I. APPELLATE REVIEW .......................................................................................................................................................................................

3
A. FINAL JUDGMENTS .................................................................................................................................................................................................. 3
B. COX BROADCASTING CORP V. COHN ........................................................................................................................................................................ 3
C. MOHAWK INDUSTRIES, INC. V. NORMAN CARPENTER .............................................................................................................................................. 3
D. APPELLATE MECHANICS / REVIEWABILITY OF DECISIONS & CONTENTIONS ............................................................................................................ 4
E. KERR V. UNITED STATES DISTRICT COURT ............................................................................................................................................................. 4
F. BANKERS LIFE & CASUALTY CO. V. CRENSHAW ....................................................................................................................................................... 4
II. JOINDER & CLASS ACTIONS ......................................................................................................................................................................... 5
A. JOINDER GENERALLY .............................................................................................................................................................................................. 5
B. JOINDER OF CLAIMS ................................................................................................................................................................................................ 5
C. SEVERANCE AND CONSOLIDATION ........................................................................................................................................................................... 5
D. COUNTERCLAIMS: RULE 13(A) & (B) ........................................................................................................................................................................ 5
E. PODHORN V. PARAGON GROUP ................................................................................................................................................................................ 6
F. JONES V. FORD MOTOR CREDIT COMPANY .............................................................................................................................................................. 6
G. CROSS-CLAIMS: RULE 13(G) .................................................................................................................................................................................... 6
H. FAIRVIEW PARK EXCAVATING CO. V. AL MONZO CONSTRUCTION CO ...................................................................................................................... 6
I. JOINDER OF PARTIES (RULE 20) ................................................................................................................................................................................ 6
J. KEDRA V. CITY OF PHILADELPHIA ............................................................................................................................................................................ 7
K. RULE 20(A) .............................................................................................................................................................................................................. 7
L. SUPPLEMENTAL JURISDICTION FOR RULE 20 PARTIES............................................................................................................................................. 7
M. COMPULSORY JOINDER: RULE 19 ............................................................................................................................................................................ 7
N. LOPEZ V. CITY OF IRVINGTON .................................................................................................................................................................................. 7
O. TEMPLE V. SYNTHES CORP ...................................................................................................................................................................................... 7
P. HELZBERG’S DIAMOND SHOPS V. VALLEY WEST DES MOINES SHOPPING CENTER .................................................................................................. 8
Q. DAYNARD V. NESS & MOTLEY ................................................................................................................................................................................. 8
III. SUPPLEMENTAL JURISDICTION (1367) ..................................................................................................................................................... 8
A. BACKGROUND .......................................................................................................................................................................................................... 8
B. CLASS NOTES .......................................................................................................................................................................................................... 8
C. USE OF DISCRETION: 1367(C) FACTORS:................................................................................................................................................................... 8
D. UNITED MINE WORKERS OF AMERICA V. GIBBS ...................................................................................................................................................... 9
E. OWEN EQUIPMENT & ERECTION CO. V. KROGER ..................................................................................................................................................... 9
F. FINLEY V. US ........................................................................................................................................................................................................... 9
G. EXXON MOBIL CORP V. ALLAPATTAH SERVICES, INC ............................................................................................................................................. 10
IV. THE ERIE PROBLEM ................................................................................................................................................................................ 10
A. BACKGROUND ........................................................................................................................................................................................................ 10
B. ERIE V. TOMPKINS ................................................................................................................................................................................................. 11
C. GUARANTY TRUST V. YORK .................................................................................................................................................................................... 11
D. BYRD V. BLUE RIDGE ............................................................................................................................................................................................. 11
E. HANNA V. PLUMER................................................................................................................................................................................................. 11
V. IMPLEADER ..................................................................................................................................................................................................... 12
A. GROSS V. HANOVER ............................................................................................................................................................................................... 12
B. BANKS V. CITY OF EMERYVILLE ............................................................................................................................................................................. 12
C. OWEN EQUIPMENT & ERECTION CO V. KROGER .................................................................................................................................................... 12
D. NOTES ................................................................................................................................................................................................................... 12
VI. INTERVENTION ......................................................................................................................................................................................... 13
A. NOTES ................................................................................................................................................................................................................... 13
B. ATLANTIS DEVELOPMENT CORP V. UNITED STATES .............................................................................................................................................. 13
C. STUART V. HUFF .................................................................................................................................................................................................... 13
D. CHARTS / ANALYSIS ............................................................................................................................................................................................... 13
VII. PROVISIONAL REMEDIES & FORUM NON CONVENIENS ............................................................................................................. 14
A. WASHINGTON V. TRUMP ........................................................................................................................................................................................ 14
B. TRUMP V. HAWAII (SCOTUS) ................................................................................................................................................................................ 15
C. UNITED STATES V. JENKINS .................................................................................................................................................................................. 15
D. UNITED STATES V. N.Y. TIMES (1971) ................................................................................................................................................................... 15
VIII. REMOVAL .................................................................................................................................................................................................... 15
A. CATERPILLAR INC V. WILLIAMS ............................................................................................................................................................................. 15
B. NOTES ................................................................................................................................................................................................................... 15
IX. FORUM NON CONVENIENS ......................................................................................................................................................................... 16
A. PIPER AIRCRAFT CO V. REYNO ............................................................................................................................................................................... 16
B. NOTES ................................................................................................................................................................................................................... 16
X. DISPOSITION WITHOUT TRIAL .................................................................................................................................................................. 16
A. DISMISSAL FOR FAILURE TO STATE A CLAIM AND JUDGMENT ON THE PLEADINGS ................................................................................................... 16
B. VOLUNTARY DISMISSAL ......................................................................................................................................................................................... 16
C. BY ORDER OF THE COURT ....................................................................................................................................................................................... 16
D. INVOLUNTARY DISMISSAL FOR FAILURE TO PROSECUTE ......................................................................................................................................... 16
E. DEFAULT AND DEFAULT JUDGMENT ...................................................................................................................................................................... 16
F. SUMMARY JUDGMENT ............................................................................................................................................................................................ 16
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 G. RULE 12 V. RULE 56 MOTIONS ............................................................................................................................................................................... 17
H. ADICKES V. S.H. KRESS & CO ............................................................................................................................................................................... 17
I. CELOTEX CORP V. CATRETT .................................................................................................................................................................................... 17
J. CHART .................................................................................................................................................................................................................... 17
K. NOTES ................................................................................................................................................................................................................... 18
XI. RESPONDING TO MSJ ................................................................................................................................................................................... 18
A. TOLAN V. COTTON.................................................................................................................................................................................................. 18
B. NOTES ................................................................................................................................................................................................................... 18
C. SCOTT V. HARRIS ................................................................................................................................................................................................... 18
XII. CLASS ACTIONS ......................................................................................................................................................................................... 19
A. INTRO .................................................................................................................................................................................................................... 19
B. RULE 23 ................................................................................................................................................................................................................. 19
C. RULE 23(A) ............................................................................................................................................................................................................ 19
D. RULE 23(B) ............................................................................................................................................................................................................ 20
E. RULE 23(C) – MANAGING THE CLASS ACTION ........................................................................................................................................................ 21
F. NOTICE IN CLASS ACTIONS .................................................................................................................................................................................... 21
G. QUESTIONS TO ASK REGARDING A POTENTIAL CLASS ACTION ................................................................................................................................. 21
H. WAL-MART STORES, INC V. DUKES ....................................................................................................................................................................... 21
I. COMCAST CORP. V. BEHREND ................................................................................................................................................................................. 22
J. CASTANO V. AMERICAN TOBACCO........................................................................................................................................................................... 22
K. EISEN V. CARLISLE & JACQUELIN ......................................................................................................................................................................... 22
XIII. SETTLEMENT OF CLASS SUITS ............................................................................................................................................................ 23
A. PEARSON V. NBTY, INC ......................................................................................................................................................................................... 23
B. RULE 23(E) - SETTLEMENT..................................................................................................................................................................................... 23
C. IN RE BLUETOOTH HEADSET PRODUCTS LIABILITY LITIGATION............................................................................................................................ 24
D. AMCHEM PRODUCTS, INC. V. WINDSOR ................................................................................................................................................................. 24
XIV. CLAIM AND ISSUE PRECLUSION.......................................................................................................................................................... 25
A. RES JUDICATA (CLAIM PRECLUSION) ...................................................................................................................................................................... 25
B. FEDERATED DEPARTMENT STORES, INC. V. MOITIE .............................................................................................................................................. 25
C. DAVIS V. DALLAS AREA RAPID TRANSIT................................................................................................................................................................. 25
D. STAATS V. COUNTY OF SAWYER ............................................................................................................................................................................. 26
E. SEMTEK V. LOCKHEED MARTIN ............................................................................................................................................................................. 26
F. COLLATERAL ESTOPPEL (ISSUE PRECLUSION) REFERS TO THE FINALITY ATTACHED TO A FINAL DECISION ON A PARTICULAR ISSUE OF FACT OR LAW
.................................................................................................................................................................................................................................. 26
G. B & B HARDWARE, INC. V. HARGIS INDUSTRIES, INC (IDENTICAL ISSUE) .............................................................................................................. 27
H. JACOBS V. CBS BROADCASTING (FULL & FAIR OPPORTUNITY, NECESSARY TO JUDGMENT) ................................................................................ 27
I. DIFFERENCE BETWEEN CLAIM & ISSUE PRECLUSION ............................................................................................................................................. 27
J. TAYLOR V. STURGELL ............................................................................................................................................................................................. 28
K. DIFFERENT PARTIES / NON-MUTUAL ISSUE PRECLUSION...................................................................................................................................... 28
L. DEFENSIVE NON-MUTUAL ISSUE PRECLUSION ...................................................................................................................................................... 28
M. OFFENSIVE NON-MUTUAL ISSUE PRECLUSION ..................................................................................................................................................... 28
N. PARKLANE HOSIERY V. SHORE .............................................................................................................................................................................. 28
O. SMITH V. BAYER CORP ........................................................................................................................................................................................... 29
XV. RECOGNITION OF JUDGMENTS ........................................................................................................................................................... 29
A. INTERSTATE RECOGNITION OF JUDGMENTS ........................................................................................................................................................... 29
B. FAUNTLEROY V. LUM ............................................................................................................................................................................................. 29
C. STATE-FEDERAL RECOGNITION OF JUDGMENTS .................................................................................................................................................... 29
D. MARRESE V. AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS .......................................................................................................................... 29
E. PARSONS STEEL, INC. V. FIRST ALABAMA BANK .................................................................................................................................................... 30
XVI. REVIEW ........................................................................................................................................................................................................ 30
A. APPELLATE REVIEW .............................................................................................................................................................................................. 30
B. JOINDER OF PARTIES & CLAIMS............................................................................................................................................................................. 30
C. SUPPLEMENTAL JURISDICTION .............................................................................................................................................................................. 30
D. SUMMARY JUDGMENT ........................................................................................................................................................................................... 30

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I. Appellate Review
A. Final Judgments
1. Cannot appeal summary judgment grant
2. Can only appeal a final judgment
a) 28 USC 1291: the courts of appeal shall have jurisdiction of appeals from all final decisions of the district courts of
the US (concerns itself with efficiency)
b) Final decision: signed order that:
(1) Concludes all issues in the trial court
(2) Terminates the litigation
(3) Leaves nothing for the trial court to do but execute the judgment
3. What is not a final judgment
a) Interim rulings (e.g. evidentiary, injunctions)
4. Exceptions to final judgment rule
a) Statutes and rules allowing for appeals as of right of non-final orders
(1) 1292(a): allows immediate appeal of interlocutory orders:
(a) Granting, continuing, modifying or dissolving an injunction
(b) Refusing to dissolve or modify and injunction
(c) Certain receivership orders
(d) Decrees determining rights in admiralty cases
b) Statutes and rules providing for discretionary interlocutory review
(1) 1292(b): controlling question of law, substantial ground for difference of opinion, and immediate appeal
may materially advance termination of the litigation
(2) Both district court and COA need to certify the issue for appeal
c) Collateral order doctrine
(1) Order determines an issue collateral to merits of the litigation
(2) Too important to be denied review
(3) Review in doubt if interlocutory review denied
d) Appellate court authority to issue extraordinary writs
(1) Mandamus: writ telling court to do something
(2) Prohibition: asking them to issue writ directing court not to do something
(3) Certiorari: certify the case for review by higher court
(4) Quo warranto: regards right to hold office
B. Cox Broadcasting Corp v. Cohn
1. Π sued cox saying they invaded his daughter’s privacy by publishing her name in the paper as a rape victim. Trial court
grants summary judgment under GA statute, GA sup ct says dad has common law tort of invasion of privacy but even
though valid claim, SJ was improper because liability did not follow as a matter of law because question whether
publication invaded zone of privacy of father was a question for a jury.
2. SCOTUS says 1st and 14th amendment do not support Cox
3. SCOTUS says taking jurisdiction under 1257 (final decisions of state courts) and even if that fails, we will treat it as a
petition for cert
4. Issue on appeal: is this an appealable issue? At least 4 kinds of cases where court treats decision on a federal issue as final
judgment for purposes of 1257 without awaiting completion of the additional proceedings in state court
a) There are further proceedings yet to occur in state courts, but for one reason or another the federal issue is
conclusive or the outcome in the further proceedings is preordained
b) Cases in which the federal issue, finally decided by the highest state court, will survive and require decision
regardless of the outcome of future state court proceedings
c) Situations where the federal claim has been finally decided, with further proceedings on the merits in the state
courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the
case
(1) E.g. if party seeking interim review were to win on merits, federal question is mooted; if he here to lose,
governing state law would not permit him again to present his federal claims for review
d) Situations where federal issue has been finally decided in the state courts with further proceedings pending in
which party seeking review to SCOTUS might prevail on the merits on non-federal grounds, thus rendering
unnecessary review of the federal issue, and where reversal of the state court on the federal issue would be
preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and
character of, or determining the admissibility of evidence in, the state proceedings still to come
5. State court order is final if:
a) Granting review will allow SCOTUS to protect important federal interest or
b) Decide important federal issue
c) Where could not do so if review postponed
C. Mohawk Industries, Inc. v. Norman Carpenter
1. Carpenter informs HR that illegal immigrants are being hired. At that time, company subject to class action suit regarding
their practice of hiring illegal immigrants. He claims that the company’s lawyers pressured him to change his story – he
refused and was then fired
2. DC ordered π to disclose certain confidential materials, but declined to certify the order for interlocutory review and stayed
its order to allow π to explore other avenues for appeal (mandamus or appeal under collateral order doctrine), COA
dismissed appeal for want of jxn. Q whether disclosure orders adverse to A-C privilege qualify for immediate appeal under
collateral order doctrine. SCOTUS says no because post-judgment appeals and other review mechanisms suffice to protect
the rights of litigants and preserve the vitality of A-C privilege
3. Not reviewable under collateral order doctrine (Coopers & Lybrand test): must be conclusive, must resolve important
questions separate from the merits, and questions would be unreviewable on appeal from a final judgment (this is not
reviewable collateral order because it would be reviewable on normal appeal)

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 a) As to the third: decisive consideration is whether delaying review until the entry of final judgment would imperil
a substantial public interest or some particular value of a high order
D. Appellate Mechanics / Reviewability of Decisions & Contentions
1. What can be appealed
a) In theory, everything can be appealed, but it’s going to have to be an issue worthy of appeal
b) Issue must be raised and preserved at trial
(1) Raised/preserved: motion, objection, offer of proof, etc.
(2) Must have given trial court an opportunity to rule on the issue in the first instance
c) Issue must also be raised and preserved on appeal (i.e. be briefed, included in statement of points on appeal filed
with notice of appeal)
d) Issue must be within jurisdiction of the court
2. Who can appeal
a) Parties
b) Intervenors
(1) Once you intervene in the case, you have become a party
c) Amicus parties
3. How and When to Appeal
a) Notice of Appeal (FRAP 3)
(1) Indicate party who is taking the appeal
(2) Designate order or judgment appealed from
(3) Identify court to which the appeal is taken
4. Timing
a) Civil: 30 days after entry, 60 days for gov
b) Criminal: 10 days by ∆, 30 days by gov
c) Motions for JMOL, Amended Findings, New Trial, Relief from Judgment, or Attorney’s Fees will toll due date
E. Kerr v. United States District Court
1. Plaintiffs were inmates in CA prisons, they sued the DoC alleging constitutional violations in carrying out conditions of
punishments for offenders. Requested discovery of ∆ personnel files as well as a sample of every 20 th inmate’s file. ∆
objected, saying they shouldn’t be turned over prior to in camera review by the DC judge for privilege claims. Π moved to
compel, and the DC accepted magistrate’s recommendations that the personnel files should only be shown to counsel for π
and up to 2 investigators, and that the inmate files should only be available to counsel for plaintiffs, and capping them at
200 files. Π at SCOTUS filed petition for a writ of mandamus to vacate DC order, which was denied. SCOTUS affirms
a) Writ of mandamus is extraordinary, “traditionally been used only to confine an inferior court to a lawful exercise
of its prescribed jxn or to compel it to exercise its authority when it is its duty to do so”
(1) Only “exceptional circumstances amounting to a judicial usurpation of power” will justify issuing the
writ
b) Conditions to issuance:
(1) Party seeking issuance must have no other adequate means to attain relief desired
(2) Party must satisfy the burden of showing that his right to issuance is “clear and indisputable”
(3) Issuance of writ is matter of discretion
c) Π here argue only that production not be required without prior DC assessment of plaintiff’s need weighed
against their confidentiality
d) Seems that in camera review of the documents is a relatively costless and eminently worthwhile method to ensure
that the balance between petitioners’ claims of privilege and plaintiffs’ asserted need is correctly struck
2. 9th Circuit criteria for granting (Bauman factors):
a) There is no other adequate means, such as direct appeal, of obtaining the relief sought
b) The petitioner will be damaged or prejudiced in a way not correctable on appeal
c) DC’s order is clearly erroneous as a matter of law
d) DC’s order is an often-repeated error, or manifests a persistent disregard of the federal rules, and
e) DC’s order raises new and important problems, or issues of law of first impression
F. Bankers Life & Casualty Co. v. Crenshaw
1. ∆ had foot amputated after an alternator fell on his foot. Filed insurance claim with π, who denied the claim because they
claimed his pre-existing arteriosclerosis, while at the same time, in internal memoranda, acknowledged that even if he did
have that, Mississippi law would require them to pay the claim. ∆ filed suit, and jury awarded 20k compensatory and 1.6M
punitive. On appeal to MS sup ct, did not raise federal constitutional challenge to the punitive award, and only on petition
for rehearing did they argue that it was “clearly excessive…an excessive fine, and violates constitutional principles.” At
SCOTUS, argues that award violates 8A, DPC, and K clause. SCOTUS says these challenges don’t fall within 1257 jxn, but
could be covered under their discretion to grant cert. Despite that fact, because π hadn’t really raised the constitutional
issues below, SCOTUS declines to review the challenge.
a) The vague appeal to constitutional principles does not preserve appellant’s K clause or DPC claim. A party may
not preserve a constitutional challenge by generally invoking the Constitution in state court and awaiting review
in this Court to specify the constitutional provision it is relying upon
b) The language in appellant’s references is too oblique to allow court to conclude that appellant raised the federal
claim before the MS sup ct
c) “at the minimum, there should be no doubt from the record that a claim under a federal statute or the federal
constitution was presented in the state courts and that those courts were apprised of the nature or substance of
the federal claim at the time and in the manner required by the state law
d) The failure to invoke the federal constitution is especially problematic in this case because the MS constitution
contains its own excessive fines clause
e) In determining whether to exercise jxn over questions not properly raised below, court has focused on policies
that animate the “not pressed or passed upon below”:
(1) comity to the states

