Personal Jurisdiction

Two Kinds of Jurisdiction: 1) Over Parties 2: Subject Matter

Jurisdiction over Parties:

1. In Personam- against a person
2. In Rem- jurisdiction over a thing,
i. Power to adjudicate a claim about a piece of property or a status.
3. Quasi in Rem- not dispute about property, but will attach land then litigate
dispute. (Overturned by Shaffer v. Heitner- grey hound case)
Personal Jurisdiction Conditions:
A. In Personam: Pennoyer Presence,
a. Burnham v. Superior Court (Husband/Wife divorce, served on vacation)
b. Served in the state subject to pers juridiction but only on topic for which
appeared in court- not general. (Gen only 4 corporations)
c. Rule: If Min Contacts: Personal Jurisdiction, if not: Up to the court.
d. 2 cases with different results,
i. Helicopteros v. Hall: bought TX helicopters, accident in South
America: TX contacts insufficient for general personam jurisd.
ii. Perkins v. Benguet: Indonesian company, flea to OH: granted Gen PJ.
B. Challenging Personal Jurisdiction:
Challenging  Jurisidiction:  Special  Appearance  &  Motion  2  Dismiss:  
2  Approaches:  
a. Common  Law:  Special  Appearance:    
i. If  Make  Special  appearance:  appear  specialy,  cannot  raise  any  
other  issue  than  personal  jurisdiction.  If  lose,  then  proceed  with  
the  case.  
ii. If  make  special  appearance  and  loose  then  default,  cannot  litigate  
that  issue  gain  
b. Federal  Rules  Approach:  No  special  app  needed-­‐  May  combine  PJ  obj  with  
other  objections  but  only  in  first  response.    
i. May  not  first  file  12b6,  later  file  obj  to  PJ.    
ii. “Raise  it  or  lose  it  rule:  if  not  raised  at  beg,  court  can  hear  it.    
If  Court  Finds  Per  Jurisdiction:  interlocutory  Appeal?    
c. Some  courts  allow  in  immediate  appeal:    
d. Federal  Courts  and  other  courts  believe  Personal  Jurisdiction  Q’n  is  
interlocutory:  part  of  an  ongoing  processes  and  cannot  be  reviews  until  
the  case  is  litigated  to  a  final  judgment.      
i. After  final  judgment,  can  appeal-­‐  if  appeal  accepted  will  have  2  file  
suit  in  another  court  w/  PJ  
ii. If  Default  –  can  only  raise  jurisdictional  issue  in  later  court.  
 
C. Challenging  SMJ:    
a. Generally  SMJ  never  waived  
b. However,  if  Δ  did  not  litigate  the  merits  initially  then  try  2  undo  later  
court  can’t.    
D. Minimum Contacts:
• Parties who conduct activities in a state accept the risk of suits & know they may
have to return to the state to defend such suits as they benefited from that State.
a. Int’l Shoe v. Washington: sets rules for MC’s, examine quality and Nature of
Contact

Extent of Casual or Single Act Continued but Substantial or

Contact isolated limited pervasive
Jurisdiction No Specific Specific General Jurisdiction
Jurisdiction Jurisdiction Jurisdiction
Cases Burger king v. Helicopteros v. Hall,
Rudzweicz Perkings v. Benguet

• Important aspects of Min Contacts:

a) Applies to individuals and corporate Δ’s
b) Long arm statutes are distinct than MC test
c) Acts not within the state still constitute Min Contacts
a. Calder v. Jones: Nat’l Enquirer defamatory artc in FL, circulated in
CA- CA focal point of article, CA has jurisdiction
d) Time when Δ acted, not when action commenced.
• Purposeful availment:
o In analyzing the “quality and nature” of MC, many cases relied on
purposeful availment, thus invoking the benefits and protection of its
laws”.
o WW VW v. Woodson: Audi had not sought benefit from OK (where
accident occurred), no purposeful avil- not sufficient contact for personal
jurisdiction.
o Foreseeability: D could reznble foresee her conduct and connection to a
state could make her responsible for appearing in that state court.
E. Long Arm Statutes
1. Background;
• Starting with Hess v. Pawloski (Use state highways, personal jur)
• Expanded with In’l Shoe: looked and quantity & Quality of contacts
• Gray v. American Radiator: (foreign bad valve 4 heater, explodes- juris?)
o State has long arm statute on Δ who commits tort in a state, volume is not
important.
2. Due process and Long Arm Statute:
o McGee v. Int’l Life Ins: (πCA beneficiary of life ins from ΔTX)
 CA had long arm statute but lacked jurisdiction- issue of due
process. SCOTA: passes due process due to K being abt CA
o WW VW Corp v. Woodson: (Audi bought in NY, Accident in OK)
 No Purposeful availment, didn’t sell cars in K
 Foreseeable could drive it in OK.
 Due to lack of minimum contacts, state has no personal jurisdiction
3. Federal v. State Personal Jurisdiction:
 Generally Fed Court do not have wider PJ than the state courts they sit in.
 Rule 4k1 (Fed Long arm): Fed Jur only if state court it sits is does as well.
 Ex: If State court has long arm but case exceeds bounds of due process, if
can’t bring in state court cannot bring in Fed court (diversity) either.

