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1. Introduction to Civil ProcedureFMSH, 1-20 (skim)Always ask: is it worth it?Adversarial system:

strengths parties in control clash of the titans less frivolous (rule 11) individuals can make social change

weaknesses unequal competence and resources of parties mistakes are fatal depends on lawyer

Inquisitional system: strengths

objective accountable courts

maybe faster weakness

burden on government

FMSH, 239-252

-Opportunity to be heard DPC requires that parties have a right to be heard before the gov. effects a deprivation of their

liberty or property D must receive notice long enough in advance of the time when she is required to

respond so as to allow her to obtain counsel and prepare a defense. FRCP 12(a) and state statutes generally allow 20+ days after service to respond

DPC does not necessarily mean D gets full trial If the right to be heard must be granted at a time when deprivation can still be prevented.

FUENTES V SHEVIN - shevin filed writ of replevin to seize stove based on

fuentes unpaid balance. fuentes was given no notice and only offered a hearing

after the stove was already seized. 5th + 14th Amendment guarantee right to be

heard. a temporary, nonfinal deprivation of property is still a deprivation. any type of significant property interest is protected, including wage

garnishment, and gov assistance (even though not a right) DISSENT: this policy allowed creditors to offer stoves to those who

otherwise couldnt afford it. this policy also allowed creditors to protect

their property from destruction.

in MITCHELL, creditor also owned the property and the writ was signedby a judge - no hearing prior to deprivation was necessary

Notice may not be necessary when the seizure is directly necessary to secure an important governmental or public interest there is a special need for very prompt action and the state has kept strict control over this monopoly power.

to waive this constitutional right it must very clearly expresse also consider adhesion contracts where the waiver might be unconscionable

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2. Jurisdiction over the Parties / PropertyFMSH, 71-80 (notes 1-4)-before a ct can decide a case, it must have jd over the parties as well as the subject matter

there are 2 reqs to jd over the parties substantive due process: the ct must have the power to act procedural due process: the ct must have given adequate notice to defendant and also

afforded him an opportunity to be heard-3 kinds of jd over the parties

In personam: jurisdiction over Ds person. This judgement can be sued upon in other states, and

all of Ds assets can be seized to satisfy the judgement. Service must be processed within the

state In rem: gives the court power to adjudicate a claim made about property or status. divorce and

suit to quiet title is an example. Quasi in rem: the action is begun by seizing property owned by D within the forum state. the suit

is not about the thing seized, but that the seizure is a pretext for the court to decide the case

without having personal jurisdiction. Any judgement affects only the property seized and cannotbe sued upon in any other court.

-So, there is a 2 part test to use to determine if a ct has jd over the parties: 1: Meaningful connection or contact w/ the state. two options here:

a purposeful availment (which may be taking the lead)b stream of commerce/ forseeability

2: Reasonableness analysiss-Jurisdiction may be exercised over an individual by virtue of his presence within the forum state.

This was originally the chief basis for jurisdiction. PENNOYER. the authority of every tribunal is

necessarily restricted by the territorial limits of the state in which it is established. State A can render judgement on its residents with property in state B. (as long as

judgement doesnt interfere with state Bs supreme control over the property) State A can render judgement against property within its borders belonging to resident ofstate B.

If a non-resident had no property in the state, there was nothing to adjudicate upon. absence from ones state of residence does not terminate in personam jurisdiction

FMSH, 81-84 KANE expanded PJ by allowing a person to expressly consent to in personam jurisdiction by

appointing an an agent to receive notice. HESS expanded further by affirming that a statute declaring all out of state motorists had

impliedly given consent to personal jurisdiction in any action arising from their driving the state attempted to put non-residents on same legal footing as residents. this

demonstrates the increase in travel and decrease of border significance. now presence within a forum state is sufficient for service. service on an airplane can establish in

personam jurisdiction

FMSH, 84-91Jurisdiction over corporationsphysical presence (PENNOYER) consent (KANE) implied consent (HESS) presence

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INTERNATIONAL SHOE developed the minimum contacts standard. The companys status with

respect to the state of Washington was as follows: incorporated in DE, principle place of biz in MI conducted no biz in WA other than having washington based salesmen no WA office, though the salespeople sometimes rented space salesmen had no authority to enter into contracts on behalf of company all orders where shipped to WA total commissions paid to WA salesmen was $31,000

held: WA could exercise jurisdiction over the company Due process requires only that in order to subject a D to a judgement in personam, if he

not be present within the territort of the forum, he have certain minimum contacts with it

such that the maintenance of the suit does not offend traditional notions of fair play and

justice minimum contacts:

system + continuous a large volume of business recieved benefits + protections of the state

NOT irregular or casual however under some circumstances, a single act may be sufficient to

establish jurisdiction Once min contact is established, fair play and justice is assessed to determine if

it is reasonable to bring a defendant to the forum state for suit fair play includes an estimate of conveniences

company relied on old expectations while the law shifted around them

-Continuous + systematic-relatedYES PJ

-Continuous + systematic-unrelatedMAYBE (usually) PJ (you can always be sued @home)

-Occasional, casual

-relatedMAYBE (usually not, see VOLKSWAGEN)

-Occasional, casual

-unrelatedNO PJDPC does not grant cts power to effect jurisdiction, the legislature grants jurisdiction

FMSH, 91-104The Development of Long-Arm Laws: Illinois statute making any individual or corporation amenable to in

personam jurisdiction if transacts any business within the state owns, uses, or possesses any RE in the state contracts to insure any person, property or risk in the state claims over alimony, support, and property division against former residents commits a totrious act in the state

making or performing a contract substantially connected to the state-Many acts specifically cover out of state tortious acts with in-state consequences. these usually arise in

product liability cases-2 types of long arm statutes: enumerated(NY); and global (RI), which basically inflate to the legal bounds

of the constitution-GRAY: product liability case where an OH made product cause injury in IL. No direct sale to person or

corp in IL, but they. held that the long-arm statute validly established PJ. there were sufficient minimum

contacts and no unreasonable burden on D.

