I: Part II:

PRECLUSION

Reasons for preclusion: Cost of litigation, security/interest in definiteness, consistency, concern about judicial resources, minimize vexatious lawsuits, FINALITY (we want clarity on particular issues) Claim v. Issue Preclusion o Claim preclusion must involve the same parties, but issue preclusion does not have to

o If the Issue could have been brought up earlier but wasnt

Enough for claim preclusion Never a basis for issue preclusion applies only to matters argued and decided o Mitigates the danger of surprise, limiting preclusion to issues that have received the attention of litigants

Issue preclusion may have a much broader affect than claim preclusion

CLAIM PRECLUSION/RES JUDICATA: PREVENTS FROM SUING ON A CLAIM THATS BEEN DECIDED

Res Judicata = The Thing Has Already Been Decided o Thing= Event/Transaction

Strategy: Make sure you bring up all the appropriate COAs related to the transaction/occurrence o Thinking about affirmative defenses

Elements:

o Applies only to final, valid and on the merits judgment

Need a judgment showing that the thing actually was decided

o Parties in the subsequent action must be identical, and

Or in privity with one another privity= interests so closely bound to another person that it's reasonable to say that decision controlling one is enough to extend to decision of another

o Claim in the subsequent action must involve matters properly considered included in the first
action (Present suit arises out of the same claim) Claim: A natural grouping or common nucleus of facts/Same transaction or occurrence

Actions are parallel Estops one Claim Preclusion Involving

o One Accident Bring One Case (Rush)

Injuries to the person and property arise out of the same common nucleus of operative fact cannot split COAs in multiple suits (only get one day in court) Just one wrongful act

Potential problems with this rule arises from toxic class actions/asbestos cases claim 1= exposure; claim 2= get sicker. Unfair to bar from bringing a second action for a different injury

o Installment Payments Recurring Conduct (Jones)

o If mandatory acceleration clause Need to call the whole debt in original suit because res judicata applies If no acceleration clause/optional acceleration clause Possible to have recurring obligations/suits no res judicata

Debt secured by Note/Rent Recurring Conduct

Actions on one note/coupon Not a bar on subsequent suits/no res judicata

o Toxic Tort/Asbestos Problems: Courts have tried to find a way around the rule because harsh
application prevents s from suing if their injuries worsen over time Claim Preclusion Involving /Defense Preclusion (Three Scenarios)

o (1) Second action in which an original tries to raise claim against original not raised in first
action

Any claims that had were merged/extinguished into the first judgment (Mitchell)

Because used something as a defense cant sue separately on it later

o This leads to weird results because if farmer had not raised it as a

defense in the first case, he would have been fine o He should have raised a counterclaim against the bank

o We want s to bring all their claims at one time concerned with

consistency

has to be concerned with res judicata but this situation rarely comes up due to compulsory counter claims (13(a))

Claims that were brought up in first case but arent barred by issue preclusion available in the first action but werent raised

o Second action contains an action brought by in which tries to raise new defenses that were

ISSUE PRECLUSION/COLLATERAL ESTOPPEL: PREVENTS RELITIGATION OF ANY ISSUE (REGARDLESS OF WHETHER SECOND ACTION IS ON THE SAME CLAIM AS THE FIRST)

Definition: cannot re-litigate a "right, question, or fact distinctly put in issue and directly determined by a court

of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies" Practical effect: can turn on the ability of advocates to manipulate issue Elements (Restatement 27/Majority) o Same Issue,

o Actually litigated and decided (Cromwell), and

It needs to be very clear that it was actually litigated (Russell)

Cant have confusion as to the basis of which claim the verdict was decided on in Suit 1 only new brings in some extrinsic evidence to remove uncertainty from the record (FORK) some courts deal with the actually litigated requirement in a more liberal way and recognize that it is satisfied if basically the same fact pattern came out the same way

Other courts deal with actually litigated if basically the same fact patterns came out the same way (Kelley)

o If issue is decided as a side matter/finding (i.e. contributory negligence) in a prior suit/considered

in a prior suit actually litigated (Rios- 3rd partys CN finding in Suit 1 was not deemed sufficient for issue preclusion in Suit 2) Party needs to have the opportunity to truly litigate the issue in Suit 1 or Appeal

You can only appeal decisions not findings

(FORK) Home Owners: If question was essential to judgment preclusion should apply Different way of courts dealing with this

Determination necessary to judgment

Significance

Issue decided in previous lawsuit Conclusively decided (cant re-explore) Efficiency, fairness, consistency, etc.