4. Exceptions to In Pennoyer Presence 4 Personal Jurisdiction

o Domicile/Residency
o Appearance to defend, whether or not jurisdiction in 1st place. (Special app)
o Prior consent (Waiver FRCP 12)
 Implied: min contacts
 Express: Choice of Forum in K (Carnival)
o Nonresident motorist statutes
 Hess & Kane
o Ownership of real property (Quasi in Rem)
o Long Arm statutes
o Supreme court: “Fair and Reasonable

II. How to Start a Lawsuit: Summons and Notice

The Requirement of Reasonable Notice
A. FRCP 4: Summons & Complaint:

- 14th Amendment due process of law req’t

- Step1: FRCP 3: a civil action is commenced by filing a complaint w/ the court
- Step 2: FRCP 4: Summons: Process includes the summons, attached complaint,
says summoned 2 Defend against lawsuit in x court.
- Due process requirement: “reasonable method” of notification given the
individual circumstances & notice must inform defendant of the nature and place
of the proceeding Mullane v. Central Hanover Bank
o Reasonable method: given circumstances, resources, and nature of the
court and pending suit, most likely to reach the D or insure that his side
does not go unrepresented.
- How can service of process be different than actual notice? Mail it but never
received
- FRCP a-c: What to Serve:
- Service req’t diff in serving individual defendants & corporations
B. Serving an Individual: FRCP 4(e)
1. Following state law or
2. Deliver copy to individual personally
a. Difficult, but advantage: assurance they receive it.
3. Copy at indiv dwealling or place of abode w/ s/o of suitable age or discretion
who resides there.
4. Delivering to agent authorized by appointment or by law to receive service or
process (Nat’l Equip Rental v. Szukent)
5. Wyman v. Newhouse: fraudulent/trickery in getting Δ into state and serving
them there- court did not give personal jurisdiction
 a. Compare to Grossman (tricks 2 serve): The court distinguishes
between actions designed to induce a party into a jurisdiction and
actions to facilitate service on a party already in that jurisdiction

C. Serving a Corporation FRCP 4h:

• Manner for serving individual
• Deliving copy to officer, manging general agent, or other agent authorized

D. Waiver of Service: FRCP 4d1

• Send notice of action and reqest she waiver service.
• Adressed to Δ or approp officer, provide name of court, copy of
complaint, 2 waiver forms, stamped envelop 2 send it back. First Class or
other reliable means
• No longer need to send summons, only complaint and 2 waivers
E. State Service (depends) CA:
a. D office of home- left at persons office or abode plus mailing a copy to that
place
b. Mail within the state if the person executes and return an acknowledgement of
service
c. By mail outside state, w/o need for execution of acknowledgement by D

III. Modern Pleadings

Topics: Complaint, Motions and D’s Answer, Amendment, Deterring Abusive Pleading
A. The Complaint: under the code, Detail req’d under Fed Rules

1) Common Law Pleadings:

a) Background
- Pleading the facts (not the law/evidence) to narrow the issues min. time in trial
- Advantage: shorten/prevent trial with expensive litigation
- Disadvantage: became technical, distinction of law and fact became difficult
b) Pleading Defenses:
- Could1) deny the facts, 2 demur the complaint (not right 2 relief), 3 statute of
limitations, or 4) obj to courts for venue or SMJ
- Common Law pleading only allowed Δ to raise 1 of the above objections.

