SUBJECT MATTER JURISDICTIONFederal Question, Diversity, Supplemental, Removal--plaintiff or defendant can move case to federal court.

why do they? local sympathies, p or d bias, lawyer more familiar with venuecompetence, preclusion effectprocedural differences (broader discovery in fed. court)timing issues—how full the docket is, delay of removal can matter

State Courts: General JurisdictionKey Point: Federal Courts: Limited subject matter jurisdiction—

must satisfy the Constitution—maximum potential jurisdictionAND federal statutes conferring jurisdiction on the court

Burden of Pleading and Proof on party seeking jurisdiction—plaintiffChallenge and Objection: Either party and any court (sua sponte) can challenge jurisdiction at any time.

allowing waiver would put party decisions before federal lawstrategic delaying can mean SOL has run in other jurisdictions

Constitution Article IIISection 1 Establishes Supreme Court. Authorizes Congress’ creation of distr. and appellate crts courtsSection 2. Jurisdictioncases in law and equity under Constitution, laws of the US, Treatises made under their authoritycases affecting ambassadors, other public ministers and consuls--Supreme Crt has O.J.cases of admiralty and maritime jurisdictioncontroversies to which the US is a partydiversity--disputes between states:

between one state and citizens of anotherbetween citizens of different statesbetween citizens of the same state claiming lands under grants of different statesbetween state or citizens and foreigners—alien diversity

Appellate Jurisdiction—Supreme Crt has it, as to law and fact--though legislature can make exceptionsFEDERAL DIVERSITY JURISDICTION Mas v. Perry, Stawbridge v. Curtis, 28 U.S.C. 1332, 1339Even if diversity is satisfied, fed courts don’t do some subject matter—e.g. familyComplete Diversity Requirement—established by Strawbridge v. Curtis

not in constitution, interpreted predecessor of §1332all parties must be from a different state than all other parties

addition of single party can destroy federal jurisdictiondiversity among defendants, or among plaintiffs, not key.England v. France and Illinois, case dismissedEngland and Illinois v. France and Wisconsin ok

28 U.S.C. 1332 Matter in Controversy, Citizenship of Corporation a) Federal district courts--original jurisdiction where:

matter in controversy > $75,000between citizens of different states or citizens and foreigners

alien admitted to the US for permanent residence equivalent to citizen of statefor purposes of this section, 1335, and 1441

b) enforcement--if turns out to be less than $75,000plaintiff can have costs denied and be ordered to pay costs

c) corporation=citizen of state where incorporated, or principle place of business

insurers have citizenship of insured as well as where incorporated28 U.S.C. 1359 Parties Collusively Joined or Made

Federal court has no jurisdiction if party collusively or improperly joined to invoke federal jurisdictionCitizenship:

State citizenship determined by Domicile=residence + intent to remain indefinitely (Mas v. Perry)determined on date of filing

Ex-pats can’t sue US citizens, because they aren’t citizens of a state and aren’t foreigners?Permanent Residents = citizens under 1332 a2

amendment intended to stop Ill. residents from suing permanent residentsa literal reading can lead to jurisdiction broader than the constitution:

Ill. LPN sues Wisc. LPN, or LPN sues old boss in Francecourts have read exceptions into text to keep it constitutional

Corporations: multiple citizenships—where incorporate and principle place of business 1332 (c)1tests for principle place of business:

nerve center test—where high-level decisions are made muscle, or substantial predominance test—assets, facilities, production

Associations, Unions, etc—same citizenships as their membersAmount in Controversy requirement

if pleading asks for enough money, court can only throw it out if there’s a legal certainty that it couldn’t be recovered1332 (b)—penalty is forced to pay own costs or other party’s cost

each party’s combined claims has to be worth more than $75,000 can’t combine claims of different parties

FEDERAL QUESTION (Osborn, 28 U.S.C.1331)For appeals, guided by Article III—broad under Osborn p.861

Marshall Court held federal jurisdiction for defenses raised and un-raised.Original Jurisdiction limited by narrower interpretation of statute:

28 U.S.C. 1331 The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. (predecessor enacted in 1875)Why have federal jurisdiction on federal question?

expertise—development of it--confusion of state and federal lawSympathetic--Reconstruction—put in place when southern states not sympathetic to federal gov

always true? state courts might sometimes be more sympathetic than federal courtsNo Amount in Controversy requirementWays to Arise Under Federal law:

federal law creates a cause of actionover-inclusive—though not if claim frivolous

if state interests dominate overall claim might still get thrown outunder-inclusive—complete pre-emption doctrine—state law causes of action wiped out

if you allege one, converted to federal law—e.g. LMRAstate law creates a cause of action based on federal law—Merrell Dow

evidence for state claim= violations of federal law (evidence, rebuttal presumption, conclusive)Brennan wanted where necessary and sufficient

