I.

INTRODUCTION
1) Bensons Triangle of Power and the Procedure for Federal Civil Procedure
a) Without all three elements, plaintiffs complaint will be barred from Federal court.
b) The ultimate goal is to get into federal court.

Can the action be removed to Federal Court?

o Removal must be made within 30 days
o Under Diversity or FedQ
Is Venue Proper?
o If no, then motion to transfer.
Is there Personal Jurisdiction proper?
Was Notice proper?
Was Service proper?
Did the complaint state a claim?

Power of the Federal

Court
Personal
Subject
Jurisdiction
Matter
Jurisdiction

Notice

II. STANDING
1) A plaintiff may assert an issue in court when they have:
a) Article III of the Constitution requires a concrete particularized injury traceable to the challenged conduct that is
likely to be remedied by a favorable decision, or
b) The authorization to represent the interest. Hollingsworth v. Perry.
i) States Interest Need the authorization to represent the states rights. Once that authorization has been
removed, there is no longer authorization.
ii) Third Party Interest Individual legal rights must be asserted. Cannot assert claims on behalf of others
unless they too have suffered injury in fact.

III.REMOVAL 28 USC 1441, 1446 & 1447

1) Can a state court complaint be Removed to Federal Court?
a) (To remove, the Federal Court needs SMJ under Diversity or Federal Question)
2) 28 USC 1441 - Removal of a Civil Case
a) (a), Generally
i) Moving a lawsuit from state court to federal court.
(1) The suit is removed to the federal district court that embraces the place where the action is pending in
state court.
(a) I.e. NYS Supreme NY County SDNY. Once removed, the suit can be transferred to a different
district.
b) (b) Removal based on Diversity of Citizenship
i) Fake defendants are disregarded (obvi)
ii) All defendants that are properly joined and served must be completely diverse.
(1) Unanimity Rule If 3 s are named, and all reside outside the forum state, and only two s are properly
served, the two that are served can seek removal and it will be proper.
c) (c) Joinder
d) (d) Actions against foreign State
e) (e) Multiparty, Multi-forum Jurisdiction
f) (f) Derivative Removal Jurisdiction
3) 28 USC 1446 Procedure of Removal
a) (a) Notice of Removal Pursuant to Rule 11 (ethical standards)

i)

Filed with the district court containing a plain statement of the grounds for removal along with all process,
pleadings & orders.
b) (b) Requirements
i) (1) Notice of Removal must be filed within 30 days after receipt of complaint or summons if the complaint is
not required to be served.
ii) (2) Additional
(1) Solely for 1441(a) All properly served s must join in or consent to removal
(2) 30 days
(3) A later-served filing a notice of removal can be joined by an earlier-served even if they did not
previously initiate or consent to removal.
iii) An Amended complaint may create the basis for removal
c) Requirements for Removal Based on Diversity of Citizenship
i) If amended complaint gives basis for removal, removal is improper after 1 year of commencement of action
ii) Sum demanded is the amount in controversy made in good faith except that
(1) Non-monetary relief in complaint can be given dollar figure in notice
(a) State statute precludes demand for a specific sum or excessive amount demanded, AND
(2) If District court says the amount in controversy exceeds the amount specified.
iii) Amount in contro, cont.
4) Judge has a duty to check the SMJ, however SMJ cannot be waived.
a) Collateral Attack:
i) intentionally fails to answer complaint filed outside s home state. Default Judgment entered. then tries
to enforce DJ at a court within s home state. contests the DJ on
(1) Baldwin
b) Direct Attack:
i) specially appears in s state court to challenge personal jurisdiction

IV. SUBJECT MATTER JURISDICTION

DIVERSITY 28 USC 1332
1) Non-Diverse parties cannot consent to Federal Court Jurisdiction. (Removal 1441(b))
2) Diversity jurisdiction needs diversity from the parties + the amount in controversy to exceed $75,000.00
i) Complete Diversity All plaintiffs must be different citizens from all defendants. Strawbridge v. Curtiss
3) Citizenship
a) Of a Natural Person is determined by Domicile.
i) Domicile Residence with intent to remain.
(1) Mas v. Perry
(a) Marriage to a foreigner does not assume the domiciliary status of the foreign spouse.
(b) Domicile does not rest on whether or not there is intent to return to the state in which one is
domiciled, but rather intent rests on whether there is intent to remain.
ii) Natural Person Hypos
(1) US Citizen Living abroad
(a) Intent to remain abroad = US citizen with no state citizenship in US. No diversity, b/c outside the
statute
(2) Foreign citizen Living within US
(a)
(3)
b) Citizenship of a Corporation
i) State of Incorporation Randazzo v. Eagle-Picher Industries

(1) Principal place of business = Nerve Center manages, directs, controls, the business activity. Hertz v.
Friend
(a) The Hertz Corporation derives nearly 40% of its business from rentals in the California marketplace.
(i) CA not proper jurisdiction despite the states large contribution to revenue because the corporate
directors and business decisions took place in NJ and made that the nerve center.
1. Nerve Center Test is Fact based analysis
a. Objective indicia of the management or control of the company.
ii) Partnership/LLP
(1) The LLP is a citizen of state of which any partner is a citizen and there will be no diversity.
iii) Limited Liability Corporation/LLC Belleville Catering Co. v. Champaign Market Place
(1) For LLC, citizen of a state of which any general or limited partner is a citizen. (Same rules as LLP.)
4) Amount in Controversy
a) The amount in controversy is determined by the amount claimed by the plaintiff in good faithand jurisdiction
is not lost because a judgment of less than the jurisdictional amount is awarded.
i) A good-faith claim by a plaintiff in excess of $75,000 satisfies the amount in controversy requirement even if
the actual amount recovered may be less.
ii) Burden is on the challenger to show that as a matter of legal certaintyplaintiff cannot recover greater than
the amount in controversy.
(1) Good Faith
(a) Reasonableness Calculation
(2) Legal Certainty
(a) Are there any statutes or regulations that cap certain damages?
(b) As a matter of law plaintiff is entitled to damages and the claim is colorable (reasonable).
iii) Amount in Controversy = $75,000+ Burden on the challenger to prove as a matter of legal certainty that the
complaint cannot exceed the amount.
(1) St. Paul Indemnity
b) Aggregate claims against single only
i) Single v. Single
(1) Plaintiff can aggregate all her claims to meet the requirement even if the claims are unrelated legally or
transactionally.
ii) Multiple with single claim
(1) Generally, aggregation is not allowed when more than one plaintiff or more than one defendant.
(a) However, multiple defendants is ok only when jointly & severally liable.
5) For Exam:
a) A Federal Court has subject matter jurisdiction b jurisdiction and is permitted to hear causes of action generally
reserved for courts of general jurisdiction, when the parties are completely diverse from one another and the
statutory amount in controversy has been met. Complete diversity means that all plaintiffs are citizens of states
different than all defendants. Common citizenship between even just one plaintiff and one defendant in multiparty actions will break complete diversity. The amount in controversy must be a good faith claim in excess
$75,000 USD and is subject to a reasonableness calculation. The burden will be on the challenger to show as a
matter of legal certainty, the claim(s) is(are) incapable of exceeding that amount. (Aggregation of the claims is
appropriate in certain circumstances such as a single v. single , if it multiple s are jointly and severally
liable.)