2) Code Pleading:
- Field Code was partial change from common law
- Req’d the complaint to be a statement of facts showing a right to remedy
- Entitled to recover under any legal theory applicable to the facts pleaded

3) Pleading under the Federal Rules FRCP 8

- Fed rules further liberalized pleading standards-
- Same 4 pleading defenses as common law (8b, 12b6, 12c, 8c),
 - BIG Diff: Multiple Objections to π’s case: pose regardless of consistency.
a. Pleadings Permitted: FRCP 7a, General Rules: 8a
- FR authorize fewer pleadings than the code,
b) FRCP 8a: Compliant must include:
i. Statement of the basis for the courts jurisdiction
ii. Statement of the relief the P is seeking
iii. Short and plain statement of the clam showing the pleader is entitled to
relief
c) 2 details of 8a:
o Can plead multiple D’s if uncertain about correct D (subject to
FRCP 11)
o Can plead multiple versions of facts of a claim and correct answer
found in discovery. Bust must set forth factual assertions to
support each claim
FRCP 11 Limits on Allegations
– Ethical parameters on both factual and legal positions a party presents 2 the court
– Certifies: 1) made an inquiry, best of knowledge, warranted by law
– 11b: 1) Not 2 harass 2) Warranted by existing law or by nonfrivolous argument
for extending the current law 3) Facts have support 4) denials of facts warranted
o 11b2: “non frivolous: look to how old law is, other courts decisions,
similar reasoning in analogous cases.
o Once full opp 2 find evidence and not find any- rule bars her from later
advocating that position
– 11c) Sanctions:
o 21 day grace period: safe harbor provision
o 11c2: a motion seeking sanctions shall be served but not filed (given 2
other party)
o Have the 21 days after service. If withdraw won’t be sanctioned.

Sufficency of Pleading:
Conley v. Gibson
– Flexible approach to pleading, general pleading
– Complaint should not be dismissed unless it appears beyond doubt that ht
π can prove no set of facts in support of his claim to entitle relief.
Bell Atlantic v. Twombly:
o π sought recovery from local telephone companies b/c conspired to
retrain competition against Sherman Act
o Pleading: inferred conspiracy by “not” seeking 2 enter others
territory- rule: “must agree to retrain trade”
o Under old “Conley v. Gibson” court would allow it
o SCOTA: Complaint insufficient: doesn’t set forth a fact & the P
must allege enough to show that their claim is plausible not just
conceivable.
o Requires enough plausible and specific facts to state a claim to
relief
 o 2 views on Bell: 1) creates “Fact Pleading” 2) Bell large
specialized area- “over pleaded” and didn’t show entitled 2 releif
- Ashcroft v. Iqbal (Pakistani discrimination after 9/11)
o Court states “Twombly expounded the pleading standard” all civil
actions
o Whether a complaint stats a plausible claim for relief will be a
context-specific tsk for the court’s knowledge.
o Holding: Iqbal’s pleadings did not comply with Rule 8 under
Twombly.
* Courts between Conley & Twombly: not unanimous standard
• Dioguardi: Wouldn’t satisfy the Twombly and Iqbal standards.
• Some believe: Cost of discovery is a factor.

B. Responding to the Compliant

1) Answer or 2) Motion to dismiss

Filing a Motion:
• Alternative to answering complaint. If move to dismiss- no need to answer
compliant until after the motion is decided.
• If make a motion (12b) can’t make a 2nd motion when 1st fails.
• P whose compliant has been dismissed will be given chance to amend the
complaint before the case is dismissed.
Waiver of Defenses:
• If D objects to personal jurisdiction, venue, form of process, method of
service- must raise in pre-answer motion or in the answer. If not she has
waived defense for all time.

Responding to the Complaint:

1. Motions to Dismiss:
• We accept all factual claims being made, even so P as a matter of law, there is no
cause of action and therefore should be dismissed
• Rule 12(b) Defenses: can’t make a 2nd motion when 1st fails.
• P whose compliant has been dismissed will be given chance to amend the
complaint before the case is dismissed.
2. Motion to Strike
• “Scandalous or irrelevant matter”
• Generally not stricken unless it prejudice the adverse party
3. Answering the compliant
1. Admissions & Denials
a. Proper Forms
i. General Denial: deny everything- no longer good practice in many
jurisdictions
ii. Denials must admit what is true, rairly respond to the substance of the
allegation. and deny the balance.
iii. Failing to Deny constitutes as an acceptance.
 iv. Zielinski v. Phili Piers- (forklift acc, sued wrong Δ) Δ made general
denial mislead P into thinking had correct Δ.
v. Specific Denial: go through each paragraph and accept/deny one by one.
(can make general denial at the end as to claims you have not responded
to).
b. 3 Improper Forms of Denial
i. Lack of Info: Under FRCP 8b5 allowed with limits of reasonability.
ii. Negative Pregnant: negation including an admission of what D is
attempting to deny ex: Specifically say $150 not reasonable- admitting
$100 may have been reasonable.
iii. Conjunctive Denial: pleading defect where court holds denial to be
evasive and therefore admitting fault.

