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If court at any point notices a defect in SMJ, it must kick lawsuit out of federal court


Requirement #1: Constitutional limit (Article III 2)

o Federal law must be an ingredient of the case (Osborn)
! This is pretty broadas long as federal law is somehow in dispute in the
case, it can constitutionally be heard by federal court
Requirement #2: Statutory limit (1331)
o Option #1: Existence of federal question must appear on the face of the plaintiffs
well-pleaded complaint (Mottley)
! FQJ is valid if federal statute allows party to bring suit
Weird clarification: if federal statute creates a cause of action but
does not allow a party to bring suit under federal law (i.e. statute
authorizes parties to bring suit against each other using local
customs) there is no FQJ
o Option #2: Smith/Grable exception to Mottleys well-pleaded complaint rule
! Step #1: Plaintiffs state-law claim turns on a question of federal law
When it appears from Plaintiffs pleadings that Plaintiffs right to
relief depends upon proving a proposition of federal law, federal
courts have jurisdiction over a state-law cause of action (Smith)
! Step #2: Factors (Grable)
Federal law issue is a pure issue of law (rather than factbound)
FQJ in this case will not upset state/federal court balance
o If allowing this would sweep too many into federal courts,
then deny
There is a significant federal interest in having case heard in
federal court (i.e. federal government wants federal interests to be
treated fairly)
Congressional intent: if Congress seems conspicuously silent,
choosing to not confer federal jurisdiction, then FQJ is invalid
(Empire HealthChoice)
Declaratory judgment (2201(a))
o Exception to the well-pleaded complaint rule
o Greiner Imaginary Lawsuit Rule
! If there would have been federal SMJ in imagined lawsuit (the lawsuit that
the requested declaratory judgment is seeking to prevent), then there is
federal SMJ over the declaratory judgment
o Important statute: allows potential D to become the P (and master of complaint)


Irrelevant: constitutional limit (Article III 2)

o If any defendant is diverse from any plaintiff, then DJ is valid
Relevant: statutory limit (1332)
o Requirement #2: Amount in controversy: must exceed $75,000

Requirement #1: domicile complete diversity domicile of all plaintiffs must be

diverse from all defendants (Strawbridge)
o Determining individuals domicile
! Start with state of birth
! Domicile only changes when a person takes up residence in a different
domicile AND intends to remain there
o Corporate domicile
! State of incorporation AND state of nerve center
o Unincorporated association (i.e. union) domicile
! Every state where any member is a resident
o Alien domicile
! Think of them as being resident of a 52nd state
Requirement #2: amount in controversy must exceed $75,000
o Plaintiffs claim accepted in good faith
! May only be dismissed if it appears to a legal certainty that plaintiff
cannot recover over $75,000
o Aggregating claims
! Single P v. Single D: all claims aggregated (regardless of relatedness)
! Single P v. Multiple Ds: no aggregation must meet requirement for each
defendant separately
! Multiple Ps v. Single D: one plaintiff must have $75,000 claim then
other plaintiffs seeking to enforce a single right may join regardless of
amount of their individual claims
! Multiple Ps v. Multiple Ds: may not aggregate (for purposes of this class)


STEP 1: Requirements for federal courts to have the power to hear supplemental (statelaw) claimson test, walk through these step-by-step
1. Identify federal anchoring claim
a. Analyze claim by claim and party by partyyou only need original
jurisdiction (either 1331 FQJ or 1332 diversity) over one claim in the
complaintthis individual claim is a civil action for the purposes of 1367
2. Identify supplemental claim
a. Supplemental claims must form part of the same case or controversy as
anchoring claim (1367(a))
b. Federal and state claims must emerge from a common nucleus of operative
fact (Gibbs)
i. Probably sufficient if it involves the same plaintiff or defendant
ii. Likely sufficient if it comes out of same transaction
iii. Outer limits are broad/undetermined
3. If anchoring claim is FQJ, then court may exercise jurisdiction on supplemental
claims and parties
4. If anchoring claim is diversity, limits on which supplemental claims and parties may
be attached (1367(b))....if ALL OF THESE ARE MET, THEN NO
SUPPLEMENTAL JURISDICTION (otherwise, go ahead and add!)

Claim made by a plaintiff
Claim made by a plaintiff against a
person made a party pursuant to
FRCP 14 (TPP), 19 (didnt study), 20
(permissive joinder) or 24

Claim by party seeking to intervene

as plaintiffs under FRCP 24
OR party proposed to be joined as
plaintiff under FRCP 19 (didnt

NB: FRCP 23 (class actions) is not

one of these limiting rulesthese
may be supplementally attached
b. When exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of 1332 (this step is not
i. If adding a claim that destroys complete diversity, the claim is
inconsistent with 1332 and will kill supplemental jurisdiction

ii. If adding claim that violates amount in controversy requirement, this is

not inconsistent with 1332 and can be added as supplemental (Exxon)

iii. If adding a claim that violates amount in controversy requirement

AND is a claim made by a plaintiff against a person made a party
pursuant to FRCP 14, 20, or 24this is up for debate

1. Should it be allowed? Possible rationales in play

2. If basis of Exxon is that 1367(b) codified a less stringent
diversity requirement for supplemental claims (i.e. only need to
meet complete diversity, not amount-in-controversy for these
claims)then allow!
a. This would further efficiency aims (trying cases
together that involve same facts)

b. Potentially negative effects could be ameliorated if

court declines jurisdiction pursuant to 1367(c)
3. If basis of Exxon is narroweronly ruling that 1367 confers
supplemental jurisdiction to completely diverse claims not
specifically called out as impermissiblethen dont allow
a. This would further state court/federal court balance
concerns, stopping federal government from gobbling
up too many suits
b. This would also further fairness to defendant
concernsprevent defendants from being dragged to
inconvenient forums on small claims
STEP 2: Discretion: federal courts may decline supplemental jurisdiction
o Statutory provisions allowing discretionary declining (1367(c))none are
automatic, these are FACTORS/OPTIONAL
(1) Supplemental claim deals with novel/complex state-law issue
(2) Supplemental claim substantially predominates over anchoring claim
(3) Anchoring claim has been dismissed before trial
Greiner: court probably doesnt mean this if the supplemental
claim would be barred by statute of limitations (because too much
time has passed while the federal suit was pending)
(4) Exceptional circumstances where there are other compelling reasons
Gibbs offers some possible compelling reasons
o Economy
o Fairness to litigants
o Convenience to litigants
o Preventing jury confusion over a complex case
o How courts interpret supplemental claim discretion
! Executive Software (9th Circuit)
To decline supplemental jurisdiction, court must evoke one of the
1367(c) categories (see above)
If choosing to decline for exceptional circumstances, court must
articulate which Gibbs factors apply
! 7 Circuit
Courts can decline supplemental jurisdiction whenever they want
Probably irrelevant history (these were overruled by 1367)
Hangover effect the demonstrates courts hesitance to add supplemental parties
o Gibbs: created supplemental SMJ as matter of common law (for claims)
o Owen: no SMJ in diversity suit when plaintiff adds party that destroys
o Aldinger: when Congress specifies certain defendants that may be brought
under statute, other defendants should not be attached via supplemental
o Finley: can never attach supplemental parties (clearly overruled by 1367)


Basic principles
o If a suit could have originally been brought in federal court, then in may be
removed from state court to federal court
! Well-pleaded complaint rule applies (removal only possible on plaintiffs
claims, not on defendants possible defenses)
o Only defendants can remove
o Removal is automatic; federal court then decides whether to remand to state court
! Why?
Fairness to parties: worries that state courts wont decide fairly
(especially with out-of-state Ds removing for diversity)
Judicial administration: dont want state courts sending a bunch of
cases into federal court
o Removal is move from state court to sole geographically-relevant federal district
o If court or either party at any time realizes there is no federal SMJ, the case will
be remanded to state court
Applying removal
o Identify relevant events
! Removable event
! Removal
! Motion to remand to state court
o Then, ask these questions
! If P seeking to remand: Did plaintiff motion to remand within 30 days of
If no, case stays in federal court
If yes, court should remand if any of the following occur
o Case began in defendants home state court and the only
cause for federal SMJ is diversity
o Defendants did not unanimously agree to removal
o Defendant failed to remove case within 30 days of
removable event
o Defendant had consented to state-court jurisdiction (by,
say, filling an answer)
! If D seeking to remove: Has it been more than one year since the case
initiated and the defendant has just discovered diversity?
No removal possible, unless plaintiff acted in bad faith


Generally, per 2010 exam, unlikely to plaintiff a stay on a lawsuit he filed

When concurrent litigation is ongoing in state courts, when can federal courts decline
Principles behind abstention doctrine
o Federalism
o State-court/federal-court balance
o Desire to not interfere with state governance/administrative systems

! E.g. tax, criminal, education, etc.

