I.

Personal Jurisdiction
a. Power of a court to enter a judgment against a person or thing
b. Courts can only assert personal jurisdiction IF:
i. Power is authorized by statute AND
ii. Power is consistent with Due Process Clause
c. Traditional bases for jurisdiction
i. Pennoyer v. Nef S.C. 1877
1. Jurisdiction is limited to person or property within state boundaries
2. Natural person is subject to a courts jurisdiction if he/she:
a. Appears in court (without making a motion to dismiss the action for lack of
personal jurisdiction; EX: special appearance)
b. Is found within the state
c. Is a resident of the state
d. Has property therein:
i. If a nonresident owns property in the forum, the forum state only has
jurisdiction over the property but only to the extent if property is attached at
the beginning of the lawsuit
ii. Attachment: legal proceeding that s a seizure of property; can sometimes be
on personal property (moveable thing that can be seized by an order of the
court) or real property like land (lien placed on property so it cant be sold or
transferred to anyone else during that time)
ii. Diferent types of jurisdictions (old way)
1. In personam: a courts jurisdiction over a person; judgment is not limited by value of
any property since a PL can execute in personam judgment against any or all
defendants assets until amount of judgment is satisfied
a. Always preferable because you can take judgment into any state and execute
judgment
2. In rem: a courts jurisdiction extends only over the property attached
a. In rem: proceeding decides ownership of all attached property
b. Quasi-in-rem 1: title attached to property is at issue, but dispute between
identified litigants with claims to property
c. Quasi-in-rem 2: Ownership or title to attached property is not an issue in action,
but non-residents property within Forum state attached as a means for Forum
court to exercise jurisdiction
i. This was later found to be in violation of Due Process in most cases in
Shafer v. Heitner b/c it was being used as a means to get DE in court and
subject to jurisdiction
d. Expanding bases of personal jurisdiction
i. Technological advances afected doctrine of personal jurisdiction states had to develop
strategies to subject out of state defendants to jurisdiction; automobiles lead to increased
interstate travels = injuries and car crashes with out of state defendants
ii. Hess v. Pawloski S.Ct U.S1927
1. Consistent with Pennoyer because it said that a court has jurisdiction if DE served
within state
2. Court said DE appointed agent within Mass. that could be served with summons and
complaint an agent can act in your stead theyre accepting service in Mass.
a. Upheld by S.C. because states have interest in safety on their roads out of
state citizens not being treated diferent than in state citizens
e. New Theory of Specific Jurisdiction
i. International Shoe S.Ct. US 1945
1. Out of state DE had employees soliciting business within WA but they did not do any
business there since all contracts and payments sent out of state and shoes sent by
mail to customer
a. WA said it had personal juris b/c:
i. Continuous flow of merchandise this leads to 3 prong test for specific
jurisdiction over a nonresident defendant!!!
2. Supreme Court applies new test to see if a state has personal jurisdiction
3. Policy rationale for allowing a state to exercise specific jurisdiction over nonresident
DE:

f.

a. A corporation exercises privileges by protection of state

Specific Jurisdiction (Results from International Shoe)
i. THREE PRONG TEST
1. Does DE have minimum contacts with forum?
a. Purposeful availment
i. Efects test
2. Does PLs claim(s) arise out of/relate to DEs contact with Forum?
3. Would it be reasonable (comport with fair play and substantial justice) for the forum
court to exercise jurisdiction over the DE?
a. Burden on defendant
b. Plaintifs interest in litigating in Forum
c. States interest in having jurisdiction
From Brennans dissent in WWVW:
d. the interstate judicial systems interest in obtaining the most efficient resolution
of controversies
e. the shared interest of several states in furthering fundamental social policies
(really big umbrella ex: states are interested in being able to provide for
themselves)
4. Policy rationale for using minimum contacts requirement for SJ?
a. Protects DE from burden of litigating in a distant or inconvenient forum
b. Ensures that the States, through their courts, do not reach beyond limits
imposed on them by their status as coequal sovereigns in a federal system
ii. Development of Long-Arm Laws
1. Gray v. American Radiator & Standard Sanitary Corporation.- Illinois S.Ct 1961
a. If a manufacturer decided to sell its products for use in other states through
middle-man distributors, the manufacturer could be subject to personal
jurisdiction stream of commerce
b. This is not binding! But this case is often cited by Supreme Court
iii. Due Process and Long-Arm Statutes
1. Long-Arm Statutes: authorize the exercise of power over nonresidents who cannot
be found or served in the state
a. Some states have a laundry list of activities that give rise to jurisdiction over a
nonresident, while other states like CA say that a state can exercise jurisdiction
to the full extent of Constitution
b. Exercise of jurisdiction in these cases based on:
i. Nonresident DEs general activity in the state
ii. Commission of any one of a series of enumerated acts within the jurisdiction
iii. Commission of a certain act outside the jurisdiction causing consequences
within it
2. Just because a state has a long-arm statute allowing Forum to have personal
jurisdiction over a non-resident, a state may not execute personal jurisdiction
(specific) if it is not consistent with the Due Process Clause of the Constitution
a. Must comport with fair play and substantial justice
i. Unilateral activity will not satisfy minimum contacts
ii. Defendant must purposefully avail itself of the privilege conducting
activities within a forum state receives benefits that come from acting
within a state and can anticipate being sued
b. McGee v. International Life Insurance Co. S.Ct US 1957
i. TX insurance co bought out another ins. co and then sent notice to PL mom
in CA ofering him same insurance and he took it;; when he died, PL McGee
got insurance but TX co didnt want to Pay her so she sued in CA court, TX
co ignored suit b/c they thought it was unconstitutional (collateral attack)
and once McGee tried to enforce judgment in TX court TX refused
ii. S.C. ruled in favor of McGee said TX co knew they were dealing with CA
resident and purposefully availed itself thus it was NOT a violation of Due
Process
c. Hanson v. Denckla S.Ct US 1958
i. Set up trust with DE corporation as trustee family fight about trust once
mom died question was did FL court have jurisdiction over DE trustee

ii. S.C. says FL court did NOT have jurisdiction because Donners unilateral act
(only connection trustee has with Forum was that Donner moved there after
having est. her trust) not enough to est. minimum contacts
iii. Contrast from McGee TX corporation knew the person they were insuring
was in CA; DE trustee first started encounters with Donner when she was a
PA resident and the only way we got the FL connection is that she moved
there
d. World-Wide Volkswagen Corporation v. Woodson S.Ct US 1980
i. Accident in OK due to defect in car bought in NY from NY dealer
1. Reasonableness should be determined by 5 factors:
a. Burden on DE
b. PL interest in obtaining convenient and efective relief
c. Forum states interest in adjudicating dispute
d. Interstate judicial systems interest in obtaining the most efficient
resolution of policies
e. Shared interests of several states in furthering fundamental
substantive social policies
2. While it would be reasonable to litigate in OK, S.C. majority decides that
minimum contacts not established
a. No activity, no sales, no employees of Seaway or WWVW in OK
b. Unilateral activity
i. Only contact is that PL brought car to OK driving
c. Forseeability alone is insufficient b/c it would result in PL
est. personal jurisdiction
d. DE should be able to reasonably anticipate being sued in forum must purposefully avail itself to the privilege of conducting
activities within state
ii. Brennans Dissent
1. Thinks there should be specific jurisdiction in OK he emphasizes
states interests Reasonableness prong (comporting with fair play and
substantial justice
iii. Keeton v. Hustler Magazine S.Ct US 1984
1. Effects Test: when a nonresident defendant intentionally inflicts harm
on a PL in the forum state or expressly aimed at the forum state, such
harm is sufficient to give forum state personal jurisdiction
a. Efects test another way to determine specific jurisdiction under
minimum contacts
2. Libel an intentional tort;
a. Hustler sold in NH where magazines being purchased specific
jurisdiction focuses on DEs contacts, doesnt matter what PL
contacts are
iv. Kulko v. Superior Court S.Ct US 1978
1. The efects test should be limited to disputes involving commercial or
wrongful activity done outside the state and afecting a state resident
v. Calder v. Jones S.Ct US 1984
1. Suing for libel writer of magazine written in FL distributed in CA,
article about CA actress, sources in CA, reputation harmed in CA
2. Specific jurisdiction found satisfied efects test because tortious
actions aimed at CA
vi. Burger King Corporation v. Rudzewicz S.Ct US 1985
1. Court found that FL court should have PJ even though DE had never
been there because he had ongoing contacts with BK HQ in FL for over
20years and the fact that DE reached out to BK;
a. Since Forum and PL have significant interest and strong case for
MC, burden on DE is de-emphasized
2. Contracts test (for determining if minimum contacts in a contracts
case Brennan said to look at):
a. Look at partys prior negotiations
b. Contemplated future consequences

c. Terms of contract
d. Parties actual course of dealing
e. Asahi Metal Industry Co v. Superior Court - S.Ct US 1987
i. Faulty tire valve manufactured by Asahi was cause of death for original PL
he sued Cheng-Shin who sued Asahi for manufacturing
ii. Majority (8) held its unreasonable for CA court to exercise PJ since its a
contract between Taiwanese and Japanese company over actions that
occurred abroad; CA little interest, it isnt clear if CA law would apply to
indemnity action; severe burden for Asahi to litigate in CA
iii. Stream of Commerce: two standards put forth due to fragmented opinion;
in using for lower courts, should pick the position on the narrowest grounds
1. OConnor Test: purposeful availment for personal jurisdiction
a. DE has to have SOMETHING MORE than just mere awareness;
stream of commerce + knowledge
i. EX: advertise, design products for state, etc.
ii. Mere forseeability NOT sufficient
b. Asahi just put product into stream of commerce, no evidence of
something more under OConnors test
2. Brennan Test: Stream of commerce and awareness of stream is
sufficient
a. if you put your product in the stream of commerce and are aware
it could end up in the forum state, that is enough for minimum
contacts
b. Asahi was aware of valves being sold because they didnt deny it
in affidavit of President
3. Other considerations:
a. Stevens: says shouldnt come up with a new rule for stream of
commerce cases no reason to articulate OConnors test since we
all think subjecting them to PJ is unreasonable
b. Kennedy: target with the intent to be in the state; demanding
something more than something more to satisfy MC (J.McIntyre)
i. Emphasizes state sovereignty
c. Breyers: says no need for new rule; one sale is not enough for
stream of commerce and it doesnt constitute something more
(J.McIntyre)
4. MUST have purposeful availment for minimum contacts, the
justices have diferent views on what constitutes purposeful availment
f. J. McIntyre Machinery v. Nicastro S.Ct. US 2011
i. Gets hurt from equipment used in NJ from machinery from England
ii. (6) Justices agree it would be a violation of Due Process if NJ exercises
personal jurisdiction over J.McIntyre
1. You can tell an independent distributor to market to U.S., but there are
no acts targeting NJ specifically
iii. Plurality opinion
1. Kennedy (4) says there is no minimum contacts; demanding
something more than something more
2. Breyers concurring only in judgment (2) not shown that British
company purposefully availed itself; doesnt agree with strict no
jurisdictional rule; Doesnt want to change the law without
understanding commercial circumstances
3. Ginsberg dissenting (3) women justices would have found minimum
contacts
a. Marketed to US and could recognize product end up in NJ =
purposeful availment
g. General Jurisdiction can sue for any reason unrelated to connection with forum
i. Now concerned with interrelationship between DE, litigation, and forum
1. Away from sovereignty, more about fairness
2. This is so everyone has at least one clear and guaranteed forum to sue in
ii. TEST
1. Is corporation or individual at home

a. Individual domiciliary, where you are a citizen

b. Corporation place of incorporation or primary place of business
c. (this prong hasnt been ruled out by SC but there hasnt been as case to
illustrate this) Against a nonresident defendant whose:
i. Continuous corporate operations are so substantial and of such nature to
justify suit against it on causes of action arising from dealings entirely
distinct from those activities (basically enough call nonresident at home)
iii. Goodyear Dunlop Tires Operations, S.A. v. Brown S.Ct US 2011
a. Two kids abroad died in bus crash and wheels manufactured by subsidiary of
Goodyear tires
b. Court found that corporation must be at home in forum state as a baseline for
general jurisdiction but they werent at home in NC
i. Basically if you sell goods in a state and thats all youre doing, and you
dont have personal business there, not at home
ii. Claims unrelated to tires so court would have to execute general jurisdiction
which it didnt have
iv. Daimler v. Bauman S.Ct. US 2014
1. MBUSA could be considered Daimlers agent (for arguments sake) but this didnt
make a diference b/c Daimler (Germany) is not incorporation nor is principal place of
business in CA
2. Ginsberg says Daimler must be at home for general juris and we need to look at
the substantial, continuous, systematic in terms of ALL business conducted
a. Says S.C. has NEVER applied reasonableness to exercise general
jurisdiction over the DE
3. Sotomayor concurring emphasizes extensive activities and says the amount of
money Dailmer makes from CA should be enough to subject it, but thinks its too
distant for Daimler to defend and CA no interest
h. Personal Jurisdiction and the Internet
i. Community Trust Bancopr, Inc. v. Community Trust Financial Corporation Court of Appeals
6th Circuit 2012
1. PL KT corporation using Community Trust to promote banking services and DE sued for
trademark infringement using same logo on their website and they are a TX
corporation. PL claims customers in KT will get the two confused
2. District Court found DE had minimum contacts b/c it purposefully availed itself to
customers in KT, 6th Circuit reversed said it doesnt need to consider if activities satisfy
minimum contacts b/c it doesnt think 2nd prong claim does not arise out of relation
to Forum; also suggests it wouldnt satisfy minimum contacts
a. HENNINGS VIEW: disagrees How do we know that these customers arent
dealing with KT bank thats well-known in KT when they typed in community
trust? Thinks there should have been additional discovery
3. Zippo Manufacturing v. Zippo Dot Com, Inc Pennsylvania 1997
a. Early case, no presidential value 1997, but discusses personal jurisdiction in
context of the internet
b. District court opinion influenced analysis of many other courts, but its also
been criticized
i. Sliding scale analysis
1. Website that does business --------------------passive website
a. EX: Amazon ---------------------restaurant menu
2. The middle of sliding scale is interactive
c. In deciding Zippo, district court went through classic Intl Shoe analysis for SJ
i. Jurisdiction Based Upon Power over Property
i. Harris v. Balk S.Ct US 1905
1. Harris was attached so he couldnt leave state was a walking debt machine
2. Harris paid Epstein because Balk owed Epstein money and Harris owed Balk
ii. Shafer v. Heitner S.Ct US 1977
1. Sues leadership of Greyhound and goes after property (stock) in DE which he thought
most would have and 21 of 28 did; but case arises out of what Greyhound doing in OR
2. DE statute didnt allow for special appearance so PL using stock to get leadership into
court to subject to DE jurisdiction quasi in rem 2 case but not against property,
being used as a coy

3. Holding: S.C. holds that minimum contacts applies to all in rem and quasi in
rem
a. Characterize idea as a fiction since you want to get owners into court, in
Pennoyer involved owner of property, not property itself so it didnt work, same
here and now court finds quasi in rem 2 without minimum contacts as
unconstitutional
j. Transient Presence in the forum: tag jurisdiction
i. Burnham v. Superior Court S.Ct US 1990
1. Plurality opinion
2. Couple divorces, agree to file irreconcilable diferences and he says abandonment;
on business trip he stops to see kids and is served with summons while in CA claims
that CA doesnt have personal jurisdiction
3. All justices agree on Intl Shoe standard
a. DE thinks b/c Shafer says anytime state tries to exercise PJ over nonresident it
must comply to contacts/reasonableness BUT
b. Scalia (3) writing opinion says its a continuing tradition of our legal system
being served in a state while present had gone uncontested;
i. Any procedures we have before 14th amend we dont need to make further
inquiry b/c their historical so we accept them as due process
c. White concurs in judgment and most of opinion except II.D
i. Doesnt agree with strict rule, leaves wiggle room
d. Brennan concurrence (3) thinks just b/c something is an ancient form doesnt
mean it comports with Due Process thinks we should leave open possibility that
this can be examined individual bases on facts
i. In this situation he agrees DE purposefully availed himself b/c there
voluntarily
e. Stevens says he sees virtues to either side
k. Consent another basis of jurisdiction
i. A DE consents to the Forum States jurisdiction by appearing in court, prior agreement, or
by not challenging in a timely manner
1. Consent by appearance in court: show up and dont reject jurisdiction at beginning
of litigation
a. Insurance Corporation. of Ireland v. Compagnie des Bauxites de Gunee S.Ct US
1982
i. Claimed no PJ, court ordered disc. & avoided discovery because they
probably had documents that worked against them; subjected to PJ
2. Consent by registration in state: most states have statutes that require foreign
corporation to register as a condition of doing business in forum
3. Consent by contract
a. Two types:
i. Forum-selected
1. Parties agree where action can be filed
ii. Choice of law
1. Saying if we get into dispute we agree which state law will apply
b. M/S Bremen v. Zapata Of-Shore Co S.Ct US 1907
i. Contract between two said all litigation to take place in London Court of
Justice
ii. Zapata sued for damages in U.S. court, and Bremen sued for breach of
contract in English court; S.C held must abide by contract and thus had no
jurisdiction
c. Carnival Cruise Lines v. Shute S.Ct US 1991
i. Got hurt on cruise, sued in WA, but the court ignored minimum contacts
argument addressed the enforceability of forum-selection clause on the
back of their tickets
1. Said any litigation to take place in FL that way it can limit where it can
be sued and thus give lower rates to customers
l. Challenging a Courts Exercise of Jurisdiction Over the Person or Property
i. Raising the jurisdictional issue directly (Direct attack)

1. Special appearance procedure at common law where DE challenges courts

exercise of personal jurisdiction without submitting to the courts jurisdiction for any
other purpose
a. Traditionally, if the DE argued the merits is any other way (did anything but
question jurisdiction) wouldve made a general appearance and thus
voluntarily submitting himself to courts jurisdiction
ii. Collateral attack on personal jurisdiction
1. DE who objects to personal jurisdiction can ignore original suit entirely, results in
default judgment for PL who will try to enforce judgment in DEs home state most
likely
a. Exception to a states duty to give full faith and credit to a judgment of another
state as stated in Const. is:
i. enforcing court may always inquire as to whether rendering state has
jurisdiction in original action and refuse enforcement if it did not
b. DE can oppose enforcement of that judgment by asserting in enforcing court
that rendering court lacked personal jurisdiction
i. If judgment enforceable (as determined by state where PL trying to execute
judgment) DE loses suit without ever having a chance to defend it
iii. Limited-appearance problem
1. limited appearance allows a DE in an action commenced on quasi in rem basis to
appear for limited purpose of defending his interest in attached property without
submitting to full personam jurisdiction
II.