Negatives: Might be unfair to treat issues as being precluded if it wasnt correctly decided

o Non-mutuality* [easily tested]

Traditional Rule: Couldnt allow a new party to bring collateral estoppel (mutuality was required)

Didnt want people to take advantage of the situation; want people to take the risk of losing a lawsuit not fair that party 1 took a risk and lost and now another is taking advantage of it

Parties might be forced to over-litigate issues in the original action for fear of unkown risks of estoppel in future actions involving new parties

Modern Rule/Bernhard: Allowed to use collateral estoppel regardless of mutuality/whether they were parties to original suit No justification for mutuality rule (waste of resources) o POLICY: it would be silly to allow someone who already had his day in court to re-open a case simply by switching adversaries

There were many exceptions at the time of decision Preclusion should apply because the issue is the same as in suit 1 Not requiring mutuality Leads to consistency as you could get a different result Supreme Court adopts non-mutuality in Blonder-Toungue NOTE: the difference between res judicata

Idea that might have to defend himself over and over again in response to suits isnt fair

Situations

Defensive Non-Mutual Collateral Estoppel Valid [Bernhard and Blonder-Tongue] Suit 1: v. 1 ( loses) Suit 2: v. 2 (2 asserts Collateral Estoppel) o New trying to go against from re-litigating an issue

Offensive Non-Mutual Collateral Estoppel Valid Suit 1: 1 v. ( loses) Suit 2: 2 v. (2 asserts Collateral Estoppel) o Second is bringing up same issues that had an opportunity to litigate

Problem Situation Suit 1: 1 v. ( loses) Suit 2: 2 v. ( attempts to invoke Defensive Collateral Estoppel)

o Due Process Violation because party against whom estoppel is being

invoked never had an opportunity to litigate all of their issues/be a party to and do anything (never had his day in court) o Offensive v. Defensive Incentives

Defensive: seeks to prevent from asserting a claim that knows wont win (previously litigated and lost) Why we allow it (POLICY)

o has incentive to sue all possible s up front to protect against it

Some s will settle (strategy) If loses a case against 1 , other s will be able to estop him from bringing claim against them

o s choose forum Worry less here because they are in drivers seat,
hardly seems unfair to bind the to the first resolution since hes already litigated it Offensive: seeks to prevent from litigating an issue that he previously lost on with another party

ROL: trial courts are granted wide discretion when determining whether offensive non-mutual estoppel should be allowed if could have joined in the earlier action, or it would be unfair to to allow offensive CE, should not allow (Parklane) o Why this discretion/whats the difference between defensive CE?

Offensive doesnt promote judicial economy the same way defensive does gives the incentive to use a wait and see strategy

If 1 lost 2 wont be barred from relitigating the issue because he never litigated it If 1 won 2 can establish a crucial issue without having to go to court

Incentive Losing party may not have litigated the issue aggressively in the first suit if the stakes were small or forum inconvenient Also applicable to defensive CE

It may not have been possible for the losing party to litigate effectively in suit 1 if the procedural rules of the court were more restrictive than those of the court in suit 2. One or more prior inconsistent judgments on the issue may suggest that it would be unfair to give conclusive effect to any one of them

o Application of the Parklane facts [template for the exam] allowing

offensive use of CE (1) no prior inconsistent judgments

(2) procedural opportunities available in suits 1 & 2 are same both filed in federal court

(3) 2 could not have joined 1 because of procedural rules (4) Parklane (losing ) had every incentive to litigate aggressively in suit 1

JOINDER OF CLAIMS (RULE 18)

REMEMBER: SMJ!!

