Art

III- (1) Judicial pwr- Supreme ct. Congress-lwr cts. (2) SMJ- Fed ques, diversity etc. SC orig jur vs. appellate Rationale: dont overstep states, large state system Marbury v. Madison. Judiciary Act unconstitutional=not binding. No SC orig jur Art III mandamus (only diversity, diplomats, Cong. exceptions). Need 1. Stat auth (min) 2. Const. auth (max) SMJ- Power to hear certain kind of dispute, structural limit>raise at any pt 1. Properly joined (FRCP) 2. Statute/USC 3. Con/III Diversity/28 USC 1332(a) + Art III. 1. Amt in controversy> $75K 2. Cit. diff states, state/foreign, diff states + addtl foreign NOT for/for. Strawbridge v. Curtiss. Complete Diversity-statutory req. No P=Any D. Class actions>min diversity. Mas v. Perry. Peeping LL. Wait & see objection>SOL 1. US Citizen 2. Domicile state=present+ intent to remain (subj!). Diverse Wife/P1-MS Hus/P2-France v. D-LA. P-in LA but no intent to stay>dont lose dom. until est. new one Uniform rule>no one citizen of no state Pros: less local bias (jury larger pool), nationally sig cases, fed ct superior (less political pressure, greater resources) Cons: overburden, state law+develop, state sovereignty, forum shop (procedure rules), elected state judges, mobility+ dual citiz. Corp=state of inc+principal POB Herz v. Friend/P. Corp=nerve center=officers direct/control, i.e. HQ. admin ease/simple/place=singular. Rationale: Prevent strategic re-incorp Ins=state of insured + state of inc + princip POB Legal rep=state of repee Alien= perm res+domicile state Singh v. Daimler- aliens of diff states diverse. 28 USC 1359. NO Collusive Joining Rose v. Giamatti. AIC. AFA Tours v. Whitchurch. Good faith>@time of filing- chance to prove+ can incl. pun. Legal certain to dismiss Rationale: $>important, avoid trial on just jur, P may not have full info Aggregation: 1P/1D many claims. Multi-P + common undivided int. (ltd) Fed Ques/28 USC 1331 + Art III. Osborn v. Bank of US/P. >Fed. P enjoins D for taking unconst. tax. Cong Act + Art III. Fed law ingredient in bkgnd. Louisville & Nashville RCo v. Mottley/P. >State. BOC- Free transit K, but fed prohib, P-5th Amm violation. Well pleaded complaint- Fed issue in CoA Con-n/a if in counterclaim/def/answer TB Harms v. Eliscu. >State. BOC but bkgnd copyright ownership. 1. Fed COA 2. Interp fed law 3. Impt fed interest Rationale: Uniformity, natl import, state ct hostility/1875 Fed Statute/Neg. Cort v. Ash. Factors. 1. Class statute meant to benefit 2. Leg intent 3. Leg scheme 4. Trad state law? Shoshone Mining v. Rutter. >State. Fed stat-local customs. Moore v. Chesapeake & OH Rwy. >State CoA turning on fed labor issue. Merrel Dow Pharm v. Thompson/P. >State, counter cong intent. Pdt liab. Neg based on fed statute. Either 1. CoA-fed law OR 2. Turn on fed law construction (Smith) Grable v. Darue Engr. >Fed. Tax sale, state action/fed title law. Fed. CoA or Fedlaw Constr BUT balance fed int vs. implication. Uncommon CoA so no lit. flood. Fed+State>Osborne>Interp Test>Fed Policy (Balance intent/implic)>COA(suff not necess) Supplemental Jur. 1. Multi P claims v. 1D 2. Multi P v. Multi D, same transaction 3. Multi P v. Multi D. Pendent Jur=By complaint. Add state claim to fed claim Ancillary=By counterclaim, cross claim, 3rd pty complaint. FRCP 82- Still need Const/Stat auth Special verdicts help w/state+fed differences. 1. Federal Rule? Related Claims Unrelated Claims Same Parties Compulsory (13a) Permitted (18, 13b) Diff Parties Permitted (14 by D, 20 Prohibited by P) Compulsory (19, jur ok) 2. Statutory? 28 USC 1367 (a) i. ID anchor claim (1332, 1331)-orig jur ii. other arises from com nuc. of facts (b) if 1332 kick out 14/19/20/24 by Ps + 19/24 vs. Ps if destroy div (c)/Ct discretion: complex state claim, state dom, other claims dismissed, exceptional sit (~Gibbs dicta)- 3. Constitutional? Art III-case (broader than Statute)