Notice and an Opportunity to be Heard

a. Before a court can enter a valid judgment, 2 conditions must be met to satisfy Due Process:
i. Parties must receive adequate notice of start of the action AND
1. Must comply with due process and statutory means of notice
2. Must be reasonably calculated (Mullane)
a. All that matters is where method was reasonable, not whether it actually
reached them or not
ii. Parties must have an adequate opportunity at an appropriate time to present
their side of the dispute
1. Not enough to give notice, but have to give enough detail, enough time
b. Requirement of Reasonable Notice
i. Mullane v. Central Hanover Bank & Trust Co. S.Ct US 1950
1. Trustee applied to settle for first trust, but only notification by publication
a. Court held notice must be reasonably calculated in order to be consistent with
Due Process
i. Since it had mailing addresses and names of income beneficiaries, it
shouldve notified them by mail that wouldve been reasonable and for
people whos whereabouts were not known publication okay
2. Wuchter v. Pizzutti S.Ct US 1928
a. If the statute is unconstitutional, it doesnt matter if DE becomes aware
of suit, it is still void
3. Greene v. Lindsey S.Ct US 1982
a. If known in advance they wont get notice, have to take other means to ensure
they do get notice
b. Posted note on door, but PL knew prior to posting that there was a good chance
it would be removed not reasonable for them to post in the first place
4. Jones v. Flowers S.Ct US 2006
a. Sent mailing notifying homeowner who didnt pay taxes there would be an
impending sale mailing returned as undeliverable
b. S.C. held that government was required to take additional steps because failure
to follow up when they know DE didnt get notice is unreasonable
5. Covey v. Town of Somers S.Ct US 1956
a. Notice by mail normally sufficient, but not satisfy due process when mailed to
someone adjudged insane
ii. Principles:

1. Notice comports with due process if it is reasonably calculated under all

circumstances to apprise interested parties of pending action and affirm them an
opportunity to be heard
a. Mullane
2. If form of notice reasonably calculated under all circumstances to apprise interested
parties of pending action, but interested parties nonetheless dont get actual notice,
Notice may still be constitutionally sufficient
3. States notice statute may be unconstitutional, even if the state actually provides
interested parties with notice of pending action; if states notice statute doesnt
require that the interest party receive notice of the action
a. Wutcher
4. State notice statute may be reasonably calculated to apprise interested parties in
most circumstances, but if the sender knows in advance that it is unlikely the
interested parties in pending action will receive notice, such notice is not sufficient,
and other means of giving notice are required
a. Greene
5. A method of giving notice may be reasonably calculated to apprise interested parties
of pending action but if the sender subsequently learns that recipient didnt receive
notice, additional steps are required
a. Jones
6. Posting notice on property and publication are traditional means of are traditional, but
if youre talking about nonresident with prop within the state, that notice wouldnt
reach them mail may be required
c. Statutory Notice
i. In short a copy of summons and complaint must be served by a person at least 18 who is
not a party to the case and service must be efected by:
1. Individuals:
a. Following state law of the state where district court is located or where service is
made;
b. Delivering a copy of the summons and complaint to the DE personally;
c. Leaving a copy of summons and complaint with a person of suitable age and
discretion residing at DEs dwelling or usual place of abode; or
d. Delivering a copy of summons and complaint upon an agent authorized by
appointment or law to receive service of process
2. Domestic Corporation or other entities
a. Following state law of the state where district court is located or where service is
made;
b. Delivering a copy of summons and complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by law to accept
service of process
3. Waiver of Service
a. Mailing a notice and request along with a copy of complaint, waiver forms,
notification of the procedure and its consequences, and a prepaid means for
returning the waiver
b. If a domestic party fails to sign and return a waiver form, the court must impose
on DE expenses incurred in making service and reasonable expenses if motion is
required
ii. Federal Rule 4 implements a uniform form of summons to be used in all federal courts
1. Types of service:
a. Personal Service: Copies of summons and complaint are handed to DE
b. Substituted Service: Leaving a copy of summons and complaint upon a person
of suitable age and discretion at DE dwelling or usual place of abode
2. Maid to Perfection Global v. Ensor Maryland District Court 2010
a. Court upheld service by reg. mail emphasizing 1)DE didnt dispute receiving
notice even though not properly served 2)PL hadn't sought entry of default
judgment
b. Held: When there is actual notice, every technical violation of the rule or failure
of strict compliance may not invalidate service of process
d. Specific Applications of the Service Provisions
i. Federal Rule 4(a) Contents; Amendments

ii.

iii.

iv.

v.

1. Contents: A summons must:

a. Name the courts and the parties
b. Be directed to the DE
c. State the name and address of PL attorney or if unrepresented of the PL
d. State the time within which the DE must APPEAR and DEFEND
e. Notify DE that failure to appear and defend will result in default judgment
against the DE for the relief demanded in the complaint
f. Be signed by the clerk; and
g. Bear the courts seal
2. Amendments: could can allow summons to be amended
Federal Rule 4(b) Issuance
1. Have to have filed complaint first or concurrently to get clerk to sign and summons
and issue to PL for service on DE
a. Must have summons or copy of summons issued for each DE to be served
Federal Rule 4(c) Service
1. In general
a. Summons must be served with a copy of complaint
2. By Whom
a. Any person at least 18 years of age and not a party may serve
summons and complaint
3. By a Marshal or Someone Specially Appointed
a. By PL request a Marshal or someone specially appointed by court can
deliver
Federal Rule 4(d) Waiving Service
1. Requesting a Waiver an individual, corporation, association subject to service has
duty to avoid unnecessary expenses PL may notify DE that action commenced and
ask DE to waive service of summons. The notice and request must:
a. Be in writing and addressed:
i. To individual DE
ii. Or an officer, managing agent authorized by appointment
b. Name the court where complaint filed
c. Be accompanied with copy of complaint, two copies of waiver form, and
prepaid means for returning the form;
d. Inform the DE, using text prescribed in Form 5 of consequences of waiving and
not waiving service
e. State the date when request is sent;
f. Give DE reasonable time 30 DAYS after request sent or at least 60
days if sent to DE outside US to return waiver
g. Be sent by mail or other reliable means
2. Failure to Waive if DE doesnt have good cause to not sign and return
waiver requested by PL, court must impose on DE:
a. Expenses incurred in making service; and
b. Reasonable expenses, including attorneys fees, of any motion required
to collect those service expenses
1. specific means of making personal service on diferent entities like
individuals, corporation, partnerships
2. Originally service of process by personal delivery, but that changed b/c
of many things including long-arm statutes summons and complaint
could be sent by first class mail with form acknowledging receipt and
accepting of service
ii. Not always successful b/c DE had to return form
3. Time to Answer after a Waiver:
a. DE who before being served with process, timely returns a waiver has
60 DAYS after the request was sent to answer the complaint or 90 days if
outside U.S.
4. Results of Filing a Waiver When PL files a waiver, proof of service NOT required
5. Jurisdiction and Venue Not Waived Waiving service of summons doesnt waive any
objection to personal jurisdiction or venue
Federal Rule 4(e) Personal Delivery on Natural Persons

vi.

vii.
viii.

ix.
x.
xi.

xii.

a. Federal rule for service of process on individuals and provides alternatives to

these methods by authorizing service in conformity with the law of the
state in which district court is sitting or where service is effected
i. Allows federal courts to take advantage of long-arm statutes
b. Choice of which state law to follow:
i. Either in state where district court is located; OR
ii. State where service is made
c. Can also choose to follow federal law and do these three things:
i. Deliver copy of summons and complaint to individual personally
ii. Leave a copy of each with someone of suitable age and discretion
who resides at DEs swelling or place of abode
iii. Deliver copy of each to an agent authorized by appointment or by
law to receive service of process
d. Federal Rule 4(e)(2)(B) Service on a Person Residing in Defendants Dwelling or
Usual Place of Abode
i. Service of process can be made on individual by leaving a copy of summons
and complaint at his dwelling or usual place of abode with some of suitable
age and discretion who resides there
ii. Substituted service
e. Federal Rule 4(e)(2)(c) - Delivery to an Agent Authorized by Appointment
f. Efects personal service on individual by delivering a copy of summons and
complaint to agent of DE who is authorized by appointment or by law to
receive process
g. Rule: there must be actual evidence that DE himself intended to confer such
authority upon the agent
Federal Rule 4(f) - Serving an Individual in a Foreign Country
1. Authorizes alternative methods by which an individual may be served outside the US
2. Must comply with Const. standards of due process
3. Volkswagenwerk v. Schlunk
Federal Rule 4(g) Serving a Minor or Incompetent Person
1. Dont get the option to choose to follow state law where district court is located
required to apply the state law that is most likely that persons home state
Federal Rule 4(h) Serving a Corporationoration, Partnership, or Association
1. Authorizes service upon corporation, partnerships, and unincorporated associations
that are subject to suit under a common name:
a. In a judicial district of US:
i. In the manner prescribed by Rule 4(e)(1) for serving an individual;
1. Still get choice of state where district court located OR state
where service is made
ii. Permits service by delivery of process to an officer, a managing agent, or a
general agent
b. Insurance Co of north America v. S/S Hellenic Challenger
i. Fashion Page v. Zurich Ins. Co
Federal Rule 4(J) Serving in a Foreign, State, or Local Govt
Federal Rule 4(k) Territorial Limits of Efective Service
Federal Rule 4(l) Proving Service
1. Affidavit required
2. Service outside U.S
3. Validity of Service; Amending Proof
4. Have to be able to prove service
FRCP 4(m) requires federal court to dismiss action when DE has not been served within
120 days of filing complaint if PL doesnt show good cause for not completing service
1. Sewer Service
a. United States v. Brand Jewelers Inc
i. On back side of process server, people are supposed to say they served the
person, but Brand Jewelers filling services out fraudulently and debt
agencies were getting default judgments and poor people forced to pay
even though they were never actually served
ii. NY changed its statute to allow for substituted service (a problem and main
reason they were doing this is b/c locating these people and having to serve

10

them personally was hard and expensive) and instead of serving DE, can
serve under Rule 4 someone of reasonable age and discretion
iii. Wyman v. Newhouse
1. Concluded FL judgment against DE was void b/c he was induced into
state due to fraud (ex: GF said she was moving to Europe to care for
dying mom and wanted to see him before she left)
2. Court said we dont honor a states jurisdiction when hes tricked into
state
2. Service of Process and Statutes of Limitations
a. Legal limitation on how long after cause of action you can sue
i. In CA state court and federal courts with respect to federal claims, as long
as you get complaint on file before statute of limitations on file, youre in the
clear
ii. Some states require you get BOTH complaint AND summons on file before
statute of limitations expires
1. 1st duty of lawyer is to determine latest possible day for commencing an
action
III.

Venue
a. Def: refers to the place within a sovereign jurisdiction in which a given action is to be brought
and only matters if jurisdiction over the parties has been established
b. State action
i. At state trial, venue is determined by statute and the states are free to set up any venue
rules they wish without worrying about the federal constitution
ii. Basis for
1. Venue is authorized based on the county or city where DE resides
2. Many states also allow venue based on where cause of action arose, where DE does
business, etc.
iii. Forum non conveniens
1. State may use its discretion not to hear the case in a county where there is statutory
venue; sometimes this involves shifting a case to diferent place within the state or
not hearing case within state at all
2. Normally DE moves to have case dismissed or transferred under forum non
conveniens & court considers 3 factors:
a. Whether PL is a state resident (if so, he has stronger claim to have case heard in
his home state);
b. Whether the witnesses and sources of proof are more available in a diferent
state or county; and
c. Whether the forums own state laws will govern the action (transfer is more
likely if a diferent states law controls)
c. Venue in federal actions controlled by 28 U.S.C. 1391
i. Still need personal jurisdiction; venue is NOT a substitute for PJ just b/c venue lies in a
particular district does not automatically mean suit can be brought there
1. Suit can only be brought in a district that satisfies BOTH venue requirements and
personal jurisdiction requirements to ALL DEs
ii. Three ways there might be venue in a particular district:
1. If any DE resides in that district & all DEs reside in the state containing that
district;
2. If a substantial part of the events giving rise to the claim occurred or sub. part of
the property is the subject of the action is situated in district; and
a. There can be multiple districts qualifying for place of events venue as long as
each district was locus for a substantial part of the events
3. If at least one DE is reachable in district and no other district qualifies
a. Venue may be founded in a district where some or all DEs have close ties if there
is no district in which the action may otherwise be brought; THIS WILL NOT
HAPPEN OFTEN
4. Exceptions:
a. Any DE who does not reside in U.S. (including U.S. citizens domiciled abroad)
may be sued in any district. The non-residents presence is disregarded for
determining proper venue with respect to other DEs
iii. Corporation

11

1. Is a resident of any district where it has its principal place of business and its state of
incorporation;
2. A corporation is a resident for venue purposes in any district where the corporation
would have minimum contacts necessary to support PJ if that district were a
separate state
a. However, just b/c a corporation does business somewhere in the state does not
make it a resident of all districts in that state
d. Transfer of Venue
i. Federal forum non conveniens (not convenient)
1. Court transfers a case to another district rather than dismissing it under 28 U.S.C.
1404(a) for the convenience of parties and witnessesa district court may transfer
any civil action to any other district or division where it might have been brought
a. DE normally moves for forum non conveniens
i. Case may only be transferred only to a district where PL would have had the
right to hold suit - venue must be proper and there must be personal
jurisdiction
1. EX: if suit in particular district would not have been possible initially b/c
one or more DEs could not be personally served there or b/c venue
would not have been proper, even consent by all DEs would not
authorize action to be transferred to that district
b. Choice of law
i. When forum non conveniens is granted, the state law of transferor court
is applied to transferee court
ii. This is because venue was PROPER initially if it is being transferred under
form non conveniens, being transferred only because of convenience
2. Federal court will dismiss an action for forum non conveniens when the more
convenient forum is in a foreign country because it cannot transfer the case to
another country Piper Aircraft Co. v. Reyno
a. The fact the law may be less favorable or that procedures may be more limited
in alternative forum is not a relevant factor unless the remedy in alternative
forum is so clearly inadequate or unsatisfactory that it is no remedy at all
b. Holding: district courts ruling on forum non conveniens motion will not be
reversed unless court clearly abused its discretion
3. Forum non conveniens Analysis:
a. Is there an alternative forum?
b. Evaluation of public and private interest factors:
i. Private factors
1. relative ease of access to sources of proof
2. availability of compulsory process for attendance of unwilling, and cost
of obtaining attendance of willing witnesses
3. possibility of view of premises if view would be appropriate to action
4. all other practical problems that make trial of a case easy, fast, and less
expensive
ii. Public factors
1. Court congestion
2. Jurys interest in the claims
3. Difficulty of applying another countrys law
ii. Improper Venue 28 USC 1406
1. When an action is transferred under 1406, venue and personal jurisdiction were NOT
proper in original district where action was filed
2. If transferred under 1406, second district must have personal jurisdiction
3. A party may make a motion to transfer or a court may order transfer on its own (sua
sponte)
a. If DE files motion to dismiss for lack of improper venue, original district may
either grant motion to dismiss or transfer case to another district with venue and
PJ
i. This might be timely filed in original court, but if court dismisses claim, PL
has to refile and statute of limitations may have run out
b. Remember: DE must timely object to improper venue or improper venue
is waived

12

e. Forum Selection Clauses

i. Atlantic Marine Construction Co. SC held that motions under 1406 and Rule 12(b)(3) Motion
to dismiss for improper venue, are only appropriate when venue is wrong or improper under
28 USC 1391, the federal venue statute, not due to forum selection clause
1. The only way to enforce forum selection clause is through 1404 motion to transfer
IV.

Subject-Matter Jurisdiction
a. Does the court have jurisdiction over this type of case?
i. For a court to have SMJ there must be diversity (and amount in question exceeding $75k)
OR federal question
ii. Biggest diference between SMJ and PJ is that subject-matter jurisdiction can NEVER BE
WAIVED
a. Anytime a federal court doesnt have SMJ it must DISMISS the case
2. Note: the court must have BOTH subject-matter jurisdiction and personal jurisdiction
in order to be able to hear the case
b. SMJ of State Courts
i. Broad general jurisdiction often has specialized court to hear certain types of claims
1. State courts CANNOT hear claims arising out of:
a. Bankruptcy, federal securities law
b. Patent
c. Copyright
d. Federal antitrust law
e. Admiralty and maritime cases
i. If Congress has given federal courts exclusive jurisdiction like these
categories, state court cannot adjudicate and must dismiss claim
c. SMJ of Federal Courts
i. Article III, Section 1 of the Constitution mandates Congress est. a Supreme Court and gave
them the power to est. lower courts which they did
ii. Federal courts are of limited jurisdiction
1. Congress can limit power of judicial power of federal courts but cant enlarge
iii. Have jurisdiction over cases:
1. Arising from federal law and federal Constitution OR
2. With claims over $75,000 involving diversity:
a. between diferent states
b. citizens from diferent states
c. citizens and foreign citizens
i. EXCEPT: when foreign citizens permanently admitted and domiciled in same
state
d. Citizens of additional states and foreign citizens of additional parties
e. Foreign state as plaintif and U.S. citizens
f. cases involving foreign ministers and consuls and maritime cases
iv. Diversity Cases
1. Strawbridge v. Curtiss S.Ct. US 1806
a. Federal statute (predecessor to section 1332) was that federal courts had SMJ
when suit between a citizen of the state where the suit is brought and a citizen
of another state
b. Statute now provides 1332(a)(1) federal courts have jurisdiction where the
amount in controversy exceeds the sum or value of $75,000 and the
civil action is between citizens of different states
2. Thus, the rule was that there must be complete diversity and none of PL can be of
same citizenship as DE
v. Purpose of diversity jurisdiction
1. Keep in mind claims being asserted in diversity cases are state law claims that could
always be brought in state court
a. To eliminate bias state courts have towards its own citizens
2. Even if all requirements for diversity jurisdiction are satisfied, Supreme Court has held
federal courts will decline to exercise jurisdiction in cases of:
a. Domestic relations
b. Probate matters
vi. Determining Citizenship for Diversity

13

1. Person:
a. Person domiciled in a state with the intent to stay permanently
2. Corporation:
a. Place of incorporation OR
b. Principal place of business
i. In Hertz Corporation v. Friend, the Supreme Court decided a corporations
principal place of business for determining diversity is the nerve center
where CEO and major officers are making decisions
3. Noncorporate entity (like a charitable org, union, etc.):
a. By its individuals
4. Mas v. Perry Court of Appeals, 5th Circuit 1974
a. Creeper landlord put a two-way mirror in newlywed couples apartment while
they were finishing grad school in Louisiana
b. Argued federal court didnt have SMJ tried to say Mrs. was a citizen of
Louisiana, but didnt questions Mr. since he was a citizen of France
c. She was a resident of Mississippi but admitted she didnt intend to go back, but
court concluded:
i. She was a resident of Mississippi because while she didnt intend to go back
to Mississippi as her domicile, she didnt know where she and husband
moving after degrees
ii. Rule: for a person to change his/her domicile must have:
1. Intent to change domicile
2. Must actually get to new domicile
vii. Jurisdictional Amount
1. To litigate in federal court, jurisdictional amount must be over $75, 000
a. If PL seeks only non-monetary relief like permanent injunction, a court may
consider whether the value of relief to the PL exceeds $75,000 (or the cost to the
DE)
2. If Plaintif recovers less than that amount the court can impose a penalty on the
plaintif
a. Court may deny PLs costs and may charge them DEs costs (like filing, copies,
etc. but not attorneys fees)
3. Aggregation of claims
a. By a single plaintif
i. If a single PL has a claim in excess of $75K he may add any other claims of
his against the same DE even if other claims less than $75K
ii. If no single claim exceeds $75K he can ADD ALL CLAIMS against a single DE
as long as they total more than $75K this is okay too
iii. Additional DEs: a PL who has aggregated claims against one DE usually may
NOT join claims against other DEs for less than $75K
b. By multiple plaintifs
i. If at least 1 PL meets over $75K, other PL may join their related claims
against the same DE
1. This is allowed b/c of supplemental jurisdiction
ii. If no single PL has a claim or claims meeting jurisdictional amount,
aggregation is normally not allowed, but an exception when two or more PLs
unite to enforce a single title or right in which they have a common and
undivided interest
4. Counterclaims (jurisdictional amount)
a. Suit initially brought in federal court
i. If PL sues in federal court for less than $75K and DE counterclaims for an
amount (either by itself or added to PLs claim) exceeds juris amount, the
amount in controversy requirement is not bet
b. Removal by DE
i. If P sues in state court for less than $75K and D tries to remove to federal
court, amount in controversy problems likely work out like:
1. PL may NEVER REMOVE even if D counterclaims against him for more
than $75K
2. DE Removal: if DE counterclaims for more than $75K but PL original
claim less than $75K result depends:

14

a. Permissive counterclaim all courts agree DE may not remove

b. Compulsory counterclaim under state law, courts are split as to
whether DE may remove
viii. Diversity between citizens and aliens
1. There must be more the $75K in controversy and:
a. The action is between citizens of a state and aliens (foreign citizen); or
b. The action is between citizens of states and aliens are joined as additional
parties
d. Federal Question Cases
i. 28 USC 1331 Federal courts have juris over actions arising under the Constitution, laws, or
treaties of U.S.
1. Well-Pleaded Complaint Rule:
a. Under Mottleys well-pleaded complaint rule, a court considers only PL actual
claims set out on face of complaint in determining whether there is a federal
question NOT the DEs anticipated defenses or a DEs counterclaim (except for
copyright, patent, federal, trademark and plant variety protection claims per
1338)
2. Stat-Law Claims with Embedded Federal Issues:
a. Grable & Sons Metal Products v. Darue and Gunn v. Minton 4 prong analysis
in determining whether there is a federal question:
i. Whether resolution of the federal claim is necessary to the case;
ii. Whether the federal issue is actually disputed by the parties;
iii. Whether the federal issue is substantial in terms of its importance
to the federal system as a whole; and
iv. Whether the claim is capable of being resolved in a federal court
without disrupting the balance (division of labor) between federal
and state courts
e. Supplemental Jurisdiction
i. Section 1367(a)
1. Courts can exercise supplemental jurisdiction over all other claims that are so
related to the claims in the action within subject matter jurisdiction that they form
part of the same case or controversy (they derive from a common nucleus of
operative fact per United Mine v. Gibbs)
a. Supplemental jurisdiction shall include claims that involve joinder or intervention
of additional parties
2. Exception
a. If a diversity is the federal courts original basis for SMJ, court cannot
exercise supplemental jurisdiction over related claims by PL against
parties joined by impleader, required joinder,
ii. Federal question cases
1. Where original claim comes within federal question jurisdiction, 1367 allows court to
hear any closely related state law claims
2. Supplemental jurisdiction:
a. applies when related state claim involves same parties
b. allows additional parties to the state-law claim to be brought into the case
i.
3. Discretion
a. A federal court may decline to exercise supplemental juris over a related claim if:
i. it raises a novel or complex issue of State law
ii. claim substantially predominates over the claims within a courts SMJ
iii. the court has dismissed all claims within its SMJ or
iv. in exceptional circumstances
b. if federal court exercises its discretion to dismiss such related claims, the state
of limitation is tolled for 30 days for related claims and other claims voluntarily
dismissed from the action
f. Removal
i. Basically, any action brought in a state court that PL could have brought in a federal court
may be removed by DE to federal district court
1. i.e.: any claim that was a federal Q or there was diversity

15

ii.

iii.

iv.

v.

vi.