novelty not enoughsubstantial federal interest must be at stake --Stevens

(Merrell Dow narrowing Franchise Tax Board—substantial, disputed question)Well-Pleaded Complaint Rule: (Louisville & Nashville RR v. Mottley, Ruhrgas Ag v. Marathon Oilfor removal, pleading must show that cause of action is based on or arises under federal law, w/in 1331

not enough if it arises from the defense (Mottley)why? conservation of resources, appellate review preserves uniformitywhy not? circumvention by the adept—artful pleading—defenses may raise questions just as important%%%%%%%Compulsory counter-claimsDeclaratory Judgment Act could further muddy Well-pleaded Complaint—plaintiffs could plead that they needed a decision on an affirmative defenseHowever, Skelly Oil Co. v. Phillips, p.861—upheld old boundaries of well-pleaded complaint

justification preserving resourcesSkelly extended to state declaratory act judgments too in (unenthusiastic holding)

p.862 Franchise Tax Board v. Construction Laborers Vacation Trust—US 1983Personal jurisdiction and subject matter: Ruhrgas Ag v. Marathon Oil—US 1999—

tho courts usually address subject matter jurisdiction before personal jurisdiction (which can be waived), if not sure about subject matter free to turn to personal.

SUPPLEMENTAL JURISDICTION (Hurn v. Oursler, United Mine Workers v. Gibbs, Palmer v. Hospital Authority of Randolph County, § 1367, Joinder Rules)Jurisdiction over claims that otherwise would not be within the original jurisdiction of the federal courts

Why? fairness—party w/only federal claim can get in, why not party w/ multiple claims?Federal claim must have substance sufficient in itself to get fed. jurisdiction Bell v. HoodPendant Jurisdiction—state claims arising from same facts as federal question.

DiscretionaryClaims as part of action unrelated to federal question—thrown out.Pre-emption--If federal claim preempts state claim, and its thrown out, state claims thrown out too. If out of same nucleus of operative facts, substantially similar grounds

—if same case then constitutionalUnited Mine Workes v. Gibbs (expands Hurn v. Oursler—held when identical grounds, ok)

though final recovery based on state claim, no abuse of discretion to keep federal jurisd.not completely pre-empted by federal lawother factors include efficiency and fairness

Pendant Party—Supr. Ct. anti-supl. jurisdiction rulings (Finley)lead to Congressional back-lash--§ 1367

Ancillary Jurisdiction—jurisdiction for counter-claimsFreeman v. Howe—necessity. otherwise would have had no forum.Moore v. NY Cotton Exchange p.866—judicial economy—

sued cotton exchange under federal anti-trust for refusing to give quotes (dismissed)counterclaim asked for injunction to stop using quotes. Plaintiff said no jurisdictioncourt held for jurisdiction on economy grounds.

Joinder Rules—very liberal in Federal Court4 ways to join claims

13 a)—compulsory counterclaim—same nucleus of operative facts b)---permissive counterclaim--whatever g)—crossclaims against co-parties

18—permissive joinder of claims5 ways to join parties

19—sometimes compulsory20—permitted22—join parties in special situation14—inter-pleader provision

defendant can join another defendantplaintiff can join other plaintiffs—same nucleus of operative facts

%%%%%%1 way to do both28 U.S.C. § 1367 Supplemental Jurisdiction –codifies pendant and ancillary jurisdictiona) where original jurisdiction,

supplemental jurisdiction for other claims in action if part of same case or controversy. includes joinder and intervention.

b) if original jurisdiction based on 1332 (diversity), and plaintiffs join parties under 14, 19, 20, or 24, then supplemental claims must be consistent with 1332Kroger had held that complete diversity should be maintained in SJ-prevents evasion of Strawbridgetextually, defendants can add plaintiffs even when it erases diversity—not part of b, included in a

will courts read in exception or not?c) discretion not to grant jurisdiction when:

1. claim raises novel or complex state law issue2. claim substantially predominates over claim or claims over which DC has OJ3. DC has dismissed all claims over which it has OJ4. exceptional circumstances, compelling reasons

CNOF—Gibbs--taken to the constitutional limit here, rather than more restricted as with federal questionwhat is constitutional limit? logical relationship, or same evidence?

easier to join additional party when adding new claims--same CNOF test.easier to layer claims—can have claims between parties neither of whom was there for o.j--PalmerIncentives to over-join to get jurisdiction:

Plaintiff’s incentive: dampened b/c Supplemental Jurisdiction remains open thru course of litigationDefendant’s incentive: too easy for them to sit on plans to get suit thrown out on suppl. jurisdiction

Do courts actually do this? --p.888 constitutional issue got moot before trial, still didn’t dismiss Discretion: if 1367(c) factors present, can use Gibbs factors too—economy, fairness, closeness of facts

2-stage inquiry—1. w/in the factors of 1367(c)—suppl. claims eligible for dismissal? 2. should that discretion be exercised? (Gibbs factors)

Removal and Remand ( §1441, Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc.)Defendants to move suits to federal court—systematic bias towards federal courtmust have oj in federal court--in compliance with procedures set forth in 1446-7exceptions:

diversity—if basis of fed. sub. matter jurisdiction is diversity, and a defendant is in place where action was filed, can’t remove

in removal context, can remand back rather than dismissing.§1441 Actions Removable Generally

(a) civil actions brought in State court of which DCs have OJ may be removed by defendantcitizenship of d’s sued under fictitious names shall be disregarded?

