I. PERSONAL JURISDICTION a. Three types of personal jurisdiction:

i. In Personam (juris. over D himself)1. Notice obtained by serving D personally w/ process. Effect of judgment: binds D

personally.ii. (true) In Rem (juris. over property, main purpose is to adjudicate competing legal int. in

the prop.)iii. Quasi In Rem (claim related to prop but not directly litig. the legal rights over the prop,

or claim is unrelated to the prop. Prop serves mainly as an asset to satisfy any judgment that the ct may enter agnst the owner.)

1. Both types of In Rem juris: obtained by seizing the prop. Judgment limited to the value of the prop.

b. Back in the day: Physical Presence i. Pennoyer v Neff – Physical Presence

1. Limits on Juris.a. Person (or if in rem prop) found w/in borders at time the suit

commenced. Mere presence at time served sufficient.i. Exception: can exercise juris. over non-present non-resident to

determine status of one of its own citizens (i.e. divorce). Can exercise juris. if person has in-state agent for process of service.

c. Minimum Contacts Test – Est. in Intl Shoe (two step process, minimum contacts than fairness (fairness fleshed out more in later cases)

i. Specific and Gen. Juris.1. Specific Juris.: When claim arises from the contacts. Even single transaxn can be

enough for spec. juris. (ex: Intl Life Insurance v McGee)a. If claim doesn’t arise out of/was unrelated to the connections cited, juris.

still not allowed2. General Juris: Ct suggested that there may be cases where contacts so

“continuous and systematic” that juris. over corp. allowed even if claim completely unrelated to those contacts.

ii. Applies to in rem juris. too – Shaffer v Heitner (est. that minimum contacts also required to exercise in rem juris. Basically eliminated use of quasi in rem (doesn’t eliminate true in rem bc in that case minimum contact of having prop there is there).

iii. Fairness – second part of analysis, after have est. min. contacts1. Worldwide Volkswagen: Discussed five factors of fairness (but only get to

fairness analysis after have est. min. contacts):a. Burden on D (primary concern)b. interest of the forum in adjudicated the case c. P’s int. in obtaining “convenient and effective relief” d. interest of interstate judicial system in efficient resolution of

controversies; and e. the “shared interest of the several States in furthering fundamental

substantive social policies.”2. If min. contacts est., very rare to be denied for fairness consideration (Asahi)

iv. Purposeful availment of the benefits and protections of forum law: World-Wide Volkswagen – Ct. held that connection counts as a contact only if it results from an act that D purposefully directed at the forum state.

1. Hanson v Denckla: ct. held that person’s unilateral move to FL did not est. contacts btw DE trustee and FL. Trustee didn’t play role in person’s move.

2. Burger King: Merely entering into a contract w/ a resident of the forum is not alone sufficient. But if K negotiated and/or to be performed in the forum, that is evidence that the parties have purposefully availed themselves of the forum.

3. Asahi: O’Connor plurality view: argued that “mere awareness” of D’s goods entering forum insufficient. Only count as a contact is awareness plus (advertising or designing the product for the special needs of the forum, etc.). Concurrence argued that mere awareness enough.

v. Internet: 1. One attempt to figure out when internet should give rise to PJ: If passive site, no

juris; if active (invites interaxn) have PJ; if interactive (in-btw), cts. look at all the circs, including level of activity and whether site is commercial in nature. (sliding scale test from Zippo)

2. Pebble Beach v Caddy: Where D has not (1) purposefully availed himself of the privilege of conducting activities in the forum, or (2) purposefully directed his activities towards the forum, the min. contacts test for PJ not satisfied.

d. Cases Outside the Min. Contacts Testi. Domicile: Still valid to exercise PJ in state of domicile, even if not present in state at timeii. State of Incorp: can always exercise PJ over corp. in its state of incorporation

iii. Presence: Physical presence still enough (Burnham v Superior Court)iv. Consent: PJ may be waived expressly, or by taking axns inconsistent w/ the defense.

1. Can expressly consent to PJ in K beforehand. As long as agreement is enforceable under ord. rules of K law, ct can exer. PJ.

a. Forum Selection Clauses: specify in K that disputes can be heard only in a particular cts. In most juris., enforceable if they are fundamentally fair.

2. Can impliedly consent, by taking axns inconsistent w/ D’s arg. that ct. lacks power over him.

a. P who files suit in a forum consents to PJ for all matters arising in that lawsuit.

b. Failure to Assert Defense: D may waive any defense to PJ by filing other claims of defenses in the proceeding. Therefore, if D files a counterclaim against P b4 taking any other axn, she will be deemed to have consented to ct’s juris. FRCP says defense has to be raised in first pre-answer/answer or it is waived.

c. Insurance Corp of Ireland v Compagnie des Bauxites de Guinee: est. that when party challenges juris., she agrees to cooperate w/ the ct in determining whether juris exists. Therefore, if party challenges juris but then refuses to answer discovery Qs dealing w/ the facts nec. to est. juris., TC can enter saxn finding that juris. exists.

e. Challenges to PJ:i. Default, then if P tries to enforce judgment elsewhere, arg. that default judgment invalid

bc ct issuing it lacked PJ. Risky bc if fail in showing no PJ, can’t defend on the merits. Mostly not the case anymore

ii. Special Appearance: D can appear and argue only lack of PJiii. Fed Approach: Time limits/order req for when to raise defense, otherwise waived.

II. SUBJECT MATTER JURISDICTION (can be challenged by any party at anytime, and can be raised by ct sua sponte) –must have juris. both from Const. and from a statute “activating” the rights from the Const.a. FEDERAL QUESTION JURISDICTION: (general justification: worried state cts would be hostile to

enforcing federally created rights, and to ensure uniform interpretation)i. Authorized by Art 3, Sec. 2 of US Const: gives fed ct authority to hear “all Cases, in Law

and Equity, arising under this Const., the Laws of the US, and Treaties.”28 USC 1331. Federal QuestionThe district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

1. There are other specialized fed Q statutes (1334 for bankruptcy; 1337 for antitrust; 1338 for patents; 1343 for civil rights; 1345 & 1346 for where US is P or D, etc.)

a. Some fed Q cases (like antitrust) are exclusively in fed juris., can only be brought in fed. ct. Other fed. claims can be heard in fed. or state ct.

2. The claim must “arise under” one of the above sources of fed. law. To invoke fed. juris., need only allege such a claim; if P ultimately fails on that claim fed. ct. doesn’t lose juris. However, fed. claim must be substantial, not frivolous.

ii. Private Right of Axn by fed law required: State law claim by P w/ nec. fed. element only supports fed Q juris. if the fed law also affords a private right of axn for parties injured by violation of the statute. (Merrell Dow Pharmaceuticals v Thompson)

1. Ex: Fed law requires every passenger flight to provide safety instructions. Statute enforced solely by FAA w/ fines. P injured in plane crash, sues airline in fed. ct., says they are neg. for not providing required warnings. Fed. ct does NOT have fed Q juris over the claim bc the fed law that forms a nec element of the claim does not create a private right of axn (bc enforced only by FAA).

iii. Well-pleaded Complaint Rule: “Arising under” language of 1331 interpreted to require P to present fed Q on the face of P’s complaint. Merely including fed issue in the complaint not enough; the fed. element must be necessary to P’s case.