2. EX: PL from NJ sues DE from NY for $100K in NJ state court on an automobile

negligence case. DE may remove case to a federal district court in NJ
Timing
1. Notice of removal must be filed within 30 days of the complaint or, if the original
complaint isnt removable, within 30 days of the amended pleading, motion, or order
that is removable
a. All DEs must join in removal
2. A DE only gets one bite at the apple and must remove the action the first time the
action is removable
Diversity limitation
1. REMEMBER: In diversity cases, the case may be removed only if NO DE is a
citizen of the state in which the action is pending!!!
a. This reason a DE can remove a case to federal court is to avoid discrimination
and bias that state court may have towards its citizens, but if the DE is a citizen
of the forum and the case is a diversity case, then no bias would exist
b. EX: P from NJ brings a negligence claim against D from NY in NY state court
system. D may NOT remove case to federal court for NY because he is a citizen
of the state where the action is pending
2. However, if there was a federal Q, a kind of suit that can be brought in either state or
federal court, like trademark infringement, and there was diversity, D would be able to
remove to a federal district court in NY because diversity is not the sole basis for
removal
a. Exception: class actions can be removed even though one or more DEs are
citizens of forum
3. If basis for removal is diversity, the action may not be removed more than 1 year after
commencement of the action unless the court finds that PL acted in bad faith to
prevent removal
a. PL deliberate failure to disclose actual amount in controversy to prevent removal
is deemed bad faith
Where a suit goes when removed
1. When removed it passes to the federal district court for the district and division
embracing the pace where the state cause of action is pending
2. EX: if suit brought in San Diego state court, removal would be the federal district court
in Southern District of California encompassing SD
Only a DE may remove; a PL may NOT remove
1. A PL defending a counterclaim cannot remove
a. EX: P brings a suit for products liability against D and D counterclaims for libel in
an amount of $100K. PL is from Ohio; D is from Indiana and suit pending in
Michigan sate court. Even though P is not a resident of the state where action is
pending, P may not remove, b/c the right of removal is limited to defendants
i. Rationale for this because the PL is the master of her claims and she
chooses the forum
2. Right to removal based from face of pleadings;
a. EX: P badly injured in car crash caused by Ds negligence. While Ps medical bills
total $80K, P only sues for $60K for the purpose of thwarting Ds right to remove.
The jurisdictional allegations of P complaint control, so that D may not remove
even though more than $75k is really at stake
Removal of multiple claims
1. Where P asserts against D in state court two claims, one of which could be removed if
sued upon alone, and the other could not, complications arise:
a. Diversity case
i. If diversity claim gives rise to federal jurisdiction, if there is a second claim
(that is neither a federal Q or diversity) it defeats the DEs right to removal
entirely the whole case MUST stay in state court
b. Federal question case
i. Where the claim for which there is federal question giving rise to federal
jurisdiction and there is another claim separate and independent for which
there is no original federal jurisdiction (no diversity or federal Q), he MAY
remove the whole case as allowed by 28 USC 1441(c)

16

V.

c. EX: P and D1 both citizens of Kentucky. P sues in KT state court alleging federal
antitrust violations by D1. P also adds another claim against D1 and D2 also from
Kentucky, asserting both DEs have violated KT state unfair competition laws. 28
USC 1441(c) allows D1 and D2 to remove to a federal court, if the antitrust
claim is separate and independent from the state unfair competition claim
i. Remove entire case, remand state law claims if need be like in this case
vii. Remand
1. PL must file a motion to remand to state court within 30 days of filing of the notice of
removal in federal court if the basis for remand is a defect other than subject-matter
jurisdiction
2. The court must remand the case to state court if at any time before final judgment it
appears that the court lacks SMJ
3. If 28 USC 1441(c) applies and case is removed to federal court, the federal judge
does not need to hear the entire matter; the court may instead remand all matters in
which state law predominates
a. Remand even the federal claim
i. The federal court, after determining that removal is proper, may remand ALL
CLAIMS, even the properly-removed federal claim if state law
predominates the whole controversy
4. Compulsory Remand
a. If federal judge concludes removal did not satisfy that statutory requirements,
she MUST remand the case to state court from which is came
b. EX: If in diversity case it turns out that one or more DEs was a citizen of the state
where state suit was commenced, the federal judge must remand case to state
court where it began
5. Mechanics of removal
a. DE must usually file for removal within 30 days of time he receives servie of
the state-court complaint
b. All DEs MUST join in the notice of removal
i. But if removal occurs under 28 USC 1441(c)s separate and independent
federal claim provision, then only DEs to the separate and independent
federal claim needs to sign the notice of removal
Pleadings
a. Generally, 2 types of pleadings complaint and the answer
i. Complaint document by which PL begins the case
ii. Answer DEs response to the complaint
iii. Reply a third document, basically the answer to the answer
1. Is allowable if 1) the answer contains a counterclaim (this would make the reply
required); and 2) at the PL option, if PL obtains a court order allowing the reply
iv. Other pleadings that set forth claims
1. Counterclaims
2. Cross-claims
3. Third party complaints/impleader
v. No verification generally
1. Pleadings in a federal action normally need not be verified (sworn by litigant) but
exceptions are Rule 23.1 and 65(b)
vi. Attorney must sign pleadings
1. This is trust for both the complaint and the answer by signing the lawyer indicates
that to the best of her belief, formed after reasonable inquiry:
a. the pleading is not interposed for any improper purpose (e.g harassing or
causing unnecessary delays)
b. the claims and defenses are warranted by existing law or an argument for
changing existing law and are not frivolous
c. factual contentions or denials have evidentiary support
i. Rule 11 this is basically to make sure arguments are real
2. Sanctions if Rule 11 is violated (e.g. the lawyer knows that the complaint is not wellgrounded in fact or supported by any plausible legal argument)
a. the court may on its own or pursuant to a partys motion impose on either the
signing lawyer, law firm, or party to deter such conduct
b. Sanctions can include:

17

b. The
i.
ii.

iii.

i. Nonmonetary directives
ii. Paying a penalty to the court
iii. Paying the moving partys expenses including attorneys fees
c. A court may not impose monetary sanctions on a represented party for asserting
frivolous claims, defenses, or other legal contentions
3. Safe harbor
a. A party against whom a Rule 11 motion is made, has a 21-day safe harbor
period in which she can withdraw or modify the challenged pleading and thereby
avoid any sanction
i. Because the motion for sanctions must be served on the other party at least
21 days before filing it with the court
Complaint
Is the initial pleading in a lawsuit and is filed by the PL
Commences the action
1. The date of filing the complaint is what counts for statute of limitation purposes in
federal question suits (commencement in diversity suits for statute of limitation
purposes depends on how state law defines commencement)
3 Elements of the complaint FRCP 8(a):
1. Jurisdiction
a. A short and plain statement of the grounds upon which the courts
jurisdiction depends
2. Statement of the claim
a. Short and plain statement of the claim showing that the pleader is
entitled to relief; and
i. Court accepts all factual allegations as true
ii. Claim must state plausible entitlement to relief
3. Relief
a. A demand for judgment for the relief (e.g. money, damages, injunction,
etc) which the pleader seeks
i. Court accepts all factual allegations as true
ii. Claim must state plausible entitlement to relief (plausibility determined by
judge based on experience and common sense)
iii. LEGAL CONCLUSIONS ARE NOT VALID/CONSIDERED
1. Twombly/Iqbal
iv. PL doesnt have to specify amount in prayer, but if claiming diversity juris PL
would in jurisdiction have to state the matter in controversy exceeds $75K
v. Note: Rule 9 imposes heightened pleading requirements for fraud, mistake,
and special damages
4. Dismissal
a. Not a lot of factual allegations required in complaint, but if facts are too sparse, a
DE may make motion to dismiss for failure to state a claim on which relief may
be granted (Rule 12(b)(6) motion)
i. A bit hard for DE to satisfy this standard, but if court, after assuming all
factual allegations in complaint are true, cannot plausibly infer that the DE
is liable, the court will dismiss the complaint for failure to state a claim
ii. New Standard resulting from Iqbal:
1. A Court should accept all factual allegations as true, but a court should
not consider legal conclusions or legal conclusions couched as factual
allegations to be true
2. Only a complaint that states a plausible claim for relief survives
a motion to dismiss
a. Plausible means more than a possibility but less than a
probability
b. Facts merely consistent with a DEs liability arent
sufficient
c. A court determines whether a claim is plausible based
upon judicial expertise and common sense
b. Demurrer instead of motion to dismiss is used in state courts like CA
c. This motion happens at outset of litigation before discovery

18

5. Certain special matters that must be pleaded with particularity if they are to be
raised at trial
a. Rule 9 lists special matters (fraud or mistake, special damages):
i. Denial of a partys legal capacity to sue or be sued;
ii. The circumstances giving rise to an allegation of fraud or mistake;
iii. Any denial of performance or occurrence of a condition precedent;
iv. The existence of judgments or official documents on which pleader plans to
rely;
v. Material facts of the time and place;
vi. Special damages; and
vii. Certain aspects of admiralty and maritime jurisdictions
b. Rationale for special pleading requirements fraud higher risk/defamation a
persons name could be very damaging even if false, so want to make sure they
are real claims
i. Note: special pleading requirements apply to the answer as well as to the
complaint
c. Failure to plead
i. Pleader takes the full risk of failure to plead any special matter
ii. EX: PL brings diversity claim for breach of contract against DE. PL has
sufered unusual consequential damages, but fails to plead these special
damages are required by Rule 9(g). Even if P proves these items at trial, PL
may not recover these damages unless court agrees to specially permit this
variance between proof and pleadings
iv. Plausibility standard
1. Under recent Supreme Court decisions, 12(b)(6) motion to dismiss for failure to state
a claim can succeed by demonstrating that even if every fact asserted is true, no
recovery is plausible under any legal theory.
a. This standard is easier for DE to satisfy than requirement before 2007
amendment
2. Pure legal conclusions dont qualify for facts that are assumed to be true
3. Ashcroft v. Iqbal
a. PL a Pakistani Muslim was imprisoned by federal authorities after 9/11. Brings
federal civil-rights action against DEs (U.S. Attorney General and FBI Director).
He alleges DEs knew and approved of their subordinates lan to imprison PL and
hundreds of other Muslim men in extra-harsh conditions solely on account of
mens race, religion or national origin, thus violating their constitutional rights.
The two DEs moved for dismissal under Rule 12(b)(6) alleging tht even if the
subordinates intentionally violated PLs rights, PL has not sufficiently alleged
facts showing that the 2 DEs acted with a discriminatory purpose (as is required
by substantive rules for supervisor liability in such cases)
b. Holding: DEs complaint dismissed. While factual allegations must be taken as
true, pure legal conclusions do not qualify for this taken as true treatment; those
allegations that are truly factual must plausibly suggest that PL is entitled to
relief
c. In determining whether complaint meeting plausible suggestion of entitlement
to relief standard, trial judge is to draw on his judicial experience and common
sense
d. Rationale complaint doesnt satisfy plausibility standard b/c even taking PL truly
factual allegations as true, the more likely explanation of DEs motives is that
they were making a bona fide pursuit of national security, not acting for
forbidden discriminatory purposes
e. Iqbal was a 5-4 vote
f. Where PL lacks personal knowledge because DEs are in sole control of the
relevant records or testimony is when plausibility standard will make the biggest
diference
i. Cases trying to hold supervisors liable for violations of civil rights laws (like
in Iqbal) or employment discrimination laws are good illustrations
ii. When plausibility requirement makes a diference, the main way it will do so
is that D gets spared from having to undergo discovery, meaning PL case
gets dismissed before he gets to examine DEs files for take depos

19

g. Justice Souters Dissent

i. Agrees with majority that 2 allegations in complaint did not state a plausible
entitlement to relief for unconstitutional discrimination, but said we must
read the entire complaint as a whole
1. There are all kinds of factual allegations, we cant just look at some kind
of conclusory statements
c. Rule 12 Motions (can be made in lieu of serving an answer within 21 days of being served with
summons and complaint, a counterclaim, crossclaim, etc)
i. Rule 12(b) Motion to Dismiss for
1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficiency of process
5. Insufficiency of service of process;
6. Failure to state a claim upon which relief may be granted; and
7. Failure to join a necessary party under Rule 19
a. EX: If PLs complaint is barred by statute of limitations, D should move under
12(b)(6) for failure to state a valid claim. If court is convinced that under the
facts alleged by PL, any cause of action would be time barred the court will
dismiss
8. If a court denies 12(b) motion to dismiss, the DE has 14 days to file an answer
ii. Rule 12(c) Motion for Judgment on the Pleadings
1. Made after pleadings are closed but early enough not to delay trial
2. Equivalent to 12(b)(6) motion to dismiss on ground that PL failed to state a claim upon
which relief can be grated.
iii. Diference is timing as motion for judgment on pleadings is brought after all parties have
responded to pleadings
iv. Rule 12(e) Motion for More Definite Statement if complaint so vague or ambiguous that the
DE cannot reasonably prepare a response
v. Rule 12(f) Motion to Strike may be made by DE if PL has included redundant, immaterial,
impertinent or scandalous material in the complaint
vi. Rule 12 (g) and (h)(1) Waivable defenses waived if not asserted in partys Rule 12
motion or its answer, which ever is filed first:
1. lack of personal jurisdiction
2. improper service
3. insufficient process
4. improper venue
a. EX: D is sued by PL in TX in federal court in a diversity action. D has no
connection with TX. DE brings 12(b)(6) motion to have complaint dismissed for
failure to state a claim on which relief can be granted. By bringing this 12(b)
motion and not including a 12(b)(2) motion to dismiss for lack of personal
jurisdiction, DE has waived his right to have the cased dismissed for lack of PJ
b/c that defense was available to him at the time he brought the 12(b)(6)
motion
vii. If DE omitted a defense, he has 21 days to amend his answer to add defense including
waivable defenses Rule 12(h)(1)(b)
viii. Other defenses:
1. Failure to state a claim Rule 12(b)(6) and failure to join a required party pursuant to
Rule 19 may be asserted up to and including trial
ix. Subject Matter Jurisdiction:
1. A court must dismiss at any time it determines it lacks SMJ
d. IDEAL EXAM QUESTION: If DE files motion to dismiss under Rule 12(b) for any reason, what
defenses may be waived if not included in that first motion?
i. Always have to object to personal jurisdiction first thing
ii. Improper venue must also be objected immediately
iii. Service of process must also be objected immediately
iv. *******if you have objections to both of these, you need to have filed them all at once,
because if you do not, you will have consented
1. Rationale judge doenst want the lawsuit going on and later on when it is not going
well for a party they raise one of the defenses and wastes courts time

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e. The Answer Rule 8(b) and 12(a)

i. DEs response to complaint is an answer; within 21 days of being served with a
summons and complaint, counterclaim, or a crossclaim the party must:
1. State its defenses to each claim asserted against it
2. Admit or deny the allegations of the opposing party, or state that the party
lacks knowledge or information sufficient to form a belief about the truth of
an allegation; in which case, the statement has the effect of a denial; and
3. Affirmatively state any avoidance or affirmative defenses
ii. Signed by DEs attorney is a must because like with the complaint, it certifies that attorney
has read the pleading, believes it is well-founded, and that it is not interposed for delay
Rule 11
iii. Types of Denials
1. Rule 8(b)(6) - claims not denied in the answer are deemed admitted
2. Kinds of denials
a. General denial he denies each and every allegation in PLs complaint
i. Not very common
b. Specific denial denies all allegations of a particular paragraph or count of the
complaint
c. Qualified denial denial of a particular portion of a particular allegation
d. Denial of knowledge or information DE says he doesnt have enough
knowledge or sufficient information to form a beliefs to the truth of PLs
complaint (but DE must do this in good faith)
i. If the matter is public record and you shouldve known, you do not lack
knowledge
e. Denial based on information and belief DE says I dont know Im sure, but I
reasonably believe that PLs allegation is false
i. This is often used by large corporationorate DEs
iv. Affirmative defenses
1. Must be explicitly pleaded in the answer if DE is to raise them at trial; sometimes hard
to explain even if PL were to prove this against me, I can show Im not liable
a. Rules 8(c) and 19 list specific affirmative defense
i. contributory negligence
ii. fraud
iii. res judicata
iv. state of limitations
v. illegality
vi. assumption of risk
vii. accord and satisfaction; arbitration and award; duress; estoppel; failure of
consideration; injury by fellow servant; license; payment; waiver; laches
2. Any defense which relies on the facts particularly within the DEs knowledge is
likely to be found an affirmative defense
v. Alternative pleading
1. Defenses, like claims may pleaded in the alternative (EX: in breach of contract suit, D
can in count 1 of his answer state that no contract ever existed, and in count 2 state
that if such contract did exist, it was breached by PL not DE)
vi. Counterclaim
1. If DE has claim against PL, he may (in all cases) and must (in some cases) plead that
claim as a counterclaim (in addition to asserting affirmative defenses)
a. Compulsory counterclaim
i. If DE is required to plead counterclaim
ii. Compulsory if it arises out of the same transaction or occurrence
that is the subject matter of the PLs claim as stated by Rule 13(a)
b. Permissive counterclaim
i. If DE has option of pleading or not
f. Time frames for pleadings
1. Complaint
a. Filing of complaint usually occurs before it is served; service must them normally
occur within 120 days Rule 4(m)
2. Answer Rule 12

