Asahi

McIntyre
I.

Personal Jurisdiction (Are we in the right court?)

a. Can the plaintiff sue the defendant in a particular state?
i. Going to be the same whether its federal court of state court.
1. The court must have power over something
a. They can only get power in two ways.
i. (1) Power over the defendant herself.
ii. (2) Power over the defendants property
b. Three types of personal jurisdiction
i. (1) In personum
1. The court has power over the defendant themself
2. She has various contacts with the forum
ii. (2) In rem
1. The court has power over the defendants property
2. Ex) Land, automobile, bank account
iii. (3) Quasi in rem
1. The court has power over the defendants property
iv. Always prefer in personum
1. If you cant and they have property in the forum, then youll try
to get them under in rem or quasi in rem.
c. How do we know whether a court has power in any of these senses?
i. The Due Process clause of the Constitution sets the outer boundaries.
They tell how far a court can reach in any of these three types.
1. If our case falls within the Due Process circle, then the
judgment is Constitutionally valid.
a. Entitled to Full faith and credit
2. If the case falls outside of the Due Process circle, then the
judgment is void.
a. No good, and not entitled to full faith and credit.
3. Kicker: The fact that it falls within the Due Process circle is not
the only thing that would make it valid.
a. Second step: The state must have a statute that grants
personal jurisdiction in this case
i. The state has to take pj power by passing a
statute.
d. Analytically on the exam
i. Is there a statute?
1. If yes, is jurisdiction constitutional?
a. Does it fit within the bubble?
ii. Always start with the statute.

A. In Personum Jurisdiction

a. Definition: When the court has power of the defendant herself.

b. In personum jurisdiction will either two classified in two ways:

i. General
1. The defendant can be sued in this forum, on a claim that arose
anywhere in the world.
2. Ex. If you live in Virginia, you can be sued on a claim that arose
in Virginia, or CA, or Australia. Anywhere.
ii. Specific
1. Where the D is sued on a claim that arose in the forum.
2. Ex. If VA has power, then youre being sued over something
that youve done in the state.
3. Called: The Doctrine of Relatedness
a. Does the claim arise from the Ds activities (contact) in
the forum?
b. If it doesnt, its only ok if we have general jurisdiction
c. The Constitutional Limit
i. Pennoyer v. Neff
1. Gives us the traditional basis of personal jurisdiction
a. (1) D is served with process in the forum.
i. Usually called PRESENCE
ii. Gives us general jurisdiction.
b. (2) D agent is served with process in the forum.
i. Agent is someone whos acting on your behalf.
c. (2) D has domicile in the forum.
i. This gives general jurisdiction
d. (4) D consents to personal jurisdiction.
2. Under this system it is very hard to get personal jurisdiction.
a. If the D doesnt have those last three things, you have
to catch the person in the forum and serve him, which
became very hard to do.
3. To deal with this, courts expanded the traditional basis.
a. Hess v. Palowski
i. PA citizen drives to MA, gets in car wreck;
Plaintiff wants to sue PA guy in MA. PA guy gets
out of state.
ii. Non-resident motorist act
1. By driving into our state, you consent to
jurisdiction for a case arising from your
driving.
2. Also, you appoint a state officer as your
agent in that state for service of process.
3. Brilliant because its completely
consistent with Pennoyer.
a. Expands the decision in Pennoyer
from consent become implied
consent

b. From service on agent to saying

youre appointing an agent.

b. International Shoe
i. Time to restate the principles of personal
jurisdictions
ii. To have jurisdiction over the defendant, the
defendant must have such minimum contacts
with the forum, so that jurisdiction doesnt
offend traditional notions of fair play and
substantial justice
iii. Three points about Intl Shoe
1. By this time we know that we can serve
process outside of the forum.
2. It appears that there are two parts to
International Shoe
a. Contact part
i. Minimum contacts
b. Fairness part
i. Fair play and substantial
justice
3. Nowhere does it overrule Pennoyer.
a. In fact, Minimum contacts is the
test if the D is not present when
served.
b. Implies the traditional basis of
Pennoyer exist along side this
new test.
c. McGee (1957)
i. Texas insurance company sued in CA based on
one insurance sale in CA. Jurisdiction upheld.
ii. Emphasized that Texas company solicited
business in CA. Reached into CA to sell policy
iii. Also emphasized that CA had an interest in
providing justice for its citizen.
d. Hanson (1958)
i. Under Intl Shoe the contact must result from
purposeful availment.
1. Purposeful availment: The D must reach
out to the forum.
2. Must avail herself of the forum
3. Must direction her activities to the forum
in some way.
ii. This wasnt present in Hanson.

iii. Wealthy PA women entered relationship or

trust with a DE bank and then moved to FL.
Kept making transactions with bank until she
died. Do we have jx in FL over the DE bank?
iv. No, bc DE bank did not avail itself to FL. The
only reason it was doing business with FL was
because the wealthy women moved there.
e. Worldwide Volkswagon (1980)
i. NY family buys car in NY; Going to move to AZ;
On the way, they crash in OK; NY family sues in
OK on defective design; Ct. rules they have no jx
over NY retailer or distributor. Why?
1. B/c the retailer and distributor did not
purposefully avail itself to Oklahoma.
2. Only reason car got there was b/c
plaintiff drove it there.
3. Just like in Hanson.
ii. People were shocked b/c its foreseeable that
cars drive to other states.
1. Ct. says its not enough for it to be
foreseeable for the product to get there
(to OK).
2. Must be foreseeable that the D could get
sued in that forum.
3. This dumb because its a circular
argument. If I know my product may go
there, then obviously I can get sued
there.
f. Walden
i. Ppl in Atl, police officer seizes their money even
though they leave
g. Burger King (1985)
i. Contract Case
ii. Burger place sues franchises from Michigan in
Miami
iii. Court upheld jurisdiction
iv. Shoe has two parts:
1. Contact part
a. Must have a relevant contact
between d and the forum before
you have fairness.
b. BURGER KING HAD CONTACTS
2. Fairness part.
a. D must show that it is so gravely
inconvenient that hes at a severe
disadvantage in the litigation.