FEDERAL QUESTION 1331

1) The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States 28 U.S.C. 1331
2) Arising Under A Federal Question suit arises under the federal law or Constitution only when the plaintiffs
statement of his own cause of action shows that it is based upon the constitution or those laws.

a) A suit arises under the law that creates the cause of action, and the claims must be part of a well-pleaded
complaint.
i) Creation Test
(1) American Well Works v. Layne & Bower No Fed. Q Jurisdiction.
(a) Plaintiff sues Defendant for trade libel law. Plaintiff alleged Defendant wrongfully accused the
plaintiff of infringing Defendants patents.
(i) The cause of action is libel regarding a federal issue (patent infringement.)
1. HELD: The case did not arise under federal law. A suit arises under the law that
creates the cause of action. CREATION TEST
2. Because the claim for trade libel was based upon state law, there was no federal question
jurisdiction.
ii) Well Pleaded Complaint: A complaint that sets forth only a claim unadorned by anticipated defenses or other
extraneous material. If the complaint contains material beyond that which is necessary to the claim, the court
will look to only what would have been included if the complaint had been well pled. That is, look to the
elements of the claim itself.
(1) It is not merely enough to allege that an anticipated defense will invalidate the cause of action through
some provision of the Constitution or Federal Law. Louisville & Nashville Railroad Co. v. Mottley (RR
free pass for life K case)
(a) The statute that prohibits the conduct
(b) For a Contract: WPC includes, 1) there was a K; 2) Breach; 3) satisfied K conditions (limited.)
(c) For Torts: WPC includes 1) there was a Duty; 2) Breach; 3) Causation; 4) Damages
(d) Counterclaims arising under Federal law do not invoke Federal Question Jurisdiction.
(e) Declaratory Judgment Actions.
(i) Declaratory Judgment actions are proper in Federal court under the Federal Declaratory Judgment
Act only if the cause of action is supported by an independent basis of jurisdiction, such as
diversity or federal question. Skelly Oil Co. v. Phillips Petroleum.
(ii) Application of WPC rule & Dec. Judgment
1. Federal Court will hear a Dec. Judgment action only if the coercive action that would have
been necessary, had the Dec. Judgment not been sought, might have been so brought.
a. Basically Dec. Judgment of a patents validity invokes Federal Jurisdiction bc the
patent holder could just have easily sought damages or an injunction for the patents
infringement.
iii) Federal Law Central to A State Law Claim
(1) Is Federal Law sufficiently central to the asserted state law claim within a well-pleaded complaint?
(a) The federal issues must be part of the WPC, but must also be a sufficiently central part of the dispute
to justify jurisdiction in causes of action over state law claims.
(b) In other words, the cause of action must come from a federal law. A tort or breach of contract arises
from state law, and although may connect to a Federal issue, it is not the basis for the claim.
(i) Smith v. Kansas City Title & Trust Yes, Fed. Q Jurisdiction.
1. brings suit seeking to enjoin trust company from using corporate funds to invest in bonds
issued under the Federal Farm Loan Act.
2. asserted that such an investment was illegal according to Missouri baking law because the
FFLA was unconstitutional.
a. The cause of action arose from the violation Missouri banking laws and that FFLA was
unconstitutional
i. HELD: Where it appears that the plaintiffs right to relief depends upon the
construction or application of the Constitution or laws of the US, District Courts have
jurisdiction.
(ii) Moore v. Chesapeake & Ohio Ry. No Fed. Q Jurisdiction.

1. sued under a state employers liability act stating that contributory negligence could not bar
an employees recovery if the employer had violated a statute enacted for the safety of the
employees.
2. One of the statutes was the Federal Safety Appliance Act
a. FOLLOWS CREATION TEST American Well Works line
(iii) Merrel Dow v. Thompson No Fed. Q Jurisdiction.
1. s sue over birth defects from ingestion of the drug Bendectin. One is claim was negligence
per se based on the assertion the drug was misbranded and violated the Federal Food, Drug &
Cosmetic Act.
a. 5-4 decision in favor of NO Fed. Q Jurisdiction.
i. Majority relied heavily that the Act did not create a private cause of action.
ii. (Smith is still good law and a state-created claim could invoke Fed. Q jurisdiction if
the federal interest were sufficiently substantial.)
iii. HELD: Defendants may not deviate from assumption that cause of action derives
from the state level unless it is proven very obvious that it does not.
iv. FOLLOWS CREATION TEST American Well Works line
v. Obviousness is determined by looking to see how express the language within the
statute is to indicate the legislatures intended purpose.
(iv) Grable & Sons Metal Products, Inc. v Darue Engineering Yes, Fed. Q Jurisdiction.
1. Permits claims that dont follow the creation test to be tried in federal court if the court
decides that the state law claim necessarily raises a stated federal issue, is actually disputed
and substantial, which a federal forum may entertain without disturbing any congressionally
approved balance of federal and state judicial responsibilities.
2. Four Factors:
a. State law claim necessarily raises a state federal issue, AND
b. Federal Issue is actually disputed and is substantial, AND
c. Federal court may entertain the claim without disturbing any congressionally approved
balance between federal and state responsibilities, AND
d. And the Federal is particular suited to hear the claim
3) Basically
a) SMJ is granted for 1331when:
i) Creation test The suit arises under a federal law that creates the cause of action, AND
ii) Complaint is Well Pleaded plaintiffs claims allege the violation of a federal law unadorned by extraneous
material, such as anticipatory defenses, or
iii) A Federal Law is a Substantial Issue to a State Law Claim.
(1) A court may exercise Fed Q SMJ for claims that dont follow the creation test if it is necessary to prove a
substantial issue or ingredient of federal law in order to establish of cause of action from a state law
claim.
(a) Grable Test
(i) Raises a federal issue
(ii) The Federal Issue is actually disputed and substantial
(iii) The Federal forum hearing the claims wont disturb any legislatively imposed balance between
state and federal judicial responsibilities
(iv) The Federal forum has expertise in hearing the matter.
4) For Exams:
a) Under 28 U.S.C 1331, federal courts have subject matter jurisdiction for civil actions arising under the
Constitution, law and treaties of the US. A suit presents a federal question and passes the creation test by alleging
claims stemming from a federal law that creates the cause of action. In addition, the complaint must be well
pleaded, meaning that the claims must arise solely from plaintiffs own cause of action. As held in Mottley, a
federal issue does not exist merely from a plaintiffs anticipation that a defendant's possible defense will be a

reliance on a federal statute. Rather, the court will disregard any extraneous material within the complaint, and the
determination of a federal question will be based solely on the elements needed to make the complaint well
pleaded.
i) Application on the Creation test and WPC Rule.
b) However, as determined in Grable, claims that dont follow the creation test may tried in federal court if a federal
issue is an essential ingredient to the claim, and also part of the WPC. Several factors used to decide if the federal
issue is substantially central to the claim are if the claim:
i) necessarily raises a stated federal issue,
ii) the federal issue is actually disputed and substantial,
iii) the federal forum hearing the claims wont disturb any congressionally approved balance of federal and state
judicial responsibilities, and
iv) the federal court has any expertise necessary to resolve the dispute.