4
 (2) a constellation of practical considerations, chief among which is our own need for a properly developed
record on appeal
f) our review of appellant’s claim now would short-circuit a number of less intrusive, and possibly more appropriate,
resolutions
2. White & Scalia, concurring
a) 1257 prevents SCOTUS from deciding federal constitutional claims raised here for the first time on review of
state-court decisions
3. O’Connor, Scalia, concurring in part and in the judgment
a) In its brief on appeal to MS sup ct, appellant expressly invoked DPC. Court does not acknowledge that
b) Court should examine the federal due process argument to determine whether it is “only and enlargement” of the
DPC argument raised below.
c) Because MS law allows jury discretion to award any amount of punitive damages in any case in which ∆ acted
with a certain mental state, there is reason to think this might violate the DPC, but should be left for another day
4. Scalia, concurring in part and in the judgment
a) Whether to review 8A claim should be resolved as a matter of law, not discretion
II. Joinder & Class Actions
A. Joinder Generally
1. Defines: who participates; what is at issue; what will be decided; and what will be the preclusive effect of the judgment
2. Basic philosophy is to allow liberal joinder of claims and parties
a) However, sometimes federal rules allow more liberal joinder of claims and parties than the SMJ of federal courts
will permit, or will result in a case that is unmanageable or potentially unfair to one or more parties, when a trial
judge has discretion to refuse to hear certain claims or join additional parties (1367(c))
3. For SMJ to exist, there must be both constitutional and statutory authorization (e.g. federal question, diversity) – statutory
may come from supplemental under 1367 when that claim is joined with another claim over which there is jxn (so long as
the additional claim “forms part of the same case or controversy”)
B. Joinder of Claims
1. Rule 18(a): a party asserting a claim for relief (whether as an original claim by π, a counterclaim by ∆, cross-claim as co-
party, or claim against 3rd party) may join any other claim to that claim. No requirement in rule that the joined claims be
related to one another beyond requirement they be asserted by the same party in the same pleading (i.e. does not require
they arise out of the same or related transaction/occurrence)
2. Rule 13: joinder of counterclaims (13(a) & (b)) / cross-claims (13(g))
3. Competing values / interests:
a) Consistency of resolutions
b) Efficiency
c) Party control of litigation
d) Protect absentees
e) Horizontal federalism
f) Vertical federalism
4. Issues:
a) What must I do? (what claims am I compelled to bring?)
b) What may I do? (even if I’m not required to, what claims am I permitted to bring?)
c) What should I do? (what is the strategically sound choice?)
5. To be joined, claim must be permitted by both:
a) Civil rules (18/13), and
b) SMJ statutes
(1) 1331 (federal q)
(2) 1332 (diversity)
(3) 1367 (supplemental)
C. Severance and Consolidation
1. Under rule 42(b), a district court may sever “for convenience, to avoid prejudice, or to expedite and economize.”
a) Sometimes mean they conduct separate trials, sometimes means court conducts separate trials only as to certain
issues or claims
2. Under 42(a), district court may consolidate separately filed cases. Sometimes means they are combined for all purposes,
sometimes means for only some purposes
3. Decision to sever or consolidate normally not reviewable until there has been a final judgment
D. Counterclaims: Rule 13(a) & (b)
1. Compulsory: Rule 13(a)(1)(A)
a) if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim”
b) Consequence of not asserting a compulsory counterclaim is that the ∆ may not asset that claim in any subsequent
suit, but (exceptions in 13(a)(1)(B))
(1) Need not be filed in the current proceeding if it is already pending as a claim in another proceeding, &
(2) Need not be filed if opposing party has not obtained in personam jurisdiction over the party who has a
potential counterclaim
2. Permissive if it does not arise out of the same transaction or occurrence as the plaintiff’s claim
a) Only Rule 13(b) requirement is that a permissive counterclaim be a claim asserted by ∆ against π (actually, by a
party against an opposing party that has already asserted a claim) – no preclusive effect in later litigation
3. Strategy considerations in joinder of claims
a) Impact on discovery
b) Cost implications
c) Evidence considerations
d) Jury impact
e) Res judicata consequences
f) Settlement

5
E. Podhorn v. Paragon Group
1. Π lived in apartment owned by ∆, ∆ file suit claiming they were owed about $1,100 and obtained a default judgment. Π later
brought claims in federal court for constructive eviction and several other claims. ∆ files motion to dismiss because the
claims were compulsory counterclaims. Trial court dismissed the case because the claims arose out of the same
transaction/occurrence giving rise to the earlier action (i.e. π tenancy). Π argues that the court would not have jurisdiction
to hear any of those claims because they can’t hear cases over $5k. Court disagrees, saying they should have had to file
their counterclaims and that the court would just certify the claims to an associate judge to hear them
F. Jones v. Ford Motor Credit Company
1. permissive counterclaims  Supplemental jurisdiction under §1367 provides a jurisdictional basis for permissive
counterclaims. There need only be a loose factual connection (aka “same case or controversy”) between claims in order
to give a court supplemental jurisdiction over a counterclaim so that both the counterclaim and underlying claims bear a
sufficient factual relationship to constitute the same case under Article III. Under Jones, the "common nucleus of operative
fact" test does not apply when determining whether the counterclaim is permissive or compulsory; The definition of what
constitutes a "compulsory counterclaim" is fairly narrow.
2. Compulsory/permissive turns on whether counterclaim arises out of the transaction or occurrence that is the subject matter
of the opposing party’s claim. Standard is met when there is a “logical relationship” between the counterclaim and the main
claim – does not require an absolute identity of factual backgrounds, just that the essential facts be so logically connected
that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit
3. Rule 13(a) transaction or occurrence  Jones holds that the same “transaction or occurrence” test of Rule 13(a) is
narrower than the same “case or controversy” test of §1367 and Article III of the Constitution.
4. §1367(c)  In order to decline jurisdiction on the basis of §1367(c), the District Court should identify truly compelling
circumstances that militate against exercising jurisdiction. the court strictly construes 1367(c); when applying 1367(c)
factors, you must "tightly apply them"/thoroughly reasoned. If you are using factor #4 "exceptional circumstances," the
circumstances must truly be exceptional
5. Class Actions  Here, DC’s discretion under §1367(c) to decline supplemental jurisdiction should not be exercised in this
case until a ruling on the P’s motion for class certification.
G. Cross-Claims: Rule 13(g)
1. General Notes
a) A crossclaim is a “claim by one party against a coparty” arising out of the transaction or occurrence that is the
subject matter of the original action or counterclaim, or if the claim relates to any property that is the subject
matter of the original action. Similar to Rule 14/impleader, the crossclaim may be brought against the party who
“is or may be liable to the crossclaimant for all or part” of the original P’s claim. Whether to bring a crossclaim is a
matter of discretion so a party may decide either to assert her claim as a crossclaim or to reserve it later for
independent litigation. Because 13(g)’s “same transaction or occurrence” is narrower than §1367’s loose factual
connection/same case of controversy standard, a crossclaim that satisfies 13(g)’s standard will satisfy §1367’s
loose factual connection standard. (Jones). There does not need to be an independent basis for subject matter
jurisdiction as long as there is subject matter jurisdiction over the anchoring claim.
b) Crossclaims & Diversity In a diversity case, if the original claim is dismissed on the merits, a corresponding
crossclaim is not going to be dismissed for the resulting lack of jurisdiction (Al Monzo)
c) NOTE Once you attach a valid crossclaim against party X, can join any other claim against party X. Rule 18(a).
Still need SMJ!
d) Asserting claims in response to crossclaim is a counter-crossclaim
e) Counter-crossclaims are governed by 13(a) or (b) – can be compulsory or permissive. E.g. Jones crossclaims
against co-D Green, Green sues Jones right back
f) If it is a diversity anchoring claim then crossclaims between Ps are not allowed.
H. Fairview Park Excavating Co. v. Al Monzo Construction Co
1. Facts Fairview (subcontractor) brought diversity action against Monzo (general contractor) and Robinson Township
(Penn municipal authority) for nonpayment of construction work. Township denied liability because not in privity with
Fairview and was withholding $ owed to Monzo until restoration work was finished. Monzo & MD Liability (surety on
Monzo’s bond guaranteeing pymt to subs) denied liability, counterclaimed against Fairview, and cross-claimed against the
Township. The Township counterclaimed against Monzo for damages caused by Dective work. First day of trial, TC granted
Township’s motion that Fairview’s complaint against it be dismissed because Fairview is a subcontractor, so under PA law,
subcontractor cannot directly sue, only contractors can. DC then dismissed Monzo’s cross-claim against Township because
there was no diversity between the two parties.
2. Takeaway jurisdiction which has once attached is not lost by subsequent events. In a diversity case, if a claim is
dismissed on the merits, a corresponding crossclaim is not going to be dismissed for the resulting lack of jurisdiction.
a) The authority of the court is not always fluctuating on the merits of the claim
b) Only restricts Ps, NOT cross or counterclaims.
3. If a federal court dismisses a π’s claim for lack of SMJ, any cross-claims dependent upon ancillary jxn must necessarily fall
as well, because it is the π’s claim – to which the cross-claim is ancillary – that provides the derivative source of jxn for the
cross-claim
4. Once a district court judge has properly permitted a cross-claim under 13(g), as was the case here, the ancillary jxn that
results should not be defeated by a decision on the merits adverse to the π on the π’s primary claim
I. Joinder of Parties (rule 20)
1. Rule 17: real party in interest
a) 17(a)(1): action must be prosecuted in the name of the real party in interest
2. Rule 19: compulsory joinder
3. Rule 20: permissive joinder
a) 20(a)(1): joinder of plaintiffs
b) 20(a)(2): joinder of defendants
4. Limits on joinder of parties
a) Persons must be “proper parties”
(1) Must have standing

6
 (2) Must have legal capacity to sue or be sued, and
(3) Action must be brought by real party in interest
b) Some parties must be joined “if feasible” – rule 19(a)
c) If such parties cannot be joined, some actions cannot proceed – 19(b)
J. Kedra v. City of Philadelphia
1. Facts Massive civil rights action brought by family against Philadelphia police officers. Various Ps arrested at gunpoint,
interrogated, subject to police brutality, harassment, etc.
2. Holding Joinder of parties under 20(a) was proper because the claims against Ds were reasonably related and arose out
of the same transaction or occurrences.
a) Mother could maintain suit on behalf of minor child because her son lacked capacity to sue and because they had
standing due to their alleged injuries. There were no jurisdictional problems presented by the claims here. FRCP
17(c) further specifically contemplates a procedure where suit is brought by a representative on behalf of children,
so this is procedurally proper.
3. Takeaway Rule 20(a) is a liberal standard for joining parties, meant to increase efficiency and cost-effectiveness.
Transaction or occurrence language has been interpreted to permit all reasonably related claims for relief by or against
different parties to be tried in a single proceeding.
a) Once parties are joined under Rule 20(a), Rule 18(a)’s allowance of unlimited joinder of claims against those
parties is fully applicable; thus the hurdle is the initial joinder of parties.
b) The court can hear state law claims because the federal claim is the anchor. Therefore supplemental jurisdiction
is appropriate.
4. 20(b) provides that the court may make such orders as will prevent a party from being embarrassed, delayed, or put to
expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order
separate trials or make other orders to prevent delay or prejudice
K. Rule 20(a)
1. Authorizes “permissive joinder” of multiple parties so long as two requirements are satisfied:
a) All joined plaintiffs must assert, and all joined defendants must have asserted against them, claims “arising out
of the same transaction, occurrence, or series of transactions or occurrences,” and
b) There must be a question of law or fact common to all of the joined parties
L. Supplemental Jurisdiction for Rule 20 Parties
1. Federal Question Cases:
a) Under §1367, joinder of parties for whose claims lack an independent basis is permitted in federal question cases
so long as they are part of the “same case or controversy” under Article III. This standard is satisfied by any
claims that meet the narrower “Relatedness Requirement” (“transaction or occurrence or series”) of Rule 20(a).
2. Diversity Cases:
a) §1367(a) There is supplemental jurisdiction as broadly as Article III permits. Subject to §1376(b) limitation in
diversity cases.
(1) §1367(b) In diversity cases “the district courts shall not have supplemental jurisdiction over claims
by plaintiffs against persons” made parties under Rule 20.
(2) i.e. no supplemental jurisdiction over state-law claims against non-diverse defendants who have been
joined under rule 20 or state law claims against diverse defendants but who don’t meet the amount in
controversy requirement
M. Compulsory Joinder: Rule 19
1. Person to be joined “if feasible” – Rule 19(a)(1) – if feasible, must join them
a) (A) Complete Relief – a person shall be joined if in that person’s absence, the court cannot accord complete relief
among existing parties
(1) e.g. π enters K to buy business from ∆1 and ∆2 – learns that ∆s made misrepresentations, sues for
rescission of K – both ∆ must be joined because rescission not possible without both ∆
b) (B)(i) Impair or impede an interest as a practical matter – a person claiming an interest in the litigation must be
joined if feasible if, in his absence, the litigation may “as a practical matter impair or impede the person’s ability
to protect the interest
c) (B)(ii) Double, multiple, or otherwise inconsistent obligations – a person claiming an interest in the litigation must
be joined if feasible if, in his absence, an existing party may be left “subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of the interest”
2. Dismissal in absence of person to be joined if feasible
a) Overarching criterion of rule 19(b) is whether “in equity and good conscience,” the action should proceed without
the absent person “to be joined if feasible”
N. Lopez v. City of Irvington
1. Πs attacked by police dog while committing crimes and allege excessive force. ∆s file motion to sever pursuant to rule
20(a)(1)/rule 21, claiming that πs have been misjoined because they were each different transactions/occurrences
a) Court finds that there is a common question of law or fact – allegation of a pattern or practice of excessive force is
a common question of fact central to each claim. There are several witnesses who are common to each π’s claim,
and π would be prejudiced if the motion is granted because it would be difficult if not impossible to provide
sufficient evidence to meet the burden that a pattern existed
b) Once court decided that there’s a common question of law or fact, look at 4 factors when deciding whether to grant
a motion to sever: (1) whether issues sought to be tried are significantly different from one another, (2) whether
the separable issues require the testimony of different witnesses and different documentary proof, (3) whether the
party opposing the severance will be prejudiced if it is granted, and (4) whether the party requesting the
severance will be prejudiced
O. Temple v. Synthes Corp
1. Π had surgery to implant a brace in his spine. Sued manufacturer in federal district court and sued doc/hospital in state
court. ∆ moved to dismiss suit based on fact that doc/hospital were not joined as ∆s in the federal suit. DC gave π 20 days to
join, then dismissed. COA affirmed, saying that because the claims against each overlapped, it would be prejudicial not to