(b) federal question or diversity—when OJ from diversity,

can’t remove if claim is filed in state where they live on grounds of diversity(c) if federal question, allows a defendant with a separate and independent claim

to remove to federal court, leaving co-defendants in state. (p.915)“separate and independent” commonly read as same as supplemental jurisdiction test.if oj over a “separate and independent claim” against one defendant,

can remove entire case even if no oj. ground for removal of counter-claims and cross-claims?prevents plaintiff from locking out of state defendant in state court by adding non-diverse defendantCongress abolished separate and independent for diversity cases, but kept it for federal question.

(d) actions against foreign states(e) (1) can remove if

A. could have been brought under 1369B. supplemental to what could have been brought under 1369

(2) can send it back to State for damages after liability determined (3) can appeal liability decision under 2 for 60 days. (4) can’t appeal remand (5) actions under this subsection are deemed actions under 1369 (6) DC may transfer or dismiss if forum inconvenient1446--removal notice “shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the [complaint].”1446(b) allows removal w/in 30 days of receipt of new motion or paper that shows there’s jurisdiction.

Lovern v. General Motors—newly released police report good enough- (circumstances the same, but little info in pleading)

time limits and notice: ways to start the clock: 1999--Murphy Brothersserve summons and complaint togetherserve them separatelyfile complaint, deliver summons (in jurisdictions where complaint need not be delivered, only filed)

Why? waste of judicial efficiency to remove late--strategic behaviorDiversity grounds--if removable on them, can’t be removed more than a year after suit starts.Nature of claim changes—can usually removeRhenquist is anti-removal and so are some lower courts “strictly construe” statuteDamages/Amount in Controversy concernsSinger v. State Farm--Removed though no damages in pleading—can’t have them under CA lawHuffman v. Saul Holdings--removed though info on size of claim triggered by discovery—99, 10th Circ.

Remand 1447(c) authorizes motion to remand on basis of defect in removal procedure w/in 30 days

can’t remand for discretionary reasons (e.g. crt too crowded)--Thermtron Products 1447(e) allows court to remand if it allows plaintiffs to add nondiverse defendants after removal

wierd to allow non-diverse defendant to be added that will throw case out of court

PERSONAL JURISDICTION Power of a court to bind a defendant with its judgment—relationship between party and state of litigationCentral Question: what’s a sufficient relationship for personal jurisdiction? How do we know its there? Constitutional (power and notice) and Statutory basis required.timing: at the time of filing is what matters for PJTraditional Basis

US Constitution Article IVSection 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

US Constitution Amendment XIVSection 1. due process and equal protection for persons in jurisdiction

Personal Jurisdiction in State Court (Pennoyer, International Shoe, McGee, Hess)Pennoyer—ruling pre due process clause. based on international law –territoriality--principle.--power--basis of adjudication against out of state defendants is ability to touch their in-state property--notice--Service of Process by publication for out of state defendants is insufficient for in personam suits

in personam—power comes from person being in statenotice comes from personal service of process w/in the statesuit on anything you want

in rem—power from property being in statenotice in local publication adequatesuits on property disputes

quasi in rem—when you’re trying to secure judgment with property—publication sufficientsuit can be on anything relating to the person

transient jurisdiction enough—serve plaintiff in a plane when flying over, okconsent exception for defendants out of state—voluntary appearance

e.g. Hess--driving in state means=consent for service on registrar of notice so long as actual notice received by registered mail

Corporation—used to be implied consent where corporation was doing business in the state.

presence—turning on principle place of business and incorporationnow, sufficient minimum contacts (activities) replaces presence International Shoe

“to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.”

relationship between activities that opened company to liability and basis of jurisdictioncontract with substantial state connection sufficient--McGee v. International Life Insurance

Personal Jurisdiction In Federal Court (Millenium, World-Wide Volkswagon, Burger King, Asahi)federal jurisdiction mirrors state courts of state in which it sits.exceptions:

nationwide service of process under certain statutes—securities, anti-trustsometimes defendants can’t show that they have sufficient contacts within any particular state

2 necessary conditions for minimum contacts (Shoe—picked up in Burger King)purposeful availmentexercise of jurisdiction would be reasonable

not enough:foreseeability of contact (World-Wide Volkswagon—balancing test)contract (Burger King)—long-arm statute ok

if purposefully avail, burden on other party to show not reasonablepossibly not as true for consumer contracts

stream of commerce (Asahi Metal)interactive website not enough

Asahi Metal original claims settled—defendants w/cross claims left in court.Stream of Commerce: Asahi makes valves for Cheng Shin. knows they are in California.

