CIVIL PROCEDURE FALL 2004

I. 	PERSONAL JURISDICTION

THE TRADITIONAL BASIS
	Territorial Theory of Jurisdiction 
	A. 	PENNOYER V. NEFF [Mitchell won default judgment against Neff prior to 			attaching property]
			i.	Neff sued Pennoyer in collateral challenge against judgment 					Mitchell won against him.
			ii.	Determining jurisdiction is a two-step process:
					a) Does state statute authorize it?
					b) Is exercise of power in conflict w/ Constitution?
			iii.	Territorial Theory of Jurisdiction (based on universal principles 					and the belief that states are like countries)
					a.	every state possesses exclusive jurisdiction and 							sovereignty over persons and property within 							its territory
					b.	no State can exercise direct jurisdiction and 							authority over persons or property without its 							territory
					c.	Traditional Bases for Jurisdiction:
							1.	consent
							2.	appearance
							3.	presence
							4.	domicile
d.	Exceptions: corporations may be required to appoint an agent (this is not an unreasonable demand, same is required of native corporations); determinations of civil status; extra-territorial effects
			iv.	Service of Process is the means by which State asserts its power
			v.	There can be jurisdiction over property
					a. in rem jurisdiction (against the whole world)
					b. quasi-in-rem 1 (against a specified group)
					c. quasi-in-rem 2 (against a person for the value of the 						property)
	Note:	Defective service of process cannot be subject of collateral challenge, only 			jurisdiction can be
	Note: 	Under Pennoyer, nature of claim is irrelevant

	B.	BLACKMER V. UNITED STATES AND MILLIKEN V. MEYER
			i. 	States (Milliken) and the U.S. (Blackmer) can exercise personal 					jurisdiction over absent domiciliaries

IMPLIED CONSENT AND PRESENCE THEORY
	C. 	HESS V. PAWLOSKI [Pawloski, from Penn., drives in Mass., hits Hess]
		Begin to stretch theory of territoriality
			i. 	MA statute allows service of process on registrar as agent of 					out-of-state driver (limited to accidents within the state)
			i.	Beginning of separation between power and notice, but 						nonetheless maintains the requirement of some form of in-state 					service
			iii.	privileges and immunities clause allows reasonable conditions 					to be put on benefits; in this case it is reasonable because:
					a.	dangerous activity
					b.	no discrimination against non-residents
					c.	jurisdiction limited to specific cause of action
					d.	implied consent

Note: 	Courts also began to focus on "presence" of corporations, but this was also a fiction
 
	D.	INTERNATIONAL SHOE CO. V. WASHINGTON [Washington attempts to 			collect unemployment benefits taxes from Intl. Shoe] 
		Replaces Pennoyer's formalism with new realist theory
			i.	No longer trying to locate D in territory
			ii. 	(Where not physically present) Defendants must have 						"minimum contacts" with the state such that the maintenance of 					the suit does not offend 	"traditional notions of fair play and 					substantial justice"
			iii.	Justifications:
					a.	satisfaction of due process depends on quality 							and nature of activity in relation to the fair and 							orderly administration of laws
					b.	to the extent that corporation exercises the 							privilege of conducting activities within a state, 							the exercise of that privilege may give rise to 							obligations
			iv.	Service of process is now about notice and not power; out-of-					state service is acceptable
v.	BLACK'S DISSENT:	you're making the Court the arbiter of 				state sovereignty; states have certain 				essential, universal powers 					reasonableness or no

DUE PROCESS AND LONG-ARM STATUTES
	E.	LONG-ARM STATUTES
		
			i.	Specific Act:	authorize courts to exercise power over specific 							acts causing contact with the State (due process 							does not require that a State exercise all the 							power that it has)
			ii.	Constitutional Max:	Courts of State shall exercise 									jurisdiction in accordance w/ 14th 								Amendment (floating ceiling)

	F.	MCGEE V. INTERNATIONAL LIFE INSURANCE CO.
			i.	Balance state's interest against convenience factors
			ii.	How do you determine if a contact is "substantial"?
					a. 	if it impinges on state's territory and state has 							enacted a statute to make its interest clear
			iii.	Convenience factors can include convenience for plaintiff and 					state, not just convenience for defendant

	G.	HANSON V. DENCKLA
			 i. 	purposeful availment of the benefits of the laws of the state as a 					prerequisite: jurisdiction as quid pro quo, activity must be self-					motivated and not the unilateral action of customer
			ii.	In McGee, contacts go on the side of state's interest, in Hanson 					they go to protect the Defendant
			iii.	Only diff. from McGee: lack of specific-act statute: is the Court					telling states they must enact specific-act statutes?
			iv.	BLACK'S DISSENT: Florida's strong regulatory interest was 					sufficient

Note: Court tells us in Hanson that standard for jurisdiction is higher than standard for choice of law

	H.	WORLD-WIDE VOLKSWAGEN CORP. V. WOODSON
			i.	The State's long-arm statute may not on its face have provided 					basis for jurisdiction, but Sup. Ct. chose to make a constitutional 					ruling anyway
			ii.	"minimum contacts" protect defendant and ensure States do not 					overextend their sovereignty; contacts must be established 					before even looking at convenience factors
			iii.	Test for minimum contacts is "affiliating circumstances"
					a.	in-state sales
					b.	in-state services
					c.	in-state solicitation
					d.	state-directed marketing
			iii.	There are a number of reasonableness factors that can affect 					whether personal jurisdiction:
					a.	state's interest
					b.	Defendant’s interest
					c.	Plaintiff's interest
					d.	interstate judicial system's interest in efficiently 							resolving controversies
					e.	shared interests of states in furthering 								substantive social policies
				BUT: 	none of these is sufficient where minimum contacts 						don't exist first!!
			iv. 	Foreseeability does not affiliate company; relevant 						"foreseeability" is not that product might end up in state but 					that contact would allow Defendant to reasonably anticipate 					being brought into Court there 
			v.	NOTE:	State may still exercise jurisdiction where there is 					purposeful availment: if, for example, co. delivers products into 					the stream of commerce with expectation that they will be 					purchased by consumers in the forum State
			vi.	BRENNAN'S DISSENT:	fairness only requires that minimum 					contacts exist among the parties, the contested transaction, and 					the forum State
Sovereignty (establishment of basis for exercise of sovereignty)
purposeful availment as established by quality and quantity of
affiliating circumstances

Convenience
a.	state's interest
b.	Plaintiff's interest
c.	interstate judicial system's interest in efficiently 					resolving controversies
d.	shared interests of states in furthering 							substantive social policies

	I.	KEETON V. HUSTLER MAGAZINE, INC. [Keeton sues Hustler for libel in New 			Hampshire because longer sol]
			i.	Seems to contradict World-Wide in acknowledging state's 					interest may trump even absent contacts
	
	J.	KULKO V. SUPERIOR COURT 
			i.	California had a clear state interest in custody and child 						support decision, but no jurisdiction because his visit did not 					cause a significant effect in forum
			ii.	Poses question, does purposeful availment add to or supplant 					state's interest?
Note: These cases set up the problem of general jurisdiction: how should Court treat unrelated contacts with the forum?			

