Advanced Civil Procedure 1

7/23/2019 Advanced Civil Procedure 1

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E. some cts continue to app+' a fair+' broad stream-of-commerce approach based on For+d-Fide0 and ta;e urisdiction in cases that <5onnor wou+dnot reach

3. other cts adopt <5onnor5s view

. /S %$6 that if ∆5s contacts satisf' <5onnor5s test0 the' wi++ support

urisdiction0 since the other +sahi opinions re,uire a +esser showing

(2) anufacturer se++s finished products to a who+esa+er outside the state0 the who+esa+erthen rese++s to a retai+er in the forum state0 and the retai+er rese++s to a consumer

e) <ther &actors in the $urisdictional a+cu+usi) /nterest of the forum state in providing redress to its citiCens

ii) /nterest of the Π in obtaining re+ief in a convenient forum

iii) /nterest of the states in enforcing their substantive +aw or po+ic'

i#) $tent of inconvenience to the ∆ if she is forced to defend awa' from home

#) Botes

(1) Burger King " suggests that0 where the ∆ has purpose+' directed its activities to the

forum state0 urisdiction is presumptive+' reasonab+e0 and she wi++ have to ma;e acompe++ing case that other considerations ma;e the eercise of urisdictionunreasonab+e

(2) /t is on+' when de+iberate contacts eist between ∆ and the forum state that other

factors wi++ be weighed in determining whether the eercise of urisdiction wou+dcomport with fair p+a' and substantia+ ustice2

f) $amp+es

i) :ersona+ urisdiction ru+es are 'oriented ⇒ is the price ∆s pa' for de+iberate efforts to

derive benefits from or conduct activities in a stateii) St has chosen a narrow view of persona+ urisdiction0 focusing on the scope of the

activit' of the se++er (∆)0 rather than the predictab+e area of use b' the bu'er (∏)iii) Durisdiction must arise out of the ∆5s #oluntar( contacts w*the state0 w*E eceptions

(1) Transient jurisdiction " permissib+e to obtain persona+ urisdiction over an

individua+ ∆ b' serving her with the summons in the state where the suit is brought

(2) enera+ in personam urisdictioni#) Car accident is sufficient to support in personam urisdiction " motorists who use the

roads of a state shou+d rea+iCe that this purposefu+ activit' in the forum subects otherdrivers to serious ris;s0 that peop+e ma' be inured and sue

#) Worl(Wie )olks!agen reected the ru+e of foreseeabi+it' that the se++er of a portab+e product is subect to nationwide urisdiction0 ma;ing the chatte+ his agent for service of process2

#i) ∆ ma' reach into the forum state b' advertising*so+iciting business#ii) :ersona+ urisdiction is B<> based on the most or the best contacts but on minimum

contacts

#iii) ∆ ma' be subect to minimum contacts urisdiction in more than one state for a c+aim

that arises from a transaction invo+ving contacts with a number of statesi) Durisdictiona+ doctrine is +arge+' based on a common sense appraisa+ of what peop+e

shou+d epect) Stream of ommerce $amp+e

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*) STATUTOR+ ,IMITS ON PERSONA, $URIS-ICTION: ,on.'Ar! Statutes "p/ *0)

B<>$ did not inc+ude eamp+es at end of chapter due to s+ight coverage of topic in c+ass

a) &ue :rocess (&:) c+ause of the fourteenth amendment to the onstitution imposes

fundamenta+ +imitations on the power of state cts to eercise urisdiction over ∆s

i) State ma' on+' assert urisdiction over ∆s w*significant to re+ation to forum state

(1) &omici+e(2) /n-state :resence(3) onsent to suit in that state(4) inimum contacts with the state that give rise to suit

ii) &: c+ause on+' defines outer bounds of permissib+e urisdictiona+ power0 and state+egis+ature must actua++' grant power to its cts to eercise persona+ urisdiction(1) $. has a ver' epansive provision that is se+f-adusting

b) $numerated ct2 %ong-rm Statutes

i) 1lon. ar!2 statutes authoriCe cts to eercise urisdiction over ∆s based on specifict'pes of contact with the forum state ⇒ reach out to ca++ nonresident ∆s bac; into the

state to defend +awsuits

(1) tend to be +ibera++' granted0 as the +awsuits are usua++' invo;ed b' ∏s who +ive in

the state and prefer to sue at home(2) U>/<B some +ong-arm statutes ma' eceed their constitutiona+ grasp(3) ++ +ong-arm statues that base persona+ urisdiction on specific enumerated acts

re,uire that the c+aim sued upon arise out of the act itse+f ( International Shoe)ii) Specific categories of urisdiction conve'ed b' the +ong-arm statute are to be interpreted

as +ibera++' as the due process c+ause wi++ a++ow

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3) -I7ERSIT+ $URIS-ICTION "p/ 88)

a) edera+ courts hear +imited categories of cases (U.S. onstitution0 rt. ///0 IE)i) Durisdiction over a++ other sets of cases +eft to state courtsii) -i#ersit( jurisdiction " cases between citiCens of different states2

(1) Subect matter urisdiction defined b' who the parties to the suit are0 rather than the

subect matter of the under+'ing dispute(2) 6e,uirements a diverse ∆0 c+aim for K L7!;

(3) 6ationa+e framers5 fear that out-of-state citiCens wou+d suffer preudice if the' wereforced to +itigate against +oca+ citiCens in the +oca+ state cts

iii) rt. /// authoriCes ongress to create +ower cts and to hear t'pes of cases enumerated inrtic+e ///0 IE (which authoriCes urisdiction over a++ diversit' cases)

i#) E8 U.S.. I133E is narrower than rt. ///. IE ⇒ it inc+udes an amount in controvers'

re,uirement

#) Stra!%rige v. Curtiss (U.S. 18=G) " a++ ∆s must be from different states than a++ ∏s4

parties on the same side of the v2 ma' be co-citiCens#i) State ,ar$ ,ire - Casualty (U.S. 19G7) - diversit' is present as +ong as some opposing

parties to the action are diverse.

b) >he eaning of State itiCenshipi) Natural persons

(1) -o!icile " the state where a person has ta;en up residence w*the intent to resideindefinite+'

(2) >est domici+e w*subective intent (p+us ph'sica+ presence if new domici+e)(3) the person has no definite intent to +eave to ma;e a home e+sewhere4 met as +ong as

the person has no definite p+ans to move at a particu+ar time or upon the occurrenceof a particu+ar event

ii) Corporations

(1) E8 U.S.. I133E(c) provides statutor' definition of state citiCenship of corporations(a) (c)(1) " where the principa+ p+ace of business is +ocated

"i) >est p+ace of operations2 or bu+; of corporate activit'2

"ii) 6ationa+e same as for diversit' urisdiction⇒ where the corp. emp+o's the

most peop+e0 conducts the most activities0 and has the most interaction w*the pub+ic the corporation wi++ most +i;e+' be perceived as +oca+

"iii) nerve center2 test used to identif' citiCenship when there aredispersed corporate activities0 usua++' the corporate head,uarters or homeoffice

"i#) consistent+' interpreted to mean corporation can <B%M have <B$ principa+ p+ace of business for diversit' purposes

(b) (c)(1) " state in which it is incorporated

c) $amp+esi) :+ace of suit is irre+evant in diversit' ana+'sis.ii) :arties from the same state on both sides of the v2 vio+ates diversit' urisdiction.iii) Alien " person who is a citiCen or subect of another countr'