purposeful availment—1. no--O’Conner, WC, Scalia, Powell—no action purposely directed to forum State

stream of commerce, awareness, and something else requiredno advertisement, employees, agents property

2. yes--Brennan, White, Marshall, Blackman—stream of commerce, awareness3. no--Stephens- White, Blackman--doesn’t accept 2-prong test-just wants fairness

reasonableness—8 members of court agree that its not.Rule of Thumb: plurality opinion—cobble together majority that results in the narrowest opinion

narrowest= smallest change from previous opinion—doesn’t equal most anti-plaintiffMillenium—lots of internet cases like these out there today—just an example, not the lead case—cf. McGee

passive/active test—interactive website not enough--why aren’t 1-800 numbers and websites enough?interactive + targeting is necessary—seems like O’Connermight matter whether the cause of action has to do with business activities in the jurisdiction

Why standards rather than rules?internet context: distributive costs—only big players could afford to figure out so many jurisdictionsdecision costserror ratesunderlying purposes and fairness

Jurisdiction Based on Power over Property (Shaffer v. Heitner)over-ruling Pennoyer in light of International Shoe

still need minimum contacts for property suits, because ultimately its a persons’ rights in a thing--Shaffer

In Rem—property disputes—get clear title to the whole world—probably meets minimum contacts analysisQuasi in Rem 1—property involved in the lawsuit, but not just a title dispute

probably meets minimum contacts—some issues with fungible property—pre-existing claim, but not against the whole world—say for enforcement of contract to sell land

Quasi in Rem 2—property is just how plaintiff will pay.—majority claims not minimum contactsBrennan’s concurrence and dissent-- thinks there probably are minimum contacts in this case

“a derivative action which raises allegations of abuses of the basic management of an institution whose existence is created by the State and

whose powers and duties are defined by state law fundamentally implicates the public policies of that forum.” Personal Service of Process in a State (Burnham)Personal service isn’t necessary, but is it sufficient?

possibly 8 votes that if unknown or unintentional or involuntary presence, insufficient.Shaffer suggests that old classifications have to be tested by the minimum contacts test

Everybody thinks its sufficient--up in the air b/c of case in 1990—abortion and gay rightsScalia—tradition—pedigree good enough—originalism

we had a tradition for instate—but did we for out of state plaintiffs?Brennan—minimum contacts—in light of modern debatesa fight about constitutional interpretation

Originalism Non-originalismpredictability/certainty? directs the inquiry common law—standards in

fixed in timeproblem: moving up and down levels of abstraction can get different resultwe have a lot of concurrent traditions—subjectivity comes into play

contemporary contextproblem: subjective judges unpredictable

relevant community—who should decide?

legislature—moment of political compromise—better to have judges have less discretion. Populism.

legislature might have intended stuff to be figured out in context by judges. public choice—some people underrepresented in the legislature. (out-of-state plaintiffs in this case)

General Jurisdiction— Helicopteros Nacionales de Colombia, S.A. v. Hall when no connection between the claim and the forum—defendant subject to suit on any matter

drastically expands exposure to liabilitymore substantial contacts required than for special jurisdiction--pervasive

corporation—continuous and systematic—Helicopteros doesn’t define.Domicile—always sufficient for personal jurisdiction based on territoriality

often available in more than one state for corporationsConsent and Personal Jurisdiction

without any showing of personal jurisdiction—counter to Pennoyer, territorialitycan’t consent to subject matter jurisdiction.

implied consent in agreements to arbitrate contractsarguing merits in many state courts waives personal jurisdiction defense

special appearance—can’t argue merits, just jurisdiction.courts can impose personal jurisdiction as a sanction if party not co-operating during defenseappeal-- no interlocutory appeal

--Full Faith and Credit clause comes into effect once lost jurisdictional appealsome states don’t let you argue merits once you’ve made a special appearance and lost on jurisdiction

Forum Selection Clauses.generally enforced—Carnival Cruise--are restrictions but plaintiff has a heavy burden

justifications: trust parties’ pre-suit calculations over where it’ll be cheapest to bring suitbetter than judge’s after the fact decisionor party’s strategic choice

prospective defendants want clausesprospective plaintiffs want freedom to forum-shop

—that’s why Burger King didn’t have a clause in franchisee contractsNotice--other requirement besides power--necessary conditions for binding judgment against the defendant.

requirements:reasonably calculated to arrivemust provide enough information for party to understand its responsibilitiesmust be a reasonable amount of notice—not yesterday.

service of process always goodpublication—if involving tangible property

not enough if parties identified or identifiable, often more reliable ways to reach them.if process good enough, notice doesn’t necessarily have to have arrived.