Pendent Claim/18. United Mine Workers of Am v. Gibbs/P. P loses job, blames D/union. Emplymt interfere=state; Boycott=fed. Yes Pendent 1. Fed arising under 2. Fed/state claims related>single case 3. Common nucleus of op. fact. Discretion- efficiency, fairness, federalism (state claim focus) No 1367-eff driver instead. Hurn. Subst. fed claim + parallel ground for relief (same COA-violate right by legal wrong). Pendent Pty/14, 20. Aldinger v. Howard. No 1367. Fed-Civ Rights vs. Police; State-violation vs. Cnty/20. Need more explicit stat. auth- cnty not person, no pend. jur. Owen Equip v. Kroger. No 1367. Kroger/IA vs. OPPD/NE neg. OPPD joins/14 Owen/NE. OPPD dismissed, no fed jur diversity-destroyed by joined pty. Finley v. US. P vs. US, FTCA/FAA. No 1367. F joins San Diego/D3, state tort. Stat. silence=no jur BUT 1367 now over pendent pty. ExxonMobil v. Allapattah Services. Car dealers sue Exxon. No all meet amt. in controversy. No Indivisibility Thy. Contam. Thry-joining can undermine (a). div NOT AIC (non-prej)>(a) met (b) exceptions n/a. Dissent/Gins-no aggreg implicit in (a)>bar, no need to bar 20/23 again in (b) Ex: 1 claim is fed ct only. Fed ct only place to try both. Prevent P suing improper diverse D to get fed jur, then joining proper D If no fed jur then- abandon, 1 state/1fed, both state Removal/1442, 1443, 1453+Jud Act 1789~Assume Art III. Shamrock Oil v. Sheets. P cant remove after counterclaim-already agreed. Only D can remove, SMJ/Orig fed jur. No removal Ds home state if diversity basis. Not prejud. Assymetry-P could initially choose his states fed ct, just ensures ct. 1441(c)-sep & indep superfluous w/1367 or unconst. broad Rationale: Strategy-jury, procedural, judges Personal Jurisdiction. Bind person to ct judgment 1. Statute-Long Arm (usually coextens/ lim of Cons) A. Notice B. Power 2. 14th Amm-DP for Dfdt (leads to broad DP debates) A. Specific vs. Gen B. Complexity/case Enable D to structure conduct by notice/foreseeability State ct- need jur in that state/Long Arm Stat, Fed ct-only jur if state has jur FRCP 4(k) Dont want PJ diffs to drive state vs. fed ct choice Cure by transfer w/in fed cts? 1406? In rem=over prop In Personam- Person Quasi in rem=person, recovery ltd to prop value Tangible and intangible prop Hist/Const Grounds. Pennoyer v. Neff. No PJ. Mitchell/OR v. Neff. Neff/CA v. Penn/OR. Not present 1st suit. Territoriality 1. Notice- phys presence or citizen 2. Attach prop before lit (N didnt own at time) OR 3. Consent. Constr. notice insuff Kane v. NJ- actual consent req, out of state motorists. Hess v. Pawloski. D/PA, car accid MA. Statute send notice-PJ-implied consent OK w/ DP-ensure return receipt Rationale: State sovereign, fraud oppression (distance better proxy?), formalism Specific Jur/Const- Related contacts. > Purp Availment (Aware, SOC, ) + Reasonableness Related- 1. COA arises out of (i.e. element of complaint) 2. Substantive-related to merits (3. Contacts that look like one another even if n/a to meritssim pdts/claims) Min Contacts/Const. Int Shoe v. Washington/P. WA recover unpaid unemplymt fund contrib. Serve WA salesman+ send complaint to HQ/MO. Min contacts (qty, qlty) that dont violate trad notions fair play/substantial justice= contin/systematic + nature/quality activity. Yes- orders/sales /demos. Dissent/Black- Yes PJ BUT dont curb state auth bc D fairness concerns Rationale: protects D from inconvenience, limit state reach, realism Min Contacts Applied. Worldwide VW v. Woodson/P. No PJ. Pdt liab-car bought NY, injury OK. Distrib/dealer no agents in OK. Strategic state ct-destroy div w/distrib-NY. 1.Min Contacts~Purposefully avail self of privileges in state=Federalism (prob pdt used in a place+dfdt responsib+contact related) Unilat act not enough (cust. car use in OK, should be more intentional) 2. Reasonableness=Fairness (D convenience vs. State int/P int/P choice of forum/eff resol, social policy) Dissent- Best contacts not req. OK-witnesses, lit, state interest. Use pt of distrib chain. Burger King/P v. Rudzewicz. Yes PJ. D/franchisee/MI. K relation est in FL. P sues in FL fed/Rule 4. 1. Min Contacts negotiations, terms of K, course of