	K.	ASAHI METAL INDUSTRY CO. V. SUPERIOR COURT
			i.	Majority (8-1) agrees that it would be unreasonable to assert 					jurisdiction because:
					a.	heavy burden on foreign Defendant
					b.	state interest low
					c. 	inappropriate choice of law
					d.	cross-claimant's interest in location given less 							weight
Note: Scalia doesn't join in this because he believes where there are no minimum contacts there is no need to even look at reasonableness factors.
			
			ii.	Court splits over test for minimum contacts:
					a. 	O'Connor (for plurality): there are no minimum 							contacts because even placing product in stream 							of commerce with knowledge that it will end up 							in forum State is insufficient, must be 								"purposeful direction" towards forum state in 							the form of adaptation of the product, agents, 							marketing strategy, etc.
						Note: this directly contradicts dictum in World-							wide
					b. 	Brennan (in concurrence): knowledge is 								sufficient, no need for additional contacts; they 							are on notice

GENERAL JURISDICTION
	K.	PERKINS V. BENGUET CONSOLIDATED MINING CO.
			i.	Continuous and systematic activities of a company can be a 					proxy for state of incorporation -- general jurisdiction

	L.	HELICOPTEROS NACIONALES DE COLOMBIA, S.A. V. HALL
			i.	Both parties conceded that cause of action did not arise under 					and was not related to company's activities within the state 					(automatically case of general jurisdiction)
			ii.	Majority: contacts insufficient for general jurisdiction; gives no 					guidance, what test applies? when would gen. jurisdiction be 					acceptable?
			iii.	BRENNAN'S DISSENT: 
					a.	Majority could be read to say that only arising 							out of contacts can be considered for personal 							jurisdiction
					b.	Brennan would define specific jurisdiction as 							broadly as possible (in this case, contacts were 							related to action)

In sum: Perkins' ad hoc balancing is still the test, but sales and purchases are clearly not sufficient after Helicopteros.

JURISDICTION OVER PROPERTY
	M.	HARRIS V. BALK
			i.	Situs of debt is wherever you can find the debtor -- raises 					question of strangeness of Pennoyer categories in dealing with 					intangibles

	N. 	SHAFFER V. HEITNER
			(Also: Limited-Appearance Problem)
			i.	Delaware had specific statute that deemed stock of a 						corporation incorporated in Delaware to be located in the state 					and that allowed sequestration of stock for purposes of 						establishing quasi-in-rem jurisdiction
			ii.	Justice Marshall: 
					a. 	no such thing as juris. over property
					b. 	must always determine that there is juris. over 							person
					c.	in that case, Intl. Shoe applies
			iii.	Applying Int'l. Shoe in this case, Delware had no statute 						authorizing jurisdiction
			iv.	This will not seriously affect jurisdiction in in rem cases because 					in those cases the connection between the property, the 						defendant, and the cause of action is likely to be substantial				v.	BRENNAN CONCURS:	Brennan says they should not be 					deciding minimum contacts question, should let Delaware 					reinterpret its statute to incorporate Int'l. Shoe, but generally 					believes that state has juris. to adjudicate shareholder action 					centering on policies of corp. incorporated in that state

HYPOTHETICAL:	I sue you in Texas as a result of a car accident in that state (you are 				resident of Texas); I win, but you have all your assets invested in NY; 				How do I get jurisdiction over you in NY?
	Marshall says Texas would just attach NY property at beginning of lawsuit; if not, he 	implies that the standard for jurisdiction would be lower in NY after the Texas action 	(piggybacking jurisdiction)
	Hershkoff's suggested analysis:	the enforcement action is already not about the original 	cause of action but arises from the existence of the property in NY; in that case, close 	connection between property, state, defendant, etc.

TRANSIENT JURISDICTION
	O.	BURNHAM V. SUPERIOR COURT
			i. 	Majority holds that personal in-state service of process on non-					resident present in state for reasons unrelated to cause of action 					is Constitutional
			ii.	Plurality (Scalia): in-state service is Constitutional because it is 					supported by tradition and is still used by all the states -- there 					is no need to inquire into fairness (claims Int'l. Shoe and Shaffer 					don't change this)
			iii.	Brennan's concurrence: must always look to fairness; it is fair in 					this case because tradition gives notice and he availed himself of 					benefits of CA while he was there
NOTE:	Hershkoff and most others think that this is a total misinterpretation of Shaffer; Marshall 	says tradition is a consideration, but there must be "substantial modern justification"

CONSENT JURISDICTION
	P.	INSURANCE CORP. OF IRELAND V. COMPAGNIE DES BAUXITES DE 			GUINEE
			i.	Court can assume facts sufficient to establish jurisdiction if 					defendant makes appearance to contest jurisdiction and then 					fails to comply with the Court's process for determining 						jurisdiction
			ii.	Some criticize this as consent by estoppel
			iii.	Hershkoff prefers analysis as either
					a.	forfeiture: you can always forfeit your 								Constitutional rights
					b.	or, even better, administrative efficiency: Court 							must always have authority to determine its 							jurisdiction
	
	Q. 	M/S BREMEN V. ZAPATA OFF-SHORE CO.
			i.	Court enforced choice-of-forum contract clause in admiralty 					case -- unclear whether would be enforced in a consumer 					contract
			
	R.	CARNIVAL CRUISE LINES, INC. V. SHUTE
			i.	Forum-selection clauses will be honored unless enforcement is 					unreasonable -- but unclear whether they will take a due 					process or private law approach to reasonableness

