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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:
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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.)
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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,)
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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.
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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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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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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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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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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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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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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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