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a. Once served with summons and complaint, a party must file an answer within 21
days
3. Reply to a counterclaim Rule 12
a. PL must serve his reply within 21 days after service of answer
g. Freebie Amendment of Pleadings without written consent of opposing party or leave of
court
i. Complaint
1. May amend complaint once as a matter of course once within 21 days after service
of an answer or Rule 12(b), (e), or (f) motion
ii. Answer
1. Party may amend an answer once as a matter of course within 21 days after serving
it.
a. May include omitted affirmative defenses
b. May include omitted waivable defenses under Rule 12(b) but only if party had
not previously served a Rule 12(b) motion omitting those defenses see Rule
12(h)(1)(B)(ii)
i. If answer is the first thing you file, you can also put in waivable defenses
you didnt include in original answer
ii. If you made a Rule 12 motion to dismiss and didnt have waivable defenses
in there, you cant put them in your answer at all whether you amend it or
not
iii. Other Amendments
1. In all other cases a party may amend its pleading only:
a. By stipulation
i. with the opposing partys written consent or the courts leave
b. By the Court
i. Court should freely give leave when justice so requires
ii. Court considers moving partys undue delay, bad faith, dilatory motive,
repeated failure to cure deficiencies by amendment, the futility of
amendment, and prejudice of the opposing party
iv. Time to Respond to Amended Pleadings
1. Unless court orders otherwise, any required response to an amended pleading must
be made within the time remaining to respond to the original pleading or within 14
days after service of the amended pleading, whichever is later
h. Amendments during or after trial
i. Rule 15(b)(1) provides that in some cases the court may allow a pleading to be amended
during trial
1. If a party objects but court concludes that allowing amendment will aid in presenting
the merits and the objecting party will not be prejudiced, the court may permit the
amendment (since you need the courts permission, its not a freebie amendment so it
doesnt matter if youve already used this freebie amendment)
ii. Rule 15(b)(2) if either of parties have either expressly or impliedly tried an issue that wasnt
raised by the pleadings, the court must allow an amendment in order for pleadings to
conform to the evidence even after judgment
1. Can amend pleadings whenever basically amending after judgment is more of a
formality but you dont have to
iii. Factors court considers when deciding whether to allow an amendment during trial:
1. Undue delay (judge will look at if DE wanted to amend complaint to assert defense,
knew it all along, but waited until statute of limitations expired
2. Bad faith or dilatory motive on part of movant
a. Judge has set trial date and you dont like that date, you already made motion to
judge to get date changed and it was denied; in order to get it delayed you add
a new claim this overlaps a lot with undue delay
3. Repeated failure to cure deficiencies by amendments previously allowed
4. Undue prejudice to the opposing party by virtue of allowance of amend
a. Might be doing something to add expense or making it difficult for other side to
prove
5. Futility of amendment
iv. Relation Back and New Claims Rule 15(c)(1)

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1. Relation back problems arise when a party seeks to amend a pleading after statute of
limitations has expired on the claim
a. an amendment relates back to original filing date if the new claim or defense
arises out of the same conduct or occurrence set out in the original pleading
sufficient to give opposing party notice Rule 15(c)(1)(B)
2. An amendment to a pleading relates back when:
a. Law providing statute of limitations allows relation back
b. Proposed amendment asserts a claim or defense that arose out of conduct,
transaction or occurrence set out or attempted to be set out in the original
pleading
c. Linchpin to Rule 15(c) is notice [to the opposing party] before the limitations
period expires Marsh v. Coleman
3. An amendment changing the party or naming party against whom claim is asserted
satisfies Rule 15(c) if:
a. Law that provides applicable statute of limitations allows relation back; or
b. Within 120 days of filing complaint (the period provided by Rule 4(m), the party
to be brought in by amendment:
i. Received such notice of the action that it will not be prejudiced by defending
on the merits; and
ii. Knew or should have known that the action would have been brought
against it but for a mistake concerning the proper partys identity
c. A partys delay in amending to change the party or whether the party should
have known the identity of the proper DE are not factors in determining whether
the amendment relates back Krupski v. Costa Crocierie US S.Ct. 210
VI.

Default Judgment Rule 55 and 60

a. Entry of default
i. If party shows DE failed to answer or otherwise defend, court clerk must enter default Rule
55(a)
ii. Entry of default cuts of DEs opportunity to file an answer or Rule 12 motion
b. Default judgment
i. Upon PL request, clerk may enter default judgment if claim is for a sum certain or can be
made certain and DE has not appeared otherwise PL must apply to court for default
judgment
ii. If DE has appeared, DE must be given written notice of the application for default judgment
7 days before the courts hearing Rule 55(b)
iii. Court may consider a number of matters including the amount of damages and the truth of
the allegations in deciding whether to enter default judgment
c. Setting aside entry of default
i. Court may set aside entry of default for good cause Rule 55(c)
d. Setting aside default judgment
i. A court may set aside default judgment for mistake, inadvertence, surprise, or excusable
neglect: Rule 60(b)(1) or if the judgment is void Rule 60(b)(4)
1. Under Rule 60(b)(1) the motion to set aside default judgment must be made no more
than a year after entry of judgment
ii. Court may consider whether DE acted in bad faith in not responding to lawsuit, whether the
PL has been prejudiced, and whether DE has meritorious defenses to the action

VII.

Trial Motions
a. Voluntary and Involuntary Dismissals
i. Freebie Voluntary Dismissal
1. PL may dismiss an action by filing a notice of dismissal before opposing party serves
either an answer or motion for summary judgment
2. Caution: if PL has previously dismissed an action based on the same claim in either
state or federal court by notice of dismissal or stipulation of the parties, filing a notice
of dismissal in a subsequent action in federal court operates as an adjudication on the
merits
ii. Voluntary Dismissal by Stipulation or Court Order
1. PL may dismiss an action by requesting dismissal from court (by filing a motion) or by
filing a stipulation of dismissal signed by all parties who have appeared in the action

23

2. Unless the stipulation or court order dismissal state otherwise, the dismissal is
without prejudice
iii. Involuntary dismissal
1. Among other reasons, court may dismiss an action for PL failure to prosecute the
action (or failure to state a claim)
a. Unless the dismissal states otherwise, an involuntary dismissal operates as an
adjudication on the merits (i.e. is with prejudice)
2. Dismissals for lack of subject-matter, personal jurisdiction, improper venue, or failure
to join a required party do not operate as an adjudication on the merits (i.e. are
without prejudice)
iv. Involuntary dismissal
1. They operate as an adjudication on the merits they are with prejudice
2. Court may dismiss an action for PL failure to prosecute the action (or failure to state a
claim)
VIII.

Discovery and Pretrial Conference

a. Types of discovery and characteristics common to each
i. Depositions, interrogatories, requests to produce, requests for admission, and requests for
examination
1. Extrajudicial
a. all except requests for physical examination operates without intervention of the
court
b. Court will only intervene where one party refuses to comply with the others
discovery request
2. Scope
a. Is the same for all forms materials sought must be relevant to the subject
matter of the suit and unprivileged
3. Signature required
a. Every request for discovery and any response or objection to discovery must be
signed by the lawyer preparing it Rule 26(g)
4. Depositions are the only type of discovery that may be addressed to a party AND/OR
nonparty who possesses relevant information
a. All other types of discovery MUST be addressed to a party
b. Initial disclosures Rule 26(a) and (b) require parties provide to other parties:
i. Names and known addresses and telephone numbers of individuals with discoverable info
that the party may use to support its claims and defenses
ii. A copy or description by category and location of all documents, including electronically
stored information, in the disclosing partys custody or control that the disclosing party may
use to support its claims or defenses
iii. Computation of each category of damages claimed by disclosing party claimed by deposing
party
1. Including making available copies of non-privileged documents upon which
computation is based
iv. Any insurance agreement that may satisfy all or part of a judgment that could be entered in
action
c. Pretrial Conference:
i. Parties meeting should be held as soon as practicable after start of litigation or at least
21 days before scheduling conference is held or scheduling order is due under Rule 16(b)
which allows court to manage litigation through pretrial conferences with parties
d. Objections and Protective Orders
i. Parties must timely and expressly object to producing privileged information and
information subject to protection as trial-preparation material Rule 26(b)(5)
1. Object saying matter sought is not within scope of discovery (not relevant to subject
matter) or that it is privileged
2. Form of objection depends on the type of discovery:
a. Objection to interrogatory and request to admit
i. Written down as part of the set answers
b. Objection to deposition
i. Raised as an oral objection by lawyer representing deponent or party
opposing depo

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ii. A party or any person from whom discovery is sought may file a motion for a protective
order limiting or prohibiting discovery of information Rule 26(c)
1. When more than a few questions are at stake Rule 26 allows judge to make an order
to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense
a. Prohibition of public disclosure is a protective order that allows trade secrets or
other info to be discovered, but then bars the public disclosure of information by
discovering litigant
e. Scope of Discovery
i. any nonprivileged matter that is relevant to any partys claim or defenseRelevant
information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence Rule 26(b)(1)
f. Depositions
i. Rule 30 may be taken by any party of any person thought to have information within the
scope of discovery
ii. Subpoena
1. If a nonparty is to be deposed, discovering party can ONLY force the deponent to
attend by issuing a subpoena
a. Subpoena must require the depo to be held no more than 100 miles from place
where deponent resides, is employed, or regularly transacts business in person
Rule 45(c)(3)(A)(ii)
b. if a party is being deposed, no subpoena is used; non-compliance can be
followed up with a court order motion to compel discovery or to impose
sanctions under Rule 37
2. Rule 34 request to produce may also be attached to subpoena if person being
deposed is a party and the person seeking discovery want documents held by
deponent
iii. Each side is limited to 10 depositions and one day of 7 hours may be taken by each
party
1. Unless adversary agrees to more or court issues an order allowing more Rule 30(a)(2)
(A)(i)
2. The party seeking the deposition must give reasonable notice in writing to ever party
in the action, stating the name of the deponent, the time and place of deposition, and
what means will be used to record the deposition
iv. Method of recording Rule 30(b)(3)(A)
1. Stenographer (court reporter)
2. Audio tape recorder
3. Video recorder
v. Deposition on written questions Rule 31
1. Any party may take oral responses to written questions from any person (party or
non-party) thought to have discoverable information
2. Usually used for deposing distant non-party witnesses
g. Interrogatories Rule 33
i. Set of written questions to be answered in writing by person addressed to
ii. May only be address to a party
iii. Max of 25 questions unless parties or court order says otherwise
h. Requests for Admission Rule 36
i. Statements of the truth of any discoverable matters; a matter is admitted if the party fails
to serve a written answer admitting, denying, or objecting to the requests
ii. Coverage includes:
1. Statements or opinions of fact
2. Application of law to fact
3. Genuineness of any documents
iii. Expenses for failure to admit
1. If party fails to admit the truth of any matter requested for admission under Rule 36(a)
and party making request proves truth the court may require party who refused to
admit to pay reasonable expenses Rule 37(c)
i. Requests to produce documents or to inspect land Rule 34

25

i. Party may serve written request upon another party to produce specifically described
information, electronically stored info, tangible things, or to permit entry onto designated
property
1. any papers, photos, objects relevant to subject matter of case may be obtained
ii. other party must respond within 30 days of being served, stating its objections to the
request and what inspection will be allowed
iii. Party may be required to produce only those documents and other objects in her
possession, custody, or control
iv. Nonparties may be compelled to produce documents and tangible things or to permit an
inspection in response to a subpoena served pursuant to Rule 45
j. Physical and Mental Examination Rule 35
i. When the mental or physical condition of a party in question, court may order them to
physical/mental exam by licensed or certified examiner
1. Operates ONLY by court order which must specify the time and date, examiner, and
the conditions of conducting the exam
2. Mental or physical condition of party must be in controversy not enough that
condition would be somehow relevant like other discovery
ii. Actual medical report from Rule 35 examination is discoverable
1. A person examined may request, from the party causing the exam to be made, a copy
of examiners written report
2. BUT once examined party asks for and receives this report, the party who asked for
exam is entitled to reports of an OTHER exams made at the request of the examinee
for the same condition
k. Discovery Sanctions
i. Two types: protective order (abuse of discovery stopped) or compelling discovery order (a
recalcitrant party to furnish discovery)
ii. Abuse of discovery
1. When one party tries to use discovery to harass other party
a. EX: P requests DE reveal trade secrets or schedules 10 repetitive depos
2. Discoveree can fight back by:
a. Objecting
b. Protective order
iii. Motion for an Order Compelling Discovery or Disclosure Rule 37(a)
1. After conferring or making a good faith attempt to confer with resisting person or
party, the party seeking discovery may file motion with court compelling disclosure or
discovery based upon resisting person partys failure to comply with discovery
requests or evasive and incomplete responses or disclosure
2. order compelling discovery if discoveree fails to:
a. Answer the written or oral depo Q
b. Answer the interrogatory
c. Produce documents or allow an inspection
d. Designate an officer to answer deposition questions if the discoveree is a
corporationoration
iv. Failure to comply with a prior court order or a partys failure to comply with
discovery requests can result in:
1. Financial sanctions
a. Court may require discoveree to pay reasonable expenses other party incurred in
obtaining the order which includes attorneys fees for processing the order Rule
37(b)(2)(C)
2. Other additional sanctions
a. Facts established
i. Court may order that matters involved in discovery be taken to be
established
b. Claims or defenses barred
i. court may prevent disobedient party from making certain claims or
defenses, or introducing certain evidence
c. Entry of judgment
i. Court may dismiss the action
d. Contempt
i. Court may hold disobedient party in contempt of court

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l.

IX.

Use of Discovery at Trial

i. Use of depositions
1. Admissibility of depos determined through 2-part test:
a. Determine whether depo sought to be introduced would be admissible if
deponent were giving live testimony
i. If not, statement automatically inadmissible
b. Must fall within one of 4 categories (b/c depo rather than live testimony is itself a
form of heresay):
i. Adverse party
1. Or depo of a director or officer of an adverse corporationorate party
may be admitted for any purpose
ii. Impeachment
1. Depo of any witness, party or non-party may be used to impeach
witness credibility
iii. Adverse witness deposition for substantive purposes
1. Party may use depo of adverse witness for substantive purposes if it
conflicts with that witness trial testimony
iv. Other circumstances if any of the following relating to witness unavailability
exists
1. Deponent is dead
2. Deponent located 100 miles or more from trial
3. Deponent too ill to testify
4. Deponent not obtainable by subpoena
5. Exceptional circumstances that make it desirable to dispense with
deponents live testimony Rule 32(a)(4)
2. Partial ofering
a. If part of depo ofered into evidence by one party, the adverse party may
introduce any other party of depo which in fairness ought to be considered with
the part introduced Rule 36(a)(6)
i. EX: if one side reads part of an answer, the other side may almost always
read the rest of the answer)
ii. Interrogatories
1. May be used by an adverse party for any purpose
2. Not binding
a. Like depos are not binding upon maker he may contradict them in court (the
witness credibility will sufer, but witness not legally bound to prior statement)
iii. Admissions
1. Conclusively establish the matter admitted
iv. Physical and Mental Exams
1. Almost always admissible in trial

Joinder of Parties and Claims

a. Questions to ask:
i. Is there a rule allowing joinder?
1. There must be a federal rule that allows the type of joinder desired
ii. FRCP 18 and 20 liberally allow the joinder of claims and parties but there must be either
SMJ or supplemental jurisdiction
iii. Remember that assertion of a claim by the opposing party may give rise to the need to
assert a compulsory counterclaim
iv. Preclusion rules, depending on the jurisdiction, may also dictate that a party bring all
transactionally-related claims that the party has against the opposing party
b. Rule 18: Joinder of Claims:
i. If a party asserting a claim, counterclaim, crossclaim, or third-party claim (impleader), the
party may join as may other claims as it has against an opposing party
ii. Remember the anchor claim rule:
1. Once a claim satisfies a particular type of joinder, additional claims may be added to it
pursuant to Rule 18
2. Caveats:
a. There has to be an independent basis for subject matter jurisdiction or
supplemental jurisdiction over claims

27

b. And preclusion rules may mandate that a party assert all transactionally-related
claims
c. Rule 20 Permissive Joinder of Parties
i. Parties that may be joined under permissive joinder under FRCP 20(a)
1. Single transaction:
a. The partys rights or liabilities must stem from the same transaction or
occurrence; and
2. Common question
a. There must be ONE common question of law or fact that ties all the plaintifs (or
all the DEs) together
ii. PL may join as PLs in one action if they assert a right to relief arising out of same
transaction or occurrence AND any common question of law or fact common to all PL will
arise in the action
iii. DE may be joined in one action as DEs if any right to relief is asserted against them with
respect to the same transaction, occurrence, or series of occurrences AND any common
question of law or fact common to all DEs will rise in the action
d. Compulsory Joinder - Required Parties under Rule 19
i. Questions to ask:
1. Is the absentee a required party to the litigation because the absentee either has an
interest that will be impaired or an existing party faces a substantial risk of incurring
multiple liability or inconsistent liabilities if the absentee isnt made a party?
2. If the absentee is required, is it feasible to join him as a party to the pending
litigation or are there problems with personal jurisdiction, venue, subject matter
jurisdiction, or sovereign immunity that make joinder of the absentee impossible?
3. If it isnt feasible to join the absentee, can the court in equity and good conscience
proceed with the litigation or should it dismiss the action?
4. Caveat:
a. If original basis of courts jurisdiction is diversity, there must be an independent
basis for subject-matter jurisdiction over a PLs claim against the absentee or the
absentees claim as a PL against a DE.
i. Section 1367(b) prohibits the district court from exercising supplemental
jurisdiction over a PLs claim against an absentee joined as a party under
Rule 19 or over claims by the absentee if joined as a PL under Rule 19
ii. An outsider deemed indispensable or necessary party must be joined, if feasible (i.e. if
there are no personal or subject matter jurisdiction, venue, or process problems)
1. Examples include: all beneficiaries of a trust when action is to fix shares in a trust; all
partner in a suit by one partner to dissolve the partnership
2. If an indispensable party cannot be joined theres the threat of dismissal, but this is
not the case if a necessary party cannot be joined
iii. Basis for requiring compulsory joinder:
1. Complete relief
i. His joinder is required in order to give complete relief to the parties; or
2. Prejudice
a. Without him, the proceeding would be substantially prejudicial because it would
either
i. Impede the non-partys ability to protect his interest in later proceedings;
OR
ii. Expose the existing parties to the risk of multiple liability or inconsistent
obligations
3. ****If either of these is satisfied and the non-party can be joined, he must be joined! If
he cant be joined the court must determine if in equity and good conscience, the
action should be dismissed.
a. In determining whether someone is an indispensable party or only necessary
party, court considers 4 factors under FRCP 19(b):
i. Prejudice
1. Extent to which a party will be prejudicial to him or existing parties;
would it be serious and immediate or remote or minor?
ii. Framing of judgment
1. Extent to which prejudice may be lessened or avoided
iii. Adequacy of remedy

