Arthur Miller Sum and Substance Outline Civ Pro

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I. JURISDICTION AND RELATED MATTERS

Definition: Subject Matter Jurisdiction: A particular court been authorized to hear this matter. The legislature has
said "you can hear this issue."
1. Does the court have subject matter jurisdiction?
A. Distribution of Judicial Power: on the basis of the content of the case.
a. Has the Constitution empowered this court to hear this type of case? Constitution of the jurisdiction must
state that they can hear these cases:
1. US Constitution for federal courts
2. State Constitution for state courts
b. Article III: Judicial Power: Defines the judicial power of the federal courts
1. Says what kinds of cases the federal courts may hear
2. Creates the Supreme Court (only court provided for in the Constitution)
3. Supreme Court is the only court that must exist.
c. Article I: Legislative Article: Creation and subject matter jurisdiction.
1. Gives Congress the power to create courts inferior (trial, district courts, courts of appeals, etc.) to the
Supreme Court. Congress could abolish all courts except the Supreme Court.
2. Congress decides what kind s of cases described in Article III can actually be heard in these courts
created by Congress. e.g. Small Claims, Torts, Tax, etc.)
B. Categories of jurisdiction of federal courts under Article III, as implemented under Article I:
1. Federal Question Jurisdiction : Constitutional issue
1. Requirements: Actions arising under the Constitution, treaties or laws of the U.S (U.S.C. 28-1331)
a. Ask what the plaintiff is aggrieved about and see whether it involves interpretation of the Constitution
b. Claim must arise under plaintiffs claim, not the anticipation of defendant's defense which plaintiff
feels will be federal (example e-3).
c. A defense arising under the Constitution won't allow a case to be in federal court either (must be the
plaintiffs cause of action)
d. Amount in controversy requirement not applicable.
e. Example: plaintiff owns copyrighted movie protected under US federal code.
1. Licenses to defendant theater in Wisconsin. Defendant failed to pay percentage of box office
gross to plaintiff. This is not a federal question, but a breach of contract, not a federal
copyright action. It is about copyright law.
2. If no contract, and movie house was exhibiting the movie, therefore infringement of the
copyright, that would be a federal question.
3. Same as situation 1, except defendant claims the copyright is invalid. Not arising under because
it is not arising under plaintiff claim, just breach of contract.
f. Policy: federal courts are of limited jurisdiction so they do not trod over state power. Federalism is the
concept of shared power amongst the states.
1. Concurrent federal JD - Can be heard in state or federal court - e.g. Action under Federal
Railroad Workers Act.
2. Exclusive federal JD - e.g. Patent, Copyright. Matters that we need a national standard. Can
have different labor laws per state but not different patent laws.
2. Diversity of Citizenship Jurisdiction: Parties from different states - also maritime, ambassadors...
a. Policy: To provide a national forum, a neutral court where the judges will be appointed for life and
interstate prejudice will be avoided. Monetary requirements for filtration purposes (matter of
policy), not stated in the Constitution, but created by Congress to keep small cases out
b. Requirements:
1. Complete diversity: all plaintiffs must come from states different than all defendants. There cannot be
the same states on both sides of the v. (Strawbridge v. Curtiss p.181)
2. Determine Citizenship: As of the date of institution of the action (on the complaint filed with the
clerk), not on date of accident or other.
a. natural persons: one domicile - the place you are:
(1) physically located with
(2)an intention to remain for an indefinite future.
Only one domicile/citizenship per person. Domicile is presumed to continue until both
elements are established in a different state. Multiple residences immaterial. (e.g. Even
going away to college for four years does not qualify for both, need a-(2) as well. Day you
arrive in Minnesota for professorship, new domicile established.)
b. corporations: can be citizens of one or two states:
(1) State of incorporation
(2) State which corporation has its principle place of business (courts split)
a. Executive Headquarters: Nerve Center - decision making state.
b. Main Manufacturing Plants - Muscle where most production is done
Note: if the adversary party is from either state b-(1) or b-(2), no complete diversity exists.
(e.g. Ford is 1. Delaware, 2. Michigan corporation and adversary cannot be from either
state)
c. unincorporated associations: i.e. partnerships, firms, labor unions--add up states of citizenship
of all members (diversity of citizenship may be difficult, as all the members citizenships
are counted. (e.g. if you have national teamsters union, members present in 50 states,
cant have federal diversity of citizenship JD.) Note that limited partners citizenships
included as well as general partners for diversity requirement. Inconsistent with theory.
d. representative actions: e.g. trustee, executor, guardian sues for represented, involving minors,
estates, shareholders, class actions
1. Rule: Use the representative not the represented for diversity purposes. (e.g. Class
action of one million investors, citizenships only of who are representing them.)
Inconsistent with theory of federalism.
2. Exceptions to the rule: actions for:
(1) deceased, (2) infants, or (3)incompetents are to be determined by the represented,
the beneficiary of the action. (Due to phony representation - Lawyer appoints
executor from diverse state to bring case to federal court.)
3. Amount in controversy: U.S.C. 28-1332 declares that the amount in controversy in a diversity
action must be more than $50,000 exclusive of interest and court costs.
1. Aggregate claims: plaintiff permitted to add them up, claims do not have to be related, in single
plaintiff v. single defendant. Cannot have multiple parties on either side.
2. Multiple parties , plaintiff or defendant, cannot be allowed to aggregate claims even if closely
related.
3. Multiple claimants/defendants unified in interests, such as co-ownership, can be aggregated.
(e.g. 2 farmers with wheat stored in a silo are united claims)
3. Pendent and Ancillary Jurisdiction: Supplemental Jurisdiction:
A. Pendant Jurisdiction: plaintiff has 2 claims: First is a valid federal JD claim against defendant , but
plaintiff second cause of action against the same defendant is one only state based and not valid
alone for federal JD. (United Mine Workers of America of America v. Gibbs p. 215)
a. Federal courts have discretion to allow plaintiff to append his jurisdictionally insufficient state case to
his jurisdictionally sufficient federal case only if both exist:
1. There is a common nucleus of operative fact between the sufficient and the insufficient claim.
There must be an identity of proof, an overlap, that would make it highly efficient to try both
cases together.
2. Assuming there is a common nucleus of fact, that the two claims would normally be tried
together .
b. Exceptions and notes:
1. Discretion of federal court, not a right of the party
2. Main claim must be the federal claim, not used to drag a state action into federal court
3. Pendant JD will not be allowed if it will create bias or prejudice. When state theory has punitive
damage element but federal does not - this will prejudice the jury against the defendant if
the state claims punitive measures will be heard by the jury.
4. If the federal claim fails or is terminated prior to trial (e.g. dismissal, summary judgment), then
the naked state claim will not be allowed into federal court as there is no more
convenience to bring the state claim into federal court.
B. Ancillary Jurisdiction: when there is diversity jurisdiction for at least one claim b/w one plaintiff and one
defendant, and additional parties or additional claims, were sought to be joined to that "core" claim
1. Gives federal courts jurisdiction over certain types of claims made by parties other than the plaintiff,
claims as to which there would not be independent federal subject matter jurisdiction because
of either lack of diversity or failure to meet the amount in controversy.
2. Personal Jurisdiction - Does the court have jurisdiction over the person of the defendant (In Personam),
or over the defendants property (In Rem, Quasi In Rem)?
1. Personal Jurisdiction - In Personam
A. Three questions of personal jurisdiction:
1. Is there a traditional base of jurisdiction that applies?
A. Territoriality: (Pennoyer v. Neff - app. p. 51): A state is all powerful within its boundaries but not at all
outside its boundaries. Any person or thing, physically within a state, is subject to its jurisdiction.
B. Domicile: A state can impose suit on a domiciliary even if that citizen is not physically within the state, as
ones domicile is always present
C. Agency: Agents are jurisdiction carriers that act for the individual. Suing an agent will be within the
bounds of grabbing the principal.
D. Consent:
a. Express:
1. Consent: by individual by agreeing, (e.g. signing a consent form on an insurance contract)
2. License/Registration: to do business within a state, usually carries with it clause making one
consent to the JD of the state.
b. Implied:
1. By ones actions one consents to jurisdiction (Hess v. Pawloski p. 238 - Pa. driver in accident
in Mass. left state. Mass. statute gave JD to court that when driving in state, one impliedly
consents to appointing department of motor vehicles as ones agent. Legal fiction, S. CT.
upheld statute because 2 ton autos could cause serious damage and policy to allow this
long arm statute.)
E. Waiver: by defendant to any objection to jurisdiction.
2. Does the state have a long arm statute and does it apply?
3. Assuming (1) or (2) is applicable, is that assertion of jurisdiction constitutional?
A. Long-arm statutes/Constitutional overlay: allows the state to obtain jurisdiction over parties not physically
present in the state at the time of service by a list of contacts with the state that give rise to
jurisdiction. Long-arm statutes allow the jurisdictional reach of the forum to grow as the due
process gets more and more flexible.
1. Typical long arm statutes typically include and allow the following as long as the cause of action
being sued on arises out of the contact.
a. Transaction of business within state: any action arising under that business
b. Contract in state: Any claim arising out of a contract within the state
c. Tortious act within state: Any claim arising out of the act
d. Tortious act outside state, impacting in state: claims arising out of the act
e. Insurance of risk within state: Claims included
f. Owning property: Any claim pertaining to it.
g. Matrimonial Domicile: If spouse has not paid alimony, will grab spouse wherever
1. International Shoe v. Washington p. 241: (min. contacts, fair play and substantial justice)
a. Rule: A state constitutionally can assert JD over a non-resident that has minimum contacts with the
state so that it is fair play and substantial justice to assert JD.
b. minimum contacts: Looks at what kinds of activities defendant is doing in the forum state
(continuous, systematic and regular or isolated, and casual) and whether the cause of action
is related to these activities.
c. Case facts - Salesmen in Wash. had no authority to bind Shoe, located in MO, but men lived and did
their work there. S. Ct. held Shoe was responsible for state unemployment contribution.
Seemingly opened door to all states to create long arm statutes only limited by the
constitution.
2. Hanson v. Denckla p. 259: (Voluntary Affiliation, foreseeable suit))
a. Rule: Minimum contacts have to be volitional and intentional with some kind of substance that was
beneficial to the defendant (some kind of K b/w defendant and forum state)or it would not be
fair play and substantial justice.
b. Case facts: Woman established trust in DE when she was citizen of Pa, then moved to Fla. Woman
regulated trust from FL and died there. Most of heirs in Fla. S. Ct. ruled that although woman
became FL citizen, it was involuntary shift and DE still had to remain trustee therefore DE
rules.
3. World-Wide Volkswagon v. Woodson p. 261: (Meaningful benefit)
a. Rules:
1. Mere foreseeability of suit no longer enough power for jurisdiction. It must be reasonable and
viable that you would be hailed into court in that forum (ambiguous).
2. Minimum contacts must be meaningful contacts with real, actual benefits flowing, not intangible,
theoretical benefits. State boundaries are very important.
b. Case facts: Family buys car in NY from dealer. Move to AZ and on the trip, car blows up in OK.
Family sues manufacturer and dealer/distributor in OK, as NY inconvenient for defendant and
AZ unavailable as no tort there. Argued 1. Foreseeable car would be driven in OK. so OK long
arm statute applies. 2. Dealer got advantages in OK as Audis driven there all the time as well
as ads. S. Ct. disagreed with both as per above.
4. Asahi Metals v. Superior Ct. of Ca - p. 277: (not as important)
a. Rule:
1. No JD if it is unreasonable to hail parties into the court, especially when geographically very
distant. Stream of commerce insufficient, need stronger direct solicitation of business in
that state to qualify for JD (Rhenquist, Scalia,)
2. Dissent: If your product is in stream of commerce and know that your products will be in that
state, you are subject to their JD. (Brennan)
b. Case facts: Ca. motorbiker killed when tire blew up. Tire made in Japan, valve in Taiwan. Estate
sued both. Settled and let the two foreign corporations to fight it out. S. Ct. said that Ca forum
was inappropriate forum and far away, Japan more appropriate.
B. Method to test for jurisdiction:

1. Is there a traditional basis of jurisdiction applicable?
a. Run through traditional basis (consent, domicile, doing business) of 3 (A) (1)
2. Does the state have a long arm statute and does it apply?
a. Does the state have a tort provision?
b. Does the case fit within this statute?
c. Where did the tortious act occur? (where tortious act occurs is where there is jurisdiction)
i. old view: tortious act occurred where the negligence was.
ii. majority view: where the damage impact was
3. Assuming the long arm statute applies, is it constitutional to apply it?
a. how many of the product showed up there?
b. did the manufacturer know that his product would end up in that state by placing his product in an
international stream of commerce?
c. how many products by the same manufacturer came into the state?
C. How much is considered minimum contacts?:
1. Definitions:
a. Specific Jurisdiction: Long arm statutes: Rule: Occasional or single act dealings require the cause
of action to arise under contacts with the state for there to be JD. The state only has
jurisdiction out of the specific contacts between the forum and the defendant. Stronger
relationship between the business matter arising under dealings within the state.
b. General Jurisdiction: Rule: A systematic and continuous presence within the state will make it
unnecessary for the cause of action to arise under contacts with the state. Relationship
between the state and defendant is so extensive that the state can assert the power over the
defendant even though the cause of action has nothing to do with the particular contacts that
the defendant has with the forum. Less relation needed between the cause of action and the
contacts of the defendant with the forum.
2. Case Applications:
a. Bryant v. Finnish National Airline - app. p. 67:
1. Rule: A continuous and systematic presence will make a party subject to JD even if the cause
of action did not arise under contacts with the state.
2. Case facts: NYer in Paris gets injured in airport and sues for injury by jet. Cause of action was in
Paris, therefore, how present in NY was Finnair? If general, possible forum even though
no direct contact with NY. If specific, must be more related to the cause of action, and it
would not apply here. Ct. A. decided that even though no flights by defendant in NY, it
had a full time tourist office whose presence was systematic and continuous, therefore
subject to general JD.
b. Perkins v. Benguet - app. p. 60:
1. Rule: A continuous and systematic presence will make a party subject to JD even if the cause
of action did not arise under contacts with the state.
2. Case Facts: Benguet Phillipine corporation, during WWII it moved its headquarters to Ohio. Suit
in Ohio for action arising in Phillipines. Since Benguet so continuously and systematically
doing business in Ohio, general JD and suit allowed in Ohio.
c. Helicopteros v. Hall - p. 284:
1. Rule: Sporadic and isolated dealings with a state will make a party subject to JD only if the
cause of action arises under those contacts with the state.
2. Case facts: Helicopter crash killing US citizens in S.A. and US estate sued in Texas as per
general JD. defendant contacts with Texas found to be insufficient. even though copters
were US, pilots trained in TX, checks in TX bank, but for general JD need more than
isolated and sporadic contacts.
2. Property Jurisdiction : In Rem and Quasi In Rem:

A. In rem: Lawsuit is about property in the state adjudicating title to or interest in the property itself i.e quiet title,
mortgage, foreclosure, easement.
1. Rule: A state is all powerful within its boundaries. The state can do anything it wants with regard to
ownership of the property as long as the property is physically present within the state boundaries,
and it gives notice to owners. (Pennoyer v. Neff - app. p. 51)
B. Quasi in rem: A legal fiction where defendant has property in forum state, and even though the dispute is
unrelated to the property itself, the property can be attached by the state to give the court jurisdiction
over the defendant.
a. Rule: You are subject to jurisdiction where your property is; even if you are not present within the state,
and it has nothing to do with a claim in that state. (This is done so that if you have property in
the state, you are getting benefits from being within that state and you are to be subject to its
sovereignty.)
1. Pennoyer v. Neff: Validated quasi-in-rem JD. Neffs land seized by sheriff in judgment of unrelated
contract claim, for Mitchell, who sold land to Pennoyer. Pennoyer sues for this land seized quasiin-rem. Judgment Neff because the property was attached only after the lawsuit was begun.
2. Rules:
i. The courts power only extends to the property that has been attached (before the case)
ii. The courts judgment is limited only to what has been attached. The judgment cannot be taken to
another state and attempt to seize land in that other state. This is because quasi-in-rem JD is
not a full body JD like personal JD, so recovery limited to attached property within the state.
a. extended coverage from real estate in Pennoyer, later to chattels, intangibles bank accounts,
stock certificates, insurance bonds, etc.
b. Insurance Companys obligation under insurance contract to defend the insured: (Collision of
NYer and Canadian on Vermont highway. Ct. insurer of Canadians policy, and the insurer
sold insurance in NY. Therefore insurers liability to defend the insured was in NY. The
duty to defend was attached.) This went way past the in personam doctrine, where there
was at least some minimum contacts requirement.
2. Shaffer v. Heitner - p. 298: (Quasi in rem same requirements as in personam)
1. Rule: All assertions of state court jurisdiction must be determined by Shoe and its progeny (Shoe,
Denckla, World-Wide). For quasi-in-rem jurisdiction in constitutional manner (same as in
personam JD) we need:
i. Minimum contacts
ii. Fair play and substantial justice
iii. Voluntary affiliation
iv. Meaningful Benefit
v. Foreseeability of suit in forum
2. Case facts: plaintiff Heitner brought suit in DE against the Greyhound corporation (incorporated in
DE, principle business in AZ). plaintiff not citizen of DE and owned only 1 share of stock.
plaintiff brought shareholder derivative suit that 28 officers of Greyhound subjected
Greyhound to liability for $x . Officers had nothing to do with DE, action of liability occurred in
Or. Since officers owned stock in Greyhound, and incorporated in DE, under DE law, the stock
of a corporation is owned in state of incorporation. plaintiff sues in DE and attaches the
160,000 shares owned by officers, as per DE law, owned in Del. - quasi-in-rem. (All other
states except DE rule corporate stock is where holders are) S.Ct. held against DE law and
plaintiff.
3. Effects of decision:
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a. Note 1: Made some states have no quasi-in-rem jurisdiction, because if the requirements are
the same as personal jurisdiction, then it would always be logical to use a stronger case
with personal JD case as the events required are the same. However, most states are not
like Ca where all acts are under JD as long as they are constitutional.. NY does not allow
tort for defamation, so those states there is a gap between the outer edge of the long arm
limit, and the constitutional limit, and in that small area there can be quasi-in-rem JD.
Therefore, if this out of state media organization has a NY bank account, it can be
attached and proceed for quasi-in-rem JD as long as it satisfies Shoe, Denckla,
Woodson.
b. Note 2: Shoe, Hanson and World-Wide do not destroy territoriality (Pennoyer) because these
decisions are based on an assumption that the defendant is not within the state.
4. Burnham v. Superior Ct. of Ca. - p. 1136:
a. Rule: Majority (4-3):Pennoyers rule of territoriality has been traditional - historically it has always
been recognized that one who is physically within the bounds of JD is subject to JD of that
forum. Shoe dealt with service outside the state and Shaffers loose statement should not be
read broadly (Scalia).
Dissent: The JD here is obvious as everyone has notice of the rule. However, fair play must be
applicable as per Shoe and progeny where territoriality may not be enough o assert JD.
b. Case facts: Divorced man visit Ca for short business trip. Visits kids and is served with a summons.
Question whether this isolated incident is fair play to establish JD.
c. Application: We have a tension between historic in personam principle of Pennoyer v, Shaffer which
states all JD is tested by minimum contacts and fair play. (e.g. If one is on an airplane that
makes layover in state of suit, and defendant is only there to switch planes, and process
server issues summons there. Scalia would say territoriality, Brennan would say involuntary
presence and not fair for JD.)
3. Has the defendant been given notice that an action has been commenced, and has this defendant been
given opportunity to be heard?
I. Has the defendant been given proper notice that an action has been commenced?
1. Mullane v. Central Hanover - p. 312
1. Rule: Constitutionally you must give the defendant a form of notice that is reasonably calculated under
the circumstances to give actual notice (Due Process Clause).
2. Case facts: Bank had 153 individual trusts that it combined into one, appointing Mullane as guardian.
Notice to beneficiaries given by newspaper publication. Mullane objected as the notice is a
violation of 14th Amendments Due Process clause, and is unreasonable. S. Ct. agreed.
2. Rules for notice for due process and fundamental fairness of adjudicating a case against a defendant:
A. Standard for constitutionally sufficient notice: notice must be reasonably calculated under the
circumstances to give actual notice (Mullane) - use best service available.
1. Substituted process to spouse or agent or mail is valid
2. Affixation or publication is probably neither reasonable or valid
3. If you do not know where the defendant is, you must use reasonable diligence to find that person
a. known names and addresses: publication is insufficient when these are known
b. unknown names or addresses: publication may be ok if ascertaining would require an
unreasonable burden
B. Requirements: plaintiff must satisfy two elements for notice:
1. Constitutional element: has it satisfied the 14th Amendment of Due Process?
2. Statutory element: has the notice satisfied the applicable statutory requirements? (F.R.C.P. 4)
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II. Has the defendant been given an opportunity to be heard?