1. Can’t get fed Q juris. by anticipating that D will raise fed issue as a defense. (Louisville & Nashville RR v Motley, RR lifetime pass case)

iv. Does a state-law claim nec raise a stated fed issue, actually disputed and substantial, which a fed forum may entertain w/o disturbing any congressionally approved balance of fed and state judicial responsibilities? If so, fed. juris permissible.

1. Grable & Sons v Darue: Case involving interp of fed tax law may be removed to fed ct from state ct, bc claim implicated serious fed issues, and bc there is national interest in providing fed forum for fed tax litigation warranting removing case to fed ct. (this case may be exceptional bc involved fed tax law).

b. DIVERSITY JURISDICTION: (general justification: protect out-of-state parties from discrimination by state cts)

i. Art. III, Sec. 2 of Const: allows fed cts to exercise juris over “Controversies…btw Citizens of diff. states…and btw a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.”

28 USC 1332. Diversity of citizenship; amount in controversy; costs(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between--

(1) citizens of different States;(2) citizens of a State and citizens or subjects of a foreign state;(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.(c) For the purposes of this section and section 1441 of this title--

(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

(d) (1) In this subsection--(A) the term “class” means all of the class members in a class action;(B) the term “class action” means any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action;(C) the term “class certification order” means an order issued by a court approving the treatment of some or all aspects of a civil action as a class action; and(D) the term “class members” means the persons (named or unnamed) who fall within the definition of the proposed or certified class in a class action.

(2) The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which--

(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.

(3) A district court may, in the interests of justice and looking at the totality of the circumstances, decline to exercise jurisdiction under paragraph (2) over a class action in which greater than one-third but less than two-thirds of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the State in which the action was originally filed based on consideration of--

(A) whether the claims asserted involve matters of national or interstate interest;(B) whether the claims asserted will be governed by laws of the State in which the action was originally filed or by the laws of other States;(C) whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction;(D) whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants;(E) whether the number of citizens of the State in which the action was originally filed in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States; and(F) whether, during the 3-year period preceding the filing of that class action, 1 or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed.

(4) A district court shall decline to exercise jurisdiction under paragraph (2)--(A) (i) over a class action in which--

(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;(II) at least 1 defendant is a defendant--

(aa) from whom significant relief is sought by members of the plaintiff class;(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and(cc) who is a citizen of the State in which the action was originally filed; and

(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and

(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons; or

(B) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.

(5) Paragraphs (2) through (4) shall not apply to any class action in which--(A) the primary defendants are States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief; or(B) the number of members of all proposed plaintiff classes in the aggregate is less than 100.

(6) In any class action, the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs.(7) Citizenship of the members of the proposed plaintiff classes shall be determined for purposes of paragraphs (2) through (6) as of the date of filing of the complaint or amended complaint, or, if the case stated by the initial pleading is not subject to Federal jurisdiction, as of the date of service by plaintiffs of an amended pleading, motion, or other paper, indicating the existence of Federal jurisdiction.(8) This subsection shall apply to any class action before or after the entry of a class certification order by the court with respect to that action.(9) Paragraph (2) shall not apply to any class action that solely involves a claim--

(A) concerning a covered security as defined under 16(f)(3) of the Securities Act of 1933 (15 U.S.C. 78p(f)(3)) and section 28(f)(5)(E) of the Securities Exchange Act of 1934 (15 U.S.C. 78bb(f)(5)(E));(B) that relates to the internal affairs or governance of a corporation or other form of business enterprise and that arises under or by virtue of the laws of the State in which such corporation or business enterprise is incorporated or organized; or(C) that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder).

(10) For purposes of this subsection and section 1453, an unincorporated association shall be deemed to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized.(11) (A) For purposes of this subsection and section 1453, a mass action shall be deemed to be a class action removable under paragraphs (2) through (10) if it otherwise meets the provisions of those paragraphs.

(B) (i) As used in subparagraph (A), the term “mass action” means any civil action (except a civil action within the scope of section 1711(2)) in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).(ii) As used in subparagraph (A), the term “mass action” shall not include any civil action in which--

(I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State;(II) the claims are joined upon motion of a defendant;(III) all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a State statute specifically authorizing such action; or

(IV) the claims have been consolidated or coordinated solely for pretrial proceedings.

(C)(i) Any action(s) removed to Federal court pursuant to this subsection shall not thereafter be transferred to any other court pursuant to section 1407, or the rules promulgated thereunder, unless a majority of the plaintiffs in the action request transfer pursuant to section 1407.(ii) This subparagraph will not apply--

(I) to cases certified pursuant to rule 23 of the Federal Rules of Civil Procedure; or(II) if plaintiffs propose that the action proceed as a class action pursuant to rule 23 of the Federal Rules of Civil Procedure.

(D) The limitations periods on any claims asserted in a mass action that is removed to Federal court pursuant to this subsection shall be deemed tolled during the period that the action is pending in Federal court.

(e) The word “States”, as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.

ii. Other diversity statutes: 1335 (allows ct to hear interpleader case when parties are from diff states), 1369 (Multiparty, multiforum juris., where single accident kills at least 75 ppl, only minimal diversity required)

iii. Basic Requirements of 1332:1. Diversity

a. Must exist at commencement of the axn. P has burden of showing diversity.

b. Complete Diversity is required: No P can be citizen of same state as any D. (Strawbridge v Curtiss)

i. Ex: If P1 is from A, D1 is from B, and P2 and D2 are from C, but only P1 has claim against D2, still no diversity juris.

ii. Const. itself only demands minimal diversity (at least 1 P is diverse from any D). Complete diversity rule applies only to 1332, not any other SMJ statutes.

c. If parties are improperly or collusively joined to create diversity juris., 28 USC 1359 directs fed ct not to exercise juris.

d. Determining Citizenship for purposes of 1332. Party must be citizen of the US (or have permanent alien status), and domiciled in a state.

i. Domicile: Not the same as resident. Actual residence plus intent to remain. Every person only has one domicile.

1. Person requires domicile at birth (typically domicile of parents, not location at birth), and retains until it is changed. Domicile not typically changed by college residence.

2. Change of domicile only when person both acquires a new residence, and has the intent to remain at that place.

3. Proving intent to remain: look at registering to vote, obtaining new driver’s license and car tags, opening new bank account, selling residence in prior state, etc.

4. Diversity is measured at time of filing suit, so if one moves btw the injury and the filing of suit, in good faith (not just to invoke diversity juris.), can use diversity juris.

5. Mas v Perry: Mere residence in a state doesn’t est. domicile for purposes of diversity juris. (P lived in same state as D, but was there as student, and so by default still had domicile of birth, a diff. state)

ii. Establishing Citizenship of Corporation: Corp. is citizen of both the state in which it is incorporated in and the state in which it has its principal place of business.