b. Court says tough. You better make

it.
c. Relative wealth of the defendants
does not matter
d. Tough to prove the fairness
standard.
e. Written by Justice Brennan
b. Asahi
d. Stream of Commerce
i. Manufacture component in state A; Sell it to state B; Company in state
B puts part into its machine and sells products into state C, D, E.
ii. Does this mean manufacturer has a relevant contact in state C, D, or E?
1. Have they purposefully availed themselves?
iii. Split decision
1. Four Justices For Jurisdiction (led by Brennan)
a. Brennan
i. It is a contact if you put the valve into the
stream and I reasonably anticipate that it will
get to state C, D, and E.
ii. Must sense because a person wouldnt make so
many valves if they werent being used in other
states.
2. Four Justices Against Jurisdiction (Led by OConnor)
a. OConnor
i. Need what Brennan said PLUS an intent to serve
the market in state C, D, and E.
1. That you targeted in that state.
a. Advertising
b. Customer Service there
c. McIntyre v. NiCastro (4-2-3 split)
e. Facts
i. English company manufactures enormous metal cutting machine.
ii. Company reaches out specifically to Ohio
iii. Ohio company sells them all throughout the U.S.
iv. Guy gets hurt using machine; Supreme Court holds no PJ
f. Why not Personal Jurisdiction?
i. 4 Justices (led by Kennedy) adopt OConnor theory
1. They did not target New Jersey
a. No purposeful availment and no contact
ii. 2 Justices (Breyer and Alito) Take no sides
1. Dont think you have to talk about it cause neither thing were
met.
iii. 3 Justices would have upheld jurisdiction based on Brennan theory
1. If you target the U.S.A and you know the product will get into
other states.

iv. Leaves us with no law on stream of commerce. But two very good
arguments
1. Brennan
2. OConnor
v. MAKE BOTH ARGUMENTS
d. Burnham (4-4-1)
g. NJ man is served with process in CA
h. Does CA have general jurisdiction (because claim arose in NJ) over man in NJ
i. Does presence when served count enough or do you have to have an analysis
under SHOE?
j. 4-4 split
i. 4 Justices (led by Scalia)
1. Presence when youre served (traditional basis) is good enough
a. Historical pedigree is good enough (Pennoyer)
ii. 4 Justices (led by Brennan)
1. Must apply International Shoe regardless of historical pedigree
2. Every time you exercise PJ you have to use International Shoe
General Jurisdiction
D can be sued on claim that arose anywhere in the world
Historically, courts allowed GJ if D had historic and systematic ties then its ok
o A company like Wal-Mart who has stores in all states
A. Goodyear (2011)
General Jurisdiction is ok only where the defendant is AT HOME
o Examples they gave:
A human is at home where they are domiciled
A corporation is at home where they are incorporated AND where it has
its principle place of business
RECAP

i. Constitutional Analysis

o First thing you have to look at: Does a traditional basis apply
If YES (guy was served with basis in the forum), you have to talk about
Burnham split of authority
4 Justices say that is enough by itself, No SHOE
But 4 other justices said no and that you need to do shoe test.
If there is no traditional basis, You must do the SHOE
To do the SHOE test, you must do three things:
o 1. Is there a relevant contact between D and the forum (MUST HAVE THIS)
To get this you must have
A. Purposeful Availment
o The D must reach out to the forum. (Did she use roads,
try to make money there, etc.?)_
B. Foreseeability
o Must be foreseeable that the D could get sued in the
forum
Problems here:

Stream of Commerce
o When you get this, reference both arguments (Brennan
and OConnor) and pick

o 2. Relatedness?
Does the Plaintiffs claim rise from the Ds contact?
If yes, then it is specific jurisdiction. (Let your professor know
this.)
o Access whether its fair
If no, then its only ok if we have general jurisdiction.
o General jurisdiction is only ok where the defendant is at
home.
o 3. Is Personal Jurisdiction fair?
THIS STEP ONLY APPLIES IN SPECIFIC JURISDICTION.
The five fairness factors:
1. Burden on the defendant.
o Burger King says this is a tough standard to meet.
2. Forum states interest
o McGee: Court said its ok for California to want to have
jurisdiction here to protect to vindicate its peoples
rights
3. Plaintiffs interest
o Does have an interest in chosing the forum.
If Plaintiff is injured, it may be tough for them to
travel.
4. Efficiency
o Maybe some place is better because all witnesses are
from there.
5. Shared substantive policies of the state
o Kulko: Interest in family harmony
Just Go through all of them

ii. State Statutory Analysis

A. If there is a state statute, then do the Constitutional analysis above.

B. Every state has statutes that allows PJ based on a traditional basis
C. Every state has non-resident motorist act just like in Hess. Specific jurisdiction
D. Every state has a long-arm statute.
A lot like non-residents act
Vary from state to state.
o Must worry when they have a laundry list long arm that list various
things a D can do to subject themselves to Personal Jurisdiction.
o Usually are specific jurisdiction
Ex) We have jurisdiction over a non resident when he does
business in a state.
Gray vs. American Radiator (Be Ready for this)

o Language in the long-arm says: We have jx over

a resident who commits a tort in our state
o Hypo: I make widgets in state A and sell them to
you in state B. You get hurt in state B.
o Illinois view: Yes, you committed tort in state B.
o New York view: No, you did nothing in state B.