Modern Rule 18: permits joinder of as many claims you have against the opposed party as long as fairness is met (Very Liberal)

o Once you have an initial anchor claim can bring in any other claims
o Note: no common transaction or occurrence requirement (unlike Rule 20a)

o Remember, this rule applies to counterclaims, cross-claims, or any 3rd party claims!
POLICY o Development o Traditional rule: could only join if the claims were in the same category (Arbitrary) Want to settle judicial business as efficiently as possible and bring all claims against a party at once

o Intermediate Rule: Can join claims as long as in same transaction or occurrence/event (Harris)
Disadvantage: Juries may be confused o If so, court can use Rule 42(b) to order a separate trial for certain claims

*Res Judicata operates in the background

o and get to make choices about what claims to join but if they dont they may be precluded in
the future

COUNTER-CLAIM (RULE 13- TALKING ABOUT S)

Answer + Affirmative Claim for Relief Asserted Against Initial Pleader o Roots in common law recoupment and set-off

Always remember Rule 42: you can always try these things but there are limits to the system! Rule 13: can bring any claim they want against or 3rd party

o (a) Compulsory: Those claims that arise out of the same transaction/occurrence and dont require
adding another who court cannot get jurisdiction over

these claims must be brought Res Judicata otherwise 13(f) gives some leeway if you forget to bring a compulsory counter-claim (very little leeway) Issue: If you bring the claim later in State Court Not clear what they should do (Federal court couldnt make state court preclude)

Different tests for transaction or occurrence Same questions of fact or law that arise, or If Res Judicata would bar a subsequent suit on s claim absent compulsory conterclaim, or Same evidence would be required for s claim and s counter-claim, or (Popular) Logical relationship (Heyward-Robinson) o can come from a series of occurrences (broad understanding) contract being carried out in the same period, the nature of Heyward's rights to terminate, that they had a single insurance policy for both jobs, that they're fighting over both jobs

o Heyward facts: same parties involved, same type of work involved, the

Exceptions: If the claim was subject of another pendin action [(a)(2)(1)] or (a) (2)(B) DONT UNDERSTAND

o (b) Permissive: Those not arising out of same transaction/occurrence

Remember: Rule 18(a) allows to bring in other claims in addition to that initial counterclaim

As long as you have an anchor claim can bring in as many other claims as you have against a party

CROSS-CLAIM (RULE 13(G))

Claims against a co-party (same side of the v.) Rule 13(g): may state as a cross-claim any claim as long as it arises out of same transaction/occurrence o May= dont want to create adversity between parties

o Remember Rule 18(a) after initial cross-claim (anchor) bring other claims o Lasa: Court used the logical relationship test for cross-claims
Demonstrates the liberal interpretation of rules (along with Heyward)

JOINDER OF PARTIES

PERMISSIVE JOINDER OF PARTIES (RULE 20) / ALSO WANTS TO SUE X

or can join a party as long as:

o Arises out of the same transaction/occurrence, and o Common question of law or fact to all s/s arises in this action
Not Compulsory because: People might want to litigate differently and issues of jurisdiction (could ruin diversity) If $ requirements of 1332 (diversity) has not been met by all of the joined parties 1367 gives supplemental jurisdiction over those parties who have not satisfied the jurisdictional requirement (Exxon Mobil) NOTE: the difference between Rule 18 o o This discusses a joinder of parties, not claims But also, Rule 18 was much more liberal (dont need to arise out of the same transaction)

COMPULSORY/MANDATORY JOINDER OF PARTIES (RULE 19) - FORCING TO SUE X [THINK ABOUT COMPULSORY AS ARISING LATER ON IN SUIT 2]

Read Rule: (a) See who needs to be joined; if theres a problem in joining (i.e. diversity destroyed) check (b) (a) Necessary Parties if (Those who have to be joined if feasible but whose non-joinder wont result in

dismissal):

o Without that party, court cant accord complete relief among existing parties- (a)(1)(A) o Impair/impede their ability to protect interest- (a)(1)(B)(i) o Leave an existing party at a substantial risk of incurring multiple/inconsistent obligations
because of interest- (a)(1)(B)(ii) o (2) a court could also join a party themselves (Ex. Holder of a Patent in a dispute between company with rights against X)