(1) rtic+e ///0 IE separate+' authoriCes urisdiction over cases between citiCens ofdifferent states and cases between citiCens and a+iens

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8) PERSONA, AN- SU$ECT MATTER $URIS-ICTION COMPARE- "p/ ;0)

a) >hree basic re,uirements that +imit the proper courts for an' +awsuit

i) :ersona+ urisdiction over the ∆

ii) Subect matter urisdiction over the t'pe of case the ∏ wants to +itigate

iii) hosen forum must be proper venue under the app+icab+e venue statute

b) Oasic &istinctions

i) Personal jurisdiction " geographica+ +imitation on the p+aces where a ∏ ma' sue

(1) >urns on the re+ationship between the ∆ and the state where suit is brought

(2) or federa+ cts0 reach is restricted in most cases to those of the cts of the stateii) Su%ject !atter jurisdiction " concerns the ct5s authorit' to hear generic t'pes of cases

(1) uch more +imited for federa+ cts than for state cts(2) or fed. cts estab+ished either b' diversit' or presence of a ederal 9uestion <TEST

NOTES 44=48>

(a) ouisville an Nashville R.R. v. Motley (U.S. 1911) " dismissed for +ac; of

subect matter urisdiction because the federa+ ,uestion in the case arose as adefense

(b) ed +aw creates dut' and imp+ied or epressed remed'⇒ eas' ,uestion

(c) Fhat if state +aw creates the dut' and the remed' but re+ies on some edera+ +awP"i) $. <S# +aw " a++ows private individua+ to enforce those +aws"ii) :rob+em incorporating federa+ standard. ear that state +aw wi++ change

standard. /f an important enough federa+ interest⇒ wi++ ta;e it awa' from

the state courts. %oo; at what ongress has decided within the act.

c) Sources of onfusioni) Concurrent $urisdiction

(1) State cts have concurrent urisdiction over cases within the federa+ udicia+ powerun+ess ongress has made federa+ ct urisdiction ec+usive for a particu+ar t'pe ofc+aim

(2) edera+ cts do not have concurrent urisdiction over state +aw actions (un+ess the parties are diverse)

(3) ed cts have broad subect matter urisdiction in that the' hear a case betweencitiCens of different states.

ii) -o!icile (1) Batura+ person subect to persona+ urisdiction in the state where she is domici+ed0

the +ast state where she has estab+ished residence w*the intent to reside indefinite+'(2) State citiCenship (for diversit' urisdiction) a+so uses the domici+e concept but as;s a

different ,uestion whether the ∆5s domici+e is in the state where the suit is brought(a) 6u+e compare domici+es of ∏ and ∆ to ensure that the' differ

iii) General jurisdiction (1) Oasic state tria+ courts eercise genera+ urisdiction broad subect matter ur. over

man' t'pes of suits(2) :ersona+ urisdiction contet genera+ urisdiction2 refers to the authorit' of the

state5s cts to hear an' c+aim against a particu+ar ∆0 whether or not it is re+ated to the

∆5s in-state contacts (genera+ in personam urisdiction)

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?) REMO7A, "p/ @8)

a) >raditiona+ ru+e ∏chooses the forum0 in which to bring the suit0 subect to the +imitations of

persona+ urisdiction0 subect matter urisdiction0 and venuei) $ception Re!o#al

(1) &ederal re!o#al statutes a++ow the ∆0 after ∏ has chosen a state court0 to second-

guess2 that choice b' removing2 some t'pes of cases from the state ct to a federa+ ct(2) >he case becomes a federa+ case0 and the state court +oses urisdiction over it.

(3) 6ationa+e ∆s as we++ as ∏s shou+d have the option to choose federa+ ct for cases

within the federa+ urisdiction. edera+ urisdiction is intended to protect both parties0 and both shou+d have access to it.

(4) I 11(a) - remova+ avai+ab+e <B%M in cases ∏ cou+d have commenced in fed ct

(a) 6ationa+e not meant to epand federa+ urisdiction0 but to ma;e it avai+ab+e to ∆s

(b) edera+ district ct is the on+' ct that can host a removed action

(5) U>/<B some cases not removab+e0 even though∏ cou+d have origina++' brought

them in fed ct

(a) I11(b) " if any ∆ is sued in home state0 ma' not remove on basis of diversit'"i) 6ationa+e for eception ∆ has no need to be protected from +oca+ preudice0

since ∆ is from the forum state.

(6) ongress provided for remova+ in the Dudiciar' ct of 1789(7) I 11(e) " federa+ ct is not prec+uded from hearing a case simp+' because the state

ct +ac;ed urisdiction over it ($. State ct cannot hear patent c+aim0 but it can sti++ beremoved to federa+ ct)

(8) Usua+ federa+ venue ru+es do not app+' in removed actions.(9) 6emova+ app+ies to cases0 not c+aims entire suit is removed

(10) 6emova+ is a one(!ay street ∆ cannot remove to state ct

b) 6emova+ ompared to >ransfer of Henuei) E8 U.S.. I 1=(a) " geographica+ transfer from one district ct within the federa+

s'stem to another in a different state or district

(1) &isp+aces the Π5s geographica+ choice for +itigation

ii) 6emova+ " authoriCes transfer from state ct s'stem to feeral ct syste$ !/in sa$e state

(1) &isp+aces the Π5s choice of the state ct s'stem in favor of a federa+ ct w*in the same

geographica+ areaiii) Piper +ircraft Co. v. Reyno (U.S. 1981) " removed and then transferred0 then dismissed

for forum non conveniens

c) $amp+esi) Motley 6u+e urisdiction is determined b' +oo;ing at the Π5s comp+aint0 to determine if

he see;s recover' under federa+ +aw (federa+ issue must arise on the face of the we++- p+eaded comp+aint)

ii) /n a !ulti' case0 a++ ∆s must agree to remove

iii) Π has a permissib+e form of forum shopping2 present a co+orab+e c+aim against at +east

one non-diverse ∆ <6 structure c+aim to avoid satisf'ing amount in controvers'

re,uirement

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d) >he :rocedure for 6emova+ (I1G)i) 6emova+ decision is not irrevocab+e " can move in federa+ ct to remand bac; to state ct

(1) /f the basis for the motion is fai+ure to comp+' w*procedura+ re,uirements 3= da's(2) otion to remand on basis of +ac; of subect matter urisdiction can be made at an'

time prior to fina+ udgment in the case

e) $amp+es

i) I1G(a) a++ows ∆ to inc+ude in his notice of remova+ an' further a++egations that are

necessar' to demonstrate his right to remove ($. that damages ma' be K L7!;)ii) I1G(b) " /f a case is removab+e as origina++' fi+ed0 the notice of remova+ must be fi+ed

w*in 3= da's after the comp+aint is served on the ∆.

(1) Ourden on ∆ to find out if the case was removab+e from the beginning

iii) <nce the case is removed0 the state court +oses a++ power over it0 even if it wasimproper+' removed

i#) <n+' the ∆s actua++' served need oin in the remova+

#) >he right to remova+ is waived b' fai+ing to fi+e within 3= da's0 even if another ∆ issubse,uent+' oined.#i) 6emova+ only changes the court in which obections or defenses are presented.