Hypo: Plaintiff lives in Maryland and decides to drive to Virginia. While

there he buys a cuckoo clock and takes it home to Maryland. One day, the
clock break and injuries the Plaintiff at home in Maryland. P wants to sue the
D. Is there in personum jurisdiction over D in Maryland?
o First thing: Does a Maryland statute allow Personal Jurisdiction?
Because there are no traditional bases (no domicile, agent, not
served with process) so its going to be a long arm statute.
We have jurisdiction over person who commits tort in
Maryland
o Yes, there is jurisdiction; Illinois view: some
courts would say yes because the injury
occurred in that state.
o No, no jurisdiction; New York view bc the clock
was made in Virginia.
o Constitutional Analysis (Must do shoe test)
1. Is there a relevant contact between Uncle Joe and
Maryland?
Did Uncle Joe purposefully avail himself of Maryland?
o No because the only reason its there is bc the
plaintiff took it to Maryland.
o However, on test, if the prof says that he
advertises in MD, location of the store, Plaintiff
paid with an out of state check that D normally
doesnt take but only if its Maryland.
Was it foreseeable that Uncle Joe could get sued in
Maryland?
o Make any argument. If product is defective then
maybe it is foreseeable.
2. Relatedness
Yes, because it arises from Uncle Joes clock being in
Maryland
Means its specific jurisdiction
3. Fairness factors
A. Burden on the defendant?
o If he says it is too far, the court will not buy it
because it is close in proximity
B. States interest?

o MD may have a state interest in keeping citizens

safe
C. Plaintiffs interest
o Might be hard for plaintiff to travel depending
on injury
D. Efficiency
o Could be efficient to litigate in MD b/c that is
where all of the witnesses are, all of the damage
has been done.
E. Shared substantive policy.
o Unknown
HIT EVERY FACTOR!!!

B. In Rem Jurisdiction/ Quasi In Rem (QIR)

1. The defendant has property in the forum and we are going to use that property as
the basis. (ex: land, watch, bank account)
a. In Rem:
i. the lawsuit is about who owns that very property.
ii. Ex: Were going to use a car for jurisdiction. The question is who owns
it.
b. Quasi In Rem
i. The dispute has nothing to do with ownership of the property. We
know the defendant owns it. We couldnt get in personum so we are
trying to use defendants property as jurisdictional basis.
ii. Best example comes from Pennoyer v. Neff
1. Underlying dispute from Mitchell v. Neff
a. Sued Neff for breach of contract; couldnt get in
personum so he had jurisdiction over Neffs property in
Oregon.
2. This would have worked but for quasi in rem, the court must
attach the property at the outset of the case. (Court takes
possession of it.) Different today.
3. If happens today:
a. FIRST, you must find state statute. Must be something
that allows theses jx. Most of the time called an
attachment statute. (ex. We can seize property D owns
or claims to own)
b. SECOND, is personal jurisdiction Constitutional?
i. Test is from Scaffer v. Heitner
1. Seizing from the outset is NOT enough
2. Must ALSO show that the D meets INTL
SHOE (min. contacts, traditional notions,
etc.)

II. Notice (Are we in the right court?)

o We must notify the defendant. Due process requires that we give the defendant
notice and a chance to be heard.
o In regular lawsuit, we mean service of process on the defendant.
A. Service of Process
a. Federal Rule 4 (Tells us all about serving process in federal court)
i. Process consists of a (1) summons and (2) copy of the complaint
1. Summons: The official court notice that youve been sued. Signed
by the clerk and served with complaint.
2. Copy of the complaint
ii. Process can be served by any nonparty who is at least age 18.
iii. How do we serve an individual or human? Rule 4 (e)
1. Rule 4 (e)(2) gives us three alternatives
a. Personal service
i. Walk up to the guy and hand him the papers. Can be
anywhere at all.
b. Substituted service
i. Must show that it is at defendants dwelling or
usual abode.
ii. You serve someone of suitable age and discretion
who RESIDES there.
1. Babysitter would not work but butler would.
c. Serve the defendants agent.
2. Rule 4 (e)(1) allows us to use state law methods for process
a. State law where the federal sits or where the service is
actually done.
i. Ex. Service by federal mail.
iv. How do you serve process on a business?
1. Rule 4 (h)(1)
a. You are going to serve an officer or managing or general
agent. (Going to depend on the facts).
2. Rule 4 (e)(1) allows us to use state law methods for process
a. State law where the federal sits or where the service is
actually done.
i. Ex. Service by federal mail.
v. Waiver of service
1. Rule 4 (d) Allows waiver by mail.
a. Mail to the defendant the process and TWO COPIES of a
waiver form.

b. Send him self addressed stamp envelope.

c. If she signs waiver and mails it back within 30 days, she
has waived formal service.
i. Does not waive any defenses.
d. If she does not return the waiver form, then we must serve
her but she pays the cost of the service.
e. If she does waive the form of service, she will have 60 days
in which to respond.
B. The Constitutional Standard
a. Mulane
i. Notice must be reasonable calculated under all the circumstances to
apprise the party of the preceding.
b. Notice can be constitutional even if the defendant did not get it.
i. If you take all the step it doesnt matter if the defendant does not get
actual notice.
c. Duzinberry
i. It can be constitutional even if the defendant did not get actual notice.
Only requires reasonably calculated under the circumstances
d. Jones v. Flowers
i. If the plaintiff becomes aware that the defendant did not receive it, she
might have to try another means.
1. Govt kept sending mail to guys house and it kept getting returned
bc he no longer lived there. Everyone knew he didnt.

III. Subject Matter Jurisdiction (Are we in the right court?)

-

Different that Personal jurisdiction because SMJ deals with what court we can
sue in a particular court
- State court or federal court
- PJ is exercised over the parties (PJ-parties; SMJ over the courts.
- State courts can typically hear any case.
o Besides bankruptcy, patent infringement
- Federal courts can only hear certain types of cases.
o If you dont fall within one of these then you cannot go to federal court.
o Only two types that can go to federal court are:
Diversity of citizenship
Federal question
A. Diversity of Citizenship
a. Section 1331(a)(1): For a diversity case you must have two things:
i. Case is between two people from two different states
1. Complete diversity rule
a. There is no diversity if any plaintiff is a citizen of the same
state as any defendant.
i. Draw vertical line. If any states are on both sides of
the line, then it doesnt work.
2. Citizenship of a human being

a. A U.S. citizen is a citizen of the state where domiciled.