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this was a huge expansion - now very hard to certainly avoid suit in other states. Long arm statute would not apply in a situation where an actor in state A merely cost a state B

resident money. the Ds acts must still be within the state to some extent (note that VOLKWAGEN will contradict GRAY)

- MCGEE: increased scope of state jurisdiction over foreign corporations and individuals due to increased

commerce across state lines and modern complex transactions. contacts between insurance company and forum state:

assumption of obligation mailing of premiums CA residents CA witnesses no office, this individual held the companys only policy in CA

held that company was subject to PJ. CA had a strong interest in protecting its citizens the suit was based on a substantial connection

this represents the least contact with a forum state which scotus has appproved Ps are usually the underdogs for whom travelling is a greater burden.

D here had a power disparity, an adhesion-type situation, and was a biz making $ was based on convenience and was lax about state lines

-HANSON: held that Ps unilateral acts cannot be the exclusive basis for establishing jurisdiction over D.

There are still limits to PJ and minimal contacts that must be met. no matter how small the burden, there

must still be minimum contacts.

the trustee bank had never done and business in forum state the cause of action did not arise from business done in forum state fights back for the sovereignty of the state. center of gravity, or pure convenience argument was dismissed

-distinguished from MCGEE due to no solicitation for business in the state, no adhesion.-be able to make PJ arguments for either side. always consider context, time period, and the parties

status

FMSH, 105-114 (notes 1-2)-scotus has put limits on the use of long-arm statutes (limits on GRAY): the mere fact that a product finds

its way into a state and causes injury is not alone enough to subject the out of state manufacturer to

personal jurisdiction. instead there must be some effort to market in the forum state, either directly or

indirectly. VOLKSWAGEN even though it may be foreseeable that D may have driven a car to OK from NY, this did not give

OK PJ over the corporation. Ds did no business in OK. Purchasers were from NY. Sold in NY. Car then crashed in

OK. the forseeability that is critical to due process analysis is not the mere likelihood that a

product will find its way into the forum state. rather it is that Ds conduct and connectionw/ the forum state are such that he should reasonably anticipate being hauled into court

there. this was an isolated, related category the unilateral action of P cannot dictate where D is subject to PJ

the fact that cars can be driven anywhere is too tenable to be a minimum contact

for PJ. dissent: would have found pj based on MCGEE flexibility.

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-minimum contacts protects D against the burdens of litigating in a distant or inconvenient forum, and also

insures that the states do not over-reach their limits based on our system of co-equal sovereigns.-PENNOYER, HESS, INTL SHOE, MCGEE all broadened pj. HANSEN and VW brought it down to a

more rigid test.

FMSH, 119-138-D, a MI resident, signed a franchise agreement with P, florida based company. D never travelled to FL, D

met only with Ps MI office, but sent payments to FL. The contracts stipulated that FL law was to apply.

FL long arm statute allowed pj over one who breaches a contract in this state by failing to perform acts

required by the contract to be performed in this state. Held, that FL had pj over D. BURGER KING. sufficient min contacts, sufficiently forseeable.

contracts plus: a ct is to look at all the communications before, during, and after the

contract to determine the degree and type of contacts D had with forum. designation of law provisions are not min contacts because of center of gravity

(HANSON) but demonstrate that a party sought the benefits and protections of a forums

laws purposeful availment req.: not random, fortuitous,or attenuated contacts. This is the quality and

nature of Ds contacts.just because there are contacts, questions of fair play can still prevent pj.this test prevents one partys unilateral action from making the jurisdictional determination.

but inconvenience alone will not always be enough to render pj unconstitutional fraud, undue influence, or overwhelming bargaining power may violate pj under

DPC, but not mere wealth disparity. pj is not a mechanical test

Ultimately, PJ would not be unfair here. There is no unfair surprise of PJ. so once due process is established, the court must then assess if pj is fair

-Knowledge of in-state sales might be enough: if a mfg makes products that he knows will go to market in

the forum state, that might be enough to satisfy minimum contacts. However, it may still be unfair for the

parties to litigate there ASAHI. company knowingly put its good into a stream of commerce ending in CA. But due to both being

foreign, and due to a lack of state interest in the litigation, it would be unfair for the parties to

litigate the case in the forum the substantial connection between D and the forum state must come about by an

action of the D purposefully directed towards the state things, besides merely putting an item in the stream of commerce, that

demonstrate purposeful availment: designing the product for the market advertising in the forum regular communications with customers in the state marketing through a distributor who has agreed to sell within the state

factors in determining the reasonableness ofpj

Ds burden interest of forum state in the litigation Ps interest in obtaining relief the general justice systems interest in obtaining the most efficient resolution to a

controversy-purposeful availment seems more important today than mere input into the stream of commerce.