! Also: divorces (federal courts wont hear them, Burford)
Applying abstention doctrine: the Colorado River stay (abstention under exceptional
(1) Is there simultaneous, parallel action in state courts?
(2) If parallel action exists, if a holistic consideration of the following factors is
persuasive and clearly justified, dismissal may be warranted
i. Chronological order in which jurisdiction was obtained
ii. Inconvenience of forum
iii. Avoiding piecemeal litigation
iv. Absence of other litigation in federal court
v. Scope of state-court litigation
vi. Existing participation by plaintiff in state-court action
Applying Colorado River test: Clark v. Lacy
o To determine whether a stay is appropriate in a particular case a court must
conduct a two-part analysis
1. Truly concurrent litigation is in progress: Determine whether state-court and
federal-court actions are actually parallel
a. Need not be identical
b. Substantial likelihood that the state litigation will dispose of all the
claims presented in the federal case
c. Substantially the same parties litigating substantially the same issues at
the same time as in another forum
2. (Only if parallel test is met) consider factors that might demonstrate
exceptional circumstances exist that allow federal district court to turn down
a. Whether the state has assumed jurisdiction over property
b. Inconvenience of federal forum
c. Desirability of avoiding piecemeal litigation
d. Order in which jurisdiction was obtained
e. Source of governing law (state v. federal)
f. Adequacy of state-court action to protect federal interests
g. How far along each of the concurrent actions is
h. Availability of concurrent jurisdiction
i. Availability of removal
j. Vexatious or contrived nature of federal claim
3. Note: judges decision is immediately appealable (Cohen, collateral order)


Full faith and credit (Article IV)

Due process clause (14th Amendment)


Against property: court adjudicates ownership of piece of property against the entire
o Cases have odd namesThe Nautilus or In re #4 Privet Dr
Test: Court must validly exercise dominion over property (attach property)
o Court will seize it by posting on the property, entering a lien, or publicizing in
state title books (or if small enough actually putting it in vault)
o If physical object, must be within geographical jurisdiction of the state
o If incorporeal, this would require deeper analysis
(Not a jurisdiction question, but keep in mind) Remember for procedural due process,
court must meet notice and opportunity-to-be-heard requirements


Tests (two possible, discuss both)

o Test #1: minimum contacts among Ds property interest in seized property,
subject matter of the litigation, and forum (Shaffer)
! Greiner doesnt think court takes this test (which treats quasi-in-rem like
International Shoes in personam test) seriously
! There are really never contacts between the seized property and the
subject matter of the litigation
! Courts may be reserving this for potentially absurd situations (Shaffers
DE statute that would have allowed quasi-in-rem suit in DE of any
shareholder of a DE corporation)
o Test #2: tag jurisdiction (Burnham)
! Courts generally apply a version of the Burnham rule for tag jurisdiction
to propertyif property in the geographic confines of the state, then court
can exercise quasi-in-rem jurisdiction
Remember: Burnham is really an IPJ testthis is an analogy
Steps in a quasi-in-rem action
o P alleges D owes him some money (for tort, breach of contract, etc.)
o P asks court to attach Ds property that exists within the geography of the state
! State seizes and attaches Ds property
! Property need not be related to the lawsuit
o P proves in suit that D owes him money
o Ds seized property sold to satisfy the judgment
Why would you use it: two scenarios
o Scenario #1: difficult to serve process upon D
o Scenario #2: difficult to obtain personal jurisdiction over D


Steps in an IPJ lawsuit

o Lawsuit 1: Plaintiff sues defendant in a court other than defendants home court
o Lawsuit 2: P seeks to enforce Lawsuit 1 in Ds home court
! Plaintiff says look, the defendant owes me money as determined in
Lawsuit 1, you should seize his property
! D can challenge
Defendants response to original
D appears, defends on the merits,
and loses

Action in original court

Action in enforcing court

Enters judgment for P

Must enforce the original

judgment, D has waved objection
to IPJ

D makes special appearance, court

agrees that it lacks IPJ
D makes special appearance, court
upholds IPJ, D defaults on the merits
D defaults (this is Ds best option if
he is positive the original court
doesnt have IPJ)
D defaults, later tries to contest
merits in enforcing court

Dismisses claim
Enters judgment for P
Enters default judgment for
P (unless lack of IPJ was
clear on face of complaint)
Enters default judgment for

Must enforce the original

Will only consider question of IPJ;
if it finds that it does not, it will
not enforce
Must enforce original judgment;
Full Faith and Credit clause
prevents reexamination of merits


Scenario #1: P sues D in state of domicile

o Yes: general jurisdiction
o Remember for business: state of incorporation, state of nerve center, and
ubiquitous presence (i.e. Walmart in any statenot technically state of domicile
but such a purposeful availment of the state that it basically counts)
Scenario #1b: P tags D in state
o Burnhams probable rule (4-4-1 splitif I face this in test, also do a scenario #3
! Rationale (for why tag suffices, from Scalia): traditionally, the tag has
been the very basis of due process
Scenario #2: D consents to IPJ (or effectively consents by responding to lawsuit without
raising IPJ right away)
o Yes: general jurisdiction
Scenario #3: Non-consenting D not domiciled in forum state
o Step #1: determine statutory limit
! State court: state statutory limits (long-arm statutes)
Most states: go to the limits of the Constitution (move on to
constitutional analysis)
Other states: give specific situations were IPJ may be exercised
against out-of-state Ps (fit lawsuit into this, then move on to
constitutional analysis)
! Federal court: federal statutory limits
Rule 4(k)(1)(A): Piggy back statute
o If the court of the state in which federal court sits can
exercise IPJ, then federal court can exercise IPJ

o Applies whenever Congress doesnt otherwise authorize

Rule 4(k)(1)(C): express Congressional authorization
o When a statute authorizes nationwide service of process,
personal jurisdiction may be established in any district,
given the existence of sufficient national contacts (GoVideo)
! Congress has ever only done this with respect to
federal causes of action, never done it with state law
causes of action
o First, find federal statute explicitly authorizing IPJ
o Then, perform your constitutional minimum contacts
analysis with the US as a whole (i.e., pretend like the US is
a single state for the purposes of the IPJ tests)
Rule 4(k)(2): for federal claims outside state court jurisdiction
o Only apply if 4(k)(1)(A) or 4(k)(1)(C) dont apply/fail
o Only for federal causes of action
o Perform your constitutional minimum contacts analysis
with the US as a whole (i.e., pretend like the US is a single
state for the purposes of IPJ tests) (Pyrenee)
o Step #2: perform constitutional analysis
! Threshold requirement: Minimum contacts (International Shoe)
Contacts among defendant, forum, subject matter of litigation
o Brennan: almost anything will meet this
o Conservative judges: somewhat of a bar (see below)
Contract may be a minimum contact (McGee)
o But see Hanson, where no minimum contact with the state
that the contracting party moved to, even though the D
maintained a relationship with the contracting party after
the move
! Takeaway: only minimum contact with the state
where the contract initiated
! Once you have minimum contacts: other factors (analogize to these cases)
Purposeful availment (J. McIntyre)
o Targeting the forum specifically (not mere stream of
o Seeking the benefit/protection of the laws of the forum
Plaintiffs interests (McGee)
States interests (McGee)
o State has statute authorizing
o Protect its residents
Foreseeability (World-Wide Volkswagen)
Tag in the state
o NOTE: This may create general jurisdiction (unclear after
Burnhams 4-4-1 split)
Minimal weight (but do consider):

o Efficiency
o Needs of interstate judicial system
o Convenience of parties/witnesses
o Desire to provide a forum in which to litigate dispute
Effects test (Calder)
o Broad interpretation: where effects of Ds act are felt, court
may exercise IPJ
o Narrow: need something more than effectsneed express
o Narrowest interpretation (Griffis)
! 1: intentional tort
! 2: P felt brunt of harm in the forum state
! 3: D expressly aimed conduct at forum state
o Narrow interpretation is likely rightotherwise J.
McIntyre would have met this
Adages for when there is NO jurisdiction
Stream of commerce (J. McIntyre)
Unilateral activity (Hanson, World-Wide Volkswagen)
Blame/domestic law (Kulkoallowing daughter to move to CA
was not a purposeful availment of CA)
Internet jurisdiction (tricky)
Example is Griffis
But Griffis is a messplaintiff must show
1. Defendant committed an intentional tort
2. Forum state was focal point of the plaintiffs injury (brunt
of the injury felt there)
3. Defendant expressly targeted forum state
a. Defendant knew that plaintiff would feel brunt of harm
in forum state, AND
b. Show specific activity showing that defendant targeted
forum state
Implication of this test is: target as broad an audience as possible,
that way you can only be brought under jurisdiction in your home
How might you distinguish Griffis and Calder?
o Where is the reputation located?
o Where is the center of the industry in which the reputation
o In Calder, all of the peripheral damage to reputation
happens in CA because people who hold a conception of
her reputation are in CA


Now-outdated rule: territorialism and the traditional view (Pennoyer)

o In order to exercise personal jurisdiction, defendant must be personally served

within the state (the courts jurisdictional limits)
o Why require in-state service in order to exercise personal jurisdiction?
! Puts a burden on plaintiff, limiting the situations in which plaintiffs can
bring action
! Prevents inconvenience to defendant
! Prevents courts from extending their reach too far
! Sovereignty among the states
! Protecting individuals rightsto the extent that an individual can consent
to submit himself to jurisdiction of a state
o Piece of Pennoyer that is still good law:
! Due Process clause prevents courts from projecting power onto
individuals outside of their boundaries
! What outside the boundaries means changes through subsequent cases
o Pennoyer gives a territorial doctrine to personal jurisdictionwhy?
! Power/sovereignty issue
States should not be able to exercise power within other states
! Fairness to the defendant
Defendants ability to consent to states jurisdiction
Tag within state gives notice
When tagged within state, it cannot be too much of an
inconvenience to plaintiff
Challenges to the traditional view: cars, contracts, and corporations
o Kane (cars)
! States made requirement that drivers appoint someone to receive process
in state in order to drive within the state boundaries.
! This is totally unworkableif someone fails to appoint a receiver, they
still have to be tagged within the state
o Hess (cars)
! States decided that State X can gain personal jurisdiction over nonresidents by declaring that the use of a highway by a non-resident was the
equivalent of the appointment of the registrar as agent on whom process
could be served
! Courts are abandoning strict Pennoyer doctrine


Does not apply to cases removed from state court! If a case is removed, assume venue is
proper (should be the federal district embracing that state court)

Two basic routes to venueyou can pick either one!
1. Residence of defendants (b)(1)
a. Only if all defendants reside in the same state
b. Pick any district in which any defendant resides (there may be multiple valid
2. Location of substantial events/disputed property (b)(2)
a. Pick a district in which a substantial part of events/omissions/property leading
to claim are located (there may be multiple valid venues)
ONLY if neither of those routes applies (because event/omission/property is outside the US)
3. Any location where any defendant is subject to personal jurisdiction
Special rules to keep in mind
For individuals (US citizens and lawful permanent residents)
o Reside = district in which she is domiciled
For aliens
o Reside = everywhere
For corporations
o Reside = any district where (if the district were its own state) the corporation
would be subject to personal jurisdiction
! Reside = (probably any) district in state of incorporation
! Reside = the specific district in which nerve center is located
! Reside = the specific district with which corporation had significant
contacts leading to particular claim
! (maybe) Reside = districts where corporation has a
persistent/overwhelming presence (i.e. Walmart in any district)
For unincorporated associations
o Reside = any district where subject to personal jurisdiction
Statutes may further restrict venue for certain types of claims (e.g. patent)
Alsodefendant may waive right to challenge an improper venue
By declining to/failing to challenge venue
By signing a contract with a forum selection clause
When IPJ/Venue relationship is tricky
Venue (yes) and IPJ (no) J. McIntyre
o Venue because a substantial portion of events happened in NJ (1391(b)(2))

o IPJ no, because federal courts ability to have IPJ is dependent upon state-court
ability to have IPJ (Federal Rule 4(k)(i)(2))
Venue (no) and IPJ (yes)
o Wrong district in right state