7
 join them as defendants. SCOTUS reverses, joint tortfeasors are not indispensable parties under rule 19. “it has long been
the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.”
P. Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center
1. Π leased space in ∆ mall to operate a jewelry store. Lease said ∆ could not contract to open more than 2 other full line
jewelry stores. Later, ∆ contracted to lease to another third jeweler, but the lease said it would not be a full line jewelry
store, even though the company intended it to be one. Π sued in MO DC, and court denied MTD for failure to join an
indispensable party (the jeweler), and entered a preliminary injunction stopping them from leasing to another jeweler. ∆
appealed arguing that the failure to dismiss the case for non-joinder was improper. COA says even though the party is one
to be joined if feasible under rule 19(a)(2)(i), the factors in 19(b) led court to properly determine that the jeweler was not
indispensable.
a) The determination of whether or not a person is an indispensable party is one which must be made on a case-by-
case basis and is dependent upon the facts and circumstances of each case
b) 19(b) requires court to look first to the extent to which a judgment rendered in [the unjoined party]’s absence
might be prejudicial to the unjoined party or to the ∆.
(1) None of Lord’s [the unjoined party] rights will be ultimately determined in a suit to which it is not a
party. Even if, as a result of the preliminary injunction, ∆ attempts to terminate their lease, they will
still have all of their rights under their lease agreement – none of its rights or obligations will have
been adjudicated as a result of these proceedings
c) Lord’s absence will not prejudice ∆ in a way contemplated by 19(b) – any inconsistency in obligations of ∆ to π and
other tenants will result from ∆’s voluntary execution of two lease agreements which impose inconsistent
obligations rather than from Lord’s absence from the present proceedings
d) DC offered Lord’s an opportunity to intervene in order to protect any interest it might have in the outcome of this
litigation and they declined. Based on that, DC acted in such a way as to sufficiently protect Lord’s interests
e) It is generally recognized that a person does not become indispensable to an action to determine rights under a
contract simply because that person’s rights or obligations under an entirely separate contract will be affected by
the result of the action
Q. Daynard v. Ness & Motley
1. Daynard expert in tobacco litigation – consulted for two law firms, one in SC and another is MS, apparently made an
agreement to receive 5% of any legal fees recovered in the litigation (no written K, just a handshake). They receive millions
in legal fees, but he never gets paid. Sues in DC in MA. MS firm is dismissed for lack of personal jurisdiction, so SC firm
moved to dismiss or transfer the case, arguing that MS firm was indispensable under rule 19. MS firm guy was the one who
shook πs hand, court denies motion to dismiss
a) Two step analysis under rule 19:
(1) Is the party necessary under rule 19(a)?
(2) If so, is the party indispensable under 19(b)?
(a) Indispensable means a party who cannot be joined and without whom the court determines
the case cannot proceed in their absence
b) Court says under 19(a)(2)(i), judgment will not bind MS law firm
c) Not persuasive precedent or impair ability to deny liability if gets sued separately
d) 19(a)(2)(ii) Possibility that SC law firm will be required to bear the entire liability insufficient to dismiss case
III. Supplemental Jurisdiction (1367)
A. Background
1. Governed by 28 U.S.C. §1367, supplemental jurisdiction is jurisdiction over a claim that is part of the same case or
controversy as another claim over which the court has original jurisdiction (§1367(a)). According SCOTUS’s decision in
Exxon v. Allapattah, “same case or controversy” means “loose factual connection.” In layman’s terms, supplemental
jurisdiction allows federal courts to hear claims brought between existing parties, or between existing and new parties, for
which there is no federal subject matter jurisdiction if those claims are considered independently. For claims over which the
district court has supplemental jurisdiction (both federal & state law claims), those claims are tolled during the period the
claims are pending in federal court (§1367(d)). District courts may use their discretion and decline to exercise
supplemental jurisdiction over a claim (§1367(c)). This use of discretion will be upheld if the district court identifies truly
compelling circumstances that militate against exercising jurisdiction (Jones v. Ford) by thoroughly explaining that either
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has
original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
(§1367(c)). However, if the court’s original jurisdiction is founded solely on diversity (§1332) then the district court does
NOT have the ability to exercise supplemental jurisdiction over claims made by plaintiffs against impleaded parties (Rule
14), parties that must be joined to the suit (Rule 19), parties that may be joined to the suit (Rule 20), or parties that wish to
intervene into the suit (Rule 24). (§1367(b)).
a) There are some competing principles embodied in §1367: on one hand it promotes efficacy by allowing actions
with both federal and state law questions to be resolved in one court. By doing so it also encourages federal courts
to resolve federal law questions. On the other hand, it allows federal courts to intrude into traditional areas of
state law which would ordinarily NOT be reviewable by federal courts.
B. Class Notes
1. Pendent jurisdiction: jurisdiction over state law claims brought by plaintiff against defendant arising out of a common
nucleus of operative fact
a) Did not actually mean an independent basis; the state law claim is appended to the federal claim if it arises out of
a common nucleus of operative fact
2. Ancillary jurisdiction: jurisdiction over state law claims brought by parties other than the plaintiff or brought by or against
additional parties that have a logical relationship to the main claim
3. 1367 relatedness requirement is just same case or controversy
C. Use of Discretion: 1367(c) factors:
1. District courts may use their discretion and decline to exercise supplemental jurisdiction over a claim (§1367(c)). This use
of discretion will be upheld if the district court identifies truly compelling circumstances that militate against exercising

8
 jurisdiction (Jones v. Ford) by thoroughly explaining that either (1) the claim raises a novel or complex issue of State law,
(2) the state law claim substantially predominates over the claim or claims over which the district court has original
jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional
circumstances, there are other compelling reasons for declining jurisdiction. (§1367(c)). In Mine Workers v. Gibbs, SCOTUS
noted that where a state claim is closely tied to a question of federal policy, the argument for exercising supplemental
jurisdiction is strong.
2.
Reasons to Decline Supp. Jur. [cite to Gibbs & 1367(c)]
Reasons stated in Gibbs: Reasons in 1367
1) Avoid needless state law decisions. E.g., if fed 1) Novel or complex state law Qs.
claims dismissed before trial; 2) Supplemental claim substantially
2) State issues predominate predominates
3) Does not promote judicial economy, convenience 3) Dct has dismissed claims over
and fairness which it had orig juris
4) Likelihood of jury confusion 4) In exceptional circumstances, other
compelling reasons.
D. United Mine Workers of America v. Gibbs
1. Issue Whether the District Court properly entertained jurisdiction of the Claim based on Tennessee law.
2. Holding Yes, because the state and federal claims arose from the same nucleus of operative fact, both could be
adjudicated together in federal court-even though the federal claim ultimately failed
a) Preemption issue should be decided by federal court, federal claim was not de minimis
3. Takeaway A "colorable federal claim" is a jurisdictional anchor (restated - jurisdiction attaches when P files a colorable
federal claim). §1367(c)'s factors are taken from Gibbs (but they are not totally identical). ON A TEST CITE BOTH TO 1367
AND TO GIBBS
4. Facts Gibbs sought recovery against UMW for concerted union plan against him, alleging secondary boycotts in violation
of §303 of Labor Management Relations Act, and also asserted a state law claim relying upon pendent jurisdiction. Jury
verdict that UMW had violated §303 and state law. Gibbs was hired by Grundy Co to be a mine superintendent and to open
a new mine through use of members of the Southern Labor Union (and got a hauling K). Members of Local 5881 forcibly
prevented the opening of the mine, threatening Gibbs, eventually set up a picket line, the mine wasn't opened for 9 months.
Gibbs lost his job and never entered into performance of his haulage contract. Testified he began to lose other trucking
deals and mine leases – thinks due to UMW.
a) Pendent jurisdiction can arise when an initial claim is based on federal law and plaintiff seeks to add a claim
under state law, or when you have an initial claim between diverse parties based on state law, and plaintiff seeks
to add state law claim under the additional amount
b) Pendent jurisdiction requires a substantial federal issue (i.e. state law claim can’t dwarf federal claim), common
nucleus of operative fact, and plaintiff would be expected to try all claims in one proceeding
(1) Even if all these are met, DC still has discretion, look at factors in table above
c) 4 types of problems with in pendent jurisdiction:
(1) federal claims dismissed before trial (can dismiss or hear state law claim, prefer dismissal)
(2) state law claims predominate (preferred course of action is to dismiss without prejudice)
(3) state law claims tied to questions of federal policy (strong case for pendent jurisdiction)
(4) other reasons militate for separation
E. Owen Equipment & Erection Co. v. Kroger
1. Takeaway Complete diversity required! This was an interpretation of 1367; Unlike amount in controversy, diversity
jurisdiction comes right out of Const. Art. III (therefore there is less flexibility).
a) Rule 14 For diversity jurisdiction purposes, what matters is who the plaintiff sues. A plaintiff in a diversity
case cannot assert a claim against a 3rd-party D when there is no independent basis for federal jurisdiction over
the claim. Neither the convenience of litigants nor considerations of judicial economy can suffice to justify the
extension of jurisdiction to a P’s cause of action against a citizen of the same state in a diversity case.
b) AIC If there is diversity jurisdiction over the anchoring claim (that claim meets the AIC), then the other
plaintiffs do NOT have to satisfy the amount in controversy
c) If π couldn’t have sued directly, then they can’t sue indirectly (i.e. through third party claim)
2. Facts Respondent, James Kroger’s widow, filed a wrongful death action in USDC for Dis. Of Neb. Against Omaha Public
Power District (OPPD). Federal jurisdiction based on diversity of citizenship. OPPD filed a 3rd party complaint against
petitioner Owen Equip alleging crane owned by Owen, and that Owen’s negligence had prox caused Kroger’s death.
Appellate Ct decision (affirmed): under Gibbs, DC had jurisdictional power in its discretion to adjudicate Kroger’s claims
against Owen despite discovering lack of diversity because the claim arose out of the core operative facts giving rise to both
Kroger’s claim against OPPD and OPPDs claim against Owen.
F. Finley v. US
1. Small plane coming into San Diego crashes into power line. Sues city of San Diego and power company in state court. Also
sues the FAA in federal court because that’s the only place they can be sued, alleging a claim under FTCA, alleging runway
lights not properly maintained. Moved to amend federal complaint to add state law claims against the municipal/state
defendant
a) No independent basis for jurisdiction for the claims against the municipal defendants, but there is pendent
jurisdiction because they arise out of a common nucleus of operative fact. DC allows her to amend complaint in
federal court, adding the municipal defendants. DC certified the issue for interlocutory appeal, which was
accepted for appeal by the 9th circuit
b) 9th circuit reverses and rejects the application of pendent party jurisdiction in this instance. Issue: does the FTCA
permit assertion of pendent jurisdiction over additional parties. SCOTUS affirms 9 th circuit, saying that the
FTCA is for suits against the United States only, not united states and others, not US and municipal, etc.
c) 1332 cannot be read to confer pendent jurisdiction over non-diverse defendants even if the claim meets the Gibbs
test. statutory requirement of complete diversity and literalism wins out over judicial economy

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 G. Exxon Mobil Corp v. Allapattah Services, Inc
1. Takeaway All you need is 1 anchoring claim; All you need is 1 t-shirt P to meet the AIC; This decision came up with the
“loose factual connection” standard for §1367(a)
2. Rule When the well-pleaded complaint contains at least one claim that satisfies the amount-in-controversy requirement,
and there are no other relevant jurisdictional defects, the district court, beyond all question has original jurisdiction over
that claim.
3. AIC in Class Actions Where the other elements of jurisdiction are present and at least one named P’s claim in the
action satisfies the amount in controversy requirement, §1367 authorizes supplemental over all other related claims by
diverse parties arising out of the same case or controversy, subject only to the exceptions in §1367(b), even if those claims
are less than the jurisdictional amount required. Courts only need to determine whether they have original jurisdiction over
one of the claims in a case. If they do, courts can then decide to extend supplemental jurisdiction to the other related claims.
4. Issue Whether a federal court in a diversity action may exercise supplemental jurisdiction over additional plaintiffs
who’s claims do not satisfy the minimum amount-in-controversy requirement, provided the claims are part of the same case
or controversy as the claims of plaintiffs who do allege a sufficient amount in controversy.
5. Holding Yes, where the other elements of jurisdiction are present and at least one named plaintiff in the action satisfies
the amount-in-controversy requirement, §1367 does authorize supplemental jurisdiction over the claims of other plaintiffs
in the same Article III case or controversy, even if those claims are for less than the jurisdictional amount specified in the
statue setting forth the requirements for diversity jurisdiction.
a) there is no need for each party to independently satisfy the amount in controversy requirement. If we held so, we
would just be requiring each case have independent diversity jurisdiction rather than supplemental jurisdiction.
IV. The Erie Problem
A. Background
1. Judiciary Act of 1789 (Rules of Decision Act)
a) §34 – state law shall be regarded as rules of decision except where constitution, treaties, or federal statutes
require
2. Swift v. Tyson: under NY law, could not collect on bill of exchange; under general law of US, could collect.
a) Rules of Decision Act applies to the laws of the several states on local issues (e.g. family law, real estate), but not
on general issues – courts not required to follow state decisional law (only statutory law)
3. Big Rule: Because of federalism concerns, the general rule is that, when a federal court is sitting in diversity jurisdiction,
it must apply the substantive choice of law (common law AND positive law) of the state in which it sits (see Klaxon v
Stentor, Furens v John deer) UNLESS the constitution, treaties, or federal statutes say otherwise. (Erie v Tomkins). FRCPs
for all intents and purposes apply in federal diversity proceedings. (See Shady Grove) Procedural practices apply in
diversity courts if are not outcome determinative (York) and/or strike an appropriate balance between state and federal
interests (Byrd). Federal statutes apply in diversity if (1) valid under the CON AND (2) valid under the rules enabling act.
a) Is there a conflict between federal and state law?
(1) If conflict is merely incidental, just apply federal law (Walker v. Armco)
(2) Look to what the federal rule actually addresses, not the purpose of the rule (Shady Grove v. Allstate –
Scalia)
b) If so, is there a federal rule involved?
(1) If federal rule: is it valid under the Rules Enabling Act or the CON? – does it modify a substantive
right? (Hanna v Plumer)
(a) *the court has never met a FRCP it found unCON or violative of the REA
(b) * look to if the rule really regulates procedure NOT at its effect on substantive rights (Shady
Grove v Allstate—Scalia)
(c) *Maybe we should see if state procedural law intertwined inextricably with substantive
rights – if so, respect that (Shady Grove v Allstate – Stevens)
(i) Requires look at BOTH state and federal law (Shady Grove v Allstate – Stevens)
(ii) *maybe we should look to the purpose of the state law – if clearly intended to
modify substantive rights, should interpret the FRCP to respect that intent
(Shady Grove v Allstate – Ginsburg Dissent)
- Satisfies federalism principles
(2) If not federal rule – common practice: does it violate Erie?
(a) Two tests to determine if procedural:
(i) Many courts first look to twin aims of Erie: would our decision encourage forum
shopping AND/OR unfairly discriminate against a litigant (Erie / Hanna)
(ii) York outcome determinative test: if the state law would bar recovery in state court,
it should bar recovery in federal court (Guaranty Trust v. York)
(iii)Byrd balancing test: balance the state and federal interests to determine if
federalism is infringed upon
c) Basically if there is a federal statute OR rule of civil procedure, it controls over an inconsistent state rule IF
(1) valid under the constitution
(2) valid under the REA
(3) AND applies in this case
(4) BUT: many courts have interpreted narrowly OR recognized issue incidental to avoid conflict -
Gasperini v Center for the Humanities – use state standard for excessive verdicts;
Walker v Armco Steel – filing actions under FRCP 3 does not toll statute of limitations because
incidental to FRCP 3
d) When there is no statute or rule, can apply federal practice using York and/or Byrd and/or twin aims from Erie
and Hanna
4. Applying the rules
a) is there a valid federal rule?
(1) If so, apply it. Doesn’t matter if it is outcome determinative

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 b) If the rule is too substantive, invalid per REA, fails twin aims test of Hanna, don’t apply it
5. State law includes both state common law (judicial decisions) AND state positive law (statutes) (Erie overruling Swift)
6. Main purposes of Erie: reduce forum shopping and promote fairness for litigants
a) Concern with forum shopping based in equal protection – why should someone from another state get to use the
federal system with a more favorable rule? (see Erie v Tomkins)
b) Concern with state autonomy based in federalism
c) ALSO: recognition that it is unfair for the result of litigation to change just because of one’s court (see Hanna v
Plumer)
d) Based in the Rules Decision Act: “The laws of the several states, except where the Constitution or treaties of
the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil
actions in the courts of the United States, in cases where they apply.” (28 USC 1652)
7. Rules Enabling Act creates FRCPs which trump all conflicting state laws within the scope of the FRCPs (procedural)
a) BUT rule must be valid – cannot modify or abridge substantive rights
8. SUBSTANTIVE – some categorical rules
a) burden of proof (Erie v Tomkins; Palmer v Hoffman)
b) Conflict of laws analysis (Klaxon v Stentor)
c) Preemption (Angel v Burlington)
d) Statute of limitations (Guarantee Trust v York)
e) Right to jury is PROCEDURAL (Byrd v Blue Ridge)
f) Forum selection clause is PROCEDURAL and must yield to federal venue statute (Stewart v. Ricoh)
9. have multiple tests to determine if substantive or procedural
a) York outcome determinative test: if state law would bar recovery, should bar recovery in federal court
(1) Is there a rule of state law that would control?
(2) Would that rule significantly affect the outcome if federal court were to disregard it?
(3) If so, must follow state law
b) Byrd balancing test: balance state and federal interests to determine if federalism infringed upon
(1) Balance: respect state court definitions of state-created rights, importance of federal interest, and
outcome determinativeness
(2) Strong interest in federal right to jury
(3) Weak interest in state’s rights to determine the mode and form of enforcing rights
c) Twin aims of Erie approach
(1) Procedural IF (1) not the kind of rule that invites forum shopping AND (2) application in contrast to
state would not result in unfairness
B. Erie v. Tompkins
1. Tomkins hit by a train while walking on RR property. Erie wants PA law to apply (no liability to trespassers) but Tomkins
argues that, because there is no state statute, federal common law applies (channeling Swift v Tyson). Suit in diversity.
2. The federal judiciary act requires state law to provide the rule of decisions in diversity cases unless the CON, federal
statute, or treaty says otherwise. In Swift we held that we cannot apply the unwritten law of the states. This position has
been criticized. State courts now have their own common laws. Were we to apply federal common law in diversity suits, we
would allow people to engage in forum shopping. Unless the CON or a statute applies, state law (positive and common)
provides the rule of decision in diversity suits.
3. Reed Concurrence – Swift says federal courts should respect state tribunal decisions but they aren’t conclusive. That was
based on a valid interpretation of the word “law” as it stood at the time. Law has now changed and our new interpretation is
in line with that. Now “law” includes both positive law and judicial decisions. We should be more clear in this instead of
acting as if we base our decision in the CON’s structure.
4. In diversity cases, federal courts must apply state common law and positive law as the rule of decision unless the
constitution, treaty, or federal statute says otherwise
C. Guaranty Trust v. York
1. York sues Guarantee for fraud but the state SOL has passed. Argues that the equitable doctrine of laches should be applied.
2. The procedure vs substance line is a distinction without meaning. The right to recover is derived from the states. It is only
the mode of enforcement that can vary by court. Federal courts can’t allow recovery that would be unavailable in state
court. Erie is intended to force federal courts in diversity to conduct litigation using substantially the same legal rules and
reaching substantially the same outcome as if the case were in state court. If the SOL would bar recovery in state court it
bars recovery in federal court. Or else we are promoting forum shopping.
3. Rutledge Dissent – The substantive vs procedural distinction is hard to apply on the edges. But SOLs are not decisions on
substantive rights but decisions about whether the court will hear the suit. Thus, they are procedural.
4. Federal court must apply state SOL in diversity cases
D. Byrd v. Blue Ridge
1. Blue ridge hires a contractor to install power lines. Byrd, an employee of the contractor, sues Blue Ridge for injuries
received while on the job. State statutes says that, if the plaintiff is a “statutory employee” he is only entitled to workers
comp. The state supreme court has said that is purely a question of law so not to be sent to the jury. Byrd wants the jury to
decide his status.
2. Erie requires federal courts sitting in diversity to respect state court created rights and obligations. The state court’s
determination that “statutory employee” is a question of law was administrative – speaks to the mode and form of enforcing
immunity, not a rule regarding the rights and obligations of parties. Erie does explain that federal courts should defer to
states as much as possible. And right to a jury does affect the outcome of a case. But the federal system is also an
independent system of justice and there is a strong federal policy against allowing states to disrupt the essential functions
of the federal courts.
3. Federal courts are not bound to the state’s determination of law regarding right to a jury
E. Hanna v. Plumer
1. Diversity suit for negligence served on defendant pursuant to FRCP rule 4. Defendant pleads improper service because
service did not comply with state service rule.

