***

Service of Process – Rule 4

1) Service must comply with the relevant rule (state rule or FRCP 4) and due process (5th
and 14th Amendments).

2) To satisfy due process, the form of notice used must be reasonable in light of the
practicalities and peculiarities of the specific case. (Mullane).

3) The D must be given adequate notice of the suit through proper service of process.

4) A judgment rendered w/o proper notice is invalid, even if there is a valid basis for
jurisdiction.

a. Ex: In Burnham v. Superior Court, there was jurisdiction because the D was in the
state. However, he had to also be SERVED while in the state in order for the suit
to be valid.

5) Two factors: "For service to be proper, it must not only comply with the relevant rule, but
must comport with due process."

a. Relevant rule: State rules vary; federal rules are under FRCP Rule 4.

b. Due Process: 5th and 14th Amendments

i. Statute must be Constitutional. Even if a P goes above and beyond the

statute (even up to personal service), if the statute is unconstitutional, so is
the service.

ii. The mere fact that the D received actual notice of the suit does not suffice
to uphold the validity of service.

6) Failure to serve or improper service can cause a lawsuit to be time-barred, since often the
statute of limitations is tolled only when D is served properly
 7) Failure to report to court after receiving notice results in a default judgment against the
absent party.

8) Waiving Service- Rule 4 tries to eliminate issues concerning service by inducing the D to
waive formal service of the summons and complaint.

a. FRCP 4(d) allows P to send a copy of the complaint to D by first-class mail

accompanied by a "Notice of Lawsuit and Request for Waiver of Summons" and
a "Waiver of Summons."

b. Why would a D want to waive service?

i. Rule 4(d)(1)- unless D waives service in a timely manner, "the court may
impose on the D…the expenses later incurred in making service."

ii. If D waives service, D does not have to answer complaint until 60 days

9) Service through Mullane (To satisfy due process, the form of notice used must be
reasonable in light of the practicalities and peculiarities of the specific case)

a. Due process requires "notice reasonably calculated, under all the circumstances,
to apprise interest parties of the pendency of the action and afford them an
opportunity to present their objections".

b. Notice by publication doesn't work, but it can be sufficient if there is no other way
or if property was forfeited.

c. Notice needs to be practical, not perfect

Personal Jurisdiction

1) PJ available over a D through physical control (Burnham) or minimum contacts analysis

(Int'l Shoe)

2) Minimum contacts analysis:

a. Long-arm Statute - Does the defendant come within the terms of the applicable
long-arm statute? (states have tailored or due process-type)
 b. Minimum Contacts - Does the defendant have "minimum contacts" with the
forum state such that the assertion of jurisdiction would not violate the Due
Process Clause?

c. Availment - Has the defendant "purposely availed" itself of the privilege of

conducting activities in the forum state, thereby invoking the benefits and
protections of the state's laws? (Shoe - D entered state and conducted business
there; BK, Hanson, Chalek - D entered into Ks with residents; WWVW, Calder,
Revell, Zippo - D's out-of-state conduct caused injury/"effect" in the state)

d. Relatedness - Does the lawsuit arise out of or related to the defendant's purposeful
contacts with the forum or, if it does not, are the defendant's forum contacts so
extensive that no such relationship is necessary? (specific v. general jurisdiction)

e. Reasonableness - Would the exercise of jurisdiction be unfair and unreasonable,

taking into account the interests of the defendant, the forum state, the plaintiff,
and other states that may have an interest in the matter? (Asahi)

PJ today

1) Minimum contacts:

a. Does the defendant come within the terms of the applicable long-arm statute?

i. Statutes actually give power to the courts

1. Some states have tailored/specific act statutes

2. Others have due-process-type long-arm statutes. (A court of this

state may exercise jurisdiction on any basis not inconsistent with
the Constitution of this state or of the U.S.)

b. Does the defendant have "minimum contacts" with the forum state such that the
assertion of jurisdiction would not violate the Due Process Clause?

i. Constitution simply sets limits for states exerting PJ

 ii. Has the defendant "purposely availed" itself of the privilege of conducting
activities in the forum state, thereby invoking the benefits and protections
of the state's laws?

iii. Does the lawsuit arise out of or related to the defendant's purposeful
contacts with the forum or, if it does not, are the defendant's forum
contacts so extensive that no such relationship is necessary?

iv. Would the exercise of jurisdiction be unfair and unreasonable, taking into
account the interests of the defendant, the forum state, the plaintiff, and
other states that may have an interest in the matter?