(b) Feasability of Joinder: If it is not feasible to join a party (court would have to dismiss the action if party is joined), court must look at these FACTORS to determine if a party must be joined anyway

o Prejudice to this party or existing parties,

if absence of party leads to prejudice dismiss

o If prejudice could be limited by protective provisions in judgment, shaping relief, or other

measures

If it can be limited by these measures dont dismiss and go ahead w/out the party

o Would judgment without person be adequate, and

If adequate dont dismiss and go ahead w/out the party

o Would ( people in) have another remedy if case is dismissed for nonjoinder
If there is alternate remedy dismiss i.e. bringing it in state court o

Necessary Indispensable if after weighing (b) Factors there is no problem (Provident) o o Examine all factors/No particular way to weigh them Courts look to eliminate prejudice

OTHER PRINCIPLES

Misjoinder and Nonjoinder (Rule 21): if you join people inappropriately, this is not a grounds for dismissal court may drop/add a party or sever a claim against a party at any time (clean-up rule) Consolidation (Rule 42(a)) another tool for Courts to bring cases together o o Consolidation: Court can do this if similar questions of law or fact but very different remedies, as opposed to Joinder: Litigating together/working together on a common theory of the case

Rule 13(h) allows you to bring in another person as a party to a counter/cross claim as long as its consistent with 19 and 20 o Cannot do joinder (Rule 20 by itself) because no common question of law and fact and not same transaction (i.e. side issues) need to use 13(h) because it isnt related to original v. (there is no anchor for this claim yet)

o v. joins X via Rule 20 v. X via 13(g) for side issue if also wants to bring in Y, o I cant resolve the q. who stole my tools unless everyones here. OR I think theres multiple
people involved here o Much more limited than Rule 14

Supplemental Jurisdiction - 1367 (b) governs diversity exceptions, no supplemental jurisdiction if: o brings in claim under: 14, 19, 20, or 24

o Exceptions do not apply to can bring in other parties (barbri example)

IMPLEADER (RULE 14) 3RD PARTY PRACTICE

Involving parties did not initially think to sue o Taking away some of s control over who they sue

o *Remember this isnt a device can use to point his finger at another!!!
(a) Allow to bring into an action, someone who might be liable to for any/all of the claim

o is looking to indemnify a third party for their liability against

3rd party is only liable if is liable to (You pay if I pay) distinguish between cases in which 3rd party is liable to , but not to original cant hold up new as a substitute target because this would allow to dictate to the who to sue where

o If does this after 14 days from original answer must get courts leave (permission) o Party doing the Impleading 3rd party o (2)(d) Third-Party can assert any claim against from same transaction or occurrence
(Remember 1367) (b) Counter-claim against (from ) can implead a 3rd party (if a in s position could have done this under (a)) o Applies when loses control of case

Impleaded parties must do what other parties have to i.e. Compulsory Counter-Claims Differences from Counter-Claims

o Counter/Cross Claims: These are against parties that are already in litigation o Impleader: Allows for acceleration of the resolution of claims by bringing it all together on the
theory that 3rd party may have to pay *Impleading does not affect diversity Just like Rule 19 in that were bringing in another party (but are not required to) When to use Rule 14 o o o o Indemnification Contribution Subrogation *NOT when thinks X is also liable for damages to and thinks he should have sued them instead (that would be Rule 19, maybe- necessary party)

CLASS ACTION (RULE 23/ 1332(D)/ 1453)

Very helpful when: Cant proceed under Rule 19 (compulsory joinder) or not practical under Rule 20 (permissive joinder) o Class actions exist because there are circumstances when joining a large number of people is too difficult

Class Certification: A class must first be certified (Rule 23(a))

o Must have a class and a representative, o Numerosity: Class is so large that joinder is impracticable
25 or less is a problem 40+ is fine

o Commonality: Questions of law or fact are common to the class, o Typicality: Claims/Defenses of representative party are typical of those of the class, and o Adequacy: Representative will fairly/adequately represent interests of the class
Class actions have preclusive effect Concern Due Process