1. Est. principal place of business: a. Muscle Test: Slight majority of cts. look to where

most of crop’s actual physical activities, such as manufacturing or sales, take place

b. Nerve Center: Many cts look to where corp. management and operations decisions are made (corp HQ)

c. Combination: Some cts, for ex., use muscle test for many corps that have their physical activities located mainly in a single state, but use nerve test for corps w/ significant physical activities in several states

iii. Aliens: If one party is an alien diversity juris. est. no matter where they live in the US. However, ct. won’t hear cases btw two aliens, at least one party must be US citizen.

2. Amount in controversy (more than $75,000) (statutory, not const. req. Periodically raised)

a. Measured by claim sought in P’s complainti. Legal certainty rule: Amount alleged in complaint controls unless

it appears to a legal certainty that P will recover less than $75,000.

1. AFA Tours v Whitechurch: Ct may not dismiss diversity axn for failure to meet amount-in-controversy req w/o allowing P to brief the issue.

ii. As long as claim made in good faith, doesn’t matter if ct eventually awards less than $75,000.

iii. Aggregation1. Single P may aggregate all her claims agnst single D,

regardless of whether claims are related in any way, to reach $75,000

2. Multiple Ps ordinarily may not aggregate their claims, unless they present a joint claim (i.e. yacht owned by two ppl)

3. Multiple Ps, only P1 has claim greater than $75,000 – no aggregation, but cts can exercise juris. over other claims thru supp. juris. (Exxon Mobile)

3. Note, 1332 is not exclusive: cases can be heard in either fed or state ct.c. Supplemental Jurisdiction: (possible only when at least 1 claim independently qualifies for fed

SMJ)28 USC 1367. Supplemental Jurisdiction(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal

statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if--

(1) the claim raises a novel or complex issue of State law,(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,(3) the district court has dismissed all claims over which it has original jurisdiction, or(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

(e) As used in this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

i. Applying 1367:1. First, determine if the state and fed. claims have sufficient factual relationship to

qualifya. Two or more claims comprise the same Art. III case if they arise out of the

same basic set of facts. If litig. involves many of the same witnesses or other evidence, or if claims stem logically from the same core transaxn, likely qualifies under 1367a

b. United Mine Workers v Gibbs (pre-1367): Juris. exists bc Const. gives fed ct juris over “cases” not claims, which must be broader than indiv. claims. A “case” comprises all the claims that arose our of a “common nucleus of operative fact.”

i. Sec. 1367 doesn’t use the same language, but basically intended to codify the reasoning in Gibbs case.

c. Where one P’s claim satisfies the minimum amount-in-controversy req for fed. diversity juris., and another P’s related claim does not, 1367 allows fed cts to exercise supp juris over the claim that is less than the required amount .

2. Second, even if a relationship exists, supp. juris. may still be precluded if the situation falls into one of the exceptions in 1367b or 1367c (if so, just the state claim is dismissed, the ct will retain juris over the fed claim).

a. Diversity Exception (1367b): In cases where juris. over fed claim is based solely on diversity, 1367b prevents use of supp. juris. over claims brought by Ps agnst parties joined under certain listed rules.

i. Bars only claims by plaintiffs.ii. Bars claims by P agnst parties joined under:

1. Rule 14 (impleader)2. Rule 19 (mandatory joinder of parties) – Also bars claims

by parties who are joined as involuntary Ps under Rule 193. Rule 20 (permissive joinder of parties)4. Rule 24 (intervention) – Also bars claims by parties who

intervene as Ps under Rule 24.

iii. Rationale: Cong. doesn’t want to allow Ps to get around into fed ct using diversity by suing diverse D they don’t care about, knowing that diverse D will than join additional party who is not diverse but who P wants to sue in fed. ct. Codifies Owen v Kroger Equipment

b. Discretionary Exception (1367c): Allows fed ct to refuse to exercise supp. juris. over a state claim in any of the following situations:

i. the state claim raises a novel or complex issue of state lawii. the state claim substantially predominates over the fed claim

1. State claim predominates if it is factually complicated and will take the overwhelming majority of the ct’s time and attention. Doesn’t matter if fed claim is for more money.

iii. if the fed. ct dismisses all fed. claimsiv. in exceptional circumstances for any other compelling reason.

1. Executive Softwave v US DC of Central Dist. of Cal. holds that absent extraordinary circumstances, 1367c1-c3 sets forth the exclusive circumstances under which a fed ct may appropriately decline to exercise supp. juris.

d. Removal from State to Fed Ct. 28 USC 1441. Actions removable generally(a) Except as otherwise expressly provided by Act of Congress, any civil action brought

in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

(d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

(e)(1) Notwithstanding the provisions of subsection (b) of this section, a defendant in a civil action in a State court may remove the action to the district court of the United States for the district and division embracing the place where the action is pending if--

(A) the action could have been brought in a United States district court under section 1369 of this title; or

(B) the defendant is a party to an action which is or could have been brought, in whole or in part, under section 1369 in a United States district court and arises from the same accident as the action in State court, even if the action to be removed could not have been brought in a district court as an original matter.

The removal of an action under this subsection shall be made in accordance with section 1446 of this title, except that a notice of removal may also be filed before

trial of the action in State court within 30 days after the date on which the defendant first becomes a party to an action under section 1369 in a United States district court that arises from the same accident as the action in State court, or at a later time with leave of the district court.

(2) Whenever an action is removed under this subsection and the district court to which it is removed or transferred under section 1407(j) has made a liability determination requiring further proceedings as to damages, the district court shall remand the action to the State court from which it had been removed for the determination of damages, unless the court finds that, for the convenience of parties and witnesses and in the interest of justice, the action should be retained for the determination of damages.

(3) Any remand under paragraph (2) shall not be effective until 60 days after the district court has issued an order determining liability and has certified its intention to remand the removed action for the determination of damages. An appeal with respect to the liability determination of the district court may be taken during that 60-day period to the court of appeals with appellate jurisdiction over the district court. In the event a party files such an appeal, the remand shall not be effective until the appeal has been finally disposed of. Once the remand has become effective, the liability determination shall not be subject to further review by appeal or otherwise.

(4) Any decision under this subsection concerning remand for the determination of damages shall not be reviewable by appeal or otherwise.

(5) An action removed under this subsection shall be deemed to be an action under section 1369 and an action in which jurisdiction is based on section 1369 of this title for purposes of this section and sections 1407, 1697, and 1785 of this title.

(6) Nothing in this subsection shall restrict the authority of the district court to transfer or dismiss an action on the ground of inconvenient forum.

(f) The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim.

i. Matter of right, not a discretionary move like transfer under 1404ii. Only Ds can remove; if there are multiple Ds, all Ds must join in the notice of removal. If

any D lives in state where state ct is, can’t remove.iii. Note, some cases are nonremovable (Section 1445 forbids removal in certain categories

of cases, such as workers’ comp cases)iv. Can only remove if fed ct has original juris (thru fed Q, diversity, or supp juris) over ALL

claims in the case.1. 1441c: When non-removable (state law) claims are joined w/fed Q claim, all are

removable to fed ct and fed ct has discretion to keep state claims or remand them.

a. The state claims must be “separate and independent” from the fed claims.