2) Purposeful Availment

a. Has the defendant "purposely availed" itself of the privilege of conducting

activities in the forum state, thereby invoking the benefits and protections of the
state's laws?

i. Burger King v. Rudzewicz

1. Facts - MI Rudzewicz applied for a franchise from FL based BK.

Franchise was in MI. Rudzewicz failed to make payments, so BK
tried to negotiation with Rudzewicz through its FL office. After
negotiations failed, BK terminated the franchise. BK sued in FL.

2. Rule - Alone, signing a contract with a party in the forum state is

not sufficient to meet the minimum contacts requirement for that
forum state. However, if the contract in that state is an intermediate
step to tie up prior negotiations and contemplated future
consequences, the party may be seen as having purposefully
established minimum contacts in that forum state, especially when
the consequences arise proximately from the activities allowed by
the contract.

3. Judged by case by case basis

 ii. Hanson v. Denckla

1. Facts - PA Hanson set up trust in DE and made changes to it in FL

cutting sisters out of some money. Sisters sued DE trust in FL
court.

2. Rule - There be some act by which the defendant "purposely

avails" itself of the privilege of conducting activities in the state,
thus invoking the benefits and protections of its laws, in order for
the minimum contacts requirement for jurisdiction to be met. A
forum state can only gain jurisdiction over an out of state
corporation if that corporation has "minimal contacts" with that
forum state.

b. Foreseeability

i. World Wide Volkswagen

1. Facts - Robinsons purchased an Audi from D (Seaway Volks) in

NY. Following year, Robinsons moved to AZ, passing through OK
where they were in an accident. Car caught on fire. Robinsons sued
auto manufacturer, importer, regional distributor, and retail dealer
in OK. Regional distributor (World-wide Volks) and retail dealer
(Seaway Volks) are the parties in this case about jurisdiction.

2. Rule: No jurisdiction over WW VW in OK. The forseeability that

is critical to due process analysis is not the mere likelihood that a
product will find its way into a forum state, otherwise every chattel
a company sold would be its agent for service of process. It is that
the Ds conduct and connection with the forum state are such that
he should reasonably anticipate being hauled into court there.
Thus, minimum contacts was the issue here, not fair play and
substantial justice.

c. Stream of Commerce
 i. Asahi

1. Facts - CA Zurcher lost control of motorcycle and collided with a

tractor. He was badly hurt and his wife was killed. Zurcher sued
Korean Cheng Shin Rubber who implicated Japanese Asahi. Asahi
sold tire valve assemblies to Cheng Shin. Zurcher sued Asahi in
CA court.

2. Rule - The mere awareness on the part of a foreign D that the

components it manufactured, sold, and delivered outside the US
would reach the forum state in the stream of commerce does not
constitute "minimum contacts" in that state.

d. Effects Test

i. Calder

1. Facts - FL Calder's magazine wrote an article about CA Jones.

Magazine's largest circulation was in CA. Jones claimed the article
was libelous and sued in CA court.

2. Rule - A can exercise jurisdiction over a D based on the "effects

test" - a state has power to exercise personal jurisdiction over a
party who causes effects in a state by an act done elsewhere with
respect to any cause of action arising from these effects.

3. Notes - The Calder effects test will allow personal jurisdiction over
a party whose conduct was expressly aimed at the forum state,
knowing that the harmful effects would be felt primarily there, and
that the defendants would "reasonably anticipate being haled into
court there". The action was directed at CA, and the Ds knew it
would cause an effect there.

ii. Zippo sliding scale- applies the effects test to the internet

1. "Passive"- allows owner to post information on the internet. No PJ.

 2. "Active"- Repeated online contacts with residents over the internet.
Personal jurisdiction may be proper.

3. Middle ground between these- some interactive elements, bilateral

info exchange. PJ possible.

3) General v. Specific Jurisdiction- Does the lawsuit arise out of or is it related to D's
purposeful contacts or, if it does not, are D's forum contacts so extensive that no such
relationship is necessary?

a. Specific Jurisdiction

i. This is almost always the case- general jurisdiction is much more difficult
to prove than specific/subject matter jurisdiction.