A. Procedural Protections to Consumer (Sniadach). If seller wants seizure:
1. Showing by creditor must be under oath and factually based- a demonstration of the immediate right to
possession of chattel
2. Issuance of writ must be by a judge to seize the chattel
3. Creditor must bond chattel, so if seller defaults, buyer can get something back.
4. Debtor must have a right to an immediate hearing on the merits of the recapture of property.
4. Has service of process been made properly?
1. Compare the service with the governing rule? (F.R.C.P. 4)

A. Personal Delivery
B. Substituted Process - Spouse, child of mature years...
C. Delivery to an agent
D. Mail: if personal delivery, substituted process or delivery to an agent do not work (are unduly
burdensome)
E. Cannot entice people into the state JD by lying to them so you can serve process on them.
F. Can flush people out of hiding, if they are in the state, to serve them. Cannot serve people who are
coming into the state to testify in a lawsuit.
G. Immunity from Process: Those in state as witnesses for lawsuit are immune from service for other suits.
This promotes the supporting of those who come into the JD to aid in a case, and we wont let
them be subject to JD while helping out the courts.
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5. Venue: Does the court have venue?

Venue: rules for allocation of judicial business in a rational way among the courts within a system for convenience of
administration (rule of judicial administration not Constitutional).
A. Purpose: do not want all cases jamming up in one place or being lodged where they have no connection
w/the suit
B. Rules:
1. Federal Question Cases: venue may be lodged where:
a. all the defendants reside (not where they are citizens), or
b. where the cause of action arose.
2. Venue in diversity of citizenship cases: venue where:
a. all the plaintiffs reside (not citizenship), or
b. where all the defendants reside (not citizenship), or
c. where the cause of action arose.
3. Local Action Venue: If the matter pertains to land, the action must be tried at the land.
C. Transfer of Venue:
1. Requirements:
i. If in the interest of justice and it suits the convenience of the parties and the law to make the transfer,
we do so. (Venue may be technically right but it may be more rational to try the case in
another place because everyone and everything is there. Favor the plaintiff unless more
applicable.)
ii. U.S.C. 28-1404 (a): Permits a transfer to a court if the case could have been brought originally in
that court (Hoffman v. Blaski ) Can only transfer to a court that would have had personal JD
and venue is proper, over the defendant in both courts.
D. Forum non Conveniens: Case may dismissed because the forum is obviously inconvenient. (We cannot
transfer a federal court to state, or one state to another. But if the forum is so inconvenient and we
cant transfer, the case is dismissed with the knowledge that another suit will be brought in that other
jurisdiction)
a. Rule: Since defendant usually makes this motion, but defendant must agree to make himself available in
the other forum, as well as a waiver of statute of limitations defenses (that may have been
running) and could be a potential problem for plaintiff.
E. Every transfer question is a personal jurisdiction, service of process, and venue question
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6. Removal: U.S.C. 28-1441:

If the action is in a state court, may the action be removed to a federal court?
A. Rules of Removal:
1. Can only remove from a state court to federal court that is the geographic part of the state forum.
2. Can only remove that which could have been brought in a federal court originally (arises under the
Constitution, federal question e.g. copyright, suits in diversity and $ 50,000) Therefore every removal
is also a subject matter JD problem.
3. Only an original defendant can remove a case - (a defendant vetoing the forum choice of the plaintiff):
a. In a federal question case: defendant can remove a case regardless of his citizenship
b. In a diversity case: All defendants must be from different from the forum state (and the plaintiffs)
D. Removal is geographical: remove to a federal court that lies in your district and then you can transfer if you
want
7. Waiver -Have any of the preceding six elements been waived?
A. Subject matter jurisdiction can never waived. Any party and court can raise issue at any time.
B. The following threshold defenses can be waived by defendant if not raised in a pre-answer/answer:
1. Personal jurisdiction
2. Lack of notice
3. Lack of process - opportunity to be heard
4. Venue
5. Removal
C. F.R.C.P. 12 (g): Consolidation: of the above preliminary defenses in a single motion. Only one shot at it, and
those not brought up are considered waived.
D. Historic rule/common law: If made motion for lack of personal JD, if proceeding to defend on the merits,
usually waives the question of jurisdiction and it cannot later be appealed (some states may allow it to
be appealed)
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II. GOVERNING LAW - Law that governs in a federal diversity suit.