When transfer is valid (federal transfer statutes)

o Action may only be transferred to a court where the action might have been
brought at time of filing (Hoffman)
! Only considers IPJ and venue (does not include whether it might have
been brought because of statute of limitations or the law of the circuit)
o Or if all parties consent, you could bring it to any forum (so long as no SMJ
problems, I think)
o Or, if court notices IPJ problem, it can transfer sua sponte
HCOL and transfer (Greiner Happy Court Rule)
o When, in a diversity action, federal court (transferor) transfers to another district
o If transferor was happy (had IPJ and proper venue), use HCOL rules of transferor
! Merely a change of courtroom
o If transferor was unhappy (lacked IPJ or had improper venue), use HCOL rules of
transferee state
! Makes senseplaintiff should not get benefit of HCOL rules of a state in
which they improperly filed


Only for moving litigation to state court or foreign countrys court

Factors for determining forum non conveniens (Gulf Oil Corp.)
o Ease of access to evidence
o Witnesses (compelling unwilling witnesses and ease of access for willing
o View of premises (ability to see property if necessary)
o Judicial administration
! Ease
! Speed
! Expense
! Avoiding congestion
! Governing state or foreign law/judicial expertise (in diversity cases, best
to have trial in the state of the law)
o Local/community interest
! Not imposing jury duty on distant people
! Allowing people with an interest in the trial to see the trial
o (Added by Piper...real party of interest [i.e. who will benefit from this
suitwhere the relatives of the deceased in a wrongful death action reside])
! Where does plaintiff want to litigate?
! Where does defendant want to litigate?

Limit on forum non conveniens

o Change in substantive law when plaintiff will have NO REMEDY AT ALL in the
alternate forum (Piper Aircraft)
! Otherwise, court should not really consider change in substantive law



Steps for determining if you can add a party or claim (walk through claim by claim)
o Step #1: Do you meet the requirements of a FRCP that allows you to add the
! Add a plaintiff (20)
! Add a defendant (20)
! Add third party (14)
! Crossclaim (13)
! Counterclaim (13)
! Add any other claim against a party already in the lawsuit (18)
o Step #2: Does the court have SMJ over this claim?
! Option #1: FQJ
If claims basis is FQJ, then yes
! Option #2: Diversity (tricky)
Amount in controversycan aggregate claims by single P against
single D
o Valid: P sues D on $40k contract claim and unrelated $40k
tort claim
Complete diversity
! Option #3: Supplemental jurisdiction (see above for more)
Common nucleus of operative fact
Claims by plaintiffs must not destroy complete diversity (see
above for more, keeping Exxon in mind)
o Step #3: IPJ
o Step #4: Venue
General requirements:
o FRCP allowing addition of party
o SMJ over the plaintiffs
! If adding a party destroys complete diversity, the case cannot be in federal
Frequent requirement: same transaction or occurrence
o Same as common nucleus of operative facts test from supplemental jurisdiction
o Basic test
! Logical relationship
! Separate trials would involve substantial duplication of evidence and
o Factors (Heyward-Robinson, two excavation contracts found to be same T/O)
! Close and logical relationship
! Same parties
! Same type of work
! Substantially same time period
! Interrelated contractually
! Same insurance policy covered both contracts
! Same evidence would be used in both cases

Impossibility of trying one claim without bringing in substantial evidence

about the other
Policy being furthered here: efficiency
o Obviously more efficient for courts to dispose of related claims all in one suit
o Joinder, although it could be messy, still furthers efficiency aims with 42
consolidation/separate trials requirement
o Also enhances efficiency for parties, who no longer have to file separate lawsuits
Policy also being furthered: fairness to parties
o Counterclaims/crossclaims/third-party claims prevent party from having to pay
one moment what they have the right to recover the next
Another policy: preserve Ps right to choose his forum
o Exception to this is compulsory counterclaim


Same T/O: compulsory [13(a)]

Not T/O: permissive [13(b)]
Jurisdiction over counterclaims
o Majority of circuits: permissive counterclaims require only a logical relationship
between counterclaim and main claim
o Some circuits: permissive counterclaims can only be added if they have an
independent basis of federal jurisdiction (i.e. FQJ or Diversity+AIC)
Effect of failing to assert compulsory counterclaim: cannot raise issue in subsequent suit
in federal court


When another plaintiff wants to sue the same defendant(s)

Requirements [20(a)(1)]
o Same T/O
o Common issue of law or fact (there is always a common issue of law or fact)
Triggers a counterclaim from defendant(s) to added plaintiff

o Same T/O: compulsory [13(a)]
o Not T/O: permissive [13(b)]


When plaintiff(s) want to sue another defendant

Requirements [20(a)(2)]
o Same T/O
o Common issue of law or fact (there is always a common issue of law or fact)
Triggers a counterclaim from new defendant

o Same T/O: compulsory [13(a)]
o Not T/O: permissive [13(b)]


Requirement: same T/O or same property [13(g)]

Always permissive
Generally does NOT destroy diversity because 1367 applies only to claims by plaintiffs
o Court could still decline supplemental jurisdiction under 1367(c)
Triggers counterclaim from other defendant
o Same T/O: compulsory [13(a)]
o Not T/O: permissive [13(b)]


Requirement: same T/O or same property [13(g)]

Always permissive
WARNING: if basis is diversity and this suit does not meet diversity requirements, you
cant add it [1367(b)]
Triggers counterclaim from other plaintiff
o Same T/O: compulsory [13(a)]
o Not T/O: permissive [13(b)]


D1 (acting as third-party plaintiff) can add a third-party defendant [14(a)]

Always permissive
o TPD must be liable to TPP for all or part of the claim against it (shifts liability)
! Not technically a T/O requirement (TPDs are usually insurance
Triggers counterclaim from TPD [14(a)(2)(B)]


Same T/O: compulsory [13(a)]

Not T/O: permissive [13(b)]
Bonus permissive: against any other TPD [13(g)]
Bonus permissive: against another party who would be liable for all or part of any
claim against it [14(a)(5)]
o Bonus permissive: against original P [14(a)(2)(D)]


Requirement: same T/O as original Ps suit against TPP (aka D1)

Triggers counterclaim from original P

o WARNING: if basis is diversity and this suit does not meet

diversity requirements, you cant add it [1367(b)]
o Same T/O: compulsory [13(a)]
o Not T/O: permissive [13(b)]


Follow same rules as when D1 (acting as TPP) adds TPD [14(b)]

Allowed when a claim is asserted against the P (P brings in TPD who would be liable for
all or part of that claim against P)
WARNING: if SMJ is diversity-based, this party must be diverse from



Once an arrow is pointing in one direction, any other claims may be brought in that
o NO T/O requirement
o i.e. if D has counterclaim against P for breach of contract, then D can also join a
claim against P for a completely unrelated tort action
WARNING: any claims joined by P must have SMJ basis


Consolidation: if actions before the court involve a common question of law or fact, the
court may [Rule 42(a)]
o Join for hearing or trial any or all matters at issue in the actions
o Consolidate the actions; or
o Issue any other orders to avoid unnecessary cost or delay
Separate trials [Rule 42(b)]
o For convenience, to avoid prejudice, or to expedite and economize, the court may
! Order a separate trial for one or more separate issues, claims, crossclaims,
counterclaims, or third-party claims
! Separate trial order must preserve any federal right to a jury trial
o Related: court may order protective measures (including separate trials) to protect
a joined party from prejudice (also embarrassment, delay, or expense) [20(b)]
o Related: court may sever any claim against a party (to prevent prejudice) [21]
Court may, on motion or on its own, add a party [21]
Misjoinder (including violations of diversity) is not grounds for dismissing an action
o Court may, on motion, or on its own, drop a party [21]


Intervention is never compulsory (Martin)

Intervention of right [24(a), Smuck, parents intervene in suit against school district]
o Decision of whether to allow should achieve these (potentially conflicting) goals
! Efficiently resolve related issues in a single lawsuit
! Prevent single lawsuit from becoming fruitlessly complex
o Requirements: applicant for intervention must have
! Interest (not a useful criterion)
! Applicant would be impeded in protecting his interest by the ongoing
! Applicants interest not protected by others (burden is on the party
opposing intervention to prove the adequacy of existing representation)
Adequate representation test (Natural Resources Defense Council)

o Existing party has demonstrated sufficient motivation to

litigate vigorously
o AND present all colorable contentions
Can representation by US ever be inadequate? Yes (Trbovich)
o Intervener limited, though, to claims presented in
Governments complaint
o Permitted to intervene under test that representation of his
interest may be inadequate
! Must be timely
United States has an unconditional right to intervene in
o Actions challenging the constitutionality of congressionally enacted statutes
o Suits seeking relief from denial of 14th Amendment equal protection (for race,
color, religion, sex, or national origin)
Permissive intervention [24(b)]
o On timely motion, court may permit intervention by party who
! Is given a conditional right to intervene by a federal statute
! OR has a claim or defense that shares with the main action a common
question of law or fact
o Government officers/agencies (both state and federal) can permissively intervene
if a claim or defense is based upon a statute, executive order, regulation,
administrative order, etc.
o When deciding whether to grant a permissive intervention, the court must
! Whether intervention will unduly delay or prejudice the original parties



Ask is question substantive or procedural?

o Procedural: apply the law of the forum
! If you can argue it is procedural, then it is procedural (broader than in
! Example of a tricky question: enforceability of forum selection clauses
(probably procedural, apply law of forum state)
! Limitations periods are usually procedural (First and Second Restatement)
EXCEPTION: if the statute of limitations is so closely tied the
cause of action that it is actually part of the cause of action
o Substantive: ask am I in a First Restatement state or a Second Restatement
! Then, use choice-of-law rules of the forum (see below)
! Examples of substantive tort law: respondeat superior, guest statutes,
contributory/comparative negligence