4) Reasonableness

a. Asahi

i. Reasonableness: Would the exercise of jurisdiction be unfair and

unreasonable, taking into account the interests of D, the forum state, P,
and other states' interests?

5) Quasi In Rem Type 2 Jurisdiction

a. Shaffer v. Heitner

i. P sued D in shareholder's derivative suit. P filed motion to sequester all Ds

stocks, since DE said the situs of a stock was the state where Greyhound
was incorporated.

ii. Court ruled that a state cannot acquire jurisdiction over a nonresident
party's property solely because the property is in the forum state. The
"minimum contacts" test applies.

Diversity – Subject Matter Jurisdiction

1) Every P must be different from every D

a. Domicile

i. For individuals is the most recent state where they resided with the intent
to remain indefinitely (Mas v. Perry)

1. Stateless citizens cannot be sued in federal court

ii. For corporations is the state of their incorporation and the state of its
principal place of business ("nerve center is PPOB" or "place of activity"
test, Hertz)

1. Unincorporated business – domiciled in every state where an

owner or business lives

iii. Purpose of Diversity SMJ is the belief that state courts may be biased
toward local defendants

iv. A U.S. Citizen who is domiciled in a foreign country cannot be sued in

federal court

v. Calculated on the date the action was filed.

b. Amount in controversy must be greater than $75 k

i. Judge has to find it likely that a jury could find damages in the amount of
$75 k

1. P may aggregate claims against a single D can be aggregated even

if the claims are unrelated

2. 2 P’s may sue 1 D as long as one of the claims is for more than $75
k (they both can’t be less)

3. 1 P sues 2 defendant’s, each claim must be more than $75 k

4. If D counter claims, his claim can be less than $75 k if related –

compulsory
 a. Must be raised or D will not be able to raise the claim later

5. If D counter claims and it is unrelated, his claim must be for more

than $75 k – permissive

2) Foreign Citizens

a. Article III, §2 says that federal courts have jurisdiction over cases between U.S.
citizens and foreign nationals/aliens.

i. Federal jurisdiction remains if suit is between two U.S. citizens with an

alien added as an additional plaintiff or defendant. [28 U.S.C. §1332(a)(3)]

ii. This is true even if the foreigner is domiciled in a U.S. state- you first
must be a citizen of the U.S. before you can be considered a citizen of a
particular state.

iii. Permanent residents are exceptions- they are considered state citizens.

Federal Question Jurisdiction

1) Satisfied in any case in which a party seeks to establish a proposition of federal law in
order to prove a claim or defense in the case

a. Mottley

i. SCOTUS dismissed the case for lack of subject matter jurisdiction.

ii. A case only "arises under" federal law if the P relies on federal law as the
source of their right to relief.

iii. The Mottley rule says that courts assess the federal court's subject matter
jurisdiction based solely on the P's complaint. (not possible defenses)

b. Well Pleaded Complaint Rule

i. From Mottley, the court is required to consider not what the P has pleaded
but what P needed to plead to state their cause of action.
 ii. This is to prevent manipulation by Ps; if Ps could make a federal case out
of a state law claim by including unnecessary references to federal law in
their complaints, arising-under jurisdiction could be created by simply
including peripheral or even irrelevant references to federal issues in the
complaint.

iii. By asking not what is in the complaint, but what has to be, the court can
limit the opportunity to manipulate the federal courts' jurisdiction.

Removal

1. If a federal court has SMJ thru diversity or federal question, a defendant can choose to
remove the case from state court to federal court

a. Exception – A defendant sued in state court in his home state cannot remove to
federal court if jurisdiction is based on diversity– even if there is an out of state
co-defendant

b. Reasoning – Defendant should have the option to have the case heard in federal
court just like the plaintiff to prevent being prejudiced

Venue

1) Venue is governed by 28 USC 1391; venue is proper for FQJ and diversity jurisdiction
cases (can be more than one place) in…

a. For individuals (1391(a) and (b))…

i. Any district where a defendant resides, if they reside in the same state

ii. The district where a substantial portion of the events took place

iii. ***FALL BACK PROVISION*** Anywhere you can get PJ over the
defendants, if there is no other district where the suit can be brought

b. For corporations 1391(c)

i. Any district where you can get PJ over the corporation

 c. Note: Aliens can be sued in any district for venue purposes

Forum Non-Conveniens and Transfer

1. 28 U.S.C. 1404 – Federal Transfer of Venue Statute

a. Applies when a case is brought in a court where venue is proper, but the judge
believes the case would be better suited in another district

b. The judge can transfer to a court where it could’ve been filed originally (proper
PJ, SMJ, VENUE)

c. Under this statute, the law where the original suit was filed would apply in the
new case