2. Entire case must be removed, if any of the claims in a multiclaim case doesn’t fit w/in 1441, can’t remove.

v. In Diversity cases, can only remove if no Ds live in the state in which the district fed ct is located. (1441b)

1. In removal cases, diversity must exist in the state ct case both when the case was filed and at the time of removal

vi. Procedure of Removal:1. D starts removal process by filing notice of removal w/ appropriate district ct

(and then promptly file copy of notice w/ state ct). Filing the notice itself results in removal, subject to fed ct’s authority to remand the case if the reqs for removal are not met.

2. Timing of Removal: Notice must be filed w/in 30 days after D receives notice that she is D in state ct case that could have been filed in fed. ct. (for multiple Ds, time starts running when first D receives notice)

a. If original case not removable but the case becomes removable bc of an amendment to the pleadings or an order dismissing one or more parties, the notice must be filed w/in 30 days of the date D receives the order or amended pleading. In diversity cases, if this change happens more than one year into the case, can’t remove.

III. VENUE (governed by statute, defined by district)a. State venue – statutes look to where cause of axn arose, where D resides, where D conducts

business, where P resides, where prop is located (in suit involving prop)b. Federal venue :

28 USC 1391. Venue Generally(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may,

except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of th

e events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.

(d) An alien may be sued in any district.(e) A civil action in which a defendant is an officer or employee of the United States or any

agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.

(f) A civil action against a foreign state as defined in section 1603(a) of this title may be brought--

(1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;

(2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title;

(3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or

(4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.(g) A civil action in which jurisdiction of the district court is based upon section 1369 of

this title may be brought in any district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place.i. Venue in Diversity Cases, governed by 1391a:

1. any district where one D resides if all Ds reside in same state; 2. or in which “substantial portion” of stuff giving rise to axn took place (only

substantial if stuff is relevant to P’s claim); or 3. if there is no other option any place D subject to PJ

ii. Venue in Fed Q Cases, governed by 1391b: 1. same two first things above; 2. or if no other option any place D can be found

iii. Time limits to challenging venue (same as for challenging PJ, Rule 12b)c. Forum Non Conveniens : ct created doctrine that allows ct to dismiss an axn even tho venue is

proper.i. In fed ct can transfer to other fed cts using Sec. 1404. Only dismiss using this doctrine

when alt. convenient forum is foreign ct. In state ct, don’t have power to transfer so use this doctrine to dismiss.

ii. Factors in Analysis:1. Is there an alternate forum available to hear the case?

a. Differences in remedy bar dismissal only if they effectively deny P any rights in the alt. forum. May impose conditions on the dismissal (such as only dismissing if D agrees not to challenge lack of PJ in new forum).

2. If there’s an alt. forum, consider private and public factorsa. Private factors (related to the indiv. litigants)

i. where the underlying events occurredii. where witnesses and physical evidence are located

iii. comparative overall costs of litigating in the two placesiv. where witnesses can be compelled to testifyv. language issues

vi. whether judgment by chosen ct would be enforceable in the place where D’s assets are located

b. Public factors (related to the ct system)i. choice of law Qs, including familiarily w/ and ease of determining

the law that will govern the caseii. policy implications of the case in the more convenient forum

iii. backlog in the ct chosen by Piv. burden on the ct system and on citizens who may be called upon

to sit on a juryd. Transfer of Venue (from fed ct to a fed ct only, transferee ct must have PJ and venue)

28 USC 1404. Change of Venue(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the

court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.(c) A district court may order any civil action to be tried at any place within the division in which it is pending.(d) As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.

i. 1404: Allows ct w/ venue and PJ to transfer case to another fed. district (in diversity cases transfer doesn’t change substantive law that will be used to decide dispute)

ii. Allows transfer “for convenience of parties and witnesses in the interest of justice. Either party may seek transfer, party requesting transfer has burden of showing that the alt forum is more convenient. Ct. has considerable discretion as to whether to transfer the case.

iii. Cts consider similar factors as that for forum non conveniens1. Private factors (measure interests of the litigants):

a. convenience of the witnessesb. convenience of the partiesc. where the claim arosed. location of physical evidencee. (if K dispute, the presence of a forum selection clause)

2. Public factors (interest of the ct system)a. comparative ease of enforcing judg in the transferor and transferee ctb. whether the judges in each district are likely to be familiar w/ the

governing lawc. any considerations of relative judicial economyd. any local interest in deciding issues at home

28 USC 1406. Cure or Waiver of Defects(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.(c) As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.

iv. 1406: Allows ct WITHOUT venue and PJ to transfer case. (Also allowed to do so in 1631). (In diversity cases, law of the transferee ct rules).

v. When venue is improper (whether or not there’s PJ), ct “shall dismiss, or if it be in the int. of justice, transfer” the case. About justice, not convenience.

vi. 28 USC 1631 (not quoted): Allows ct w/o PJ to “if it is in the int of justice, transfer such axn.”

IV. JOINDER a. Permissive Joinder of Claims (Harris v Avery)

Rule 18. Joinder of Claims(a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.(b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties' relative substantive rights. In particular, a plaintiff may state a

claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.

i. Provides that a party seeking relief from an opposing party may join w/ his original claim any additional claims he has agnst that opposing party (no common transaxn req.)

b. Counterclaims and Crossclaims (Counterclaims: US v Heyward-Robinson, Crossclaims: Lasa Per L’Industria etc. v Alexander)Rule 13. Counterclaim and Crossclaim(a) Compulsory Counterclaim.

(1) In General. A pleading must state as a counterclaim any claim that--at the time of its service--the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and(B) does not require adding another party over whom the court cannot acquire jurisdiction.

(2) Exceptions. The pleader need not state the claim if:(A) when the action was commenced, the claim was the subject of another pending action; or(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.(c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.(d) Counterclaim Against the United States. These rules do not expand the right to assert a counterclaim--or to claim a credit--against the United States or a United States officer or agency.(e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.(f) Omitted Counterclaim. The court may permit a party to amend a pleading to add a counterclaim if it was omitted through oversight, inadvertence, or excusable neglect or if justice so requires.(g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.(h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.(i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.

i. Compulsory Counterclaims (13a): Forces parties who are already adversaries to litigate all claims arising from the same set of facts in one single axn.

1. If D has axn should bring under 13a, and he didn’t, is barred from bring suit in the future.

ii. Permissive Counterclaims (13b): Allows D to assert counterclaims that are completely unrelated to the original claim. Allows D to settle all his claims agnst his opponent w/o having to file a separate lawsuit.

iii. Crossclaims (13g): Provides for assertion of cross-claims arising out of the same transaxn as the main claim. Cross-claim is asserted by one party agnst co-party (ex. D1 agnst D2). This promotes efficiency and consistency bc the same underlying facts will be litigated on the main claim and on the cross-claim. Not compulsory.

c. Permissive Joinder of Parties (Ryder v Jefferson Hotel (pre-FR20), MK v Tenant, Tanbro Fabrics)Rule 20. Permissive Joinder of Parties(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and(B) any question of law or fact common to all plaintiffs will arise in the action.

(2) Defendants. Persons--as well as a vessel, cargo, or other property subject to admiralty process in rem--may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and(B) any question of law or fact common to all defendants will arise in the action.

(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.