28

1. Whether an appropriate remedy may be rendered in the outsiders

presence
iv. Result of dismissal
1. Whether the PL will have an adequate remedy if the action is dismissed
(court should consider whether PL could sue efectively in another
forum where better joinder possible)
b. Note: joint tortfeasors are NOT subject to compulsory joinder!
c. If a court dismisses a case due to inability to join an indispensable party, this is
NOT adjudication on the merits; it has no res judicata efect and the PL may
bring a new suit on the same claim
iv. Compulsory joinder is NOT subject to supplemental jurisdiction in diversity cases
28 USC 1367(b)
1. Almost any joinder party will have a jurisdiction problem so be sure to assess SMJ,
a. GJ is there a federal question or diversity and amount in controversy must be
more than 75k
i. If joining party on diversity basis, even if main question is a federal question
you MUST do diversity assessment for new claim
b. PJ - Is party outside a courts juris and states long arm statute does not reach
them
2. If a non-party is considered an indispensable party, but his presence would destroy
diversity, the judge will look to diferent factors to determine if the case should be
dismissed:
v. Reason/Purpose for joinder of parties
1. EFFICIENCY if all cases limited to single PL and single DE courts would be more
crowded than they are now
e. Rule 13(a) Compulsory Counterclaims
i. Compulsory
ii. Asserted by a party in the defensive position against opposing party
iii. Arises out of the same transaction or occurrence that is the subject of the opposing partys
claim
iv. Supplemental jurisdiction may be exercised if there is no independent basis for subjectmatter jurisdiction
f. Rule 13(b) Permissive Counterclaims
i. Permissive
ii. Asserted by a party in a defensive position against the opposing party
iii. any claim that is not compulsory
iv. usually requires an independent basis for subject-matter jurisdiction
1. some courts have exercised supplemental jurisdiction if the permissive counterclaim is
broadly related (satisfying 1367(a)) to the opposing partys claim, even though it
doesnt arise out of the same transaction or occurrence (which these courts interpret
as a narrower test)
X. Jurisdiction over joined claims
a. Permission under the joinder rules to assert a claim, while necessary, is not sufficient to allow
the court to hear it
i. We must always have SUBJECT MATTER JURISDICTION over joined claims
ii. Frequently the rules will authorize joinder of claims over which there is no independent
basis for SMJ
iii. Examples of the problem:
1. B sues A and both are from the same state; his first claim is a federal claim where
jurisdiction is proper, but he also joins a state law claim related to the federal claim
(this claim is properly joined under Rule 18(a))
i. There is no basis for SMJ over the state law claim
2. B sues A and both are from the same state; his first claim is a federal claim where
jurisdiction is proper. A counterclaims a state law claim that arises from the same
occurrence as Bs claim (this is a compulsory counterclaim under Rule 13(a))
i. There is no basis for SMJ over the state law claim
3. B sues A and both are from the same state; his first claim is a federal claim where
jurisdiction is proper. A impleads a third party C, who he claims is negligent and can
be liable to him for contribution under Rule 14(a)(1)

29

i. This is proper under the rues and existence of common issues but no
independent basis for SMJ b/c impleader claim is a state law claim between
two citizens of the same state
b. United Mine Workers v. Gibbs
i. PL asserted jurisdictionally proper claim in federal court against a nondiverse party and
added on a related state law claim
ii. Holding: Article III grants jurisdiction over entire cases not just over particular claims or
issues in a case; if a case includes a claim that is jurisdictionally proper under Article III, the
court has the constitutional power to hear the entire dispute
1. As long as PL asserts proper claim based on federal law, diversity, or some other
federal ground, the federal court has the constitutional power to hear other claims
arising out of the same common nucleus of operative facts
a. Federal courts have the power to hear claims that arise from same nucleus of
facts, but courts NOT REQUIRED to entertain related claims
c. Owen Equipment v. Kroger
i. PL sued diverse DE who impleaded Owen who was not diverse; Kroger then asserted a
direct claim against Owen (no independent basis for SMJ);
ii. Holding: since Kroger could not have sued both original DE and Owen in together originally
in federal court, it would ignore the statutory limits on jurisdiction to allow her to do so
indirectly after Owen was brought in as a third-party DE
d. TEST used by judges to determine if they should hear related claims:
i. Step 1: does the second claim with no basis for SMJ arise out of the common nucleus of
operative facts
ii. Step 2: Court must determine whether there is a statutory grant of jurisdiction over related
claim
1. In most cases 1367 provides this
a. 1367(a) grants juris over all related claims part of the same case as Kroger
and broadly grants statutory authority
b. 1367(b) certain claims in diversity cases that would break diversity are not
accepted
iii. Step 3: once judge ascertains he has the constitutional and statutory power to hear the
related claim, he must determine whether it makes sense to exercise that jurisdiction. He
considers:
1. Whether state law claim predominates
2. Whether it would require the court to decide sensitive or novel issues of state law
3. Whether hearing the claims together might confuse the jury
4. Whether the federal issues are resolved early in the case leaving only a state claw
claim for decision
iv. These factors might lead a court to conclude that while the first part of Gibbs test gave
them the power to hear related claims, it should refuse; if it declines jurisdiction over state
law claims and dismisses them, these claims may be brought in state court
v. Notes:
1. A valid crossclaim will always get in because it necessarily follows that it arose
out of the same transaction or occurrence
a. This is also true of compulsory counterclaims
b. These are the anchor claims you need before you can join any unrelated claim
2. Then once there is an anchor you can join unrelated claims but
a. There must be independent basis for SMJ (everything else like PJ and
service, venue, must be satisfied too, but if facts dont mention anything about
them which they likely wont, we do not need to mention them in our answer)
XI. Motion for Summary Judgment Rule 56
a. Party may move for SJ on a claim or defense or part of one
b. Standard
i. Court must grant SJ if moving party demonstrates that there is no genuine dispute as to the
material fact and the movant is entitled to judgment as a matter of law
ii. If moving party for SJ on a claim doesnt bear the burden of proof at trial, party doesnt
need to disprove claim
1. Moving party satisfies its initial burden by showing opposing party doesnt have
sufficient evidence for a reasonable jury to find in its favor

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a. Celotex Corporation v. Catrett

iii. In determining whether party opposing SJ has sufficient evidence in support of its claims for
the case to go to jury, court must consider opposing partys evidence in light of burden of
proof that party bears at trial
1. Anderson v. liberty Lobby
iv. Support:
1. SJ motions and oppositions to SJ motions may be supported by affidavits or
declarations as well as other evidence including materials in the record and/or
produced during discovery
v. Judges Role
1. A judge is objective and doesnt weigh evidence or make credibility determinations
2. Non-moving partys evidence is to be believed and all justifiable inferences are to be
drawn in her favor
XII.

Trial and Post Trial Motions Rule 50

a. Judgment as a Matter of Law
i. Once a party has been heard on an issue during a jury trial, opposing party may move for
judgment as a matter of law on ground that party lacks sufficient evidence for a reasonable
jury to find in that partys favor
ii. Motion may be made anytime before case submitted to jury
b. Renewed Motion for Judgment as a Matter of Law
i. After trial and no later than 28 days after entry of judgment, party may file a renewed
motion for judgment as a matter of law and may alternatively file a motion for a new trial
c. Note:
i. In ruling on motion for judgment as a matter of law during trial or a renewed motion after
judgment, the judge does not weigh evidence or consider the credibility of witnesses
d. Motion for a New Trial Rule 59
i. Timing
1. Party may file motion for new trail no more than 28 days after entry of judgment
ii. Who:
1. Party may file motion OR court on its own may order a new trial
iii. Grounds:
1. for any reason which a new trial has heretofore been granted in an action at law in
federal court Rule 59
a. Size of jurys verdict contrary to weight of the evidence
b. Jurys verdict is contrary to the weight of the evidence
c. Improper influence over a juror
d. Newly discovered evidence
e. Improper jury instructions
f. Evidentiary errors
2. Judges Role
a. The judge MAY weigh the evidence and consider her belief )or disbelief) in the
witnesses when deciding whether to grant a new trial

XIII.

Claim Preclusion (Res Judicata)

a. Questions to Ask:
i. Is a claim barred by an earlier adjudication?
ii. Was there a valid, final judgment in the first action?
1. A valid final judgment includes dismissals for failure to state a claim and default
judgments, but not dismissals or lack of personal or subject-matter jurisdiction,
improper venue, or failure to join a necessary party
iii. Are the same parties (or those in privity) in both actions?
1. Is there a substantive legal relationship between the parties?
iv. Is the same claim involved in both actions?
1. Most jurisdictions consider a claim to consist of all transactionally-related claims
a.k.a. the transaction test
a. Other tests used include the same-evidence test and the same legal rights test
b. Transaction Test
i. Most common test to determine definition of cause of action

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ii. Provides that any act or series of occurrences out of which the action arose = one cause of
action
c. A prior judgment will not be valid when:
i. The first court clearly lacked subject matter jurisdiction
ii. There were defects in notice; or
iii. The first court lacked personal jurisdiction over the defending parties
d. Terminology:
i. A claim is merged if PL won in the first suit
ii. A claim is barred if PL lost in the first suit
e. Res judicata:
i. Precludes claim-splitting and mandates that once any part of a cause of action has been
adjudicated on the merits, no part of it can be litigated (or re-litigated) between the same
parties
1. Both portions of the claim that could have been raised and those that were raise are
precluded
ii. Who is precluded:
1. Only the parties and their privities
iii. As to the DE:
1. Res judicata covers any claim the DE actually asseted (including counterclaims,
cross-claims, and third-party claims) and for claims DE failed to assert that he was
statutorily required to assert (e.g. compulsory counterclaim)
iv. Note:
1. A judgment, once entered is final even if an appeal is pending. However, in practice,
the case usually will be abated pending conclusion of the appeal; in most state courts
an appeal automatically postpones finality of judgment until appeal is concluded so
res judicata has no efect until then
XIV.

Issue Preclusion (Collateral Estoppel)

a. Question to ask:
i. Was same issue litigated and determined in first case?
ii. Was the issue essential to the judgment in first case?
iii. Was the holding on that issue embodied in valid final judgment on merits?
iv. Against whom may issue preclusion be asserted?
v. By whom may issue preclusions be asserted
b. Collateral Estoppel
i. Prevents re-litigations of issues
ii. Requirements:
1. Issue must be identical to one previously litigated;
2. The issue must have been actually litigated and unambiguously decided
3. The issue must have been essential to the first judgment
a. Easiest way to determine this is ask whether the prior judgment could be
reached without determining the issue in question do this by changing the
result on the issue in question
i. If changing the result doesnt change who wins the judgment, the issue was
not essential; if it does change who wins and loses, the issue was essential
and preclusion will apply (assuming all other requirements are met)
iii. Recent trend: to require that the second action be reasonably foreseeable at time of initial
litigation
iv. Distinguishing from res judicata
1. Issue preclusion looks at individual issues within a claim, regardless of scope of the
claim; claim preclusion looks at the scope of the whole claim and precludes relitigating even issues that werent asserted or litigated
v. Issue preclusion arises when claim preclusion is unavailable i.e., when either the cause of
action in the second suit is diferent from the one previously adjudicated, or where the
parties have changed
1. Issue preclusion is asserted by a DE only when the DE cannot successfully bar
litigation of the entire cause of action through the doctrine of res judicata
vi. Collateral estoppel is narrower than res judicata because
1. it does not preclude all possible issues that might have been raised in a prior action
but only those actually decided in that action

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vii. Collateral estoppel is broader than res judicata because

1. It can foreclose litigation of a particular issue in an entirely new context
c. Nonmutual Collateral Estoppel
i. Allows a new party to invoke collateral estoppel against a party who litigated and lost on an
issue in a prior action
1. Mutuality rule was abandoned in many jurisdictions since Berhard v. Bank of America
(CA S.Ct., 1942)
a. Traynor emphasized that Bernhard, the party against whom the estoppel was
asserted, had been a party to the first action and had had a full and fair
opportunity to litigate the issue there the court saw no reason to allow
her to relitigate the issue by switching adversaries
2. Blonder-Tongue the US Supreme Court emphasized that [reclusion was only
appropriate if the precluded party had had a full and fair opportunity to litigate the
issue in the first action
ii. Defensive Nonmutual Issue Preclusion (Estoppel)
1. Occurs when a DE seeks to prevent a PL from asserting a claim the PL has previously
litigated and lost against another DE
a. Bernhard and Blonder-Tongue
2. Example:
a. Suit 1: P ------ D1 (PL loses on Issue A)
b. Suit 2: P ------ D2 (New DE pleads collateral estoppel tp bar PL from relitigating
issue A)
3. The party being estopped was usually the PL in the original suit and chose the forum
and the DE against whom to litigate the issue
iii. Offensive Nonmutual Issue Preclusion (Estoppel)
1. Occurs when a PL seeks to foreclose the DE from litigating an issue the DE has
previously litigated unsuccessfully in an action with another party
a. Usually is a new PL seeking to borrow a finding from a prior action to impose
liability on a party who was a DE in prior action
b. This is what happened in Parklane
i. in initial suit, the SEC had claimed and the court held that Parklane had
issued a false and misleading proxy statement; PL in class action suit based
on same proxy statement invoked collateral estoppel against Parklane on
question of whether the statement was false and misleading
2. Example:
a. Suit 1: P1 ------ D (DE loses on Issue A)
b. Suit 2: P2 ------ D (new PL invoke collateral estoppel to establish Issue A in her
suit against DE)
3. Courts exercise precaution in deciding whether to apply Nonmutual collateral estoppel
b/c:
a. Party against whom estoppel is asserted was usually a DE in first suit and did not
choose forum where issue initially decided
b. Prospect of taking advantage of another PLs victory to establish crucial issues
without trial may lead PLs to wait and see hold back from joining in 1 st PLs
initial suit
c. Party might not have litigated issue aggressively in first action if stakes were
small or forum inconvenient
d. It may not have been possible for losing party to litigate efectively in first action
if procedural rules of court that decided the first case were more restrictive than
those of the second
e. Prior inconsistent judgments on the issue may suggest it would be unfair to get
conclusive efect to any one of them
4. Supreme Court gives federal trial courts the discretion in deciding whether to allow
ofensive assertions of estoppel
d. Circumstances where collateral estoppel is applicable, but overriding reasons it will not be
applied even in a second litigation between the same parties
i. The loser in the first action may re-litigate an issue in his new claim only if one of the
following conditions is satisfied:
1. The stakes in the second case are much larger than in the first;

33

2. The burden of proof on the party seeking to apply collateral estoppel in the second
case was higher in the first case than in the second (EX: first case was criminal, the
second civil)
3. The issue arises the second time in a substantially diferent context; or
4. A catch-all theres some other, compelling reason
e. Settlements are not entitled to collateral estoppel
i. Because it generally isnt possible in a settlement to determine which issues were
decided
1. most settlements are embodied in very general terms in stipulations either in writing
or on the record and do not deal with individual cases that were raised by the
pleadings
ii. In contrast settlements are generally considered judgments on the merits unless parties
agree otherwise 516
f. Collateral estoppel does not require an issue in question have gone to trial
i. While going to trial is normally the way an issue is litigated, its not the only way
1. An issue is subject to preclusion if it was subject to adversary presentation and
consequent determination even if not litigated at trial
2. determination can result on a motion to dismiss for failure to state a cause of action,
a motion for summary judgment, motion for a directed verdict, or a judgment
notwithstanding verdict
ii. Default judgments do not preclude litigation of any issues that may have been
involved in the first suit
XV.

XVI.

Goal of Res Judicata and Collateral Estoppel

a. To ensure that judgments are absolutely final and to prevent a cause of action from being relitigated between the same parties (res judicata) or the re-litigation of the same issue in a
diferent cause of action between the same parties (collateral estoppel)
b. Benefits of absolute finality:
i. Prevents entry of inconsistent judgments
ii. Prevents harassment from multiple suits on the same claim;
iii. It promotes judicial economy by resolving a dispute or an issue in one lawsuit
c. How to analyze these problems:
i. Is there res judicata (claim preclusion)?
1. Always look at claim preclusion first because if it applies then the entire cause of
action is precluded from litigation
ii. Is there collateral estoppel (issue preclusion)?
1. Issue preclusion can only be invoked when claim preclusion is unavailable (where
there was not a final adjudication on the merits by a court of competent jurisdiction)
iii. Who is bound?
d. Privies of parties
i. Are boun by prior judgments to the same extent as the parties themselves
ii. Common privy relationships:
1. Trustee/beneficiary
2. Guardian/ward
3. Bankrupt/trustee
4. Decedent/successors in interest
5. Bailor/bailee
6. Principal/agent
7. Indemnitor/indemnitee
iii. The connecting principle is that the identity of interests between the party and privy is so
significant that theres a presumption that the party would have fully and adequately
represented and protected the privys interests
e. Full faith and credit clause
i. Comes into play when successive litigations involve two state or one state and the federal
courts
ii. It is the requirement that each state give the judgment of another state the same efect as
the judgment would have in the stat that rendered it and that the federal courts give full
faith and credit to the judgment of state courts
Determining Federal Jurisdiction at a Glance

34

a. Is there subject matter jurisdiction (either diversity or federal question)?

b. Is there personal jurisdiction over each DE?
c. Was each DE served properly?
d. Does the district where the case is pending satisfy the venue requirement?
e. Did DE receive notice and an opportunity to be heard?
*************THE ANSWER TO ALL OF THESE Qs MUST BE YES TO PROCEED
How to analyze problems in compulsory joinder of parties:
i. Decide if the party is a necessary party under Rule 19. To be a necessary party, one must
satisfy one of two standards
1. Is the presence of the non-party required in order to give complete relief to the
parties; or
2. Without the non-party, will the proceeding be substantially prejudicial, either because
it would impede the non-partys ability to protect his interest in later proceedings or
b/c it would expose existing partied to the risk of multiple liability or inconsistent
obligations
ii. If outsider is a necessary party capable of joinder, join him!
iii. If he cannot be joined b/c of problems in service of process, jurisdiction, or venue, you must
determine if the outsider is indispensable under FRCP19(b):
1. Mitigation
2. Framing of judgment
3. Adequacy of remedy
4. Result of dismissal
iv. Note: compulsory joinder in diversity case is NOT covered by supplemental juris so must
check if outsider will create juris problems if joined so assess
1. SMJ
2. Amount in controversy
3. Personal Jurisdiction
4. Venue
a. Juris in the district court based on common residence in same state and if non
party doesnt
Jurisdiction
ASSUME FOR THE PURPOSE OF THESE PROBLEMS THAT ALL JURISDICTIONS DISCUSSED HAVE LONG-ARM
STATUTES THAT AUTHORIZE THE EXERCISE OF JURISDICTION TO THE FULL EXTENT OF THE DUE PROCESS
CLAUSE.
Question 1:
Demi, a California citizen, was driving her van to a dog show in Denver, Colorado, when she got into an accident in Salina, Utah.
A truck driven by Paul, a Utah citizen, ran a red light and crashed into her van. To Demis surprise, Paul filed a negligence action
against her in a federal court in St. George, Utah. Demi had never been to Utah before the accident, and she has never had any
business dealings with Utah. Demi has filed a motion to dismiss Pauls action for lack of personal jurisdiction.
DISCUSS HOW YOU THINK THE COURT WILL RULE ON DEMIS MOTION TO DISMISS.

35

Why is it irrelevant Paul could have sued Demi in CA?

Q asks is there juris in Utah so focus on the question

Why is Hess v. Pawloski irrelevant?