2. 28 U.S.C. 1406 –

a. Case is filed in a court where venue is improper

b. Judge can DISMISS or TRANSFER

c. The new courts law will apply in the new case

d. If the proper venue is another country, then the case should be dismissed for
forum non conveniens

e. Reasons why the court may transfer a case:

i. Private interest factors

ii. Location of the events giving rise to the case

iii. Ability to implead other parties in the court

iv. Ability to take a view of premises involved in the dispute

v. Location of relevant witnesses and documentary evidence

vi. Public interest factors

 vii. Whether the dispute involves local people or events

viii. Whether it is likely to be decided under local law

Pleadings

2) Rule 8(a) – short statement about why court has PJ, of P’s claim, and what relief they are
seeking (what law was broken)

a. Notice pleading – Standard was set low in Conley

b. Fact pleading –

i. Twombly – Complaint must show facts that make it plausible that it could
survive a 12(b)(6) motion

ii. Iqbal – Legal conclusions aren’t given assumption of truth, the facts are,
facts must make the claim plausible enough to survive 12(b)(6) motion

3) Rule 8(b) –

a. Must confirm or deny each allegation

i. Failing to deny an allegation will result in it being assumed true

b. If knowledge about allegation is lacking, D can state it lacks knowledge to make

informed decision about allegation

4) Rule 8 (c ) – Affirmative defenses must be raised in the answer

5) Rule 8(d) – Can plead in the alternative in the complaint or answer

a. Cant plead it if you know it’s not true

Rule 11 – Policing the pleadings

1) Rule 11(a) – Every signed document turned into the court confirms that:

2) Rule 11 (b)
 a. It is not being brought for an improper purpose, including to harass or raise a
frivolous claim

b. It is warranted by existing law

i. Sanctions can’t be made against the party for this violation because the
attorney is supposed to do this job

c. The party has made an inquiry, reasonable under the circumstances, before taking
the position being asserted in the pleading or motion

i. Inquiry does not have to be made to the point of absolute certainty

(Kraemer)

3) Rule 11 (c ) – Sanctions may be placed on the party, law firm, or attorney for violating
rule 11

a. Safe Harbor rule – party making a motion for rule 11 violation must give the other
party 21 day notice

b. Sanctions do not have to be imposed if rule 11 is violated

c. Sanctions can be monetary or any sanction that will deter

d. Sanctions can be issued sua sponte

Rule 12 – Defenses and Objections

1) Rule 12(a) – the answer must be made within 21 days of being served w/ complaint

2) Rule 12(b) - the following motions must be made in the pre-answer motion or raised in
the answer

a. Lack of PJ, Venue, SMJ, Insufficient Process, Insufficient service of process,

failure to state a claim, improper joinder

b. Lack of PJ, Venue, or SMJ are immediately fatal to the case

3) Rule 12(g) – must make all your motions at once

 4) Rule 12(h)(1) – PJ, venue, insufficient process, and insufficient service are waived if not
raised in first response to the court

5) Rule 12(h)(2) – SMJ, Improper joinder, failure to state a claim are not waived if not
raised at first

Rule 15 – Amending the pleadings

1) Rule 15(a) – Complaint can be amended once before the answer is made – Answer
can be amended 21 days after being served

a. Permission by the opposing party or the court can be granted to amend

pleading once time has lapsed

b. If an amendment is made, opposing party has 14 days to respond to

amendment or whatever time was already left before, whichever is later

2) Rule 15 (c ) – Amending complaint once statute of limitations has run

a. If adding an additional charge to the complaint, the charge must relate back to
the original charge

i. It must arise out of the same event/transaction

b. If another party is being added after the statute of limitations has run, the
added party must:

i. Not be prejudiced in having to defend the case

ii. Must have had notice or had reason to know but for a mistake they
were the party meant to be charged (Krupski)