A. When federal court sits in diversity action, which states law, whose law, applies?
1. Swift v. Tyson: If there was only common law on a particular issue, federal courts were free to evolve their
own common law
2. Erie Railroad v. Thompkins - p. 354: State law governs: overruled Swift v. Tyson:
1. Rule: Federal court applies the substantive law of the forum state. Federal court is simply the forum
provider. (Can preside over constitutional matter, or statute of rules of decision act)
1. There is no general common federal law: allowing federal courts to make the law in areas where
their power had not been granted by Congress is unconstitutional
2. Substantive law (as opposed to procedure): Duty relationships between people, or all the laws not
pertaining to procedural laws such as torts, contracts, property.
3. Case facts: Thompkins walked along Erie RR right of way in Pa, and train clipped off his arm, he
sued for tort and obligation of landowners as per Pa law.
3. Guarantee Trust v. York: Outcome determination test
1. Rule: Outcome determinative test: Apply the state law whenever applying a conflicting federal law would
produce a different outcome - regardless of whether the conflict is regarding substantive or
procedural law.
2. Rationale: a federal court in a diversity case is only another state court used to prevent discrimination
thus its main drive should be to establish the same outcome a state court would in a similar
situation (avoidance of forum shopping). If burden of proof would be on plaintiff in f. ct. but on
defendant in state ct. the outcome would be affected even though these rules are merely
procedural.
3. Case facts: Federal court had to decide whether in a trust action, to use the state statute of limitations
(would bar the case) or apply the federal doctrine of laches. These rules were only procedure,
rules that would govern whether the case would get to court. Applied the state statute of limitations
as if not, the outcome would have been different.
4. Byrd v. Blue Railroad: balancing test: A countervailing consideration of federal law:
1. Rule: Countervailing consideration of federal rules (importance of judge-jury concept), therefore follow
federal practices use of a jury
a. First, examine the state policy and then weigh it: is it an important state policy or a rule of
administration? Court must follow rules defining rights and obligations of the parties, and
should generally defer to state law in conflicts of form and mode so not to have forum
shopping as per Erie.
b. Second, examine the federal countervailing policy and weigh it - is this a forum shop?
c. Third, ask if it is outcome determinative.
2. Reasoning: You cant predict the outcome. The only difference is in one case there is a jury, the other
case it is a judge who will decide. However, this is weak, as even though there is no definite
prediction that can be made, it is more likely that juries are more sympathetic than judges and that
would be an influencing factor to forum shop.
3. Case facts: Worker in Carolina hurt and brought suit against electrical company. Was the worker a
statutory employee and only entitled to workers compensation, or was he an independent
contractor employee. In federal court we use a jury, but Carolina court uses a judge. Ruled
countervailing consideration of federal rules (importance of judge-jury concept), therefore follow
federal practice an use a jury. There is no reason given why the Carolina court ruled it was a
question for the judge, even though it seems apparent it as per (see the case).
5. Hanna v. Plumer: immunized the Federal Rules of Civil Procedure:
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1. Rule: An inconsistent state rule will be ignored even if it produces a different outcome (this was a swing
backwards to allow the federal principles to apply).
a. Part One: In determining whether a federal procedure is outcome determinative, use the Erie rule to
prevent forum shopping. If substantive law, use Erie, if unclear, use Hanna, then Byrd.
b. Part Two: If the federal rule does not violate a constitutional principle and it is applicable, federal rule
is used over the state even if it would be outcome determinant.
1. Federal Constitutional Provision: paramount to state statute
2. Federal Statute/Rule: If arguably procedural it is constitutional and use Federal statute/rule.
3. Federal Judicial Practice: Use part one. If not procedural nature, unconstitutional, use state law.
2. Case facts: Conflict of rule of service of process between federal rule 4 (to anyone of ability to ask as an
agent) and state rule (service must be personal). This was outcome determinant because in state
case service would have been held invalid and it would have been dismissed. Court ruled to follow
the federal rules, and these rules are most important. If the federal rule does not violate a
constitutional principle and it is applicable, federal rule is used over the state even if it would be
outcome determinant.
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B. Claxin Doctrine: a federal court in diversity action in a state will take the laws of its forum state. The rules are for
what the state law makes regarding substantive law - If state says to use law at place of injury, use the
state where injury occurred, etc. Whatever the state law is, it is followed.
C. Inverse Erie Doctrine: A federally created right in a state court. e.g where a RR worker can bring a federal law
issue in a federal or state court (concurrent JD). State must use Federal Law to the fullest, even if it
displaces state procedure - e.g. if federal ct says use jury and state says judge, state uses jury. This is due
to the fact that the federal law is the supreme law of the land.
1. Some federal claims can go to state court. When a state court in adjudicating a federally created right the
court must honor the federal substantive provisions and cannot use any restrictive procedural principle
to constrict the federally created right
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III. PLEADINGS: notice pleading

A. Functions:
1. Give notice to other party that identifies the transaction and provides a statement as to what the grievance is.
Discovery, pretrial management and conferences. Therefore pleadings an element of pre-trial and does
not loom as large as it used to.
2. Reveal facts
3. State issues
B. Specifities required in pleadings:
1. F.R.C.P 8(a): pleader is obliged to give a short and plain statement showing that he's entitled to, and request
for relief (do not have to state a legal cause of action).
a. Requires statement of facts that reader can define a cognizable wrong - that you can infer a wrong
b. material elements of a claim for relief must be there
c. pleading must represent a mirror image of substantive law you are invoking (e.g. breach of k: Will show
or infer that the elements that make up a valid k are not there.
d. S.Ct. used liberal approach to pleadings because we dont want to stop someone for getting redress just
because of some technicality. However 12 (b) (6) has changed this, that there must be a higher
degree of specificity.
e. F.R.C.P. 11: Attorney must sign the pleading to indicate that he has read it and to the best of his
knowledge, there is good ground for support F.R.C.P. 8(e): pleading in the alternative is used so
that a party can set for as many separate claims or defenses regardless of inconsistency
C. Special rules
1. F.R.C.P 9: special matters must be pleaded
a. 9 (b) show specificity so not just to allow a frivolous claim to go to court. Sometimes the plaintiff must
repeat the defamatory words.
2. Special damages must be pleaded w/particularity since they are usually not foreseeable
3. Conditions may be consolidated
D. Amendments:
1. Common Law: You only get one shot at pleading correctly.
2. FRCP: A pleader is allowed at least once to amend his complaint as a matter of right, anytime before the
responsive pleading (answer) is in FRCP 15 (a). (Why deny an amendment at beginning where it does
not interfere.
a. After the first amendment of right period expired until trial, responsive pleading begins and permission
must be requested for further amendments
b. F.R.C.P. 15(a): amendments shall be freely granted as a matter of justice. Most courts will always allow
amendments before trial unless shown as bad faith.
3. Amendments at trial: Evidence comes into court at trial which is not covered by the pleading, If opposing
party (to the evidence) does nothing, the court will treat the pleading as to cover the deviating material
from the evidence brought in. Lawyer after trial will make a formal motion to conform the pleadings to
the evidence admitted.
a. If the party opposes: Even at trial, the pleadings should be amended to serve the interests of justice.
F.R.C.P. 15(b): allowing an amendment in the interest of justice extends right into the trial.
Amendments should only be denied when the party objecting to the amendment, can show he will
be unduly prejudiced or surprised by the amendment. (e.g. critical witness died). Note: the burden
of showing that the amendment should be denied is on the party opposing the amendment
4. F.R.C.P. 54(c): The party gets what he's entitled to in relief, if it can prove it, whether he asks for it or not in
the pleadings. (e.g. If you only ask for $50,000 but you can prove you are entitled to $100,000)
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E. Relation back Amendments: (e.g. You sue for tort, pre-trial goes on for years, but later realize you also have a
breach of k action)
1. Relation back of amendments: dating a new cause of action back to the date the lawsuit was brought Only if
the statute of limitations has run (from beginning of claim) will the plaintiff be barred from amending.
a. Code pleading: whether or not the new claim is part of the original cause of action. Allowed the amended
material to date back if only if the new material is part of the same transaction or occurrence.
b. Adding new parties: To give defendant a chance to go on with his life without worrying about claims
years later. This is why statute of limitations important.
a. FRCP 15 (c): you can add parties and have it relate back if:
1. if the party that you want to add had reasonable notice within the limitations period that an
action was being brought against the party now in litigation (knowledge to defendant that
matter was in dispute).
2. defendant knew or should have known that a mistake was made originally and should have
been made a party of the action.
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2. Scavone v. Fortune:
1. Facts: plaintiff brought suit against Fortune magazine and served them on last day of statute of
limitations. After SOL ran out, plaintiff discovered Fortune was a magazine, and the proper party to
serve was Time Magazine, the owner. Since Time, the proper party was not notified within SOL,
the action failed.
3. Applications
a. If in federal court of state with no relation back practice, FRCP 15 (c) allowed as per Hannah v. Plummer.
b. If in state whose rule more liberal than the federal rule of relation back, you use the principle of the forum
state.
D. Complaint and Answer
1. Complaint: states a grievance
2. Answer: gives denials, admissions, affirmative defenses i.e. statutes of limitations, counterclaims, and crossclaims
3. Counterclaims: must have a reply by the plaintiff
E. Pre-answer motions: motions against the complaint
1. F.R.C.P. 12(b): defenses which may be raised in motion or in the answer
a. lack of subject matter jurisdiction: may be raised anytime
b. lack of personal jurisdiction: must be raised before trial in pre-answer or answer
c. improper venue:
d. insufficiency of process:
e. insufficiency of service of process:
f. failure to state a claim upon which relief may be granted: can be raised before of during trial
g. failure to join a necessary party under Rule 19:
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IV. JOINDER
I. First Cluster
1. Permissive Joinder of claims:
1. Code (State): Claims can be joined when they arise from the same (1) transaction and (2) occurrence.
2. F.R.C.P.: A plaintiff can join anything he has against the defendant, unless it would create confusion, the
court can sever them or have separate trials. let us try to resolve everything at once.
2. Permissive joinder of parties: Parties may be joined when:
1. their rights (plaintiff) or liabilities (defendant) spring from the same transaction or occurrence and
2. raise a common question of law or fact.
3. Compulsory F.R.C.P 19: persons who you must join
1. Who will be prejudiced (detrimentally impacted) if not joined
2. those outside the action who will be needed to give relief to those already in the action (e.g. all parties in
a K or owners of property)
II. Second Cluster
1. Counterclaims
2. Crossclaims
3. Third party claims
III. Third Cluster
1. Class actions
2. Interpleader
3. Intervention
B.
II. Joinder of claims F.R.C.P. 18
A. Code: requires the same transaction or occurrence to join claims
B. FRCP: a party asserting a claim to relief may join as may claims he has against a defendant
III. Counterclaim: a claim in which the defensive party becomes the aggressor
A. Compulsory F.R.C.P. 13(a): you must assert or pain of waiver
1. It is transactionally related to the original claim
B. Permissive F.R.C.P. 13(b): you may assert although it does not arise out of the same transaction or occurrence
1. There may be no independent jurisdiction over the subject matter
a. The claim may be a federal question case but the counterclaim will not and there will be no diversity or
there will be but the counterclaim will be for less than $10,00.
C. Ancillary jurisdiction: a counterclaim ancillary to the main claim so they can be adjudicated together though there
may not be subject matter jurisdiction over it
1. Compulsory counterclaims are ancillary
2. Permissive counterclaims are not: you must have independent subject matter jurisdiction over them
IV. Cross-claims: claims b/w co-parties i.e A sues B & C and then B sues C
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A. The cross-claim will inevitably result in a counterclaim if its transactionally related b/c then its a compulsory
counterclaim to the cross-claim
1. Legitimate if it arises out of the same transaction or occurrence as the main claim (shift from the cause
of action standard)
2. Carry ancillary jurisdiction i.e A is from NY and B & C are both from NJ
a. ancillary jurisdiction allows the jurisdictionally insufficient cross-claims to ride the coattails of the
original diversity action
V. Third-party claims/Impleaders: the party sued brings in another party form indemnification i.e a seller brings in the
manufacturer
A. Carry ancillary jurisdiction b/c they arise from a figurative same transaction or occurrence
1. defendants get ancillary jurisdiction to counterclaims, cross-claims and third party claims in order to help
them out
2. plaintiffs, the forum initiators and aggressors don't need ancillary. jurisdiction (Kroeger v. Owen)
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V. DISCOVERY F.R.C.P 26-37: fact revelation