i. Every human being has one domicile.
1. To change domicile you must:
a. Physically move to a new state.
b. Form the intent to make that your
new and permanent home.
c. Ex. Born in OK, want to move, must
make the intent.
d. Not college kids.
e. Even if you are on your way to a new
state, until its official your still
domiciled in old state.
3. What is the citizenship of a corporation?
a. 1332(c)(1): Corporation is a citizen of state where
incorporated AND its principle place of business (PPB)
i. Can be a citizen of two states at one time.
ii. Vertical line test: Can have two sides still.
iii. On test the toughest part must be establishing PPB
iv. Look at time of filing
1. Hertz
a. PPB is where the managers director,
control, and coordinate corporate
activities. (NERVE CENTER)
4. What is the citizenship of an unincorporated businesses?
(Partnerships, LLCs)
a. No statute on this. All case law and its clear.
b. Look to the citizenship of all members of the business.
i. Look at all the board members or partners of the
business.
ii. If there are 18 partners from 18 different states,
you have 18 different citizenships.
ii. Amount in controversy must exceed $75,000.
1. Must EXCEEED $75,000. If $75,000 on the dot, it will not work.
2. The plaintiffs claim governs unless it is clear to a legal certainty
that the amount does not exceed $75,000. Must be Clear
3. Aggregation (Occurs only when)
a. Must add multiple claims to get over $75,000
b. Aggregate the claims of one plaintiff versus one
defendant.
i. Two claims against the defendant: One claim for
$50,000; One claim for $40,000; $90,000
c. Cannot aggregate if there are multiple parties
i. If the plaintiff sued two defendants: One for $40k,
One for $50k, NO
d. Sub-RULE: With a joint claim, use the total value of the
claim

i. NUMBER OF PARTIES HERE IS IRREVELANT

ii. Three people beat someone up, over $75,000 in
money, this is ok.

B. Federal Question (FQ) Jurisdiction (Sect. 1331)

a. A case that arises under federal law.
i. Figured out through the Well-Pleaded Complaint Rule
1. Louisville Railroads v. Motley
a. As soon as you see federal law, circle it! Youre going to
have to figure out if it is a federal question case
b. Congress passes law saying that railroads cannot give out
free passes. Even though Motleys had already been
promised free passes for life.
c. They sue the railroad with two claims
i. Breach of contract: RR said they would give free
passes but are not.
ii. New federal law does not apply to us.
d. It is not federal question case because it did not arise
under federal law.
e. Well Pleaded Complaint Rule
i. You look only at the claim itself and ignore
everything else.
ii. Breach of Contract is not federal
iii. New federal law does not apply to us. This is not
applicable either.
f. Easy way to apply the well pleaded complaint rule on the
test?
i. Ask yourself one question, Is the Plaintiff
enforcing a federal right? Do they like the law?
Are they getting something out of it?
1. Answer in Motley is no because the federal
law does not give them any rights. It is
actually taking them away.
C. Supplemental Jurisdiction
- Does not get a case into federal court. Only comes up once case is already in
federal court.
- For every single claim in federal court, there must be federal subject matter
jurisdiction.
- For every single claim we ever see we have to test it for diversity and federal
question.
o If it meets one of them, then its ok and it can come into federal court.
- What if there is an additional claim in the case that does not met these two
things?

o Then we have to try to get it in through supplemental jurisdiction.

a. Section 1367 codifies Supplement jurisdiction
i. Gibbs
1. Involved labor disputes in the coal fields in the Appalaians
2. P (TN) Federal question (FQ) Violation of federal labor laws (Yes, its ok)
Based on state law (1. Does not invoke FQ; 2. Does not invoke diversity bc
D is also from TN)
3. Gibbs said that supplement jurisdiction would allow this claim IF it shares a
common nucleus of operative fact with claim number one.
a. Sub-rule: Always met if the claims arise from the same transaction or
occurrence (T/O)
ii. 1367(a) or 1367(b)
1. Does 1367(a) grant jurisdiction?
a. Yes, if it meets Gibbs.
2. Does 1367(b) take away that jurisdiction?
a. APPLIES ONLY IN DIVERSITY CASES. NEVER APPLIES IN FEDERAL
QUESTION.
b. It takes away jx over claims by the plaintiff. Does not deal with the
defendant
c. Doesnt deal with ever claim by the plaintiff.
D. REMOVAL
a. Term of art that means that the defendant is going to have a case transferred
from a STATE TRIAL COURT to a FEDERAL TRIAL COURT. Can only go from
state to federal. Not only way around.
i. If it does not belong in federal court, then the court REMANDS it.
b. Sections 1441, 1446, 1447 (All relevant) (Can be boiled down to four rules)
i. Rule #1: Defendant can remove if the case could have been filed in
federal court.
1. EXCEPTION: You CANNOT remove a diversity case if any
defendant is a citizen of the forum. (In-state defendant rule)
2. Hypo: Plaintiff of SC. Sues two Ds. D1 citizen of NY, D2 citizen of
GA. Sue in a GA state court.
a. Can defendants remove? No. Because you have an in-state
defendant.
b. Curveball from professor: Plaintiffs claim arises under
federal law.
i. Yes, you can remove now b/c in-state D rule only
applies in diversity cases.
ii. Rule #2: You must remove within thirty days of service of process.
iii. Rule #3: All defendants who have been served with process must join.
1. When you remove, you dont have to get permission, you just do
it.
iv. Rule #4: The thirty days starts a fresh with each newly served
defendant.
1. Ex) On June 1, P sues two Ds. On June 1, P has processed served
on D1. In August, D2 gets served. Thirty days gets renewed.