V. NOTICE
1) FRCP Rule 4
a) Service
i) 4(c)(1) In compliance with 4(m)(1) Service within 120 days otherwise dismissed without prejudice. can
show good cause for extension
ii) 4(c)(2) By Whom?
(1) Person 18 + and not a party to the action must effect service on defendant.
iii) 4(m) Time limit for Service: A defendant must be served within 120 days after the complaint is filed.
(1) After 120 days, the complaint can be dismissed without prejudice by the court or on motion.
(2) If good cause is shown, court must extend time for service to an appropriate period.
b) Waiver
i) 4(d)(1) Request for Waiver is under a duty to avoid unnecessary costs. can request defendant waive
service of a summons. See A-G for info to be included in request form (at least 30 days to respond to request,
60 if outside the courts jurisdiction.)
ii) 4(d)(2) Failure to Waive on the hook for expenses if fails without good cause to return a waiver request
iii) 4(d)(3) Time to Answer after Waiver
(1) 60 days to answer after sending in waiver, or 90 days if outside the US
iv) 4(d)(4) Results of Filing a Waiver
(1) Filing of a waiver eliminates need to prove service of summons. Waiver implies a summons and
complaint had been served at the time of filing the waiver
v) 4(d)(5) Jurisdiction & Venue
(1) Waiving service of a summons does not waive any objection to PJ or Venue
c) Serving an Individual within a Federal District Service can be performed in Federal Court by:
i) 4(e)(1) Following Courts of General Jurisdiction (State Court) rules, or
ii) 4(e)(2) either:
(1) Personal delivery of complaint and summons to the individual
(2) Leaving a copy of the complaint & summons at the individuals dwelling or usual place of abode with
someone of suitable age and discretion (Natl Dev. Co. v. Triad)
(3) Delivering a copy of the complaint & summons to an agent authorized by appointment or by law to
receive service.
d) Serving a Corporation (not being covered in class.)
i) Service should be completed at the corporate HQ, or sometimes, the states incorporation secretary can act as
an agent for the corporation to accept service.
2) FRCP Rule 12(b)(4)(5)
a) (b)(4) Insufficient Process

b) (b)(5) Insufficient Service of Process

3) Constitutional Requirement
a) Mullane
i) Central Bank Petitioned for a judicial settlement of a trust and provided notice by publication to everyone in
the trust.
(1) Notice by publication fails to comply with due process where the names and addresses of the parties are
known.
(2) Notice must be reasonably calculated under all the circumstances to apprise interested parties of the
pendency of the litigation.
(a) Basically the best notice practical under the circumstances.
4) Statutory Requirement
a) Natl Dev. Co. v Triad Holding Corp.
i) What is a dwelling or usual place of abode sufficient for notice & service under FRCP 4(e)(2)?
(1) There is nothing startling in the conclusion that a person can have two or more dwelling houses or usual
places of abode, provided each contains sufficient indicia or permanence.
(a) Khashoggi owned an furnished the apt., spent considerable money remodeling it, listed in a bail
application
(b) Khashoggi was living at the apt at the time service was made and, under Mullane, could reasonably
[be] calculated to provide actual notice of the action.

VI.

PERSONAL JURISDICTION

FCRP RULE 4(K)1

1) Federal Courts have no more authority to assert PJ than the state in which it sits. In other words, if a state court has
personal jurisdiction, a federal court located in the same state will as well.
2) [A] federal court has personal jurisdiction over an out of state defendant only if the state in which that federal court
sits would have personal jurisdiction. Freer. P 245

FCRP RULE 4(K)2

1) When only on Fed Q SMJ, PJ for contacts within the entire country can provide basis for PJ for foreign residents.

GENERAL JURISDICTION
NY LONG ARM STATUTE 301 - JURISDICTION

OVER PERSONS, PROPERTY OR

STATUS
A Court my exercise such jurisdiction over persons, property or status as might have been exercised heretofore.
1) Doing Business Test
a) Under 301, a non-domiciliary is subject to NY personal jurisdiction when engaged in a continuous and
systematic course of doing business so as to warrant a finding of presence in NY. Doing Business in NY means to
conduct business not occasionally or casually, but with a fair measure of permanence & continuity. Beacon.
i) Sending a cease and desist letter to Beacon and selling an unspecified number of mail-order products are
insufficient to satisfy 301. At most it was occasional.
(1) Solicitation needs to be substantial and carried on with a considerable measure of continuity and from a
permanent locale within the state
2) Heretofore also allows for general jurisdiction under the 4 traditional methods.
a) Consent
i) Express voluntary submission to the power of the court by answering the complaint

ii) Implied
(1) Hess v. Pawloski Court upholds the Massachusetts statute that PJ can be acquired by implied consent
by driving through the state. MVA registrar is appointed as agent to accept service.
b) Residence
c) Presence & Service (Burnhan)
i) Corporations cannot be tagged and served because corporations
d) Quasi In rem
i) Pennoyer
ii) Schaffer

SPECIFIC JURISDICTION
NY LONG ARM STATUTE 302 - PERSONAL JURISDICTION

BY ACTS OF NON-

DOMICILARIES
(a) Acts which are the basis of Jurisdiction. As to a cause of action arising from any of the acts enumerated in this
section, a court my exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who
in person or through an agent:
1. Transacts any business within the state or contracts anywhere to supply goods or services in the state: or
2. Commits a tortious act within the state, except as to a cause of action for defamation of character arising
from the state; or
3. Commits a tortious act without the state causing injury to person or property within the state, except as to a
cause of action for defamation of character arising from the act, if
(i) Regularly does or solicits business or engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) Expects or should reasonably expect the act to have consequences in the state and derives substantial
revenue from interstate or international commerce; or
4. Owns, uses or possesses any real property situated within the state.