(1) 6emova+ does not revive obections that are waived b' answering before remova+(a) $. obection to persona+ urisdiction

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;) PROPER 7ENUE IN &E-ERA, COURTS "p/ 44)

B<>$ did not inc+ude eamp+es at end of chapter due to s+ight coverage of topic in c+ass

a) Henue ru+es are meant to further restrict the p+aces where the Π ma' choose to bring suit

i) $ver' ct s'stem has venue ru+es0 genera++' estab+ished b' statute

b) Henue Oased on /ndividua+ 6esidence

i) E8 U.S.. I1391(a)(1) and (b)(1) authoriCe #enue in a judicial district B5ere an(

resides0 i t5e( all reside in one state (1) ontrast w*in personam urisdiction person who is subect to persona+ urisdiction

w*in a state is subect to urisdiction an'where in that state(2) 6esidence2 for venue purposes is e,uated w*domici+e (on+' one district)

c) Henue Oased on $vents or <missions iving 6ise to the +aimi) I1391(a)(E) and (b)(E) " venue is proper in a udicia+ district in which a su%stantial

part o t5e e#ents or o!issions .i#in. rise to t5e clai! occurred0 or a substantia+ partof propert( that is subect to the action is situated.2ii) :urpose assure a re+ation between the under+'ing events that are +itigated and the p+ace

where the case is tried.

d) >he a++bac;2 :rovisions in Section 1391

i) I1391(a)(3) " authoriCes venue in a udicia+ district in which an' ∆ is subect to

persona+ urisdiction at the time the action is commenced0 if there is no district in whichthe action ma' otherwise be brought.2

ii) I1391(b)(3) " authoriCes venue in a udicia+ district in which an' ∆ ma' be found0 if

there is no district in which the action ma' otherwise be brought2

iii) <n+' app+' if there is no district0 an'where in the U.S.0 which wou+d be a proper venueunder the first two sections

e) >hree <ther /mportant :oints

i) Henue0 +i;e persona+ urisdiction0 is considered a pri#ile.e o t5e

(1) ∆ waives her obection to venue b' fai+ing to raise it when she responds to the ∏5s

comp+aint (6u+e 1E(b)0 (h)0 (g))(2) :arties ma' even agree in advance to a particu+ar venue for suits that ma' arise

between them.(a) &oru! selection clauses2 genera++' he+d enforceab+e in federa+ cts0 even if the'

+a' venue in a district that wou+d not be proper under I1391

(b) Carnival Cruise ines* Inc. v. Shute (U.S. 1991) " upho+ding forum se+ectionc+ause in absence of showing of unfairness

ii) II1391(a) and (b) are genera+ venue provisions that app+' to diversit' and other federa+cases ecept as otherwise provided b' +aw2(1) Specia+iCed venue provisions govern man' t'pes of c+aims that appear to be covered

b' II1391(a) and (b)(2) $. I1==(b) restricts venue in patent infringement actions

iii) $ception for local actions2

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(1) ertain actions re+ating to interests in +and which must be prosecuted in the count' or district in which the +and is +ocated

(2) >ransitor' action " an action that is not a +oca+ action and ma' be brought in an' proper venue

f) Henue in ases /nvo+ving orporations

i) I1391(c) " defines corporate residence as an' istrict in which the corporation issubect to persona+ urisdiction(1) /nc+udes p+ace of incorporation0 etensive production faci+ities0 minimum contacts

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(1) good argument for transferring if the c+aim did not arise in the state and ∆5s activities

are comp+ete+' unre+ated to the action before the courti#) EE of a corporation if neg+igence occurs in the course of wor;0 it is a minimum contact

of the corporation because the contacts of the corporation5s agents whi+e acting on its beha+f are attributed to the corporation

#) >ransient2 persona+ urisdiction (that obtained b' service of process) does B<> app+'

to corporations#i) General in persona! jurisdiction rationa+e is that etensive corporate presence w*in

the state reduces the inconvenience of +itigation and affi+iates the corporation with thestate in such a substantia+ wa' as to ma;e it fair to sue it there for an' c+aim. /f that presence eists at the time the suit is brought0 the rationa+e is satisfied.

#ii) Same 3 rings must a+so be satisfied if a suit is brought in state court.(1) Oroad subect matter urisdiction(2) Henue ana+'sis depends on that state5s statute(3) :ersona+ urisdiction ana+'sis +i;e+' to be the same no matter what ct s'stem.

#iii) 6emova+ na+'sis(1) ase must have been w*in the origina+ subect matter urisdiction of the federa+ ct

(2) 6emova+ barred if an' ∆ is a citiCen of the forum statei) /n an' state where the corporation does enough business to support genera+ in personam

urisdiction0 the diversit' and persona+ urisdiction rings wi++ be satisfied.(1) #owever0 venue wi++ sti++ on+' be proper in those districts in which it does business.

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PART TDO: STATE ,AD IN &E-ERA, COURTS

) EAS+ ERIE "p/ 408)

a) >he 6u+e of S!ift v. 0yson i) Rules o -ecision Act (17890 6&) " >he +aws of the severa+ states ?ecept where

otherwise provided@ sha++ be regarded as the ru+es of decision in tria+s at common +aw2ii) Dustice Stor' interpreted the +aws of the severa+ states2 in the 6& to refer only to the

statutes and certain estab+ished +oca+ usages of the state0 not to udicia+ decisionsinterpreting gen. princip+es of common +aw(1) edera+ ct shou+d eamine a++ the common +aw authorities to ascertain the proper ru+e(2) hoose the right ru+e of consideration0 rather than fo++ow a ru+e some other udge

deemed to be the right one.

b) >he :hi+osophica+ Underpinning of S!ift

i) :remise that a court does not $ake +aw but mere+' fins or dec+ares +aw(1) transcendenta+ bod' of +aw2 (#o+mes)0 brooding omnipresence2

ii) :rob+ems(1) >he +aw cou+d be different in separate states if the +egis+ature so dec+ared it(2) Black - White 0a1ica% v. Bro!n an 2ello! 0a1ica% (U.S. 19E8) " federa+ ct had the

authorit' under S!ift to reach its own conc+usion on the common +aw issue ofwhether such ec+usive contracts shou+d be enforced. (compan' had reincorporatedin >ennessee to then bring suit in federa+ district court in Aentuc;'Qforumshopping)

c) >he %ega+ 6ea+ist ttac; on S!ift i) #o+mes dissent in Black - White 0a1ica% attac;ed the basic phi+osophica+ premise

(1) Out there is no such bod' of +aw.2(2) >he +aw is a set of ru+es +aid down b' those w*the power to do so0 to govern behavior

in a given p+ace in a given time.ii) So0 the +aw can be one thing in one state and another in a second state different

+egis+atures have eercised their authorit'iii) $ach ru+e ma' be right2 in the sense that it is appropriate for its time and p+ace0 but it is

not right2 because it is the one true ru+e for a++ time on a particu+ar issue.i#) >he le.al realist shou+d as; what bod' has the authorit' to ma;e the ru+es governing the

issue⇒ usua++' the states.

d) >he 3rie &ecisioni) <verru+ed S!ift !. 0yson for severa+ reasons

(1) S!ift fai+ed to achieve the goa+ of uniformit'⇒ gradua+ accumu+ation of genera+

common +aw2 did not induce state udges to recogniCe the rightness2 of thosedecisions

(2) edera+ practice of ma;ing common +aw had +ed to grave discrimination in the

administration of ustice⇒ S!ift had introduced diversit' in favor of out-of-state ∏s