1. Scope of Discovery F.R.C.P. 26(b): the objective of discovery is equal access of both parties to all relevant data
and to have cases adjudicated on their merits not by surprise. Broad to allow as much evidence to get into
court to obtain a just decision.
2. FRCP 26 (b) You can discover anything relevant to the subject matter of the action that is not privileged.
1. The scope of discovery is broader than Evidence Rules, thus it is not an objection to discovery that the
materials sought is not admissible in evidence, but must be reasonably calculated to lead to material
evidence that is admissible.
2. Not discoverable:
a. privileged matter: attorney/client, doctor patient, psychotherapist/patient, spousal
b. privacy intrusive and not tied to an action: abstractly relevant is not enough--the information has to be
relevant to an issue in the case i.e. net worth is not relevant in an automobile accident unless
there is a punitive damage issue (punitive damages could widen the scope of discovery
c. highly sensitive & private i.e. religion, ideology, sexual acts. The judge must balance between the need
on the part of the discovering party for the data against the intrusion of the discovery with regard to
privacy
3. Work product: the materials produced in anticipation of litigation by lawyers or the parties are immune from
discovery - not normal business record keeping. Has the cause of action arisen that would naturally lead to
these materials being produced.
1. Policy: everyone should do their own work without fear that their adversaries will rip the opponent off by
getting the hard work at trial. Both sides should do their homework.
2. Qualified immunity: not a privilege: immune from civil litigation.
a. If the adversary cannot (and has tried) to obtain the needed information anywhere else then because of
equal access to all relevant data, the information might be given to him.
b. Absolute immunity: Doctor-patient, client-attorney are examples where discovery is not available in any
forum.
c. Absolute immunity: the mind of an attorney (mental impressions, opinions, and strategies of the
adversary attorney) are always immune from disclosure discovery (Hickaman v. Taylor). FRCP
26 (b). To convert the lawyer from adversary to advocate makes the lawyer work at cross
purposes with his client.
4. Discovery devices: Operates on notice, not motion procedure.
1. Oral depositions: sworn spontaneous examinations
2. Depositions of written questions: the court asks questions for the lawyers
3. Interrogatories: sent to the adversary party which are not spontaneous and are often harassments
4. Documents and tangible things: attempts to shift the work product to the other party
5. Physical examinations: requires a motion, court order and demonstration of need and good cause
6. Admissions: They dont work. You try to get other party to admit something. However, if you are served with
an admission you must respond because if you ignore it, the matter is deemed admitted.
a. must admit, deny, claim privileged or explain why you cannot answer
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VI. PRE-TRIAL ADJUDICATION