dealing>foreseeable to D to be brought to ct (Reciprocality) 2. Reasonableness- factors may ease burden on min cont, knew FL company Best forum not req. Asahi Metal Ind v. Superior Ct (Cheng Shin)/P. No PJ. Motorcycle accid. Tube co/Taiwan/P want indemnity from valve co/Japan/D. Sue in CA state ct. D knows P sold D pdt in CA. 1. Min cont/Min-OConnor/4: SOC+awareness+purp directed action (D ad/mkt/ distrib) NO 2. Reasonable/Maj (foreigner, alt ct avail-foreign, neither resident, safety int-cust pressure) Brennan conc/4- Prong 1- SOC+Awareness (higher Prong 2 bar)=econ + indirect benefit from state, predict pdt flow Stevens conc/1- SOC enough, here unreas. If purp direct look at vol/val/haz (met) >>2 Pluralities: Try to meet OConnor most restrictive Prong 1- D focus, Prong 2- Reasonableness, let in other things Choice of law not same as jurisdiction (BK flaw) Fax/calls/emails = contacts. Qty contacts indicate more availment+alertness Websites. Pebble Beach/P v. Caddy. No PJ. P sues for trademark infringement, CA fed ct. 1. Min Contacts= forum-related activ. + purp availment of privilege of conduct (=action in forum invoking law benefits) , n/a D action not in forum OR purp direct conduct to forum (1. Intentional act 2. Aim at forum 3, Cause harm in forum likely know to be suffered) foreseeable and passive not enough 2. Reasonable. Concern web creates global jur. (D inconven, lowest com denom law) Property Old. Harris v. Balk/P. D visits MD, Epstein garnishes Ds debt to P (D>P>Ep). D pays, P sues in NC-no PJ in 1st action. Debt follows the debtor, enf in other forums (debtor becomes agent of service for creditor). P given notice. Outdated>min contacts does work this rule tries to (PJ w/o phys presence) Property New. Shaffer v. Heitner/P. No PJ. P/shareholder suit vs D/officers/DE inc, AZ HQ. P sequesters D prop/stock in DE. Quasi In Rem Apply Min Cont (anti Pennoyer). 1.Suits about ppl not prop. 2. In Pers. expands, less need for territ. Terr. still relev to min cont/prop as related contact Art IV-Full faith credit. State can attach prop for lit in proper state (counter avoid by prop to non-min cont state). Officer benefit DE law Purp Avail. Implied consent danger- PJ/DE shareholders. Dissent-DE stat invalid, min contacts n/a + not argued. If Min Cont-OK. DE int, purp avail, purp directed actions. Concern: pure in rem/real prop want clear title and ability to bind all Gen Jur/Const- Unrelated but more contacts. > Continuous/systematic Rationale: Safety valve-assure a forum, duty/pt of community (i.e. domicile) Helicopteros Nacionales de Colombia v. Hall/P. No PJ. Helicopter crash, pilot neg. D-helis for Houston comp. P-workers for TX co. Sue TX state ct. Spec Jur=CoA arises out of D forum contacts. No But For not enough. Gen Jur=Cont/systematic contacts. No (single neg trip, bank acct drawing=unilat, purchases/training unrelated to CoA) Dissent-Gen Jur/purp avail- ben. from biz trans. Spec Jur-Neg/buy related to neg Perkins/P v. Benguet Consolidated Mining. Yes PJ. P sues for stock dividends. D/Philippines. Suit in OH State ct. Corp activities necess not suff. contin/systematic (mtgs, correspond, banking) Phy presence. Burnham v. Superior Ct/P. P/wife in CA, D/hus visits kids serves divorce, CA state ct. Phys presence sometimes enough = trad. notion fair play/subst just. Reas expect of suit if volun. in state. Applies for present not absent Ds. Brennan concur- Contemp notions of DP. Pedigree insuff instead reasonableness-ben. while in state (3d only!), ease of transport, assym>power as P but immune as a D, BUT all reas. dep on Ds service/presence in CA. By Consent. Express, showing up, waiver of obj, not defending agst>forego merits if dont show in suit#1, even if contest PJ suit #2 BUT PJ costly disc. Insur. Co. of Ireland v. CBG/P. Yes PJ. P inc. DE, op Guinea insured by PA/foreign co. Sue PA. D resist disc of PJ>obj waived. Comp agent for service>yes PJ, Reg for biz in state>no PJ consent. Ratliff/P v. Cooper Lab. No PJ. Foreign co, reg biz in SC~doesnt mean exercise biz priv.