PERSONAL JURISDICTION IN FEDERAL COURT
	S.	RULE 4(k)
			Rule 4(k) allows jurisdiction either by piggybacking on state court 				jurisdiction or by statute
			i. 	4(k)(1)(A) : fed. personal jurisdiction exists where there would be 				personal jurisdiction in state court of general jurisdiction in 					district where federal court is located
			ii.	4(k)(1)(B): permits service out of district up to 100 miles to join 					third-parties (Rule 14) or indispensable parties (Rule 19)
			iii.	4(k)(1)(C): may have jurisdiction over one subject to federal 					interpleader jurisdiction
			iv.	4(k)(1)(D): when authorized by statute (there are individual 					federal statutes that authorize nationwide service of process)
			v.	4(k)(2): if not in conflict with Constitution, there is also 						jurisdiction over federal question cases where there is not 					personal jurisdiction over defendant in any one state (burden 					appears to be on plaintiff to prove, unclear what the standard is)
					--This was a response to OMNI CAPITAL INT’L. V. 						RUDOLF WOLFF.
					--Relevant constitutional standard is 5th amendment due 						process
			vi.	4(n)(1): there can be jurisdiction over property where provided 					for by statute
			vii.	4(n)(2): if pers. jurisdiction cannot be had, court can assert 					jurisdiction over property
					Supreme Court has never ruled on how this squares 						with Shaffer 

JURISDICTION OVER VIRTUAL REALITY
	T.	ZIPPO MFG. CO. V. ZIPPO DOT COM
			i.	Zippo created a sliding-scale test:
					a.	passive sites
							make information available, but you 								can’t send e-mail or contact the site
							(no jurisdiction)
					b.	active sites
							provide info and allow you to do 								business over internet
							active site is equivalent of presence
							jurisdiction
					c.	interactive sites
							exchange of information
							there may be some ability to buy things
							a very loose category
			ii.	Proposal 1: just adapt personal jurisdiction doctrine 
					a.	look for the “purposeful direction” required by 							Asahi
					b.	look at the totality of circumstances, as in 							Brennan’s Helicopteros dissent
			iii.	Proposal 2: privatize internet jurisdiction
					a. 	rules should be done by contract or self-								regulation
			iv.	Proposal 3: develop unique personal jurisdiction doctrine for the 							internet 

II.	SUBJECT-MATTER JURISDICTION OF STATE COURTS
	A. 	state courts have concurrent jurisdiction with federal courts 					except where Congress has passed statute creating exclusive 					jurisdiction in fed. ct.
			i.	fed. cts. have exclusive jurisdiction over 								admiralty claims and suits between states	

III.	SUBJECT-MATTER JURISDICTION OF FEDERAL COURTS	
	A.	INTRODUCTION
			i.	Article III, § 2 U.S. Constitution: subject-matter jurisdiction of the 				federal courts
					a. 	‘arising under’ jurisdiction
					b. 	cases affecting ambassadors, public Ministers 							and consuls
					c.	admiralty cases
					d.	where U.S. a party
					e.	cases between states
					f.	between state and citizens of another state
					g.	between citizens of different states
					h.	between citizens of the same state claiming 							lands under grants from different states
					i.	between U.S. citizens and foreigners
			ii.	Article III is not self-executing: requires statute
			iii.	History: originally there was no fed. question jurisdiction, only 					diversity and admiralty; “received” common law of England
	
	B.	DIVERSITY JURISDICTION (28 U.S.C. §1332)
			i.	CAPRON V. VAN NOORDEN (1804)
					a.	verdict was found for defendant; P appealed 							alleging lack of subject-matter juris.
					b. 	no allegation of juris. in complaint
					c. 	lack of subject-matter juris. such a serious defect 							that plaintiff may even contest it despite having 							himself chosen the forum
Establish citizenship on Day 1 (GRUPO DATAFLUX V. ATLAS GLOBAL GROUP)
			ii.	INDIVIDUAL CITIZENSHIP (§1332)
					a. 	MAS V. PERRY (5TH Cir. 1974)
						--Plaintiffs are domiciliary of Miss. and 								domiciliary of France; defendant is domiciliary 							of Louisiana
						-wives no longer assume the citizenship 	of their 							husbands
						After 1992: Alien citizen of state in which 							domiciled (§1332(a)): does this mean one alien 							can sue 	another? Dist. Ct. in CHINA NUCLEAR 						V. ANDERSEN says no
					b.	state citizenship is always determined based on 							domicile (domicile = established residence + 							intent to return)
					c.	§1332(c)(2): legal representative of estate or of 							child has same citizenship as decedent/child
			iii. 	CORPORATE CITIZENSHIP 
					a.	corporations are citizens where they are 								incorporated and at their ppb
						1.	Tests for ppb:
							-- nerve center: where decisions made
							-- operating assets: where is value of 								co.?
							-- totality of circumstances
						2.	Non-corporations: citizenship 									determined by looking at each of the 								partners (CARDEN V. ARKOMA 								ASSOCIATES)
			iv.	STATUTORY LIMITS ON DIVERSITY JURISDICTION
					a.	Amount in Controversy (§1332)
						1.	Defendant can only win motion to 								dismiss on amount in controversy if can 								prove to a legal certainty that plaintiff 								cannot recover
						2.	Not clear how to apply to injunctions: 								do we look at cost to P or cost to D?
						3.	Aggregation 
							--P can join AND aggregate any and all 								claims against one D
							--P can join D where claim 									transactionally related, but can only 								aggregate claims against different Ds 								where “common and undivided 								interest”
							--“common and undivided” will be 								determined by state substantive law
							--in class action every P must satisfy 								amount in controversy rule (unless they 								have “common and undivided interest”)
					b.	“Manufacturing” Jurisdiction (§1359)
						1. 	cannot collusively join parties to create 								fed. jurisdiction (says nothing about 								destroying jurisdiction)
						2.	test from KRAMER V. CARIBBEAN 								MILLS, INC.: does it serve a legitimate 								business purpose
			v.	JUDICIAL LIMITS ON DIVERSITY JURISDICTION
					a.	STRAWBRIDGE V. CURTISS (complete 								diversity)
						1.	exceptions: class actions (Rule 23) and 								interpleader actions (Rule 22)
					b.	Probate Issues
							fed. cts. will not probate a will or 								administer an estate, but if there is 								another basis for juris. court will hear 								cases against administrators and 								executors
					c.	ANKENBRANDT V. RICHARDS (1992)
						1. 	“domestic relations exception”
							Fed. cts. will not hear actions involving 								divorce, alimony, or custody 
						2. 	this case involves a tort claim and can be 							heard in fed. ct.
						3. 	Court’s justification: §1332 does not 								authorize court to hear divorce actions
					d.	ROSE V. GIAMATTI
						1.	Court will only look at “real parties in 								interest” to establish complete diversity 
		