And Kane case deal with states that have consent statutes
Unless it has consent statute in Utah its irrelevant
Came before Intl Shoe its minimum contacts
Why should we not assume that Demi was served with the summons and complaint in Utah?
o Not in facts

When court determines whether it has juris over Demi, why is it irrelevant whether Demi was
negligent or not?
Challenge juris at outset of lawsuit
NOTE: Court either GRANTS or DENIES a partys motion. A court exercises jurisdiction over
the defendant, it doesnt grant jurisdiction over a defendant

Fair play?
Is there minimum contacts?
o Yes classic case
Reasonable?
o Utah has an interest on what happens on highways;
o its more convenient bc evidence of accident, police reports
burden on DE? Yes, but not huge if she went there before, she can go there again.
Question 2:
The DonutDealer Corporation (Donut) is incorporated in Delaware and has its principal place of business in Phoenix, Arizona.
Donut manufactures equipment used in making commercial donuts. It has a website in which it advertises various types of donutmaking equipment and provides an email address and the telephone number of its Phoenix office. Donut received several phone
calls from Pat, a California citizen, who runs Pats Donut Shop in Pacific Beach, California. Pat wondered if Donut could modify
one of its machines to make it more suitable for his donut business. Donut agreed to do
Page 1 of 5so, stating that the modified machine would cost $10,000. In a subsequent conversation, Pat called Donut and asked if
Donut would ship the machine to his Pacific Beach shop. Even though Donut had never sold or shipped any of its donut machines
to California before, Donut stated that one of its trucks was available and it would be able to do so. A Donut truck drove the
machine from Phoenix to Pats Pacific Beach store. A few months later, Pat was using the machine when a blade fell apart, and his
hand was seriously injured. Paul filed an action for negligence and product defect against Donut in the Superior Court of San
Diego County. Donut has filed a motion to quash service of the summons and complaint for lack of personal jurisdiction. [Donuts
motion is the equivalent of a motion to motion to dismiss for lack of personal jurisdiction filed in federal courts.] onut has argued
that a single sale is insufficient for personal jurisdiction. Donut states that it has no offices or employees in California, has never
advertised in California, has never used a distributor to distribute its products in California, and has never engaged in a regular
course of business in California.
DISCUSS HOW YOU THINK THE COURT WILL RULE ON DONUTS MOTION TO QUASH.

Things to consider:
Not a stream of commerce case DE directly sold product to PL stream of commerce is
when there is a middleman between manufacturer and consumer
Even if it had been stream of commerce was relevant, why would it be inappropriate to say
that case is governed by something more test of Asahi or whether the defendants activities
manifest a intention to submit to power of sovereign

No General jurisdiction over Donut in CA

Not incorporation nor is CA principal place of business

Specific jurisdiction
Minimum contacts
o Quite a few activists suggest purposeful availment, shipped into CA themselves
o Think of how court would rule, not what arguments each party would make only
Question 3:
Pete, a California citizen, purchased an expensive home coffee roaster in Los Angeles, California, at Delaneys Coffee Store
(Delaneys). Delaneys is incorporated in Delaware and has its principal place of business in San Francisco, California. Aside
from its store in Los Angeles, Delaneys only retail stores are in San Francisco and San Diego. Delaneys also sells coffee
equipment through a website, but more than 99% of its online sales are in California probably because Delaneys has no retail
presence outside of the state. Six months after purchasing the coffee roaster, Petes employer temporarily transferred Pete to Dover,
Delaware. He was using the coffee roaster one morning in the kitchen of his Dover apartment when it caught on fire. Pete tried to
put out the fire, but he was severely burned, and many of his personal belongings were destroyed. Pete filed an action for
negligence and product liability against Delaneys in the federal district court in Wilmington, Delaware. Delaneys filed a motion

36

to dismiss, arguing that it had no offices, stores, or employees in Delaware, that it had never sold any products through its website
to Delaware residents, and the only way the coffee roaster had ended up in Delaware was through Petes unilateral act of taking it
there.
DISCUSS HOW YOU THINK THE COURT WILL RULE ON DELANEYS MOTION TO DISMISS.
Question 4:
Paul, a citizen of California, was driving on vacation in Oregon when a motorcycle in front of him braked with no warning, and his
vehicle lightly tapped the bikes rear end. Paul immediately got out of his car. The driver of the motorcycle, Debbie, a citizen of
Oregon, was not injured and her motorcycle was undamaged. Nonetheless, Debbie jumped off her bike and began shaking her
arms at Paul. Glancing at Pauls California license plate, she screamed: I can see youre just another stupid Californian. Go home
and stay out of Oregon. Debbie climbed back on her motorcycle, revved it up, and drove straight towards Paul. Paul watched the
approaching bike in horror, but couldnt get out of the way in time. Debbies motorcycle knocked Paul over and ran over his arm,
causing a severe break. Paul was treated at an Oregon hospital for several days before returning to his San Diego home. Because of
the severity of his injury, Paul suffered pain for weeks and was unable to return to his job as a tennis instructor for nearly a year.
Paul filed an action for assault and battery against Debbie in a federal court in San Diego. Debbie, who had been served with the
summons and complaint in Oregon, filed a motion to dismiss for lack of personal jurisdiction. She argued that she had never been
to California and didnt conduct any activities in California. In response, Paul contended that her conduct satisfied the effects
test because Debbie knew he was from California when she ran over him with her motorcycle, Debbie had engaged in intentional
torts, and Debbie could reasonably anticipate that he would suffer the effects of her activity Pauls continuing pain and job loss
in California.
DISCUSS HOW YOU THINK THE COURT WILL RULE ON DEBBIES MOTION TO DISMISS.

Is there general juris over Debbie in CA?

Since Debbie is not a citizen of CA, general jurisdiction does not apply

Specific juris
Efects test
o Sometimes court will find minimum contacts satisfied even though DE didnt go in
forum state
o DEs acts have to be targeted OR aimed that has efect in state
Does it satisfy efects test to establish minimum contacts?
o Efects have to be felt in state and activity targeted to CA and it was NOT
o Acts not directed to CA its not that PL be a citizen of a state and DE knows hes from
CA
Her intentional act occurred right there
Would claim be related to CA?
o Forum state is CA it is not related to CA
It involves intentional tort
o CA has a little interest PL from CA, but it doesnt have that much interest in assaults
in OR
Burden on DE
o Shes traveling from OR to CA, but its not that far and if there had been a strong case
the court would find a reason that it wouldnt be too difficult

Ultimately it would fail because no basis for minimum contacts

Efects test
o A way to determine whether DE who never entered forum state, nonetheless had
minimum contacts with it

Supreme Courts most recent opinion involving the efects test is the Courts unanimous decision
in Walden v. Fiore. In light of that decision, why would efects test not be satisfied in problem 4?
Question 5:
David, a citizen of Ohio, was driving in Cincinnati, Ohio, when his vehicle and another vehicle collided. David was momentarily
knocked out and was still stunned even when he regained consciousness. He felt a severe pain in his leg. Percy, the other driver,
offered to call an ambulance. David was too groggy to respond. He quickly lost consciousness again. The next thing David knew
he was being treating for head injuries and a broken leg in a hospital. The following day, a person came to his hospital room and
served him with a summons and complaint. David was astonished to see that Percy had filed an action for negligence against him
in a federal district court in Kentucky. David had never been in Kentucky before to his knowledge. When he mentioned the oddity
of the lawsuit to the nurse, she looked at him in astonishment and said: Why youre in Kentucky right now. The ambulance
brought you here. With a little investigation, David learned that Percy was a doctor and that he had been transported by
ambulance to a hospital owned by Percy in Covington, Kentucky, although a Cincinnati hospital would have been closer.
Covington, Kentucky, is directly across the Ohio River from Cincinnati, Ohio. David has filed a motion to dismiss Percys action,
arguing that the accident is unrelated to Kentucky and that it would violate due process for a Kentucky court to exercise

37

jurisdiction over him.

DISCUSS HOW YOU THINK THE COURT WILL RULE ON DAVIDS MOTION TO DISMISS.

Would it be possible for forum to have juris?

Possibly because if youre served within the state it may give rise to being sued within any
type of claim
Burnham type problem (plurality opinion)
o He wasnt voluntarily in state
o Brennans analysis
Said tradition is a factor to consider
But you have to see if its fair or not to DE to see if you can exercise PJ
In general in state service probably satisfies due process is DE is there
knowingly and voluntarily
o White agreed with Scalia he cant think of a situation where this wouldnt comport
with due process as long as DE is intentionally in stat
o Talk about how theres NO majority agreement, and generally its fair bc DE benefited
from being in the state knowingly and intentionally, but there may be a factual
problem with knowingly and intentionally being in state
Flesh out facts on both sides

Why is the fact that David served with summons and complaint in KT most sig fact you need to
address first?
Bc it wont make a diference if claims are related\
Pennoyer if youre present within the state when served then state has juris over you

Why does the statement ..juris based on physical presence along continuing traditions on
legal system?
Said by Scalia

Would there be specific juris?

Had contact with hospital
In terms of claim, the claim does not arise of relate to contacts because negligence occurred
in Ohio
KT not huge interest bc accident occurred in OH
Burden on DE probably not large but in relationship to claim he hasnt had activities
whatsoever
Question 6:
Pam, a citizen of California, collects vintage stereo equipment. She received a catalog in the mail at her San Diego home from a
company called DiscDerby (Disc). Disc is incorporated in Delaware and has its principal place of business in Chicago, Illinois,
where it conducts all of its small mail order business, maintains a stock of vintage equipment, and runs a tiny retail store. Pam was
interested in two vintage amps that the catalog listed at $10,000 each. Pam thought they were a bit overpriced and also wanted to
make sure that the amps were in pristine condition. She called Discs Chicago retail store and spoke to Dan, Discs president. Dan
assured Pam that the amps were in first- class condition. He wasnt immediately willing to lower the price, as Pam requested in
their conversation, but told her he would think about it. A few days later, Dan telephoned Pam and told her he would take $9,500
for each of the amps, provided Pam assented to reimbursing Disc the shipping fee once she had received the amps. Dan reiterated
that the amps were in tip-top condition. Pam agreed. Dan faxed her an agreement stating the price of the amps, that they were in
excellent condition, and that Pam agreed to reimburse Disc for the cost of shipment. Pam signed the agreement and mailed it and a
check for $19,000 to Disc. A few days later the amps arrived at her home via Federal Express. Pam was in shock when she saw the
poor condition of the amps they were covered with dents and one was warped. Pam immediately called Dan and asked for a
refund. Dan refused. Pam sued Disc in the Superior Court of San Diego County for breach of contract. Disc filed a motion to quash
service of the summons and complaint, arguing that California did not have personal jurisdiction over it. Disc argued that it had no
offices or employees in California, that it didnt regularly do any business in California, and that its agreement with Pam was a
one-time contract with no long-term consequences, and that it would be extremely burdensome for it to litigate in California
since it was just a small business.
DISCUSS HOW YOU THINK THE COURT WILL RULE ON DISCS MOTION TO DISMISS.

38

General juris
No because Disc isnt at home in CA bc its not incorp nor have principal place of business
there

Specific Juris
Not a stream of commerce case bc it was a direct sale arranged by DE
Think of McGee and Burger King both are breach of contact cases
Is there minimum contacts?
o No one time sale
o Yes solicited business directly in CA through catalog, its purposeful availment
youve got some kind of list of addresses if you dont want to get CA residents
business you wouldnt send catalog
Additional negotiation (gets into Burger King) says you would look into prior
negotiations
Significant amount for a small business
Reasonable
o Would there be a burden on DE?
Yes. But there would be a bigger burden on PL an individual, than DE a small
business
There is a burden on DE but in light of contemporary communications
and its a business, their burden is outweighed

But lets also look at burden on PL on this case because shes already out a lot
of money and she would have to litigate in another state and be out more
money if she couldnt litigate in her home state
o Does PL claim relate out of activity with state
Yes
o States interest
Aggrieved citizen claiming breach of contract
o PL interest in suing in CA?
Some evidence in IL but most in CA bc she has products pertaining to contract
Question 7:
Polly and Devon ended up seated next to each other at a Las Vegas concert, although they had never met before. Throughout the
concert, they insulted each other, their instant animosity no doubt fueled by excessive consumption of alcohol and other
substances. When they were leaving the concert, Polly accidentally stepped on Devons toes. As a crowd of people watched,
Devon shouted that Polly was a criminal and that Polly should go to prison where she belonged. Devon took her purse and
slammed it at Pollys head several times, causing Polly to sustain a black eye. Several people caught on the incident with their cell
phones, and a video was posted on You Tube. Polly, a California citizen, lives in South Lake Tahoe, California. She performed
some internet research and learned that Devon had owned a second home in South Lake Tahoe for ten years and spent five months
of the year there, although Devons permanent residence was in Elko, Nevada. Polly filed an action for defamation and battery
against Devon in the Eastern District of California. Devon filed a motion to dismiss for lack of personal jurisdiction, arguing that it
was inappropriate for Polly to sue her in California since the underlying incident took place in Las Vegas. In response, Polly
contended that since she was a citizen of California and Devon had continuous and substantial contacts with California, it was
appropriate and reasonable for the federal court in California to exercise jurisdiction over Devon.
DISCUSS HOW YOU THINK THE COURT WILL RULE ON DEVONS MOTION TO DISMISS.

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Is there general jurs?

Depends on what you consider to be you permanent residence and he considered
o Court has suggested that he can only be domiciled in one state
Quasi in rem 2 here?
o In order to argue this you would have to attach property at ofset
o If it had been attached, could it be quasi in rem
Shafer v. Hietner would say that although property within Forum, you deal
with same kind of min contact as intl shoe
Does property relate to claim? No

Specific juris?
Contact is property but property in CA is unrelated to claim bc claim involves assault and
defamation
CA would not realy have interest in assault and defamation that occurred in NV
Plaintif interest
o In suing CA only minimum
Burden on DE?
o No bc she has a home here and spends part of year here
NOTICE
Question 1:
Patsy filed an action against Dan in the federal district court in the Southern District of California. Patsy thought it was too
expensive to hire a process server and asked Rick, her twenty-year old brother, to serve copies of the summons and complaint on
Dan. Rick personally handed copies of the summons and complaint to Dan as Dan was riding on an exercise bike at the local gym.
Dan has filed a motion to dismiss the action, alleging that the service of process was invalid.
HOW DO YOU THINK THE COURT SHOULD RULE ON DANS MOTION TO DISMISS?
As long as youre serve within the state it doesnt matter where they are
FRCP Rule 4(c)(2) says any person who is at least 18 years old and not a party may serve a
summons and complaint
California Code of Civil Procedure CCP 414.10 a summons may be served by any person
who is at least 18 years of age and not a party to the action.
Question 2:
Pete filed an action against Deb in the federal district court in the Southern District of California. Deb is a citizen of Arizona and
lives in Phoenix. Pete didnt want to incur the expense of hiring a process server in Arizona to serve Deb. He learned that
California Code of Civil Procedure section 417.20(b) allows service by mail, return receipt required, when the defendant is outside
California. Pursuant to section 417.20(b), Pete mailed copies of the summons and complaint to Deb in Phoenix, requesting a return
receipt. Deb signed the return receipt before she had opened the envelope and realized that it contained copies of the summons and
complaint. Deb has filed a motion to dismiss the action, alleging that the service of process was invalid.
She argued that service by mail didnt afford her due process and that FRCP 4 doesnt provide for service by mail.
HOW DO YOU THINK THE COURT SHOULD RULE ON DEBS MOTION TO DISMISS?
The fact that she doesnt like it once she opens envelope tough
On FRCP 4(e)1
o Unless federal law provides otherwise, an individual may be served in a judicial
district of the United States by:
1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where te district court is located where service
is made
BC CA does allow service by mail and FRCP says you can use either FRCP OR state law where
district located OR state law of where DE is served
o You get the choice

CCP415.40 Mail a summons may be served on a person outside state any way provided
by this article or by sending copy of summons and complaint to person served by 1 st class
mail, postage, prepaid, requiring a return receipt. Service of summons by this formed
deemed complete on 10th day after such mailing
CCP 415.50 Publication if PL est upon affidavit that DE cant be served with reasonable
diligence by another method of service, court may allow service by publication in a named
newspaper within CA and may also order publication outside state

Question 3:
Pam filed an action against Dave in the federal district court in the Southern District of California. The process server hired by
Pam went to Daves house in Ocean Beach, but Dave wasnt at home. Instead the process server served the summons and

40

complaint upon Daves brother Sam. Sam, who is an emergency room doctor in Los Angeles, was staying with Dave during his
two-week vacation from work. Dave has filed a motion to dismiss the action, alleging that the service of process was invalid.
HOW DO YOU THINK THE COURT SHOULD RULE ON DAVES MOTION?
Most likely doesnt reside at Daves house
Can make a diference sometimes court interpreted reside very broadly
If you dont serve complaint and summons on DE why is there a requirement that another
person resides there?
o It needs to be reasonably calculated that DE will get it if its someone whos actually
residing in house, that person more likely to give it to actual DE
Substituted service
o When you serve someone besides actual defendant
4(e)(2)
o An individual may be served by (2) doing any of the following
A) delivering a copy of summons and complaint to individual personally
B) Leaving a copy at each at inidvs dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
C) delivering copy of each to an agent authorized by appointment or by law o
receive service of process
CA Law diferent when it comes to substituted service
o CCP 415.20
Has to be actual diligence to serve person personally delivered to the person
to be served
o CCP 415.20(b)
Then once you tried diligently and failed, theres substituted service but a
hierarchy
So if in federal court in CA, you would want to use FRCP
Does substituted service comport with due process? Is it a method reasonably calculated?
o Yes
What is a persons dwelling or usual place of abode under FRCP 4(e)(2)B)?
o Usually its just your home

National Development Co v. Triad Holding Corp

If hes actually residing in NY at the time the summons was served its valid even though he
considers Saudi Arabia his usual place of abode
o It satisfied statutory language
If the PL knows that the DE regularly employs certain attorney, would service of process upon
the DE attorney satisfy FRCP 4(e)(2) - i.e. service upon authorized agent?
o Sometimes PL thinks if this is regular attorney he could serve summons on attorney,
but its not considered to be authorized agent
o DE actually has to TELL attorney that hes allowed to accept service on DEs behalf
Question 4:
Pitt filed an action against Doris in the federal district court in the Southern District of California on March 1, 2014. Doris is a
citizen of Oregon. On June 15, 2014, Pitt mailed Doris a request to waive service pursuant to FRCP 4(d) along with a copy of the
complaint. Doris didnt file an answer within 60 days of Pitts mailing her the request. Pitt requested the court to enter default
against Doris due to her failure to answer. When Doris found out, she filed a motion asking the court to vacate the default on the
ground she had never been served. In opposition, Pitt emphasized that the request for waiver included a copy of the complaint, and
that Doris had full notice that he had filed an action against her.
HOW DO YOU THINK THE COURT SHOULD RULE ON DORISS MOTION TO VACATE THE DEFAULT? IF THE COURT
VACATES THE DEFAULT AND ALLOWS PITT TO ATTEMPT TO SERVE DORIS AGAIN, WHAT POTENTIAL PROBLEM
MAY PITT HAVE?