(b) Protective Measures. The court may issue orders--including an order for separate trials--to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.

i. FR 20 authorizes Ps to sue together (20a1) or sue multiple Ds together (20a2) if they assert claims arising out of the same transaxn, and involve a common Q of law or fact.

ii. Justification: when same issue will have to be litigated to resolve each claim, more efficient to litigate together. Also, resolving in single axn avoids possibility of inconsistent judgments.

d. Mandatory Joinder of Parties (Bank of Cal. Nat. Assn v Superior Ct, Provident Tradesmens Bank v Patterson)Rule 19. Required Joinder of Parties

(a) Persons Required to Be Joined if Feasible.(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.

(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:

(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment;(B) shaping the relief; or(C) other measures;

(3) whether a judgment rendered in the person's absence would be adequate; and(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

(c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state:

(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and(2) the reasons for not joining that person.

(d) Exception for Class Actions. This rule is subject to Rule 23.i. Under 19a, first consider whether some person who was not joined in the original axn

should be made a party to it, and describes 3 situations in which such absentee should be made a party:

1. 19a1A: Situation in which ct can’t adequately provide redress to the parties who ARE before the ct, unless an absentee is also brought into the case. Ex. A leases building to B, B subleases to C. C has dispute and sues B for specific remedy of making alterations. B can’t allow alterations w/o permission of A, so even if ct-ordered to do so, can’t w/o A’s consent, so nec. to join A to suit.

2. 19a1Bi: Address a 2nd situation in which an absentee should be made a party to the case "if feasible." It provides that a person who claims an interest related to the SM of the case should be made a party if proceeding w/o that person might impair her ability to protect that interest. Ex., A and B buy stock in Corp. Stock in A's name, but B claims stock is jointly owned by them both. A wants to sell stock, B sues Corp. to have stock reissued half in his name. Since A seems to think all stock belongs to him, this case affects his interest, and he should be joined under 14a1Bi.

3. 19a1Bii: Provides for joinder of an absentee if adjudicating the case w/o her would expose one of the original parties to a risk of multiple or inconsistent obligations. Ex: Indians tribes share fishing rights to limited section of water. Tribe M sues govt to get thier fishing allotment increased. If they win, other tribes will lose some amount of fishing allotment, and may also sue and the govt may be ordered to give them land that is given to tribe M.

ii. When joinder is not feasible: When an absentee party SHOULD be joined under Rule 19a but CAN'T, there are three options:

1. go forward with case anyway, 2. dismiss the case, or 3. go forward but try to craft the judgment to provide appropriate relief to the

parties before the ct despite the inability to join the absentee. 4. 19b provides guides to the trial judge in choosing among these alteratives.

a. Trad. approach: if party was nec. to axn (called "indispensable") but couldn't be brought in, dismissed. 2007 revision dropped word "indispensable."

b. Rule 19b approach is more nuanced; judge needn't automatically dismiss the case is a 19a party can't be joined. Specific factors to be considered: to what extent a judgment rendered in the person(X)'s absence might be prejudicial to X or those already parties. The extent to which protective provisions in the judgment may be used to avoid or lessen the prejudice to X. Whether a judgment rendered w/o X will be adequate (among the

parties before the ct). Whether P will have adequate remedy (presumably in another ct) if the axn is dismissed due to the inability to join X.

e. Impleader (Jeub v BG Foods; Too, Inc v Kohls)Rule 14. Third-Party Practice(a) When a Defending Party May Bring in a Third Party.

(1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 10 days after serving its original answer.(2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint--the “third-party defendant”:

(A) must assert any defense against the third-party plaintiff's claim under Rule 12;(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

(3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).(4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately.(5) Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.(6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.

(b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

i. Third Party Impleader (14a): Gives D limited right to implead (bring into the suit) new parties agnst whom he has claims related to the main axns. Often, 3d party impleaded for contribution (i.e. to obtain a judgment that the 3d party is liable for all or some of the damages D may be found liable for).

1. Claims under 14a limited to claims arising out of the same transaxn as the main claim.

2. Permissive, ct doesn’t have to grant. Reasons to allow impleader: Efficiency of hearing related claims together and avoidance of repeated suits or inconsistent judgments. Reasons to deny impleader: undue delay in seeking it, complication of the issues in the main axn, and potential prejudice to P from impleading a sympathetic 3d party

a. Any party can move to strike the 3d-party claim, to sever it, or to try it separately, under 14a4.

3. 14a1: D may implead 3d party w/in 10 days of answering the complaint w/o obtaining leave of the ct. (though cases est. that ct. can always refuse impleader claim if want to)

4. Impleading party may escape liability by defeating either P’s original claim, or D’s derivative claim agnst him.

5. P may assert against 3d-party D any claim arising out of same transaxn as main claim (14a3).

6. 3d-party Ds can implead further parties (4th-party D or more).7. Note, impleading 3d-party doesn’t affect ct’s juris. over original claim regarding

PJ or venue. There must still be SMJ, but usually available (if no independent basis) thru supple. juris.

f. Interpleader (Hancock Oil v Independent Distributing)Rule 22. Interpleader(a) Grounds.(1) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:(A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or(B) the plaintiff denies liability in whole or in part to any or all of the claimants.(2) By a Defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim.(b) Relation to Other Rules and Statutes. This rule supplements--and does not limit--the joinder of parties allowed by Rule 20. The remedy this rule provides is in addition to--and does not supersede or limit--the remedy provided by 28 U.S.C. §§ 1335, 1397, and 2361. An action under those statutes must be conducted under these rules.

28 USC 1335. Interpleader(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if

(1) Two or more adverse claimants, of diverse citizenship as defined in subsection (a) or (d) of section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if(2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy.

(b) Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another.

i. Classic Ex: Insurance Comp. that owes limit of policy to whoever has claims, and wants to interplead all potential claimants so it doesn’t end up with inconsistent payments to multiple ppl going over policy limit. (Pan American Fire & Casualty Co v Revere; State Farm Fire & Casualty Co v Tashire)

ii. Note, PJ must be obtained over indiv. in interpleader axn in order for judgment to be binding on indiv. (NY Life v Dunlevy)

g. Intervention (Smuck v Hobson)Rule 24. Intervention(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

(b) Permissive Intervention.(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or(B) has a claim or defense that shares with the main action a common question of law or fact.

(2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:

(A) a statute or executive order administered by the officer or agency; or(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.

(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.

(c) Notice and Pleading Required. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.

i. Intervention of Right: 1. 24a1: Allows person to intervene as of right if a statute authorizes the party to

do so. Ex: statutes authorize govt agency to intervene in cases in which it may have an interest, or private party to intervene in certain types of cases.

2. 24a2: Authorizes a person who is not a party to a case to intervene if three conditions are met: (1) the person claims an interest relating to the prop. or transaxn that is the SM of the axn. (2) that interest may, as a practical matter, be impaired if the person is not allowed to participate in the case, and (3) the absentee's interest is not adequately represented by those already parties to the axn.

a. If person meets these three conditions and their request to intervene is “timely,” must be allowed. If not “timely,” ct. has discretion to deny.

ii. Permissive Intervention:1. Ct. may deny intervention on various groups, sensitive to the facts and litigation

history of each case. Intervention is more likely to be granted if the party seeking it can show that it brings a special expertise or a diff. perspective to the controversy than the original parties, or if refusing intervention may lead to other suits litigating the same issues. Ct. may allow intervention for limited purposes or authorize intervenors to participate in limited ways.