2. FRCP 8C: Affirmative Defenses: must be raised specifically to inform π of possible

existence of defenses and Δ intention to advance them:
* 2 Types of Pleadings:
1) Admit allegations but suggest other reasons for no right of recover.
2) Raise allegation outside the P’s prima facie case that π cannot raise by simple
denial in the answer
Ingrahm v. United States (Failure of US to raise affirmative defense)
• because statutory limitation is an Aff Defense, unde 8c cannot raise on appeal
• Not pleading timely barred the defense.
Taylor v. United States (after case, Gov’t raised Cal Civ Code recovery limit)
• 9th Circuit reversed lower courts decision that Gov’t had waived its defense
• Fed Rules do not consider limitations of damages affirmative defenses, which by
contrast, must be pleaded.
• 8b6: averments of amounts damage Δ does not deny in answer or not deemed
admitted.

Amendments: Rule 15
1. Intro: purpose of FRCP 15
a. Amendments before trial: Courts generally liberal,
b. If one of the parties says they want to amend- presumption in favor of that.
Objector has to show it is unfair.
c. 2 goals:
a. Each claim decided on merits rather than technicalities
b. Pleading has changed to no longer carry the burden of fact revelation
and issue formulation.
2. Application
- Beeck v. Aqua Slide: (Wrong D) allowed D to amend its answer after running
of statute of limitation b/c would be prejudicial to not allow it.
- Worthington v. Wilson: (Incorrect D (police officer) to keep Statute of Lim
from running) court did not allow amendment b/c would encourage filing
pleading against anyone then adding correct person
o Against FRCP 11.
o
IV. Subject Matter Jurisdiction of Federal Courts
Diversity, Federal Question, Removal, Challenging Subj Matter Jur, Venue, Forum Non
Conveniens,

• Federal  Question?  
SMJ   • Diversity?  

• Does  ct  have  juris  over  all  parties  

Personal  Jurisdiction   involved?  

• Where  is  evidence?  where  is  D?  

Venue  

Forum  Non-­‐ • Isomewhere  

s  this  case  more  conveniently  litigated  
else?  -­‐-­‐>  D's  option  to  try  to  get  ct  
Convieniens   house  changed  
Intro:
Subject Matter Jurisdiction: US Constitution Art III §2
1. State Court Jurisdiction
CA State Court has jurisdiction over “everything”
1. State courts can make laws about anything as they have personal jurisdiction
2. Exception: unless a federal law preempts it (Fed Q’n, Diversity)
a. Includes Federal Issues (Miranda rights, search seizure, etc)
1. Federal Question
28 U.S.C. §1331: The (federal) district cts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the USA. (Limited SMJ comp
to State)
1. Subjects that involve the Constitution
2. The Laws of the USA (i.e. Federal statutes)
3. Treaties (laws that President negotiates w/other countries)
4. Well-pleaded complaint rule  Fed. Q jurisdiction has to arise in the complaint
a. If it arises in defense’s response, it’s not going to get into Fed Ct. (i.e.
State Ct. can answer the Q, or dismiss the complaint if it does not have
SMJ)
2. Diversity of Citizenship
1. Overview: Statutory & Federal
i. Statute: §1332: Fed courts hear claims under state law when between
citizens of different states and the amount in controversy exceeds statutory
limit: $75k. Complete Diversity
1. Strawbridge v. Curtiss: Diversity only if all π’s citizens of different
states from All the Δ’s.

ii. Federal: Article III. More broad look at diversity as analyzed under
State Farm v. Tashire- Only req Minimum Diversity: Some Δ diff than
some π
 NOTE: Lower Federal Courts get jurisdiction from Congress
Complete Diversity, however, congress has made statutes
 authorizing Min Div some categories (Ex: in Tashire, given to
Interpleader)
2. Statutory Determination of Citizenship:
i. Corporations 1) State of Incorporation 2) Principal place of biz (examined
in order:
1)”Daily Activities”- predominant part of products or services
2) “Nerve Center”- Corporate Headquarters
3) “Total Activity”- HeadQ & daily activity
*standard for in personam jurisdiction ≠  std. for div jur