Types of Class Actions (Rule 23(b)) o (1) Minimize incidents of prejudice to the class (where individual actions may result in inconsistent decisions)

Mandatory: Cannot opt out Notice: Court may direct appropriate notice

(2) Injunctive Relief (Ex. Civil Rights)

Not necessary that all the class members be hurt in exactly the same way Enough that they are all upset with

Not about getting damages Sometimes you get damages as well (Hybrid Class Actions) but this isnt the primary relief sought

Notice: Court may direct appropriate notice

o (3) Damages*
Used when all of the class members are hurt in the same way Additional Requirements for Certification (Castano)

Questions of law/fact to class must predominate over those only affecting individuals, and Class action is superior to other methods for adjudicating the controversy Factors for Above: o o o o Class members interest in individually controlling separate actions, Extent/nature of litigation concerning controversy already against class member, Desirability of concentrating claims in forum, Likely difficulties in managing a class action

Notice: Court MUST direct best notice including individual notice to reasonably identifiable members o Subparts contained required language

Methods of Bringing Class Actions o (1) Standard/Rule 23 Pre-CAFA (Remember: You dont have to use CAFA)

Still need to get SMJ the standard way (1331 or 1332)

(2) CAFA/28 U.S.C. 1332(d)- cases with a lot of forum shopping (really state cases that wouldve gotten in even under our diversity rules), many Ps with small claims; OR removal CAFA worked to get more class actions into federal courts Actions that would have been in state court filed in federal court pursuant to Rule 23 (Now we are filing in federal court first)

o This just gets you into federal court Still filed pursuant to Rule 23
(still needs to be properly certified) ONLY WORKS WITH 100 PEOPLE OR MORE

(2) Courts have original jurisdiction over class actions as long as amount in controversy exceeds $5 Million if: Minimum diversity, or Any party is a foreigner/both parties are foreigners

(3) District Court may deny to grant jurisdiction under (2) if more than 1/3 but less than 2/3 Class is from Same State Court has discretion over a variety of Factors o o o o o o National/interstate interest? What laws will govern the dispute? Could it be pleaded in manner to avoid Federal Jurisdiction? Forum distrinct from class, harm, or Class members of one State and substantially larger than others/spread out class Similar class actions within last 3 years

(4) District Court must deny to grant jurisdiction under (2): (a) Where:, or

o More than 2/3 class is from same state,

o At least one is,: and o Main , Principle injuries in the state, and Citizen of that state

In last 3 years there has not been a similar class action against

(b) 2/3 and Primary s are citizens of same state

(6) Claims of are aggregated for $5 Million (9) Various exception to (2) (11) Mass tort actions/Not formally called a C.A. originally (i.e. 2/3 language)

When aggregating claims as long as one person meets the amount SMJ Requires 100 People Some confusion: Statute says look at (2) (10) which implies you would need $5 Million/Aggregation but this goes against first note which everyone has

Policy driving CAFA:

Came about because there was a concern about number of class actions being filed in state court. Attorneys prior to CAFA basically had to file in state court where they had classes where no single could satisfy the amount requirement (pre-Exxon). had small claims so tried to combine to reach amount- forum shopping between courts. We dont want these cases that should be heard in fed court and we dont want attorneys driving policy Why 100? Were looking for volume; we want all these people to get a remedy CAFA is an example of allowing minimum diversity

(3) CAFA/28 U.S.C. 1453/Removal Jurisdiction When you file in state court first Bringing class actions normally in state court federal (removal) Dont care if one is from same state, or if only one wants to go

Only relates to 1332(d)(1) Dont need $5 Million; Dont need 100 people Have to use Rule 23 Certification Required; Standard SMJ

Special Due Process Concerns

o Venue: Based on the name plaintiffs (Just like diversity)

o Opt-Out Important because of the preclusive effect Opting out is valid Dont require opting-in (Shutts) o Preclusive Effect Opting in would ignore the differences between class actions and normal cases Also: Plaintiffs consent to jurisdiction normally