I. Summary Judgment:
A. Rationale: Decides which cases are trial worthy - screening process
B. Use: Motion will be granted: if there is no genuine issue, no real dispute about a material fact, something
important to the case
1. If there is no issue of material fact, there is no dispute, nothing trial worthy and the judge can enter judgment
as a matter of law. If granted: someone does not get his day in court, so the judges must be careful
C. Procedure:
1. The judge looks at the entire record, examines only the part that will be admissible at the trial, and says, "if
this is what I saw at the trial would I grant a directed verdict motion?"
2. The judge bends over backward to protect the nonmoving party. We want to be sure we dont deny one with a
valid claim a right to justice.
a. He looks at the record in the light most favorable to the non-moving party.
3. The judge cannot solve a dispute, he can only determine whether a dispute exists- any issue of fact means
motion denied
4. Negative discretion denies the motion and allows claim to go to trial:
a. Aroma: although all of the material says the same thing, its untrustworthy i.e. the depositions come from
blood relatives, convicted perjurers, business partners
b. the moving party has the ultimate burden of persuasion at trial (defendants more frequently get
summary judgment than plaintiffs - plaintiff has burden)
c. Credibility of witnesses will usually allow claim to go to trial
d. When a gap present in display on the motion (e.g. 3 people witnesses, two are found so far). Even if 25
witnesses say A, 1 says B, we will usually not grant summary judgment because of the disparity of
number. We go to trial for issues of fact. However, judge will try to find out why only one.
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VI. TRIAL
I. Law/equity distinction
1. When we get a jury in federal courts:
1. Law: cases decided by a jury (damages)
2. Equity: cases decided by a judge (injunctions)
2. Mixed law and equity cases: plaintiff seeks both damages and an injunction or plaintiff seeks legal relief and
defendant counterclaims for an injunction
1. Historically: suits involving both law and equity went to equity court if there was equitable relief involved and
then the court could award damages- clean up doctrine
3. Beacon Theaters: the trial judges applied the center of gravity test and denied a jury trial. The case went to the
Supreme Court and Black said jury trials attach to issues. W/fused courts, the availability of the jury trial
should change. Given the fact that its a constitutional right to have a jury trial, one should expand that right,
not contract it.
1. Break case into its constituent issues
a. Purely legal ones get a jury trial
b. Purely equitable ones are decided by a judge
c. Issues that are common to both the equitable and the legal side of a case--the presumption in favor of
the jury trial will allow them to go to the jury and the judge is then bound to the jury's decision
(i.e. "is there pollution?" and thus "is there a nuisance?" involves both legal and equitable relief and
must be decided both for damages and an injunction)
i. "is there pollution?" will be decided by the jury
ii. "what are the damages?" will be decided by the jury
iii. whether an injunction will be available will be decided by the judge if the jury decides that there was
pollution
(i.e. Whether there will be specific performance for the breach of a K involves issues common to both
sides)
i. first it must be decided whether there was a K (was there consideration, meeting of the minds): this is
a jury question
ii. then whether there will be damages will go to the jury
iii. finally, whether there will be w specific performance, will be decided by the judge
2. Under the clean-up doctrine, most of the issues would have been decided in equity. Not now.
E. Guaranteed right to jury trial in civil cases has never been imposed on the states: they are not bound by Beacon
Theaters
F. Certain actions are created by equity: class actions, shareholder's derivative suit, interpleader
1. Ross v. Bernhard: extension of Beacon Theaters in determining whether the condition for equitable procedure
are available, that is purely equitable and a judge would decide that without a jury
a. Once you decide you've got a derivative suit, look at the substantial claims and then do the Beacon
analysis
"i. Anti-trust: damages--jury
"ii. Fraud: damages--jury
"iii. Action to enjoin: equitable--no jury
G. Jury trial right for statutory actions after the 7th Amendment became effective (1791)
1. Statutes usually embodied the 7th Amendment
2. Civil Rights statutes didn't get jury provisions and the issue arose as to jury trials under those statutes-it
doesn't matter if there's no jury trial right in the statute, there is a constitutional right
H. When you get a jury trial:
1. Must demand a jury trial by the pleadings end or else the right is waived
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2. The action is adjudicated by an Article three tribunal (a court)- this preserves an administrative process from
a jury trial
3. The statutory remedy must be one analogous to one that existed at common law i.e. racial torts are
analogized to innkeepers liability or dignitary torts; anti-trust is analogized to fraud actions; statutory
patents are analogized to unfair competition; security violations are analogized to fraud
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VIII. POST TRIAL MOTIONS

I. New Trial :
A. Definition: A cleansing device, something went wrong- let's do it again and purge the system of error
B. Grounds for new trial: The error was grievous enough to start again
1. Material mistake. Judge
a. may have excluded evidence that should have been admitted
b. admitted evidence that should have been excluded
c. mischarged the jury by putting the burden of proof on the wrong party
2. Lawyer: may have engaged in an inflammatory argument to the jury or have had ex parte contact with a juror.
This biases the jury and need new trial.
3. Parties: may have engaged in ex parte contact with a juror. (Lawyer goes out for beer with juror)
4. Jury: May have made some egregious error. Quotient Verdict(e.g. Jurors want to get out of the case to go to
watch the Celtics) They just try to get the case done with.
5. Verdict is against the clear weight of the evidence: recognition that juries are ad hoc institutions and judges
should have discretion
C. Forms
1. Partial new trial: a portion of the case is limited to the issue that was wrong
a. justified: in the pragmatics of trying to save that which seems to be salvageable
b. dangerous: because it is said to eviscerate jury trials--the jury never hears the 1st portion
2. Conditional: additur and remittitur
a. remittitur: the damages are too high and the judge says he'll grant defendants motion for a new trial
unless the plaintiff allows him to bring down the damages--judgment is entered by the judge on the
condition that it is accepted by the plaintiff.
b. additur: the damages are too low and the judge says he'll grant the plaintiffs motion for a new trial unless
the defendant consents to add to the damages (Federal courts do not allow additur)
II. Directed Verdict motion:
A. Definition: Is this case jury worthy? Jury is to resolve disputes of fact. If no jury worthy dispute of fact, no need to
send the case to jury. Same as summary judgment except it is made at trial. Should we go further or can
we decide this now.
1. Rule 12 (b) (6): Motion to dismiss for failure to state a claim
2. Rule 12 (c): Judgment on the pleadings
3. Rule 56: Summary Judgment
4. Rule 59: Directed Verdict
B. Standard: Could any reasonable jury find for the non-moving party?
1. If no, the judge can enter judgment as a matter of law
2. If the motion is granted, the party never got its day in court
(Due process issues and 7th Amendment issues)
3. Judge must bend over backward to protect the non-moving party
a. He looks at all of the evidence in a light most favorable to the non-moving party--he resolves all issues of
credibility in their favor and draws all inferences in their favor
C. Consequences: judgment entered is final
1. Ends the non-moving party's possibility in winning
2. The judge will usually not grant this motion because the jury verdict will absolve it anyway and he can always
j.n.o.v.
III. Judgment not withstanding the Verdict, JNOV:
A. Definition: A post verdict directed verdict motion.
B. Must make a directed verdict motion first
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C. Asks, should we ever have given it to the jury to begin with?