FMSH, 161-173

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-Quasi-in-rem jd was limited by SHAFFER, holding that QIR cannot be exercised unless D had such

minimum contacts that In personam jd under the intl shoe std could also be applied P attempted to hold $1mil of a corporations stock hostage via QIR jd over a delaware law that

said all stock is located in Delaware. The corporation did not have sufficient minimum contacts

with the state. HELD that the exercise of QIR violated Ds d ue process rights. Minimum contacts

must still be established. presence of property alone does not indicate minimum contacts (insofar as this property was a

legal fiction) but physical in-person presence does (BURNHAM) the state law did not sufficiently suggest that the legal fiction of property presence

warranted in-personam jurisdiction

FMSH, 175-185 (notes 1-4)-As long as a D voluntarily travels to a forum and is served while present there, the forum will have pj.

BURNHAM. This presence overrides min contacts. PENNOYER lives.

INTL SHOE std is for parties not physically present

the dissent thinks that presence should incorporate atotality of the circumstances testand integrate an assessment of fairness.

3. NoticeFMSH, 199-206-in order for a D to have received adequate notice, it is not necessary that he actually have learned of the

suit. sufficient notice is made if the procedures used to alert him were reasonably likely to inform him of

the case against him. a D must also be given adequate time to prepare and present a defense. notice and opportunity to defend are measured against DPC.

-The expense of notification and the availability of names/addresses are factors to consider indetermining whether a publication is sufficient notice. MULLANE.

the bank in a class action, only published notice in newspaper. This was not sufficient for all Ds

because it did have some names and addresses to which it could have sent mail. the newspaper did not even list the names of the parties being notified

failure to sufficiently notify those whose address was known violates DPC. those whose address was unknown were served according to the reasonableness test personal written notice is always adequate

Reasonableness standard to be used in notice: the means of notice employed must be such as

one desirous of actually informing the absentee might reasonably adopt to accomplish it. this

may be limited by reasonable considerations of economy (where there are thousands of parties). parties with very remote interest do not warrant personal service if the cost is exorbitant.

FMSH, 213-215; Federal Rule of Civil Procedure 4-service traditionally consists of a copy of Ps complaint, together with a summons directing D to answer

made by personal delivery. Service by mail has assumed greater importance with the rise of long-arm

statutes. the mail method had difficulties due to noncooperative Ds

-Rule 4(d) encourages a waiver of formal service.

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under this rule, a suit commences when P sends a form entitled notice of a lawsuit and request

to waive service of a summons domestic Ds have 30 days from date of waiver to return their acknoweldgement. otherwise, they

will be charged with the cost of personal service in light of SOL deadlines, formal service may be required, because a D may refuse to waive

service.

4. Subject Matter JurisdictionFMSH, 272-80; U.S. Const., Art. III, 2; 28 U.S.C. 1332- U.S. Const. Art III 2: fed judicial power over cases arising from US constitution and US laws (fed

question), admiralty, in which US is a party, between two or more states, between citizens of 2 or more

states, between us citizens/states and foreign citizens/states.- 28 USC 1332: Outlines diversity jurisdiction:

matters that exceed $75,000 and are between citizens of different states citizens of a state and citizens of a foreign state

corporation is deemed a citizen of any state where it is incorporated also where it has its principal place of business

this can be headquarters (nerve center) or most amount of business being done (muscle center) or where the company is really based. a combination of the other two based on

a totality of circumstances (total activity) fed jd in class actions over $5,000,000 and there is any diversity in the parties citizenship is determined as of the date of filing

- STRAWBRIDGE requires complete diversity: that no parties on one side are a resident of the same

state as any parties on the other side. -rationale for diversity jurisdiction is to avoid discrimination, and to have the fed hear cases of high

importance, can also be used to solve national problems between states -rationale against diversity jurisdiction is that there is no more state bias, that fed cts are alreadycongested, and that having fed cts apply state law is inefficient, allows for forum shopping- for diversity, citizenship means domicile, not residence.

domicile is the place of his true fixed and permanent home and principal establishment, and to

which he has the intention of returning whenever he is absent therefrom marriage to a foreigner cannot be the sole basis for losing citizenship

though a woman claimed she had no intention of returning to MI, she was only holding a

temporary job in LA, and she had not changed her domicile. MAS. a change requires (1) taking up a new residence with (2) an intent to stay there

FMSH, 285-289 (notes 1-2)

- the rule is that the sum claimed by the plaintiff controls if the claim is apparently made in good faith. itmust appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify

dismissal.-if punitive damages are allowed under the controlling law, they may be considered in the amount in

controversy-if it is an injunction that is sought over trade secrets, the value of the injunction may be conisdered in the

amount in controversy- the ultimate award can, however, be less than $75,000

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-congress deleted an amount-in-controversy requirement for fed question cases

FMSH, 297-301-Federal question: Started over very broad w/ OSBORN, narrowed later to current rule.

federal law can be the direct source for the claim (e.g. trademark, copyright) the anticipation of a federal defense is not sufficient. LOUISVILLE

because Ps action has to arise under the constitution or US laws. P must make this

clear in his complaint.