ii. Individual: Determined by domicile: 1) a person’s true, fixed, and

permanent home 2) has intention of remaining indefinitely.
Intent: if no definite plans beyond study, can establish domicile in
that state. If plan on going back home- No
1. Staying on open ended basis (will return when leaves)
iii. Mas v. Perry
1. Statutory Complete Diversity requirement
2. Diverse relationship must exist at the time compliant is filed
3. Amount In Controversy
i. Satisfied if the P makes a good faith estimate that the value of the claims,
including actual and punitive damages and the value of injunctive relief,
meets the required amount.
ii. P can satisfy by alleging a number of small claims against 1 defendant
iii. P cannot satisfy aggregate amounts from multiple D’s
iv. Multiple plaintiffs can aggregate their claims if they seek to enforce a
single title or right.
1. Multiple P’s can’t aggregate if claims are separate and distinct
v. Injunctive Relief: can qualify for Federal Diversity cases, even without
obvious monetary damages because the injunction (compelled to stop
acting) can be worth the proper amount of money to the Defendant. Court
has to determine worth of injunction
4. Favor of Diversity:
i. Equal privilege across states
ii. Desire to channel cases to Fed crts of institutional superiority
iii. Cross Polination of ideas- competition and increase in state court stndrds.
5. Critics of Diversity:
i. Congestion of Federal Courts
ii. Application of state law is unnecessary, inapprop, and wasteful
iii. Interference with state autonomy
iv. Retarding development of state law
v. Diminishes reform by professional groups who are able to avoid litigation
in the state courts.
3. Removal USC §1441
A) Definition
a. Statute gives Δ the power to displace state court case’s venue by removing
the case to federal court if it could have originally been filed in federal
court under §1331. Must make claim w/in 30 days.
1441a: Fed Q’n, 1441b: Diversity
b. Fed Q’n: 1) Must originally be a Fed Q’n under 1331 or 2) later in case if
it becomes removable due to an amendment or for other reasons.
c. Diversity: 1441b: Cannot be removed unless complete diversity and none
of the Δ’s is a citizen of the state where the action is brought.
d. Personal Jurisdiction: Removal does not waive Δ right to object to
personal jurisdiction
e. Example:
i. If P (CA) v. D (NY)- diversity if +$75k. P can sue in NY Fed
Court.
ii. If P could bring to Fed Court but chooses NY state court- D can’t
remove to Fed court since they are in NY and no longer concerned
about Bias.
iii. If multiple D’s: Same as example 2
B) Keep Case in Federal or State Court:
a. State Court:
- If not Fed Issue & no Diversity (some D’s same state as P)
- Can add, in good faith, parties in same state to prevent diversity
- Rose v. Giamatti- Court forced Fed Court b/c Reds not real D.
b. Fed Court
- Can’t remove from Fed court to state court
- Removal applies only to cases that could have been brought originally
in federal court
C) §1446a Procedure for Removal:
a. D must file at appropriate district court, within 30 days of receiving P’s
pleading
b. Once filed, state court loses control and up to Fed court to decide the
jurisdiction- can remand it to state if doesn’t see Fed jurisdiction.
c. Subject matter Jurisdiction can be by either party @ any time
D) After Removal:
a. Fed court in same district (unlike transfer displaces P geographical choice)
b. Entire claim moves (fed and state issues) & case proceeds at same point
the hearing was removed under FRCP
4. Venue §28 USC 1391
a. Intro:
• Set of rules that allow counsel to isolate one particular court, out of the entire set of
courts with jurisdiction, in which to bring the action.
• Venue is purely statutory within a court system. Modern venue statutes try balance:
o Convenience of witness
o Protection of the defendant
• General Fed Venue rely on 2 criteria:
 o 1) Residence of the defendants 2) location of the transaction that gives rise 2
dispute
b. Rule- if bad venue: 12b3
28 USC 1931a: Diversity Cases be brought only in
• 1: A Judicial district any D resides, if all in the same state
• 2: A Judicial district substantial part of events occur or a substantial part of
property that is the subject of the action is situated,
o if injured by a product, place of injury fulfills “events” aspect
o Don’t need 2 compare which is more subst. can have <1 venue
o Venue residence: unlike Diversity, need not be “primary” biz place.
• 3: OR A District any Δ is subject to personal jurisdiction at time action
commenced
1931b: Fed Q’n
• 1 & 2 identical to a
• 3: A JD which any D may be found, if there is no Dist which the action may
otherwise be brought
o Difference between the two: Subject to PJ without being in the state,
Diversity cases are more liberal than Federal Question.