Discovery

1) Tools for discovery

a. Interrogatories

i. Questions asked to the other party that must be answered under oath
 ii. Limited to 25

iii. Most used tool

b. Production of Documents

i. Asking the other party to give you documents relevant to your case

ii. No limit

iii. Other party must give them up even if it hurts their case

iv. Subpoena duces tecum – asking a non-party to produce documents

c. Depositions

i. Asking witnesses questions under oath

ii. Limited to 10 per side, 7 hours long

iii. If the person being deposed is not a party, must be subpoenaed

iv. Can cross examine witnesses

v. Most useful after interrogatories and work production are completed

d. Request for mental/physical exam

i. Must get court’s permission first because it is intrusive

ii. Must be made in good faith & the condition must be disputed

e. Request for admission

i. Asking other party to admit something

ii. Can’t refuse to admit in bad faith

2) Rule 37 – order to compel discovery

 a. If request for material is made, and other party does not provide it, party can file
for a rule 37

i. Court forces the party to turn the information over or issues sanctions
against the party

1. Must meet with the other party first before issuing a sanction

Scope of Discovery

1) Rule 26(a) – Mandatory disclosures: Must disclose contact information for all witnesses
with discoverable information, copies of all information parties intend to admit as
evidence at trial, computation of damages, insurance agreements that may be used to
satisfy judgments

a. Disclosures must be made within 14 days of the discovery scheduling conference

2) Rule 26(b)(1) – A party may discover any information, not privileged, relevant to a
defense or claim, unless otherwise limited by the court

a. Does not have to be admissible to be discoverabel

3) Rule 26(b)(2) – Cannot obtain attorney/client information, or any other privileged

information

a. Applies only to COMMUNICATIONS, not FACTS

b. Privilege survives death

c. Must be told in confidence

4) Rule 26(b)(3) – Cannot obtain work product material (Hickman v. Taylor)

a. Work product is any document/report made in anticipation of litigation

i. Exception – If there is a substantial need for the information and it cannot

be obtained elsewhere, it may be discoverable

b. Can’t obtain other parties strategy/legal theories

 c. Can’t obtain opposing attorney’s mental impressions

d. Work product applies to parties, not just attorney’s

5) Rule 26(b)(4) – Testifying expert witnesses

a. Can obtain their reports/information if they are testifying at trial

i. Helps opposing counsel cross examine them

b. Expert witnesses cannot switch sides during litigation (Cordy)

c. Non-testifying expert reports do not have to be turned over – relates to work

product – preparing for trial

6) Rule 26(c)(1) – Court can limit discovery if request is inappropriate or burdensome

Summary Judgment

1. Rule 56 provides for SJ motions to be made when a party, before trial, wishes to
challenge the evidentiary sufficiency of the opponent's case.

a. If there is "no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law," the motion will be granted.

b. It is not enough for a party opposing SJ to identify a mere scintilla of

evidence supporting their case; the evidence must be substantial enough
for a reasonable jury to render a verdict in the nonmovant's favor (Liberty
Lobby)

c. The SJ movant must carry the burden of production (identifying evidence,

if not contradicted, that would compel a jury to rule in his favor or a
showing that the other side lacks evidence from which a reasonable jury
could find in their favor (Celotex).

d. If the movant carries the burden, the burden shifts to the non-movant to
identify evidence that would allow a reasonable jury to find in his favor.
 e. Remember that the burden of production is different depending on
whether the movant would carry the burden of persuasion at trial.

2. Test for SJ:

a. If moving party is D (more common) then…

i. Has movant identified evidence, if not contradicted, that would

compel a jury to rule in his favor or has the movant shown that the
other side lacks necessary evidence from which a reasonable jury
could find in their favor?

ii. No. Deny SJ motion.

1. Yes. (burden shift) Has nonmovant identified evidence that

would allow a reasonable jury to find in his favor?

a. Yes. Deny SJ motion.

b. No. Grant SJ motion.

b. If moving party is P, then…

i. Has movant identified evidence, if not contradicted, that would

compel a jury to rule in his favor on each element of the claim?

ii. No. Deny SJ motion.

1. Yes. (Burden shift) Has nonmovant identified evidence that

would allow a reasonable jury to find in his favor?

a. Yes. Deny SJ motion.

b. No. Grant SJ motion.