Only step: Where is the blood? test
o Apply the law of the state in which the last event necessary to complete the tort
o All issues are governed by the law of the state of the last event (Alabama RR,
applying MS law to tort where injury occurred in MS but other events happened
in AL)
! Do not split up issues within the case
! Example (from 2010 test): AL company manufactures defective tires in
TX. Customer crashes in Mexico. The substantive law used (if TX is a
First Restatement state) is Mexicos.
Policy analysis
o Advantages
! Easy to apply
o Disadvantages
! State with interest in regulating the conduct of corporations/citizens may
lose the ability to regulate that conduct
! State loses some ability to prevent negligence within the state
Step #1: Divide up the issues of a case (Babcock)
o Different claims within a single case can be governed by laws of different states
Step #2: Most significant relationship test (145)
o Apply to each issue, determining which state has most significant relationship to
each issue
o This will usually be the same as wheres the blood? but exceptions applylook
to 145 and 6

o Step #2a: Take into account (145)

! Place of injury
! Place of conduct leading to injury
! Domicile of parties
! Place where parties relationship is centered
o Step #2b: And apply these HCOL principles (6)
! Needs of interstate/international systems
Where would case be efficiently litigated
Where are witnesses/parties/evidence?
! State interest (this is very difficult to measure, see Babcock and Neumeier)
States want their citizens to win
States have interest in regulating conduct that occurs within their
! Protection of partys justified expectations
! Predictability/certainty/uniformity of result
! Ease of determination/application of law
Policy analysis
o Advantages
! Allows states to regulate conduct that may lead to injuries
o Disadvantages
! Creates a difficult-to-understand patchwork of laws
Could create a patchwork system that functions to enforce
incompatible laws that create situation no one would vote for
(Greiners workers comp hypo)
! Prevents states from controlling the levels of allowable risk within the
! Inefficient: extremely complicated
! Usually the wheres the blood test ends up applying anyway
Example: Babcock
o When NY driver injures NY passenger while driving a NY car in Ontario
o NY law applies to negligence claims
o But wrongful conduct claim would be governed by Ontario law (because Ontario
has strong enough interest in preventing wrongful conduct within the province)



Fundamental question: how do we determine whether we apply state law or federal law in
diversity cases?
o Attempt to draw line between substantive law and procedural law
! If substantive, apply state law
! If procedural, apply federal law
1652. State laws as rules of decision
o The laws of the several statesshall be regarded as rules of decision in civil
actions [in federal courts]
! In Swift the laws of several states was interpreted to mean only the
statutes of statesfederal courts were to apply a transcendental general
law in all other circumstances (this has since been overturned)


Metaphysical justification
o There is no general federal common law
o Law is created by people/constituenciesit is not natural
! Law is created by a sovereign
! It doesnt matter how states choose to make law (i.e. judge-made or
! All state law (decisional/common law and statutory law) is equally the
law of the state
Statutory limit justification (1652)
o Laws of the several states means everything the state has chosen to be law:
statutes, state common law, etc.
Constitutional limit: three different rationales
o Federalism
! Congress has no power to declare substantive rules of common law
applicable in a state
Possible criticism: because Congress has the power to regulate
railroads under the Commerce Clause, why dont they have power
to create railroad-related tort law?
Possible criticism: courts, not Congress, make common law
o Separation of powers
! Courts would be essentially making up the law, which is a violation of the
constitutional role
! Courts making law encroaches on Congresss law-making power
o Equal protection
! Taxicab case highlighted this: there were different remedies available for
in-state and out-of-state plaintiffs
! Irrational/unfair to give different litigants access to different substantive
law systems within a single state
Common law
o Need for vertical harmony (only one system of substantive law within a state)
Common-sense justification

o Federal courts just arent equipped to make wide-ranging common law


Basic goal of each: apply state substantive law and federal procedural law
o Try to apply the state substantive law (as per Erie)
o Try to apply the federal procedural law (as per FRCP)
Dividing line between substance and procedure is really tricky
On exam, unless screamingly obvious, this distinction does no good
o Screamingly obvious: paper size limits (procedure)
o Screamingly obvious: time limit for filing a response (procedure)
o Screamingly obvious: negligence test (substance)
Statute of limitations (from York)
o Use state SOL rules when doing so would effect the outcome of the case
o Somewhat easy because there is no federal SOL (just multi-factor tests)
On exam, apply the following


Ask whether difference between federal law or state law would be outcome determinative
o If at the moment you are deciding the issue, applying either federal law or state
law would create different outcomes (generally meaning a binary yes/no
dismissal), apply state law
o Then, see which rationale applies (see below)
Oftentimes its easy (when binary)
o Statute of limitations
Sometimes its not easywhat is outcome?
o Class certificationwhether an individual is able to represent a class or can only
represent themselves
o Degree/amount of damages
SEE WHICH RATIONALE APPLIES: depends on what you think Erie was based upon
o If based upon Federalism
! This test applies if Congress is overstepping its role and interfering with
state common law
o If based upon Separation of Powers
! This test only applies if the court is somehow inventing Federal law for
purposes of this case
o If a prudential/commonsense concern
! Only applies if the court is somehow inventing Federal common law
o If Equal Protection concern
! Only applies if parties are non-diverse (Multi-colored taxicab case)


Part 1
o 1A) Look for a valid and applicable constitutional provision or federal statute
! If there is one of these, use federal law
! How to determine if valid and applicable?

If constitutional provision, its automatically valid

If federal statute, look to find some sort of constitutional basis that
allows Congress to pass it (note: wont construe statute narrowly,
per Stewart)
o Possible costitutional bases: Article 32 (power to create
federal courts), Article 18 (necessary and proper clause)
o 1B) If no constitutional provision or federal statute, look for FRCP
! FRCP must be valid and applicable in accordance with the Rules Enabling
Act (must not expand, abridge, or modify a state substantive right)
Test: look to the FRCP in question and ask, Does it really regulate
o Invalid if it alters the rules of decision by which the court
will adjudicate rights
o Valid if it governs only the manner and means by which the
litigants rights are enforced
o Note: it should be super difficult for any FRCP to not apply
under this test
Part 2
o If no applicable constitutional provision, federal statute, or FRCPyou must
decide if you are going to make up federal common law or apply state law
! To decide, use twin aims of Erie test (prevent forum shopping and
prevent inequitable administration of laws)
! Almost all issues that make it here will promote forum shopping, as such,
you will use state law
Rationale: efficiency (ease of judicial administration)
o Allows courts to just make threshold determination that FRCP is valid
! FRCP will then be valid vis--vis every states laws
o Prevents federal courts from having to guess how the states courts will interpret
the statute


Ask: would using federal, rather than state, law change primary human conduct (i.e.
would one of the parties change its pre-litigation conduct to gain an advantage)?
o If yes, use the state law
o If only a litigator would care about the distinction, then apply the federal law
! Note: a savvy business might change its behavior based upon things the
average person wouldnt change their behavior on, so watch out
Rationale: federalism
o Only really makes sense if you believe states should be the regulators of conduct
o Rationale is much weaker now that federal government has huge powers


Important precedent: Walker interpret narrowly (when FRCP violates REA, lie and say
the FRCP doesnt apply)
Part 1

o 1A) Look for a valid and applicable constitutional provision or federal statute
! If there is one of these, use federal law
! How to determine if valid and applicable?
If constitutional provision, its automatically valid
If federal statute, look to find some sort of constitutional basis that
allows Congress to pass it (if it conflicts with state substantive law,
try to construe it narrowly to avoid direct collision)
o Possible constitutional bases: Article 32 (power to create
federal courts), Article 18 (necessary and proper clause)
o 1B) If no constitutional provision or federal statute, look for FRCP (NB: per 2010
exam, the accommodation of interests approach would also apply to federal
common law [forum non conveniens]on test, apply accommodation of interests
approach to whatever you have, be it statute, FRCP, or federal common law)
! FRCP must be valid and applicable in accordance with the Rules Enabling
Act (must not expand, abridge, or modify a state substantive right)
Test: interpret with sensitivity to substantive state
policies/interestsif there is a conflict between state law and
FRCP, try to find a way to narrowly interpret FRCP
If you succeed in narrowly construing, apply state law
Part 2 (see Scalia test, twin aims of Erie)
o Federalismneed to preserve state laws
o Fairnesswouldnt be fair to allow a sneak-attack federal rule to make party



Code pleading
o Must put in complaint facts that, if proven, would be sufficient to grant relief
o Justifications
! Allows court to decide if complaint is legally viable
! Court will be able to use the complaint itself to determine whether it can
be dismissed
! Enable the opposing party to adequately respond
Notice pleading
o This is what federal courts had before Twombly/Iqbal
o Point of complaint is merely to put defendant on notice as to
! Nature of the claim
! General facts/legal theory
! Not too many details necessary
o Justifications
! Permit discovery, exchange of information
! Wait to see if trial is warranted until after discovery
o Problems
! In certain cases, discovery process is extremely expensive and timeconsuming
! Discovery can tie up key decision-makers (e.g. John Ashcroft)
Plausibility standard (Twiqbal)
o This is code pleading, essentially, but courts call it notice pleading
o How to apply (i.e. figure out whether complaint is sufficient)
! Cross out all conclusory allegations and formulaic recitations
This is difficult
! Assume the truth of the factual allegations in the complaint
! Decide: do the remaining statements nudge the complaint across the line
from possible to plausible?
This requires you to look very carefully at what the substantive law
o Problem: court is essentially overruling FRCP 8 and the Forms (particularly Form
o Problem: direct contradiction of Swierkiewicz holding on pleading in
discrimination cases
! Swierkiewicz: pleading only needs to give respondent fair notice of what
the petitioners claims are, the grounds upon which they rest, and then
state a claim upon which relief could be granted

Preliminary facts


P forced out
P replaced by person of different
national origin
P has more experience

Ultimate fact (aka formulaic

recitation of elements of cause of
action? Aka legal conclusion?)
National origin discrimination

Bell Atlantic v. Twombly

State slip & fall case

Parallel conduct
Plus factors
Muslim men
Harsh (unnecessary) detention
Existence of the puddle
Company knows about puddle
Company does not clean up