Members of a class can be bound if they have adequately been represented by parties present of if they have actually participated (Hansberry)

Remember: You are only precluded from bringing same type of case Another type of case is fine (ask if the individual claim is distinct)

Class member cannot be bound when certain procedures arent met Ex. Representation inadequate, interests of parties arent joint, representative isnt entitled to stand

o o

Judges can decertify classes/decertify partial class actions Special settlement rules (Judge must approve)

Courts can decide a settlement is invalid over predominance and commonality (Amchem) Cant group people together if they have different diseases (i.e. asbestos) o o Representative cant adequately represent all the class members interests Focus on the different types of harm

Solve: use sub-classes

Subject Matter Jurisdiction Federal Question: No Issue Diversity:

Rule 23: Determine diversity on the basis of the party representatives (NOT EVERYONE) - 1332(a)

Amount in Controversy: Supplemental Jurisdiction OK as long as one has it (Exxon)

CAFA/ 1332(d): Original Jurisdiction

o Minimal Diversity: any is different from any (member of the class)

o Aggregate for amount ($5 Million)

CAFA/ 1453 (sometimes mass tort class actions start in federal court)

o Because only using 1332(d)(1) have to use 23 Standard SMJ

o Removal for CAFA cases

o Class Members Personal Jurisdiction Dont Worry (Shutts)

Very different than talking about PJ and Class members have unique posture, certain benefits/protections, and dont have to fend

for themselves because of named plaintiffs

ASPECTS OF CIVIL LITIGATION

PLEADINGS, ANSWERS, AND AMENDMENT ONLY HAVE TO KNOW WHAT NUMBER X MOTION IS + ISSUES OF TIME COMPUTATION

Motions Pleadings (Rule 7) Complaints: Notice Pleadings (Rule 8)

o Pleadings must contain a short and plain statement of:

Courts jurisdiction Showing pleader is entitled to relief, and Demand for the relief sought

o Pleading must contain claims that are plausible (Twombly)

If on the facts asserted, the claim isnt plausible Dismiss Not just possible claims

Twombly overruled the conceivable standard set out by Gibson

Makes it harder for certain cases (i.e. gender discrimination) because it imposes a higher standard earlier on Scope of Twombly: NOT LIMITED TO FACTS (Iqball)

Debate: How far does plausibility requirement extnds to (types of cases)

o Twombly: Antitrust
Court found that complaint provided only enough for parallel conduct (insufficient)

o Iqball: Qualified Immunity/Discrimination

You cannot just plead a legal conclusion (Iqball) i.e. was negligent; conspired


Notes

Need to have facts supporting claims asserted

Lawsuit begins with filing a complaint (Rule 3) Wanted to go away from precision pleading and make it easier for people o o Just give enough facts to give fair notice This opens the door to more meritorious claims them out

o Let people get into court and once there we have mechanisms to kick o Problems: Too many claims go to court Might encourage some
inappropriate settlements Answers (Rule 12) o o has lots of options could use a motion (dont have to respond to everything)

o 12(b)(6) Failure to State Claim to Get Relief (modern demurrer) Only Important
Motion Judge interprets this rule via various doctrines o Take all of the allegations made by as true Idea: We want to keep cases in federal court

Rule 8 has some affirmative defenses

Amendments (Rule 15)

o (a) Amending pleadings as a matter of course (Ex. Adding a )

You can change your pleading once Before being served with a response*, or Before 20 days after being served with response and not on trial calendar More times Need courts or other partys permission o Court allow this when justice requires (liberal)

*New Changes: filing a response no longer matters Can amend before 20 days after service

o (b) Amending pleading at trial

Made when is granted relief on a theory that wasnt pleaded in the complaint

Implied consent when no one objects

(c) Relating back in time (Lenhardt: Most interesting part of rule) We care about relating back in time because we are concerned with timeliness

If you relate back As if the party was joined then

(d) Supplemental Pleading Amended: Concerns matters that have already happened Supplemental: Concerns matters that happened after initial pleading or amendment