State Law in Federal Courts

Eerie Doctrine
1) Pre-Erie

a. The Rules of Decision Act

i. If a federal statute, constitutional provision, or treaty applies, it will

provide the governing law.

ii. Otherwise, federal courts should apply relevant state law.

2) Swift v. Tyson

i. The RDA refers only to state statutes, not to the common law decisions of
state courts.

ii. In cases where no federal statute or state statute applies, courts do not have
to rely on state common law decisions; they can look to the common law
of any state or even treatises for authority.

b. Problems

i. Federal courts in diversity cases could reach their own decisions about the
proper rule in common law cases, even if those conclusions contradicted
the governing case law of the state in which they sat.

ii. An out-of-state party to a state action has a distinct advantage.

1. If out-of-state law favored the out-of-state party, they could sue in

that state court. The in-state defendant can't remove in diversity
cases (1441(b)), so they are stuck in that state court.

2. If federal courts applied a more favorable rule, the out-of-state

party could sue in federal court. There is no right to remove from
federal to state court.

3. Thus, the out-of-state party has a choice of different rules since it

has a choice of two different court systems.

3) Erie
a. Holding

i. SCOTUS held that Swift's interpretation of the RDA led to an

unconstitutional assumption of power by the federal courts since they were
making state law through these diversity cases.

ii. The RDA must be interpreted to require federal courts to apply not only
the state statutes, but also the common law of the state in a diversity case.

iii. In federal question cases, if a state claim is brought in through

supplemental jurisdiction, the federal court must still apply state law to
that claim even though federal law will apply to the federal claim.

b. Early issues:

i. How should a federal court apply state law if there are conflicting state
court decisions about the issue at hand?

1. SCOTUS ruled that district courts should use the "supreme court
predictive" approach; federal judges should try to predict what the
high state court would say.

2. A federal judge should very rarely make the prediction that a state
supreme court case would be overruled.

ii. How should a federal court proceed if there is no precedent at all on the
issue?

1. In the same vein, the court should try to predict what state
appellate courts would say.

iii. Which state's law should a federal court use in diversity cases?

1. Every state has choice-of-law rules to deal with this problem. From
Klaxon, federal diversity courts should use the choice-of-law rules
of the state in which it sits.
 2. Thus, a NY federal court should apply whatever state substantive
law the New York state court would apply to the case.

3. This reasoning was based on the fact that Erie mandated that the
case should come out the same way in federal court as it would in
the state court of the state where the federal court sat.

4) Guaranty Trust Co. v. York

a. Outcome-determinative test

i. The choice of state or federal court in a diversity case should not affect the
outcome of the case.

ii. Thus, if federal practice differs from state practice, the court should
determine whether the case would come out differently if it applied its
own rule. If it would, a federal diversity court should use the state rule
instead.

5) Byrd v. Blue Ridge

a. Other policies might outweigh the uniformity policy posited by Erie and York.

b. In cases leading up to Byrd, diversity courts had applied state rules even in
matters having to do with procedure in conducting the litigation under the
outcome-determinative test, but they have constitutional authority to follow a
separate federal practice.

c. The York policy of uniform outcomes must be considered along with other
policies, which might sometimes outweigh the uniformity policy.

i. For example, the division of functions between judge and jury in federal
cases, under the influence of the 7th Amendment, was an important
consideration supporting the use of federal procedure in federal court in
diversity cases.
 d. Since the state law was not "bound up with rights and obligations of the parties"
(in which case the federal could would have to defer to it), the Court could
consider "affirmative countervailing considerations."

i. Byrd did not overrule York, it merely said that balancing was necessary in
matters relating to procedure.

ii. Only if important federal policies would be compromised by following

state rules might the federal court choose to follow a federal procedural
rule in the face of a contrary state rule.

6) Hanna v. Plumer

a. Court recognized two different tracks:

i. Conflicts between state law and federal judicial practices (not a federal
statute or a Federal Rule)

1. If the difference would not create a difference where you would

file – apply federal rule.

2. York dealt with judicial practice of applying laches; Byrd dealt

with the judicial practice of having the jury decide all factual
issues. There was no Federal Rule involved.

3. Of course, in pure substantive matters or those bound up in

substantive rights, state law must apply.

4. The court should consider whether applying the federal approach

rather than the state rule would lead to (1) forum shopping and (2)
"inequitable administration of the laws" (significantly different
litigation opportunities for diversity litigants than for those who
must proceed in state court).