FRCP 12. Defenses
12(b) How to Present Defenses. The following defenses may be asserted by motion (not
(1) Lack of SMJ
(2) Lack of personal jurisdiction
(3) Improper venue
(4) Insufficient process
(5) Insufficient service of process
(6) Failure to state a claim upon which relief can be granted
(7) Failure to join a party under Rule 19
o A motion asserting any of these defenses must be made before pleading/answer. If
pleading does not require responsive pleading, any defense may be asserted at trial.
o 12(b)(6) is correspondent to 8(a)(2)
o 8(a)(2) requires plaintiff plead a short and plain statement of the claim
showing that the pleader is entitled to relief
o Twombly and Iqbal are emphasizing the showingentitle[ment] to relief
element of FRCP 8(a)(2)
Policy justifications for motion to dismiss
o Efficiency (dont need to waste time on trial when we know outcome)
o Problem: finding right balance
! Too loose of restrictions: may allow too many non-meritorious cases to go
to trial
! Too rigid of restrictions: may prevent meritorious cases from reaching trial


12 (c) Motion for Judgment on the Pleadings. After pleadings are closedbut early
enough not to delay trial
o This allows defendant to file a post-answer motion for dismissal
o Essentially a post-answer 12(b)(6)
o Allows court sua sponte and plaintiff by motion to strike insufficient defense or
any irrelevant materials from a pleading


FRCP 8(b) (Denials)

o Defendants often add all-inclusive paragraph denying all averments unless

otherwise admitted
o FRCP discourages general denials
o Denials must be made in good faith
o General denials must deny everything in the complaint
o Courts may treat denials or lack of knowledge denials as admittances if not
made in good faith


What is a preliminary injunction?

o Movant asks the court for relief before movant proves entitlement for relief
o Timing: early in the case, generally before full discovery
Requirements (in 5th circuit you must meet ALL of these, otherwise its a balance)
1. Likelihood of success on the merits
o Merits of the underlying fact pattern
o Alsounlikely to succeed if movant
! Lacks SMJ on nonmovant
! Lack PJ on nonmovant
! Lack venue on nonmovant
! Uses wrong HCOL on nonmovant
2. Irreparable harm
o Cannot be remedied by getting money later on
o Remember: we think almost anything can be remedied by getting money later on
o Classic instances of irreparable harm
! Government cannot be sued (sovereign immunity) so no future damages
would be possible (Thane-Coat)
! Damage to present business (Thane-Coat)
! Lost future business (very difficult to prove/quantifysometimes
considered irreparable because it will not be provable at future suit)
! Damage to reputation (courts may be skeptical about this) (ALK, movie
theatre case)
3. Balance of the Equities
o Who would be harmed more?
! Balance harm to D if preliminary injunction issues AGAINST harm to P is
preliminary injunction does not issue
o FDA drug trial case (Amgen): world would be harmed more by granting the
4. Public interest
o Example FDA drug trial case (Amgen): granting preliminary injunction would
make drug makers afraid to make new drugs



Constitution establishes a floor for notice and opportunity to be heard

o Statutes laying out notice procedures must be above that floor
o Plaintiffs must follow statutes, even if they are more stringent than the
constitutional floor
Notice must be reasonably calculated to actually reach interested parties (Mullane)
o If P knows the identity and address of an interested party, P must mail notice to
that interested party (Mullane)
o Eviction notices in public housing must be made by mail (not posted on tenants
doors (Greene v. Lindsey)
o Last known address is good enough when defendant failed to stop after traffic
accident (Dobkin v. Chapman)
o What if original attempt at notice fails? You may be required to take additional
! If notice via certified mail fails, P must attempt notice via regular mail
(Jones v. Flowers)
o Changing social circumstances matter (email, certified mail, etc.)
Number of days between giving notice and court appearance date
o Must not be too quickWar Eagle found 7 days notice insufficient
Content of notice
o Theoretically must give fair notice of proceedings (but really arent
comprehensible to lay people)
o Must inform defendant of appearance info and legal rights (Aguchak)


Giving people an opportunity to protect their property rights

o Old property rights: real estate, wage garnishment
! We think they are important because they allow us to be functioning
citizens in society
! Need more than merely P filing to deprive D of property (Doehr)
o New property rights: government benefits
! Also required to allow us to function in society
! Must give welfare recipient some kind of hearing before terminating
benefits (Goldberg)
Three-part test: Hearing required BEFORE the deprivation of a property (or property)
interest by looking to: (Mathews test)
o Private interest that will be affected by the official action
o Risk of erroneous deprivation of that interest through the current procedures, and
the probably value of additional/new procedural safeguards
o Government interest, including the function involved and the fiscal and
administrative burdens that the additional/new procedural requirements would
o Doehr suggests 4th prong: interest of party seeking prejudgment remedy
Grounding constitutional protections
o 14th Amendment due process clause (for state-law claims)

o 5th Amendment due process clause (for federal-law claims)

Factors affecting due process
Amount of need
Greater need, more process
needed (Goldberg, welfare)
Less urgent need, less process
needed (Mathews, disability)



Nature of proof
Documentary: less process
needed (Shaumyan)
Medical: less process needed
Decision maker

Posting a bond (Doehr plurality)

Makes P think more about filing
in the first place
Protects D in case P erroneously
deprives him of property
States interest in protecting
monopoly on legitimate use of
forcemay lead to insistence upon
having more process (Doehr)

Information available to decision

Hearing from D
If D has opportunity to make a
written argument before
deprivation: hearing less
Burden of proof
When seizure is effected
Burden of going forward to real
If greater burden, more likely to
use less process
General note: remember the Turner v. Rogers courts faith in forums to solve due process concerns


Presumption is that no lawyer will be provided unless there is a physical deprivation

States may be required some sort of representation (but may not be lawyer) (Vitek)
o This is rare, however
Irreducible minimum when due process is required (Vitek, for transfer of prisoners to
mental institutions)
o Hearing
o Opportunity for state to produce evidence
o Opportunity for defendant to produce evidence
o Independent decision maker
o Written explanation of decision
o Some representation provided to defendant (not necessarily a lawyer)
o (Not required: jury, appeal process)
Look to Mathews test when determining what is required
Policies being reinforced with due process requirements
o Search for truth (giving people representation may help this)
o Convincing the public of the rule of law (this is important for process)


FRCP 56: Summary judgment

Policy justifications for summary judgment
o Efficiency (dont need to waste time on trial when we know outcome)
o Problem: finding right balance
! Too loose of restrictions: may allow too many non-meritorious cases to go
to trial
! Too rigid of restrictions: may prevent meritorious cases from reaching trial


Burden of production or persuasion (dont say burden of proof)

o Tells us who loses an issue if there is no evidence on that issue
Rules for summary judgment (from Brennans dissent in Celotex)
1. If movant would have burden (of persuasion) on an issue at trial (plaintiff or
defendant-with-affirmative-defense filing for summary judgment)
a. Movant must produce sufficient evidence, which, if unrebutted, will compel a
reasonable trier of fact to find in movants favor (burden of production)
i. produce sufficient evidence: depositions, affidavits, documents
b. If movant meets that burden, the burden (of production) shifts to nonmovant.
Nonmovant must produce sufficient evidence to create a genuine issue of material
c. If nonmovant meets that burden, burden (of persuasion) shifts to movant to
convince court that nonmovants evidence is insufficient (with additional
evidence or legal argument as to why nonmovants evidence does not create
genuine issue of material fact)
2. If movant would not have burden on an issue at trial (defendant or plaintiff-fightingaffirmative-defense filing for summary judgment)
a. Option 1
i. Movant produces evidence that affirmatively disproves nonmovants
claimevidence that is sufficient, if rebutted, to compel reasonable trier
of fact to find in the movants failure
ii. Then, same procedure as 1(b) and 1(c)
b. Option 2
i. Movant produces evidence to show that nonmovant lacks the evidence to
prove its claimproducing an analysis that is sufficient, if rebutted, to
compel reasonable trier of fact to find in the movants failure
1. How would you do this as a lawyer? Pretend you are the
nonmovants lawyer; and demonstrate to the court that even
making nonmovants best case, this would be insufficient to prove
nonmovants claim
ii. Nonmovant must then produce evidence sufficient to create a genuine
issue of material fact (sufficient to allow a rational trier of fact to find in
its favor)
Evaluation of evidence at summary judgment
o At summary judgment, facts must be viewed in light most favorable to
nonmoving party ONLY IF there is a genuine dispute as to those facts

Genuine dispute means a rational trier of fact could find for the
nonmoving party



1. P must prove prima facie case: P-member of class (failure to hire)

a. Applied
b. Not selected
c. Person who was selected is not a member of the class
d. A little something else(?)
2. Burden shifts to Defendant to produce evidence of legitimate, non-discriminatory
3. Burden shifts to P to prove by preponderance of the evidence that Ds legitimate
reasons were not its true reasons
Why this different (more P-friendly) framework?
o Context of statutes passagethere was a whole lot of discrimination
o Need to force Ds to speak so that court knows what its fighting over


FRCP 41(a)
o P may voluntarily dismiss before D has filed response OR if all parties agree and
few resources have been expended by court on lawsuit
! Dismissal will be without prejudice
! Generally leaves parties in the same position they were in before suit
What happens when prolonged discovery has taken place? (McCants)
o When to allow voluntary dismissal?
! Any time, UNLESS defendant will suffer clear legal prejudice (mere
prospect of another lawsuit is not clear legal prejudice)
! General rule: any point before trial (When is trial? Some courts have
held it is before submission of the case to jury/judge for decision)
o How to grant voluntary dismissal
! If D has been put to considerable expense, make P reimburse D for a
portion of his expenses



Judges are good at

o Law
o Documents (Markman)
Juries are good at
o Determining credibility
o Applying/determining community standards (i.e. obscenity, negligence)
! Broader representation of community
! Judges are more isolated, educated, older, white, male