V. CLASS ACTIONS Rule 23. Class Actions(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;(2) there are questions of law or fact common to the class;(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and(4) the representative parties will fairly and adequately protect the interests of the class.

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and(D) the likely difficulties in managing a class action.

(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.(1) Certification Order.

(A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).(C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.

(2) Notice.(A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.(B) For (b)(3) Classes. For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:

(i) the nature of the action;(ii) the definition of the class certified;(iii) the class claims, issues, or defenses;(iv) that a class member may enter an appearance through an attorney if the member so desires;(v) that the court will exclude from the class any member who requests exclusion;(vi) the time and manner for requesting exclusion; and(vii) the binding effect of a class judgment on members under Rule 23(c)(3).

(3) Judgment. Whether or not favorable to the class, the judgment in a class action must:(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and(B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.

(4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.(5) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.

(d) Conducting the Action.(1) In General. In conducting an action under this rule, the court may issue orders that:

(A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;

(B) require--to protect class members and fairly conduct the action--giving appropriate notice to some or all class members of:

(i) any step in the action;(ii) the proposed extent of the judgment; or(iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;

(C) impose conditions on the representative parties or on intervenors;(D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or(E) deal with similar procedural matters.

(2) Combining and Amending Orders. An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16.

(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.(4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval.

(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 10 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.(g) Class Counsel.

(1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:

(A) must consider:(i) the work counsel has done in identifying or investigating potential claims in the action;(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;(iii) counsel's knowledge of the applicable law; and(iv) the resources that counsel will commit to representing the class;

(B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;(C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs;(D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and(E) may make further orders in connection with the appointment.

(2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.(3) Interim Counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.(4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class.

(h) Attorney's Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement. The following procedures apply:

(1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.(2) A class member, or a party from whom payment is sought, may object to the motion.(3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a).(4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d)(2)(D).

a. Certification of class must be done as “soon as practicable.”i. Two Step Process for certification:

1. First, determine that class axn is appropriate, 4 basic reqs:a. Numerosity

i. “So numerous that joinder impracticable.” 1. Amount in claim: if amount large, indiv. have incentive to

litig. on their own so CA not as appropriateb. Commonality

i. Of law or fact. If there is sig. diff. btw the indiv. claims, CA won’t be efficient bc ct will have to spend too much time dealing w/ indiv. elemtns of the claims

c. Typicalityi. Req. usually satisfied unless there is a major diff. btw the reps’

and members’ claim.d. Adequacy

i. Parallel interests, no conflict of interestii. Competence of attorneys for the rep.

iii. Ability of rep. to fund the litig.2. Second, decide what type of CA

a. FRCP 23b1: Where there are many absent parties who are like “necessary” parties under Rule 19a. Appropriate when having indiv. axns would pose risk of either:

i. inconsistent or varying outcomes ; would expose the party opposing the class to incompatible standards of conduct

ii. hurt absent member’s interests; like where there is an insurance policy of 1 mil, the claims of the 1st few indiv. might exhaust entire fund leaving nothing for absent members who want to bring axn later.

b. FRCP 23b2: Injunctive or declaratory relief appropriate for class as a whole (ex. city captures strays w/o notifying owners, P wants class axn and injunc to make city give notice to owners about captured strays, if indiv. axn applies just to P, if CA applies to all dog owners in city)

c. FRCP 23b3: Most common type of CA, for damages. More restrictions than other type.

i. Appropriate when:1. Common questions of law or fact predominate over

questions affecting only indiv. members of the class2. CA is superior to either indiv. axn or a suit using joinder

rules, for fairly and efficiently resolving the underlying controversy.

3. How to determine superiority? Extent to which indiv. members have interest in controlling prsc or defense of

their own axns. Whether indiv. litig. is already pending. Whether the chosen forum is a desirable place to concentrate litig.

ii. Common reasons not to certify:1. Too much discrepancy in damages. Way to solve this:

have CA for liability only than indiv. damage suits.2. D may have defenses to some but not other members, or

diff. defenses for diff. members3. Members may be in many diff. states and nations w/ diff.

substantive law.ii. Notice: After certification, for 23b3 must provide notice. For 23b1 and 2, court may

order rep. to provide notice but don’t usually. (For 23b3) Must provide individ. notice to all members. If can’t find member they are excluded from class and judgment doesn’t bind them. Notice provides opportunity to opt-out of CA.

iii. Settlement: Worries about rep. making settle. that is favorable to them but not other members of class. Notice of settle. must be provided to all members to give them chance to challenge (for 23b1 and 2 as well as 3). For 23b3 members, must be given notice and second opportunity to opt-out. Ct. must approve settlement, including allocation of attorney’s fees.

VI. ERIE DOCTRINE 28 USC 1652. State Laws as Rules of Decisions (aka the Rules of Decision Act)The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

a. Case History/Out-of-date Testsi. Swift v Tyson: RDA when says “laws” means just state statutes, not state judicial

opinions. Based on “natural law,” that there was “one right answer” that all cts aiming for. Hope that over time fed. CL would develop that would harmonize state laws (didn’t happen).

ii. Erie RR v Tompkins: Overturned Swift, saying that “laws” in RDA meant state judicial opinions as well. Said fed. ct. had no right to create CL (although they do sometimes, see below).

iii. Guaranty Trust v York: Interpreted Erie to mean that fed. cts. had to follow state laws (statutes and judicial opinions) in substantive matters, not in procedural matters. Way to decide if substantive was outcome-determinative test: if choice btw state and fed. rule changed outcome, go w/ state.

iv. Byrd v Blue Ridge Electric: Balancing Test: consider the outcome-determinativeness, but also balance w/ fed. interest, its essential character and functions. Right to jury is v. imp. so go w/ fed. practice of using juries in this type of case instead of state practice of judge. This analysis has never been explicitly disavowed, and is still seen in judge-jury type cases.

b. Three Basic Types of Federal Provisions that May Conflict with State Lawi. Btw Fed. Statute and State Law: If true conflict btw valid fed. statute and state law, fed.

law wins bc of supremacy clause of Const.1. Stewart Org v Ricoh: whether state law of not enforcing forum selection clauses

in K beats 1404 transfer statute. Fed. statute applies.

ii. Btw Fed. Rule and State Law, governed by rule in Hanna v Plumer: If FRCP conflicts w/ state law, FR applies if it is “valid and applicable,” unless they “abridge, enlarge, or modify a substantive right under the second subsection of the REA.”