Rule 4--can serve by the rules of the state where you’re serving or where the forum isor personal service at homespecial parties, special rules

VENUE (Bates, Piper, 1391 (venue) , 1404 (change of venue), 1407 (multi-district litigation), 1441(removal)) venue restrictions further narrow choices—less than constitutional allowance—driven by fairness concernwaivable--personal privilege of defendantsome types of claims have specific venue provisions—copyright, patentsame choice of law rules apply once venue changed, to discourage forum shopping.transfer forum non conveniens

definition: allows court discretion to decline existing authority to adjudicate if inappropriate forum,and more appropriate forum exists elsewhere

federal courts: more appropriate forum generally foreign, conceivably statetransfer of venue to different federal court not adequate remedy

initiation: defendant’s motion or court’s own motion.test: plaintiff’s choice of forum gets deference, but:

interests of both parties and public relevantwhen alternative forum available

remedy: dismissal outright or conditional upon defendant’s waiving defenses1391(a)—for diversity cases

1. proper where defendants reside, so long as they all reside in the same state 2. district in which a substantial part of the events or omissions giving rise to the claim occurred 3. where there’s personal jurisdiction and there’s nowhere else to bring it.

(time bar here—because time at the action commenced)1391(b)—not just diversity

1. where defendant resides, if all in the same state2. district in which a substantial part of the events or omissions giving rise to the claim occurred

or a substantial part of property that is the subject of the action is situated--Bates3. in a district where any defendant may be found, when there’s no place else to bring it.

“may be found” could be process served or something less--PJ1391(c)—defines residence for corporations sued under (a)1 or (b)1

defendant-corporation shall be deemed to reside where it is subject to PJ when action commenced.if state has more than one district, resides in all where PJ, or district where it has most significant contacts

Residence: individual defendants: same as domicile?

courts split. some say where you work, for example, good enough.corporate defendants: defined just like PJ--discounts corporate v. personal interest in fairness

Piper—Horizontal Choice of Law problem—choice between states

historically-->vested rights analysis (out of fashion)Brainerd Curry-->interest of government analysis—had a big impact

hard when multiple states have interestRestatement in the 70s—substantial connection with the litigation—lots of factors

Supreme Court says where law is most favorable should not be dispositive in forum non conviens actionswants lots of flexibility in the District Court—hence overlapping rules, fudgible ruleswide due processfairly categorical venue rule to keep foreign litigants outfurther refined with loosy-goosy forum non conveniens

WHAT LAW APPLIES (10th Amendment, RDA, REA, Swift, Erie, York, Byrd, Hanna, Burlington RR, Gasperini)

federal law applies on suit in federal court if action arises under federal law (doh)if you make a federal claim in state court, same deal.--federal supremacy clause

state court –state claim—state law applied unless there’s a federal preemption issue10th Amendment—the powers not delegated to US by the Constitution,

nor prohibited by it to the states, are reserved to the States respectively, or to the people

Rules of Decision Act--28 USC § 1652—the laws of the several states, except where the Constitution or treaties of the US or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US in cases where they apply—June 25th 1948

Rules Enabling Act—28 USC § 2072 applies if valid exercise of Congress’ rule-making authorityclarified in `88 w/Supercession clause. must be procedural—“shall not abridge, enlarge, or modify any substantive right.”

Is there an FRCP? (both must be constitutional—necessary and proper under Art. I for implementation of III)b. if Yes—Hanna/Burlington/Walker (REA) a. if No—Erie/York/Byrd (RDA)

common law--Erie—for state/defendantExcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.

not covered in the Constitution what laws to use in diversity action in federal courtSwift—apply general common law in cases of diversity—natural law underpinningsEerie—100 yrs later, Swift not good law—ignoring stare decisis---there is no general common law.1. rejecting natural law and adopting positivist legal framework.2. federalism—enumerated powers—excedes them to set up general common law—Art. I §8 states rights—10th amendment “powers not delegated” to the US by Constitution go to states delegated=enumerated? courts seemingly use these justifications independently and redundantly3. separation of powers—Federal Courts—power to create procedural rules

constituitive to existence of the court under Article IIIbolstered by article I—necessary and proper to mandate under Article III

procedural rule (SOL)--outcome determinative test-- York—for state/defendantif state rule would have substantial effect on the outcome, gotta adopt it.

extension of uniformity principle in Erie and Swift otherwise out of state plaintiffs can do better in court than instate plaintiffs

can still provide an equitable remedy for a state right when the state court can’trights/remedies problem is just as much of a puzzle as substance/procedure.

substance/procedure split downplayed, but suggests that forms and proceedings of the courts won’t be affected

Basis of decision not in constitution or Rules of Decision Act—federal common law?procedural rule (jury right) state/federal interest test—Byrd—for feds/plaintiff

state interest— court re-elevates substance-rights/remedy-procedure in light of state interest.administrative reasons—uniform outcomes under statute path-dependant reasons--evolved in cases that come on appeal

federal interest—in the spirit of, though not bound by, the 7th Amendmentincorporates outcome determinative test—says wouldn’t have much impact

very unclear balancing test—massive confusion afterwardsFRCP 4 (process service)--ex ante outcome determinative test—Hanna—for feds/plaintiff

FRCP in conflict with state rule—FRCP wins (crt maintains doesn’t matter that its FRCP) —ex ante, substantive state interest, or administrative rule that developed as a form of proceeding?

good policy reason for state to keep higher standard for process service for executors but court collapses state interest back into forum shopping and litigant fairness.