FMSH, 303-306-Just because a case involves a matter that is regulated by fed law, i.e., copyrights, it does not

necessarily mean that it is a fed question. TB HARMS. TB HARMS was actually about contract law, which is state level. not fed copyrights.

the copyright laws did not invoke the claims being brought. These were mere

ownership/contract issues. an action arises under the copyright act if and only if the complaint is for a

remedy expressly granted by the act eg a suit for infringement or for the statutory

royalties for record reproduction, or asserts a claim requiring construction of theact...the general interest that copyrights, like all other forms of property, should

be enjoyed by their true owner is not enough to meet this test

FMSH, 324-335; 28 U.S.C. 1367-SUPPLEMENTAL JURISDICTION:Jurisdiction over supplement claims and parties-Federal courts have

declared themselves competent forums of nonfederal, non-diversity legal questions when the

determination of such questions is necessary for resolution of other federal claims. eliminates disadvantage of litigating in federal courts because all claims can be heard there avoids piecemeal litigation

- Pendent claim jurisdiction: Provides a basis of jurisdiction when federal courts seek to adjudicate an

additional claim asserted by P with no independent base of jurisdiction. Claim must arise out of the

common nucleus of operative fact. UMW 1 claim arising under federal law relationship between claim based on federal theory of recovery and claims based on

state theories is such that the entire action before the court comprises 1 case Art III (2)- TEST: Claims arise out of a common nucleus of operative fact

Absent the jurisdictional issue, claims would be tried in 1 proceeding - Not obligatory, Courts are allowed discretion in exercise of this supplemental jurisdiction- Factors to be considered:

a) strength of federal claim and possibility it may drop outb) predominance of state claimsc) novelty of state claims and lack of guidance from state law

-Pendent party jurisdiction: Basis to adjudicate claim over another party as an adjunct to thedetermination of Ps base claim.

Aldinger held that federal court lacked jurisdiction over a state law claim against a county, even if

that claim was alleged to be pendent to one against county officials under 42 U.S.C. 1983.

despite the fact that claims arise from a common nucleus of operative fact Congress had issued a statute forbidding use of federal law against the additional party in

this case (a government agency). Statute did not allow this claim. look at your facts, is pendent party jd contrary to statute? if so, it will not be valid.

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-Ancillary jurisdiction Owen. P sues D in fed ct via diversity. D impleads X for indemnity. P attempts to directly sue X,

a non-diverse party in federal court. Held that P cannot use ancillary jd to get fed jurisdiction over

X because it would frustrate legislative intent of 1332-Complete diversity.

2 part test to determine supplemental jurisdiction: a) Is there authority- Art III, Gibbs test b) Is there any piece of legislation forbiddingjurisdiction

Ex: 1332 complete diversity requirement, statute forbidding this action

against govt-Finley- if Congress has not affirmatively permitted jurisdiction, cannot use supplemental jd.

Before: if Congress has impliedly forbidden cant use ancillary much more difficult to get ancillary jd, basically destroys it.

brennan/stevents thought this was too narrow. congress took action and passed 1367 -1367 combines ancillary and pendent jd into supplemental jd:

cts shall have supplemental jd over all 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 Art. III. Such

supplemental jd shall include claims that invlove the joinder/intervention of additional parties.

where the core claim is based on federal question, the statute broadly allows for parties to beattached

where the core claim is based on diversity, the statute is more limited additional claims asserted by D are within supplemental jd, but additional claims or

additional parties asserted by P are severely restricted (c) cts may decline to exercise supplemental jd if

(1) the claim raises a novel or complex issue of state law (2) the state claim substantially predominates over the claim or claims over over which

the fed ct has jd (3)the fed ct has dismissed all claims over which it has jd (4)there are other exceptional circumstances/compelling reasons for declining

FMSH, 338-349- if one of the Ps satisfies the amount -in-controversy requirement, 1367 authorizes the supplemental

jurisdiction over the claims of the other plaintiffs. EXXON. all other jurisdictional elements must be satisfied, however (complete diversity, single case or

controversy) EXXON rejected individuality theory (that an entire claim must stand or fall as an indivisible

action), holding that a fed ct does not need to have original jurisdiction over everyclaim in the

complaint. EXXON rejected contamination theory in terms of amount in controversy (amount in controversy

is used to establish that a claim has importance, and one of the claims has already established a

minimum importance, the other claims do not diminish that), but conceded that contamination in

terms of complete jurisdiction might have bar supplemental jd, since there would then be anappropriate substitute forum.

-In order for a court to decline to exercise supplemental jurisdiction over l state law claims, the district ct

must find that one of the circumstances under 28 U.S.C. Section: 1367(c) exist and articulate the

circumstances in the order declining jurisdiction. EXECUTIVE SOFTWARE. in order to decline supplemental jd, the facts must fit into the categories laid out in 1367(c)(1)-(3)

AND must satisfy the objective of most sensibly accommodating the values of economy,

convenience, and fairness. the (c)(1)-(3) factors are not absolute, but rather point towards

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situations in which the values of economy, fairness, and convenience may often warrant

declining jd the exceptional circumstances/compelling reason is by nature an exception, not the rule.

EXECUTIVE SOFTWARE limits the ability of the cts to decline supplemental jd - the

lower cts must specifically articulate the reasons for declining supplemental jd. the lower

court relied on the GIBBS rule of more liberal discretion. though 1367 largely follows

GIBBS, it diverges on this point of the cts discretion to decline supplemental jd. dissent does not believe that there was clear error here, since the lower court

offered reasons for declining: expenditure of judicial time and effort, jury

confusion.

FMSH, 350-362; 28 U.S.C. 1441, 1446, 1447-Removal: gives a D who has been sued in a state the right to veto Ps choice of forum and bring the

case to federal court. Generally can only happen if the fed ct would have had jd if P decided to go there in

the first place. Why remove?

add burden to P

familiarity with fed ct better jury pools Ps statistically lose more often protects against local bias

Rules on removal D has 30 days after service to file for removal Rule used to be that the countdown started with the day that the first D was served, but

not every D has 30 days All Ds must consent to removal

-Remember the Mottleycase -- federal piece must be in the complaint (defenses don't count) It's possible that both parties could want to be in federal court

P might want to be in federal court but can't go because they have a state claim D can't get a removal because the federal piece is borne of their defense, and not the

initial claim. But under removal, if plaintiff brings a federal claim in state court, defendant can remove

to federal court. Prof: this discrepancy hasn't been resolved.