5. The Court said that the question of equitable administration should

be viewed prospectively. In other words, would the litigant before
 filing suit have greater litigation opportunities in federal court if
that court followed its own practice instead of state law?

ii. Conflicts between state law and the Federal Rules of Civil Procedure

1. FRCP trumps everything

Supplemental Jurisdiction - by 28 U.S.C. §1367

1. Supplemental Jurisdiction allows claims that could not have entered federal court on their
own to be heard by a federal court if they are part of a case over which the court has
subject matter jurisdiction.

2. Supplemental Jurisdiction is governed by 28 U.S.C. §1367, a 1990 statute. Before 1990,

Supp. Jurisdiction was governed by common law doctrines of pendent and ancillary
jurisdiction.

a. Pendent jurisdiction allowed federal courts to take jurisdiction over claims

asserted by the original P for which there was no independent basis of subject
matter jurisdiction.

a. A common nucleus of operative facts (Gibbs)

b. Ancillary jurisdiction - usually involved claims by a person other than the

original P where no independent basis of jurisdiction existed. Included:

i. Counterclaims- Included claims by D against P

ii. Cross-claims- Claims by D against a co-D

iii. Intervention- Claims by a third party against D

iv. Impleader- Claims by D against a third party who might also be liable

3. Cases leading up to Supplemental Jurisdiction…

a. United Mine Workers v. Gibbs

 i. SCOTUS held that if the federal court has a basis for subject matter
jurisdiction over one of the P's claims, it may hear other claims that arise
out of the same "nucleus of operative fact."

b. Owen Equipment v. Kroger

i. SCOTUS explained that federal courts can't hear claims just because they
are within the constitutional scope of Article III as explained by Gibbs;
Congress must authorize them to hear the claims as well, by statute. Even
if allowed to do so, federal courts cannot resolve all claims in the case
unless a federal statute authorizes the federal court to hear the related
claims.

c. Finley v. United States

i. The Court ruled that unless Congress had expressly authorized jurisdiction
over the pendent parties, the lack of such an authorization was fatal.

1. This was different from Aldinger v. Howard and Kroger, which

required that there be evidence that Congress had rejected the
pendent party jurisdiction in order for jurisdiction to be invalid.

ii. Essentially, Finley was the death knell for pendent party jurisdiction,
because if there were a statute that expressly allowed for jurisdiction then
there would be no need to invoke the doctrine, and without such a statute
the doctrine could not be employed.

iii. The Finley court invited Congress to do something about it. Congress
responded with §1367.

4. Supplemental Jurisdiction under §1367

a. Congress reacted by enacting 28 USC 1367(a) which broadly authorizes federal

courts to exercise "supplemental jurisdiction"
 b. §1367 provides for "supplemental jurisdiction" and replaces the common law
doctrines of pendent and ancillary jurisdiction. Three important aspects:

i. §1367(a)- incorporates Gibbs limits on claims over which there is no

independent basis of jurisdiction to those that are part of the same
constitutional case or controversy as the jurisdiction-conferring claim.

1. Most courts use the "common nucleus of operative fact" principle.

2. If a claim satisfies the Gibbs test, it satisfies the statute and vice
versa.

c. §1367(a) expressly allows the addition of new parties to federal question claims.

5. §1367(b) bars supplemental jurisdiction where a district court's jurisdiction is "founded

solely on §1332," the diversity statute.

a. This was an attempt to codify Kroger ruling.

i. In diversity cases only, the federal court will not have supplemental
jurisdiction over certain claims by Ps or persons sought to be joined as Ps,
if the plaintiff being added ruins diversity

1. The purpose for this exception to 1367(a) is to prevent parties from

evading the Strawbridge complete diversity rule.

b. 1367(b) does not apply when the extra parties are brought in by the D.

c. Also bars supplemental jurisdiction over claims by plaintiffs against intervenors

under Rule 24 that would ruin diversity

6. §1367(c) sets out four grounds on which a district court may decline to exercise
supplemental jurisdiction.

a. The claim raises a novel or complex issue of state law.

b. The claim substantially predominates over the claim or claims over which the
district court has original jurisdiction.
 c. The district court has dismissed all claims over which it has original jurisdiction.

d. Other exceptional circumstances.