FRCP 38 ( crt-imposed punitive damages)—mainly procedural--Burlington RR—for fedsInterpretation of Rules Enabling Act--whether this “abridges, enlarges, or modifies” a substantive right

deferential to rules’ existence—a lot of Congressional review.rules rationally classifiable as either procedure or substance can be constitutional too under Hanna“Rules which incidentally affect litigants’ substantive rights do not violate this provision if reasonably necessary to maintain the integrity of that system

of rules.” Harlan dissent: ruling expands Article I power into area that should be reserved for the statesPost-Burlington Developments:Sibbach v. Wilson—physician’s examination under 35 didn’t violate state right not to have physical!Professor Ely—def. of substantive right—right granted for non-procedural reasons

purposes not having to do with fairness or efficiency of the litigationif both procedural and substantive, should be protected.

p.971 Carota v. John Mansville Corp. 1990—evidence of out of state court settlements is substantivep.972 Business Guides v. Chromatic 1991—Rule 11 proceduralp.975 Chambers v. NASCO US 1991--state doesn’t let judge to impose random sanctions-ok in fed. crt

FRCP 3 (complaint filed w/in SOL ok, no process served) Walker–for state/defendantsHanna’s ex-ante outcome determinative test doesn’t apply b/c no direct conflict between laws.case foreclosed under state statute of limitations b/c in the state, action doesn’t commence until serviceFRCP would have been all right b/c complaint filed within the SOL Holding that Rule 3 should not effect state SOLs under Ragan. (p.939)

decided on the basis of equitable administration of the law under Eerie and Ragancommon law (standard of review--constitution? FRCP 59?) Gasperini—for feds at appellate level

NY law—appellate courts can review size of jury verdicts if deviate materially from reasonable compensationScalia wants no different state review—top box—controlled by constitution—7th amendment

says even if not true, FRCP conflicts with state law.defendant wants appellate review under state’s “deviates materially” standardHolding: Ginsberg splits the difference—bottom box b/c no conflict w/constitution, btwn FRCP and state law

DC applies state standard, preserve federal interests at appellate level—review for abuse of discretionin the bottom box—question of federal judge-made rule or state rule? ex-ante Hannah twin aims test—inequity and forum-shopping possible

different SOLs in York under Erie bad, so different awards bad tooconsiders state and federal interest under Byrd

federal interest--keep fed. app. courts from broad review of jury verdictsFederal common law: lots of it—different than general federal common law

1. interpretive--contemporary federal common law grounded by federal statute or constitution2. under supremacy clause, binding on states.delegated federal common law—authorized by congress.

or constitution--federal procedural common law authorized by Articles I and IIIpreemptive lawmaking—structure of constitution suggests that state law subordinated to uniformity

PRECLUSIVE EFFECT OF JUDGMENTSpolicy: protect parties, courts, public respect for court rulings, from re-litigation—prevents harassment if you sue 10 times w/ 1/3 probability of winning each time, you’ll win. federal procedural common law rules apply only in federal courtwhen a federal court is determining claim from state court, will use state preclusion rules.full faith and credit clause ties means that:

a court in State2 must accord same preclusive effect that would be applied in State1right to state court review? recently, out of luck if you could have picked federal court and didn’t.Direct Estoppel—issue determined, though not on the merits—still precluded from litigating non-merits issue

Claim Preclusion--Res Judicata (Manego, Federated Department Stores)merger—judgment in your favor, claim extinguished bar—judgment against you, barred from relitigating1. 2nd action based on same claim or cause of action2. determination of 1st action valid, final, “on the merits”

Final Judgment—generally, nothing left to do but execute the judgment“final” can be a narrower category for preclusion than for appeal, eg., when

liability is determined but not damagesjudgment as to some but not all claims or parties

appeal pending—no consensus among jurisdictions—some wait until appeal or opportunity to appeal over before precludingRestatement and federal courts call judgments final, appeal or no appeal

unless appeal is de novo.“on the merits”—doesn’t have to be decided at trial

—summary judgment and motions to dismiss are on the merits—Rule 41validity—court must have had good jurisdiction.