-hypos: Prof wants to bring a Title VII claim together with a PA state discrimination

Can he bring them in federal court? Yes. As long as they are born of the same common nucleus of operative fact.

How do you know that? Supplemental jurisdiction (1367) Can he bring them in state court?

Yes. Same set of facts, but he wants to add a slip and fall claim that happened at work. Can he bring them all in federal court?

No. No common nucleus of operative fact. 1367 doesn't apply. Can he bring them all in state court?

It depends on if the state has an analog to 1367 requiring that you have a

common nucleus of operative fact. If it does, he can. If it doesn't, he can't. Last set of facts. Suppose state does have a 1367 analog.

Could it be removed to federal court?

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No. They could not have been brought together in federal court in the first place. Noting this loophole, people began to bring their claims together this way

specifically to prevent removal from state court. Congress solved this problem using 1441(c)

-1441(c) change, if a federal question case is removed, which has attached a claim not within original or

supplemental jd, the fed ct must remand all the matters in which state law predominates. only the Ds who

the fed question is directed against need to consent to the removal -amt in controversy change:

states dont usually have a minimum, though they have small claims ct w/ a max when D wants to remove based on diversity, how does he show amount-in-controversy?

he proposes one. the ct must find by a preponderance of evidence that the amount >

$75k remember that Ps amount, on the other hand, is accepted unless there is a legal

certainty that the amt is < $75k

5. Venue, Transfer, and Forum Non Conveniens

FMSH, 369-374-unlike pl or smj, venue is not a constitutional question, as it relates primarily to the convenience of the

parties and to concerns of judicial economy and is determined by statute -venue is the place of trial in an action within a state, where the law suit should be heard

situations upon which venue may be predicated: where the subject of action or part thereof is situated

county where the facts occured can best deal w/ problem where the cause of action, or part thereof arose or accrued

convenience of witness where some fact is present or happened

used for trial convenience

where D/P resides where D/P does biz Where D may be found

the common law rule is that the right of action follows the person where D mauy be summoned or served

common law rule that right of action follows person. may be anywhere D is

served w/ process in the county designated by Ps compaint

usually unfair in any county where the seat of government is located

reserved for actions against gov units or agencies

-BURLINGTON NORTHERN upheld venue statute that allowed a P to sue a montana corp only in thecounty of its principal place of business, but allowed a P to sue a out-of state corp in any county.. a state

acts within its constitutional prerogatives if it were to allow P to sue in the counties of their choice, and

can also temper such a rule towards a D if it wants to.

FSMH, 378-383;

-28 U.S.C. 1391 Venue in fed cts

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(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 D resides, if all Ds reside in the same state(2)a judicial district in which a substantial part of the events or omissions giving rise to the

claim occured, or a substantial part of the property that is the subject of the action is

situated, or(3) a judicial district in which any D is subject to PJ 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 a D resides, if all Ds reside in the same state(2) a judicial district in which a substantial part of the events or omissions giving rise to

the claim occured, or a substantial part of the property that is the subject of the action is

situated, or,(3) a judicial district in which any D may be found, if there is no district in which the action

may otherwise be brought- so, A/B:

(1) if all Ds reside in a state, venue is appropriate in any district where a D resides (2) A district in which a substantial part of the events or omissions giving rise to the claim

occured, or a substantial part of the property involved in the claims is located Now, you dont have to go to (1) first, but (3) has to be last

- in BATES, a fed question (FDCPA) involved a notice being sent to the WDPA, but ending up being

forwarded to the debtors new address in the WDNY. thus, a substantial part of the events leading related to the claim occurred in WDPA, and venue is

appropriate there if the guy didnt want to be subjected to venue elsewhere, he should have put do not forward on

the letter- most cts treat an individuals citizenship for DJ the same as residence for venue - for corps, residence is anywhere it i subject to pj as the time action is commenced

- remember that venue may be proper in more than 1 district- pendent venue: discretion to hea claims as to which venue may be lacking if those claims arise out of a

common nucleus of operative facts with clams as to which venue is proper

FSMH, 383-91; 28 U.S.C. 1404- 1404 - for convenience, justice, a district ct may transfer any civil action to any other district where it may

have originally been brought was: events can change midway through so that venue would be appropriate somewhere else HOFFMAN - if a suit in a particular district would not have been possible as an initial matter due

to PJ restraints, or because venue would not have been proper, even consent by all Ds cannot

authorize a transfer of venue there

- in DEERE, PA statute ran, so sued in MI, and then attempted to transfer venue to PA. this, was allowed,the ct must apply the rules of the transferor ct.