7. Joinder

1. Rule 20(a)(1) – Plaintiffs can sue together if their claims arise out of the same transaction
and share a common question of law or fact

2. Rule 20(a)(2) – Plaintiffs can sue multiple defendants if the claims arise out of the same
transaction and share a common question of law or fact

a. Makes sense because allowing the Plaintiffs to sue together helps avoid
inconsistent results from separate lawsuits

b. Note – plaintiffs are not required to sue together

3. Rule 18(a) – A plaintiff suing a D can sue him for EVERY claim he has in the same suit
– even if the claim is unrelated

i. Note – don’t have to sue for every claim in one suit

ii. Note – if the claims arise out of the same set of facts/transaction – it must
be raised so it won’t be barred later by res judicata

4. Rule 13 -

a. Rule 13(a) – Compulsory counterclaim – must be raised by the defendant if it

arises out of the same events

b. Rule 13(b) – Permissive counterclaim – doesn’t have to be raised by the D since it

is not related to the facts, but it can be raised

c. Rule 13(g) – Cross claim – a claim asserted by one party against a co-party that
arises out of the same transaction

i. Once a proper cross claim is made against a co-party, unrelated claims can
be made against the co-party
 ii. Cross claims do not have to be joined in the same law suit – like
permissive claims

5. Rule 14 – Impleading

a. Defendant can bring in a person not yet a party to the suit who may be liable to
the defendant

i. Cannot bring in another person who is liable to the plaintiff only (plaintiff
would’ve sued this D if they wanted to)

ii. Permissive – D’s don’t HAVE to implead somebody – they can bring a
separate action

iii. Impleading complaint must be served within 10 days of original complaint

being served

1. Court can deny to implead someone

2. Complaint must be made/served on the party D wishes to implead

7) Rule 24 – Intervention – a non-party requesting to be joined in the law suit

a) Rule 24 a1 – allows a person to intervene as of right if a statute authorizes the party to do

so

b) Rule 24 a2 – authorizes a person who is not a party to a case to intervene if three

conditions are met:

i. The person claims an interest relating to the property or transaction that is

the subject matter of the action

ii. That interest may, as a practical matter, be impaired if the person is not
allowed to participate in the case, and

iii. The absentees interest is not adequately represented by those already

parties in the action
 c) Rule 24 b 1 – Allows intervention of any person who has a claim or defense that shares
with the main action a common question of law or fact (much broader)

d) Rule 24 b 3- Court can deny intervention if:

i. Request is not timely & would delay the resolution of the case

ii. Or if the court decides it is best not to allow it for whatever reasons

Res Judicata (preclusion)– The idea is that once a judgment has been entered, it is final and the
case cannot be tried again

1. There must be a final judgment

a. Summary judgment and default is a decision on the merits

2. The judgment must be on the merits

a. Meaning the original trial was not dismissed for lack of PJ, SMJ, Venue, etc.

3. The claims must be the same in the first and second suits

a. Most jurisdictions define this as the claim arises out of the same
transaction/occurrence – if the claim arises out of the same transaction and
could’ve been brought you are barred from bringing it in another suit

4. The parties in the second action must be the same as those in the first

a. Privity -

Collateral Estoppel – issue preclusion

1. The idea is that once an issue has been litigated and has been rendered a final judgment –
it cannot be litigated again later

2. Elements

a. The issue to be precluded in the second action must be the same as that litigated in
the first
 b. It must have been actually litigated and decided in the first action

c. The decision of the issue in the first action must have been necessary to reach the
judgment rendered in the first action

i. Note – difference between this and res judicata is that this only applies to
issues actually litigated – res judicata can apply to issues that were never
even raised

3. Defensive collateral estoppel – Defendants can estop a P from suing for an issue that was
already decided

a. Can always be used

4. Offensive Collateral Estoppel – Plaintiffs estop D from raising a defense that failed in a
previous case involving same set of facts

a. Can use this if P could not have joined in the first suit and application would not
be unfair to the defendant (did D have a fair opportunity to litigate in the first
suit?)

b. Mutual collateral estoppel – parties are the same in both suits

c. Non-mutual collateral estoppel – one of the parties in the 2nd suit is different

Rule 60 – Relief from judgment

1. Rule 60 a – If there has been a judgment in a case and it based on a clerical mistake,
oversight or omission

2. Rule 60 b – Grounds for relief

a.