11
 2. Proscribing methods of service is clearly procedure. But that is not necessarily controlling. The key here is to respect the
twin aims of Erie – (1) understanding that it is unfair for the result of litigation to change just because someone is in federal
court AND (2) dislike of forum shopping. Erie does not void federal rules, it only mandates a more narrow interpretation to
avoid conflicts if possible. When a situation is covered by a federal rule, there is no duty to reinterpret it. The only question
is whether or not the rule is valid under the rules enabling act.
3. Harlan Concurrence – Erie’s test are not workable. Breaking it into 2 policies is also not workable and ignores the policy of
federalism. Federal procedural rules should not always trump state law. That would be too absolute. The court should
respect the purpose of the state law.
4. Because Rule 4 covers the situation entirely, Erie does not apply and we just ensure it is valid (aka procedural) under the
rules enabling act
V. Impleader
A. Gross v. Hanover
1. Π alleges he suffered a loss of about 220k worth of diamonds consigned to 3-R jewelers and 48k worth of diamonds and
emeralds left with them for safekeeping. 3-R owned by Rizzos. Π made a claim under a jeweler’s block insurance policy
issued to him by ∆, seeking 50k loss of consignment goods and 25k for loss of goods left for safekeeping. There was a theft at
the jewelry store, and ∆ sought to implead the Rizzos on the ground that they will be liable to ∆ should ∆ be found liable to π
because of negligent handling of the jewels, conversion, and negligent hiring, retention, and supervision of Joseph (one of
the Rizzos who did cocaine). Court grants motion to implead Rizzos under rule 14
a) In this case, ∆’s proposed third-party claims arise from the same aggregate or core of facts which is determinative
of π’s claim and thus the interest in judicial economy would be served by permitting those claims to proceed in the
instant action
b) The words “is or may be liable” in rule 14(a) make it clear that impleader is property even though the 3P∆’s
liability is not automatically established once the 3pπ’s liability to the original π has been determined
2. Court balanced the benefits to the prejudice of ∆
B. Banks v. City of Emeryville
1. Takeaway 3rd party indemnification Rule: 3rd parties can be added where there is no independent jurisdictional basis for
state law claims against 3rd-party Ds. Supplemental jurisdiction can be exercised over state law claims. Court has
discretion to grant a late impleader request.
2. 3rd party Ds can be held liable on federal OR state grounds separate from those under which D is sued under in P’s
complaint.
3. 3rd party Ds do not have to be directly liable to the P; only partially or fully liable to the D to be impleaded.
4. Rule 14 does not care about whether the causes of action between the original suit and the impleaded claim/suit are the
same cause of action.
5. Standard for 1367 QUESTION, same case or controversy? ANSWER = yes, it all arises out of the same occurrence. All
that matters is a loose factual connection under 1367(a).
6. Issues/Holdings:
a) Whether the 3rd party complaint should be dismissed on the grounds of late impleader
(1) Holding: No, allowing a late impleader is within the discretion of the court.
b) Whether the 9th circuit should entertain state law claims against parties where no independent basis for federal
jurisdiction exists as to those parties.
(1) Holding: Yes, the court may exercise its ancillary jurisdiction over the state law claims in the 3rd party
complaint
(2) fact that the claim is brought by ∆ (rather than π) also helps
c) Whether the 3rd party Ds may be impleaded under FRCP Rule 14(a) when the D are trying to pass on liability for
a §1983 claim which the 3rd party D cannot be held liable for and which does not provide for indemnification.
(1) Holding: Yes and No-
(a) Any claims for indemnification against the 3rd party Ds based directly upon §1983 are
impermissible.
(b) However, to the extent that the Ds see indemnification or contribution based on state law
theories the claims are permissible provided that the claims satisfy the requirements of Rule
14(a) and the substantive requirements of state law.
d) Whether the Ds can potentially hold the 3rd party ∆s liable for some or all of the Ds’ primary liability to the
plaintiff under Rule 14(a) when 3rd party Ds cannot be held directly liable to plaintiffs.
(1) Holding: Yes, since it is possible that the 3rd party Ds may be all or partially liable to the Ds for the
plaintiff’s claim against the Ds, impleader is appropriate under Rule 14.
C. Owen Equipment & Erection Co v. Kroger
1. See notes from supplemental jurisdiction. Rule 14 does not create or withdraw jurisdiction. Federal jurisdiction cannot be
sustained when it was originally granted based upon diversity, but the original diverse defendant is no longer a party and
the remaining parties do not have diversity.
D. Notes
1. May implead third party, but must get leave of court if doing it more than 14 days after serving original answer
2. Liability of 3P∆ is “derivative” (I.e. Before there can be any recovery on a rule 14(a) impleader claim, there must be a
recovery against the ∆/3pπ, and the 3P∆ must be liable to the ∆/3pπ for all or part of that recovery
3. The theories of recovery need not be the same in the complaint and the third party complaint. At the time the third party
complaint is served, there is no necessity that the defendant’s liability to plaintiff has already been determined
4. 3P∆ must answer 3P complaint and assert any defenses against the impleading ∆/3pπ, must assert any compulsory
counterclaim against 3pπ, may assert any permissive counterclaim against 3pπ, may assert defense that 3pπ has against
the original plaintiff. May counterclaim against the 3pπ and cross claim against any co-third party defendants.
a) Original π can make a claim directly against the 3P∆, must arise out of the same transaction or occurrence (rule
14), and there must be an independent basis for jurisdiction (no supplemental jurisdiction for claims by
original plaintiffs against third party defendants – see 1367(b))
5. judge has discretion to disallow third-party claims upon motion by party to strike or sever (prejudice, unfairness, efficiency,
etc)

12
 SUPPLEMENTAL 3rd party claims by defendants 3rd party claims by plaintiffs
Diversity YES (1367(a) and (b) NO (1367(b))
Federal Question YES (1367(a)) YES (1367(a))
6.
VI. Intervention
A. Notes
1. Rule 24 provides a procedure so that a person who is not made a party to a suit can protect herself/her interests from the
consequences of being excluded from an action. Consequences may be that the resolution to the action would be detrimental
to the intervenor’s interests or that it would have to litigate the claim separately. Rule 24(a) describes situations in which
intervention is “of right” while 24(b) authorizes “permissive intervention” in the discretion of the court. In either situation,
the opportunity to intervene may be lost if the would-be intervenor unduly delays in moving to intervene
2. Rule 24(a) – Intervention as of right
a) Intervention is a matter of right if (a) there is a federal statute giving that right, or (b) there is both existence of
an interest which may be impaired as a practical matter by disposing of the action in their absence AND absence
of an adequate representation of the intervenor’s interest by existing parties (Rule 24(a) / Atlantis). If a party
intervenes as a matter of right under 24(a) then they acquire the rights of a full party to the suit. Denial of a
motion to intervene as of right is immediately appealable (see Rhode Island v. EPA)
3. Rule 24(b) – Permissive Intervention
a) Intervenor must (1) make a “timely motion,” (2) have a “claim or defense that shares the main action of a common
question of law or fact.” Court may grant a rule 24(b) motion as a matter of discretion. In exercising discretion,
court must consider whether the intervention will unduly delay or prejudice the application of the original parties’
rights (Rule 24(b)(3)). Denial of a motion to permissively intervene is not immediately appealable (See US v.
Jefferson County)
4. Supplemental jurisdiction is not a basis for jurisdiction over Rule 24 intervention claims when the underlying
claim is based solely on diversity (per 1367(b)). Π cannot assert a claim against an intervenor nor can a person
intervene as a π if this would be inconsistent with the complete diversity requirement.
B. Atlantis Development Corp v. United States
1. Dispute over ownership or right to control the use, development of, and building on a number of coral reefs or islands off the
coast of Florida. US sued main ∆s for injunction (Acme, Coppedge, Ray) because they built caissons on the reef and dredged
material from the sea bed and deposited dredged material within the caissons without authorization from US gov. This was
trespassing on gov property. Also asserted ∆s engaged in building artificial land or fixed structure on Outer Continental
Shelf without a permit in violation of federal law. Atlantis sought to intervene by proposed answer and crossclaim against
∆. Asserted US had no territorial jxn, dominion, or ownership in or over the reefs and cannot therefore maintain the action
for an injunction, and that conversely Atlantis has title to the property by discovery and occupation. Atlantis claims ∆s are
trespassers against it. DC declared that intervenor Atlantis does not have such an interest in cause as will justify its
intervention, either as a matter of right or permissively
2. Atlantis was allowed to intervene as of right into this case because they had an interest in the subject matter such that
disposition may impair or impede their ability to protect that interest
a) Rule 24(a)(2) – claims an interest relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that interest
b) Application of future stare decisis is a practical consideration when deciding whether a party should be impleaded
c) US argued that joinder wasn’t property because Atlantis could not win at trial on the merits. Basically argued
that Atlantis didn’t have an “interest” in the transaction because they would lose at trial
C. Stuart v. Huff
1. Takeaways Government is the most natural party (and best situated) to shoulder the responsibly of defending the fruits
of the democratic process. DC can discretionarily deny permissive intervention due to concerns about “undue delay”
a) Intervention as a matter of right must be permitted if
(1) A party has an interest in the subject matter of the action,
(2) And the protection of this interest would be impaired because of the action,
(3) And the applicant’s interest is not adequately represented by the existing parties to the litigation.
2. Where a proposed intervenor’s ultimate objective is the same as that of an existing party, the party’s representation is
presumptively adequate, rebuttable only by a showing of adverse interests, collusion, or nonfeasance
3. Procedural posture: injunction or compensation? Injunction is appropriate where fundamental rights are concerned AND
where compensation would be insufficient
4. ANALYSIS:
a) Are your interests being adequately represented? Does one of the parties have the resources and/or expertise in
this type of issue? (look at the resources and/or expertise of the potential representative party)
b) Would the addition be valuable? Does the intervenor have an expertise that would meaningfully contribute to the
action?
5. If the party is not allowed to intervene, then they do not have the right to appeal. Also, they don't get to put on witnesses
(the appellants wanted to put witnesses on the stand so they could tell personal stories)

D. Charts / Analysis

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 1.

2.
VII. Provisional Remedies & Forum Non Conveniens
A. Washington v. Trump
1. Case about travel ban. DC issued a TRO enjoining enforcement of the EO. ∆ appealed, seeking a stay of the TRO. 9th circuit
denies the motion for a stay because the gov did not show a likelihood of success on the merits and has not shown that
failure to stay the TRO would cause irreparable injury
a) 3(c) suspended entry from 7 countries, 5(a)-(c) suspended refugee program, allowed SoS to prioritize refugee
admissions based on being a non-majority religion, and indefinitely suspended entry from Syria, and 5(e) says
that it would be in national interest to allow a person in when they are in the minority religion in their country
(basically, allow Christians from Muslim countries, but not Muslims)
b) A TRO is not ordinarily appealable, but court can review an order stylized as a TRO if it “possesses the qualities
of a preliminary injunction” – usually requires would-be appellant to show that the TRO was strongly challenged
in adversarial proceedings in the trial court and that it has or will remain in force for longer than 14-day period of
65(b)
c) Gov argues that the states do not have standing – states argue that the EO causes concrete and particularized
injury to their public universities (faculty and students who are nationals of the seven countries cannot travel for
research, etc and some have been stranded outside the US)
d) Third party standing is applicable here – the third party’s interests are “inextricably bound up with the activity
the litigant wishes to pursue,” litigant is “fully, or very nearly, as effective a proponent of the right,” or when third
party is less able to assert her own rights
(1) Schools have been permitted to assert the rights of their students – as operators of the universities,
states may assert not only their own rights, but also the rights of students and faculty
e) Gov position that DC lacked authority to enjoin enforcement because the immigration policy, when motivated by
national security concerns are unreviewable, asserting that it violates separation of powers
(1) SCOTUS has repeatedly rejected notion that the political branches have unreviewable authority over
immigration or are not subject to the constitution when policy making in that context
f) Government’s authority and expertise in national security matters does not trump the court’s own obligation to
secure the protection that the constitution grants to individuals
2. A stay is not a matter of right, even if irreparable injury might otherwise result – it is an exercise of judicial discretion.
Party requesting a stay bears burden of showing that the circumstances justify an exercise of that discretion
a) 4 questions to consider:
(1) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits
(2) Whether the applicant will be irreparably injured absent a stay
14
 (3) Whether issuance of the stay will substantially injury the other parties interested in the proceeding
(4) Where the public interest lies
b) The first two factors are the most critical and the last two are reached once the applicant satisfies the first two
c) Here, gov fails to meet the first two, and even so, the last two militate toward the TRO
B. Trump v. Hawaii (SCOTUS)
1. Gov appealed injunctions of revised travel ban. SCOTUS grants stay applications in part
a) We grant the gov applications to stay the injunctions to the extent they prevent enforcement of 2(c) with respect
to foreign nationals who lack any bona fide relationship with a person or entity in the US
b) Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the
equities of a given case as the substance of the legal issues it presents
(1) Purpose of such interim equitable relief is not to conclusively determine the rights of the parties, but to
balance the equities as the litigation moves forward, and the court must consider the overall public
interest
c) In assessing the lower courts’ exercise of equitable discretion, we bring to bear an equitable judgment of our own
(1) Before issuing the stay, it is ultimately necessary to balance the equities, to explore the relative harms
to applicant and respondent, as well as the interests of the public at large
d) Equities relied upon by the courts do not balance the same way in the context of people with no connection to the
US
e) Whatever burdens may result from enforcement of 2(c) against a foreign national who lacks any connection to this
country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below
f) Government interest in enforcing 2(c), and executive’s authority to do so, are undoubtedly at their peak when
there is no tie between the foreign national and the US
(1) 2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship
with a person or entity in the US
C. United States v. Jenkins
1. ∆ has possessory rights on an unimproved parcel of land within the Cumberland Island National Seashore, which is owned
by the US. Began constructing a new building and septic system on the parcel, π sued, alleging that the construction
exceeded ∆’s property rights and sought a preliminary injunction under Rule 65. Court grants motion in part and denies in
part, stopping ∆ from constructing anything that involves additional digging or excavation, but does not enjoin ∆ as to any
construction that does not involve further digging or excavation
a) When a court issues an injunction, the order must state its terms specifically and must describe in reasonable
detail (and not by referring to the complaint or other document) the act or acts restrained or required
b) In order to demonstrate that it is likely to prevail on the merits, π need only demonstrate the likelihood of
prevailing on one cause of action
c) Before issuing a preliminary injunction, π must show that irreparable harm is not merely possible, but likely –
must be likely to occur after π’s request for an injunction and before resolution of the case on the merits (i.e. must
be future harm, not something that has already happened)
d) An injury is “irreparable” only if it cannot be undone through monetary remedies
D. United States v. N.Y. Times (1971)
1. NYTimes published summaries and portions of the text of documents – one a study relating to Vietnam and a summary of a
study relating to the Tonkin Gulf incident. Gov sued to enjoin Times from further dissemination, disclosure, or divulgence
of the materials contained in the study of the decision-making process with respect to vietnam and the summary of the
other study, asking court to order Times to turn over all their docs so they can be impounded pending determination by the
court. Court entered a TRO preventing further publication until a determination on the merits but refused to require the
documents to be impounded. Court decides not to continue the TRO and denies application for a preliminary injunction
a) The government may ask a district court for injunctive relief even in the absence of a specific statute authorizing
such relief
(1) The injunction must rest upon the premise that in the absence of statutory authority, there is inherent
power in the executive to protect the national security
(2) The court does not doubt the right of the government to injunctive relief against a newspaper that is
about to publish information or documents absolutely vital to current national security, but this is not
the case here. From in camera review, the court is not convinced that the publication of these historical
documents would seriously breach the national security
b) There is no reasonable likelihood of government successfully proving that the actions of the Times were not in
good faith, nor is there irreparable injury to the government. This has been an effort on the part of the Times to
vindicate the right of the public to know. It is not a case involving an intent to communicate vital secrets for the
benefit of a foreign government or to the detriment of the US
VIII. Removal
A. Caterpillar Inc v. Williams
1. Case removed when no complete diversity existed. Π moved to remand, but was denied. Later, non-diverse party settled
before trial. Rule: a case need not be dismissed for lack of SMJ when the incomplete diversity means that the case was
improperly removed under 1441, but the defect is cured before judgment rendered. Considerations of finality, efficiency, and
economy become overwhelming once a diversity case has been tried in federal court. These interests only trump because the
case later met diversity requirements. If it had not, it would have to be dismissed and re-tried.
B. Notes
1. Gives ∆ power to second-guess πs who file in state court when it could have been brought in federal court
2. If federal claim arises only as a defense, not removable
3. ∆ cannot remove if they are citizen of the forum state if the case would be removable based on diversity only
4. if one or more of the ∆s are in their home state and π is out of state, but there is federal subject matter jxn, can remove (i.e.
if it’s a federal claim, but not diversity)
5. can only remove to the DC in the same geographic location that the state suit was filed in
6. Procedure: ∆ must file a notice of removal in the DC and give notice to the adverse parties and file a copy of the notice in
state court, at which state court has no control over the case. They can’t fight to not have it removed