IV. Venue (Are we in the right court?)

- Whats the difference between SMJ and Venue?
o SMJ = told us that we can go to federal court. Venue tells us exactly which
federal court we can go to.
94 Federal Districts that you can lay venue in.
A. Plaintiffs Choices
a) 1391 (b)(1)(2)
i) Theres give the plaintiff two choices in laying venue.
(1) You can lay venue in any district where ALL defendants reside.
(a) Sub-Rule: If all defendants reside in the forum, we may lay venue in a
district where any of them resides.
(i) Ex. One resides in North Texas, one in El Paso. Since they both are
from the state, you can go to either.
(ii) What does reside mean?
1. A human being resides in the district where domiciled. Business
resides in all districts where subject to personal jurisdiction for
this case.
(2) You can lay venue in any district where a substantial part of the claim arose.
(a) There can be more than one district
B. Transfer
i) Has to be from one court to another in the same judicial system. (ex. Federal
judicial system)
ii) Terminology:
(1) Transferor: Original federal court
(2) Transferee: One to which we send it.
iii) Section 1404(a), 1406(a)
(1) THE TRANSFEREE MUST BE A PROPER VENUE AND HAVE PJ OVER THE
DEFENDANT. MUST BE TRUE WITHOUT WAIVER.
(a) This means if you get sue in the federal district court in MN but you say
its too cold and want to transfer to Hawaii.
(b) No venue here or PJ but you say youll waive them.
(c) Doesnt matter if you waive them. Can only transfer to that district if it is a
good venue and has PJ.
(d) Plaintiff must agree as well which never happens.
(e) True under both statutes
(2) 1404(a) Is when the transferor is a proper venue.
(a) Factors are:
(i) Convenience
1. Witnesses. Evidence?

2. Atlantic Marine
a. If parties have a forum selection clause for a particular district,
we will almost always transfer to that district.
(ii) Interest of Justice.
(3) 1406(a) is when the transferor is an improper venue.
(a) You can transfer or dismiss on this basis.
C. Forum Non-Convenience
1. Where a court dismisses because there is another court that far more convenient or
the center of gravity.
a. We dismiss because transfer is impossible.
i. Impossible because that convenient court is in a different judicial
system. Ex) a foreign country.
ii. Piper Airlines
1. All people involved were from Scotland but plane was
manufactured in Scotland. Court said it had to be dealt with in
Scotland.
2. Footnote 6. All the public and private factors. Same factors in a
1404 transfers. Determines whether the court is the center of
gravity.
b. The other court must be an adequate forum. We cannot dismiss under FNC if
the plaintiff does not have an adequate forum
i. Adequate forum does not mean that you will recover as much there as
you will here. (You usually wont)
ii. To be adequate it just means that you are going to get a day in court.
V. Erie Doctrine
- The problem is going to come up in a diversity case.
- Look for: Youre in federal court of diversity and there is an issue the court has to
decide.
o Question is this: In deciding this issue, must the federal judge apply state
law?
o Black letter answer Come from Erie itself.
A. Erie Railroad v. Tompkins
1) Federal judge must apply state substantive law in a diversity case.
a) This means that if this issue is an issue of substantive law then the federal judge
must apply state law.
b) Starting point on exam is going to be HANNA V. PLUMER
First thing you must do is: Is there a federal directive on point? Is there some kind
of federal law addressing this issue that the judge must address? On exam it will
probably be Federal Rule of Civil Procedure. (F.R.C.P)
If yes, then you apply the federal law as long as its valid. This is not an Erie
problem at all. Based on supremacy clause of the Constitution.

Hanna Prong of the analysis: Is that issue covered by a federal directive. Is that
federal directive on point? Then it wins.
How do you know if a federal rule is valid?
FRCP is valid if it meets the Rules Enabling Act. Section 2072.
- Most judges seem to say that a FRCP will be valid under the REA if it is
arguably procedural. THEY ALL ARE.
If no federal directive on point, then it is an Erie problem.
- Erie said you have to follow state law if it is a matter of substantive law.
- This came from the Rules of Decision Act. Sect. 1652 and the 10th Amendment.

Erie Prong of the Analysis

1) Outcome Determination
a) Guarantee Trust (1945)
i) Under state law the state statute of limitations would bar the case. A federal
judge is in charge of this case. There is no federal directive. No federal statute of
limitation. Can she ignore the state law?
(1) Supreme Court says No she cannot ignore the state law.
(2) Must apply the state statute of limitations. It is substantive because it is
outcome determinative. Why?
(a) If you apply the state law, the case is dismissed today. If you ignore it,
then the case continues, which is a different outcome. We dont want
different outcomes.
2) Balance the Federal and State Interests
a) Byrd v. Blue Ridge (1958)
i) State law said that a Particular issue had to be decided by the judge instead of a
jury. Federal diversity case and the federal judge wants to ignore it and give it to
a jury. No fed directive. Can the judge ignore state law on this issue?
(1) Court says yes because ordinarily we follow state law in diversity case but we
do not have to if there is a federal systemic interest in doing it different.
(2) The Court weighed the interests of state and federal courts.
(a) States had no interest because the state did not know why they had the
rule.
(b) Federal courts have an interest in running their own allocation of
authority.
ii) Problem with Byrd is they never go back to it and never tell you how to weigh
things.
3) Twin Aims of Erie
a) #1 Avoid Forum Shopping
b) #2 Avoid the Unfair Administration of the Law.
c) How to apply them:
i) At the outset of the case, ask yourself this: If the federal judge ignores this state
law, will it cause people to flock to federal court? If so, then its a bad idea and we
dont want to do it.
(1) Dont want to encourage forum shopping bc it is unfair to in-state people.
d) Gasperini (very confusing)

Hypos: We have a case based on state law brought in federal court, diversity case brought
as a class action. Federal Rule 23 would allow it as a class action. State law requires that
you do them individually and not in a class action. Do you have to follow that state law?
1. Is there a federal directive on point?
a. Yes, Federal Rule 23 is on point and governs this issue. Therefore, it applies as
long as its valid and it is valid. We dont have to talk about anything else.
(Hannah Case)
Hypo 2: Were in state x, legislature is worried about health care costs, so they pass a statute
that says, If you file a medical malpractice case, it must go to arbitration before you can go
to the jury. Plaintiffs hate this because arbitrations are lawyers and doctors who wont cry.
Citizen of State Y goes to a doctor in state X on vacation and the doctor commits
malpractice. Does the federal judge have to apply the medical malpractice arbitration
procedure?
1. Is there a federal directive on point?
a. No
b. Must go to Erie Prong.
2. Is it outcome determinative?
a. Who knows. Sense that you will recover less in arbitration but it is not know.
3. Balance of Interest
a. Here state has serious interest trying to reduce medical malpractices costs.
b. Federal does too but
4. Twin Aims
a. If the federal judge ignores the state law, will it cause people to flock to federal
court?
i. Yes, every plaintiff that can do this, will do this.
b. Under twin aims of Erie, plainly apply the state law.
VI. Pleadings
A. The Complaint
a. Filed by the plaintiff. Commences court.
b. Under rule 8(a): Three things must be included in a complaint:
i. #1 Statement of Subject Matter Jurisdiction
1. Federal courts can only hear certain types of cases so we have to
make sure that we belong there.
ii. #2 Short and plain statement of the claim
1. Historically, federal rules used notice pleading. Now because of
Twoby and Ickbar things have changed.
a. Twoby/Ickball Rules
i. The court ignores conclusions of law and focuses on
allegations of fact. (Ignores reckless, just facts)
ii. The plaintiffs facts must state a plausible claim.
iii. The Judge uses her experience and common sense to
access plausibility.
b. Flag: Some things, like FRAUD, must be pleaded in more
detail.