SUMMARY JUDGMENT (RULE 56) AND JUDGMENT AS A MATTER OF LAW (RULE 50)

Timeline and Insufficient COA

o Complaint 12(b)(6)/Motion for failure to state a claim on which relief can be granted
Twombly and Iqball demonstrate courts ratcheting up requirements who asserts this doesnt have to add anything

o Discovery 56/Summary Judgment

No dispute about material facts

o Trial and Verdict States 50/Judgments as Matter of Law

Summary Judgment (56) Both parties can do this o o Judgment gets made before the case is fully fleshed out Court only hears case in summary form matter of law

o Rule 56: Granted if no material facts in dispute and moving party is entitle to judgment as a
o Granting View facts in light most favorable to non-moving party If material facts are in dispute Go to Trial (Adickes) Purpose: Efficient

Since these are the people whose rights are at risk

In evaluating the motion Courts use standard that would be used at trial When record evidence couldnt lead a rationale trier of fact to find for No dispute about material facts Grant SJ Burdens

Production: Producing evidence to accomplish your goal

o Once moving party moves for SJ and produces evidence Burden

goes to nonmoving party to produce evidence of material fact dispute

o (e)(2) Response must set out specific facts showing a genuine issue for
trial Personal letter isnt enough

Persuasion: convincing the court At Trial: Burdens on SJ: Burden on (moving party) o Not responsible for proving connection between evidence and COA potions of evidence which demonstrates absence of material facts (Solotex) Doesnt have to produce own affidavits or evidence but have to point to s evidence What Could add: Requires more than 12(b)(6) Parties usually provide some support: (e) Affidavit, Depositions, etc.

o Moving party has to inform court of basis for motion and identify

o must show that hasnt shown admissible evidence at Discovery that

would establish claim Dont have to prove couldnt establish an element

o Brennan/Solotex Dissent:
A conclusory statement that nonmoving party hasnt submitted sufficient evidence enough Moving party needs to affirmatively demonstrate there is no evidence on record to support nonmoving partys COA

Must be served at least 10 days before the hearing Possible to have partial summery judgment

Judgment as Matter of Law (Rule 50) Both parties can do

(a) Judgment as Matter of Law: You can do this several times before case submitted to jury Look at whether has sufficient evidence to support its case

If they dont doesnt have to introduce anything

o If (a) is denied (b)

Modern day Judgment not withstanding Verdict Not a Reexamination Problem because if you bring up via motion Court deemed to have submitted it to jury Must be done no later than 10 days after jury discharged/verdict entered If denied Could get appeals court to conditionally grant new trial

JURY TRIALS

If SJ denied Go to trial Sources of Right to Jury Trial o o o 7th Amendment (Our Concern) Federal/State Statutes Discretion Courts enjoyed in Equity proceedings

7th Amendment o Right Preserved, and

Does so at law, not at equity Preserved right to jury trial as of then Creating a right Whether we get a jury today, depends on whether we would have had one in 1791 (why? Because thats when 7th Amendment was ratified)

Federal Right State can do whatever they want

Reexamination Clause

Determining Right to Jury Trial

o Older Case/Beacon Theatres: Have to consider the scope of equitable jurisdiction/Cant just ask if
COA existed in 1791 (judges dont like this) Use a sort of analogy

o Modern/Chauffers test
(1) compare the statutory action to 18 th Century actions brought in English courts prior to law/equity merge (1791), and (2) Look at the remedy that would be provided ( MORE IMPORTANT STEP) Is this legal or equitable? o Law: jury o Damages ($$)

Equitable: no jury Injunction Specific performance Recission of K

Compensatory damages Traditionally relief of court of law o o Not Saying: Money = Jury/Law Look at the kind of damages requested

Brennan/Concurrence: Only likes Prong 2 Dissent: Only likes Prong 1/Historical Test o Has problem that Prong 2 could have both legal and equitable issues

For Test: o o

Issue*: what if you have a case with both equitable and legal remedies?

Think about roles/benefits/reasons for judge and jury Think about judge and jurys relative roles Who is best situated to decide the claim that is at issue