302

APPLICATION
1) 302(a)(1) - Transacts any business within the state or contracts anywhere to supply goods or services in the state: or
a) Opticare: Nexus between the cause of action and doing business in the state
i) Cause of action must be related to the business the non-domiciliary conducts in the state.
ii) First Requirement: Transaction of business within the state.
(1) A single act may constitute a transaction within the ambit of the long-arm statuteso long as the s
activities were purposeful and there is a substantial relationship between the transaction and the claim.
(a) As in Opticare, the execution of an employment agreement, regardless of where it was signed, was
sufficient to create a substantial relationship. Though they sold products outside of NY, their activities
affected commerce in NY.
(b) Similarly, in Parke purchasing paintings by telephone at auction and not paying for them was enough
to be considered engaging in purposeful activity
(c) In Olympus, generated a stream of local commerce from which he earned his livelihood from
attending trade shows in NY, and generating sales between Olympus NY head quarters and Ciscos
customers outside the state.
iii) Second Requirement: The cause of action sued upon must arise out of the transaction.
(1) Nexus = connection. Basically Is there a connection?
b) Beacon
i) The sale of goods through the mail may be enough to satisfy 302(a)(1), but there is no sufficient nexus
between the shipment of goods and Beacons cause of action.
(1) The foreign defendants transaction of business in NY must bear a substantial relationship to the
transaction out of which the instant cause of action arose.

(a) 302 is typically invoked for a cause of action against a defendant who breaches a contract with
plaintiff.
(i) The cease and desist letter led to the creation of controversy out of which the action started, but
the action does not arise from the letter. The letter did not invoke the benefits and protections of
NY law.
2) 302(a)(2) Tortious action within the state
a) Factual analysis
3) 302(a)(3) Tortious action without the state causing injury inside the state, AND
a) 302(a)(3)(i) Is there a substantial amount of revenue received from commerce within the state? Factual analysis.
i) Look to the facts to see what could be alleged in complaint to support evidence of substantial revenue.
b) 302(a)(3)(ii) Should one expect or reasonably expect the acts to have consequences in the state? Factual analysis
i) Were the effects felt? Keeton v. Hustler articulating the Effects Test.
4) 302(a)(4) Factual analysis of facts regarding owning, using or possession any real property within the state

IF THERES NOTHING THAT CAN BE USED ABOVE, THERE IS NO

JURISDICTION. IF THE STATUTE APPEARS TO HAVE JURSIDCITION, ONTO
THE CONST. ANALYSIS
CONSTITUTIONAL ANALYSIS
1) Traditional Forms (No need to bring back up if already discussed under statutory analysis.)
a) The traditional bases for PJ that comply with Due Process are presence within the state (Pennoyer affd in
Burnham), Residency status (domicile + intent to remain), and consent, both express and implied (Hess).
b) If the defendant owns property in the state and the property is the subject of the cause of action, the state has
Constitutional grounds of PJ. In rem action.
c) Attaching property owned by the defendant to the summons when the property isnt related to the cause of action
was sufficient to assert PJ. (Pennoyer). Modern view, the property must now be related in part to the action
(Schaffer).
2) Minimum Contacts Are the quality and nature of the contacts with the forum state sufficient such that exercising
jurisdiction over a non-resident would not offend traditional notions of fair play and substantial justice? Intl Shoe.
a) Can the court exercise jurisdiction over non-residents within the limits of the constitution?
b) The supreme court has given a series of tests:
i) Rule statement for the test as identified in Intl Shoe.
c) Rules and Application
i) Box I Rule A court always has GENERAL JURISDICTION when a cause of action arises from
defendants contacts within the state and defendant has continuous and systematic activities within the state.
(1) Presence in the state in this sense has never been doubted when the activities of the corporation there
have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no
consent to be sued or authorization to an agent to accept service of process has been given. Intl Shoe.
(a) Intl Shoe Yes, General Jurisdiction
(i) 13 employees selling products of the company over a number of years, yet with no authority to
make a sale or accept money. Company failed to pay taxes on the sales from those employees
actions.
(2) Continuous & Systematic Contacts:
(a) Individuals Pretty much, residence
(b) Business Intl Shoe Employees, offices, etc

ii) Box II Rule A court may have GENERAL JURISDICTION when the cause of action arises outside
defendants contacts within the state only if defendant has continuous and systematic activities within the
state.
(1) [T]here have been instances in which the continuous corporate operations within a state were thought so
substantial and of such a nature as to justify suit against it on causes of action arising from dealings
entirely distinct from those activities. Intl Shoe.
(2) Is it reasonable to anticipate litigation in this jurisdiction in connection with this tortious act/contact
breach? Focus on the quality of the contacts and the cause of action. What was s intent?
(a) Bryant v. Finnish National Airlines Yes, General Jurisdiction
(i) Plaintiff was hurt at Paris airport. Airline maintained small office in NY with seven employees.
Made no sales but handled publicity work.
(b) Perkins v. Benguet Consolidate Mining Company Yes, General Jurisdiction
(i) The daily management of a foreign corporation by its president residing in Ohio is sufficiently
substantial and of such a nature to permit the state to entertain a cause of action, even when it
arises outside the state.
1. Important to note, the company was RUN in Ohio during the period the foreign corp. was
occupied by the Japanese. RUN means, drew paycheck, maintained bank accounts, hosted
meetings with the companys directors)
iii) Box III Rule A court may have SPECIFIC JURISDICTION when the cause of action arises from
defendants contacts within the state and the defendant has isolated or casual activities with the state.
(1) Finally, although the commission of some single or occasional acts of the corporate agent in a state
sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the
state authority to enforce itother such acts, because of their nature and quality and the circumstances
of their commission, may be deemed sufficient to render the corporation liable to suit. Intl Shoe.
(2) Is it reasonable to anticipate litigation in this jurisdiction in connection with this tortious act/contact
breach? Focus on the quality of the contacts and the cause of action. What was s intent?
(a) Smyth v. Twin State Yes, Specific Jurisdiction
(i) , a MA Corp., installed one roof in Vermont. Injury caused by defective roof installation in VT.
(b) McGee Yes, Specific Jurisdiction. (The far end of what it is enough to consider SJ)
(i) Defendant (Texas life insurance company) purchased an Arizona life insurance company with one
policyholder in California; single solicitation of reinsurance.
1. Rationale: Life insurance company made a voluntary contractual relationship with grieving
mother of California resident
(c) Gray v. American Radiator Yes, Specific Jurisdiction (IL Sup. Ct., NOT SCOTUS!!!)
(i) , a radiator valve manufacturer in Ohio, sold to valves to a Pennsylvania company, and caused
explosion in Illinois No evidence dealt directly with Illinois.
1. Rationale: Defendant sold its products for use in other states; indirect benefit sufficient to
hold it answerable.
a. Basically If you make money of the citizens of a state, then youll have to report to the
court.
(d) Burger King Yes, Specific Jurisdiction
(i) Franchise contract with Burger King, a Florida corporation with its headquarters in Florida (20
years, $1 Million); is a sophisticated accountant
1. Factually, events in both states, but at least some elements of the cause of action (damage)
arose within the forum state (Florida)
(e) Hanson v. Denkla No Jurisdiction, or No Specific Jurisdiction
(i) (Delaware bank) was a trustee of a trust. The trust was created in Pennsylvania, but moved to
Florida by its creator