Forum Selection Clause=ex ante consent. Screen for unconscionability. Bremen v. Zapata/P. P/TX has K w/ D/Germany. FSC=UK. P sues in FL. Yes FSC. Cant insist on US cts in expanded biz world. Carnivale Cruise Lines v. Shute/P. FSC-FL. Yes FSC-red fare, red uncertainty

Venue- Statutory, Narrows from PJ

Rationale: D/3rd pty conven, judicial eff, Factors: subj of action locted, CoA arose, D res, etc Statutory: Cong adopt to changes, policy driven Limiting case: only one poss forum Steps/1391a/Judic Dist: 1. Where Ds reside if all in same place (person>reside, corp >PJ OR most sig cont) 2. Subst pt of events ex: WWVW 3. If no other option, where any D has PJ (catchall), Burnham Change of Venue/1404-By Ct or Pty. (a) Balance, any dist (b) Consent/motion, w/in dist Hoffman v. Blaski/P. P sues N. Dist TX. D 1404 removes to IL. Improp venue. where might have been brought =P had right to bring case, NOT time of transfer D/consent. Asym if D control/P needs consent. Presume P choice good. 1. Aggrieved 2. Bringing CoA so better info than ct early on 1406- Fed ct can dismiss/transfer if defect OR 1404-transfer for conven bal pty conven + int of justice (appears in 1391, 1404, FNC) Keep choice of law from 1st venue> strategic behavior (Piper) ComLaw. Forum Non Conveniens/FNC. Gulf Oil v. Gilbert. FNC 1. Alt avail forum? D can dismiss venue even when auth. Keep P in check. 2. Balance Factors-Dont disturb P int (unless unfair), priv ints.: proof access, witnesses, premises access, compuls process for unwilling attendees, pub int :(state of law, non-remote if many affected, etc) Piper Aircraft v. Reyno. Crash Scotland, Scot airline/reg in UK, PA engine, OH propeller. File in CA state (good tort law, forum shop)>CA fed>PA (D motion)>FNC Yes. Foreign P less deference. Scot int>US int. Cant transfer state/state, must go state>fed then transfer. Fed system, state venue ltd to state boundaries. Venue+PJ were improper in CA. Private interests and public interests should favor. If remedy so inadequate/satisfactory that no remedy at all>substantial weight to unfav. Change in law (not int of justice). Worse law not suff to deny Beware Foreign Ps vs. US Ds. Dont want foreign P to discipline US Ds in chosen US forum, unclear how much foreign interest enough Vertical Choice of Law Fed vs. state in diversity dispute. Fed question>>fed law! 1. What Ptys Fighting Over? 2. Where do Rules come from? A. Const-1. Does it apply? (Marbury) B. Statute 1. Apply? (Walker-Federalism, suff broad, Byrd/balance may influence narrow/broad interp) 2. Valid? Constitutional? subst-Art I necess/prop; proced-arguably procedural/ArtI necess/prop+ArtIII (Stewart) C. FRCP- 1. Apply? (Walker-Federalism, Byrd/balance may influence narrow/broad interp ) 2. Valid, REA 28 USC 2072? (Hanna) a. Rule of practice/procedure? YES b. AEM subst right? NO c. Constitutional? Art III + necess/prop=arguably proced (Hanna) D. Judge-Made. 1. Substantive? (Erie-State) 2. Borderline? A. York Outcome Determ>Easy to get State B. Byrd>Easy to get Fed C. Hanna Dicta>Ex-ante York+ if not outcome det then fed int impt>>stateno major threat of forum shopping+inequit admin of law E. State Law. Go Federal b/c of supremacy. Common Law. Rules of Decision Act/28 USC 1652. Laws of sev states regarded as rules of dec in civ actions in US. Swift/P v. Tyson. D/NY>speculators (debt)>P/ME. D-NY state CL K law. P-fed ct=gen BFP law. RDA-laws of sev states=use state statutes not case law, so use gen law. Erie R. Co. v. Tompkins/P. P/PA hit by D/train/NY. P-Maj Fed CL rule, ord care, file NY fed. D-PA state CL (tort), neg. RDA incl state case law; no fed gen com law>wrong. Con scholar-prev version incl CL. Fear of strateg behav-forum shop/Black & White-create div. to get maj law (fraud?). Non-uniform. natl/state law not fed supremacy, states not bound (realist). Discrim Cit by NonCits-Ineq Admin.=Outcome in state vs. fed ct Anti Lochner/Formalism. Allow states to protect citizens w/rules. Swift Unconst-not in scope of enum powers. 1. Federalism/state not fed pwr/ ArtI Sec8 laws necess+ proper/BUT Cong law poss-