1. Three-step analysis:a. Does rule actually apply to the situation, and conflict w/ state law?

i. Walker v Armco Steel: Q of whether FRCP 3 or state statute applied, ct. held that FR 3 only governed date from which timing reqs. of fed. rules begin to run, so doesn’t actually conflict w/ state statute so apply state statute of limitations. Seems to be deliberate narrow reading of FR, even tho ct. says FR aren’t to be read narrowly just to avoid conflict.

b. Is the rule valid under the Rules Enabling Act (REA)?28 USC 2072. Rules of Procedure and Evidence; Power to Prescribe (Rules Enabling Act)

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.

i. Presumptively valid bc promulgated by SC and approved by Congress. Note, even if FR affects outcome, if it is arguably procedural and doesn’t hurt any substantive right, it is valid.

c. Note, even if rule satisfies REA, would still be invalid if violated the Const. or conflicted w/ fed. statute.

iii. Btw Fed. Judicial Practice and State Law. Fed. judicial practices (that aren’t embodied in fed. statutes, FRCP or the Const.) are invalid if they est. rules of primary behavior (like duty to trespasser in Erie, which there is no fed. const. power to make), but if practice relates to conduct of litig., fed. practice wins if pass Hanna Part I test like for conflicts btw fed. statute and state law.

1. Continues outcome-determinative test, but requires that we look at the twin aims of Erie, to discourage forum shopping, and to avoid inequitable administration of laws. If determines outcome in way that would encourage forum shopping and inequitable admin. of law, go w/ state law. So, if fed. practice results in diff. outcome (like bc of diff. burden of proof), encourages forum-shopping and is bad. If fed. rule means cases heard faster or filing fee lower, not outcome determinative so fed. practice can rule.

c. Ascertaining State Law i. Various Choice of Law Theories

1. Trad. (1st Restatement) approach: for torts, where injury took place. For K case, where K formed. For prop. case, where prop. located.

2. “Interest Analysis”: weigh the interest of each affected state in applying its law to the case (ex. injury took place in OH but both parties from IL and injuries treated in IL, IL may have bigger interest in having its law applied)

3. “Significant Contacts”: Apply law of state w/ most sig. contacts to the case (taking into account policy considerations, expectations of the parties, etc.)

4. there are more…ii. Fed. ct. must apply the choice of law rules of the state in which it sits

1. Klaxon v Stentor Manufacturing: Est. above rule, reasons that if didn’t do it above way, wouldn’t have vertical uniformity.

iii. Effect of transfer: If case transferred under 1404a, still apply choice of law rules of state in which the fed. ct. case was originally brought still apply (to try to deny D opp. to forum-shop)

iv. Once we know what state’s law applies, how do we know what that state law is?1. If case has been decided by TC and CoA but not state SC (SSC), apply what fed. ct.

thinks SSC would decide if case before them today (Mason v Amer. Emery Wheel Works)

2. If SSC ruled on case a long time ago, it is possible for fed. ct. to overturn, but they are very reluctant to do so.

3. If fed. ct. rules X, and then same fact pattern shows up before SSC, SSC does not have to follow the fed. ct. decision. If SSC decides differently from fed. ct. decision, then next fed. case follows SSC recent decision, not previous fed. ct. decision.

4. Certification: Some SSCs, in some circs., allow fed. ct. to certify case so they can issue ruling to guide the fed. ct. in what SSC “would do.” Is expensive and time-consuming, so sometimes discouraged.

d. Federal Common Law (ex: Law of Judgments (i.e. preclusive effect of fed. judgment) is actually fed. CL, entirely judge-made). Substantive fed. CL exists where…

i. There is strong and unique fed. int., such as where fed. govt is party, admiralty and maritime cases, cases involving intl relations.

1. Miree v DeKalb County: mere fact that fed govt is party to the K at issue (though not party to the case) does not mandate app of fed. law.

2. Boyle v United Tech Corp: involved indirectly unique fed. interests of both K right and liabilities of the US, and the civil liability of fed employees for axns taken w/in scope of employment (involved suing private comp. that made helicopter for army, applying fed law resulted in basically tort immunity for corp., vigorous dissent)

ii. There is important need for uniformity1. Clearfield Trust v US, strong need for uniformity for ruling about commercial

paper issued by fed govt (also implicated fed int.)e. Federal Law in State Courts : State cts can hear fed claims and have to apply fed law (bc of

Supremacy Clause of Const.) There are some fed. causes of axn that can be brought in state or fed. ct., and which D can’t remove from fed. ct. (ex. FELA). Also, D’s defense may bring in Qs of fed. law

i. Dice v Akron R., suit under FELA, fed. law applies. However, apply fed or state standard of whether release is valid? (Decide fed). State ct. must apply fed law to fed claims but get to decide when issue is such that fed. law must apply.

ii. State cts can enforce their own procedural rules, but not when they hurt substantive fed. rights.

VII. PRECLUSIVE EFFECT OF JUDGMENTS (finality of judgments imp. for efficiency, conserve judicial resources, so parties can rely on judgments and plan accordingly, to avoid inconsistent judgments)a. Claim Preclusion (aka Res Judicata) – varies in different juris.

i. Merger: When P sues and wins, underlying claim “merges” into judgmentii. Bar: When P sues and loses, underlying claim is “barred” by judgment from being

relitigated.

iii. Requirements for Claim Preclusion:1. Same Claim: test to determine varies in diff. juris.

a. Fed. cts, Rst 2d of Judgments, and some state cts use same “transaxn” test (same test as for fed. joinder rules).

i. Same Transaxn Test: A party who has asserted a right to relief arising out of a particular transaxn must join all claims she has arising from it, or the omitted claims will be barred by claim preclusion.

ii. So, claims need not have been actually litigated, only have been available to P to litigate.

b. Alternative tests: i. Same Evidence Test: If the same evidence would be used in both

claims, 2d claim barred.ii. Some cts bar a 2d axn if allowing it might impair or contradict the

judg in the 1st axn.iii. Some cts bar if the same “primary right” is at issue in both suits

2. Judgment “on the merits”a. Ex of judgment NOT on the merits: dismissal for improper venue or lack

of PJ or SMJ.b. Difficult cases: Ex., dismissal for failure to state a claim (FRCP 12b6).

i. Rule in fed cts, and in Rst. 2d of Judgments says such dismissal does bar religitation. Justification: P has ample opportunity to amend complaint, and if hasn’t stated a claim on 2d or 3d try, prolly has no right to relief under the law and shouldn’t be able to bring claim again.

1. Federated Dept Stores v Moitie: Applied above rule in fed. ct. (acknowledged that there may be some exceptions to this rule however)

ii. Some state cts allow a 2nd axn after dismissal for failure to state a claim. Justification: comparatively little litig. effort goes into prelim. dismissal, and so basic value of claim preclusion (conserving judicial resources) is not compromised by allowing new axn.

c. Default Judg is “on the merits” bc party had opportunity to pursue claim and didn’t.

3. “Final” Judgment – until a final judgment is entered in TC, whatever decision is too uncertain to support claim preclusion in separate axn btw the parties.

a. Judgment of TC while appeal pending: i. Many cts (and Rst 2d of Judg) gives claim preclusive fx to TC

decision even if appeal is pending.ii. Other cts only give claim preclusive fx to judgments if the time for

appeal has passed or the case has been finally resolved by the appellate ct.