41

Was this valid service?

o Its not enough to send her that stuf, she has to sign and return it this is why this
isnt considered valid waiver of service
o If she doesnt mail it back he needs to try other ways to serve her
o He shouldve had to have shown courts that she had been served/returned waiver; she
hasnt waived service
o Problem he might have if court vacates default
o You dont want to do this when coming up to 120 day limit
If the court vacates the default?
FRCP 4(d) s PL may request that a person, corp, or assoc waive service of summons by
sending DE written notice and request addressed to DE; name court where complaint file;
contain copy of complaint
o The DE has 30 days to return waiver
CCP415.50
Could ask court for an extension, but if you tried Waiver of Service (better when you do it
right at outset of litigation)
If DE doesnt sign waiver of service, may have to pay for costs of PL like the process serve,
attorneys fees
o Incentive for PL to do it; typically you have 21 days in federal court to file an answer
and 30 in CA court

Question 5:
Penny filed an action against Donald Burgers, a mega fast-food chain, in the federal district court in the Southern District of
California. The process server hired by Penny was on her way to Donald Burgers corporate offices to serve copies of the summons
and complaint when she stopped at a Donald Burgers to purchase a Big Donald burger. To her surprise, Ray Donald, the
president of Donald Burgers, was being filmed while he manned the pick-up window as part of a new Donald Burgers advertising
campaign. Ray Donald handed the process server her hamburger while the cameras rolled. In return, the process server handed him
the money to pay for the burger along with copies of the summons and complaint. Donald Burgers has filed a motion to dismiss
the action on the ground of invalid service of process.
HOW DO YOU THINK THE COURT SHOULD RULE ON DONALD BURGERS MOTION?
Could she serve Donald Burgers at franchise?
Who can you serve if sue a corp?
FRCP 4(h) Serving a Corp, Partnership, or Association
Hes the CEO so hes authorized to accept based on corps behalf
o Sometimes secretaries authorized bc theyve done it before
It wasnt fraudulent either and the location doesnt matter
Question 6:
The same facts as question 5. Would it make a difference if instead of handing copies of the summons and complaint to Ray
Donald, the process server had handed copies of the summons and complaint to the Donald Burgers employee who took her order
at the Donald Burgers outlet?
Employee is not an officer this is dif than a secretary if Donald is nowhere in vicinity the
person could just throw them away
o This is not reasonably calculated that this would get to corporation
o Person not accustomed to doing this
Question 7:
Patrick filed an action against Dana in the federal district court in the Southern District of California. The process server hired by
Patrick went to Danas home in Oceanside. Dana wasnt home, and Trixie, Danas seventeen-year-old daughter answered the door.
Trixie, who lives at home, had just started her freshman year at Cal State University at San Marcos. The process server handed
Trixie copies of the summons and complaint. Dana has filed a motion to dismiss the action for invalid service.
HOW DO YOU THINK THE COURT SHOULD RULE ON DANAS MOTION?
Substituted service on an individual (3) things from FRCP 4e2:
o 1) dwelling/usual house of abode
o
2) suitable age and discretion
Removal
1) P, a citizen of Missouri, sues D, a citizen of California, for $100,000 in tort damages in a state court in Missouri. P serves D with
the complaint on October 1, 2014.

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Could have been filed in federal court bc diversity court would have SMJ
Is there time to remove?
o Yes, plenty of time for DE to remove to federal court by filing

2) P, a citizen of Missouri, sues D, a citizen of California, for $100,000 in tort damages in a state court in California. P serves D
with the complaint on October 1, 2014.
SMJ bc diversity and amount is met
Is it removable?
o NO! B/C DE is ALREADY IN HOME STATE
Action filed in CA and DE is resident of CA
3) P, a citizen of Missouri, sues D1, a citizen of California, and D2, a citizen of Oregon, for $25,000 in damages each for violation
of the federal American with Disabilities Act (ADA) in a state court in California.
P serves both defendants with the
complaint on October 1, 2014.
SMJ over case? Yes
Alleging violation of federal statute no juris amount is necessary
Can it be removed to federal court?
o Here as long as original basis for courts juris, the in state DE rule doesnt apply
Congress thinks its so important that DE sued in their home state on federal issue
have ability to move to federal court since they are the experts of federal law
4) P, a citizen of Missouri, sues D1, a citizen of California, for $100,000 in tort damages, and D2, a citizen of Oregon, for
$100,000 in tort damages in a state court in California. P serves both defendants with the complaint on October 1, 2014.
SMJ bc diversity and amount
Cannot remove! Rule in 2 applies bc not going to be prejudice against this person who is a
state resident over state law claim
5) P, a citizen of Missouri, sues D, a citizen of Missouri, for $100,000 in tort damages in a state court in Missouri. P serves D
with the summons and complaint on March 1, 2013.
Approximately 1 12 years later, on October 1, 2014, the state court grants
P leave to amend her complaint to add a claim for violation of the federal ADA. On October 1, 2014, P serves D with the amended
complaint which has the new ADA claim.
case couldnt have been removed originally bc no diversity
on ADA claim yes bc its a federal Q so its the first opportunity to remove they have a right
to be in federal court
o if theres a basis to remove originally, must remove within 30 days of when federal
court would have jurisdiction only get one bite at the apple
6) P, a citizen of Missouri, sues D1, a citizen of Missouri, and D2, a citizen of California, in a state court in Michigan on March 1,
2013. P seeks $100,000 in tort damages against each defendant. On October 1, 2014, after months of litigation, P settles the case
with D1 and dismisses D1 from the lawsuit that same day. On October 1, 2014, P serves notice on D2 that D1 has been voluntarily
dismissed from the lawsuit.
no diversity PL and D1 from same state
when D1 dismissed, does this make it removable?
o Yes but diversity cases special rules Congress doesnt like them so removal wouldve
had to have been within a year between March 1, 2013 so it wouldve had to have
been done by Feb. 28th 2014 latest
7) P, a citizen of Missouri, sues D, a citizen of California, for $100,000 in tort damages in a state court in Missouri on March 1,
2013. Approximately 1 12 years later, on October 1, 2014, the state court grants P leave to amend her complaint to add a claim for
violation of the federal ADA. On October 1, 2014, P serves D with the amended complaint which has the new ADA claim.
No diversity existed couldve removed it a year ago and didnt one bite of the apple
have to remove the first time you have the chance to do so
8) P, a citizen of Missouri, sues D, a citizen of California, for right of publicity (a state- law claim) and copyright infringement (a
federal claims) in a state court in California. P serves D with the complaint on September 1, 2014.
theres a fderal question claim so its removable
copyright claims can only be filed in federal court
is it still removable?
o Past 30 days cant remove
Since this is something only federal courts have SMJ over, state court has to dismiss claim
9) P, a citizen of Missouri, sues D, a citizen of California, for tort damages of $100,000 and for $25,000 for violation of the federal
ADA in a state court in California. P serves D with the complaint on October 10, 2010.
Should the following cases be remanded to state court?

43

diversity bc citizens of diferent states and claim over 75k

also separate basis to remove bc claim is about federal Q
Can DE remove?
o It could be removable the fact our DE is citizen of forum state it doesnt matter bc
its a federal q
1) P, a citizen of Missouri, sues D, a citizen of California for $100,000 in tort damages in a state court in Missouri. P serves D with
the complaint on July 15, 2014. On September 1, 2014, D removes the case to the federal district court in Missouri. On October 7,
P files a motion to remand the case to state court
There is diversity
only have 30 days to remand and its been 38 days
o waited too long to remove it
2) P, a citizen of Missouri, sues D, a citizen of California, in a state court in Missouri for $50,000 in tort damages. P serves D with
the complaint on July 15, 2014. On September 1, 2014, D removes the case to the federal district court in Missouri. On October 7,
2014, P files a motion to remand the case to state court.
court MUST remand bc no SMJ
if no SMJ either a judge or either of parties notice it, up to and including appeals, the 30 day
limitation for remand wont apply
3) P, a citizen of Missouri, sues D, a citizen of California, in a state court in San Francisco for $100,000 in tort damages.
P
serves D with the complaint on September July 15, 2014. D removes the case to the federal district court in San Diego on
September 1, 2014. On October 7, 2014, P files a motion to remand the case to state court.
what mistakes did DE who removed this case?
o Didnt remove within 30 days
o In state and this case is only based on diversity
o Removed it to the wrong federal district must remove to federal district where state
court is located
Jurisdictional split why would diferent circuits deal witht his issue diferently?
o Some circuits think that a citizen of the own state removing is the same as a court not
having SMJ
o If a court finds out that a citizen removed solely in a diversity action
o More courts would say theres nothing in diversity action that says this
Appeal

1) P, a citizen of Missouri, sues D, a citizen of California for $100,000 in tort damages in a state
court in Missouri. P serves D with the complaint on July 15, 2014. D removes the action to the federal
district court in Missouri on August 10, 2014. On September 1, 2014, P files a motion to remand the
case to state court. On October 1, 2014, the federal court grants Ps motion and remands the case to
the Missouri state court. The federal rules provide that a party has thirty days to file an appeal. D is
considering an appeal of the district courts remand order. What would you advise D?
If a judge remands a case to a state court, no right to appeal to remand
If a fed judge denies a right to remand, you can appeal
Venue
ASSUME THE STATES OF ARIZONA, DELAWARE, HAWAII, MONTANA, NEVADA, OREGON, AND UTAH HAVE A
SINGLE JUDICIAL DISTRICT.
TO ANSWER THE QUESTIONS, YOU NEED TO BE FAMILIAR WITH 28 U.S.C. 1391(a)(b)(c) and (d); 1404; and 1406.
Also keep in mind that FRCP 12(b)(3) provides that the defendant may bring a motion to dismiss the action for improper venue.
Question 1:
Pam is involved in a car accident with Dave that occurs in Nevada. Pam is a citizen of Oregon. Dave is a citizen of California,
living in San Diego. Pams claim exceeds $75,000. If she wanted to sue Dave in a federal district court, where would venue be
proper?

44

why is fall-back provision of section 1391(b)(3) irrelevant, which provides for venue in a
district in which any DE is subject to PJ if there is no other district where action may
otherwise be brought?
o because there are other actions where venue is proper
o ALMOST ALWAYS district where venue is proper
Why is it incorrect to say conclude that venue is proper in CA?
o not enough to say CA we are talking about specific district! And since were in SD, it
must be southern district
o were fine honing it so if you have a state with more than one district, you must be
specific as to which one
Question 2:
Pam is involved in a car accident with Dave that occurs in Nevada. Pam is a citizen of Oregon. Dave is a citizen of California.
Although Daves permanent home is in San Diego, hes currently a graduate student at the University of Oregon in Eugene. Pams
claim exceeds $75,000. Pam would like to sue Dave in a federal district court in Oregon. Would venue be proper in Oregon?
venue by residency will NOT work bc you can only have one state where you are domiciled
since its where you intend to stay permanently
she cant sue in OR, but CAN sue where Dave is from, so Southern District of CA or Nevada
since thats where accident took place
Question 3:
Pam is involved in a car accident with Dave that occurs in Nevada. Pam is a citizen of Oregon. Dave is a French citizen, currently
attending the University of Oregon in Oregon on a student visa. Pams claim exceeds $75,000. Pam would like to sue Dave in a
federal district court in Oregon. Would venue be proper in Oregon?
a defendant not resident of the United States
when someone on student visa, although they intend to remain after student visa, as long as
youre here on student visa, you cant legally have intent to remain permanently bc theres a
time limit
a citizen of a state and an alien
if someone has a green card and are remaining here permanently then they would be
considered a resident
Question 4:
Pam is involved in a car accident that occurs in Nevada. Pam is a citizen of Oregon. The other two drivers are Dave, a citizen of
California, living in San Diego, and Dawn, a citizen of Arizona. Pams claims against each Dave and Dawn exceed $75,000. If
Pam wants to sue both Dave and Dawn in a single action in federal court, where would venue be proper?
single suit so substantial place - NV
why cant we go of residency?
o Not both citizens of same state
Question 5:
Pam is involved in a car accident that occurs in Nevada. Pam is a citizen of Oregon. The other two drivers are Dave, a citizen of
California, living in San Diego, and Dawn, a citizen of California, living in San Francisco.
Each of Pams claims against
Dave and Dawn exceed $75,000. If Pam wants to sue both Dave and Dawn in a single action in federal court, where would venue
be proper?
if she wants a single suit could sue in NV substantial or
if she wanted to sue in a single suit, venue would be proper in either judicial district in
California (Northern or Southern)
Question 6:
Pete was struck by a truck while crossing a street in Las Vegas, Nevada. Pete is a citizen of Oregon. The truck is owned by the
Defiant Corporation, which is incorporated in Delaware and has its principal place of business in Los Angeles, California. Petes
claim against Defiant exceeds $75,000. If Pete wants to sue Defiant Corporation in a federal district court, where would venue be
proper?
For a corp, anywhere there is person juris (General AND Specific): ppb and where
incorporated Los Angeles and DE
Corp would be considered to have minimum contacts in NV bc of specific juris
If based on substantial place?
o NV
Question 7:
Pete, a citizen of Oregon, was struck by a truck and a car simultaneously while crossing a street in Reno, Nevada. The truck was
owned by Destiny Corporation, which is incorporated in British Columbia and has its principal place of business in Toronto,
Canada.
Although Destiny delivers its products into the U.S., it does not have any business operations or employees in the

45

U.S. The car was driven by Don, a citizen of California who lives in San Diego. Petes claims against each Destiny and Don
exceed $75,000. If Pete wants to sue both Destiny and Don in a single lawsuit in a federal district court, where would venue be
proper?
Based on residency? Southern District of CA Dawns residency; bc a foreign company,
Destiny could be disregarded
A corp resides where its subject to personal juris - general juris or specific juris: Destiny no
general juris in US, but specific juris in Reno (bc of minimum contacts)
Question 8:
Pete, a citizen of Oregon, was struck by a truck and a car simultaneously while crossing a road in Revelstoke, British Columbia,
Canada. The truck was owned by Defiant Corporation, which is incorporated in Delaware and has its principal place of business in
Los Angeles, California. The car was owned by Dan, an Arizona citizen, living in Phoenix. Each of Petes claims against both
Defiant and Dan exceed $75,000. If Pete wants to sue Defiant Corporation and Dan in a federal district court in the U.S., where
would venue be proper?
this is where fall-back provision will work
venue is proper in AZ where Dan is a citizen, but no facts that PJ will be over Defiant
Transfer of Venue
Sections 28 U.S.C. 1404 & 1406
Question 9:
Paul, a citizen of California, was injured in an accident that occurred in Kalispell, Montana. The truck that struck him is owned by
Della Corporation, which is incorporated in Delaware and has its principal place of business in Denver, Colorado. Paul, who had a
vacation home in Sedona, Arizona, filed a negligence action for $100,000 against Della in a district court in Phoenix, Arizona.
Della has filed a motion to dismiss the action for improper venue under FRCP 12(b)(3). Worried that his action might be
dismissed, Paul filed a motion under 28 U.S.C. 1406 asking the court to transfer the action to the Central District of California
rather than dismissing it. Do you think the court will grant either Dellas motion to dismiss or Pauls motion to transfer? Did
Paul have other options?
Was venue improper in AZ? Yes, none of events occurred in AZ, no DE is citizen there
He shouldve asked to transfer in DE, CO, Montana bc thats where substantial events
occurred
Question 10:
Patty and Dexter were long-time friends. Patty, who was a Hawaii citizen, owned various properties in Hawaii, including a
condominium in Honolulu, Hawaii. While she was staying at her second home in La Jolla, California, Patty told Dexter that she
was going to put the Honolulu condominium on the market and sell it. Dexter, who is a citizen of California living in Pacific
Beach, was planning to retire in two years. Dexter had never been to Hawaii, but had seen many photos of Pattys condominium
through the years. He asked Patty if he could purchase the condominium since he would like to live in Hawaii when he retired.
Patty agreed, and they executed a in which Dexter agreed to pay installment payments to Patty each month for the condominium,
mailing them to Pattys second home in La Jolla, California. After a year, Patty began complaining that Dexters payments should
be increased since the value of the condominium had gone up. The two got into a disagreement. To his surprise, Dexter was served
with copies of a summons and complaint indicating that Patty had filed a quiet title action against him in a federal district court in
Honolulu, Hawaii. Dexter has filed a motion under 28 U.S.C. 1406 to transfer the action to the Southern District of California.
Dexter has argued that venue is improper in Hawaii since he has never been there. Do you think the court will grant Dexters
motion to transfer the action to San Diego? Did Dexter have other options?
No, this is where property is!
What should he have done if he wanted action transferred?
o Shouldve filed an action under 1404 where venue and proper venue and PJ bc theres
another court where it would also be proper
Proper in San Diego?
o Yes, hes a citizen and substantial event of contract took place in SD, and thats where
payments being sent to
Up to judges discretion to weigh options
Question 11:
Dale, a citizen of California and resident of San Diego, was hiking on a path in a state park in southern Utah. Dale thought he had
found a camping spot for the night. He set down his gear and took out his tent. Suddenly Patrick, another hiker whom Dale had not
seen before on the trail, appeared and began screaming at Dale. Patrick claimed that he had already chosen that camp site. Several
other hikers on the trail and a state ranger heard Patricks yelling and ran to the area. Before Dale could respond and while the
others watched in amazement, Patrick picked up a huge boulder and slammed it into Dales head. Although Dale was stunned by
the blow, his adrenalin kicked in and he managed to throw his backpack at Patrick, who fell down when the pack hit him. Both
Dale and Patrick sustained severe injuries from their encounter and were transported to a local hospital in Utah. Patrick, a citizen
of Colorado, filed an action for assault against Dale in a federal district court in the Southern District of California, seeking
$100,000 in damages. Dale is considering filing a motion to transfer the action to the District of Utah. Do you think Dale has

46

grounds to request a transfer to Utah? If so, should he file the motion under section 1404 or 1406?
1404 depend on whether venue is proper
1406 depends on if venue improper
venue is proper in central district of CA bc its his home state
o why might he want to transfer to Utah?
Its where evidence is, witnesses Utah State Ranger might be hard to get
them to testify in out of state action
Joinder
1. P, a citizen of California, sued D, a citizen of Nevada, for $100,000 for negligence because of a car accident between the two of
them. D would like to bring a $50,000 negligence claim against P for her own injuries incurred in the accident, but isnt sure
whether to file the claim against P in the pending action or wait and bring an independent action against P. What would you advise
D?
Compulsory counterclaim bc it arises out of same incident, but each party must satisfy SMJ
(so $75k)
o citizens of diferent states, but its only $50,000
o the court can authorize supplemental jurisdiction here because 1367 allows related
claims that would ordinarily be brought from same controversy
should always have supplemental juris over a compulsory counterclaim
because compulsory counterclaim must arise out of same transaction as PL
claim, so if its compulsory then its automatically related and part of same
controversy
o if D tries to bring separate action, the DE will raise that she estopped or waived her
right to do so
o this rule makes sense because of efficiency
if you have same evidence in terms of witnesses and documents, etc. better to
do it together; also could have inconsistent outcomes
2. P, a citizen of California, sued D, a citizen of Nevada, for $100,000 for negligence because of a car accident between the two of
them. D wants to file a $100,000 negligence claim against P for her own injuries incurred in the accident along with a $10,000
claim for an unrelated breach of contract. Could D bring both of these claims against P in the pending action?
P can bring 100,000 negligence bc compulsory counterclaim
$10,000 claim is a permissive counterclaim and party in defensive position brining a claim
against party in ofensive position
independent basis for SMJ here?
o YES! Citizens from diferent states, and you can aggregate all claims together against
opposing party to meet jurisdictional amount
Could also look at this Rule 18 a party asserting a claim/counterclaim
o Once there is a compulsory counterclaim, you could also join any other claims
o Counterclaim another word for complaint, but we give special name to party in
defensive position you would put out claims in counterclaim just as you would a
complaint have to meet rules of Iqbal/Twombly the other side MUST ANSWER A
COUNTERCLAIM either a motion to dismiss or answer
3. P, a citizen of California, sued D, a citizen of Nevada, for $100,000 for negligence because of a car accident between the two of
them. D wants to file an unrelated breach of contract claim for $100,000 against P. Could D bring the breach of contract claim
against P in the pending action?
This is a permissive counterclaim that can be brought because there is an independent basis
for SMJ
o Citizens from two diferent states and juris amount met
o This is not mandatory
Permissive counterclaims can always be allowed its just that there must be an indep basis for
SMJ if there is no compulsory counterclaim
o So either federal question or diversity
This has some efficiencies because conducting discovery one time, one depo (10 for both
claims, not each)
4. P, a citizen of California, sued D1, a citizen of Nevada, and D2, a citizen of Nevada, for negligence because of a car accident
among the three of them. P sued D1 and D2 each for $100,000 in damages. D1 would like to bring a claim for $100,000 against
D2for negligence in causing D1's injuries in the same accident. Could D1 bring the negligence claim against D2 in the pending
action?