Note: Seventh Amendment does not apply to the states

Preserves the right to a jury trial
o Jury right to jury trial exists only on the historically law side (i.e. not in equity
o Frozen in place as to where trial existed in 1790
Test: determining whether Seventh Amendment applies to case at hand
o If its a common law cause of action that existed in 1790, look directly to the kind
of remedy that P seeks
! If P seeks equitable remedy, no jury trial
! If P seeks legal remedy, yes jury trial
o If cause of action is newly statute-created post-1790, do TWO-PART historical
analogue inquiry (Chauffers v. Terry)
1. Analogize statutory action to 1790 law/equity actions
a. Divide the case by issue, and apply the test to each individual
b. The existence of one equitable issue does not push the entire
case into the equitable common (nor vice-versa)
2. Examine remedy and determine whether it is legal or equitable (this is
the more important and more heavily weighted inquiry)
a. Legal remedies
i. Damages (compensatory and punitive)
ii. Ejectment (order to get off real property...feels like an
injunction, but it isnt)
b. Equitable remedies
i. Restitution (order to return moneyfeels like damages, but
it isnt)
ii. Injunction
Exception to Seventh Amendment: public rights exception (Atlas Roofing)
o When government sues to enforce statute-created rights (i.e. acts as a regulator),
there is no right to a jury trial
o MUST be a public right at stake: Congress cannot eschew jury trial requirement
by sending cases to a special tribunal (Granfinanciera, finding right to jury trial in
bankruptcy actions)

Jury trial must be demanded (FRCP 38 & 39)

o Amendments to pleadings cannot revive a right to jury trial that has been waived
! Exception: if new claim involves events that occurred after the original
o Courts do have discretion to permit jury trial despite a partys failure to request in
a timely manner (14 days after last pleading to the issue is served)
! What do courts consider in discretionary permissions?
Scheduling of court parties (Khalil)
Whether issues are best decided by a jury (Batteast)
Degree of prejudice faced by not having jury (Batteast)
Length of delay in requesting jury (Batteast)
Reason for requesting partys tardiness in requesting (Batteast)
o If jury trial right exists alongside equitable claims
! If district court can schedule a case so that it can preserve a jury trial, it
MUST schedule the case that way (Beacon Theatres)
Example (P claims for injunction, D counterclaims for
o 1) temporarily enjoin D
o 2) give D full jury trial
o 3) grant P permanent injunction if appropriate
Party can waive a jury right
o Through contract or arbitration agreement
o Can happen before trial or before dispute ever arises
o Requires voluntary, intentional, and knowing decision (this is loosely enforced)


Test: determining who decides an issue, judge or jury (Markman)

o Precedent
! Follow precedent
o Interpretive skills of judge versus jury
! Writings are better suited to be determined by judge
o Ensure uniformity in treatment (in Markman, of a given patent)
! Judges write down decisions (juries cannot do that)
! This increases certainty in the marketplace


Basic procedure
o Parties submit proposed jury instructions to judge
! Judge picks the good ones and uses them
o Alternatively, most courts have model instructions that were approved in the
prior case law (approved on appeal)
Challenging an instruction
o If you didnt submit the instruction you think the court should have used, you are
generally unable to argue that instruction should have been used on appeal

o If you dont object to an instruction the court chooses, you are generally unable to
challenge the courts instruction on appeal
o Even if a party submits no instructions, the court must give broadly appropriate
instructions (Houlihan, notes case)
o Upon appellate review, jury instructions are subject to a harmless error analysis
(i.e. no reversal/remand/new trial unless its reasonably probable they changed
outcome) (Kennedy)


Rule 52(a)
o Judge must find facts specially and state his conclusions of law with clarity
o Must be sufficient to indicate the bases of his decision
o Findings of fact, whether based upon oral or other evidence, will not be set aside
unless clearly erroneous
o Judges should formulate conclusions BEFORE announcing decision (Roberts v.
Policy reasons
o Aid appellate court, by giving clear understanding of basis of decision
o Make definite just what was decided, for purposes of preclusion and estoppel
o Forces trial court be careful in ascertaining facts (better decisions)


A jury verdict is not final until a judge enters a judgment

Rule 50
Judge must say no rational jury could find for the nonmovant in order to grant
o If party moves before jury renders verdict: directed verdict
o If party moves after jury renders verdict: JNOV (judgment non obstante veridcto)
o Judges generally do not grant or deny Rule 50 JAMOL made before the jury
verdictonly hear it and delay decision on the motionthen movant may renew
motion after jury verdict
! Parties especially defendants should always make a JAMOL before
o If party fails to make a JMOL before verdict, then party cannot make a JMOL
after verdict
! (NB: per 2011 exam, this requirement might possibly be read loosely, i.e.
allowing a verbal motion for preclusion to count, depending upon the
judges particularities)
! Why? So judge may decide to allow plaintiff to put on more evidence in
order to sufficiently prove his case
o Why do we have this procedure?
! Sometimes one party accidentally fills in necessary evidence for the other
sides case
! Efficiency: limits situations in which there will need to be a retrial upon


Aetna Casualty & Surety Co. v. Yeatts (1112)

Rule 59: New Trial
o Judge may grant a partys motion for a new trial on the ground that the verdict is
against the great weight of the evidence
! Or based upon false evidence
! Or will result in a miscarriage of justice
o No need that jurys finding be irrational
o Greiner: no good rationale for this doctrine
! Best reason: if party can persuade judge post-verdict that he made an error
that will be reversed on appeal, allows the parties to avoid appeal and go
straight to new trial
Conditional and partial new trials (Fisch v. Manger)
o Remittitur
! Universally accepted
! Court issues order denying Ds motion for a new trial on condition that P
consent to specified reduction of jury award
o Additur
! Unconstitutional in the federal courts per Seventh Amendmentbut some
state courts allow it
! Court issues order denying Ps motion for a new trial on condition that D
consent to a specified increase in jury award
o Court is supposed to set a reasonable number for reduction/increase in jury award
o Policy justifications
! Avoids second trial
! Serves substantial justice
Unitherm (Handout)
o If you do not ask for a new trial before the trial judge, you cannot ask for one on
o By Rule 6(b)(2), trial court cannot grant JMOL or new trial past the deadlines to
move (28 days)complete rigidity
! Why so rigid? Dont want to waste timepracticality and finality



Rule 60(b)
Applied very rarely
Will not apply to allow a party to take advantage of post-judgment higher-court decision
that would have entitled that party to win (Title)
Policy justifications
o Limited resources
o Economic efficiency
o Perception of fairness
o Perception of finality
DOES apply to
o Mistake (1 year limit)

o Excusable neglect (1 year limit)

! Broad, can apply to movants negligent failure to meet filing deadline
! Factors for deciding excusableness (Pioneer)
Danger of prejudice to nonmovant
Length of delay and its impact on proceedings
Reason for delay
Movants good faith
o Newly discovered evidence (1 year limit)
! Must meet following factors to grant new trial (ACLU v. DOD, notes case)
Newly discovered evidence is of facts that existed at time of prior
Movant was excusably ignorant of those facts despite using due
diligence to learn about them
Newly discovered evidence is admissible and will probably change
Newly discovered evidence is not merely cumulative of evidence
already offered
o Fraud (1 year limit)
! One test (Herring, notes case)
Intentional act
By an officer of the court
Directed at the court itself
Which in fact deceives the court
! Judgment can be set aside for perjury (Peacock, notes case)
o Other reasons deemed appropriate (no time limit)
! Courts have found errors ostensibly falling in the categories special and
therefore able to come in here (with no time bar)


If there is not reasonable probability that error in trial (i.e. improper jury instruction,
improperly admitted evidence) caused a difference in verdictthen harmless error
applies, and the error cannot be challenged on appeal (Kennedy)


Note: in appellate jurisdiction context ONLY, claim = set of facts + theory of relief
Note: defects in appellate jurisdiction can be raised at any time, by court of party (like
defects in SMJ) (Liberty Mutual)


1. Final decision [1291]
a. Final judgment (i.e. judgment on all claims of an entire case)
b. Rule 54(b) (judgment on some but not all claims of a case)
c. Collateral order exception (treated like a 1291 final decision)
2. Injunction [1292(a)(1)]
3. Interlocutory decisions (double discretion) [1292(b)]
4. Class-action certification [Rule 23(f)]
5. Mandamus (only in extraordinary cases, but disregard other frameworks)


Final judgments of district courts (1291)

Appealable to court of appeals
30 day time limit (from issue of final decision by district court)
Policy justifications for final order rule
o Pros: efficiency (smoother/quicker trial operations)
! Most trial court rulings are correct, making appeals inefficient
! Most incorrect trial rulings will not affect the final judgment
o Con: potential inefficiencies
! Erroneous ruling can taint all following events
! Delayed appeals require more full retrials
o Con: unfairness
! If retrial becomes required later, it may not be as just as it could be
Memories lapse
Loss of actual evidence
Opportunities to sustain truth by impeachment diminished
! Retrial produces anxiety
o Con: areas of law must develop without appellate guidance (i.e. discovery)
o Con: publics demand for justice wants the highest authority to hear cases


In cases with multiple claims or involving multiple parties [FRCP 54(b)]

o Default: courts should resolve all claims for relief at the same time
! *** (in appellate jurisdiction context) Claim = set of facts + theory of
relief (Liberty Mutual)
! Note: District court does not issue a final order when it merely issues a
declaratory judgment and does not rule on any of Ps theories of relief
(Liberty Mutual)
Exception: Court can determine there is no just reason for delay in issuing a ruling on one
or more claims

o Claims must not be so interrelated that they should only be appealed as a single
unit (Curtiss-Wright)
! Why? Avoid piecemeal appeals
o Claims must be truly separable (Curtiss-Wright)
o Court must make an express determination that there is no reason for delay and
expressly enter a final judgment on the individual claim(s) (Sears)
! Why? Alert adversely affected party that appeal clock is ticking
! 30 day deadline to appeal that claim
Scenario: D dismisses one of Ps two claims by 12(b)(6)
o P will want judge to issue 54(b) judgment on that claim, so he can immediately
appeal and keep his case together (reducing costs)
o D will want judge to NOT issue 54(b) judgment on that claim, making P wait
until final judgment on ALL claims to appeal
! Delay is almost always in Ds favor (strategic incentivesettlement
becomes less valuable as time passes)
! D can also hope to avoid discovery costs on that dismissed claim