(3) Unconstitutiona+⇒ authoriCed federa+ udges to ma;e2 +aw in areas in which the

federa+ gov5t had no de+egated powers

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(1) 6eected b' the Farren ct in favor of a !odiied outco!e'deter!inati#e test (a) Fhether a federa+ procedure is outcome-determinative must be viewed in +ight of

the po+icies under+'ing 3rie0 to prevent forum shopping and ine,uitab+eadministration of the +aws

(2) onc+uded in this case that the test did not re,uire the fed ct to substitute the state ctru+e for its own

e) #anna :art E &istinct na+'sis for edera+ 6u+es onf+ictsi) 6: are officia++' promu+gated b' the U.S. Supreme t under the 6u+es $nab+ing ct

(6$) and imp+icit+' endorsed b' ongress(1) ongress and the St have broad constitutiona+ authorit' to promu+gate an' ru+e that

is arguab+' procedura+ii) #anna ct endorsed an entire+' dierent anal(sis for cases in which an officia+ 6:

conf+icts w*state +awiii) :oint due to #anna5s broad construction of the constitutiona+ and statutor' authorit' to

promu+gate the edera+ 6u+es0 a part' who argues that a federa+ ru+e is be'ond the bounds of federa+ authorit' because it is not procedura+2 faces a ver' steep uphi++ batt+e

i#) 6$ 6u+e0 though procedura+ under the first subsection of the 6$ because itregu+ates the udicia+ process0 is inva+id under the second if it impinges on substantiverights

#) Ruestion what eact+' is substantive2P

f) ramewor; for na+'sis

Conlicts %etBeen a &ederal

Constitutional Pro#ision and State ,aB

>he onstitution is the supreme +aw of the+and2 (rt. H/0 E)0 and its provisions app+'even if the' conf+ict w*state +aw (substantiveor procedura+)

- E3 -





iii) Fhat differences are sufficient to +ead to ine,uitab+e administration of the +aws2P(1) &iscrimination(2) #anna :art /5s modified outcome-determinative test is more narrow than Mor;5s(3) tough substance*substance distinction between the ana+'ses of #anna :art / and //

i#) Fhat is the current status o Byrd P(1) Her' much a+ive man' +ower federa+ cts re+' on Byr5s emphasis on the importance

of the federa+ interests as a factor in reso+ving conf+icts under #anna :art /.

h) $amp+esi) 2ork " ran;furter conc+uded that fed cts shou+d fo++ow state ru+es if the difference

between the state and the federa+ ru+es cou+d be outcome determinative2ii) Byr " fed cts must fo++ow state ru+es that define the rights and ob+igations of the

parties2 (su%stanti#e ri.5ts) which the federa+ gov5t has no authorit' to create(1) ed ct shou+d genera++' defer to state ru+es in matters of form and mode2

(procedure) if the' are +i;e+' to be outcome determinative (for uniformit')(a) Un+ess countervai+ing considerations re,uire app+ication of a federa+ ru+e

(2) :rob+em does not specif' what federa+ po+icies wi++ outweigh the 3rie*2ork po+ic' of

assuring that diversit' cases come out the same in state ct and federa+ ct(a) $. 6ight to ur' tria+ ('es)

iii) State 6u+e (or statute) v. 6:⇒ #anna :art E (arguab+' procedura+2 test)

(1) 6: app+ies un+ess inva+id(a) Un+ess abridges0 en+arges0 or modifies substantive rights (mur;')

(2) #eav' presumption of va+idit' accorded to 6: (guide procedure0 too)(3) 6ationa+e fed gov5t has authorit' to regu+ate procedure in federa+ cts0 inc+uding

matters can rationa++' be c+assified as procedura+(a) $. 6: 1! an amendment wi++ re+ate bac; if it wou+d re+ate bac; under state

+aw

i#) State 6u+e (or statute or practice) v. edera+ Dudicia+ :ractice ⇒ #anna :art 1

(1) Ruestion is whether the twin aims of 3rie wou+d be compromised b' a++owing thefedera+ cts to ignore the state statute in favor of their usua+ practice (fortuit'2)(a) orum shopping(b) ine,uitab+e administration of the +aws2

#) State 6u+e (or statute) v. edera+ %aw ⇒ #anna :art 1 (see above)

(1) /n a++ these cases0 it is the nature of the federa+ provision0 not the competing state provision0 that determines the ana+'sis.

(2) /ssue is when federa+ +aw is va+id and∴app+ies in federa+ ct

(a) pp+icab+e if it governs the +itigation and va+id if it passes the #anna :art 1 test(3) edera+ +aw wi++ app+' despite a conf+icting state provision because it is the supreme

+aw of the +and2(a) ust be constitutiona+

#i) State 6u+e (or statute) v. edera+ onstitutiona+ :rovision ⇒ #anna :art E (see above)

#ii) Oe aware that the t'pe and measure of damages recoverab+e is usua++' governed b' state+aw (no federa+ authorit')

- E! -



44) ERIE AN- STATE CHOICE O& ,AD: "p/ 4@0)

a) >he :rob+em of hoosing the :roper State %awi) C5oice o laB " the need to choose a bod' of substantive +aw to app+' to the dispute

before the courtii) 6u+e the court shou+d app+' its own ru+e0 the +aw of the state where the suit is brought

(1) &oes not app+' in a++ cases(a) Fou+d obvious+' encourage Πs to forum shop

(b) :o+ic' unwise to decide a controvers' under a substantive ru+e comp+ete+'foreign to the events in dispute"i) actors substantia+ connections0 epectations0 state interest"ii) /f there is a strong connection to another state0 man' cts wou+d choose to

app+' the substantive +aw of the other state"iii) 6esu+t ma' be that a ct in one state hears the suit but chooses to app+'

the substantive +aw of another state

b) pproaches to hoice of %aw " when to choose the +aw of another state instead

i) odern approach2 " weigh the interests of each affected state in app+'ing its +aw to thecase

ii) pp+' the +aw of the state with the most significant re+ationship2 to the case in +ight of po+ic' considerations(1) epectations of the parties(2) the po+ic' interests of the states with connections to the case0(3) uniformit' in enforcement

iii) >he se+ection of the app+icab+e +aw wi++ depend on the choice of +aw approach of thecourt in which the suit is fi+ed.

c) edera+ ourts hoosing State %aw

i) hoice not on+' of state cts in different states0 but a+so federa+ cts in each of those statesii) Kla1on v. Stentor Manufacturing Co. (U.S. 191) " he+d that the po+ic' under+'ing 3rie

mandates the application o t5e oru! states c5oice o laB rules as Bell as its

su%stanti#e laB (1) edera+ ct must do whatever the state ct within that state wou+d do

(2) 6ationa+e 3rie teaches that ∏s shou+d not obtain an advantage due to the accident

of diversit'2 that the' wou+d not have in state court ⇒ fed ct must do whatever state

ct wou+d do(3) ounterargument Kla1on impedes deve+opment of conf+icts of +aw and promotes

forum shopping(4) Kla1on has been reaffirmed in subse,uent St opinions

iii) Hertica+ uniformit' between state and federa+ cts w*in each statei#) #oriConta+ uniformit' destro'ed among the federa+ cts in different states

#) 3rie has not ended forum shopping for a more favorab+e substantive +aw ⇒ it has ust

changed the ru+es of the game

(1) Πs ma' get the same resu+t b' choosing between federa+ cts in different states or

between state courts in different states

d) $amp+es

- EG -

















iii) #$A for independent basis for subect matter urisdiction and then for supp+ementa+ urisdiction

i#) I!pleader c+aims must arise out of the same set of facts as the main c+aim to satisf' the

re,uirements of 6u+e 1 ⇒ ∴the' wi++ meet the common nuc+eus test of Gi%%s and the

statutor' test of I13G7(a)

#) Supp+ementa+ urisdiction etends to c+aims b' or against other parties0 even if the Π has

not asserted an' urisdictiona++' sufficient c+aim against the added part'.