1. Reasoning: Unilateral third-party act; cant find that defendants purposefully availed
themselves of benefits of doing business in Florida.
(f) World-Wide VW No Specific Jurisdiction
(i) WWVW is a local VW dealership in upstate NY. Sold an Audi involved in a crash in OK.
Passengers injured and claimed product liability and sought to bring dealership into OK court.
(ii) The foreseeability 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 the defendants conduct and connection
with the forum state are such that he should reasonably anticipate being haled into court there.
(iii) Basically It is foreseeable for a car to wind up in a state otherwise than where it was sold.
However the sale of the car did not serve the OK market because the car was sold in NY and was
not directed to derive a benefit, financial or otherwise, from OK residents. Therefore would be
unreasonable to subject the seller to a suit if the car was the source of injury.
(g) Asahi No Specific Jurisdiction
(i) Brennans theory Stream of Commerce
1. There is a contact with the forum state when a product is placed into the stream of commerce
with a reasonable anticipation it would get to the forum state.
(ii) OConnors Theory Stream of Commerce PLUS
1. There is a contact with the forum state when there is a reasonable anticipation that your
product will get to the state PLUS an intent to serve the state
(iii) Burdens:
1. Burden on the Defendant
2. The interests of the forum State
3. The plaintiffs interest in obtaining relief
4. The interstate judicial systems interest in obtaining the most efficient resolution or
controversies
5. The shared interest of the several State in furthering fundamental substantive social policies
(h) J. McIntyre No Specific Jurisdiction
(i) s fingers were cut off from a machine that defendant manufactured abroad. Defendant has
distributor in US.
1. The existence of one distributor that places goods into the stream of commerce with the
expectation they will be purchased is not enough to satisfy jurisdiction.
iv) Box IV Rule A court NEVER HAS JURISDICTION when the cause of action arises outside defendants
contacts within the state and the defendant has isolated or casual activities within the state.
(1) Conversely it has been generally recognized that the casual presence of the corporate agent or even his
conduct of single or isolated items of contacts with a state in the corporations behalf are not enough to
subject it to suit on causes of action unconnected with the activities there. Intl Shoe.
(a) Fisher Governor Co. No Jurisdiction
(i) Gas explosion in Idaho caused by defect manufacturing at IL factory. Neither the explosion nor
the manufacturing took place in California. There was one employee in California.
(b) Ratliff v. Cooper No Jurisdiction
(i) Solicitation of mail orders and promotional agents in South Carolina. Drugs purchased and
consumed in other states led to birth defect.
(c) Helicopteros No Jurisdiction
(i) Helicopter crash in Peruvian mountains. negotiated and bought $9M helicopter in Texas,
trained its pilots in Texas. Sent payments by check through Texas.
(d) Goodyear Dunlop No Jurisdiction
(i) Wrongful death suit. 2 boys die in bus accident near Paris. sues Ohio Company and
subsidiaries. Goodyear, Goodyear Turkey, Luxembourg, France, etc.)
(e) Daimler No Jurisdiction

(i) At Home Test

(ii) California follows the constitutional basis
d) Cause of Action
i) Arises from Contacts or Separate from Contacts
(1) Referring to the analysis done under the long arm statute, the cause of Action does/does not arise from
defendants contacts within the state.
(2) If no long arm,
e) Specific/General Jurisdiction
i) Because Personal Jurisdiction can only be gained through General or Specific Jurisdiction, and in light of the
[continuous & systematic/casual, sporadic or isolated] contacts, it appears the court has General/Specific
Jurisdiction over Defendant.
f) Reasonableness and Fairness Under Asahi & WVW v. Woodson.
i) Last, if Specific/General jurisdiction is found, jurisdiction is still subject to reasonableness/fairness.
ii) Burdens and Interests factors
(1) Plaintiffs Interests
(2) Defendants interests
(3) Judicial Interest
(a) Efficacy of litigation within the forum state
(4) Interest in State/Public Policy
(5) Multi-state shared interest In Substantive Policy
3) For Exams
a) A finding of statutory long arm jurisdiction must still be within the bounds of the constitution. To determine if the
exercise of jurisdiction is constitutional, we ask if the quality and nature of the contacts with the forum state are
sufficient such that the exercise of jurisdiction would not offend traditional notions of fair play and substantial
justice. A court [may/always/never] have [specific/general] jurisdiction over a defendant when the cause of action
[arises/does not arise] from the defendants contacts with the forum state and the defendant has [continuous and
systematic/isolated, sporadic or casual] activities with the state. This exercise of jurisdiction must be such that it
would be foreseeable for the defendant to anticipate being haled into court, yet is still subject to burdens and
interests factors such as the defendants burden to litigate, the states interest in protecting its residence, the
judicial systems ability to effectively hear the case, and the plaintiffs interest in the case.
i) Here, the defendants contacts with the state are [BLANK]. This qualifies as [continuous and
systematic/isolated or casual] because, they are the same quality and nature as compared to [CASE
COMPARISON] where
ii) The cause of action [arises/does not arise] out of defendants contacts with the forum state because, the
[tortious act, contract breach, property] [occurred/is located] [within/outside] the forum state
iii) Based on this, there is [specific/general/no] jurisdiction. This exercise of jurisdiction is foreseeable/not
foreseeable] because it is [reasonable/unreasonable] for the defendant to anticipate being haled into court in
light of the burdens and interest on the parties.
(1) The court must weigh and balance the reasonableness factors
(a) Interest of the plaintiff
(b) Burden on the defendant
(c) States interest
(d) Judiciarys ability to efficiently hear the case
(e) Interstate bullshit.

VII. VENUE
1) Is the current district court proper?

2) 28 USC 1391 Venue, Generally a civil action may be brought in:

a) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is
located;
b) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated; or
i) Basically, the test is: Did a substantial portion of the cause of action arise within the forum?
(1) Protect defendants against unfair or inconvenient trial locations
(2) Location of evidence & witnesses
(3) Federal Judges familiarity with the statute in question
(4) s convenience is not a relevant factor
(5) It is rare for there to be more than one district in which a claim can be said to arise.
c) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district
in which any defendant is subject to the courts personal jurisdiction with respect to such action.