Functions like a 1291 final order for procedural purposes

Test: four elements must be satisfied
o Order must be unable to appealed later
o Order must have no bearing on the merits of the case
o Court must definitively rule on the order at issue
o Must not be a discretionary issue of the collateral order (i.e. you cannot appeal the
amount of a security bond)
Apples to court decisions that finally determine claimed rights and are not an ingredient
of the cause of action (Cohen)
o Examples
! Requirement to post security bond (Cohen)
Why? After final judgment is entered on the merits of the case, it
would be actually impossible for the plaintiff to buy a bond
! Colorado River stay
Why? Because once state court case comes to judgment, P will be
unable to appeal because of claim preclusion
! Criminal contempt order for failure to obey court order (US v. Nixon)
o Non-examples (when court denied a collateral order appeal) (p. 1173)
! Disclosure orders adverse to attorney-client privilege
! Order disqualifying partys attorney
! Ruling on partys immunity from civil process
! Ruling on whether venue contract required case to be filed in foreign
! Ruling on partys claim of immunity from suit under settlement agreement
! Order imposing sanctions for discovery violations


Always immediately appealable: all injunctive orders made/denied/modified by district

courts [1292(a)(1)]


Discretionary review: other motions (strict requirements) [1292(b)]

o District judge has made an ordinarily non-appealable order, and states in writing
when granting the order that the order:
! Involves a controlling issue of law
! There are substantial grounds for differences of opinion
! And immediate appeal of the order would advance the ultimate resolution
of the case
o Once above requirements are met: Court of Appeals has discretionary review
! Rules triggered
Party must apply for appeal within 10 days of order
Application for appeal of motion ordinarily will not stay
! When will Court of Appeals deny discretionary review (Atlantic City
Electric Co., court denies review of district courts rejection of a discovery
o Prevent too much litigating of similar issues
o Adversely affected party will have opportunity to appeal if
an adverse final judgment is issued against them
o Ultimate disposition of the case would be delayed (rather
than advanced) by allowing appeal
No major fairness concerns
o D retains right to raise this defense if appellate court later
determines district court was in error
Called double discretion because both trial and appellate judge has discretion


Immediately appealable [Rule 23(f)]


Supervisory order from court of appeals ordering district court to fulfill its legal
obligation (do something/stop doing something the court of appeals wants the trial court
to do/stop doing)
Three-part test (Cheney)
o Person asking for mandamus must be about to suffer some harm that couldnt be
undone later (i.e. no other adequate means to attain the relief sought)
o Right to relief must be clear and indisputable (movant bears this burden)
o Issuing court must be satisfied that the writ is appropriate under the circumstances
o Denial of request for jury trial
o Judge improperly appoints a master to hear a difficult case (La Buy)
o Order to district court to order restitution (Amy Unknown)

o Pros: both efficiency and fairness rationales
! Prevent practicing posing severe threats to the proper functioning of the
judicial process
! Prevent usurpation of judicial power
! Prevent clear abuse of judicial process
o Cons: awkwardtechnically a lawsuit against the district court judge


P required to assert (in the complaint) all matters arising out of the same incident (and
against the same party) in one lawsuit
o Operates even if P only asks for declaratory judgment and doesnt assert a theory
of relief
o Only operates against Ps
Three elements required for claim preclusion (write each down and walk through them,
1. Same claim
Yes: if based upon common nucleus of operative fact, no matter how diverse
or prolific the claims themselves might be (Gonzalez)
This is determined pragmatically (RSJ 24)
o Convenient for trying together
o Conforms to parties expectations or business usage
o Remember: each bond and coupon (also debt, generally) is a separate
! Why? We want to promote the market for bonds and coupons
2. Same party
Yes: substantial control (Gonzalez)
o Power to call the shots over litigation decisions in Lawsuit #1
o Examples
! Insurer in #2 who assumed insureds defense in #1
! Sole shareholder in #2 whose company sued in #1
o Non-examples
! Party in #2 retains same attorney as party in #1
! Party in #2 financed litigation in #1
! Party in #2 testified as a nonparty witness in #1
Yes: virtual representation (Gonzalez)
o Threshold requirements: same identity of interests
o If same identity of interests, it becomes a balancing of the equities
! Actual or constructive notice of the earlier litigation?
! Party in Lawsuit #2 gave actual or implied consent to be bound
by results of Lawsuit #1?
! Party in Lawsuit #2 is closely linked to party in Lawsuit #1 by
business or familial relationship?
Yes: privity
o Person acquires an interest in some sort of property that has already
been the subject of a lawsuit (i.e. through inheritance)
! Example: debt-holder #1 collects on debt and then sells the
right to collect on debt to debt-holder #2debt-holder #2 is
claim precluded from collecting on the debt
3. Final judgment on the merits

On the merits is deceptivereally its shorthand for saying something

happened in Lawsuit #1 such that we dont want to deal again with that claim
(aka transaction or occurrence/common nucleus of operative fact)
Yes: dismissed via summary judgment, JMOL
Yes: final judgment is entered (i.e. goes to final judgment and someone wins
or loses)
o When case goes to judgment in a trial court, then both claim and issue
preclusion attach, even if claim or issue is still on appeal
Yes: settlement
Yes: dismissal for non-compliance with discovery procedures
No: dismissal for lack of SMJ, IPJ, venue, misjoinder
No: voluntary dismissal without prejudice
Less preclusive: if court says ruling is without prejudice
Acceleration clauses
o If acceleration clause has been triggered, P must sue on entire amount due or will
be claim precluded (Jones v. Morris Plan Bank, car installment payments)
! When entire balance becomes due and bank successfully sues for one
months payment, bank will be claim precluded from future attempt to
collect entire balance
o If court can find a way to say acceleration clause hasnt been triggered, they
might (Aiglon)
Continuing/renewed conduct
o If conduct that is subject of Lawsuit #1 continues after judgment, claim preclusion
will not prevent a second lawsuit
o Efficiency
o Fairness
! Prevent harassment of D
! Prevent P from fishing for sympathetic jury
! Prevent inconsistent results
o Finality


Runs against both Ps and Ds

Order of Lawsuit #1 and Lawsuit #2 determined by when judgment is entered, not when
litigation was initiated
Required elements (3 or 4 depending on where you are)
1. Same issue
Must be CERTAIN, either upon the face of the record or shown by extrinsic
evidence, that the precise question was raised and determined in former suit
(Russell, no issue preclusion when unclear from Lawsuit #1 which of patents
two processes was basis of decision)
Note: we manipulate this requirement to further the policy decisions of our
2. Actually litigated
NO: Unchallenged defense

o P is not issue precluded from fighting that defense in a subsequent

suitthe issue was not actually litigated (Cromwell)
MAYBE: Default judgment
o RFJ: default judgment triggers issue preclusion
o RSJ: default judgment does not trigger issue preclusion (because not
actually litigated)
o Penalty default judgment (for deliberate refusal to participate in
discovery) triggered issue preclusion (In Re Bush)
! Justification: party had substantially participated and had
full and fair opportunity to defend on the merits
NO: Issue in the pleadings
o Not issue precluded (though Vestal thinks it should be to advance
efficiency goal)
MAYBE: Guilty plea (Lawsuit #1 criminal, Lawsuit #2 civil)
o Not issue precluded (RSJ 85)
o Though will be issue if D has evidentiary hearing to attempt to
suppress the admission (Allen)
Policy pro: fairness to parties (doesnt make sense for party to mount full
defense when sued for small amount of money or in inconvenient forum),
efficiency (encourages compromises/settlements because not every issue will
have to be battled over due to its future preclusive effect)
Policy con: efficiency (requires more trials, fails to encourage people to raise
3. Necessary to the decision
Multiple ways of looking at thissome overlap, some dont (Greiner: dont
get too cute on this)
Best way of analyzing (Rios)
o If judgment in Lawsuit #1 could have been reaching without a finding,
then issue preclusion does not attach to that finding
! Good indicator a finding wasnt necessary to the decision: it
cannot be appealed (Rios, winning party cannot appeal finding
that it was contributorily negligent)
Judgments supported by multiple independent grounds circuit split
o All grounds are issue precluded (RFJ, 2d Cir.)
o No grounds issue precluded (RSJ, 9th Cir.)
! Why? Court may not carefully consider alternate/additional
grounds (fairness concern)
! Why? Would discourage appeals, because of likelihood that
one ground would be effectively upheld when appellate court
only reviews one ground (efficiency concern)
o Primary issue is issue precluded (6th Cir.)
4. Same party???
Offensive nonmutual collateral estoppel (ONMCE)
o Lawsuit #1: P1>D1. P1 wins.
o Lawsuit #2: P2>D1

P2 invoking issue preclusion to prevent D from defending

against issue is ONMCE.
Defensive nonmutual collateral estoppel (DNMCE)
o Lawsuit #1: P1>D1. P1 loses.
o Lawsuit #2: P1>D2
! D2 invoking issue preclusion to prevent P from attempting to
relitigate issue that P previously lost is DNMCE.
ONMCE is generally NOT allowed in federal system (judges have discretion,
o Rationale: allowing ONMCE may increase litigation by giving P2 an
incentive to stay out of Lawsuit #1 because doing so leaves open the
possibility of winning a subsequent suit, whether or not D wins in
Lawsuit #1
o EXCEPTION to the general rulewhen federal judges may choose to
allow ONMCE (Parklane Hosiery)
! P2 could not have easily joined Lawsuit #1
! AND allowing ONMCE would not be unfair to Dsituations
where it would be unfair:
D lacked opportunity/incentive to fight Lawsuit #1
Lawsuit #1s judgment against D inconsistent with
other judgments in favor of D
Lawsuit #2 would allow D procedural opportunities
unavailable in Lawsuit #1
o Is there a Seventh Amendment problem if Lawsuit #1 is equity and
Lawsuit #2 is law?
! No, because there is no further fact-finding function for jury to
perform (Parklane Hosiery)
DNMCE is generally allowed in the federal system
o Court retains discretion to allow or not allow (Blonder-Tongue)
! If P should probably have opportunity to challenge the validity
of Lawsuit #1 (i.e. lacked fair opportunity to challenge issue in
Lawsuit #1 or Lawsuit #1 court just plain messed up)
o Rationale for allowing lots of DNMCE: gives P incentive to join all Ds
in first action (efficiency rationale)
State rules:
o Some allow neither ONMCE not DNMCE
o Some allow both ONMCE and DNMCE
o Some allow only DNMCE
5. Maybe (??? From 2011 exam): due process concerns that tip the balance


o 1738: judicial proceedings of state court shall have same full faith in credit in
subsequent courts (state and federal) as they would in the rendering state court
o Article IV 1: Full Faith and Credit clause