1) Bates v. C&S Adjustors: (dept collectors, mail forwarded from PA to NY)

• Collection notice sent to NY, therefore substantial part events giving rise to claim
occurred in NY, with focus on location of events—Venue is proper.
•
• 28 USC 1406: if file improper venue- dismiss or transfer the case
o 1406a: Transfer for improper venue: Can transfer to place where lawsuit
could have originally been brought
Transfer of Venue in Fed Court: 1404(a)
• 1404a: for the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it
might have been brought.
o 1404a: governs most cases (rather than forum non convience common
law)
• 1406a: if P sues in court w/ no venue- potentially fatal for statute of limitation,
court can transfer of dismiss- uncertain about what will happen.
2) Ferens v. John Deere: (P lost hand in π machine)
 After PA 2 year statute of Lim- file tort in Miss, then 1404a to PA
 PA refused Miss SOL- but SCOTA: transferee forum is required to
apply the law of the transferor court, regardless of who initiates
transfer
 Case shows: π intentionally files suit in inconvenient forum, them
transfer get both forum & law of choice
• Note: Cannot transfer: 1. State to Fed or 2. State to other State court.
• Note: Diff of Venue and P.J.: PJ anywhere in the state, where for venue district in
state is important.
5. Forum Non Conveniense
• if state court out 2 be litigated in diff state, court will dismiss for forum non
convenines, leaving movant to file new action.

Piper Aircraft v. Reyno (Brit subjects die in Scott aircraft acc, Manuf prts in PA)
• 1st removed to US District court, then under 1404a trasfered to PA
• Change in substantive law should not be given conclusive or substantial weight in
the forum non conveniens inquiry b/c then court could not dismiss int’l cases on
that basis
• However, if remedy in alt. forum So inadequate, change in law may be given
weight if. Example: other court does not permit the subject matter in dispute

WW VW v. Woodson: OK proper venue 1391a, but if case brought in NY would be

barred from transfer to OK due to lack of PJur if filed in ok initially

V. Who’s Law? Federal or State?

Swift, Erie, Federal Common Law, Federal Law in State Courts
State law in Federal Courts

I. Intro:
Issue is Vertical: State law or Federal law?
a. Federal Question: 28 U.S.C §1331
- Fed Q’n for Fed Court: Issue must be Arising-under Fed law
- Mottley rule: arising-under: if the plaintiff relies on fed laws as the source of her
right to relief, then Fed Q’n: Looking at π’s complaint
- “Well pleaded complaint”: can’t be superfluous federal claim

Supplemental Jurisdiction 28 USC 1367(a) (b)

- Allows federal courts to entertain entire disputes, rather than single theories or
claims, when State & Fed issue arises from same issue.
- United Mine Workers v. Gibbs: Federal claim must have substance sufficient to
confer subject matter jur on the court and Fed and state claim must derive from a
common nucleus of operative fact- issue will remain open throughout litigation.
o If it appears state claim becomes body of claim- can be dismissed
o Gibbs test: “if common nucleus of operative factssame case or cntrvry”
- 1367a: very broad: basic nucleus of facts supp jur over related claims
- 1367b: Limits supp jur for additional claims by π’s in diversity cases against
parties joined under rules: 14, 19, 20 & 24 to prevent parties from evading the
Strawbridge complete diversity rule.
o Reason: prevent π’s from suing Δ’s from their own state b/c if they could
use supplemental jurisdiction to add a claim against same state Δ’s, would
be against Strawbridge
 Supplemental Jur (Div) 1367b? 5 Hoops
1. Diversity claim? (if yes)
2. Is the claim asserted by original π? (if yes)
3. Is this a claim against persons made party under Rule 14, 19, 20, 24? (if
no)
4. ?OR if the case involves Rule 19 or Rule 24, would the person be joined
as a π under rule 19 or intervene as a π under 24? (if no)
5. (be thorough) Is there a basis for original jurisdiction over the added
claim? If yes- no need 4 Supplemental Jurisdiction

B) What Law to Apply? Federal or State?

A. Old Rule: Swift v. Tyson:

- Rules of Decision Act (RDA): Congress telling courts what law to apply in
federal cases
- Swift court interpreted “Laws” in RDA to only mean state statute and long
established local customs but not common law.
- Federal court to make common law as saw fit
- Problems:
- Forum shopping,
o Inequality between out of state and in states b/c out of state can chose
forum.
o Inconsistency of judgments

B. Erie v. Tompkins
- Reversing Swift: calls it unconstitutional under 10th Amendment which gives the
states power not delegated to Fed by the constitution because expanded Federal
power at expense of state rights.
- In diversity cases: Fed courts have to follow States substantive common law and
statutes
- But does not say the Fed court has to be the same as State court

C. Guaranty Trust Co v. York:

- Court treats statute of limitation as substantive and therefore the Fed courts must
apply state rule.
- Outcome Determinative Test: If the outcome significantly affects the result must
follow state law.
o If determinative: Issue is Substantive and for State law
o If procedural and not determinative- go with Federal law.
- Ex: Pleading rules & rules of service can be outcome dit State law.
-
D. Byrd v. Blue Ridge Rural Electric
- Balance of interest for matters of form and mode (Procedural)
- Outcome-determinative test of York is not sole test to be used to separate
substantive from procedure
 - Although Jury can be outcome-determinative, state rule disrupts or alters the
essential character of the Fed court and deprive one party of protected federal
right and part of the 7th amendement.