FSMH, 391-403- forum non conveniens: a ct may resist imposition upon its jurisdiction even when jurisdiction is

authorized by the letter of a general venue statute due to the fact that the action could be more

appropriately tied to some other jurisdiction reasons:

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partys convenience states interest

factos in this decision is plaintiff a resident of the state?

if so, he should be able to sue in his home state important local or state interest in the decision

in which forum are witnesses most available which forum will be most familiar with the law

generally undesirable to have a ct in some other forum untangle problems in

conflict of laws and in law foreign to itself- in PIPER, an aircraft made in US, crashed in scotland and killed. P brought claim in PA dist ct. Ds

argued for forum non conveniens, and argued that scotland was the more appropriate forum. all

deceased and all witnesses to the crash and maintenance were in scotland. P opposed this because

scottish law was less favorable to her. held: forum non convenins apropriate

the fact that the other forum would have an unfavorable change in law should not be

given serious weight in the forum non conveniens decision

the purpose of forum non conveniens is to assure the litgation takes place in the mostconvenient forum

when the P is foreign, the presumption is usually that the forum chosen is actually not

that convenient, and there is less fear of stripping P of the american legal system the ct allowed an exception when the other forum did not offer a remedy for the subject

matter of the dispute (where a forum non conveniens claim would completely eliminate

the claim) basically, there must actually be another forum

- US cts are usually very favorable to foreign Ps - forum non conveniens can put a claim in a different judicial system. transfer cannot do this- FNC standard: to vex, harass, and oppres unless the balance is strongly in favor of D, deferrence

should be given to P

6. Ascertaining Applicable LawFSMH, 404-416; 28 U.S.C. 1652- 28 USC 1652 - in civ il actions , fed cts must apply the law of the several states, except where the

constitution or treaties of the US or acts of congress otherwise require or provide- under SWIFT:

fed cts were bound by state cts for state constitutions or statutes, or other local matters in all other questions, such as general commercial law (the issue here) the fed cts were free to

evolve their own common law irrespective of what the state cts were doing. basically laws of the several states did not encompass general common law.

- ERIE held that SWIFT was unconstitutional, and that the laws of the several states includes statecommon law

1652 was intended by its authors to be interpreted as such the SWIFT doctrine allowed for discrimination against citizens that followed state law it was unconstitutional to allow fed cts to make substantive common law rules applicable to a

state however there remains a federal common law in issues related to federal questions

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FSMH, 416-430- York involved the applicability of a state statute of limitations to a right of action arising under state law

but tried in federal ct. in this case, the statute of limitations was substantive.

procedural: whether it concerns merely the manner and the means by which a right to

recover, as recognized by the state, is enforced. substntive: does it significantly affect the result of a litigation for a federal to disregard a

law of a state that would be controlling in an action upon the same claim by the same

parties in a state ct? because it was substantive, the ct applied the outcome determinative test

to the extent the rules affect the outcome, it should be the same in fed as in state for DJ outcome determination test should not be applied mechanically, instead its application mut be

guided by the twin aims of the erie doctrine discouragement from forum shopping avoidance of inequitable administration of the laws

- TRIPLE PLAY CASES held that state rules which were substantive were controlling- YORK and TRIPLE PLAY all had situations that were procedural-ish but because were subject to the

outcome determinative test and would have affected the outcome were nonetheless determined to besubstantive- BYRD signaled a retreat from the complete outcome-determinative test

facts: P sued for negligence in a fed ct in SC. D argued that P was a statutory employee of D,

rather than an independent contractor, and therefore workmens comp was Ps only remedy. SC

common law held that the question of whether one was a statutory employee was to be

determined by a judge, not a jury. held: that the federal policy of having factual matters decided by a jury must be followed in this

case (7th amdt) though the state policy might be outcome-determinative, and in the absence of other

considerations, the ct might have followed it but, the federal policy of having such issues decided by a jury outweighed the state policy

also, there is a weak state interest in having a judge decide such a matter this was not completely definitely going to influence the outcome of the case, anyway, it

was just important procedure so, under BYRD, state decisions that are basically procedural (though they may affect

substantive rights) are not necessarily controlling even if they are outcome-determinative

FSMH, 431-442; 28 U.S.C 2072-28 USC 2072 -

(a) scotus shall have the power to prescribe general rules of practice and procedure and rules for

cases in the district cts and ct of apps (b) such rules shall not abridge enlarge or modify any substantive right. all laws in confluct with

such rules shall be of no further force or effect after such rules have taken effect such rules may define when a ruling of a dist ct is final for the purposes of appeal under section1291 of this title

- rules enabling act created an advisory committee to let cts make the FRCP - HANNA completely removed the FRCP from the scope of the erie doctrine.

held: erie doctrine is not controlling when a valid FRCP is in conflict with state common law

policy to hold otherwise would render the federal rules unworkable and violate congresss

powers

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outcome-determination test cannot be read without reference to the twin aims of the erie

rule: discouragement of forum shopping and avoidance of inequitable administration of

laws so, even in the absence of a FRCP, a state policy may still not control if there is a

conflict- this does not mean FRCP are all valid. they must not abridge enlarge or modify any substantive right

rules which incidentally affect litigants substantive rights do not violate this provision if reasonably

necessary to maintain the integrity of that system of rules sometimes this may cause a fed rule to be interpreted narrowly so as to not substantially affect

substantive rights- so, at this point, this is the erie doctrine:

1: if a FRCP is on point, apply it 2: if it is not on point, apply state law if fed law would cause a different result, absent other

wieghty concerns in favor of fed law (ie 7th amdt)

FSMH, 442-465-WALKER upheld the TRIPLE PLAY CASES. stating that HANNA did not apply in that case because rule

3s statement that a civil action is commenced by the filing of the complaint is merely designed to give astarting point for the measurements of time periods did not conflict with the state law on tolling SOL. thus

the ct concluded that a conventional erie analysis must be done in other words, A states provision tolling its statute oflimitations should be analyzed under the