- 3 -





"i) Fou+d a++ow one citiCen from a state to sue another in federa+ ct (evading thecomp+ete diversit' re,uirement of Stra!%rige)

"ii) 6ationa+e supp+ementa+ urisdiction shou+d not provide a means of evadingthe comp+ete diversit' re,uirement

- 3G -



PART &OUR: STEPS IN THE ,ITIGATION PROCESS

4?) SER7ICE O& PROCESS IN THE &E-ERA, COURTS "p/ *?;)

a) &ue process of +aw2 under the fourteenth amendmenti) uarantees parties the basic right to notice of a ct5s intention to adudicate their rights

and an opportunit( for those parties to %e 5eard ii) /n civi+ suits0 this re,uirement of notice is satisfied b' service of process

(1) Service of the initia+ notice to the ∆ of the fi+ing of a +awsuit against him

(2) Botifies the ∆ that he has been sued and informs him that the ct intends to proceed to

adudicate his rightsiii) overned b' the e+aborate provisions in 6u+e

b) >he 6e+ation of Service of :rocess to :ersona+ Durisdictioni) 1E(b)(!) motion

(1) otion to dismiss for insufficienc' of service of process(2) ttac;s the ade,uac' of the method used b' the Π to give the ∆ notice of the action

ii) 1E(b)(E) motion

(1) ha++enges the ct to eercise persona+ urisdiction over the ∆

c) $amp+es

i) Burnha$ " service of process in the state confers urisdiction over an iniviual ∆

(1) &oes not suggest that a corporation is subect to persona+ urisdiction in a statesimp+' because an officer is served whi+e there for an unre+ated purpose

ii) 6u+e G=(b) Relie ro! jud.!ent

(1) ives a udge discretionar' power to undo the fina+it' of a udgment for various

reasons0 inc+uding inadvertence0 surprise0 or ecusab+e neg+ect2 (6u+e G=(b)(1)) andan' other reason ustif'ing re+ief from udgment2 (6u+e G=(b)(E))

(2) 6ationa+e a++ow the ct to re+ieve a part' from the effect of a udgmentQeven a va+id udgmentQwhen fairness supports reopening the case ($. +ac; of actua+ notice)

(3) Dudge might refuse for other po+ic' reasons ($. upsetting epectations of parties)iii) ost cts have he+d that a federa+ ct can eercise urisdiction under the ifth mendment

over a ∆ who has contacts an'where in the United States

- 37 -





(4) a' not a+wa's be eas' to determine whether a comp+aint fai+s to state a c+aim at theoutset

d) $amp+es

i) 6u+e 1E(g) provides that a ∆ who chooses to ma;e a pre-answer motion must inc+ude in

that motion a++ of the 1E(b) (and (e)) defenses she has at the time

(1) n' of the defenses that are omitted from the motion are waived w*the eception ofthose preserved b' 6u+e 1E(h)(E) and (3)

(2) 6ationa+e prevents ∆ from nic;e+ and diming the Π be repeated motions to dismiss

on different grounds(3) 6u+e 1E(h)(1) provides that these defenses are waived if

(a) (a) the ∆ ma;es a pre-answer motion and +eaves them out0 or

(b) (b) ∆ answers and +eaves them out

ii) 6u+e 1E(g) re,uires conso+idation of 1E(e) motions (for a more definite statement)iii) A!%i.uit( in motion to dismiss for +ac; of su%ject !atter jurisdiction

(1) %anguage of 6u+e 1E(g) wou+d support that motion is barred if not raised in first

response (because it is not an eception +isted in 1E(h)(E))0 but(2) 6u+e 1E(h)(3) provides that the eception to subect matter urisdiction ma' be raisedan'time

i#) $ven if ∆ unab+e to determine whether venue is proper0 ru+es re,uire immediate assertion

of the defense(1) :ossib+e so+ution move for etension o ti!e to ile a response (6u+e G(b))

#) >actica+ advantages of moving to dismiss rather than answering

(1) ∆ ma' avoid0 temporari+'0 the Π5s a++egations

(2) AnsBer re9uires response to substantive a++egations in the comp+aint

(a) 6u+e 8(b) - ∆ must ma;e admissions or denia+s

(b) 6u+e 8(c) - ∆ must raise an' affirmative defenses

(c) 6u+e 13 " must assert an' counterc+aims

- 39 -





(1) Pri#ile.e " some po+ic' favoring confidentia+it' is udged to be more compe++ingthan access to the evidence

iii) Attorne('client pri#ile.e " bars in,uir' into communications between a c+ient and hercounse+ in the course of +ega+ representation(1) 6ationa+e effective representation re,uires fu++ and fran; communication between

+aw'er and c+ient. 6p8ohn v. 6nite States (U.S. 1981)

(2) ommunication wi++ be inhibited if opposing counse+ wou+d +isten in2 on thesecommunications b' as;ing about them at tria+ " or in discover'

i#) <ther privi+eges recogniCed b' cts priest and penitent0 doc and patient0 ps'chotherapistand patient0 #*F

#) :rivi+eges ma' be created b' state or federa+ common +aw or statute or in the U.S.onstitution.

#i) :oint recogniCe wh' cts might choose to protect information despite its re+evance0 andthat where the' so0 the information need not be disc+osed in discover'.

e) Dor6 Product2 <bectionsi) Oars production of certain materia+s deve+oped in anticipation of +itigation

ii) #ick$an v. 0aylor (U.S. 197) - Π5s counse+ in a wrongfu+ death case sought discover'

of defense counse+5s notes of interviews with various witnesses to the tugboat sin;ingthat caused death

(1) +so re,uested0 through interrogatories0 the substance of other interviews that the ∆5s

+aw'er had conducted but had not written down ⇒ wanted ortenbaugh to write out

his memor' of the interviews in response to the interrogatories(2) rgued that a++owing this discover' wou+d improper+' interfere w* the privac' of his

tria+ preparation(3) Fhen the case was decided0 6u+e EG provided no ep+icit eception for menta+

impressions2 contained in the fi+es and minds of the attorne'(a) >roub+ing ver' difficu+t to separate factua+ information in tria+ preparation

materia+s from the thought processes of the +aw'er who deve+oped them(b) oncern that a++owing discover' of tria+ preparation materia+s wou+d a++ow

+aw'ers to ride on their adversar'5s coattai+s in preparing for tria+(c) oncern about +aw'ers ending up as witnesses in their own cases if the

statements the' produced contradicted other testimon' from the same witness(4) &enied production of the re,uested information(5) #e+d that written statements given b' witnesses might be subect to discover' if the

part' see;ing discover' made a sufficient showing of need for the materia+ andinabi+it' to obtain it through other means. t a+so epressed considerab+e doubt thatan attorne'5s menta+ impressions or persona+ notes on a witness interview wou+d ever be subect to discover'.

iii) 6u+e EG(b)(3) codified 1Bor6 product2 doctrine (1) Standard documents and things prepared in anticipation of +itigation can on+' be

obtained in discover' if the re,uesting part' demonstrates that she has substantia+need for the materia+s and cannot obtain substantia++' e,uiva+ent information throughother means w*o undue hardship