1. never considered jurisdiction—should appeal rather than retry for PJ, maybe for SMJexception: court acted beyond competence in jurisdiction

and/or no appeals process—e.g. traffic crt decides racial profiling2. defendant didn’t show up—default judgment

can contest jurisdiction--if D wins, no preclusion.3. contested and court concludes there is jurisdiction, but wrong

—appeal rather than retry--SJ/PJ3. same parties or those in privity with them--precluded even if court made wrong legal decision.exceptions:

waiver/consentyou were prevented from advancing a legal theory (forum or jurisdiction)fraudlegal system prevents you from doing it—habeas corpus

no general unfairness exception. Federated Department Storestransaction test--different legal theory not enough to defeat claim preclusion--Manego

e.g. assault and battery by police decided—precludes claim for excessive force, but not cover-upRestatement: similarity in the evidence,

extent to which 2 matters would be best litigated in one court suitexpectation of parties as to how litigation would proceed.

Defendants and Res Judicata--applies to unraised defenses

raised counter-claims—exception when full recovery couldn’t be obtained e.g.—court of limited jurisdiction from which defendant could not remove

compulsory counterclaims—raise it or lose (waive) it—FRCP 13(a)—un-raised non-compulsory counterclaim

and facts raised in defense, not precluded from later action RSJ §22less likely to find preclusion than for plaintiffs with non-compulsory claims

plaintiffs get to choose where and when to litigate.defendant should get to pick forum for counter-claim,

since jurisdiction didn’t make it compulsorycollateral estoppel and res judicata may still apply, howeverMartino v. MacDonald’s system p.1130—preserve the integrity of judgments.

Other Action Pending DefenseActions brought in more than one forum b/c of jurisdiction, SOL, forum-shopping, harassment1st in time suit usually given priority. Can seek order to stay, or enjoin from prosecuting.should defendant be required to raise this defense in order to preserve right to raise res judicata later?

Issue Preclusion--Collateral Estoppel, (Little, Hardy, Sunnen)—prevents relitigation when different action, but issue already determined by the court.1. 2nd action involves same issue and actually litigated fully and fairly in 1st action

how do we know? interview judge and jurorswork backwards deductively from judgment itself and the governing law.what findings would have to have been made for the court to have determined this relief?

2. necessarily decidedDistinguishing between claim and issue preclusion: issue preclusion much more broad

notes: disputed whether administrative body’s decisions preclude—depends.arbitration—if no appeal and full hearing, final judgment.stakes: if small in first action, preclusion in second action can seem unfair—Little (though notice there)mass torts: mixed law and fact—hard to get preclusion—efficiency problem--Hardy

need class actions with sub-classes and special verdicts for them to clarify necessarily decidedstill hard to define all the issues in advance

legal issues: 2nd Restatement—preclusion ok unless events and transactions very different, or change in legal context would lead to substantial unfairness.

Sunnen--problem of creating little tax shelters—vested rights in the tax system. less likely in the criminal context.

government a party--very strong legal issue preclusion against the government would mean that: nothing ever got decided differently in different circuits and settled in the Supreme Court.US v. Stauffure—1984—preclusion not limited to where cases are “identical in all respects”

EPA suit involving different power plants in different states, same legal issue

Persons Bound (Benson and Ford, Parklane ) 1192 n.6 Parklane & notes privity—label for kind of relationship that court will permit for preclusion

Privity test: Benson and Ford—non-party will be bound in C2 by result in C1 if:

1. succeeded other party’s interest in property—lots of stake2. controlled original suit—same party, witness in suit not enough—see p.11763. interests adequately representedvirtual representation—same lawyer—not enough—due process problemfailed that test in B&F-- could have intervened—

not enough b/c don’t want to create mandatory intervention rules(lose your right to sue if you don’t intervene—not efficient)pro-employer mandatory intervention rules in Civil Rights Act of 1991

Four ways that someone not a party in C1 might try to use IP in C2defensive promotes economy (join as many ∆s as possible)offensive doesn’t (promotes wait and see attitude)  Defensive Non-Mutual Collateral Estoppel—in the 40s, became ok

C1. A sues B—B wins; C2 A sues C on the same issueviolation of patent—but A had no valid patent.

C1 A sues B—A wins; C2 B sues C on same issueinsurance indemnification—B was reckless, A wins, treble damages.C is insurance company—if reckless, no recovery under policy

Offensive Non-Mutual Collateral Estoppel.C1 A sues B—B wins; C2 C sues A—C wants to use PreclusionC1 A sues B—A wins; C2 C sues B—C using preclusion

Parklane—in the case of offensive non-mutual collateral estoppel,courts have substantial discretion to decide whether parties can take advantage of earlier case

factors: litigation incentives of the plaintiff(Parkland, couldn’t have joined SEC action)

fairness to defendant:1. incentives of defendant to defend in the first suit—unanticipated liability2. inconsistent judgments3. procedural opportunities available in the 2nd that weren’t there in the 1st