VIII. PLEADINGS & STANDARDS, MOTIONS,

COUNTERCLAIMS, ANSWERS & REPLIES
PLEADINGS & STANDARDS
1) Rule 8a
a) A pleading requires:
i) Short & plain statement of the courts jurisdiction
ii) Short & plain statement of the claim
iii) Prayer for relief
b) Short and Plain statement of the claim
i) Legal Sufficiency
(1) If all the facts within the complaint are assumed to be true, will the law provide a legal remedy?
(a) If the answer is yes, then litigation can continue.
ii) Factual Sufficiency
(1) Notice Pleading Federal pleading rules generally require only that a pleader put the other side on notice
of the claim being asserted; detailed assertions of facts of the underlying claim are not required.
(a) Rule 8(a) requires the complaint to contain a short plain statement of the claim showing plaintiffs
entitlement to relief. Dioguardi.
(b) However Conley clarifies factual sufficiency by saying that the function of the complaint is to give
the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.
(c) The factual allegations of a complaint must cover all elements of the claim. If there is a claim arising
form a contract, then all elements of the K claim must be pled with factual sufficiency.
(i) In how much detail must they be pled
(2) Plausibility Standard
(a) Twombly Retires the Conely no-set-of-facts requirement.
(i) The standard calls for enough fact to raise a reasonable expectation that discovery will reveal
evidence of the claim. It does not require a heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its face.
1. Originally this case was just about antitrust claims, however
(b) Iqbal Reaffirms Twombly and extends the standard to all civil cases in Federal Court. Two
principles:
(i) Court must still accept as true all allegations contained in the complaint, but that tenet doesnt
apply to legal conclusion.

(ii) Only a complaint that states a plausible claim for relief will survive a motion to dismiss and
determining whether a complaint states plausible claim for relief will be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.
1. To prevail on that theory, the complaint must contain facts plausibly showing that petitioners
purposefully adopted a policy of classifying post-Sept 11 detainees as of high interest
because of their race, religion or national origin. This the complaint fails to do.
(iii) Simplified version of Twombly & Iqbal Not a heightened pleading standard, but rather a
sufficient articulation of the plausibility of the claim.
(iv) Swanson CA7 case.
(v) Plausibility standard is not a probability requirement
(vi) The plaintiff must give enough details about the subject matter of the case to present a story that
holds together.
1. Could these things have happened, not, did they happen?
2. (Discovery is expensive. Perhaps one reason to have the plausibility standard is to ensure
discovery and litigation is reserved for those who need it.)
c) Basically:
i) Does the complaint conform with Rule 8(a) (short and plain statement of the courts jurisdiction, short and
plain statement of the claim, and prayer for relief), and
(1) If yes, than litigation can continue.
ii) If all the facts within the complaint are assumed to be true, will the law provide a legal remedy?
(1) If yes, litigation can continue.
iii) Does the complaint give fair notice to the defendant about what it is she is being sued for? All elements of the
claim present?
(1) If yes, litigation can continue.

HEIGHTENED PLEADING STANDARD Rule 9

1) A heightened pleading standard is not imposed on civil rights liabilities under 42 U.S.C. 1983. Leatherman
a) Reaffirms the Conley notice pleading standard. Still good law.
b) However, Rule 9(b) does impose a particularity requirement in two specific instances. It provides that in all
averments of fraud or mistake, the circumstance constituting fraud or mistake shall be stated with particularity
i) A party must state with particularity the circumstances constituting fraud and mistake
(1) There is a higher burden of proof with fraud and mistake (clear and convincing evidence) so must plead
with more facts and particularity because claims like fraud are so stigmatizing
(2) Special Damages: must be specifically stated
2) Pleading Inconsistent Facts and Alternative Theories - Rule 8(d)(3)
a) A party may set out as many separate claims or defenses it may have regardless of consistency.
i) It is permissible to plead inconsistent facts
(1) E.g.: a complaint can plead a cause of action for intentional infliction of emotional distress, and at the
same time, plead a C/A for Negligent infliction of emotional distress.

PRE-ANSWER MOTIONS Rule 12

1) Pre-Answer Motions
a) Prior to filing an answer, the defendant may, if he chooses, file a motion and raise any or all of the following
defenses Rule 12(B):
i) Rule 12(B)(1) Lack of SMJ
(1) Can be raised at anytime, even on appeal.
ii) Rule 12(b)(2) Lack of PJ
(1) Must raise at the time the first motion or answer is filed whichever is first. Failure to do so is a waiver.
iii) Rule 12(b)(3) Improper Venue
(1) Must raise at the time the first motion or answer is filed whichever is first. Failure to do so is a waiver.

iv) Rule 12(b)(4) Insufficient process

(1) Must raise at the time the first motion or answer is filed whichever is first. Failure to do so is a waiver.
v) Rule 12(b)(5) Insufficient service of process
(1) Must raise at the time the first motion or answer is filed whichever is first. Failure to do so is a waiver.
vi) Rule 12(b)(6) Failure to state a claim upon which relief can be granted (i.e. even if plaintiffs allegation
are true, relief could not be granted)
(1) 12(b)(6) can be brought at anytime prior to trial.
vii) Rule 12(b)(7) Failure to join a party needed for just adjudication
(1) 12(b)(7) can be brought at anytime prior to trial.

ANSWER
1) Must contain denials, or admissions and any affirmative defenses
a) The answer must contain a specific denial or admission of each averment (allegation of fact or claim in the
pleading) or general denial with specific admissions to certain averments. Rule 8(b)
b) In other words when an allegation had been asserted against them, and a responsive pleading is required, pleasers
have only three options
i) Admit
ii) Deny
iii) State lack of knowledge or information necessary to admit or deny
(1) Where defendant is without knowledge or information sufficient to for a belief, a statement to that effect
constitutes a denial
c) A failure to deny constitutes an admission
d) The answer also must contain any affirmative defenses. Rule 8(c)
i) E.g. contributory negligence, duress, failure of consideration, fraud, illegality, res judicata, statute of frauds,
statute of limitations, waiver, estoppel, etc.
2) Time
a) If NO Rule 12 motion is made, a defendant who was formally served with a summons and complaint must serve
and answer with in 21 days after service
b) If Rule 12 motion is made, and the court doesnt fix another time, responsive pleading (answer) must be served
within 14 days of courts denial or postponement of the motion
c) A defendant to whom complaint was mailed and who waived formal service must answer within 60 days after
request for wavier has been mailed
3) Effect of Failure to Answer
a) Default Judgment

COUNTERCLAIMS
1) Compulsory Counterclaim - Rule 13(a): If a counterclaim arises out of the same transaction or occurrence as one of
the plaintiffs claims, it is a compulsory counterclaim and must be pleaded or it will be barred.
a) Must be asserted in the pleading or they are waived.
b) Asserted by pleading in the answer to a complaint or a reply to a previously asserted counterclaim.
c) Must satisfy SMJ.
i) Because compulsory counterclaims must arise from the same transaction or occurrence as the plaintiffs
claim, ones that do not satisfy federal question or diversity nevertheless usually meet the requirements for
supplemental jurisdiction. See 28 U.S.C. 1367, at sec. xiii.
2) Permissive Counterclaims - Rule 13(b): any other counterclaim is permissive and may be asserted even though there
is no connection at all between it an the plaintiffs claim.
a) Must satisfy requirements of SMJ.
i) Because they do not arise out of same transaction or occurrence, supplemental jurisdiction is trickymust be
able to get into federal court on its own two feet meaning diversity or federal question
ii) 28 U.S.C. 1367: If the original complaint is based solely on diversity jurisdiction, a permissive counter
claim must satisfy either diversity or federal question on its own.
b) Failure to assert in pleadings: does not bar permissible counter claim and it may be asserted at a later date.