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This is crossclaim defined as arising out of same transaction or occurrence as the PLs action
Do we have an independent basis for SMJ NO no diversity because both from same state,
no federal claim
BUT THERE IS SUPPLEMENTAL JURIS! Because if it satisfies def of crossclaim of same
transaction or occurrence it will also satisfy related claim necessary to exercise supplemental
juris
5. P, a citizen of California, sued D1, a citizen of Nevada, and D2, a citizen of Oregon, for negligence because of a car accident
among the three of them. P sued D1 and D2 each for $100,000 in damages. D1 would like to bring a claim for $100,000 against D2
for an unrelated breach of contract. Could D1 bring the contract claim against D2 in the pending action?
D1 would want to bring a cross claim, but it is NOT related to original claim
o A cross claim MUST arise out of same transaction or occurrence so even though it
satisfies diversity and amount in controversy, doesnt fit def of cross claim
6. P, a citizen of California, sued D1, a citizen of Nevada, and D2, a citizen of Oregon, for negligence because of a car accident
among the three of them. P sued D1 and D2 each for $100,000 in damages. D1 would like to bring two claims against D2 in the
pending action: a claim for $100,000 for negligence in causing D1's injuries in the same accident and an unrelated breach of
contract claim for $100,000. Could D1 bring both the negligence and breach of contract claims against D2 in the pending action?
Negligence claim permissive can it be brought? Yes! Its a crossclaim bc it arises out of
same transaction and there would be supplemental juris
What about breach of contract claim? YES Rule 18 (ANCHOR CLAIM RULE) if you have an
anchor claim once you have one claim that satisfies the rule against co parties, then rule 18
would allow you to bring in additional claims even though theyre unrelated with WARNING
that you must have an independent basis for SMJ
7. P, a citizen of California, sued D Corp, which is incorporated in Delaware and has its principal place of business in Las Vegas,
Nevada, for negligence and product liability with respect to a defective product manufactured by D Corp. Ps action was for
$500,000 in damages. D wants to bring a claim against a new defendant, Iambic Corporation, which is incorporated in California
and has its principal place of business in Las Vegas, Nevada. Iambic is a component manufacturer which had provided D Corp
with a component used in the allegedly defective product that injured P. D Corp believes that if it is found liable to P, Iambic
should indemnify it for the entire amount of any judgment because Iambics component part caused the product defect. Could D
Corp assert a claim against Iambic in the pending litigation?
This would be a third party claim impleader claim
When you want to bring a new party must satisfy impleader
o Would it satisfy? YES
This is derivative liability I, original DE, am found negligent to PL, you 3rd
party DE must indemnify me because the reason it was defective was because
of your part
o No diversity between D Corp and Iambic for a corp we need to take into account both
citizenships and if either are the same it destroys diversity
Were not talking about PL this is like a brand new lawsuit that gets added to
initial one
o Supplemental juris?
YES! Because its a related claim
Theoretically the PL couldve sued both
This is a situation between D Corp and Iambic, nothing to do with PL
8. P, a California citizen, was in an automobile accident with two other vehicles driven respectively by D, a citizen of Nevada, and
T, a California citizen. P filed a negligence action for $100,000 solely against D. D wants to assert a $100,000 claim against T for
Ts negligence in causing Ds injuries in the same automobile accident. Could D bring T into the pending action and assert a
negligence claim against T?
D would want to bring an impleader claim against T
o D cant do this because it is NOT derivative liability!
o Ds theory would be if Im liable to P, then T must contribute because also negligent
There is not indemnification or contribution so it DOES NOT SATISFY DEF OF IMPLEADER
CLAIM
There would be diversity and amount met, but in order to do this, D would need to have a
claim that satisfies impleader requirements
9. P, a California citizen, was in an automobile accident with two other vehicles driven by D, a citizen of Nevada, and T, a
California citizen. P filed a negligence action for $100,000 solely against D. D plans to bring T into the action contending that T is
a joint tortfeasor and that if D is found liable to P, T must contribute to any judgment P gets against D. D would also like to assert a
$100,000 negligence claim against T for causing Ds injuries in the same accident, but would prefer to bring the negligence claim

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in a separate lawsuit between just between D and T. How would you advise D?
D has an impleader claim contribution for negligence - its derivative
What about negl claim that D claims T caused Ts injuries?
o Yes Rule 18 once you have a claim thats an anchor that satisfies that requirement,
it may join as many
o Once D has claims that satisfies Rule 14 contribution claim, under Rule 18 can assert
any additional claim
Would there be juris on independent claim?
o Yes, but does there need to be? No need for diversity because related claim so there
would be supplemental juris because negligence claim arising out of same incident
One of the golden rules of joinder
o You need to bring all related claims
If you file against T for contribution but would also like to sue T for your
injuries, must bring in same claim otherwise you will be precluded
Dont need to bring impleader claim at all, but if you do you must bring all
related claims
10. P, a California citizen, was in an automobile accident with two other vehicles driven by D, a citizen of Nevada, and T, a
California citizen. P filed a negligence action for $100,000 solely against D. D brought T into the action on the ground that T was a
joint tortfeasor and that if D was found liable to P, T must contribute to any judgment P gets against D. Now that T is a party to the
action, P would like to assert a $100,000
negligence claim against T with respect to the automobile accident. How would you advise P?
Would Rule 14 allow P to bring a claim against T? If so, is it mandatory?
o Rule 14a3 - A PL MAY assert against 3rd party
o Does this satisfy? Yes, its permissive, its a related claim, could be brought, but
1367(b) is SAME RULE AS OWEN v. KRUGER! PL sued utility company who brought in
crane operator and PL brought claim against crane operator and there was NOT
diversity
Wont allow supplemental jurisdiction over PLs claims bc it would allow PL to
game the system
If PL couldnt have sued both initially wont let them sue after being impleaded

Rule 14a2d 3rd party could bring a claim against PL

o No diversity, but there is supplemental juris!
o If T brings claim against P, P CANNOT bring a compulsory counterclaim against T if
initial basis for lawsuit is diversity, court SHALL not have supplemental juris over PL
This could in part be due to the fact that impleaded party got stuck in lawsuit
Rule 19 Problems
11. D enters a contract to sell his house to P. T offers D more money. D, breaching the contract with P, enters into a contract to sell
the house to T who is unaware of Ds prior dealings with P. P files an action against D for specific performance of the contract (i.e.,
P asks the court to order that D transfer title of the house to P pursuant to the terms of their contract). Is T a required party under
FRCP 19?
Why would we say T is a required party? T has an interest? Yes! Interest would be impaired if
he is not made a party, court could order property to transfer to P and T would have no say
12. D enters a contract to sell his house to P. T offers D more money. D, breaching the contract with P, enters into a contract to sell
the house to T who is unaware of Ds prior dealings with P. P files an action for breach of contract against D, seeking $300,000 in
damages. Is T a required party under FRCP 19?

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T could never learn about 1st action and he would be no worse of

D still has title to house and transfer to house even if he was forced to pay damages to P
Rule 19 almost never arises
o PL always has option to sue as many or few tortfeasors as he wants
Rare situation and most of time is in situation where there is no damages, but PL asking or
equitable relief
Some Declaratory Judgment Hypos

RR granted lifetime free pass as settlement agreement with Mottleys. Congress enacts statutes
making it illegal to honor free passes. Mottleys angry and RR anticipates Mottleys will file an action
against it. RR files decl. judgment against M in federal court. Asks court to declare that in light of recent
federal statute, the RR no longer has to honor M free pass. The RR and M are from same state. Would
fed court have SMJ over RR declaratory judgment action?
NO
RR - We dont have to honor free pass bc new fed statute enacted says we cannot do it
anymore
However, theyre raising this issue of federal but they think M will sue for breach of contract
which is a state claim!
Asserting defense if M sues for breach of contract

Always look at what the claim is

Proxy corp sent cease-and desist letter to Delta Corp in demanding Delta stop selling certain
products. According to Proxy, products Delta selling infringe one of Proxy patents. Delta doesnt think its
products infringe Proxys patent but is worried that Proxy will sue it. D files declaratory judgment action
against P in federal court. It asks court to declare that its products do not infringe Ps patent. P and D
are from same state. Would a federal court have SMJ juris over Ds declaratory judgment action?
Were going to have a federal Q for court to have SMJ bc no chance for diversity
YES! Because anticipating a case arising out of patent infringement which is federal court SMJ
Once D asks for decl judgment that it doesnt infringe patent, under rules of counter claims, P
has to assert any compulsory claim it has arising out of same facts
o If it doesnt raise it here, it couldnt raise it later on
If court doesnt have SMJ it cant make a decl. judgment at all
CLAIM PRECLUSION PROBLEMS
Assume that the transactional test applies. Is claim preclusion appropriate in
the following problems?
Is There a Final, Valid Judgment on the Merits?
1) Bob filed an action against Amy in federal court. The court dismissed the action onthe ground that it did not have subject matter
jurisdiction. Bob filed a second actionagainst Amy in state court on the same claim. Amy alleges claim preclusion as an affirmative
defense.
No the court didnt really deal with the merits of the claim, the court just said it didnt have
jurisdiction
2) Amy and Cindy filed an action against Bob in federal court. The court dismissed their action for failure to state a claim. Cindy
appealed the dismissal, but Amy did not. The appellate court ruled that the trial court had erroneously dismissed the claim and
remanded the case for further proceedings. Amy then brought a second action against Bob for the same claim. Bob asserts claim
preclusion as an affirmative defense.
Amys problem: she didnt appeal to the first claim and since she didnt its a valid final judgment
against her
3) Amy brought a negligence claim against Bob for the personal injuries she received in an accident. Bob did not file an answer to
the complaint, and Amy obtained a default judgment against him. Amy then filed a second action against Bob for the damage
caused to her motorcycle in the same accident. Bob asserts claim preclusion as an affirmative defense.
Was there a valid final judgment on the merits? Yes, there was one, even though it was a default
judgment theory is that Bob had the ability to adjudicate the claims, therefore tough luck for
him
So there is a claim preclusion valid final judgment on the first claim, same parties, and the
claims are from the same transaction
4) Bobs speedboat crashed into Amys surfboard, breaking it in half. Amy sued Bob in small claims court which has a
jurisdictional limit of $500. Amy received a judgment against Bob for $350 for damage to her surfboard. Amy then sued Bob in
federal court for $150,000 for her personal injuries. Bob asserts claim preclusion as an affirmative defense.

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Is there is a valid final judgment on the merits? Not required to go to small claims court: not
the only court available to you in state court system. Looks like exception applies but it doesnt.
she just opted for a court within same court system with jurisdictional limit of $5,000
Bob can assert claim preclusion
Are the Parties Identical?
1) Dan, the trustee of the Bobco trust, becomes disenchanted with Della, an attorney he had hired to handle a matter for the Bobco
trust. Dan sued Della for malpractice on behalf of the Bobco trust and obtained a judgment against her for $150,000. Cindy, one of
the beneficiaries of the Bobco trust, believes that Della also engaged in fraudulent acts when she handled the same matter,
including embezzling money from the trust. A fraud claim would have allowed the recovery of punitive damages. Cindy then
initiates an individual action for fraud against Della, seeking both compensatory and punitive damages. Della asserts claim
preclusion as an affirmative defense.
Yes under transaction test. She and Dan are not identical, but Dan is the only person that can sue on behalf of the trust.
Second action, Cindy says Della committed fraud in connection with Trust matter. Claim preclusion bc C and Dan are in
privity.
2) Amy and Cindy were both injured in a car accident when a truck driven by Bob collided with their car. Amy, the driver of the
car, sued Bob for negligence. The jury returned a verdict in Bobs favor. Cindy, the passenger, then filed an action against Bob,
also alleging that his negligence had caused the accident. Bob asserts claim preclusion as an affirmative defense.
Gold Rule about preclusion: Everybody gets their day in court Has Cindy had her day in
court? No.
No guardian/trustee/legal relationship. If Cindy is bound in judgment in Amys lawsuit, only way
would be to join in her lawsuit but this is not mandatory. Not obligated to join together. They can
file separately. Is there issue preclusion? Is Cindy precluded from re-litigating whether ? No.
most important thing about preclusion: everybody gets their day in court. Cindy has not had her
day in court. Bob got a verdict in his favor, but Cindy hasnt gotten an opportunity to sue him. If
Bob had been found negligent, Cindy could say you were already found negligent, had your day
in court, pay me
Does the Claim in the Second Action Involves Matters Considered in the First Action?
1) Amy sues Bob for personal injuries she received in an automobile accident. Amy receives a judgment of $50,000 against Bob.
Bob then sues Amy for damage to his vehicle in the same accident, contending that Amys negligence caused the accident. Amy
asserts claim preclusion as an affirmative defense.
Whats Bob mistake? he is barred by the compulsory counterclaim rule
Bob needed to have brought a compulsory counterclaim. If he was claiming damages to his
vehicle in the same thing as Amys thing, should have brought compulsory counterclaim.
2) Amy sues Bob for breach of contract in connection with some computing services Bob was to perform for her. Bob successfully
defends against the action, obtaining a judgment in his favor. Bob then sues Amy for fraud in connection with a car Amy sold him.
Amy asserts claim preclusion as an affirmative defense.
Completely unrelated - Wouldnt satisfy transactional test, dont come from same facts.
3) Amy, a famous artist, sued Bob in state court for right of publicity based upon Bobs unauthorized use of a self-portrait she had
painted. Bob had silk-screened Amys self portrait into t-shirts and had sold them. The state court granted summary judgment in
Bobs favor. Amy then filed an action in federal court alleging Bob had infringed her copyright in the painting by copying it
without permission when he silk-screened it onto t-shirts. Bob asserts claim preclusion as an affirmative defense.
Is it diferent is she starts in state court first? Yes, because she cant bring the copyright claim in
state court.
4) Amy, a famous artist, sued Bob in federal court for copyright infringement, alleging he had made unauthorized copies of a selfportrait she had painted by silk-screening them onto t-shirts. The court granted judgment in Amys favor. Amy then sued Bob in
state court for right of publicity based upon the same facts. Bob asserts claim preclusion as an affirmative defense.
Both are same claim in 3 and 4, arise out of Bobs unauthorized copies. Does it make a
diference that one started in state court and in 4 started in fed court? Yes. Cant file in state
court (copyright) and supplemental over her related state law claim.
If she starts in state court, cant bring a fed claim there.
5) Amy agrees to sell her vehicle to Bob. Under the terms of their agreement, Bob is obligated to make twelve monthly payments
of $1,000 each to Amy. Each payment is due on the first of the month. Bob makes the January, February, and March payments to
Amy, but fails to make the April, May, and June payments. Amy sues Bob for the unpaid April payment and obtains a judgment
against him for $1,000. She later commences a second action against Bob, seeking the unpaid amounts for May and
June. Bob asserts claim preclusion as an affirmative defense.
Bob doesnt make April May June payments. Second action seeking the unpaid payments. Claim
preclusion? Yes. If she sues for April, but at that time he hadnt paid May or June either, she had
to sue for every unpaid installment at that particular time. Should have sued for the others. If
you bring suit for installment, have to sue for all unpaid installments at once.
6) Amy, who is moving to Europe, agrees to sell both of her vehicles, a 2006 BMW 325 and a 2011 Honda Civic, to Bob. Although

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they execute separate agreements for each of the vehicles, the terms of the contracts are identical. In one contract, Bob agrees to
pay Amy twelve monthly payments of $1,000 each for the BMW. In the other contract, Bob agrees to pay Amy twelve monthly
payments of $1,000 each for the Civic. Under
both contracts, the payments are due on the first of the month. Bob makes the January, February, and March payments to Amy for
both vehicles, but fails to make any of the April, May, and June payments. Amy sues Bob for the unpaid April, May, and June
payments for the BMW and obtains a judgment against him. Amy then files a second action against Bob, seeking the unpaid
amounts for April, May, and June on the Civic. Bob asserts claim preclusion as an affirmative defense.
Two separate contracts and you can sue on separate contracts
ISSUE PRECLUSION

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1. Pam sued Dave for trespassing on her property on January 1, 2014. As a defense, Dave
asserted that he hadnt trespassed and that Pam didnt own the property. On June 1, 2014, the jury
rendered a verdict in Daves favor. On October 1, 2014, Pam sued Dave for trespassing on her property
on September 15, 2014. As an affirmative defense, Dave has alleged that Pam is precluded by both
claim preclusion and issue preclusion from pursuing the second action. Is Dave correct?
No because this is a new issue he trespassed again after the conclusion of the first verdict
No claim preclusion each trespass gives rise for second claim; when she sued first time, he
hadnt trespassed a second time
o You can bring separate actions on diferent claims
No issue preclusion jury found he hadnt trespassed OR Pam didnt own property
o It could be that P didnt own property we dont know so she can relitigate issue

2. While out sailing one day, Pats boat was suddenly hit by a speedboat piloted by David. Pats
boat did not receive much damage, so she sued David for negligence in small claims court to recover
$500 for the damage to her boat. The court rendered a verdict for Pat, finding David negligent, and
awarding Pat the entire $500. Mike, a passenger in Pats sailboat, had been thrown from Pats boat when
Davids speedboat collided with it. Mike sufered substantial injuries. Mike sues David in district court for
$500,000 in damages. Mike contends that David is precluded from relitigating the issue of his
negligence because of the earlier judgment in Pats favor. Does issue preclusion bar Mike from
relitigating the issue of whether his negligence caused the accident?
Trying to raise ofensive nonmutual collateral estoppel
o Diferent PL trying to coast of issue DE has already litigated in previous
Court will probably say not precluded whether negligent bc
o diferent procedures
Small claims no lawyer
o Diference in second is that may not have much incentive in first one to litigate have
huge incentive in second
May not have fully issued

3. After spending the evening drinking in a bar, Debbie ran into Patricks vehicle while driving
home to her apartment. The District Attorney commenced a criminal action against Debbie. Debbie was
convicted of drunk driving. Patrick subsequently filed a negligence action against Debbie to recover
damages for the personal injuries he sufered when Debbies car ran into him. Can Patrick assert issue
preclusion in his civil action against Debbie on the question of whether Debbie was drunk when the
accident occurred?
Yes
ofensive nonmutual issue preclusion
o she has more incentive to litigate in criminal higher standard, may be subject to
prison

4. Don was indicted by the district attorney for stealing computer equipment from Patsy, his
employer. The jury in Dons criminal trial rendered a verdict of not guilty. Patsy subsequently sued Don
in a civil action to recover damages for the value of the stolen equipment. As an affirmative defense,
can Don assert preclusion on the issue of whether he took the computer equipment based upon his
acquittal in the criminal action?
Ofensive collateral estoppel

5. Pat sued David for infringement of Claim 1 of her patent. As a defense, David asserted that
Claim 1 was invalid for lack of novelty. The court rendered a judgment infavor of Pat, awarding her
$500,000 for patent infringement. Pat then sued Mike for infringement of Claim 1 of the same patent.
Mike asserted as an affirmative defense that Claim 1 of the patent is invalid for lack of novelty. Pat
contends that Mike is precluded from relitigating the issue of Claim 1's validity because of the favorable
outcome in her action against David. Does issue preclusion bar Mike from litigating the issue of Claim
1's validity?
No defensive collateral estoppel Mike has not had his day in court

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