i. Until rule 9(b)(circumstances of fraud), you must allege

with particularity. Give chapter and verse.
iii. #3 Demand for relief
1. Tell the court what you want (damages, relief)

B. Defendants Response (Federal Rule 12)

a. When you get sued, you must respond within 21 days after service of process
i. Under rule 12, you can respond by
1. Motion (not a pleading)
a. A request for a court order.
i. Rule 12(e): Motion for more definite statement
ii. Rule 12(f): Motion to strike.
iii. Rule 12 (b)(x) Defenses to dismiss
1. Subject Matter Jurisdiction (doesnt belong in
federal court at all)
2. Personal Jurisdiction
3. Venue
4. Improper Process
a. Problem with one of the documents
5. Improper Service of Process
6. Failure to state a claim
7. Failure to join an indispensable party (under rule
19)
iv. THESE DEFENSES CAN BE PUT IN A MOTION OR IN YOUR
ANSWER.
1. Must know waiver rules if we goof it up. Rules
12(g); 12(h) impose strict waiver rules
v. Waiver Rules
1. Rule 12(b)(2,3,4,5)
a. They must be done in your first rule 12
response.
2. Rule 12(b)(6,7)
a. Can be raised anytime for the first time at any
point throughout trial; not on appeal.
3. Rule 12(b)(1)
a. Can be raised anytime in the case. Appeal
included.
b. Hypo: Plaintiff sues and Defendant moves to dismiss for improper service of
notice. 12(b)(5) Court denies the motion.
i. Defendant files an answer where he tries to say theres no personal
jurisdiction.
ii. The Defense is waived because you have to put it in your first response.

iii. On exam, when you see first response, just circle it. Because if you did
not put 12(2,3,4,5) they are gone.
a. A lot of time its like they say something where this would
apply but answeree forgets to add this.

VII. Joinder
-

2. Answer
a. Two things must be done in our Answer:
i. Rule 8(b)
1. We must respond to the complaint.
a. Admit some stuff
b. Deny some stuff
c. We do not know.
d. FAILURE TO DENY IS AN ADMISSION,
EXCEPT REGARDING DAMAGES
2. We must raise affirmative defenses. Rule (8)(c)(1)
a. Injects a new fact.
i. If right, the defendant wins.
b. Failure to plead them can result in waiver.

Define the scope of our case. (How many people, how many claims)
Always, always think about subject matter jurisdiction. (Every claim in federal
court must have subject matter jurisdiction)
A. Claim Joinder by the Plaintiff (Rule 18)
a. Rule 18(a)
i. Plaintiff may join any claim she has against the defendant.
ii. Next step, You have assess whether SMJ would work with all of them.
Must look at federal question and diversity.
B. Claim Joinder by the Defendant
a. Here, defendant is going to sue someone. Assert a claim.
i. Counter-claim (Rule 13(a)(b))
1. Claim against an opposing party that has already sued you.
a. #1 Compulsory Counter-Claim (Rule 12(a)(1))
i. Arises from the same transaction or occurrence
as the plaintiffs claim.
ii. Unless you have already sued on this, you must
assert this in the present case.
iii. THIS IS THE ONLY COMPULSORY CLAIM IN THE
WORLD THAT IF YOU DO NOT USE IT, YOU LOSE
IT AND CAN NEVER USE THIS CLAIM AGAIN.
iv. Ex) A&B driving around, A sues B, case is
litigated. B tries to sue after, case dismissed.

b. #2 Permissive Counter-Claim (Rule 13 (b))

i. This does not arise from the same transaction or
occurrence as the plaintiffs claim. Different
transaction all together
c. Hypo: Plaintiff (NY)
Defendant (FL)
-$100,000 claim
-Has compulsory CC $90k
- Next, does this CC belong in federal court? Yes,
because it involves diversity. NY v. FL, and $75k
d. Hypo: Plaintiff (NY)
|
Defendant (FL)
-$100,000 claim
-Has compulsory CC $45k
- First, you say its compulsory
- Then, you assess SMJ.
- One, CC does not invoke federal question
- Secondly, CC does not invoke diversity
- Does not exceed $75,000
- Then you would try supplemental jurisdiction
- Does 1367(a) grant it?
- Yes if it meets Gibbs (common
nucleus of operative fact)
- Complusory CC always meet
1367 (a) b/c they always do.
- Does 1367 (b) take it away?
- No, bc that only takes away sup. J
on claims by plaintiff. Here, by D.
ii. Cross-Claim (Rule 13(g)) (XC)
1. Against a co-party and it must arise from the same transaction
or occurrence as the underlying case.
2. Hypo: 3 cars driving around and they crash.
P (NV)
D1 (NY)
D2(NY)
1. Should file Comp. CC and why?
2. Should file Cross-claim?
- Theres no diversity on XC
Then you would try supplemental jx
- Does 1367(a) grant it?
- Yes, if it meets Gibbs (common
nucleus of operative fact)
- Cross claims always meet 1367
(a) b/c they always arise from
same event..
- Does 1367 (b) take it away?
- No, bc that only takes away sup. J
on claims by plaintiff. Here, by D.
C. Proper Parties (Rule 20(a))
a. Who may be joined in a case?