REPLIES - Rule 7
1) A reply by the plaintiff to defendants answer is required only if court orders plaintiff to file a reply

a) Plaintiff need not replay to affirmative defenses and is deemed to deny the allegation Rule 12

AMENDMENT AND SUPPLEMENTAL PLEADING - RULE 15

1) A pleading may be amended once within 21 days of serving it
2) If pleading is a complaint (one to which an answer if required) it may be amended with in 21 days of
a) Service of the answer or
b) Service of 12(b) motion
c) Which ever is first
3) Other amendments: thereafter, a pleading may be amended only by written consent of adverse party or by leave of
court upon motion
4) Unless the court orders otherwise, any required response to an amended pleasing must be made within time reaming
for responding to the original pleading or within 14 days of the amended pleading, which ever is later
5) Granting Motions to Amend after 21days
a) Only with opposing parties consent. If consent is given there is no need to get courts permission
b) Leave of Court: if amendment cant be filed as right (with in 21 days) and the opposing party does not consent; a
motion may be filed seeking leave of the court to amend. Rule 15(a) directs the court to
i) Grant leave to amend when justice so requires
ii) Burden is on the opposing party to show the motion to amend should not be permitted
6) Some courts will hold where a complaints deficiency could be cured by amendment the court must grant leave.

DISMISSAL Rule 41
1) Voluntary Dismissal - Rule 41(a)
a) Without a court order within a certain time
b) With a court order after a certain time, must have leave from court.
2) Involuntary Dismissal - Rule 41(b)
a) Except as otherwise noted, a plaintiff who fails to prosecute may have the complaint involuntarily dismissed with
prejudice.

IX.

DISCOVERY

1) Rule 11 Sanctions! Not to be tested on final.

2) Rule 26 Interrogatories and Discovery Requests

X. SUMMARY JUDGMENT & DIRECTED VERDICTS

1) Rule 56 SJ
a) There's only one summary-judgment standard and it's right in Rule 56(a): "The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
b) If there is no issue of material fact, then a court may grant summary judgment.
c) What the cases discuss is what happens in the event of a higher evidentiary burden (e.g., clear and convincing
evidence) and how that impacts whether there is a "genuine dispute" as to material facts. In cases with a higher
burden of proof, it may be that a reasonable jury could not find that a party meets its burden of proof with the
evidence it has, or that the contrary evidence makes so that the party can't meet its burden of proof.
2) Rule 50 JMOL

XI.

EERIE DOCTRINE - WHAT LAW APPLIES IN FEDERAL

COURT?
1) In Diversity or Supplemental jurisdiction, which state law applies? (If Fed Q, no Eerie Issue. Were already discussing
Federal Law.)
a) Federal Court applies the law of the state court in which it sits. Klaxson.
i) In NY, if its a tort, its the state in which the tort happened.
ii) In K, its choice of law in the K.
2) What happens if there is a conflict between the state and federal law?
a) Is the law substantive or procedural? If substantive, apply state law. If procedural, apply Federal law.
3) Should we apply the state or Federal law?
a) To determine if procedural ask, is there a federal directive on point?
i) The federal law is on point if its valid and intended to cover the issue. Hanna.
(1) Valid
(a) Rules Enabling Act: If there is a federal directive on point, its constitutional because there has never
been rule declared unconstitutional.
(i) Applies to FRCP, FRE, etc
(2) Intended Purpose
(a) Legislatures intent was designed to cover the issue and the rule is broad enough to cover the issue.
Shady Grove.
(b) Text of the Rule v. Purpose of the Rule.
ii) If the answer is yes, the Federal Law is on point. The analysis is done.
iii) If no, or unclear, then
b) To determine if its substantive:
i) Is it outcome determinative?
(1) Will the law change the outcome of the case?
(a) Statute of Limitations is always substantive. Guaranteed Trust.
(b) FRCP is (always) procedural.
ii) Is the law an element of the claim?
(1) Elements of the claim need to be proved and absent that proof, the case cant be proved, it would make it
outcome determinative.
c) If still not clear, the Byrd balancing test
i) How outcome determinative is it?
ii) Is there Federal interest in uniformity?
(1) In other words, will it lead to forum shopping?
(2) Would it be inequitable to administer the federal law?
4) Hypo from small review session
a) Facts: Joe NY, Benson CT. Benson hires Joe for acrobatics. Wears new costume and breaks back during
performance while traveling in IL. Joe sues in NY.
b) FRCP 35 right to independent medical examiner v. CT Rule that says right to privacy.
c) Conflict between Rule 35 and CT rule that says Privacy
i) Step 1: Klaxson. Correct states.
(1) We are in NY Federal Court. We apply NY law, but NY law says to apply the law where the tort
happened. So CT.
(a) Mini dispute here is if the tort happened where the injury happened or where he was give the
defective costume. Since were analyzing CT v Federal, assume the tort happens in CT.
ii) Step 2: Is the Federal rule on point to cover
(1) Shady Grove: Scalia Text of the rule v. Stevens Purpose of the rule. (Ginsberg dissent)
iii) Step 3: Assuming its on point, is the rule on point is it valid.
iv) Step 4: Does following Federal Rule lead to forum shopping?
v) Step 5: Outcome Determinative Test