	C.	FEDERAL QUESTION OR “ARISING UNDER” JURISDICTION 	(§1331)
			i.	OSBORN V. BANK OF UNITED STATES 							(CONSTITUTIONAL TEST)
					a.	state auditor forcibly collected tax from Bank of 							U.S. in violation of fed. injunction
					b.	Bank sued, auditor contested subject-matter 							juris. in 	federal ct.
					c.	Act chartering bank authorizes: ‘to sue and be 							sued in 	any Cir. Ct. of U.S.’
					d.	Marshall: right of P to sue does not depend on 							defense D will put up; as long as federal 							question is an “ingredient” in the case there is 							jurisdiction
					e.	presence of state law claims does not destroy 							jurisdiction
				
			ii.	STATUTORY TEST
					a.	Though the language of §1331 tracks the 							Constitution, it has never been read that broadly
						1.	LOUISVILLE & NASHVILLE R. CO. V. 								MOTTLEY (WELL-PLEADED 									COMPLAINT)
							--fed. issue must be part of c/a
							--fed. juris. turns on state substantive 								law
						2.	SOVEREIGNTY TEST: cause of action 								arises under law that creates it; if state 								cause of action, no fed. juris.; if fed. 								cause of action, then fed. juris.
						3.	SMITH V. KANSAS CITY TITLE & 								TRUST CO.
							--Fed. juris. if case turns on construction 								of federal law (Const. or statute) (fed. 								bonds)
						4.	MOORE V. CHESAPEAKE & OHIO RY. 							CO.
							--brought claim under Kentucky 								Employer Liability Act that implicated 								the Federal Safety Appliance Act
							-- no fed. juris. 
							-- difficult to reconcile with Smith, but 								perhaps because intrastate issue and 								therefore fed. interest weak
						5.	MERRELL DOW V. THOMPSON 								(MAJORITY)
							--there is only fed. juris. where Cong. 								has created private right of action

Note on fed. private rights of action: used to be assumed that fed. norms could always be enforced by private rights of action (MARBURY V. MADISON: where there is a right there is a remedy); now there is CORT V. ASH test – did Congress mean for there to be a private right of action?
 						6.	FOOTNOTE 12
							--Fed. juris. where fed. interest 									“sufficiently substantial”
							--consider: intrastate? Constitution? Fed. 							statute? Private right of action? 
						7.	BRENNAN’S DISSENT
							--Decision not to create private right of 								action separate from juris.
							--there is fed. juris. where there is 								danger of underenforcement of fed. 								norm

			iii.	PROTECTING THE FEDERAL INTEREST
					a.	exclusive jurisdiction
					b.	pre-emption
					c.	protective jurisdiction

			iv.	REMOVAL JURISDICTION (28 U.S.C. § 1441)
					a. 	in any case filed in state court in which fed. ct. 							would also have original jurisdiction, defendant 							can remove to fed. ct.
					b.	exception: in div. cases, defendant cannot 							remove to fed. ct. if he is citizen of state
					c. 	all defendants must join removal petition

			v.	SUPPLEMENTAL JURISDICTION
					a.	HURN V. OURSLER
					b.	UMW V. GIBBS 
							1.	“common nucleus of operative 									fact” test
							2.	discretion factors: fed. claims 									dismissed; State claims 										predominate; novel state claim
					c.	ALDINGER V. HOWARD
							1.	P filed §1983 claim against 									police officers and wanted to 									join county on state law claim
							2.	Court concluded P was doing 									end run around §1983
							3.	No supp. juris. where congress 									has spoken otherwise
							4.	unclear whether this just applies 								to §1983, and whether it  just 									applies to pendent parties
					d.	OWEN EQUIPMENT & ERECTION CO. V. 							KROGER
							1.	Kroger (Iowa) sued Omaha 									Power (Neb) for wrongful death
							2.	Omaha Power filed third-party 									complaint against Owen 									Equipment
							3.	Kroger joined Owen Equipment 								as defendant
							4.	Sup. Ct. ruled no jurisdiction: 									violates §1332 
					e.	FINLEY V. UNITED STATES
							1.	Finley’s husband dies when 									plane hits electrical tower
							2.	sues FAA under FTCA
							3.	amends complaint to add state 									law claims against San Diego 									and utility co.
							4.	no juris.: if Congress is silent on 									juris., then there is no 										jurisdiction
							5.	supp. juris. doesn’t exist unless 									explicitly granted, but in theory 									leaves Gibbs intact
			vi. 	CURRENT STATUTORY AUTHORIZATION: §1367
					a.	FEDERAL QUESTION CASES §1367(a)
						--in any civil action where there is original 							jurisdiction over anchor claim, there is 								supplemental jurisdiction over all pendent 							claims and parties that form part of the same 							case or controversy (apply Gibbs’ constitutional 							test)
					b.	DIVERSITY JURISDICTION CASES §1367(b)
						No supp. juris. over claims by plaintiffs against 							persons made parties under Rule 14, 19, 20, or 							24, or over claims by people seeking to be joined 						(Rule 19) or intervene (Rule 24) as plaintiffs if it 							would violate  §1332.
					c.	DISCRETION FACTORS FROM GIBBS §1367(c)	
							1. 	novel state claim
							2.	state claim predominates
							3.	anchor claims dismissed
							4.	other compelling reasons
						some courts have brought these discretionary 							factors into §1332 itself, even though §1332 							jurisdiction should be mandatory
Some (totally insane) courts have chosen to include §1332 restrictions in §1367(a) (‘or as expressly provided otherwise by Federal statute’) but have only applied these restrictions to parties brought in by defendants (Ps can’t then join them) and haven’t applied them to general permissive joinder (Rule 20)