15
 a) Π can move to remand back to state court on procedural grounds (within 30 days) or on lack of SMJ (anytime
prior to entry of final judgment)
IX. Forum Non Conveniens
A. Piper Aircraft Co v. Reyno
1. Plane crashed in Scotland. Π representing estates of Scottish citizens killed in crash brought wrongful death actions that
ended up in Middle District of PA. Motion by ∆ to dismiss for forum non conveniens. Question: is dismissal on FNC
automatically barred where the alternative forum is less favorable to the π? Answer: no, and DC did not abuse discretion in
dismissing for FNC. Because all the evidence is in UK, πs are in UK, and the UK has a stronger interest in the litigation, it
should be litigated there.
2. Gilbert test: balance the private interest factors (ease of access to sources of proof, availability of compulsory process for
attendance of unwilling witnesses, other practical problems that make trial easy, expeditious and cheap) and public interest
factors (administrative difficulties, local interest in having local issue resolved at home, avoid unnecessary conflict of law
problems, unfairness of burdening unrelated forum residents to jury)
B. Notes
1. MTD on FNC grounds proper only when the alternative forum is in a forum country. If alternative forum is in US, proper
motion is for transfer under 1404
2. Common for court to condition FNC dismissal on agreement by ∆ to waive SOL, an in personam jxn objection, or other
defenses available in the alternative forum
3. Refusal to exercise jurisdiction on grounds that it would be more convenient to try the case elsewhere. Allows for dismissal
only, not transfer. Must consider public interest and private interest factors
X. Disposition Without Trial
A. Dismissal for failure to state a claim and judgment on the pleadings
1. 12(b) motion to dismiss for failure to state a claim if made by ∆, but can be motion for judgment on the pleadings by either
party under 12(c)
2. 12(b)(6) motion can be made before pleadings are complete or at trial
B. Voluntary dismissal
1. By plaintiff or stipulation under 41(a)(1)(A)(i) by right simply by filing a notice of dismissal, so long as this is done before ∆
has answered or moved for summary judgment
a) This dismissal is without prejudice
2. Can only voluntarily dismiss case without prejudice one time
3. Can voluntarily dismiss by stipulation
C. By order of the court
1. Rule 41(a)(2) allows court to dismiss a complaint without prejudice “on terms that the court considers proper”
a) Decision to dismiss under 41(a)(2) can be reversed only for abuse of discretion
b) If ∆ has filed a counterclaim, can’t dismiss under 41(a)(2) unless there is an independent basis for jurisdiction that
will allow the counterclaim to continue after dismissal of πs claim or ∆ is willing to consent to dismissal of the
counterclaim
D. Involuntary dismissal for failure to prosecute
1. 41(b): dismissal is proper when, in a persistent course of conduct, the plaintiff has been dilatory in pursuing her suit
2. unless otherwise specified in order, dismissal for failure to prosecute operates as an adjudication on the merits with res
judicata effect
E. Default and Default Judgment
1. Entry of default under 55(a) is a simple entry on the docket that the ∆ has failed to plead or otherwise defend. Failure may
occur at the outset (fail to answer summons and complaint), or later (fail to answer motion for summary judgment)
a) By itself, entry of default does not terminate the care. Unless vacated, it does bar ∆ from offering any further
defense on issues of liability, as distinct from remedy
2. Entry of default judgment under 55(b) is actual entry of a judgment granting relief against a defendant. Such a judgment is
on the merits and has res judicata consequences
a) When ∆ has been defaulted for failure to make a timely appearance in the action and judgment sought is for a
“sum certain,” the clerk must enter the judgment per 55(b)(1)
b) In all other circumstances, π must apply to the judge per 55(b)(2)
(1) If ∆ has appeared before defaulting, notice is required of the application for judgment
(2) Π is required to “prove up” concerning the amount of damages to be awarded and defaulting party is
entitled to be heard on the issue
(3) Relief granted in default judgment cannot exceed that demanded in the complaint per rule 54(c)
3. Entry of default may be set aside for “good cause”; a judgment of default may be set aside only in accordance with 60(b)
F. Summary Judgment
1. SJ provides a means, short of trial, for identifying and deciding, on the merits, those claims, defenses, or issues where the
evidence is so one-sided that a trial before a judge or jury with live testimony would be a waste of time and money.
2. In cases where the material facts are sharply contested, court must decide whether the factual disputes are “genuine” on
some basis other than the conviction of the parties or the words of their pleadings, and whether the factual
disputes are “material” in that they matter to the outcome of the case
3. Rule 56 provides the procedure and standards for obtaining summary judgment
a) The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law
b) May file the motion at any time until 30 days after the close of all discovery
4. In supporting their assertions, parties can cite to particular parts of materials in the record; show that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact
a) reliance solely on the complaint is not enough for SJ
b) Materials cited have to comply with 56(c)(4)
(1) Affidavit or declaration must be made on personal knowledge, cannot be conclusory, has to be
admissible at trial

16
 5. In deciding MSJ, could need only consider the materials cited by the parties, but it may consider other materials in the
record
6. Burden of production, typically falling on the plaintiff, requires the plaintiff to produce evidence at trial that meets a
minimum standard of “sufficiency” – if π does not introduce sufficient evidence on each essential element of the case, judge
need not permit π’s case to go to the jury
a) Instead, trial judge authorized to grant judgment as a matter of law against π
b) Court asks whether there is sufficient evidence favoring π such that a reasonable jury could find in the plaintiff’s
favor under the applicable standard of persuasion
7. Therefore, SJ serves as a device that can be used before trial to determine whether a party who bears the burden of
production will be able to meet it
8. Rule 56 has been interpreted as imposing an initial burden on the party moving for summary judgment to “support” the
motion – if the motion is not adequately supported, the π need not submit ANY evidentiary materials in opposition and the
court need not see if π passed the test of 56(a)
9. Purpose
a) Resolve case without trial where dispositive facts not in dispute
10. Secondary Purpose
a) Narrow and simplify issues for trial
b) Discovery (when you move for SJ, other party has to “pony up” and offer at least some evidence to support their
claim)
c) Educate judge
G. Rule 12 v. Rule 56 motions
How facts viewed Evidence considered
Rule 12 All allegations in complaint true Complaint only
Rule 56 In light most favorable to non-moving Sworn evidence
party
1.
H. Adickes v. S.H. Kress & Co
1. Π files civil rights suit, claiming police and store engaged in conspiracy to refuse her service because she attempted to dine
with people of a different race. ∆ store moves for SJ, supplying affidavits from store manager and arresting officer denying
existence of a conspiracy. Π responds, producing evidence that would be inadmissible at trial. Court holds that summary
judgment should have been refused because ∆ failed to meet its burden (failed to foreclose possibility that a police officer
was in the store). Because ∆ failed to meet its initial burden of production, court doesn’t even look at π’s evidence
a) Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue,
summary judgment must be denied even if no opposing evidentiary matter is presented
b) Adickes relied on:
(1) Kress failed to dispute allegation in complaint that it was the same officer
(2) Hearsay statement at her deposition that student saw officer came in and left
(3) Unsworn statement by Kress employee that she saw the officer come in and the same officer arrested
her
(4) Circumstantial evidence sufficient to infer conspiracy
I. Celotex Corp v. Catrett
1. Π’s husband died due to exposure to asbestos, sues asbestos manufacturer. ∆ moves for SJ, offering nothing to disprove
exposure, only pointing out that π lacks evidence to support its claim. Π responds with evidence that would be inadmissible
at trial. Court holds that because π carries the burden of production, ∆ can discharge its burden in SJ merely by pointing
out to the court that π lacks sufficient evidence to prove her case (doesn’t actually have to prove impossibility of other side’s
claim)
a) Focuses on question of which party carries the burden of production and persuasion
(1) When non-moving party has the burden of proof at trial, the court should look at what the non-moving
party actually has (opposite of Adickes)
b) We find no express or implied requirement in rule 56 that the moving party support its motion with affidavits or
other similar materials negating the opponent’s claim
2. Concurrence: agree with outcome, and even that can use inadmissible evidence, but it is not enough to move for summary
judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to
prove his case
3. Dissent: the burden of production imposed by rule 56 requires the moving party to make a prima facie showing that it is
entitled to summary judgment – the manner in which the showing can be made depends on which party will bear the
burden of persuasion on the challenged claim at trial.
a) If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible
evidence (using any of the materials in 56(c)) that would entitle it to a directed verdict if not controverted at trial
(1) Such an affirmative showing shifts the burden of production to the party opposing the motion and
requires that party either to produce evidentiary materials that demonstrate the existence of a
“genuine issue” for trial or submit an affidavit requesting more time for discovery
b) If burden of persuasion at trial would be on the nonmoving party, the party moving for SJ may satisfy 56 in either
of two ways:
(1) Moving party may submit affirmative evidence that negates an essential element of nonmoving party’s
claim
(2) Moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to
establish an essential element of their claim
(a) Where this is used, a conclusory assertion is insufficient – such a “burden” of production is no
burden at all. Must affirmatively show the absence of evidence in the record (e.g. depose the
nonmoving party’s witnesses or establish the inadequacy of documentary evidence)
J. Chart

17
 1.
2. Issue (1) is a critical fact movant must show to win his case (i..e., a “material” fact)
3. A genuine issue of material fact exists when we’re in X-Y (i.e., we need to be in X-Y in order for the case to go to the jury
a) The proponent must get beyond “X” in order to get to the jury
b) When we ask if we’re in X-Y, we’re asking if we should have a trial
(1) More specifically, we’re asking if there’s enough in the record that the party with the burden of proof
should be allowed to put the issue to the jury (or should as a matter of law the judge take the question
away from the jury)
c) To get to X-Y, proponent has to meet the burden of production (to win the case, proponent then must meet/win
burden of persuasion)
(1) To meet the burden of production, proponent must come forward with enough evidence such that a
reasonable fact-finder could find in his favor
4. The Celotex Standard – depends on who has the burden of proof at trial
a) If the moving party has the burden of proof at trial (usually, if movant if π):
(1) Moving party must get all the way to Y-Z (show a jury will have to rule in his favor
b) If the moving party does not have the burden of proof at trial (usually, if movant is defendant)
(1) Moving party must show that the non-movant has never gotten out of W-X (i.e. doesn’t have anything
to get to X-Y). He can do this either by:
(a) Showing the opposite of the disputed issue (1) (i.e. offering affirmative evidence to get all the
way to W-X), or
(b) Showing π lacks sufficient evidence to support the disputed issue (1) (showing π hasn’t ever
gotten out of W-X  i.e. that π lacks sufficient evidence such that a reasonable jury could
find in his favor
(i) Celotex is unclear on whether ∆ in this case must do more than merely say π has
nothing
c) Rule 56 requires summary judgment if
(1) Party fails to make a showing
(2) Sufficient to establish an element
(3) Essential to party’s case
(4) On which party will bear burden of proof at trial
K. Notes
1. Anderson v. Liberty Lobby: Summary judgment requires the trial court to predict what will occur at directed verdict stage
(i.e. rule 56(c) mirrors rule 50(a))
a) Evaluate whether only one reasonable conclusion could be made
2. Matsushita v. Zenith
a) Zenith failed to present evidence that excluded the possibility that the alleged conspirators had acted
independently
b) Where the record could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue
for trial
XI. Responding to MSJ
A. Tolan v. Cotton
1. ∆ thought π driving stolen car, stopped them as they were entering their house. Parents came out and tried to de-escalate
the situation, and ∆ cop ordered mom to stand against the garage. Apparently slammed her into the door causing her to fall
and be bruised. Π stood up and said get your fucking hands off my mom and ∆ shot him 3 times. Sued under 1983, DC
granted SJ to ∆ because use of force was not unreasonable and therefore did not violate 14A. 5 th Circuit affirmed on
different ground: that even if ∆’s conduct did violate 14A, ∆ was entitled to qualified immunity because he did not violate a
clearly established right. SCOTUS vacates and remands
a) 5th circuit failed to view the evidence at SJ in the light most favorable to the non-moving party, and instead
improperly weighed the evidence
(1) Front porch dimly lit; mom refused order to remain quiet and calm; Tolan’s words were a verbal threat;
Tolan was moving to intervene
b) Court did not credit evidence that directly contradicted ∆’s testimony
(1) By weighing the evidence and reaching factual inferences contrary to π’s competent evidence, court
neglected to adhere to the fundamental principle that at SJ state, reasonable inferences should be
drawn in favor of the non-moving party
B. Notes
1. Present accepted view of SJ is that in evaluating the response to a summary judgment motion, the question is whether
there are “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party”
2. Court must disregard all evidence favorable to the moving party that the jury is not required to believe
C. Scott v. Harris
1. Π police officer rammed a fleeing vehicle, causing it to run down an embankment, overturn, and crash, leaving ∆ a
quadriplegic. Filed suit, and π moved for SJ on qualified immunity grounds. DC denied motion, saying that there were
material issues of fact on which the issue of qualified immunity turns. 11th circuit affirmed, saying that π’s actions could

18
 constitute deadly force and that use of such force would violate ∆’s right to be free from excessive force during a seizure.
SCOTUS reverses
a) Initial inquiry in qualified immunity cases is whether, taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated a constitutional right?
(1) if, and only if, the court finds a violation, the next step is to ask whether the right was clearly
established in light of the specific context of the case
b) Wrinkle in this case is the existence of a videotape capturing the events in question
c) At SJ stage, facts must be viewed in the light most favorable to the non-moving party only if there is a genuine
dispute as to those facts
(1) Where the records taken as a whole could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial
(2) When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes
of ruling on MSJ
(3) The mere existence of some alleged factual dispute is insufficient
d) The car chase that ∆ initiated in this case posed a substantial and immediate risk of serious physical injury to
others. No reasonable jury could conclude otherwise
2. Dissent: court usurps role of jury here. They chastise the COA for failing to view the facts in the light depicted by the
videotape, and imply that no reasonable person could view the videotape and conclude that deadly force was unjustified.
But the 3 judge COA panel apparently viewed the videotapes and described a very different version of events.
a) If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances
surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this court’s
characterization of events
XII. Class Actions
A. Intro
1. Class action is a kind of “representative action” in which one or more “named parties” litigate on behalf of a group of
similarly situated people who typically do not participate in the prosecution of the lawsuit
2. The named parties are parties to the suit in their personal capacities, but they also sue in a representative capacity (i.e. as
persons acting on behalf of the other absent members of the class
3. In appropriate circumstances, the named parties are permitted to proceed on behalf of the class members and obtain a
judgment binding on all class members.
4. A class represented by individual named plaintiffs is called a “plaintiff class”
5. Class actions are governed by Rule 23
6. Crucial defining characteristic of class action is that a determination made at the request of a representative of a group can
be binding on members of the group who are absent and unnamed, and sometimes unnotified
7. Benefits to litigants and judicial system
a) Allows a large number of related claims to be aggregated together and resolved in a single case
(1) relieves burden of litigating individually (for πs) and benefits ∆ who may prefer to resolve their liability
on a large number of related claims in a single proceeding (or settlement) binding against all class
members
b) also makes possible the aggregation of many small-dollar claims against ∆ into a single large care – thought to be
necessary to enforce the laws prohibiting a ∆’s wrongful behavior because, without aggregation, the claims are too
monetarily insignificant to warrant individual suits
8. Drawbacks of class action
a) Risk that class representative(s) will not share the interests of absent class members or will not competently or
loyally represent those interests
(1) May bring a suit or seek a remedy that is ultimately harmful to the class, or may strike a lucrative
settlement deal that benefits him but sacrifices the interests of the absentees
(a) Law treats class actions as justified only in limited circumstances, where the advantages of
proceeding on a collective basis are substantial and sufficient steps have been taken to ensure
adequacy of representation (i.e. to reduce or eliminate the risk of incompetence or disloyalty
on the part of the class representative or her lawyer)
B. Rule 23
1. Revised in 1966 to resolve confusion, and had 3 goals
a) To define in a practical way the kinds of cases where the prospective benefits of class suit outweighed its
disadvantages
b) To specify clearly that all class suits would be binding and delineate the scope of their preclusive effect, and
c) To ensure that class actions were conducted to maximize their advantages and ensure fair representation of
absent class members
2. Rule 23(a) prescribes the four basic elements: numerosity, commonality, typicality, and adequacy of representation
3. Rule 23(b) defines three categories of cases in which on certain specified additional conditions, actions having all four of the
basic elements may be permitted to proceed on a class basis (i.e. a putative class must fulfill all four requirements of (a) and
the requirements of one of the 23(b) categories in order to be maintained
4. 23(c)-(h) describe measures to be taken to determine the scope of the judgment rendered in the case and to ensure that the
action is fairly conducted
a) class certification: procedure in which court required to determine whether the requirements for class action
treatment have been satisfied and to appoint class counsel
b) also includes a requirement for formal judicial review of any settlement or compromise of the class action in order
to determine whether it is fair, reasonable, and adequate
C. Rule 23(a)
1. First two focus on the character of the class, second two focus on the nature of the party or parties seeking to represent the
class
2. Numerosity