XII. PRECLUSION DOCTRINES

CLAIM PRECLUSION Res Judicata

1) When is a previous lawsuit going to preclude future claims? Three Part test.
2) A claim will be precluded when it is the same claim or claims, AND same party or party in privity, AND final, valid
judgment on the merits.
a) Same claim
i) Majority property and PI must all bring the same claims
(1) If a claim that comes from the same tort is not brought with the first case, it will be precluded from the
second case Rush v. City of Maple Heights.
(a) It would be more efficient and expedient to litigate in one suit.
ii) Minority these are two separate COAs they have separate elements and therefore are different and warrant
a different claim.
(1) Different evidence may be required to support the separate claims, so it would be unfair to the plaintiff for
them to try to support all of their claims in a single action. Carter v. Hinkle.
(a) Plaintiff therefore is permitted to bring a separate action, but not required.
iii) R2d of Judgments 24 Transactional approach. Same transaction or occurrence.
(1) Are the claims closely connected in time, space, origin, or motivation, and
(2) If taken together, could the form a convenient unit for trial purposes
b) s
i) Same identical parties
ii) Compulsory counterclaim Rule 13 would be ruled out.
iii) Interpleader claims not ruled out.
c) Final, Valid judgments on the merits (can trigger and Eerie issue)
i) Valid was there PJ SMJ and Notice?
(1) Needs a basis of power to hear the first case
ii) Final
(1) No appeal pending. There is a final order from the court.
iii) Merits
(1) If the first case was dismissed on the merits
(a) Elements yes
(b) Rule 41b says if dismissed with prejudice, thats a judgment on the merits
(i) 41b Exceptions
1. PJ
2. Improper venue
3. Failure to join a party could present an Eerie analysis for Rule 20. Would depend on if NJ
would apply NY rules of state civil procedure.

ISSUE PRECLUSION Collateral Estoppel

1) When is a previous lawsuit going to preclude future issues?
2) Once a court has decided an issue of fact or law necessary to its judgment, that decision precludes relitigation of the
issue in a suit on a different cause of action involving a party to the first case.
3) An issue will be precluded when its a final, valid judgment on the merits, litigated and determined, and essential to a
claim. Those who can raise issue preclusion are traditionally only the two original parties but the modern rule is IP
can be raised so long as one of the parties was a party in the first action. Further a defendants successful raise of issue
preclusion against a separate plaintiff will depend on four fairness factors such if the could have intervened, if the
defendants was incentivized to litigate, if there are prior inconsistent judgments, and if there are new procedural
opportunities.
a) Valid, Final, Judgment on the Merits
i) Same as claim preclusions
b) Same issue litigated & determined
i) Litigated Means actually litigated
ii) Determined judge has made a ruling and determination.
c) Essential If the case was litigated again, it would be decided the same way.
i) Rios v. Davis. Contributory negligence wasnt essential because Davis could have

(1) Think, Necessary: Once a court has decided an issue of law or fact necessary to its judgment, that
decision may preclude relitigation of the issue in a suit on a different cause of action involving a party in
the first case.
4) Who can Raise IP? Due process says you can only assert if the party was a party in case 1.
a) Doctrine of Mutuality Traditional view
i) Only people who can sue are the people who would be bound by the judgment in case 1.
(1) Same plaintiff against same defendant
(a) Old view. Not a due process requirement and is not rooted in due process at all so it can be changed.
The biggest development has been the evolution of non-mutual preclusion.
b) Non-Mutual Doctrines
i) Non-Mutual Defense of Issue Preclusion
(1) Allows the second defendant to assert issue preclusion.
(a) P v. D and D wins.
(b) P v. D2
(i) Can a separate defendant estop the plaintiff by raising issue preclusion?
1. If its the exact same issue, plaintiff should have joined the second defendant.
ii) Non-Mutual Offense of Issue Preclusion
(1) Allows the second defendant to assert issue preclusion.
(a) P v D and D loses
(b) P2 v D
(i) Can a separate plaintiff assert same claim against the same defendant?
1. If its exactly the same issue, the plaintiff should have joined the first case.
a. Should this be allowed? Courts are worried about free riders. It P2 waits to see how the
first case plays out so he can bring a second case and he knows hes going to win, its an
issue of fairness.
b. Park Lane factors, Fed Q only 4 fairness factors to determine validity of the Offensive
Non-Mutual Collateral Estoppel: IIPP
i. Could the party trying to assert Collateral Estoppel have intervened in the earlier
suit?
ii. Did defendant have incentive to litigate the first action?
iii. Are there multiple, prior inconsistent judgments?
iv. Are there any procedural opportunities available to defendant in the second suit
that were not available in the first?

XIII. SUPPLEMENTAL JURISDICTION - 28 USC

1367 AND JOINDER OF PARTIES AND CLAIMS
28 U.S.C. 1367
a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil
action of which the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
b) In any civil action of which the district courts have original jurisdiction founded solely on diversity jurisdiction,
the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against
persons made parties under Rule 14, 19, 20, or 24, or over claims by persons proposed to be joined as plaintiffs
under Rule 19, or seeking to intervene as plaintiffs under Rule, when exercising supplemental jurisdiction over
such claims would be inconsistent with the jurisdictional requirements of 1332 (diversity).
a. In other words, Federal courts wont have jurisdiction over claims against joined or impleaded parties if
doing so would break complete diversity.
c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if
1) the claim raises a novel or complex issue of State law,

2) the claim substantially predominates over the claim or claims over which the district court has original
jurisdiction,
3) the district court has dismissed all claims over which it has original jurisdiction, or
4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
5) When a plaintiff brings a suit that invokes federal subject matter jurisdiction, a Federal Court can choose to hear a
cause of action that is normally reserved for a court of general jurisdiction only when that C/A so closely relates to the
underlying dispute as to constitute part of the same case or controversy.
a) Pendent Jurisdiction & the Gibbs Tests
i) So long as the plaintiff asserts a proper claim based on Fed Q or diversity, the Federal Court can hear other
claims arising out of the same nucleus of operative fact. (Gibbs.)
(1) Plaintiff sues defendant for violation of a Federal law & for a state law claim. Parties are not diverse.
Basis of SMJ is Fed Q.
(a) The state law claim is proper if both claims are based on the same dispute
(i) E.g.: Federal Age Discrimination & Contract Breach.
1. The dismissal of a worker based on age can be a Fed Age Discrimination case and also K
breach at the same time. The K breach claim is proper because the breach and discrimination
both arise from the termination of employment, which is the same nucleus of operative fact.
ii) Just because they can hear the case doesnt mean theyre required to do so.
(1) Does it make sense for the court to hear the case?
(a) Look at the 1367(c)(1-4)

JOINDER OF CLAIMS Rule 13 & 18

For joinder of compulsory and permissive counterclaims, see Rule 13(a) & (b) in sec. vii.
1) Rule 13(g) Cross claims
a) A pleading may state as a cross claim any claim against a co-party, if the claim arises out of the transaction or
occurrence that is the subject matter of the original action or counter claim.
i)
2) Rule 18 Joinder of Claims
a) A party asserting a claim, counterclaim, cross-claim, or third-party claim may joinas many claims as it has
against an opposing party.

JOINDER OF PARTIES Rule 14, 15, 20, 22 & 24

1)
2)
3)
4)
5)

Rule 14
Rule 15
Rule 20
Rule 22
Rule 24