III.	VENUE, TRANSFER AND FORUM NON CONVENIENS

	A.	VENUE AND TRANSFER (§1391, §1404, §1406)
			i.	In state courts:
					a.	Venue is usually permissive
					b.	If file in wrong venue in right state may get 							permission to transfer
					c.	If in wrong state, one state cannot transfer to 							another; this would be a case for dismissal 							under forum non conveniens
					d.	judge-made exception: where case involves 							property, venue should be where property is 							located (??)

			ii.	FEDERAL VENUE
					a.	Diversity jurisdiction (§1391(a)):
							1.	judicial district where any D 									resides
							2.	judicial district where any part 									of the events occurred or where 									a substantial part of the 										property is located
							3.	Default rule: district where any 									D subject to personal 										jurisdiction at time action 									brought
					b.	Federal question jurisdiction (§1391(b)):
							1. 	Different default rule: district in 									which any defendant may be 									found
					c.	Interpretation of the default rules:
							1.	some courts treat the default 									rules as identical
							2.	others have held that the 									diversity jurisdiction default 									rule (“subject to personal 									jurisdiction”) does not allow 									transient jurisdiction as 										provided for in Burnham.

			i.	TRANSFER AND SPECIAL STATUTES…V. WAL-MART
					a.	Title VII has its own venue provision: INSERT
					b.	None of the named plaintiffs satisfy the venue 							provision
					c.	§1404: use when venue is proper; ask to transfer 							for convenience
					d.	§1406: use when venue improper; ask to dismiss 							or transfer

	B.	TRANSFER AND FORUM NON CONVENIENS 
			i.	Federal forum non is entirely judge-made law and only applies 					when there is dismissal in favor of foreign forum

			ii.	GULF OIL CORP. V. GILBERT
					a.	there must be an alternative forum and there is a 						presumption in favor of plaintiff’s choice of 							forum
					b.	public interest factors
							1.	long queue
							2.	choice of law
							3.	level of interest in the case
					c.	private interest factors
							1.	ease of access to sources of 									proof
							2.	availability of witnesses

			iii.	PIPER AIRCRAFT CO. V. REYNO
					a.	filed in California state court
					b.	Piper removed to federal court and then 							transferred to Pennsylvania court (§1404)
					c.	then asked for transfer under forum non
					d.	Supreme Court:
							1. 	there is alternative forum in 									Scotland that is more 										convenient
							2.	P is guaranteed a remedy, not 									the best remedy
							3.	Fact that choice of law will be 									less favorable to P in Scotland is 								irrelevant					
IV.	CHOICE OF LAW: STATE LAW IN FEDERAL COURT

	A.	SWIFT V. TYSON: GENERAL LAW
			i.	Rules of Decision Act (now 28 U.S.C. §1652): state law does not 					include state common law
			ii.	in div. cases where there is only state common law, fed. court is 					free to apply “general law”
			iii.	state common law opinions are only evidence of the general law 					that exists outside judicial opinions (declaratory theory of law)
			iv. 	policy goal: increase uniformity

	B.	ERIE R. CO. V. TOMPKINS: REALISM AND FEDERALISM
			i.	Brandeis holds that:
					a. 	Rules of Decision Act includes state common 							law
					b.	there is no such thing as general law
					c. 	fed. courts do not have power to create federal 							common law in diversity jurisdiction cases 							because Congress does not have the 								constitutional authority to authorize them to
			ii.	Test: Erie applies where there is a federal judge-made rule in 					conflict with a state substantive rule
					state rule applies

	B.	CHOICE OF LAW AFTER ERIE: YORK AND BYRD
			i.	In York (sol case), Frankfurter writes that federal court sitting in 					diversity should not be essentially different from state court: 					“outcome-determinative test”
			ii.	Byrd: Brennan decided that fed. court sitting in diversity is still 					an independent system of justice and there may be “affirmative 					countervailing considerations” that counsel against state rule as 					long as it is not substantive:
					parties have right to jury trial in diversity cases in fed. 						court
	
	C.	HANNA V. PLUMER: STATE LAW AND THE FED. RULES OF CIV. PROC.
			i.	conflict between state and federal process rule
			ii.	court concludes difference between rules is not outcome-						determinative 
					a.	it would change the outcome at time of service 							of process, but
					b.	it does not affect the way client behaves in the 							world
			iii.	the Massachusetts rule is thus procedural, not substantive
			iv.	court holds Erie does not apply to the Fed. Rules of Civil 					Procedure because the relevant act is the Rules Enabling Act 					(§2072) and not the Rules of Decision Act
			v.	Congress and the courts clearly have power to make rules of 					procedure for federal courts as long as the rules “really regulate 					procedure” (Sibbach test)
			vi.	Harlan’s Concurrence: dislikes “procedural, ergo constitutional” 					argument; says that the real test for a substantive rule should be 					whether state rule governs primary behavior of client
			vii.	Hanna does not address §2072(b) that limits the power of federal 				courts to make rules abridging or expanding state rights and 					obligations	
			viii.	HANNA TEST:	1) 	Does fed. rule cover question at hand?
						2) 	Was it validly enacted (does it really 								regulate procedure?)
Note: Hanna does not address the issue of 2072 b and does not even really address the question of whether the rule is substantive or not; implies that the same test would be applied when they’re in conflict regardless of whether state rule is substantive or procedural

Question: Hanna court found that the state rule was procedural, and the Walker court found that the state rule was substantive, isn’t that really the difference?

	D.	WALKER V. ARMCO STEEL CORP: WHEN DO STATE AND FEDERAL 			RULES CONFLICT?
			i.	State rule saying sol tolled by service/Rule 3 
			ii.	Applying Hanna test:
					a. 	do rules conflict? Walker court says no
						employs “narrowing construction”
			iii.	rules do not conflict so state rule applies 
			iv.	after Walker, apply narrowing construction where state rule is 					clearly substantive

Note: though they don’t say this, it seems that Walker chooses narrowing construction because believes state rule is substantive, as opposed to in Hanna

	E.	BURLINGTON NORTHERN R. CO V. WOODS
			i.	Bias swings back in favor of federal rule
			ii.	court finds Alabama’s mandatory penalty rule clearly 						conflicts with the discretion allowed judges under Rule 38
			iii.	Rule 38 is valid under Rules Enabling Act
			iv.	If fed. rule valid and conflicts with state law, it applies even if 					state rule is substantive

	F.	STEWART ORGANIZATION, INC. V. RICOH CORP.
			i.	conflict between Alabama common law (against forum selection 					clauses) and §1404 and §1406
			ii.	Expands Hanna to cover all of 28 U.S.C.
			iii.	applies Hanna test: §1404 and §1406 are broad enough to cover 					this case and are validly enacted

Note: In sum, great deference to federal rules. If you have federal rule, will usually apply it; Erie still applies to federal common law rules like forum non.