(2) $ven where such a showing is made0 the menta+ impressions0 conc+usions0 opinionsor +ega+ theories if an attorne'2 sha++ be protected from disc+osure

(3) >hree cate.ories of wor; product2

- 1 -













- 7 -



*) -ISMISSA, &OR &AI,URE TO STATE A C,AIM COMPARE- TO SUMMAR+

$U-GMENT "p/ 0?8)

a) &evices ∆s ma' use to cha++enge the merits of the Π5s case before tria+ (pretria+ reso+ution)

i) 1E(b)(G) motion2 " to dismiss for fai+ure to state a c+aim on which re+ief can be grantedii) 6u+e !G " motion for summar' udgment

b) >he 6u+e 1E(b)(G) otion

i) ∆ ma' move to dismiss the Π5s comp+aint on the ground that it fai+s to state a c+aim that

entit+es the Π to an' form of re+ief

ii) >he wrong2 that the Π describes is not recogniCed as a vio+ation of an' +ega+ rights

(1) t wou+d not be ab+e to grant damages or other re+ief to the Π even if he proved a++

the facts a++egediii) Standard whether the comp+aint itse+f states a +ega++' sufficient c+aim

(1) ssumes that the facts are true and the Π wi++ prove them

(2) :ure+' +ega+ ,uestion whether0 if the Π proves the a++egations in the comp+aint0 he

wi++ have estab+ished a cause of action entit+ing him to some form of re+ief from thecourt

i#) ts give ever' benefit of the doubt to the Π in deciding the motion

(1) Conley v. Gi%son (U.S. 19!7) " he+d that a comp+aint shou+d not be dismissed under

6u+e 1E(b)(G) un+ess it appears be'ond doubt that the Π can prove no set of facts in

support of his c+aim which wou+d entit+e him to re+ief2(2) :+eadings must be +ibera++' construed in favor of sustaining the comp+aint " ct can

infer what the Π is a++eging

#) >'pes of deecti#e co!plaints that are vu+nerab+e to dismissa+

(1) Π has sought re+ief for acts that are not proscribed under current +aw

(2) Π

has fai+ed to a++ege the necessar' e+ements of a c+aim that0 if proper+' p+eaded0wou+d state a sufficient c+aim

(a) if an oversight0 ct wi++ a++owΠ to amend the comp+aint0 and suit wi++ proceed

(b) if Π cannot a++ege the necessar' e+ement0 the comp+aint is fata++' defective

c) $amp+esi) 6u+e 1E(b)(G) motion is avai+ab+e to reso+ve difficu+t issues of +aw as we++ as c+ear ones

(1) Some cts ma' be re+uctant to grant motions to dismiss if the state of the +aw is

unsett+ed⇒ ma' sense that the issue is c+ose and cou+d be better decided on a fu++

record after discover' or tria+ii) or purposes of the motion to dismiss0 ct on+' ;nows what is in the comp+aint

(1) Under Conley v. Gi%son0 ct must as; whether the Π0 on the a++egations of thecomp+aint0 cou+d prove an' set of facts that wou+d entit+e her to re+ief

(a) /f the ct can reasonab+' infer that Π has stated a va+id of0 must den' the

motion to dismiss

(2) Πs plead .enerall( in order not to revea+ wea;nesses in their cases or simp+' to

avoid giving the opposing part' an' free discover'

(a) ∆ wi++ use SD motion to f+ush out such wea;nesses an'wa'

- 8 -



(3) Π ma' p+ead speciicall( because it is more he+pfu+ to the ct and ma' trigger more

specific responses from the ∆ in his answer

iii) /f Π did not a++ege an e+ement because he has no support for his theor'⇒ dismiss

i#) 6u+e 1E(h)(E) " authoriCes ∆ to raise the obection of fai+ure to state a c+aim in an'

p+eading0 b' motion for udgment on the p+eadings or even at tria+

#) &istinguish +ega+ sufficienc' of the c+aim from the factua+ issue of whether thea++egations are true⇒ factua+ issues cannot be reso+ved b' 1E(b)(G) motions

d) Summar' Dudgment &istinguished (6u+e !G)

i) :urpose a++ow ear+' reso+ution of cases in which the Π meets the minima+ burden to

p+ead the e+ements of a compensab+e c+aim0 but cannot prove one or more of thosee+ements

ii) Su!!ar( jud.!ent " entr' of udgment b' the ct in favor of either the Π or the ∆ w*o

tria+(1) Oefore evidence is presented to the ur'

iii) Standard ppropriate on+' if the evidence before the ct demonstrates that there are no

disputed issues o !aterial act to be tried and that the moving part' is entit+ed to udgment on the undisputed facts (6u+e !G(c))

i#) Motion cha++enges Π5s abi+it' to prove an essentia+ e+ement of his c+aim

(1) Fhen the motion is made and ade,uate+' supported0 Π must respond b' producin.

ad!issi%le e#idence that tends to prove the cha++enged e+ement (6u+e !G(e))(a) Such evidence wou+d demonstrate that there is a genuine issue of materia+ fact2

as to the issue(b) Ourden to produce +ega++' competent evidence upon which a ur' cou+d reso+ve

the factua+ issues in his favor"i) /f there is a genuine issue of materia+ fact0 the ur'5s ro+e is to reso+ve it"ii) >he udge5s ro+e is on+' to determine whether the parties5 evidence revea+s a

factua+ dispute(2) /f countervai+ing evidence is produced b' Π0 SD is denied

(a) SD intended on+' to determine whether there are genuine+' contested issues ofmateria+ fact0 B<> to tr' the facts

#) 6ationa+e /f there is no factua+ dispute for the ur' to tr'0 the ur' wou+d have no

+egitimate basis on which to find for the Π. verdict for him cou+d on+' ref+ect

irrationa+ decision-ma;ing. SD avoids this ris;0 as we++ as the de+a' and epense oftr'ing unprovab+e cases.

#i) motion for SD ma' be supported b' affidavits0 depositions0 answers to interrogatories0admissions0 and admissib+e documents (6u+e !G (c)0 (e))(1) ateria+s are not a+wa's admissib+e at tria+ themse+ves0 but the' demonstrate that the

part' has access to evidence that wou+d be admissib+e and supports the c+aim(2) ++egations in the p+eadings are not admissib+e evidence (are on+' assertions as to

what the parties can prove)

e) Summar' Dudgment in <ther >'pes of asesi) ases in which parties agree on the under+'ing facts but disagree as to the +ega+

imp+ications of those facts

(1) Π presents +ega+ argument that the evidence satisfies an e+ement

- 9 -



(2) otion frames a sing+e dispositive issue for the court

(3) /f the ct agrees with the Π5s +ega+ argument0 it wi++ den' SD

(4) /f the ct decides the e+ement is not satisfied ⇒ wi++ enter udgment for the ∆ because

he is entit+ed to jud.!ent as a !atter o laB2ii) 6eso+ve individua+ c+aims in a mu+ti-c+aim +awsuit

f) $amp+esi) Ad!issi%le e#idence " deemed sufficient+' re+iab+e0 under estab+ished ru+es of evidence0

for a ur' to hear and consider in reaching its decision of facts(1) Since the point of the SD motion is to see if there is an' evidence on the cha++enged

a++egation for the ur' to consider ⇒ the evidence used to support the motion shou+d

be evidence that the ur' cou+d hear at tria+ii) 6u+e !G(c) " no genuine issue2 of materia+ fact