4. Same Parties (or parties in privy w/ original parties) (Mathews v NY Racing Assocation)

iv. No “claim-splitting”: Back in the day, if received injury to both prop. (car) and person (in car accident, for ex.), could bring two separate suits. Current rule is that must bring all suits together or 2nd will be barred by claim preclusion (Rush v City of Maple Heights)

v. Installment Payments: If K for installment payments automatically “accelerates” debt if payments are missed, than P must sue for entire amount owed, not just for amount owed thus far, bc will be precluded from bring later suit for subsequent amount owed. (Jones v Morris Plan Bank)

vi. Defense Preclusion: D may not split his cause of axn agnst a P by using part of it as a defense in the 1st axn, and then later sue P on something arising from same claim. FRCP 13b now requires some compulsory counterclaims, so previously if didn’t make counterclaim would be claim precluded, but now can’t bring claim bc you missed your shot as a compulsory counterclaim. (Mitchell v Fed. Intermediate Credit Bank)

vii. Suppose P sues in state ct on state law, and also has patent claim (from same transaxn), which fed ct has exclusive juris over. Most cts will not preclude later patent claim in fed ct, bc don’t want to deprive P of opportunity to pursue state law in state claim.

1. Suppose P sued on patent claim in fed ct; can he later sue in state ct on state claim? No, has to assert state law claims bc fed ct can hear them w/ supp. juris.

viii. Who’s ct’s claim preclusion rules do you use? Use the rules of the ct who heard the original claim (if they would bar claim, 2d ct should bar claim too)

b. Issue Preclusion (aka Collateral Estoppel) – varies in different juris.i. Requirements of Issue Preclusion:

1. Same Issue (Commissioner of Internal Revenue v Sunnen: two diff. tax years are two diff. events and hence 2 diff. issues).

2. Actually Litigated – An issue may not have been “actually litigated” even though raised in prior axn.

a. Reasons why party may not have actually litigate issue raised: Axn may involve so small an amount that litig. of an issue may cost more than value of the lawsuit; forum may be inconvenient for producing necessary evidence or witnesses; or inconvenient to litig. in at all.

b. Seen in Cromwell v County of Sac3. Actually Decided (Russell v Place; Rios v Davis)4. Necessary to Ct’s Judgment

a. Ct. may find for litigant on two independent, sufficient grounds (ex. copyright infringement AND contract breach). If jury returns general verdict, you can’t tell if one, the other, or both claims were the reason the jury found for the litigant.

i. Rst 2d of Judg says to deny issue preclusion on both grounds, bc can’t tell which issue was necessary to the judg.

ii. Some cts give issue preclusive fx to both alternative determinations.

iii. Some cts give issue preclusive fx to both alternatives if the 2d ct can determine from the record of the 1st that both holdings were given full consideration.

ii. Nonmutual Issue Preclusion1. Situation: A sues B, and B loses. C sues B on same issue, and wants to preclude

issue from 1st suit agnst B. a. Traditional Doctrine of Mutuality: C would not be bound by judg if B had

WON (bc entitled to his day in ct), therefore can’t take advantage of issue preclusion where B loses.

b. Nonmutuality: C can seek to preclude issue even though not party to original axn, and wouldn’t be bound if judg had gone the other way.

2. Bernhard v Bank of America Nation Trust & Savings: landmark case allowing nonmutual issue preclusion.

3. Offensive vs. Defensive Nonmutual Issue Preclusiona. Defensive: D seeks to prevent a P from asserting a claim that P has

previously litigated and lost agnst another D.i. Less controversial than offensive, seen in Bernhard.ii. Considerations on whether to allow:

1. Party might not have litigated aggressively in 1st axn bc stakes were small or forum inconvenient

2. May have had diff. procedural rules in 1st case that made litig. more difficult (ex. 1st ct allowed in less evidence)

3. There may be more than one inconsistent prior judg., in which case which judg. is it fair to give issue preclusive power to?

b. Offensive: P seeks to foreclose D from litigating an issue that D has previously litigated unsuccessfully in an axn w/ another P.

i. Seen in Parklane Hosiery v Shoreii. Considerations on whether to allow are the same as for defensive

issue preclusion (above), plus:1. Worry that when P1 is litigating issue, potential Ps who

could be joined will refrain from joining and instead “wait and see” if P1 wins, in which case they will take advantage of that decision to argue issue preclusion.

iii. If ct is doubtful, for whatever reason, that party being estopped had full “bite at apple” in 1st axn, should deny offensive nonmutual issue preclusion

4. Ex. of NOT binding ppl who weren’t parties to the axn: Martin v Wilks, consent decree mandating affirmative axn doesn’t have preclusive fx upon subsequent challenge to those programs brought by persons not parties to in the prior axn.

c. Intersystem Preclusion i. State to State (i.e. one state rendered decision, and now another state is being asked to

recognize/enforce it)1. Governed by Full Faith and Credit Clause of Const (Art. 4, Sec. 1): “Full Faith and

Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

2. Hart v Amer. Airlines: P wanted NY to recognize judg of TX ct. D argues that if they had known that the decision would apply all over country, they would have litigated harder to avoid losing. Ct. holds that TX decision DOES preclude issue from being re-litigated in NY bc the reqs of issue preclusion met and they had a chance to contest the decision.

3. Thompson v Thompson: CA ct granted custody to mom pending review, GA ct. granted custody to mom, CA ct granted custody to dad after review, dad sued in fed. ct. SC held that Parental Kidnapping Prevention Act (PKPA) was a mandate directed to state courts to respect the custody decrees of sister states (bc previously states tended to not enforce custody decrees bc if they were changeable by 1st state based on circ., should be changeable by 2nd state too), but didn’t create right of axn. Dad has to ask GA cts to enforce CA judgment and they should be required to do so by Full Faith and Credit Clause and by PKPA.

ii. State to Fed (i.e. state renders decision and fed ct asked to recognize/enforce it)

28 USC 1738. State and Territorial Statutes and Judicial Proceedings; Full Faith and CreditThe Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

1. Allen v McCurry: Crim. D who didn’t assert that he was denied full and fair opportunity to litigate a fed. constitutional claim in his state ct trial COULD be collaterally estopped from relitigating that claim in his civil rights suit (in fed ct.) – nothing in legis. history of Sec. 1983 Civil that indicated Congress wanted to deny binding effect to a state court judgment, when that court had given the parties a full and fair opportunity to litigate their fed claims.

2. Like w/ claim preclusion, if state ct didn’t have the juris. to hear fed claim (like antitrust), than party not precluded from raising in fed ct.

iii. Fed to State 1. There isn’t actually statute or const. clause stating that states must recognize fed

decisions, but they do.2. Semtek v Lockheed Martin: Fed ct dismissed P’s claims bc untimely, barred by

statute of limitations of state fed ct sat in. P brought suit in state ct in another state where claims were timely. TC dismissed for claim preclusion. USSC held that dismissal bc untimely just prevented suit from being brought again in 1st state, not everywhere, so not necessarily precluded. Preclusive fx governed by ct that made original decision, so fed CL, and fed CL said to do whatever forum state they were in would do.

iv. Fed to Fed – not really an issuev. Administrative Systems: Sec. 1738 only apply to judicial decisions, but if you have a

judicial-type administrative hearing (w/ opportunity to present arguments, impartial adjudicator, etc.) the findings of fact that come out of that are entitled to issue preclusion and sometimes claim preclusion.