Erie doctrine. Consequently, a states tolling provisions must apply if it would have prevented the

plaintiff from filing a suit in state court. (outcome determinative, preventing forum shopping) In

addition, Rule 3 does not conflict with tolling provisions because it only refers to the time a lawsuit

commences under the Federal Rules. (the fed rule is not on point/ narrow) - the test for determining if a rule is on point was spelled out in BURLINGTON

the intial step is to determine whether the rule is sufficiently broad to cause a direct collision with

the state law or to implicitly control the issue before the court, thereby leaving no operation for the

state law/ look for parallell purposes as evidence of conflict/being on point

in BURLINGTON, a fed rule took precedence over a state rule imposing penalties on appeals

because the federal rule was intended to occupy the entire field of penalties for frivolous appeals. this was a FRAP procedure, and essentially broadened step 1

on point means not whether the rule can be construed to have a particular conflict, but for

whether the advisory cmtee intended the rule to have such a conflict - STEWART broadened step 1 further, holding that if a valid congressionally-enacted procedural statute

outside of the FRCP conflicts with a state law or policy, the federal statute will control even though this

may promote forum shopping once statute has been determined to be on point, must determine if it is constitutionally enacted.

if it governs a practice/pleading of the cts it was probably constitutional under the 10th amdt

- GASPERINI - statue determining awards in damage for lost pics is both substantive and procedural. itinvolves the standard for which a jury award is determined excessive

majority held that the standard should be the state one The analyses under the Erie doctrine focus on whether application of the federal

standard cause discrimination against non-diverse parties and whether application of the

federal standard would encourage individuals to file in federal court. In the event that the

federal standard is applied, there would be substantial variations between state and

federal money judgments.

must not disturb the province of the jury

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dissent: the federal policy is on point here, we should be applying that. also, this is procedural,

not substantive. lastly, the outcome determination test is not the talisman of the erie doctrine- choice of law analysis for a layman: fd cts should supply state substantive law + federal prodecural law

but substance v procedure is not clear- choice of law analysis

1: Is there a federal directive on point that was constitutionally enacted? if not clear whether on point, consider advisory board intent. argue this.

if yes apply fed directive if no go to step 2(a)

2(a): If the fed ct applies fed law, will it result in a different outcome than if the state law were

applied? if yes go to step 2(b) ifno ct can apply federal law

2(b): is there an over-riding federal interest justifying the application of federal law? (byrd test. so

far only definitely applies to 7th amdt) if yes apply fed law if no apply state law

7. PreclusionFSMH, 1249-1267- claim preclusion res judicata: preclusion of claims in suit that were or should have been decided in a

previous suit. for claim preclusion to operate, three elements must be present.

1: only judgments that are final, valid, and on the merits have preclusive effect 2: the parties in the subsequent action must be identical to those in the first 3: the claim in the second suit must involve matters properly considered included in the

first action

- RUSH - woman sued for neglignce in municipal ct and won $100. same woman also brought the actioninto the ct of common pleas. the 2d was precluded. claim preclusion the act constituted but one tort. a single tort can be the basis of but one action

this is necessary to prevent multiplicity of suits, burdensome expense, delays to plaintiff,

and vexatious litigation note there is a minority rule that separates bodily harm from property harm

exception: indemnity can be a separate suit- where a decision rests on two or more grounds, none can be regarded as dicta. - the tranactional test is the most commonly used test to determine the preclusive effect of a prior

judgement the preclusive effect of a prior judgement extends to all rights the original P had with respect to

all or any part of the transaction, or series of connected transactions, out of which the ariginal

action arose what factual grouping constitutes a transatction is to be determined pragmatically,

considering whether the dacts are related in time, space, origin, motivation, or whether

they forma convenient trial unit. this test is flexible. argue it.

- a party may waive the benefits of preclusion by failing to raise it as an affirmative defense- MATTHEWS, P sued employers and then attempted to sue the employees in a second suit.

ct concludes same factual circumstances. precluded

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respondeat superior satisfied the same party requirement- issue preclusion collateral estoppel: an issue of fact or law actually litigated and resolved by a final

judgement.- res judicata serves vital public interests beyond any judges ad hoc determination of the equities before

him. it is a rule of fundamental and substantial justice.- JONES, creditor sued for may and june instalments, despite acceleration clause. preclusion prevented

the creditor from collecting on the rest of the note. same evidence supports both actions. there can only be one claim. so, if a contract is single and indivisible, it will give rise to only one claim

the ct could have looked at this differently, but didnt. oh well. in another similar case, the ct held that the acceleration clause applied only upon termination of

the lease, so that a second suit on those facts would not be barred - in general, if a party suffers further material breaches, after suing for breach, she will not be barred from

suing for damages not sought in the first suit. if the parties concieve their relationshop as a series of discrete transactions, a suit by the creditor

seeking to recover any one of the payments would not preclude following suits. if however, the

parties believe they have a single running account, the creditor would have to seek the entire

balance then due

FSMH, 1267-1270 (note 1)- defense preclusion

one category involves matters that were not advanced in the first action the other category involves matters that were adcanced in the first action but are not forclosed by

issue preclusion the third situation involves a secon action by the original plaintiff in which D seeks to raise

defenses that were equally available in the first action but were not advanced there - in MITCHELL P potato farmer used the same facts now as he did during his defense as a D. he did not

counter-claim but instead brought a second suit. where the facts are the same, and the issue was actually litigated, the second suit by a D will be

precluded a party against whom an action is brought has 2 modes of defending himself

he may allege speciofic breaches of the contract and rely on them as a defense but if he intends to claim more than which he is sued, he must bring it before the court

a party cant use the same defense first as a shield and then as a sword - state and fed have compulsory counterclaim rules

though when a party is brought in via cross-claim, it is not required that that party counter-

crossclaim

FSMH, 1272-1279-issue preclusion, used to be called collateral estoppel

-requirements for issue preclusion same issue valid final judgement on the merits the issue was actually litigated

is an issue actually litigated if it was included in the pleadings? this could cause parties to litigate every nuance

the determination of the issue was necessary to the cts judgement

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- CROMWELL held that where a second action between the same parties is based upon a different claim

or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue

upon which the verdict or judgment was rendered.