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 a) 23(a)(1) requires that the class be so numerous that joinder of all members as individual named parties be
“impracticable.” If the class is not sufficiently numerous, then there is no need to take the risks attendant to the
class action
(1) no precise number below which class action treatment is unavailable
3. Commonality
a) 23(a)(2) requires that there be questions of law or fact common to the class
b) commonality requires the plaintiff to demonstrate that the class members have suffered the same injury
c) Common question requires:
(1) Class members suffered the same injury
(2) Π’s cliam depends on a common contention, which is
(3) Capable of class-wide resolution that resolves an issue central to each claim
4. Typicality
a) 23(a)(3) requires that the claims or defenses of the named “representative” party or parties be typical of those of
the class as a whole
b) basic idea is that the named party should have claims sufficiently similar to those of the class as a whole such
that in representing their own interests they also represent the interests of the class members
(1) need not be identical to satisfy typicality
(2) may be divided into sub-classes with different named parties representing each sub-class
5. Fair and Adequate Protection of the Interests of the Class
a) 23(a)(4) requires that the named party or parties provide fair and adequate protection of the interests of the class
as a whole
(1) Hansberry: a judgment in a representative suit cannot be binding against a party that was not
adequately represented (per due process clause)
D. Rule 23(b)
1. 23(b)(1) Mandatory – part of class, bound (rare)
a) 23(b)(1)(A) class is appropriate when practical necessity forces the opposing party to act in the same manner
toward the individual class members and thereby makes inconsistent adjudications in separate actions
unworkable or intolerable
(1) Individual suit would result in inconsistent standards of conduct for non-class party (prisoner suits,
helpful for D). Not suitable for seeking compensatory damages – only declaratory or
injunctive relief
b) 23(b)(1)(B): individual suits would be dispositive of the interests of class or would impede the ability to protect
interests (e.g. limited fund suits)
(1) should be available only when (a) the totals of the aggregated liquidated claims and the fund available
for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay
all the claims, (b) the whole of the inadequate fund is to be devoted to the overwhelming claims with no
funds being held back by the defendant, and (c) the claimants identified by a common theory of
recovery were treated equitably among themselves and the class will comprise everyone who might
state a claim on a single or repeated set of facts, invoking a common theory of recovery, to be satisfied
from the limited fund as the source of payment
2. 23(b)(2) Injunction class actions. Mandatory – part of class, bound
a) ∆ has acted or refused to act on grounds that apply generally to the class so that final injunctive relief or
corresponding declaratory relief” is appropriate respecting class as a whole
b) Cannot pursue damages here typically (Wal-Mart v. Dukes). Claims for monetary relief may not be certified under
23(b)(2) where the monetary relief is individualized or not incidental to the injunctive or declaratory
relief, or where each class member would be entitled to a different injunction or declaratory judgment against ∆.
c) Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to
each member of the class (Wal-Mart)
d) Usually civil rights suits
3. 23(b)(3) – Damages Class actions – Non-mandatory, requires notice, opt-out opportunity, and can sue separately
a) Requires
b) Predominance (23(b)(3)). Common questions of law of fact must predominate over questions affecting only
individual class members:
(1) Plaintiff must show (Comcast v. Behrend)
(a) Individual injury capable of being proved at trial through evidence common to the class
(b) That the damages resulting from the injury were measurable on a class-wide basis through
the use of a common methodology
(2) Federal law more likely to meet predominance requirement than one in which principal claims arise
under state law. State law variations may swamp common issues and defeat predominance, thereby
precluding class actions (Castano v. American Tobacco)
(a) MUST consider how variations in state law affect predominance and superiority
(3) If predominance problem, certify only particular issues or subclasses (liability) and leave damages for
individual adjudication
c) Superiority. Class action superior to other methods of adjudication – best way to adjudicate
(1) Superiority factors (23(b)(3)(A) – (D))
(a) Class members interest in controlling own suits
(b) Extent litigation already underway
(c) Benefit of concentrating litigation in forum where filed
(i) Will parties and wits be seriously inconvenienced? Choice of law problem?
(d) Will there be difficulties with case management? E.g. notice to millions, discovery, trial,
remedy, subclassing?
(2) Are there better alternatives to class action? Or will this prevent duplicative litigation?
(3) Negative value suit? (i.e. P’s don’t have damages worth pursuing individually  class action superior
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 (a) Larger individual claims  may be less likely to certify a class because individual actions
possible  class actions not superior
(4) If individual damages predominate over the common issues in the case and that, given the need to
individually resolve the damages claims, this is not a case where a class action is superior to alternate
options for adjudication
d) Must send out mandatory notice here of class action to potential class members so they can opt out
E. Rule 23(c) – Managing the Class Action
1. 23(c)(1)(A) provides that a court shall determine by order whether to certify a class action “at an early practicable time.”
a) Court does not need to rely only on pleadings; can request evidence bearing on the propriety of class treatment
2. 23(c)(2) expressly permits notice to class members under (b)(1) and (b)(2) and requires it for class members of (b)(3) classes
who can be identified through reasonable effort
3. 23(c)(3) requires that in a class action judgment the court must specify precisely who are members of the class
4. 23(c)(4) allows a court to certify a class as to certain issues only
5. 23(e) provides that class members must receive notice of any settlement and requires that the settlement be approved only
after hearing an upon a finding that the settlement is fair, reasonable, and adequate
6. 23(f) allows an interlocutory appeal of a district judge’s certification decision if the COA decides to permit the appeal
F. Notice in Class Actions
1. 23(c)(2)(A)  Court MAY direct appropriate notice for (b)(1) or (b)(2) classes
2. 23(c)(2)(B)  Required for (b)(3). Must be done to ALL members – opt-out MUST BE PLAIN AND OBVIOUS
a) best notice practicable
b) includes individual notice to all members who can be identified through reasonable effort (Mullane)
c) Notice must clearly, concisely, and understandably state, under 23(c)(2)(B)(i) – (vii):
(1) Nature of action
(2) Definition of class certified
(3) Class claims, issues, defenses
(4) That class member may enter an appearance through an attorney if they desire
(5) The court will exclude from the class any member who requests exclusion (right to opt out)
(6) Time and manner for requesting exclusion
(7) Binding effect of class judgment on members under 23(c)(3)
3. Miscellaneous (Eisen)
a) Publication notice does not satisfy due process if the names and addresses are known
b) Prohibitive high cost does not matter
c) Π bears cost of notice
d) Eisen makes clear that Rule 23(c)(2) requires individual notice to all class members whose names and addresses
can be identified through reasonable effort
e) Notice is NOT required to be provided “to every single class member if the circumstances would make such an
expectation unreasonable and impracticable” (Mullane v. Central Hanover Bank & Trust)
(1) Where certain class members’ names and addresses cannot be determined with reasonable efforts,
notice by publication is generally considered adequate
4. 23(d)(1) allows a district judge to allow notice in some circumstances
5. 23(e) provides that court must direct notice in the event of settlement, voluntary dismissal, or compromise of class action
G. Questions to ask regarding a potential class action
1. Is there an identifiable class?
2. Are the class representatives members of the class?
3. Is the class so large joinder is impracticable?
4. Are there common questions of law or fact?
5. Are the claims of the class representatives typical of the class members?
6. Will the class representatives adequately represent the interests of the class?
H. Wal-Mart Stores, Inc v. Dukes
1. Takeaway At the certification stage what has to be shown? Instead of "common question of law or fact," parties
must precisely show commonality and DESCRIBE HOW A SINGLE DECISION WILL COMPLETELY RESOLVE THE
ISSUE (the only thing that these class members have in common is that they are women who work at Walmart) The
decision made 23(a)(2) look like "predominance" (from 23(b)(3))
2. Common Question under 23(a) Requires: Class members suffered same injury; Plfs claim must depend on a common
contention (Here: assertion of discriminatory bias on the part of the same supervisor)
a) Common contention must be capable of class-wide resolution – determination of truth or falsity of contention
must resolve an issue that is central to the validity of each one of the claims in one stroke. (common answers)
b) Also noted that party seeking class cert must be prepared to prove each pre-requisite in Rule 23(a) (including
commonality), and that the trial judge must conduct a rigorous analysis of the plfs potential proof as to each pre-
req, an analysis that will often overlap with the plfs underlying claim
3. RULE 23(b)(3) TAKEAWAY “individualized monetary claims belong in Rule 23(b)(3);” framed for situations “in which
class-action treatment is not as clearly called for."
a) HOLDING Claims for individualized relief (like backpay) do NOT satisfy Rule 23(b)(2)
4. The key to the Rule 23(b)(2) class “the indivisible nature of the injunctive or declaratory remedy" Rule 23(b)(2) applies
only when a single injunction or declaratory judgment would provide relief to each member of the class.
a) (b)(1) individual adjudications would be impossible or unworkable; or
b) (b)(2) the relief sought must inevitably affect the entire class at once,
5. Other holding: Claims for monetary relief may not be certified under FRCP 23(b)(2) where the monetary relief is not
incidental to the injunctive or declaratory relief.
a) Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of
a class. Key to (b)(2) class is indivisible nature of the injunctive or declaratory remedy warranted – Conduct is
such that it can be enjoined or declared unlawful only as to all the class members as to none of them. Doesn’t
authorize class cert when each individual class member would be entitled to a different injunction or declaratory

21
 judgment against the def. Doesn’t authorize class cert when each class member would be entitled to an
individualized award of monetary damages.
6. PRACTICE POINTER: If you were an attorney for a corporation, what would you tell the client to insulate your client from
class action liability? ANSWER Give your managers a lot of discretion; Have a strong "anti-discrimination" statement;
Have a few examples of how the "anti-discrimination" statement is implemented
7. Facts Plfs women who worked in Wal-Marts, brought class action for employment discrimination on behalf of a class of
1.5 million female e’ees of 3,500 Wal-Mart stores located in all 50 states, employed after a certain date. Suit claimed that
Wal-Mart had given store managers in U.S. wide discretion over pay and promotion practices at manager’s local store, and
that discretion was exercised in a way that had a disparate impact on women. Ps claimed that there was a corporate culture
of discrimination and so discretionary pay and promotion decisions turned every woman into a victim of common
discretionary practice. DC certifies class and common question is defined as “whether systems for promoting employees
were sufficiently similar across regions and states such that the manner in which these systems affect the class raises
issues that are common to all class members” and certifies monetary damage award under (b)(2) because it would not
predominate over the discrimination claim. Can do this by taking a small sample and extrapolating across entire class.
8. Dissent should have been abuse of discretion standard of review here no abuse of discretion by TC.
I. Comcast Corp. v. Behrend
1. Takeaway: if you don't have a coherent damages theory, you CANNOT certify a 23(b)(3) class because it will fail
predominance. This case reemphasizes Walmart's rehashing of the merits to reach certification. Must be able to measure
the damages through a common methodology.
2. Class Certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule
23(a) have been satisfied.” “The first step in a damages study is the translation of the legal theory of the harmful event into
an analysis of the economic impact of that event.” The greater the potential for individual differences in the way that class
members were treated by the D, or in the response of the class members to that treatment, the more difficult the
predominance inquiry becomes. Because the model to determine damages falls short of establishing that damages
are capable of measurement on a classwide basis, predominance cannot be established here. Questions of
individual damages calculations will inevitably overwhelm questions common to the class.
3. Cts may have to probe behind the pleadings before coming to rest on the certification Q. Analysis will frequently overlap
with the merits of plf’s underlying claim b/c a class determination generally involves considerations that are enmeshed in
the factual and legal issues comprising the plf’s cause of action.
4. To prove predominance under 23(b)(3), must show:
a) Individual injury capable of proof at trial through evidence common to the class
b) Damages resulting from injury measurable on a class-wide basis using common methodology
c) Rule 23(b)(3) predominance criterion is even more demanding that Rule 23(a). Rule 23(b)(3) is designed for
situations in which “class action treatment is not as clearly called for.
5. Facts Plfs are subscribers to Comcast, filed a class action anti-trust suit against Comcast, claiming they entered into
unlawful swap agrees in violation of § 1 of the Sherman Act and monopolized or attempted to monopolize services in
clusters in violation of § 2. Plfs argued clustering harmed subscribers in Philadelphia cluster by eliminating competition
and holding prices for cable services above competitive levels. TC certified the class, finding that the damages from
overbuilder deterrence could be calculated on a classwide basis.
6. Dissent case doesn’t really change the law. This ruling good for this day and case only black letter rule under 23(b)(3)
is still that class may obtain cert when liability questions common to the class predominate over damages questions unique
to class members.
J. Castano v. American Tobacco
1. Massive class action seeking certification of class of all nicotine dependent persons, the estates of those smokers, and the
spouses, children, etc of the smokers seeking compensation for the injury of nicotine addiction on the theory that ∆s failed to
inform customers that nicotine is addictive. Sought compensatory and punitive damages. DC certified the class under (b)(2)
and (b)(3). COA reverses, saying predominance requirement is not met, and that class action is not superior
a) DC failed to consider how variations in state law affect predominance and superiority
(1) Court’s only discussion of manageability was a claim that while it may be difficulties, they pale in
comparison to the specter of thousands, if not millions, of similar trials of liability proceeding in
thousands of courtrooms around the nation
b) Predominance inquiry did not consider how the trial would be conducted
c) DC may certainly look past pleadings to determine whether Rule 23 has been satisfied
d) Certification of mass tort litigation classes has been disfavored – concern with rights of defendants (greatly affects
stakes, increases number of unmeritorious cases, aggregation makes it more likely that ∆ will be found liable,
higher damage awards, creates insurmountable pressure to settle)
(1) Class action would not ameliorate the risk of duplicative litigation (no showing that even if we certify
this case, there wouldn’t be a flood of individual cases because they can opt out)
(2) Individual actions are economically feasible
(3) Individual trials would help in determining the common question of liability issues
e) Mass tort cannot be properly certified without a prior track record of trials from which the DC can draw
information necessary to make the predominance and superiority requirements
f) DC’s rationale for certification (save judicial resources) is based on pure speculation, and the court cannot
presume that all or even any plaintiffs will pursue legal remedies
g) The most compelling rationale for finding superiority – the negative value suit – is absent in this case. Here,
individual damage claims are high and punitive are available in most states
2. Single event mass torts are more favored because it’s easier to satisfy the predominance requirement
K. Eisen v. Carlisle & Jacquelin
1. Re The leading case on the notice requirement under Rule 23(c)(2)
2. Facts "small-claims" class action; Class members’ individual claims were small (around $70); there were about 6 million
class members.
3. Issues:
a) must individual notice be mailed to all known class members?