	G.	GASPERINI V. CENTER FOR HUMANITIES, INC.
			i.	conflict between New York CPLR §5501(c) standard for review 					of jury awards and Rule 59/clause 2 of the 7th amendment 					standard
			ii.	“deviates materially” v. “shocks the conscience”
			iii.	concludes that NY standard is substantive
			iv.	Ginsburg creates accommodation – District Court will apply NY 					standard, but appeals court must only apply “shocks the 					conscience”

V.	PLEADING

	A.	PURPOSES OF PLEADING
			i. 	Pleading can be used to serve a number of purposes:
					a.	notice of claim
					b.	frame issue for trial
					c.	disclose evidence and allow for exchange of info

			ii.	Under notice pleading in federal system, complaint is not 					expected to disclose evidence and allow for exchange of 						information
			
	B.	COMPLAINT AND NOTICE PLEADING
			i.	RULE 8
					a. 	Rule 8 (a): complaint shall contain “a short and 							plain statement of the claim showing that the 							pleader is entitled to relief
					b.	Rule 8(f) : “all pleadings shall be so construed as 						to do substantial justice”

			ii.	RULE 12(b)(6)
					a.	“failure to state a claim upon which relief can be 						granted”
					b. 	must appear to a legal certainty that plaintiff can 						prove no set of facts in support of his claim that 							would entitle him to relief (where does this 							standard come from???)

			iii.	DIOGUARDI V. DURNING (2nd Cir. 1944)
					a.	very liberal interpretation of notice pleading
					b. 	no requirement that plaintiff state “facts 								sufficient to constitute a cause of action”
					c. 	almost so broad as to suggest that plaintiff may 							proceed in order to find any facts that might 							support any claim

			iv.	CONLEY V. GIBSON
					a.	Supreme Court cited Dioguardi approvingly 							and noted that the complaint must only “give 							fair notice of plaintiff’s claim and the grounds 							upon which it rests”

			v.	LIMITS OF NOTICE PLEADING: CASE V. STATE FARM 					MUTUAL AUTOMOBILE INSURANCE CO. (5th Cir. 1961)
					a.	illustrates very controversial question: does 							court have obligation to find viable legal theory 							for plaintiff?
					b.	complaint failed to set forth a separate claim for 							damages based upon interference with 								performance of contract
					c.	court concluded it is not the duty of the trial 							court to create a claim that plaintiff did not spell 							out

			vi.	RULE 12(e): GARCIA V. HILTON HOTELS (Dist. Ct. Puerto 					Rico 1951)
					a. 	Court was willing to infer “publication” from 							the fact that plaintiff alleged slander
					b.	But, in this case, plaintiff pled too much and 							opened the door to a defense of conditional 							privilege
					c.	This made complaint so vague as to make it 							impossible for defendant to formulate a 								response
ADD NOTE CASES???

	B.	ALLOCATING THE BURDEN

			i.	Under 8 (c) certain issues are always allocated to defendant:
					a.	affirmative defenses including assumption of 							risk, contributory negligence, duress, estoppel, 							failure of consideration, laches, payment, res 							judicata, statute of frauds, statute of limitations
			ii.	Plaintiff not obligated to pleas elements that are not in the 					enacting or enabling clause
			iii.	THEORIES OF ALLOCATION
					a.	negative/positive
					b.	essentiality
					c.	probability
							at what point are we assessing 									probability?
							might allow plaintiff to leave out 								essential elements
					d.	access to information
							courts have not adopted this in pleading
							has taken root in burden-shifting
							sometimes plaintiff won’t have burden 								of pleading something in complaint, but 							burden shifts to him after discovery
					e.	public policy

			iv.	AMERICAN NURSES’ ASSOCIATION V. ILLINOIS
					i.	Rule 8(e)(2): insufficiency of invalid claims not 							enough to dismiss complaint if at least one claim 						is valid
					ii.	Found that under Title VII the essential elements 						are intentional discrimination on the basis of sex

	C.	POLICING PLEADING
			i.	RULE 11
					a.	Rule 11(b)(1): not presented for an improper 							purpose
					b.	Rule 11(b)(2): claims have basis in existing law 							or constitute a non-frivolous argument for legal 							reform
					c.	11(b)(3): must have evidentiary support or be 							likely to have evidentiary support when 							research complete

			ii.	SUROWITZ V. HILTON HOTELS CORP.
					a.	Rule 23.1: shareholder derivative actions must 							be verified

VI.	DISCOVERY

	A.	IN GENERAL
			i.	Parties may obtain discovery about any matter “relevant  to 					claim or defense of any party” Rule 26(b)(1)
					a.	this is modification of pre-2000 rule: “relevant to 						subject-matter of pending litigation”
					b.	can still get this broader material with a court 							order after showing hardship
					c.	many courts still apply pre-2000 standard
			ii.	In federal court, no interlocutory appeal of discovery rulings
			iii.	helps to winnow out claims about which there is no material 					dispute and facilitate settlement
			iv.	Failure to cooperate in discovery can lead to sanctions under 					Rule 37
			v.	Once out of mandatory discovery can ask for order to compel 					under 37(a)(2)
					
	B.	DISCOVERY DEVICES
			i.	Rule 26(a): Mandatory disclosures 
					a.	must disclose potential witnesses, documents, 							calculation of damages, 	insurance
					b.	parties not required to actually produce 								documents
			COMAS V. UNITED TELEPHONE COMPANY OF KANSAS
					while normally not required to provide documents 						under 26(a), in this case parties agreed to and court is 						willing to enforce that agreement
			ii.	Depositions (Rule 30)
					a.	available against parties and non-parties
					b.	conducted entirely under private auspices
			iii.	Interrogatories (Rule 33)
					a.	available only against parties
					b.	cheaper, may get info that requires research or 							more technical info from attorney
			iv.	Rule 34 Production
					a.	production of documents and things and entry 							upon land for inspection
			v.	Physical and Mental Examination (Rule 35
					a.	only against party
			vi.	Request for Admission (Rule 36)
					a. 	only against party
					b.	are binding at trial unless you officially 								amend

DiMichel v. South Buffalo Ry.?
					