(1) &ispute must be on an issue that is materia+ to the right to recover(2) A!%i.uit( in 6u+e !G

(a) !G(c) provides that SD can on+' be granted if there is no genuine issue as to any materia+ fact2"i) SD often decided even if there are unreso+ved issues in the case"ii) So0 the +anguage must mean no factua+ dispute concerning the particular

ele$ent of the clai$ that is challenge %y the $otion

iii) t ma' grant partial su$$ary 8ug$ent for the Π (on one e+ement)

i#) 6u+e !G(e) " SD granted if appropriate2 " where the moving part'5s materia+s wou+dsuffice to estab+ish that part'5s version of the facts that the %urden s5its to the opposing part' to introduce contrar' evidence(1) /f the evidence offered cou+d give rise to two inferences0 one of which wou+d support

the opposing part'5s case0 ct wou+d assume ur' wou+d ma;e that inference and den'SD (even if opposing part' does not fi+e materia+s)

(2) !G(e) provides that a part' ma' not avoid SD b' resting on contrar' a++egations in thecomp+aint

(a) SD motion cha++engesΠ to show he can prove it0 not ust a++ege it

#) Fhether the SD motion shou+d be granted turns on whether the moving part' can get SD b' pointing out that the part' w*the burden of proof +ac;s ade,uate evidence to meet that burden0 without producing an' evidence of its own to disprove the a++eged facts

#i) Celote1 Corp. v. Catrett (U.S. 198G)

(1) /ssue whether Π5s decedent had been eposed to asbestos products

(2) #e+d a part' can support a SD motion w*materia+s that show that the part' who hasthe burden of proof of an essentia+ fact cannot prove that fact

(3) #e+d if the ∆ demonstrated that there was no evidence in the record to support Π5s

c+aim of eposure to its product0 and the Π did not produce evidence tending to prove eposure ⇒ ∆ cou+d get SD w*o presenting an' evidence to show +ac; of

eposure

(4) ∆ entit+ed to D% if Π0 who he+d burden of proof on the issue0 had no evidence to

carr' the burden

(5) Π5s put in a difficu+t position must aggressive+' deve+op evidence before the motion.

/f Π does not0 wi++ +ose because he has not gathered the evidence necessar' to prove

it.

- != -













(1) ust be fi+ed within 4 da(s of entr' of udgment(2) ++ows the udge to vacate the verdict and order the case retried in order to assure the

parties a fair tria+ procedureii) >wo categories of cases in which the cts have granted new tria+s

(1) Bew tria+s for error in t5e trial process

(a) :o+ic' ever' +itigant is entit+ed to due process of +aw02 inc+uding a fair tria+

procedure before his rights are determined(b) $rrors of this sort ma' taint the ur'5s decision-ma;ing process0 +eading it to

consider inappropriate information in reaching a verdict or to use the wrong ru+esof +aw in assessing +iabi+it' or damages

(2) >ria+ process was fair but the resu+t was wrong #erdicts a.ainst t5e Bei.5t o t5e

e#idence (a) Harious standards

"i) Dudge ma' grant a new tria+ if the ur'5s verdict is against the c+ear weight0the overwhe+ming weight0 or great weight of the evidence4

"ii) when it is ,uite c+ear that the ur' has reached a serious+' erroneous resu+t(b) Dudge cannot disp+ace the ur' simp+' because he disagrees with the ur'

"i) Out ma' order a new tria+ when the evidence is strong enough to rationa++'support the ur'5s verdict0 but he be+ieves the ur'5s verdict is serious+'erroneous (point R on the diagram)

"ii) Fhen the evidence is within the arena for ur' decision OU> udge disagrees(3) /mportant dierence between (1) and (E) on appe++ate review

(a) >ria+ error can be reviewed de novo b' the court of appea+s(b) gainst the great weight of the evidence inc+udes ba+ancing of evidence which

usua++' on+' the tria+ udge has a fu++ opportunit' to observe"i) 6are for appe++ate udges to second-guess fB> on this ground"ii) >rend review new tria+ grants under an a%use o discretion standard

1. Gasperini v. Center for #u$anities0 Inc. (U.S. 199G)

a. &oes the seventh amendment mandate this particu+ar resu+tP $ven ifnot0 federa+ cts have adopted ru+es about this. ?er;en Use the B2R' >$S>@

iii) Dudge ma' consider the credibi+it' of witnesses(1) cting as thirteenth uror in ma;ing an independent assessment of the evidence(2) &ecides whether it is wou+d serve the ends of ustice to have another ur' hear the

casei#) rguab+'0 the udge is more intrusive w* fB> than with D%

(1) Standard for granting a new tria+ is +ess stringent(2) ounterargument it is a new ur'0 not the udge0 that wi++ reconsider the case if the

motion is granted

#) 6efer to diagram on +annon0 p. 11 T5e $ud.es PoBer to -isplace t5e $ur(s7erdict

$vidence

wea;er evidence for Π $ven+' stronger evidence

for Π

← Oa+anced →

- !G -













i) jud.!ent need not be right to prec+ude further +itigation4 it need on+' be inal and on

t5e !erits.(1) /f ec+usion of evidence was improper in the first suit0 appea+ rather than re+itigate

the same issue in a second suit ( Moitie)ii) 6es udicata bars not on+' those c+aims that were asserted in the first suit0 but a+so an'

others arising out of that transaction or occurrence that cou+d have been asserted but

were not. (Π cannot ust switch theories⇒ shou+d inc+ude mu+tip+e theories in firstcomp+aint)

iii) ts genera++' reect re+itigation for future damages for inuries surfacing after first udgment

(1) (:o+ic' fina+it' of udgments4 6u+e Π must recover for a++ her damages in the

origina+ action0 w* eception in some asbestos cases)

i#) $ver' potentia+ Π who suffers inur' from a transaction or occurrence has a distinct

c+aim for res udicata purposes#) Separate breaches of contract in successive 'ears are dierent occurrences that ma' be

sued on separate+' (if the' cou+d not have been raised in the same action)#i) #$A to see if urisdiction has a compu+sor' counterc+aim ru+e (6u+e 13(a))#ii) &ismissa+ for +ac; of subect matter urisdiction does not constitute udgment on the

merits.#iii) Summar' udgment and D% are considered to be on the merits.

i) enera+ ru+e Πs in federa+ ct must assert their supp+ementa+ c+aims or +ose them b'

operation of res udicata.) ases must be decided according to the +aw at the time of tria+ and not re+itigated if that

+aw changes (appea+T4 Moitie)⇒ wou+d undermine 6D po+icies of udicia+ econom' and

certaint' of udgmentsi) aorit' ru+e in federa+ cts ct ma' not grant relie ro! jud.!ent due to a change in

the substantive +aw once the period for appea+ has passed

(1) Out0 if the +aw changes whi+e the period for appea+ is sti++ running0 man' cts wou+da++ow Π to see; re+ief from udgment on this ground.