notice that the same party requirement is absent- if you cant tell which issue was used, it may not have a preclusive effect

there is a presumption against issue preclusion - issue preclusion exists between state and fed jurisdictions. - a person who is a complete stranger to the first action can never be bound by collateral estoppel

FSMH, 1281-1282- RIOS - in a suit between parties, a jury found both P and D negligent. that finding was asserted as res

judicata in another case. held that it is the judgment and not the conclusions of fact filed by a trial court

that constitutes estoppel. A finding of fact by a jury or court, which does not become the basis or one of

the grounds of the final judgment, is not conclusive against either party to the suit. though D won the case since P was also negligent, he had no opportunity to refute the jurys

finding of his own negligence. for this reason issue preclusion is not appropriate here

FSMH, 1284-1290- characterizing the issue

-MOSER - though collateral estoppel will not be given to pure findings of law, findings of a right distinctly

adjuged will be given collateral estoppel guy sues for pension, gets it, someone else sues for pension on same ground and doesnt get it,

1st guy sues to get the rest of his pension, but is denied because the original suit was a finding of

law and not subject to collateral estoppel held, that a fact, question, or right, distinctly adjudged cannot be disputed in a subsequent

action, even though the determination was reached upon an erroneous view or by an erroneous

application of the law- SUNNEN involved tax stuff, but basically, if there has been a signifiant change in legal principles, a

court may, as a discretionary matter, decline to apply collateral estoppel. This is especially appropriate

where the use of collateral estoppel would impose on one of the parties a significant disadvantage or

confer on him a significant benefit with respect to his competitors because th law changes so frequently in tax, there is a need to very narrowly define the issue.

usually it is defined in terms of the tax year. - reconciling SUNNEN and MOSER: taxes are not necessarily a right, and are different than the

competitve marketplace. repeated litigation in issues involving a public agency generally have significance beyond their

immediate impact- the EVERGREEN doctrine allows relitigation of an issue if it was not sufficiently forseeable at the time of

the intial action that the issue would arise in the context of a subsequent action this is to ensure that defeat in one suit does not entail results beyond all calculation by either

party a trivial controversy might bring utter disaster in its train

FSMH, 1305-1311-persons benefitted and persons bound by preclusion-traditional model: persons benefitted from a prior judgement only if they were also bound by it

this rule was called the rule of mutuality- BERNHARD signaled a decline in the mutuality doctrine

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only 3 questions are pertinent in deciding whether to allow collateral estoppel: was the issue decided in the prior adjudication identical with the one presented with the

action in question? was there a final judgement on the merits? was the party against whom the pleas is asserted a party or in privity with a party to the

prior adjudication? if the answer the the previous questions is all yes, then estoppel is to be allowed in spite

of the absence of mutuality- BLONGER-TONGUE - Due process requires that a party who did not have his day in court may not be

estopped from bringing evidence on an issue in a second action. Thus, the defendant may plead

collateral estoppel even though he had no relation to the parties in the first action. However, the plaintiff

may overcome the defense with an adequate showing that he was deprived of a fair opportunity in the

first trial due to lack of witnesses, or crucial evidence.- some cts have limited BERNARDs application so that it does not appear unjust, more importantly, some

cts have distinguiahed between offensive and defensive use of estoppel, allowing the latter but not the

former

FSMH, 1313-1321- PARKLANE two Ps sued a D over the same issue, the falsity of a proxy statement. once one P won ,

the other P attempted to use that verdict to collaterally estop D from relitigating the falsity issue. scotus

permitted this use of collateral estoppel even though it was nonmutual and offensive the ct acknowledged that offensive may sometimes be unfair insofar as it incentivizes a wait-and-

see approach by Ps and would punish a D by trivializing a case which had only small damages

and then subjecting him to much larger damages in the future the ct concluded that these difficulties mean that nonmutual offensive estoppel must be

assessed on a case by case basis D here claimed that this eliminated his right to a jury trial

ct said yes, but so do other things, and the right to a jury trial in civil matters isnt all that

important anyway- as a result of PARKLANE, cts apply a case by case analysis on determining whether to allow offensive

nonmutual estoppel alignment in the first suit

if the party sought to be bound was a D in the first suit, may sway against the use of

estoppel since he was less likely to have had a choice of forum or contest certain issues incentive to litigate

whether a person in the first suit had a reasonable incentive to litigate the issue fully in th

first suit discourging breakaway suits

preventing Ps from sitting out suits to gain a tactical advantage procedural opportunities

opportunities available in second suit that wwerent available in the first issue of law whether the issue is of law or merely of fact

where the issue is of law, the more flexible stare decisis applies, rather than

collateral estoppel gov is a party

nonmutual offensive estoppel is almost never allowed