	C.	GLOBALISM AND DISCOVERY
			i.	HAGUE CONVENTION ON TAKING EVIDENCE ABROAD
					a.	limits discovery: no discovery from non-parties 							and can only discover admissible evidence
					b.	Sup. Ct. held in 1987 that compliance with 							Hague Convention is optional
							-- can order defendants to submit to 								discovery even when material sought is 								outside U.S.
			ii.	INTEL V. ADVANCED MICROSYSTEMS
					a.	foreign tribunals may ask for assistance in 							discovery from U.S. district court (§1782)
					b.	District court held no discovery for Advanced 							Microsystems because:
							1. 	litigant cannot request 										discovery under §1782
							2.	Directorate General not tribunal 								(no equivalent tribunal in U.S.)
							3.	docs not discoverable abroad
					c.	Supreme Court disagrees on all counts:
							1. 	District Court may decline to 									help for above reasons but is not 								required to 
					d.	BREYER’S DISSENT:
							1. 	we need bright-line rule
							2.	comity issues are extreme

VII.	SUMMARY JUDGMENT (RULE 56)

	A.	RULE 56
			i.	must establish that there is no dispute about a material 						fact
			ii.	ALDERMAN V. BALTIMORE & OHIO R. CO.
					a.	after Rule 56 dismissal can only appeal, cannot 							amend 		

	B.	ADICKES V. S.H. KRESS & CO. (1970): OPEN-DOOR POLICY
			i.	Adickes refused service at lunch counter because she was with 					black children; left and was immediately arrested for vagrancy
			ii.	Alleged conspiracy to violate civil rights
			iv.	Kress moved for sum. judg.: submitted affidavits saying there 					was no conspiracy and implying officer was not in store
			v.	Adickes responded with inadmissible hearsay evidence
			vi.	Dist. Ct. granted summary judgment and Cir. Ct. affirmed
			vii.	Supreme Court disagrees: 
					a.	movant failed to meet burden; must negate 							every possible way conspiracy might be proved
					b.	No need to even look at Adicke’s evidence
					c.	maybe intended to limit to conspiracy cases: 							conspiracy is always mixed question of law and 							fact and should go to jury

	C.	CELOTEX CORP. V. CATRETT (1986): OPEN-DOOR SWINGS SHUT
			i.	Catrett alleges death of husband from asbestos exposure
			ii.	Celotex alleges no proof of causation in record
			iii.	Catrett’s proof is not in form admissible at trial
			iv.	REHNQUIST:
					a.	movant need not make affirmative showing that 						there is no way for P to prove proximate cause
					b.	movant must inform the court of basis by 							showing absence of evidence in the record	
			v.	WHITE’S CONCURRENCE:
					a.	D should not be able to just make prove-it 							motion, should have to depose witness
			vi.	BRENNAN’S DISSENT
					a.	D’s burden is to either make affirmative 								showing or go through discovery record and 							depose witnesses
					b.	Celotex has not met its burden
			vii.	ON REMAND:
					a.	Cir. Ct. found that D met its burden
					b.	Looked at Catrett’s evidence and decided 							admissible because Celotex had not objected 
			viii.	OPEN QUESTIONS:
					a.	Would Rehnquist allow “prove it” motion?
					b.	Must evidence be in form admissible at trial?
			ix.	IN PRACTICE:
					a.	many Dist. Cts. ignore movant’s burden and go 							straight to P’s evidence
					b.	many still require evidence be in form 								admissible at trial, but an increasing number 							don’t
VIII.	RES JUDICATA
	System efficiency, repose to individual
	Plaintiff must litigate all transactionally-related claims against one 				defendant at the same time. 

Note:	effect of criminal trial governed by Constitution’s prohibition on double jeopardy
	weaker conception of finality in criminal cases (habeas corpus)
A.	Conditions for Res Judicata
	i.	Validity
		a. 	judgment entered by court with jurisdiction
		b.	proper constitutional notice
	ii.	Finality (on the merits)
		Sup. Ct. has said you may sue in another court while 						appeals process is still ongoing; some District Courts 						aren’t following this
	iii.	Mutuality
	
	iv.	Do not require plaintiff to join claims against different parties in one 				lawsuit even when they are transactionally related
	v.	Injury to person and injury to property are part of one claim (Rush)
	vi.	If Plaintiff discovers new injury, P usually barred, but may go back to 				forum 1 and ask for modification of judgment (Rule 60)
				Exception: two-disease rule in asbestos cases
	vii.	Generally, one transaction = one claim, but this will sometimes turn on the 			substantive law
				look at K hypothetical: bond coupons for example are each 					considered a separate claim
				Normally when default on K only obligated to sue for that 					month’s default, but where acceleration clause, must sue on all 					months at once or risk being estopped
	viii. 	Ongoing and Continuing and Ongoing and Interrupted Transactions
		a.	if it occurs again after filing, that is a new claim
		b. 	must request relief for all anticipated injuries

Note:	ability to collaterally challenge subject-matter jurisdiction condition is limited: 1) 	manifest abuse of authority, 2) substantially infringes authority of another tribunal, 3) 	court lacked capacity to make informed determination	

Note: with appeals, there is a notion of “law of the case,” meaning that if case remanded, the decisions of the trial ct. originally still stand (except on whatever issues the appeals ct. reversed)