- GE -



*3) RES $U-ICATA AN- THE RU,ES O& $OIN-ER "p/ 33;)

a) <ught to be a c+ose re+ationship between the parties5 right to oin c+aims in their first +awsuitand the scope of res udicata in subse,uent suits between themi) >he s'stem ought to offer parties a chance to have a++ their c+aims heard0 through either

(1) %imited c+aims in mu+tip+e suits0 or

(2) u+tip+e c+aims in a sing+e suit(a) edera+ cts (and man' state s'stems) choose this route(b) /mp+emented b' etreme+' %road rules .o#ernin. pleadin. and joinder

"i) 6u+es (8)(a)(3)0 8(e)(E)0 130 10 180 E=

"ii) %ibera+ oinder ru+es give Πs broad power to oin a++ their theories of

recover' in initia+ suit"iii) >he $ay of these ru+es means $ust when the effects of 6D are

considered."i#)$ceptions when initia+ oinder of a particu+ar c+aims is not avai+ab+e under

6u+e 18(a)ii) T5eories that cou+d have been oined are genera++' barred

iii) Scope of permissib+e oinder of parties is much broader than the dimensions of a sing+ec+aim2 for res udicata purposes(1) /n man' cases0 c+aims against additiona+ parties cou+d be oined under the 6u+es but

wi++ not be barred b' res udicata if the' are not

(2) Π5s rights to recover from separate ∆s are considered distinct c+aims2 under res

udicata ana+'sis0 even though the' arise out of the same occurrence

(3) Same parties2 re,uirement not met since the ∆s differ in the two actions

(4) :o+ic' Π is the master of his c+aim (favor freedom of choice over efficienc')

(5) #owever0 the first action ma' have some prec+usive effect(a) Bloner(0ongue a%oratories* Inc. v. 6niversity of Illinois ,ounation (U.S.

1971)(b) /nhibits freedom of choice to some etent0 sinceΠ cannot start action w*a

comp+ete+' c+ean s+ate

b) $amp+es

i) 6u+e E= " sa's Πs $ay sue K 1 ∆0 not re,uired to do so

ii) 6es udicata " a++ theories for recover' arising out of a sing+e transaction or occurrenceconstitute a sing+e c+aim2 for prec+usion purposes

(1) pp+ies not on+' to Πs0 but to a++ parties in the suit who have asserted c+aims

iii) Inter#ention (1) 6u+e E(b)

(a) :ermissive cts ma' den' for a number of reasons(2) /ntervention as a !atter o ri.5t (6u+e E(a))

(a) &emonstrate preudice (wi++ be barred from future +itigation of c+aim)(b) Bot re,uired of parties (optiona+)(c) #$A on urisdictiona+ prob+ems ($. destro'ing comp+ete diversit')

i#) /n some s'stems0 counterclai!s are B<> compu+sor'⇒ even in these urisdictions0 it is

sometimes he+d that a part' waives his right to sue separate+' on an omittedcounterc+aim if the issues were raised defensive+' in the prior action

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i) <ffensive2 use of estoppe+ and nonmutua+ estoppe+(1) Parklane #osiery Co.* Inc. v. Shore (U.S. 1979) " see net section

d) $amp+esi) na+'sis of co++atera+ estoppe+ issues shou+d a+wa's %e.in with a deter!ination o

B5at Bas decided in t5e irst action.

(1) &ifferent factua+ issues must be +itigated in the new suit(2) o++atera+ estoppe+ does not affect c+aims or defenses that cou+d have been raised but

were not(3) an wor; for either part'

ii) 6e+ief from udgment (6u+e G=(b)(E)) " app+ies on+' to reopen an original action

iii) General #erdict " ur' as;ed to find for Π (and damages) or ∆

(1) /mpossib+e to te++ which issue is decided ⇒ co++atera+ estoppe+ wi++ not bar

re+itigation of either issue(2) Beither ho+ding is entit+ed to prec+usive effect because the +osing part' had no

incentive to appea+ on one arguab+' incorrect ground if the other wou+d support the udgment

i#) &enia+ of motion for SD (or D%) does B<> actua++' decide an issue#) 7alue of invo;ing co++atera+ estoppe+ save +itigation time0 assure same favorab+e resu+t

obtained in first suit

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(1) /f in doubt0 the ct can den' estoppe+.iii) Bloner(0ongue a%oratories* Inc. v. 6niversity of Illinois ,ounation " ct in the second

action must be convinced that the estoppe+ part' had a fu++ opportunit' to +itigate theissue in the first case.

i#) 6easons for the cts to eercise caution in deciding whether to app+' nonmutua+ co++atera+estoppe+

(1) ∆ in the first action did not choose the forum in which the case was initia++' decided(2) 6is;s noted in Parklane

(a) a' +ead to Bait and see2 attitude b' Πs " ho+d bac; from oining in the first

Π5s suit

(b) part' might not have +itigated the issue aggressive+' in the first action if thesta;es were sma++ or the forum inconvenient (+itt+e incentive)

(c) /t ma' not have been possib+e for the +osing part' to +itigate effective+' in thefirst action if the procedura+ ru+es of the ct that decided the first case were morerestrictive than those hearing the second

(d) <ne or more prior inconsistent udgments on the issue ma' suggest that it wou+d be unfair to give conc+usive effect to an' one of them.

d) Bonmutua+ co++atera+ estoppe+ is a form of co++atera+ estoppe+.i) /t must meet a++ the basic prere,uisites for app+ication of estoppe+ii) >he court must also consider the additiona+ factors to determine whether it wou+d be fair

to prec+ude re+itigation of findings from the prior action in a new suit invo+ving a new part'.

iii) Fhi+e mutua+it' has been abandoned in the federa+ cts0 some states sti++ app+' thedoctrine.

e) $amp+esi) $ver' +itigant is entit+ed to &: of +aw before a ct adudicates his rights.

(1) $fficienc' is outweighed b' fairnessii) Bernhar " nonmutua+ co++atera+ estoppe+ " part' see;ing in invo;e estoppe+ was B<> a

part' to the suit in which the issue was initia++' +itigated(1) Standard did the part' being estopped +itigate the issue in the prior action

iii) Mutualit( doctrine " confines estoppe+ to the parties to the origina+ suit or those inpri#it( with the origina+ parties who actuall( liti.ated those issues(1) Durisdictions that have abandoned mutua+it' ct ma' a++ow use of defensive estoppe+

b' a new part'0 so +ong as the part' being estopped was a part' to the prior actionand +itigated the issue there

i#) Oensi#e estoppel " part' not in origina+ action invo;es a finding from the first action

to estab+ish an e+ement necessar' for recover' against the ∆ in both the first and second

suits#) Parklane #$%& that the federa+ cts ma' app+' offensive mutua+ co++atera+ estoppe+ in

situations in which a new Π invo;es estoppe+ to estab+ish an issue that was decided

against the ∆ in the prior suit

(1) t wi++ B<> automatica++' bar re+itigation eamine circumstances from first case(a) de,uate opportunit' to +itigate

(2) &actors a#orin. application o estoppel

(a) Serious inuries indicate strong incentive to defend action vigorous+'

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(b) oreseeabi+it' of future suits from other Πs arising out of same accident

(c) Same ct (federa+P StateP) not +i;e+' to be procedura+ advantages in the secondsuit that were not avai+ab+e in the first

(d) bsence of other actors su..estin. unairness "i) :rocedura+ s'stem in second suit more f+eib+e"ii) ore witnesses avai+ab+e in second suit that were unavai+ab+e in first

"iii) Π de+iberate+' decided not to oin in order to get the advantage of

nonmutua+ co++atera+ estoppe+ w*o ta;ing the ris; of +osing on the issue in thefirst action (burdens ct s'stem w*additiona+ +itigation)

#i) Bonmutua+ estoppe+ cases " a+wa's discretionar' (fu++ and fair opp. to +itigate)

Documents

Advanced Civil Procedure 1