E. Hana v. Plumer
- Issue of service of process and statute of limitation- conflict of state law and
FRCP.
- 1) Modified Outcome determinative: prevent forum shopping and inequitable
administration of the laws.
- Court rules Erie does not require the Fed courts to substitute state rule for its own
- 2) Fed const. and statutory authority give authority for diversity courts to have
control over any rule that is “arguably procedural”

F. Walker v. Armco (man injured by defective nail, SOLim runs out in state, not Fed)
- Statue of Lim is tolled after filing action commenced (FRCP 3), under state law
tolled when served
- Goes against the Hana rule: FRCP is Procedural, always follow up

When Does Fed v. State issue Arise?

Fed Provision that Conflict w/ State law: four issues
1. Federal Constitutional provision might mandate federal court procedure that
differs from state law (unanimous jury v. majority)
2. Federal statute that may conflict with state law.
3. FRCP conflict with state law (service of process)
4. Fed Judicial practices

1) Is The Issue Outcome Determinative?

If Yes Substantive must apply state rule
If No Procedural Apply Fed Law

2) Does Applying the Law Weigh heavily on either Fed/State Interest?

If Federal Right  Fed Court
If State Independence right State Court

Fed  courts  determining  the  content  of  State  law:  

• Fed  Court  in  diversity  will  apply  the  state  court  
• However,  Fed  Courts  can  create  their  own  law  in  State  courts:    
Supreme  Court  Predictive  Approach:  
o Fed  Judge  to  apply  the  sate  law  as  she  concludes  that  it  would  be  
applied  today  by  the  supreme  court  of  the  relevant  state.    
o Mason  v.  Emory  Wheel  :  old  rule  on  privity  overruled,  what  Miss  court  
would/should  do  today  
o Extremely  Unlikely  for  court  to  do  this,  only  clearest  evidence  
o Not  Binding  law:  Fed  court  not  making  law,  simply  applying  it.    
 Persuasive  but  not  binding.  
  
Klaxon  v.  Stentor  Mfg:    
o Federal  div  court  should  use  the  choice  of  law  rules  of  the  state  in  
which  it  sits.    
o Erie  req’t  that  the  case  come  out  the  same  way  in  fed  court  that  it  
would  come  out  in  the  state  courts  of  the  state  where  the  fed  court  sat.    
 Same  rule  that  a  state  judge  would  apply,  but  in  cases  w/  
several  states  Fed  judge  must  choose  law  of  another  state  if  the  
state  judge  would.    
o Problem:  can  create  forum  shopping  in  Fed  Court  
VI. Joinder

1. Joinder of Claims- FRCP 18a

- Broadest of joinder rules, allows a party seeking relief to ad any additional claims
he has against the party. No common transaction or occurrence is required.
2. Joinder of Parties: FRCP 20:
- Multiple plaintiffs may join together, or a plaintiff may sue multiple defendants if
asserted claims arising out of the same transaction or occurrence and involve
common question
- M.K. v. Tenet- joinder under rule 20a approved: (met 2 prong test)
• Permissive joinder by plaintiffs: at the discretion of the plaintiff
• Permissive joinder of defendants: multiple defendants, joined if transaction
and common Q
3. Compulsory Joinder: FRCP 19
o 19A: If feasible should be joined if:
1. Court cannot accord complete relief among existing parties. 19a1A
2. Parties has an interest in the subject matter and her ability to protect
that will be impaired
3. If w/o her other parties exposed to multiple or inconsistent obligations
19a1B
o FRCP 19b: when not feasible, court determines if in equity and good
conscious the action should proceed or be dismissed. (4 factors)
1. The extent a judgement rendered mught prejudice him or others
2. Extent prejudice could be lessened by
a. Protective provisions
b. Shaping relief
c. other measures
3. whether a Judgment rendered in his absence would be adequate
4. whether the π have adequate remedy if action were dismissed for
nonjoinder
Provident Tradesmen bank v. Patterson: (Car owner lent car, accident, owner not joined)
 Signifies diff of 19a and b, since not feasible- court goes ahead.
 19a flexible 2 encourage joinder, but not made 2 take away
power
4. FRCP 13 Counterclaims: claim by defendant against a plaintiff
a. Compulsory: (13a) arises out of same transaction or occurrence, If D does not
assert her compulsory counterclaim, she will lose that claim in future litigation
i. Supplemental jurisdiction authorizes subject matter jur. Over
compulsory counterclaims, can make a CCC even if doesn’t meet req’t
amount.
b. Permissive (13b): Does not arise out of the same transaction or occurrence,
does not lose her counterclaim in future litigation if she declines to assert it in
the first suit
c. Cross Claims (13g): In Fed court actions, D may in the answer make any
claims she has against a co-defendant that relate to the transaction or
 occurrence or to any property that is the subject of the plaintiff’s compliant
FRCP 13g
i. LASA per L’Industria v. Alexander: cross claim is within
supplemental jur. & no indepent ground for fed jurisdiction is required.