comm cl 2. Sep of power/Art III/ Cong as lawmaker not cts>made up rule 3. Admin>sep branches, Cong to delegate to cts. Dissent-No Conlaw issue argued. Guaranty Trust v. York/P. P sues D for misrep/fraud. D-State Statute SOL. P-fed common law Barred or not. Outcome Determination Test (Hanna says ex-ante). Subst affect outcome=Subst=state, Proced=Fed. dont apply diff body of law. Dissent- Leave it to Congress, D may stay in state where short SOL to dodge suit. Woods v. Interstate Realty/P. D-State-biz registration. Byrd/P v. Blue Ridge Rural Electric. Workers comp. D-fed judge, judge made. State CL/jury procedural> Balancing State/Fed Interest. State-practical/eff mechanism bc of posture Fed- core of ct org jury for fact. Byrd Dicta-state int impt when outcome det. Substantive=bound up w/ rights+oblig of states rather than form/mode of enf them FRCP. Rules Enabling Act/28 USC 2072. SC can presecribe rules practice+proced, not to AEM subst right. Ragan/P v. Merchants Transfer. D-State statute tolling. P-FRCP. Bar suit. Cohen/P v. Beneficial Ind. D-state statute bond. P-FRCP. Subst. liab for expenses. Sibbach/P v. Wilson. Rule 35. Proced/Fed. Hanna/P v. Plumer. Left service w/ wife of D. P-Fed FRCP 4 service D-State Statute (in- hand service). 1. Ex-ante disc. forum shopping + 2. Avoid inequit admin. Neither a concern. If FRCP: 1. Does Rule Apply? 2. Valid by REA/stat? A. Practice/procedure=process for enf rights + admin remedy B. AEM?=incidental coming before ct 3. Valid by Const (lower bar than REA)? Art I+III arguably procedural Concur-Erie about federalism, no infringe on state goals (exec just has to check w/ probate here) Walker/P v. Armco Steel. Pdt liability. P-FRCP 3, D-State stat, starting pt SOL. Step 1 Fed law doesnt apply-thumb on scale of state int. About action commence not SOL. Burlington Northern v. Woods/P. AL statute-penalty. Fed-FRCP 38 only if frivolous. Direct conflict. Shady Grove/P v. Allstate. P sues for int on insur pymts. FRCP 23- class action criteria. NY state statute-No stat penalty for class action. 1. Fed law applies exhaustive (most of work). Both conflict on whether CA can be brought 2. Valid by REA-procedural, AEM-no ref to state law! (fed law doesnt dep on state law type) Concur/Stevens-No AEM, state law about all law, FRCP only cert if fed ct. Dissent-No conflict>class action? vs include stat dam? so Erie/state. State policies/rights. Hanna-justifies w/ Byrd dicta + York ex-ante Diversity vs. fed question. State interests may influence interp. (Walker) Shady Grove Scalia/Ginsburg-1. Stat Interp? 2. Fed ct structure? 3. Relev. State int? Fed Statute. Stewart Org/P v. Ricoh Corp. AL state law-disfavor FSC. D-Fed 1404-balancing, discretion. 1. Fed Applies/read broadly- not coextensive (single v. multifactor) but clash 2. Valid procedural, 1404 3. Valid Const I/III Dissent- Does not apply, Fed looks to present/future, state to past. Substantive, forum shopping concern.