i. A tool for
b. Can people sue as co-plaintiffs (20(a)(1)
i. Yes, if the claim (1) arises from the same occurrence and (2) they
raise at least one common question
c. Co-defendants? (20(a)(2))
i. Yes, exactly the same test .
d. SMJ?
i. Can it get into federal court?
ii. Does it have federal question or diversity?
D. Indispensible Parties (Rule 19): Who should be in the case?
a. Is the Absentee NECESSARY? (Rule says required.)
1. Yes, IF we meet any of three tests. (Rule 19(a)(1))
a. Test #1: Without the absentee the court cannot accord
complete relief (Rule 19(a)(1)(a))
b. Test # 2: The absentees interest may be harmed if she
is not joined. (Rule 19(a)(1)(b)(1))
c. Test #3 The absentees interest subjects the defendant
to multiple or inconsistent obligations
(Rule 19(a)(1)(b)(2))
2. Hypo: You own 1,000 shares of stock. You come in and say that
you and I agreed to own the stock together.
a. I sue the corporation and I want an order cancelling
your stock and reissuing it in our names. Are you
necessary in the party?
i. Under test #1, yes because if we dont bring you
in, we cannot accord complete relief. Youll sue
right after the case is settled.
ii. Under test #2, yes because if I win the case, you
lose your stock.
iii. Under test #3, yes because I win,
b. You are necessary, now, is joinder of the absentee feasible?
i. It is feasible if there is personal jurisdiction over you
ii. If bringing you in will not goof up diversity.
c. Joinder of A is not feasible even though theyre necessary.
i. Either we proceed without A OR
ii. Dismiss the whole case.
iii. Make decision by Rule (19)(b) Factors
1. Factor #4: Insures that we do not dismiss this case unless there
is some other court where everyone can be put in one case.
2. If you go through the factors and decide to dismiss, Absentee
becomes labeled as INDISPENSIBLE. Rule 12(b)(7)
E. Impleder (Rule 14)
a. Hint for keeping things straight:
i. If it begins with a C between existing parties
1. Counter-claim
2. Cross-claim

ii. If it begins with an I Joining somebody new (TBD)

1. Impleder
b. The defendant can only bring in somebody new if the new party may be
liable to D for the plaintiffs claim against D.
i. D get sued and says I shouldnt have to pay the whole thing so he
brings in new party.
1. Almost always for indemnity or contribution.
TPD
Under

Rule14(a)(3)P

P
Then go through SMJ
- Diversity?
- Federal question?
- SMJ?

Impleader claim
To bring in TPD
D

F. Intervention Rule 24
a. Absentee is asserting themselves into the case. (Starts with Ibringing
someone new in)
b. Two kinds of intervention
i. (***) Intervention of Right
1. Great exam question
2. Test is: You have a right to intervene if your interest may be
harmed if you are not joined.
a. Why is this a great professor trick?
i. Because it is exactly the same as test 2. Rule 19,
and intervention rule do the same thing.
1. Difference is 19 is raised by D; 24 is
raised by absentee herself.
ii. Permissive Intervention (Rule 24(b)(2))
1. Absentee must show that their claim has at least one common
question with claim at hand. (At judges discretion)
2. Remember that when you intervene, you come to assert a
claim or to defend a claim, but either way there is a claim and
that needs to be tested for SUBJECT MATTER JURISDICTION.
G. Class Action (Rule 23)
a. A representative sues on behalf of a group.

b. Seven rules about the class action:

i. #1 Prerequistes for a class action (Rule 23(a))(Must meet all 4)
1. Numberocity
a. There are so many folks that joinder will not work.
i. No magic number
2. Commonality
a. There must be something in common to all these
members (Rule 23(a)(2))
b. Wal-Mart
i. We dont focus on common questions but
common answers
ii. Has to be some issue and if we litigate this issue
for everyone, it will provide answers for
everyone.
iii. In Wal-Mart, they decided everyones case
differently. Thousands of different decisions
3. Representatives claim must be typical of the class members
a. We want the rep to feel the same pain as all the class
members did
4. Representative will fairly and adequately protect the interest
of the class.
a. We are going to bind the class members so the rep has
to do a good job in the best interest of the class.
ii. #2 Types of Class (Rule 23(b)) :Give you a choice. (Must meet one)
1. (b)(1) Classes:
2. (b)(2) Classes:
3. (b)(3) Classes: Gives your professor more questions than the
others.
a. We are usually suing for money. Must show:
i. Common questions predominate
ii. Class is the superior way to resolve the dispute
1. Best way to handle it. One case v. 80 cases
iii. #3 Motion to Certify
1. A class is not a class action until the court certifies it.
a. Must make a motion
b. Then Court will look at Rule 23 (a) (preq); 23(b) (types)
i. If court certifies the class, must appoint class
counsel Rule 23(g) weird that it picks the lawyer
iv. #4 Notice of Pendancy
1. (Why (B)(3) is most likable) In the (B)(3) class, the court must
give individual notice to all members reasonably identifiable.
a. Contents of the Notice (Rule 23(c)(2)(b))
i. Most Important: They can opt out and they are
bound if they do not.
ii. The representative pays for the notice.

iii. THIS NOTICE IS NOT REQUIRED IN A (B)(1) OR

(B)(2) CLASS.
iv. Most likely because its the only one where you
have to give them notice
v. #5 Who is Bound By A Class Judgment?
1. All members except those who opted out of a (B)(3)
a. Can only opt out of (B)(3); not (b)(1) or (b)(2)
vi. #6 Settlement or Dismissal of a Certified Class Must be Approved
by the Court (Rule 23(e))
vii. #7 Subject Matter Jurisdiction
1. You have a class action in federal court, how do you get it
there?
a. Might invoke federal question
2. If we are asserting a federal claim, there might be a federal
question.
3. What do we do about a diversity class action? How do we get a
class action into federal court under diversity?
a. First, as to citizenship, you look only at the
representative; Must be diverse from all defendants
b. The reps claim must exceed $75,000
i. Exxon Mobile v. Ala Pata
VIII. Discovery
- Applies to documents, things (widget that blew up), electronically stored information
(ESI).
A. Required Disclosures (Rule 26 (a))
a. Parties must produce information without request from the other side.
i. Must cough things up enough though no body asks you to.
ii. Initial required disclosures: Rule 26(a)(1) is the most important
bylaw.
1. You must identify people, and describe things including
documents, and ESP with discoverable info that you may use to
support you case at trial and in general.
a. Ex) If you have something on your hard-drive that
supports your case, you gotta cough it up.
2. What?
3. Defendant must disclose insurance that may cover this.
iii. Also, Rule 26 (a)(2,3) but they come up later in the case.
B. Discovery Tools (Five tools to get info)
a. Deposition (Rule 30, 31)
i. Oral Deposition/Questions (30) (More likely)
1. Where the questions are asked orally.
2.
ii. Written Questions (31)