B.	INTERSYSTEM PRECLUSION

	i.	Subject-Matter Jurisdiction:
		a.	Plaintiff can bring suit in court of limited jurisdiction first, unless the 				rendering court 	has a rule of preclusion that does not allow for the 				relitigation of any transactionally-related claims (Exception to the 				exception: federal common law may have rule of preclusion specific to a 				particular federal statute that will trump state rule of preclusion)

		b.	Plaintiff must invoke the greatest amount of jurisdiction possible in 				whatever court they file in first, including asking for §1367 jurisdiction, 				in order not to be precluded

	ii. 	Personal Jurisdiction
		a.	If litigating in a court with general personal jurisdiction over defendant, 				must litigate all transactionally-related claims or will be precluded
		b.	Can litigate in court with limited personal jurisdiction first without being 			precluded, but some commentators would insist that plaintiff must plead 			all claims in order to give defendant opportunity to waive jurisdiction
	
	iii.	In rem jurisdiction
		a.	Limited jurisdiction because it cannot hear all claims against D
 		b.	It will bind whole world with respect to judgments about the property
		c.	Even where state has attachment statute, most commentators would say 				that P must still ask for full jurisdiction; cannot get around preclusive 				effect by asking only for limited in rem jurisdiction

	iv.	Quasi-in-rem 1
		a.	Limited jurisdiction
		b.	No broader claim preclusive effect than the claim adjudicated and only 				against the parties involved

	v.	Quasi-in-rem 2
		a.	in old days, no claim preclusive effect
		b.	no longer any quasi-in-rem jurisdiction
	
IX.	COLLATERAL ESTOPPEL (ISSUE PRECLUSION)
A.	Requirements
	i.	Identity of Issue
			a.	issue is defined narrowly because the reach of issue preclusion 					has possibility of being very broad
	ii.	Actually Litigated
		CROMWELL V. COUNTY OF SAC???
		F1: P’s bond ruled invalid, County need not pay on it because obtained by fraud
		F2: County asserts P is claim precluded -- Ct. holds it is different issue because 			each coupon is separate transaction
			a.	presentation of evidence about the issue to a fact-finder (no 					default judgments, etc.
			b.	look to trial transcript, trial order, discovery record
				Rule 16 requires pre-trial conference
			c.	settlement doesn’t count, stipulations don’t count, criminal 					judgments don’t count, usually no issue preclusive effect with 					guilty plea
			d.	Vestal’s arguments against actually litigated requirement:
				1.	“lack of incentives”: thinks burden should be on party 						asserting no preclusion to show that there was no 						incentive; incentives argument is not about actually 						litigated requirement but is argument against preclusion 					generally
				2.	“inconvenient forum”: given that P chooses forum and 						that there are limits of personal juris. over D, should not 						be an issue (he ignores that D can remove)
				3.	“settlements will be discouraged”: thinks that if they are 						discouraged it is only by size of present suit; ignores fact 					that parties can sometimes protect themselves in 						settlement
			e.	Hazard’s winning argument:
				1.	there are no efficiency concerns and possibility of 						mistake is high
			f.	What about seriatum litigation where F1 is not a court?
				1.	it is a matter of discretion; F2 will look at available 						procedures in F1 and ask whether full and fair 							opportunity to litigate the issue

Note: in general, policy concerns are mistake, fairness, economy, inconsistency of judgments

	iii.	Actually Decided
		a.	RUSSELL V. PLACE
			F1: prior decision that patent valid, but
			there were two parts of patent (fat liquor, process)
			we don’t know which was found valid
			no issue preclusion	
	iv.	Necessarily Decided (essential to the judgment)
		a.	Justifications
			1.	Winning party has no opportunity to appeal (but no right to 					appeal in civil trials) 
			2.	Court may pay less attention to things not necessary to verdict
			3.	System is likely moving towards a discretionary approach to 					actually decided requirement
b.	Division on whether alternative and independently sufficient holdings each have preclusive effect
	1.	Restatement 2nd says no preclusion
	2.	Some courts give both preclusive effect

Note: res judicata/collateral estoppel is affirmative defense – if D does not raise it is lost
In last five years courts have been raising it sua sponte
		
B.	Distinction from Claim Preclusion
	i.	fact that issue could have been raised in F1 is never basis for issue preclusion
	ii.	no transactional relation requirement

C.	Mutuality
	i.	Old General Rule: If party not bound by judgment, cannot benefit from judgment
	ii.	Privity can make a person bound even where was not a party
		a.	class representative in privity with class members
	iii.	Approaches to co-defendants/co-plaintiffs
		a.	Old Rule: parties should not be issue precluded unless in adversarial 				relationship
		b.	Second Approach: Are the parties adversaries in fact?
		c.	Third approach: where there was full and fair opportunity to litigate, 				adversarial relationship irrelevant
	iv.	Exception: Indemnity Anomaly
		a.	allows defensive non-mutual collateral estoppel when party in lawsuit 1 				and party in lawsuit 2 are in indemnity relationship
		b.	courts have begun to extend this to vicarious liability relationships even 				without indemnity 
		c.	Justifications: undermines judgment, right to indemnification
	v.	BERNHARD V. BANK OF AMERICA NAT. TRUST & SAV. ASSN.
		a.	F1: Bernhard v. Cook; court determines it was gift to Cook
		b.	F2: Bernhard v. Bank: Bank asserts issue preclusion
		c.	Under mutuality, Bank cannot assert (though because of substantive law 				about executors perhaps could have allowed indemnity anomaly)
		d.	Traynor eliminates requirement of mutuality
		e.	Traynor’s test
			1.	actually litigated
			2. 	same issue
			3.	party against whom it is being asserted must have been party in 					original proceeding
			4.	unclear whether limited to defensive context
		f.	Many states took cue from Bernhard
	vi.	BLONDER-TONGUE
		a. 	F1: University sues patent infringer, loses (patent not valid)
		b.	F2: University sues new patent infringer
		c.	Blonder-Tongue test: allows non-mutuality in the defensive context but 				adds requirement that there be a full and fair opportunity to litigate
	vii.	OFFENSIVE NON-MUTUAL COLLATERAL ESTOPPEL
		a.	A v. B, C v. A or C v. B
		b.	PARK LANE HOSIERY V. SHORE
			1.	SEC wins injunction against Park Lane
			2.	Shore asserts issue preclusion on false statements
			3.	Dist. Ct. finds no issue preclusion because it would deny jury 					trial
			4.	Sup. Ct. creates discretionary standard for offensive non-mutual 					issue preclusion:
				Could party seeking issue preclusion have joined in F1?
				Fairness:
					Incentive to litigate in F1?
					Prior judgments inconsistent?
					Different procedural opportunities?
						but, ct. finds lack of jury is not an important 							procedural opportunity for this purpose
			5.	Dist. Cts. have run with this and essentially gotten rid of 					mutuality