(Renquist dissent concerned w/jury trial in 2nd suit in Parkland)

CLASS ACTIONS (Shutts, Hansberry, FRCP 13-19, 23)IntroductionRule 23: effort to align interests—requirements for class action1. must be a class (common law—not in 23)2. parties that are class reps. must be members of the class (not in 23)3. Numerosity—tests whether joinder would be feasible4. Commonality—common questions/issues5. Typicality—pretty redundant—low threshold, not much tested6. Adequacy—have to fairly and adequately represent interests of class members (in 23, from Hansberry)

are reps (named plaintiffs) themselves adequate?lawyers adequate?class itself adequate? (problem in Hansberry)

If you satisfy 1-6, can proceed if b1 interests of members left out would be compromised—typical example is a limited fund suitb2 injunctive or declaratory relief for whole class appropriateb3 predominance of common interests over distinct interests--mass torts

ill-defined Class Action exception to general requirement that person only bound if a partyConstitutional if unity of interest and adequate representation.

res judicata as to members of the class who are not formal parties to the suit.consequentialist efficiency justifications

joinder to expensive or too impractical. stakes could be so small for each individual wouldn’t bring suitclass membership could be very large, diffuse, shifting class changing over time.

balance w/due process—mechanism is ok, checked by adequacy of representation concern.

Binding EffectsC1 must satisfy statute, along with Power (Shutts), Notice (Shutts) and Adequate Rep (Hansberry)C2 judgment will always be subject to collateral attack by absent class members

1st court can’t judge preclusive effect of its own actionsC2 claimaint can attack preclusion on basis of Power, Notice, and Adequate Rep.(adequacy of representation was tested in theoretically in step 6 to certify class)

distinction between class action suits and joinder suits:joinder: agency representationclass action: interest representation—must have a class with aligned interests.

tested in impact litigation—school bussing, gay marriage—usually opt-out provisionswhat does it mean to have a class action in civil rights injunction contexts?

moral force—6 million members?often 1st party to get to court sets agenda for a big group of people

opt in might be a good solutiongroup governance: is this a good way to change policy, or should we be doing it through legislature?Class Actions—traditional model of litigation=individualistic, backwards-looking, compensatory

class actions—dispute resolution thru mini-government--goal of reforming public policysprawling, multi-interest, like republics.

named plaintiffs, class counsel and judge try to represent their interests.compensatory and distributive justice sought.

Rule 23—exit rights—opt out, opt in; voice--class members as proxies

Class Action Jurisdiction (Shutts)Subject Matter--diversity of citizenship: used to be based on named plaintiffs.

under CAFA—deformalized, expanded:minimal diversity is sufficient—any plaintiff of different state from any defendant

up to outer boundary of constitutional limitfederal court must decline jurisdiction if most of action and Ds and Ps in same forum

may decline jurisdiction if much of it is in the same forummatter in controversy: aggregated, satisfiedexpanded removal grounds

Why expanded for class actions in Federal Court?Efficient to have one lawsuit in federal courtstate juries more biased?—huge awards—either wrong amount,

or defendants an interest group who want to get away from state juriesPersonal Jurisdiction—Shutts--defendant claims that there’s no PJ for absent plaintiffs.

minimum contacts not satisfied by absent class members, but due process satisfied, as long as: notice and

consent (opt-out) adequate representation.

(opt-in is pretty much like joinder—takes away advantages of class actionfewer burdens on absent plaintiffs than plaintiffs in a regular suit)

Consent for PJ for b1 and b2 actions—can’t opt out in injunctive and common pool actionsis that unconstitutional since it was required for due process in Shutts?no--due process always adapts for consequentialist reasons

Notice: Due process component from MullaneRule 23—best practicable notice under the circumstances,

to everybody who can be identified through reasonable effortsburden of notice can be prohibitive if benefit to each plaintiff very small (WHAT CASE?)

Shutts says must receive notice, but also reiterates “best practicable notice”—read to be consistent with Mullane

—lack of receipt of notice not enough to attack judgmentAdequate Representation—Hansberry, Amchem

The Problem of Settlement (Amchem)Big disputes in class action reform

1. aligning interests of name plaintiffs and class members--AmchemAnchem problems: no inflation built in

no monitoring costsless given to people with less severe injuriesno provisions for changing medical evidence

court suggests sub-classes and sends back down.can take into account fact of settlement in determining whether to certify class

but not enough here to demonstrate existence of class—have to run through all factors

2. aligning interests of class lawyers w/rest of class—bigger issues

worry about potential conflicts between lawyers and plaintiff class membersplaintiffs have less of a stake than the lawyers do.lawyer might try to structure settlements to buy off named plaintiffscollusion between plaintiff’s lawyer and defendants

judges don’t police enough b/c of information costs and judicial economy concern

Themes:judicial economy (decision costs/error rates)strategic behaviordistribution consequences