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 b) who must bear the cost?
4. Holding:
a) Individual notice must be sent to all class members whose names and addresses can be ascertained through
reasonable effort;
b) the P must pay the cost of the notice.
5. Eisen makes clear that Rule 23(c)(2) requires individual notice to all class members whose names and addresses can be
identified through reasonable effort.
a) Notice is NOT required to be provided "to every single class member if the circumstances would make such an
expectation unreasonable and impracticable.” (Mullane v. Central Hanover Bank & Trust)
XIII. Settlement of Class Suits
A. Pearson v. NBTY, Inc
1. Takeaway Current Realities of Class Actions/Settlements incentivize Class Counsel and Ds to scheme together to enrich
the CC while screwing the class. Courts should consider the division of an award between the Class Counsel and the Class.
a) Break down the settlement. Who is getting $?
(1) Notice and administration costs = $1.5 million
(2) Attorney costs (how different from fees?) = $179,676
(3) Payments to named representatives = $5,000/each
(4) Payments to class members = $865,284
(5) Cy pres = $1.3 million
(6) Attorneys’ fees = $1.93 million
b) In this case, it is easy to see the different categories of money that traditionally go into class action settlements.
c) Judges can have a hand in class-action settlement awards this is a special power that judges have!
d) Costs (including notice) canNOT be taken from the class benefit ($)!
2. The presumption should be that attorneys’ fees awarded to class counsel should not exceed 1/3 or at most a half of the total
amount of money going to class members and their counsel
B. Rule 23(e) - Settlement
1. Requirements
a) Court approval under 23(e) [lots of discretion here, tend to approve]
b) Notice of settlement to all class members who would be bound by the proposal under 23(e)(1).
(1) Any class member can object to a settlement proposal 23(e)(5)
(2) Not the same as notice of the class! includes requirement of notice to class members who can’t opt out
under 23(b)(1) and (b)(2).
(3) Court may refuse to approve settlement unless it gives individual class members in a (b)(3) action
another chance to opt out. 23(e)(4).
2. Fairness Hearing. Settlement must be fair, reasonable and adequate. 23(e)(2).
a) Fairness Factors Settlement (In re Prudential Insurance Co America)
b) Complexity, expense and length of litigation
c) Class reaction to proposed settlement
d) Stage of case and discovery completed
e) Likelihood of establishing liability
f) Likelihood of establishing damages
g) Risk of maintaining class throughout case
h) Ability to satisfy larger judgment
i) Reasonableness v. best possible recovery
j) Reasonableness v. litigation risks
k) Add’l Factors from In Re Bluetooth
(1) Strength of case
(2) Risk of litigation
(3) Amount offered in settlement
(4) Experience and views of counsel
(5) Presence of gov’t participant
3. Risk of conflicts between:
a) Class reps and absentees
b) Groups of class members
c) Class members and class counsel
4. Settlement Only-Class: Settlement is relevant to class cert.
a) Still must meet 23(a) and 23(b) requirements, above. Amchem.
b) Don't need to consider if management problems b/c proposing there be no trial. Amchem.
c) Heightened attention to:
(1) 23(e) requirements of court approval of settlement and notice. Amchem.
(2) Adequacy requirement. Amchem.
(a) If multiple subclasses, some with future injuries rather than present, need to determine
whether both interests adequately represented. Cannot approve settlement that disposes of
absent class members claims. Could deal with this by having different attys for each subclass.
(i) Ortiz v. Fibreboard Corp: It is obvious after Amchem that a class divided between
holders of present and future claims requires division into homogenous subclasses
under Rule 23(c)(4)(B) with separate representation to eliminate conflicting
interests of counsel.
(3) Predominance requirement. Amchem.
(4) Prudential and Churchill fairness factors. In Re Bluetooth.
(5) Settlement must also withstand a higher level of scrutiny for evidence of collusion or other conflicts of
interest than is ordinarily req’d under 23(e). In Re Bluetooth. Must show that settlement not the
product of collusion amongst the parties.
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 (a) Signs of Collusion:
(i) Counsel receive a disproportionate distribution of settlement, or
(ii) Class receives no money from settlement, but counsel “amply rewarded”
(iii)When parties negotiate “clear sailing” arrangement providing for payment of attys
fees separate from class funds (could allow payment of class counsel excessive fees
and costs in exchange for counsel accepting unfair settlement)
(iv) When parties arrange for fees not awarded to revert to Ds rather than to be added
to class funds
C. In re Bluetooth Headset Products Liability Litigation
1. RE Methods of calculating Atty’s fees in a class action/heightened scrutiny for settlement prior to class cert.
2. Takeaway Two methods of calculating reasonable atty’s fees in a class action: Percentage of Recovery and Lodestar
method
a) Gotta give a good reason why you came to the number you did DEVELOP THE RECORD
b) If you would get a different $ by using a different method, then that is a red flag.
3. Settlement agreement prior to class cert requires more scrutiny
4. Kickers (unclaimed $ goes back to the D) and Sailing Fees (D agrees not to challenge the attorney’s fees) are totes sketch
5. CASE TAKEAWAY illustrates how courts calculate attorney's fees.
a) The lack of fee analysis was a big problem; the COA couldn't determine if the calculation was "reasonable"
because there were no facts in the record revealing what went into the Dist. Ct.'s calculation.
b) RED FLAG: when the class doesn't get much $ but the attorney fee award is high.
6. STANDARD OF REVIEW (for award of attorney's fees) = abuse of discretion. Factual findings are reviewed for clear error.
a) SoR TAKEAWAY the district court must have gone through the process of analyzing the calculation for
attorney's fees.
(1) This requirement is analogous to Jones where the COA required the District Court to thoroughly
analyze the §1367 fees.
7. Settlement terms
a) Post safety info on website and manuals
b) Pay 100k to non-profits
c) $0 for economic injury
d) Notice costs up to $1.2M
e) Costs up to $38k
f) Attorney fees not to exceed $800k
g) Incentive award to 9 class reps of $12k
8. Bluetooth Factors in 23(e) analysis:
a) the strength of the plaintiff's case;
b) the risk, expense, complexity, and likely duration of further litigation;
c) the risk of not maintaining class action status throughout the trial;
d) the amount offered in settlement;
e) the extent of discovery completed and the stage of the proceedings;
f) the experience and views of counsel;
g) the presence of a governmental participant; and
h) the reaction of the class members of the proposed settlement.
9. Also look to 12 Kerr factors, fn. 7.
a) Time and labor required
b) Novelty and difficulty of the questions involved
c) Skill requisite to perform the legal service properly
d) The preclusion of other employment by the attorney due to acceptance of the case
e) The customary fee
f) Whether the fee is fixed or contingent
g) Time limitations imposed by the client or the circumstances
h) The amount involved and the results obtained
i) The experience, reputation, and the ability of the attorneys
j) The “undesirability” of the cas
k) The nature and length of the professional relationship with the client
l) Awards in similar cases
D. Amchem Products, Inc. v. Windsor
1. Suit re: asbestos exposure. DC certified the class for settlement only, finding the settlement fair and that representation
and notice were adequate. COA vacated, saying class certification failed to satisfy Rule 23 requirements. SCOTUS affirms
a) Confronted with a request for settlement-only class certification, a DC need not inquire whether the case, if tried,
would present intractable management problems under 23(b)(3)(D), but the other specifications of the rule
demand undiluted, even heightened, attention in the settlement context
b) It is not the mission of rule 23(e) to assure the class cohesion that legitimizes representative action in the first
place. If a common interest in a fair compromise could satisfy the predominance requirement of 23(b)(3), that vital
prescription would be stripped of any meaning in the settlement context
c) Basically, need to meet the requirements of 23(a) and 23(b)(3) BEFORE getting to the settlement question
2. Class Notes
a) Settlement terms:
(1) Caps on damages and claims
(2) No compensation for:
(a) Loss of consortium
(b) Exposure only – not for fear of illness
(c) Medical monitoring
(d) Pleural claims
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 (3) No punitive damages
(4) Plaintiffs bound in perpetuity
(5) Defendants can withdraw after 10 years
b) The plaintiffs here had nothing in common except for their exposure (different employers, different jobs, different
locations, etc)
(1) Problem with predominance and superiority, as in Castano
(2) Settlement agreement aimed at coming up with a solution to this: see if we can put something together
that avoids having to deal with the issue that will come up if we file and try to certify the class
normally
c) Trial court review of proposed settlement
(1) Terms of settlement: fair
(2) Notice: adequate
(3) Representation: adequate
(4) Numerosity: yes
(5) Commonality: yes
(6) Typicality: yes
(7) Predominance: yes
(8) Superiority: yes
d) Three reasons why this did not pass muster:
(1) Common questions do not predominate
(a) Exposed to different amounts, in different ways, made by different manufacturers, sick in
different ways, etc
(2) Inadequacy of representation
(a) Interests of sub-classes not aligned
(i) Currently injured people want generous immediate payments
(ii) Exposure-only want ample fund for the future
(3) Inadequacy of notice
(a) Really hard to send a postcard to someone whose name and address you don’t know
(b) No way to notify people that you don’t know exist
e) Breyer dissent:
(1) The need for settlement in this case is huge because there are between 13 and 21 million people
exposed
(2) What’s really driving this is that he knew this was a colossal problem that Congress wasn’t going to
deal with
XIV. Claim and Issue Preclusion
A. Res Judicata (claim preclusion)
1. Res judicata (claim preclusion) refers to the finality attached to a final judgment granting or denying plaintiff’s claim or
claims.
a) If plaintiff wins, that claim and related claims are merged in the judgment, and plaintiff may not bring those
claims in future litigation against the same defendant
b) If plaintiff loses her claim against defendant, that claim and related claims are barred in future litigation brought
by plaintiff against the same defendant
c) “claim” includes all causes of action that are transactionally related:
(1) when a valid and final judgment rendered in an action extinguishes the plaintiff’s claim pursuant to
the rules of merger or bar, the claim extinguished includes all rights of the plaintiff to remedies against
the defendant with respect to all or any part of the transaction, or series of connected transactions, out of
which the actions arose
d) Res judicata applies not only to all causes of action that were brought in the first suit, but also as to all causes of
action that could have been brought in that suit, so long as the later causes of action were part of the same “claim”
as in the first suit
(1) i.e. once plaintiff brings suit, he must assert all causes of action arising out of the same “claim”
e) ELEMENTS:
(1) Final judgment
(2) On the merits
(3) Same claim in first and second suit
(4) Same parties
B. Federated Department Stores, Inc. v. Moitie
1. Gov’t brought antitrust action against pets, alleging violation of the Sherman Act due to price fixing. Private plfs also filed
suit. Actions dismissed, 5 plfs appeal, but Moitie didn't and re-files in state court, making similar allegations in 2nd suit as
1st. 2nd suit removed, moved to dismiss. DC granted on basis of RJ. Moitie appeals dismissal; Pending appeal, Supreme Ct
decides Reiter; 9th Cir: Reverses dismissal in 5 cases, and in Moitie’s case. 9th Cir reasons that non-appealing parties may
benefit from a reversal when their position is closely interwoven with that of appealing parties.
2. 9th Cir did not create a valid exception to RJ here. Brown I is RJ as to respondent’s federal law claims. RJ consequences
of a final, unappealed judgment on the merits are not altered by the fact that a judgment may have been
wrong or rested on a legal principle subsequently overruled.
3. Blackmun, concurring
a) Agree, but there are instances where there should be exceptions to the res judicata doctrine – wants a more
flexible rule
C. Davis v. Dallas Area Rapid Transit
1. Somewhat different conduct at issue behind claims, time periods different for claims. But claims same T/O b/c both involved
conduct motivated by discrimination and retaliation. Davis I: Davis and Johnson sued their employer, DART and DART
chief of police Juan Rodriguez, alleging race discrim and retaliation under Title 7 and violations of 1 st and 14th A. Based on
conduct by defs during Appellants employment at DART as police officers. DC dismissed claims with prejudice. Davis II:
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 Appellants filed current lawsuit against DART alleging race discrimination, retaliation, hostile work environment. Based
on conduct occurring after conduct at issue in last suit.
2. Barred claims arose from the same nucleus of operative facts as the claim in Davis I, and they predate that
action, so they are part of the same cause of action as the claims in Davis I and could have advanced those
claims in Davis I. Claims barred by RJ.
3. Transactional test: a prior judgment’s preclusive effect extends to all rights of the plf with respect to all or any part of the
transaction, or series of connected transactions, out of which the original action arose, which arise from the same nucleus of
operative facts.
a) Consider: facts related in time, space, origin, motivation, form convenient trial unit? Treatment as unit conforms
to parties expectations or biz understanding or usage?
(1) Critical issue under the transactional test is whether the two actions are based on the “same nucleus of
operative facts”
b) Here, all claims originate from the same continuing course of discriminatory conduct – so connected in time and
space that they could and should have been brought in single trial. Could have amended complaint, sought a stay.
4. Subsequent wrongs: constitute a new cause of action
a) But “subsequent” means it occurred either after πs had filed their prior lawsuit or after court had entered
judgment in the prior lawsuit. Here, the conduct alleged in Davis II occurred before Davis I was file
5. Four elements must be met for a claim to be barred by res judicata
a) The parties in both the prior suit and the current suit must be identical
b) A court of competent jurisdiction must have rendered the prior judgment
c) The prior judgment must have been final and on the merits, and
d) The plaintiff must raise the same cause of action in both suits
D. Staats v. County of Sawyer
1. Bipolar, sought tx, attempted to RTW, told he could continue to work but job would be eliminated at end of calendar year. 1)
Pursued state admin remedies, which lead to ultimate rejection of claims. 2) Meanwhile, filed charges with federal EEOC
which issued a right to sue letter. This case followed, alleging County had discriminated against him because of his
disability (bi-polar disorder) by failing to provide reasonable accommodations for him and eliminating his position in
violation of the ADA and Rehab Act. Def filed a MSJ on basis that the state court decision affirming decision of LIRC barred
federal court action under claim preclusion doctrine.
2. Claim splitting is permitted where certain claims must be litigated in a forum of limited jurisdiction where
party’s other claims cannot also be brought in the same forum. When can’t consolidate claims into a single
forum, can split claims and they will not be precluded. (i.e. you have to litigate in two separate forums – no
option) If court in first action would clearly not have had jdx to entertain the omitted theory or ground (or would have
clearly declined to exercise jdx as a matter of discretion) then a second action in a competent court presenting the omitted
theory should not be held precluded).
a) If there is a forum: Where all claims could have been brought and plf chooses forum of limited jurisdiction, other
claims are barred by claim preclusion. Choose limited jdx at your peril.
b) If there’s no such forum: And plaintiff has to split claims, suit in one forum doesn’t preclude the other.
c) Three points here:
(1) Everything that’s part of the same claim should be brought in a single proceeding if possible.
(2) There is an exception in situations where not possible to bring all claims in a single forum. EXCEPT if
there are multiple forums and plf chooses forum that has limited jdx then, made strategic choices
bound by choice and system not forgiving, claims precluded.
(3) Second forum will apply the preclusion rules of the first forum.
E. Semtek v. Lockheed Martin
1. Issue: whether claim-reclusive effect of federal court judgment dismissing diversity case on SOL grounds is determined by
the law of the state in which the federal court sits.
2. State-State: full faith and credit clause
3. State-Federal: full faith and credit statute (should a federal court follow preclusive rules of state)
4. Federal-State (should state court follow federal preclusion): Semtek
5. Semtek sues Lockheed in CA state court, Lockheed removes to federal court on diversity. Case dismissed with prejudice
based on CA SOL of 2 years. Semtek appeals to 9th circuit, which affirms the dismissal (and Semtek did not contest the
“with prejudice” part). Semtek brings suit in MD state court. Lockheed removes to federal court based on federal question.
Remanded because federal question only raised in defense. State court dismisses per res judicata. Issue on appeal: what is
the effect on a Maryland state court of the dismissal of a case with prejudice by a California federal court
a) Semtek argues that the CA federal court decision should not be given preclusive effect and they should be allowed
to proceed on the state court action
b) Lockheed argued that the judgment should have preclusive effect because it was on the merits (based on Rule
41(b))
(1) Court rejects this argument because if we read 41(b) to command a preclusive effect, rule 41 might be
the first rule ever to be found to have violated the Rules Enabling Act (because it would modify
substantive rights)
c) Court concludes that federal common law applies and there is no applicable rule that compels the answer
d) Not only is there no federal rule, we don’t even see the need for a uniform federal rule
(1) Uniformity best served by having same claim preclusion rule apply, whether dismissal by state or
federal court
e) Claim preclusive effect of CA dismissal is whatever CA state law says it would be (look to state law of the state in
which the federal court sits to see if the claim is given preclusive effect)
6. RULE: in diversity case, federal law defers to state law to determine claim-preclusive effect of a dismissal
F. Collateral estoppel (issue preclusion) refers to the finality attached to a final decision on a particular issue of fact or law
1. if two adverse parties actually litigate an issue of fact or law, if there was a fair opportunity to litigate that issue, if the
issue was actually decided by a court, and if the issue was necessary to the court’s judgment, the party who lost on that
issue may not re-litigate it in subsequent litigation against the same party

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 2. Rest. (2) of Judgments § 27: When an issue of fact or law is actually litigated and determined by a valid final judgment
and is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether it is
the same or a different claim.
a) Elements:
(1) Identical issue of fact or law
(2) Actually litigated and decided
(a) Parties genuinely adverse, evidence presented to the court, if concede on an issue or stipulate
to resolution issue not actually litigated, compromise = CE N/A
(b) Default judgment, with def not doing anything = likely not actually litigated on the merits
(3) With full and fair opportunity to litigate the prior proceeding
(a) Admin proceedings typically OK, if can’t appeal, may be a problem.
(4) Determined by valid final judgment on the merits
(a) On the merits: when case dismissed on procedural grounds, merits not litigated. Plf can sue
again in a court that properly can reach the merits.
(5) Issue essential or necessary to judgment on the merits
3. Policies furthered by CE: protects litigants from burden of re-litigation, promotes judicial economy/efficiency, consistency.
4. Doesn't matter if invoke CE on issue that has nothing to do with the merits. So long as the issue whether procedural or
substantive was litigated, decided and necessary to the judgment, issue preclusion will bar re-litigation of the issue.
5. Conclusive in subsequent action: between same parties, whether same or different claim
G. B & B Hardware, Inc. v. Hargis Industries, Inc (Identical Issue)
1. Π has a TM for sealtight covering aerospace fasteners. ∆ sought to register TM for sealtite used in building/construction. Π
objected to ∆’s registration and proceedings before the TTAB occurred. Also filed a suit for infringement in fed DC. Π wins
before TTAB, which found that the two were confusingly similar. ∆ did not appeal that. π then argues in DC that the
decision in TTAB has preclusive effect, so that ∆ cannot contest likelihood of confusion. DC rejected this, saying TTAB is not
an A3 court and thus no preclusive effect, jury verdict for ∆. 8th circuit affirmed, saying TTAB uses different factors, TTAB
placed too much emphasis on appearance and sound of marks, and because ∆ bore burden of persuasion before TTAB but π
did at trial. SCOTUS reverses
a) First Q is whether an agency decision can ever ground issue preclusion
(1) Preclusion is not limited to those situations in which the same issue is before two courts. Rather, where
a single issue is before a court and an administrative agency, preclusion also often applies
(2) When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to litigate, the courts have not
hesitated to apply res judicata to enforce repose
(3) Absent a contrary indication, Congress presumptively intends that an agency’s determination has
preclusive effect
b) Nothing in the Lanham Act bars the application of issue preclusion in such cases
c) Real issue is whether likelihood of confusion for purposes of registration is the same standard as likelihood of
confusion for purposes of infringement. They are for eat least three reasons:
(1) Operative language is essentially the same
(2) Likelihood of confusion language that Congress used in the Lanham Act provisions has been central to
TM registration since at least 1881
(3) DCs can cancel registrations during infringement litigation, just as they can adjudicate infringement in
suits seeking judicial review of registration decisions
d) Procedural differences, by themselves, do not defeat issue preclusion
(1) Rather than focusing on whether procedural differences exist, the correct inquiry is whether the
procedures used in the first proceeding were fundamentally poor, cursory, or unfair
e) Because can seek de novo review of TTAB decisions, unchallenged decisions are given preclusive effect
H. Jacobs v. CBS Broadcasting (Full & Fair Opportunity, Necessary to Judgment)
1. Givens wrote a script (Final Edition) that was sold to CBS – CBS bought all the rights from Givens and Westwind (who had
optioned the script for purpose of getting a TV broadcast commitment from a network). CBS produced a series called Early
Edition, which was similar to Final Edition. When notice of tentative writing credits for Early Edition issued, Givens not
listed as a participating writer who was entitled to receive credit. Givens complained to Writers Guild, WGA investigated
and concluded Givens not a participating writer of Early Edition. Givens appealed this multiple times, each time WGA
affirmed its decision. While Givens appealing WGA decision, Givens and others filed suit against CBS arguing that CBS
had breached its K by not providing plfs with writing and production credit for Early Edition [argued it was based upon
literary property of Final Edition]. Removed to federal court, Givens entered into separate arb with CBS which he lost, and
then dropped out of federal suit. CBS then MSJ against plfs who sought production credit regardless of who wrote Early
Edition scripts. DC granted SJ to CBS on the ground that the WGA participating-writer determination involving Givens
had a nonmutual collateral estoppel effect on plf’s actions.
a) Elements: identical issue, actually litigated, necessarily decided, final judgment on the merits, πs were party or in
privity (this last one was added by 9th circuit because it’s part of CA law on issue preclusion)
b) CA state law requires that proceedings have “elements of adjudicatory procedure.” Requires: Witnesses testify
under oath; application of rules to single set of facts; impartial hearing officer; right to subpoena wits and present
evidence; verbatim record of proceedings
c) Full and fair opportunity to litigate, necessary to the judgment. Nonjudicial proceedings must be sufficiently
formal and must offer sufficient procedural safeguards so that the proceeding approximates a judicial proceeding.
WGA proceeding was not sufficiently formal and provided too few procedural safeguards to constitute an
adjudicatory proceeding. Determination made after informal “investigation,” no formal testimony taken  just
discussions with Givens, his agent, CBS, and Columbia Tristar. No opportunity to cross-ex wits, no right to
examine evidence presented by CBS and others. Just provided info and WGA came to conclusion, which was
subject only to limited judicial review.
I. Difference between Claim & Issue Preclusion
1. Claim Preclusion