Answering an intersystem preclusion problem: identify both source and content of law
o On at least as muchbe sure to point out
! Definitely determined: rendering state law sets the floor
! Undetermined: whether subsequent court can give more preclusive effect
that rendering court would

Rendering Court

State A

Federal (Diversity) in State A

Federal (FQJ)

Subsequent Court
State B
Source: State A (FFCC/1783)
Content: at least as much
preclusive effect as State A would
give (point out at least/exactly
Source: Federal common law
Content: at least as much
preclusive effect as court of State A
(point out at
least/exactly)exception when
using state law conflicts with
federal interests (probably never)
Justification: vertical uniformity
We dont actually knowprobably:
Source: Federal common law
Content: Uniform federal rules (dont look to
state law at all), follow Parklane Hosiery and
Blonder-Tongues rules

Federal in State B
Source: State A (1783)
Content: at least as much
preclusive effect as State A would
give (point out at least/exactly
We dont actually knowprobably:
Source: Federal common law
Content: at least as much preclusive
effect as court of State A (point out at
Justification: vertical uniformity (Semtek)

Source: Federal common law

Content: Uniform federal rules
(dont look to state law at all), follow
Parklane Hosiery and BlonderTongues rules

If valid transfer in Lawsuit #1, subsequent court will probably follow the mere change
of courtrooms rule and pretend that Lawsuit #1 happened in the state of original filing
Tricky situations:
o Agency adjudication is Lawsuit #1
! Source: common law
! Content: same effect as the system within which it operates (so State A
agency given same preclusive effect as it would be given in State A court,
federal agency given same preclusive effect it would be given in federal
! Bonus requirement: agency must look like a court (i.e. it must provide
what basically amounts to procedural due process requirements [see
Vitek]) (RSJ 83, not requiring discovery or cross-examination)
! Exception: statute authorizing agency says no preclusive effect to its
! Exception: statute authorizing cause of action in Lawsuit #2 says you
dont give preclusive effect to state agency decisions (Title VII, University
of TN)
o Rendering court wouldnt have had jurisdiction to hear claim in Lawsuit #2see
Marrese, below
o Federal statute is basis of Lawsuit #2 (same claim as in Lawsuit #1)
! Generally claim precluded (Migra, no special exception for 1983must
follow rendering states claim preclusion rules)

Exception: statute grants exclusive federal jurisdiction

Lawsuit #2 is in federal court under a law where federal courts
have exclusive jurisdiction (Marrese)
o If rendering state would allow Lawsuit #2, then no
preclusion (this will almost always be met because most
states dont preclude claims outside their jurisdiction [like
exclusive federal jurisdiction claims])
o If rendering state would bar Lawsuit #2, then court must
determine whether relevant statute contains implied or
explicit exception to 1783 (if no exception, then claim
Warning: issue preclusion may still attach
o Hypothetical
! State law: you shall not monopolize
! Federal law with exclusive federal jurisdiction:
you shall not monopolize
! Lawsuit #1 (in state court under state law):
judgment against P
! Lawsuit #2 (in federal court under federal law): P
will be issue precluded from raising issue of Ds
o A 41(b) dismissal only has claim preclusive effect in that specific court (Semtek)
o What happens if we have both FQJ and Diversity in one case? Not determined,
this will require you to infer from past precedents


Need at least one claim that meets amount-in-controversy requirement AND all named
plaintiffs must be completely diverse
o If FQJ, you are good to go
o If diversity
! Complete diversity requirement applies only to named plaintiffs (i.e. class
representatives) (Ben-Hur)
! Amount-in-controversy only needs to be met by ONE completely diverse
plaintiff (ExxonMobil)
And, you can stack a single plaintiffs claims to meet the amountin-controversy requirement
Where do you file?
o Must be able to get IPJ over defendants
o Want to be able to apply a favorable substantive state law
! i.e. you want to apply state law with no cap on punitive damages


According to Walmart, courts may need to go into the merits on thesethey are not mere
pleading standards
1. Numerosity [23(a)(1)]
So that joinder would be impracticable
More than 40: yes
Less than 22: no (join using Rule 20)
22-40: depends upon size of individual claims and geographic dispersion
2. Commonality [23(a)(2)]
Must be at least one single common question of law or fact (Walmart)
o Note, having substantially different substantive state laws in play may
produce problems here (Philips Petroleum)
Walmart sets super high bar
o Same injury (suffering violation of same law is not same injury)
o Must have common contention that is capable of classwide resolution

Determination of common contentions truth or falsity will resolve an

issue that is central to the validity of each one of the claims in one
In an employment discrimination case, how might a class prove commonality?
o Option 1: Employer used biased evaluation/testing procedure
o Option 2: Significant proof that employer had a general policy of
! Broad discretion that creates discriminatory effects does not meet this
requirement (Walmart)
3. Representativeness [23(a)(4)]
Will fairly and adequately protect the interests of the class
Financial resources of class representative probably matter
Conflicts of interest within class may make representatives inadequate (Amchem,
asbestos settlement)
o Class members who have incentive to want money NOW need their
o And class members who have incentive to want money LATER need their
4. Typicality [23(a)(3)]
Requirements (Marisol, notes case)
o Claims arise from same courts of events
o AND all members make similar legal arguments to provide the defendants
Also bleeds back into the representativeness inquiry

Policies in play here:

o Fairness
! Commonality: need to ensure absent parties are adequately protected
! Typicality: need to ensure absent parties are adequately protected
! Representativeness: make sure parties are not bound to a decision in a
lawsuit guided by someone with no stake in their interests
o Efficiency
! Commonality: resolve like issues together
! Representativeness: make sure judgment standsinadequate rep may
leave judgment vulnerable to collateral attack


Once 23(a) prerequisites are met and one of these 23(b) types is metcourt MUST
certify (no discretion) (Shady Grove)
1. Common ground (never used, see injunctive/declaratory)
2. Limited fund [23(b)(1)(B)]
Prosecuting separate actions by individual class members would create a risk of
adjudications that would not support the interests of the class as a whole
Example: suing a bankrupt asbestos manufacturer (if you dont do a class actions, the
first people to sue will up all the money, leaving injured people with no relieve),
limited insurance policy

MANDATORY class (no one allowed to opt out)

o No notice requirement, but courts usually give it
3. Injunctive/declaratory relief [23(b)(2)]
Basically not allowed to have any monetary relief too
o Any monetary relief would need to be incidental and the exact same for every
class member (Walmart)
! Why should monetary relief not be allowed? Asking for some (but a small
enough amount that it wouldnt make it a 23(b)(3) class) money could risk
claim preclusion for all the class members (Walmart)
Injunctive/declaratory relief must be the same for all members (Walmart)
MANDATORY class (no one allowed to opt out)
o No notice requirement, but courts usually give it
4. Monetary relief [23(b)(3)]
Additional prerequisites
o Predominance (basically a more stringent commonality requirement)
! Common questions must predominate over individual questions
! Differences of the state law being applied might torpedo predominance
(Philips Petroleum)
o Superiority: class action is best way to adjudicatekey factors
! Class members interest in individually controlling the case
! Whether individual litigation has already been begun by class members
! Desirability of concentrating action in a particular forum
! Difficulties of managing a class action
Number of interveners and participants
Practicability of notice
NOT a mandatory class
o Notice requirement: best possible under circumstances to all class members
o Class members have opportunity to opt out


Due process: forum state may exercise IPJ over absent monetary class members
WITHOUT MEETING MINIMUM CONTACTSso long as these requirements are met
(Philips Petroleum)
o Notice (standard, reasonably calculated)
o Opportunity to be heard/participate (in person or through counsel)
o Opportunity to opt out
o Adequate class representative
No such due process requirement has been articulated for other class types
HCOL (both FFCC and due process concerns) (Philips Petroleum, KS court cannot apply
its own law when the vast majority of claims have no relationship to KS)
o Rule: when multiple states laws could apply, forum state can use its own laws
! Has significant contact OR significant aggregation of contacts to the
! Such that the contacts create state interests


Such that the use of forum state law is not arbitrary and unfair
IMPORTANT: parties should expect that forum state law could control
when making primary conduct decisions


Even if class action filed for the sole purpose of settling, still must meet 23(a)
prerequisites and one of the 23(b) types (Amchem)
Settling a class action
o Notice of settlement must be given to class members (for ALL 23(b) types)
! Why? Fairness: ensure members are getting a good deal
o For monetary [23(b)(3)] classes, must give opportunity to opt out
o Class members can object to the settlement
! Attorney represents that person in order to object to the settlement
o Settlement must be approved by the court
! On objection from class member or on its own, court can refuse to agree to
the settlement
This forces further negotiations to find a settlement that protects
the interests of the class

Turner v. Rogers (Handout)
Civil contempt due process
Note: no right to counsel here, despite the fact that physical liberty is at stake
What do we need to provide pro se litigants (safeguards)?
1. Notice to the defendant that his ability to pay is a critical issue in the contempt
2. The use of a form (or equivalent) to elicit relevant financial information
3. An opportunity at the hearing for the defendant to respond to statements and questions
about his financial status (e.g., those triggered by his responses to the form)
4. An express finding by the court that the defendant has the ability to pay
Greiner: whats the solution?
If you give people lawyers, you create more procedures and make things more
complicated (Powells concurrence in Vitek)
Maybe: More fair in the aggregate to not appoint lawyers and reform the way that court
procedures work in order to make them more friendly to pro se litigants
ABAs civil Gideon proposal: right to counsel in any adversarial hearing
(administrative or civil) where basic human needs are at stake (food, shelter,
susbsistence/income, critical family issues)
Why might we appoint lawyers?
Change the outcome
o Legal aid orgs
Uphold belief in the legitimacy of the system
Number of cases in a typical state in family law where one of the parties is appearing without a
lawyer: 80%
In order to have enough attorneys to take care of the expressed civil needs in the state of NY:
would have to multiply budget by 182
Simplifying the system
Turner was the first case where SCOTUS explicitly recognized that the choice about how to
structure the system and whether to provide a lawyer are the same choice (you can get away with
not providing a lawyer if you change the proceding)
Role of cost of law school