Preclusion/Judge Made/DP Notice. DP relaxation to get consolidation

Rationale: red cost/complexity of multisuits, conserve resources, consistency, reliance/peace of mind/ finality, efficiency vs. fairness/certainty, day in ct + get it right (outweigh eff, waiveable right) Opposing pty bears burden. Claim Preclusion/Res Judicata/Merger&Bar. Shouldve been adv. earlier suit. OK if new COA to bring in omitted defenses. 1. Final/valid jdgmt on the merits (+same claim=trans test) 2. Same parties (frcp 19?) 3. Matters properly considered in 1st suit (1st suit bars to matter?) Transactional test-com nucleus op facts. Rush/P v. Cty of Maple Hghts. 1st-P v. D prop dam; neg. 2nd- P v. D Pers. inj. Yes claim precl. Vasu~insurance (1-P vs. ins, prop dam, 2. Ins vs. D- indemnity, 3. P vs. D, pers inj>no claim precl) Maj/Tort=one action (prop+pers inj dam) Concern: P strategy/D unfairness/P unfairness. Low val claim 1st>D invests less>P tries to win on higher val Joinder 13(a) codifies D claim precl (counterclaims)-transactional test Issue Preclusion/Collateral Estoppel. No relitig. btwn same parties of right/question/fact decided-already had day in ct. 1. Valid, final and on merits 2. Issue necessary to 1st suit. Off or def. Broader than CP, diff trans. Narrower-not about whole claim, just subissue. Def- incentive to join all in 1st suit. May waive precl def if not claimed early. 1. Valid (SMJ/PJ), final (judgment), on the merits (not dismissed)

Class Action/FRCP 23/Due Process Forward looking, solve social probs

2. Actually Litigated. Cromwell/P v. Cnty of Sac. No precl. Suit 1. Smith/P v. D (P owner of coupons) Suit 2. P vs. D (D defensive-action already brought) Matter not actually litigated. Fraud1 vs. BFP2. No CP-sep transact Rationale for Actually Litigated: $$ to relitigate (>value), enc stipulation (can relit if not actually litigated), lack of knowledge, bad incentives for P if low stakes in Suit1 Also Pleadings-admit/fail to deny=precl? Pg 1277 3. Necessarily Decided. Russell/P v. Place. Patents infringed 2x, patent use + manuf. Suit 1. P vs. D Suit 2. P vs. D (offensive, D cant assert novelty def). No precl. Unsure which claim decision relates to (use or manuf) Factual certain (Russell) + logical necessity (aff def, dicta) Aff. def. May not get to D issue if decide on P blame Anti Mutuality. Bernhard/P v. Bank of Am Nat Trust. Yes Precl. Executor transferred $ from elderly to own acct. Suit 1. P vs. Bank1 (gift) Suit 2. P vs. Bank2 (D defensive- ownership already est, P-mutuality/D not privity). Pty cant preclude nonpty. Nonpty can preclude pty. 1. Issue in prior suit? 2. Final judgment? 3. Person precluded pty/privity? Blonger Tongue Lab v. U of IL. More accepting defensive nonpty D to use def. vs. pty P than for offensive nonpty P to use against pty D. Should allow pty P to dem unfairness of 1st suit? Parklane Hosiery v. Shore/P. Yes precl-not unfair, couldnt join. Suit 1: P1/SEC vs. D Suit 2: P2/shareh. vs. D (P offensive-mat. false statement). Off problems- 1. Wait & see (incr lit, use if fav, relit if not) 2. Unfair, D may not perceive stakes suit, or have proced adv suit2 Ct discretion for off precl-sig of problems+shouldve joined suit1? Dissent- Violates 7th Amm/right to jury (policy, diff result?) Anti-Mut Rationale: already day in ct>prevent serial litig/switching adversary, enc. joining Ds, mutuality ineff (time/$/incr dockets) More lit good if want large sample of tests cases for liab D pty vs. P nonpty, more allowing D did not choose lit OLD Mutuality-Bind only ptys in privity (Nonpty wait & see)