27
 a) “same claim” broadly defined – encompasses all transactionally related claims
b) Includes those that could have been asserted as well as those actually asserted
2. Issue Preclusion
a) Issue must be identical
b) Not just transactionally related
c) Must have been actually litigated
J. Taylor v. Sturgell
1. Suit 1: Lawsuit due to FOIA request denial by Greg Herrick [wanted technical docs about airplane]. Plf lost. Suit 2: Friend
of plf brought similar suit. Judgment against Herrick does not bar Taylor from maintaining this suit. Remanded to
determine whether fell into exception 5
2. Identity of parties. Typically, judgment does not preclude nonparties from litigating identical claims. Need to
have their day in court. Rejects theory of “virtual representation” (in federal courts), where a nonparty may be found bound
to the result obtained in a litigation in which her interest was represented by someone else.
a) 6 exceptions to rule against nonparty issue preclusion:
(1) Persons bound by agreement/consent (express or implied)
(2) Pre-existing legal relationship (e.g. bailee/bailor, assignee/assignor, beneficiary of estate, someone for
whom an executor, administrator or guardian has been appointed will be bound by the result of that
litigation)
(3) Adequate representation of nonparty by someone with the same interests who was a party to the suit
(e.g. class actions, suits brought by trustees, guardians, fiduciaries)
(4) Assumption of control of litigation
(5) Litigation through a proxy - When a person who did not participate in a litigation later brings suit as
the designated representative or agent of a person who was a party to the prior adjudication.
(a) Ct says should be cautious about finding preclusion here appropriate only if the putative
agent’s conduct of the suit is subject to the control of the party who is bound by the prior
adjudication.
(6) Statute forecloses litigation by nonparties, if the scheme is otherwise consistent with DP (e.g.
bankruptcy, probate, other suits that may only be brought on behalf of the public at large).
K. Different Parties / Non-Mutual Issue Preclusion
1. Doesn’t involve the same parties in both suits – ordinarily there is a rule against non-party issue preclusion (entitlement to
day in court)
2. Mutuality not an element for issue preclusion  same issues is what is important. But need 1 side to be the same party
3. Bernhard critical questions:
a) was the issue identical?
b) Was the final judgment on the merits?
c) Was the party against whom judgment asserted a party or in Privity?
L. Defensive Non-Mutual Issue Preclusion
1. Plf is precluded from asserting a claim that the plf previously litigated and lost. Acts as a shield to prevent the prior party
from establishing its claim. Typically asserted by a def against plf as a defense against previously losing plf.
a) P sues D-1 [plf loses on issue]
b) P sues D-2 [new def pleads collateral estoppel to bar plf from re-litigating issue]
c) Blonder Tongue: As long as plf had full incentive to litigate the issue in lawsuit #1, it had its chance to prove its
claims in court, why should it be able to relitigate the same issue as long as the “supply of unrelated defs holds
out”? Had its bite at the apple, fair to deny them opportunity to re-litigate.
d) If plf won in suit 1: cannot assert issue preclusion in suit 2. New D deserves a chance to defend itself. Maybe
D 1 had less at stake, weaker representation.
e) Incentivizes joining all potential defs in first action if possible. Reinforces judicial economy, promotes plf joining
parties in a suit.
M. Offensive Non-Mutual Issue Preclusion
1. New plf seeks to preclude the same def from re-litigating issues that the def previously litigated and lost. Plf able to rely on
previous judgment against a def but not bound if def wins
a) P-1 sues D [plf wins on issue]
b) P-2 sues D [new plf pleads collateral estoppel to bar same def from re-litigating issue P1 won on]
c) If def won in suit 1: P-2 NOT precluded: cannot be precluded from litigating an issue just because someone else
litigated it and lost. Each litigant gets one bite at the apple – one opportunity to prove her case. No party can be
precluded by issue preclusion because someone else litigated an issue, except in very limited situations.
d) *Discretionary
e) Concerns: could increase rather than decrease total litigation. Plfs have everything to gain and nothing to lose by
not intervening in the first action. Incentivized to wait and see. Similarities here w/ defensive non-mutual issue
preclusion: both involve efforts to preclude a previously litigating party who lost.
N. Parklane Hosiery v. Shore
1. Case 1: Resp/plfs brought stockholders class action against pet’s in FDC for a materially false and misleading proxy
statement in connection with a merger. Case 2: SEC sued same defs in FDC on same grounds, requesting injunction. DC
found proxy statement materially false and misleading. Resp/plfs in case 1 then moved for partial SJ against pets, asserting
petitioners collaterally estopped from relitigating the issues that had been resolved in the SEC action. DC denied the
motion on basis of 7th A deny right to jury trial. Offensive non-mutual issue preclusion is appropriate in some
circumstances, federal TC judges may exercise broad discretion in deciding when to apply offensive non-
mutual issue preclusion. Concludes that petitioners are collaterally estopped from relitigating the question of whether
the proxy statements were materially false and misleading. No violation of 7th A here. USED OFFENSIVELY
a) Circumstances that might justify reluctance to allow offensive use of CE:
(1) Plf could have joined in prior action
(2) Application of offensive estoppel would be unfair to a def
(3) Def didn't have every incentive to litigate previous lawsuit fully and vigorously/unfairness

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 (4) Judgment inconsistent with previous decision
(5) Procedural opportunities available to def that were unavailable in first action that could lead to a
different result
b) Policies furthered by collateral estoppel
(1) Protects litigants from the burden of re-litigation
(2) Promotes judicial economy
O. Smith v. Bayer Corp
1. FDC stopped a state court from considering a plf’s request to approve a class action, because it had earlier denied a motion
to certify a class in a related case, brought by a different plf against the same def alleging similar claims. FCt thought
injunction appropriate to prevent relitigation of the issue it had decided. Suit 1: McCollins sued respondent alleging various
state law claims arising from Bayer’s sale of hazardous Rx drug. Asked state court to certify a class. Bayer removed
McCollins case on diversity, transferred. Federal Court declined to certify class b/c necessary showing of harm would vary
from plf to plf so “individual issues of fact predominated over issues common to all members of the proposed class” & b/c
couldn't show physical injury. Bayer then asked Fed Ct to enjoin W VA state court from hearing Smith’s motion to certify a
class in suit 2. DC granted injunction to protect DC’s judgment in McCollins’ suit denying class cert. Suit 2: Smith filed
state-law claims against Bayer similar to those in McCollins suit in Circuit Ct of Brooke Cy, W VA. Smith asked ct to
certify class under W VA’s Rule 23. Couldn't remove this case b/c lacked complete diversity
2. Here, issue federal court decided not identical to the state court: different legal standards for class cert. Federal and state
rule all but the same, but state courts had interpreted the predominance requirement differently. Smith not a party to
federal suit and not covered by any exception to the rule against nonparty preclusion. A non-named class member can’t be a
party to the class action litigation before a class is certified or once cert is denied
3. In enjoining the state court from considering Smith’s class certification request, the federal court exceeded
it’s authority under the “relitigation exception” to the Anti-Injunction Act. Issues in federal and state lawsuits
differed b/c relevant legal standards differed, and the mere proposals of a class in the federal action could not bind persons
who were not parties there.
a) Anti-Injunction Act: Federal court may not grant an injunction to stay proceedings in a State court except as
authorized by Congress or when necessary to protect of effectuate the federal court’s judgments.
(1) Relitigation exception: authorizes an injunction to prevent state litigation of a claim or issue that
previously was presented to and decided by the federal court. Designed to implement claim and issue
preclusion.
(a) B/c cts don't typically get to dictate the consequences of their own judgment, issuing
injunction here is “heavy artillery” and every benefit of the doubt goes toward the state court
& allowing the state courts to proceed. Injunction must be clear beyond peradventure. Close
case = federal court doesn't issue an injunction and state court decides the preclusion Q.
(b) Two conditions for preclusive effect of federal court ruling on class cert:
(i) Must be the same issue
(ii) Plaintiff in state suit must have been a party to the federal suit. [Judgment cannot
bind non-parties]
XV. Recognition of Judgments
A. Interstate recognition of judgments
1. Full Faith and Credit Clause: Full faith and credit shall be given in each state to the public acts, records, and judicial
proceedings of every other state.
a) “Thou shalt enforce whether thou like it or not.”
b) Requires judgment of one state to be recognized by other states. States must give at least as much effect to the
judgment of the rendering state as would the rendering state itself. Even if judgment wrong, it must be enforced
in other states.
c) N/A to: non-final decisions, decisions not on the merits, judgments based on faulty jdx, venue, pleading, etc
B. Fauntleroy v. Lum
1. Def declined to pay loss on an illegal under MS law gambling transaction of cotton futures that occurred in MS.
Submitted to arbitration in MS where arb award in favor of plf. Plf goes to court in Missouri and asks court to enter
judgment on arbitration. Missouri enters judgment in plf’s favor based on arb award, then plf goes to MS to have MS court
enforce the judgment. Judgment entered for def on action to enforce Missouri judgment in MS. MS Supreme Ct ruled that
MS cts not required under US Const. Art. IV to give full faith and credit to a judgment plf obtained against def in Missouri
b/c action unenforceable in MS. Plf appeals
2. Effort to enforce judgment rendered in Missouri in state of MS. Action in MS not a new complaint, action simply to enforce
Missouri judgment. As to that action, MS statute irrelevant. Under FF & Cr Clause, MS court must enforce the Missouri
judgment.
3. All judgments get full faith and credit no matter how right or wrong or stupid they are. FF & CC obligated MS
courts to enforce the Missouri judgment even if the Missouri judgment was based on a misapprehension of MS
law where there was no question the Missouri court had jdx when it rendered judgment
C. State-Federal Recognition of Judgments
1. Full Faith and Credit Act § 1738: Judicial proceedings shall have the same full faith and credit in every court within the
U.S. as they have by law or usage in the courts of such State...from which they are taken.
a) Federal court must refer to the preclusion law of the State in which judgment was rendered. Fed Cts cannot
employ their own rules of RJ in determining the effect of state judgments.
b) § 1738 embodies concerns of comity and federalism that allow the States to determine, subject to the
requirements of the statue and the Due Process Clause, the preclusive effect of judgments in their own courts
D. Marrese v. American Academy of Orthopaedic Surgeons
1. Petitioners were denied membership into AAOS. One petitioner filed suit in state court alleging denial of membership in
Academy violated associational rights protected by Illinois common law. Separate petitioner filed similar action in state
court. Both suits eventually dismissed. Then, petitioners filed federal antitrust suit in USDC for N. D. Illinois based on
same events underlying unsuccessful state court actions. Alleged defs possessed monopoly power, plfs/pets denied
membership in order to discourage competition. Resp. filed motion to dismiss arguing claim preclusion barred federal
29
 antitrust claim. DC denied motion – state courts lack jdx over federal antitrust claims, so state ct judgment cant have claim
preclusive effect in later federal antitrust suit. Ct. Apps. held claim preclusion barred federal antitrust suit. DC should
have first looked at Illinois state law to determine what preclusive effect would be of state court judgment.
Under the FF & Cr Statute, state law determines preclusive effect of the state judgment. Migra. If state law said
claim would be barred, then should look and see if exception applies. Remanded to assess impact of Illinois state law on
issue
2. General rule: preclusive effect of a state court judgment in a subsequent federal suit is generally determined by the full
faith and credit statute, which provides that the state judicial proceedings shall have the same full faith and credit in every
court within the U.S. as they have by law or usage in the courts of such state from which they are taken.
a) Federal courts must refer to preclusion law of the state in which judgment was rendered.
3. Exception: No claim preclusion where plf unable to rely on theory because of limit on jurisdiction.
4. But: State law may make it unnecessary to determine if federal court should decline to give preclusive effect.
5. Kremer analysis:
a) Look at state preclusion law to determine preclusive effects of state court judgment.
b) Will the state law bar relitigation of the issue/claim decided in earlier state proceedings? Will application of the
state rules bar the particular federal claim here? [Plf cannot relitigate the same claim in federal court]
(1) Yes Does an exception to the Full Faith and Credit Statute exist and apply here? An exception isn’t
recognized unless a later statute contains an express or implied repeal. Look at Fed. Law at issue for
exception.
(a) No implied exceptions; typically an exception where plf unable to rely on a theory b/c of limits
on jdx
6. Matters not decided in state proceedings = claim preclusion generally does not apply. Typically a state judgment will not
have claim preclusive effect on a cause of action within the exclusive jdx of the federal courts
E. Parsons Steel, Inc. v. First Alabama Bank
1. Pets sued Respondents in Alabama state court alleging that the bank had fraudulently induced Parsons to permit a third
person to take control of a subsidiary of Parsons Steel. 3 months later, Parsons Steel and Parsons sued the bank in USDC
for D. of Alabama, alleging same conduct on part of Bank but this also violating Bank Holding Company Act. Parsons
loses here, goes back to state court where Bank pled RJ and CE based on federal judgment. Alabama Ct ruled RJ didn't bar
the state action. Trial in favor of plfs. Bank then returned to DC that previously entered judgment in bank’s favor and filed
current injunctive action against plfs/pets. DC found that BHCA suit and state action based on the same factual allegations
than claimed substantially the same damages. Ct held state claims should have been raised in federal action as pendent to
BHCA claim and accordingly that the BHCA judgment barred the state claims under RJ. Found that state judgment
effectively nullified earlier fed. ct. judgment in favor of bank, so DC enjoined pets from further prosecuting the state action.
Perm injunction. Federal court must give same preclusive effect to state court judgments as state court would
give. Go back and see what answer would be under state law, follow that as your rule. Ct Apps erred by refusing to
consider possible preclusive effect of the state-court judgment. FF & Cr Act requires that federal courts give the state court
judgment, and particularly the state court’s resolution of the RJ issue, the same preclusive effect it would have had in
another court of the same state
XVI. Review
A. Appellate Review
1. There is no statutory right for interlocutory review of state court decisions in federal court. However, there is judge-made
law (collateral order doctrine) that give judges discretion to review state court decisions on interlocutory review, but they
are very rare
B. Joinder of Parties & Claims
1. To be joined, a claim must be permitted by BOTH:
a) FRCP (rule 18 for claims, rule 13 for counter/cross claims), AND
b) SMJ statutes
C. Supplemental Jurisdiction
1. Parties joined under 14(b) must be diverse or the claim must fall within federal question jxn
a) 1367 is narrower in diversity than in federal question (1367(b))
2. 1367(b): NO supplemental jurisdiction for claims by plaintiffs against:
a) Impleaded third parties under rule 14
b) Necessary parties under rule 19
c) Permissively joined parties under rule 20
d) Intervening parties under rule 24
D. Summary Judgment
1. Celotex: SJ granted if:
a) Party fails to make a showing
b) Sufficient to establish and element
c) Essential to the party’s case, and
d) On which the party bears the burden of proof at trial
2. Anderson v. Liberty Lobby: SJ requires:
a) Court to predict what will occur at directed verdict stage
b) SJ if only one reasonable conclusion
3. Matsushita: SJ required:
a) Where record could not lead a rational trier of fact to find for non-moving party,
b) No genuine issue for trial
4. Scott v. Harris: SJ requires
a) View evidence in light most favorable to non-moving party only if genuine dispute as to those facts
b) Not just some metaphysical doubt

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