D. Standard: Could any reasonable jury do what this jury just did?
1. Judge has to go against the jury verdict. Therefore, this is rarely granted.
2. Judge must give best light of evidence to the non-moving party.
E. Consequence: judge has to beckon the winner and take his victory away from him
1. Saves retrial, as opposed to a directed verdict, because if reversed, because the jury verdict will be reinstated.
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IX. APPEALS
I. Appealability: when can you take it up?
A. Final judgment rule U.S.C 28-1291: you cannot appeal until you have a final judgment--the court does not want to
look at a case piecemeal
B. Interlocutory appeal U.S.C. 28-1292: an issue can be brought up at any point rather than waiting for a final
judgment
1. Prevents an enormous amount of time from being devoted into a case that requires reversal
2. Allows for different parts of cases to be litigated at the same time
C. Restraints: on what can be taken up on appeal instantly (interlocutory appeals)
D. Safety valves: allow for a fair number of issues to be reviewed in what looks like an interlocutory basis
1. Multiple party/Multiple claim: when one claim is final you may take an appeal on that claim
2. Mandamus: originally available if a judge did something or failed to do something that he had no jurisdiction
to do or was jurisdictionally obligated to do
3. Writ of prohibition: used to be available only to refrain a judge from doing that which he had no jurisdiction to
do
4. Collateral issue doctrine: side issue, not wrapped up in the merits of the case and can be reviewed
independently--what is sufficiently disengaged from the main frame for the action to justify appellate
intervention i.e disqualification of lawyers and judges, or sanctions
5. 1291 exceptions for injunctions: any order no matter how interlocutory it may seem that modifies or extends
or issues or absolves an injunction is subject to immediate review b/c granting
6. Certification U.S.C. 28-1254: a judge can certify an issue to a court of appeals and the court of appeals must
accept the certification for it to be heard
E. Reviewability
1. Of a jury verdict: must find error or say a d.v. should have been granted
2. Of a judge verdict: must find clear error
3. On an issue of law: if the District court thinks the judge was wrong
4. Some verdicts cannot be reviewed: FELA cases of a jury verdict for a plaintiff (workman's comp.) or findings
of discrimination on and reordering of back pay
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IX. FORMER ADJUDICATION

I. Claim Preclusion/Res Judicata:
A. Definition: Once a single cause of action had been adjudicated on the merits it cannot be re litigated for any
aspect of that action. Once you have had your day in court, it is over and let the court move on to other
matters.
1. Each piece of that cause of action is precluded form being litigated again whether it was actually
advanced in the first action or not. You either play the whole poker chip, or you dont play it at all.
You cant break it into pieces. everything within a transaction and occurrence are brought together
in one litigation. (e.g. If something blows up in your face you may have many claims but one
transaction - one suit for tort, breach of k, etc.)
2. What cases are on the merits?
a. Threshold defenses that have stopped you previously from making a claim are not on the merits.
These may be tried again with the transaction and occurrence. Venue, jurisdiction, etc.
b. Summary judgment is more on the merits, but dismissal for failure to state a claim usually isnt on
the merits, but coming in too often judgment will be rendered and not allowed to modify the
plea.
B. All claims arising from a single cause of action are merged into the judgment - once you step into a cause of
action. All claims must be put on the table at once, or else they can never be litigated:
1. Multiplicity of litigation: not tolerated
2. plaintiff should come forward and initiate action only when fully ready to
3. defendant should be protected from repeated litigation. Once judgment is entered, there is nothing left to
be sued on
1. This can prevent litigation of that which has not yet been litigated but arises from the same cause of
action
C. Criteria
1. Is this the same cause of action? -- a same wrong to you or a right you are asserting, same transaction
or occurrence, same evidence needed to establish both claims
2. Has it been adjudicated on the merits? -- a trial, summary judgment dismissal for failure to state a claim
(lack of venue or j/d is not on the merits
II. Issue Preclusion /Collateral Estoppel:
A. Definition: Prevents relitigation of the same issue. the cause of action is different but the issue is the same.
The issue is not allowed to be raised again.
B. Criteria for the issue to be prohibited from being re litigated or collaterally estopped from being litigated
1. Exactly the same issue
2. Was actually litigated
3. Necessarily decided - not dictum.
a. If you do not know which issue was necessarily decided, you cannot give any of the issue collateral
estoppel effect
b. If you do not have all three criteria, no collateral estoppel
C. Requirements: Who is bound by the preclusion
1. Only parties who were in the 1st suit
a. everyone gets there day in court
b. old rule: if you were not bound, you could not benefit
c. new rule: if one party fully and fairly litigated the issue of fault w/full knowledge that there might be
other actions, its had its day in court, its fault has been adjudicated, and strangers may take
advantage of the decision and run collateral estoppel affirmatively against the loser
D. Hypothetical: A collides with B and sues for damage. B after claim decided sues A. Not Claim Preclusion as
there was one cause of action, A suing B. defendant B wins as A is found negligent.
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a. Here it is B suing A. A different cause of action, as both A and B each have a separate cause of action,
even though they arose from one incident. However, A must have established Bs negligence. The
issue of As negligence was already decided in case 1, and that barred him from recovery. And a
given in case 2, and cannot be questioned in the second case.
b. But, if they find dual negligence in case 1, then in case 2, then only As negligence cant be re-litigated,
as the fact that As negligence, not Bs was necessary for plaintiff A to lose against defendant B.
c. Mutuality of estoppel: Old rule: A collides with B, C a passenger in As car. B sues A and B wins,
establishing A negligent, B not. C can sue B, not prevented by collateral estoppel because in case
1 it was A v. B. C now sues A and states that A should be estopped from denying negligence
because they were proven in case 1. It wont work either. If you are not bound by a decision, then
you cant benefit from it. This is no longer valid.
d. New Rule: If A knew had opportunity to litigate, and it was foreseeable that a suit would arise, there was
incentive to litigate to the fullest, and that party is collaterally estopped. C can A and there wont be
a suit. (Clancy v. McBride - p. 964)
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THIS DOCUMENT IS 1994-2014 BY MICHAEL M. WECHSLER AND

IS PROVIDED TO YOU AS-IS WITH ABSOLUTELY NO

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I. JURISDICTION AND RELATED MATTERS

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E. Waiver: by defendant to any objection to jurisdiction.

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B. Method to test for jurisdiction:

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2. Property Jurisdiction : In Rem and Quasi In Rem:

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II. Has the defendant been given an opportunity to be heard?

4. Has service of process been made properly?

1. Compare the service with the governing rule? (F.R.C.P. 4)

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5. Venue: Does the court have venue?

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6. Removal: U.S.C. 28-1441:

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II. GOVERNING LAW - Law that governs in a federal diversity suit.

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III. PLEADINGS: notice pleading

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V. DISCOVERY F.R.C.P 26-37: fact revelation

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VI. PRE-TRIAL ADJUDICATION

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VIII. POST TRIAL MOTIONS

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C. Asks, should we ever have given it to the jury to begin with?

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IX. FORMER ADJUDICATION

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1994-2014 BY MICHAEL M. WECHSLER AND THELAW.COM LLC

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