iii. Either way, the response is oral. The deponent gives oral testimony as
they are asked. This is live.
iv. You can depose parties and non-parties
1. Kicker: You should serve a non-party with a subpoena
2. Party you dont have to.
b. Interrogatories
i. Written questions answered in writing under oath.
1. Very helpful with background information
ii. Parties have 30 days to answer
iii. CANNOT BE SENT TO NON-PARTIES
c. Request to Produce (Rule 34)
i. Written request for access to stuff. (ex. Docs, widgets, etc.)
ii. Appears to only apply to parties but you can use to get info from nonparties if you have a subpoena (Rule 34 (c))
d. The Medical Exam
i. You must get a court order.
ii. You have to show that medical condition is in controversy.
iii. Only to exam a party or somebody in a partys custody or control.
1. Does not include employees unless you name the party.
e. Request to Admit (Rule 36)
i. Basically, you force them to admit or deny any discoverable matter.
ii. If they fail to deny, they have admitted.
iii. Only for parties; Never non-parties
C. Scope of Discovery (Rule 26)
a. Standard (Rule 26 (b)(1)
i. We can discovery anything relevant to a claim or defense
1. Includes anything reasonably calculated to lead to admissible
evidence. (Ex. Hearsay; Not admissible in trial but you can
discover it, will lead you to admissible evidence)
b. Work Product (Rule 26 (b)(3)) Trial Prep Materials
i. Material prepared in anticipation of litigation
1. Matters because the starting point is that work product is not
discoverable.
2. Do this to avoid a free-rider problem
a. Hypo: Rich operates charter boat service. I charter it for
three hours tour and boat sinks. I sues. Knowing this
Rich hires PI, after looking at facts, he gets a conclusion.
b. I asks you to produce all documents. Is this doc
included?
i. No, not attorney client privilege
ii. Not all work product is created equal
1. Can override the work product protection for some stuff?
a. Substantial Need
b. Info is not available.

2. Rich says he doesnt want to give up memo but in the memo

there is a witness statement by Gilligan, who is now marooned
on an island, meaning you cant take his statement.
a. You need the information so its ok.
iii. Some work product is absolute
1. Mental impressions, conclusions, opinions, and theories are
absolute work problem.
2. If memo had Gilligans deposition then you can get that but
everything else no.
iv. It can be generated by a party or any representative of a party.
1. Does not have to be by a lawyer.
2. Dont call it Attorney Work Product.
IX. Pre-trial Adjudication
A. Motion to dismiss for failure to state a claim (Rule 12 (b)(6))
a. The court does not look at evidence
b. The court only looks at the complaint
i. Ignores conclusions of law and looks only at allegations of fact; AND
ii. Then must decide if these facts state a plausible claim
1. Judge uses own common sense and experience.
2. Basically, if law does not recognize this, then there is not
reason to be in court.
B. Summary Judgment (Rule 56) (Is there a dispute on a material fact?)
a. Here the court can look at evidence.
i. By evidence we mean, sworn statements under oath, given to the
court by the parties.
b. Look at the evidence and then apply the (Rule 56 (a)) standard
i. Moving party must show:
1. No genuine dispute on a material fact. (Big one)
a. Once you show there is no dispute of fact, then it must
be a dispute of law. Court will rule on this.
2. She is entitled to judgment as a matter of law.
a. Wont be a problem
c. Difference from Rule 12 (b)(6)
i. Here, we have stated a claim. If she can prove what she alleged she
will win.
ii. With summary judgment, it is do we need a trial.
1. Only reason we ever hold a trial, is to decide a dispute of fact.
2. If there is no dispute of fact, then there is no trial, judge rules
as a matter of law. (Evidence comes from the parties, Must be
under-oath like declarations, depositions, answer to
interrogatives.)
a. However, pleadings are not unless Prof says, they are
verified pleadings (which rarely exist)

iii. Whats going to happen in summary judgment?

1. We going to have evidence in written form and the judge puts
it in a pile and reads all of it.
2. Based on this evidence is, is there a dispute on a material fact?
a. If no, then we dont need trial.
3. It is all discretionary.
iv. In the mid 1980s, three cases got decided on same day came out
1. Mashuchita, Andeson, CeloTex
a. Pretty indecipherable
b. All said lower courts should loosen up and start
granting summary judgment.
c. Courts are nervous about it because its the end of the
world. Means they are not going to trial
v. Hypo: P is a pedestrian walking across street and gets hit by D; P sues
D; P In complaint he says, I was in cross-walk, I had the green light,
and D ran the red light.
1. D files an answer, denying it all and files a motion for summary
judgment.
2. All ten witnesses say that its all the Plaintiffs fault.
a. Situation #1: P relies on his complaint. Summary
Judgment is probably granted.
b. Situation #2: P proffers an affidavit from someone who
saw everything but is a druggie and alcohol.
i. Affidavit says its all Ds fault. Do you grant
summary judgment?
1. No, because now theres a dispute on
material fact and you must go to trial to
let the jury decide.
c. Scott v. Harris
i. Video tape that showed what happened. IF
VIDEO SHOWS IT CLEARLY, YOU CAN GRANT
SUMMARY JUDGMENT!
X. Trial
A.
XI. Appeals
XII. Claim and Issue Preclusion