FRCP 14 Impleader Third Party Practice:

d. D may only bring in a third-party defendant who may be responsible to
reimburse her for part, or all, of the judgment the plaintiff recovers from her.
But the D must do it within 14 days or obtain the courts leave.
e. Occurs when
i. Party is liable for an injury but has right of reimbursement fro the
damages from another party ex: retailer can be sued, but can demand
indemnification from manufacturer
ii. One Δ has the right to force another party to share in a judgment the π
recovers. Ex: 2 drivers cause an accident, and the injured party sues 1
driver, driver 1 could implead driver 2 under 14a for contribution
14a Requirements:
a. Diversity Jur: Even if π can’t join a Δ due to loosing diversity, a Δ can
implede them.
i. Impleader does not affect jurisdiction of original claim
1. This prevents manip by Δ to destroy diversity
ii. For diversity courts look @ diversity between 3PP and 3PD: if
court wouldn’t have SMJ, then court doesn’t have SMJ.
b. Subject Matter Jur: (loot at 1367b)-
i. Even if P doesn’t have Suppl Jur, Δ can still have an impleder.
ii. 3rd Party action must be viewed as separate claim for purpose
for SMJ,
c. Venue: 3rd party disregarded whether venue is proper- to prevent
impleader of 3rd party Δ’s from dif states to defeat fed juris.
d. Too v. Kohl’s Dept. Store: (PJ Copyright infring)
i. Impleader appropriate to promote judicial efficiency when
same core of facts and determinative to P’s claim, and sep
action can be both more costly and risks (as Kohl’s could loose
w/ new jury).
e. Liberal Impleder rules: prevent forum shopping, unfair judgement

FRCP 42a: Consolidation or Separate Trials

Court may join for hearing, the action or issues to avoid cost.
b) Separate Trials: Court may order separate trials for convenience, avoid prejudice, or to
expedite and economize.
c. FRCP 22: Interpleader: device to enable a party to settle a controversy in a
single proceeding when they might be exposed to multiple claims to money or
property under her control (ex: life insurance w/ multiple beneficiaries). FRCP 22,
28 USC §§1335,1397, 2361
i. State Farm Fire & Casualty Co. v. Tashire: multiple D’s: π starts an
Interpleader
1. May claim’ liability: insurance may be liable therefore,
overrule state law that need first judgment then bring in
insurance
2. Interpleader not all purpose- or for class action- only look at 1
claim
ii. Difference of Statutory v. Rule Interpleader:
iii. Statutory: 28 U.S.C. § 1335 can only be used to join all lawsuits
against State Farm's interests. Other lawsuits that didn't involve State
Farm's interest could proceed separately.
iv. Rule: FRCP 22:

d. FRCP 24: Intervention:

i. Allows 3rd party to interject herself into a lawsuit, cutting against the
grain of the traditional notion that a P is allowed to control his suit.
ii. Smuck v. Hobson: (class action from black&poor kids againt board)
1. Issue: board din’t appeal- can parents, former principle and
member of board appeal after an intervention?
2. Court looks to 1-impair ability to protect 2-adequately
represented by the board: since the board did not appeal, finds
that their interest were not upheld and should be intervened.
iii. 24a1 example: fed statute permits intervention: Statute for Civil rights
gives US unconditional right to intervene.
iv. Timely Intervention: early stages or prior to judgment unless:
1. Prejudice the rights of the existing parties to litigation
2. Substantially interfere w/ orderly process of the court
v. Knowledge of a lawsuit does not obligate a party to intervene,