(1) Power (SMJ/PJ-Shutts) (2) Notice (3) Adequacy A. Const-Hansberry B. FRCP23-(CFE, Rohm) Except. To Precl-can bind absent pty to outcome Rep of int sub for presence Rationale: eff, consistency in result, pragmatic (joinder costly-attnys), toll SOL Const. 14th/DP Hansberry v. Lee/P. Suit1: P1 v. D1 to evict. Valid Racially restr. cov stipulated not act lit (no issue precl), Suit2: P2 v. D2. D2 tries to buy land. P2 claims D2 pt of P1 class. No class-no adeq rep-collateral attack on suit1. Class not uniform, some for and agst. Ds not designated as class. FRCP 23(a) 1. Numerosity- # ppl (>100s usually) 2. Commonality- Sameness, shared characteristics 3. Typicality- Class rep approx. avg class member, same incentives 4. Adequacy of Rep- Ability of named to rep unnamed (no conflicts of interests, right attny)>divergent int? constrained resource/recovery? FRCP 23(b) (1) Limited fund, interdep recovery (2) Injunc/declaratory. (3) Damages-more divergent intrests, higher req. Small claims (collective power)+mass tort (incr P bargaining pwr, consolidation, eff)>>(b)(3) consid: int in sep actions, extent/nature of lit underway, desireability of concentrating lit, diff in managing Opt Out>23b3 or Join/Collectively Decide. Nonptys that oppose functionally bound if inj, not if damages BUT b1/b2 int more aligned Absent Member Collateral Attack. Gonzales/P v. Cassidy. Uninsured motorists. Class did not properly appeal issue. No adequate rep, protecting class int. Allow absent class member to proceed. Rhone-Poulenc Rorer. No class 23b3. 1. Neg class? 2. Dam Prev cases for D. Blood transfuse>AIDS. D-Mandamus to overturn class cert. Sep suits ok alt (large amt, diff stds/juries better eval of legal merit), coerced settlement>ind. bankrupt? Comm for Equity/P v. MI HS Athletic Assn. Title IX. all present & future females enrolled in MHSAA schools that

particip. in athletics/deterred from particip+adv affected Yes 23b2 Class. Comm- share ques. law+facts even if individ questions Typicality-Discrim broad, no need to specify sports Adequacy- 1. Rep com int w/those in class adv affected 2. Vig prosecute. If no int, rep by D. Diff in relief desired can settle later. Injunction w/o class insuff. Mootness-pts graduate, inj n/a, publicity, broader reach (sports etc), injunctions can be ignored, protect from harass. SMJ. Relax reqmts, more can go fed. Pro-Interstate importance, interst. Comm Con-workload, federalism, unelected judges, one state binds nation Diversity- based on named ptys (or assn membership). Amt in controv. Exxon- Need 1 anchor claim (supp jur/same case controversy, for others if no defects) CAFA/1332d-Min diversity- 1P/1D for interstate class actions. Ct discretion to decline-natl importance, forum/pty connection (>1/3 P class/named Ds cit of filing state) Decline if >2/3 cit of filing state Agg amt in cont. if >$5MM+min div MultiPty Multiforum Act. Fed jur if 1 accid+ >75 deaths+min div+other factors PJ. Phillips Petroleum v. Shutts/P. Yes-23b3 class Int owed for nat gas rights. 33K class, alerted, opt- out choice. KS law to all. Absent P not absent D, min contacts concerns n/a. P doesnt have to exp resources/ fend for self-counsel, travel, defend, respond. Subst. mech protect absent Ps. Adequacy of rep, Notice, opp to particip, opt-out enough. Dont lim to KS, law many foreign Ps Opt out req for 23b3/DP. Ps stand to lose future cause of action Venue. Resid of class reps Settlement. Relevant to cert but not dispositive. Amchem Pdts v. Windsor/P. Asbestos, phys inj, no symptoms. Deny settlement-no class. Threat of lit impt for settle, ct wants assurance of poss investigation. No commonality issue-dif in expense type, monitoring etc. No adequate rep-interests not aligned. Mixed reps but no subclasses, same attnys. Insuff settlemt for no sympt (no inflation, consortium, chance to opt out) Dissent/Breyer (benefs)- Big suit/need global res, settle factor for commonal., enough concessions that rep adeq (SOL tolling, pay if become sick) Rhone- Irrational to settle BUT fallible juries, binary dam (not compneg) Options once denied: 1. Subclasses 2. Diff attnys for groups 3. Nonlit mech (leg) Attorneys. Concern of lit. stirring when small claims/low monitoring. 1. Give right incentives with fees (still want to discipline Ds) 2. 23g1-Pick best attnys