1. maintain dignity interest
2. what the risk of a wrongful taking is
3. bond (by Plaintiff)
4. exigent circumstances nullify these
1. important governemnt interest
2. special need for prompt action
3. process must be under the control of a govermment entity or court supervision
5. judicial review of the affidavit
1. post seisure of the affidavit is purely immediate
2. specific allegations are not conclusory --
3. showing of the right
6. hearings can not be examples of due process because
1. There is a hearing given before – immediately after without the person having to file their own suit
1. One would need to pay damages for wrongful issuance of the writ – legal fees
2. The sum of all of these differences, under the facts of the Mitchell case, one doesn’t need to provide prior notice and an opportunity to be heard.
3. The question is what is so special about these characteristics that they trump prior notice and an opportunity to be heard
4. This is still an ex-parte hearing
2. Some courts have found value in a hearing over just a written statement of objections to a claim
7. Grant and not having exigent circumstances –
8. has to be something that was the object of the dispute
1. Test that the court applies in Doher
1. Protect Defendant’s interest
2. Risk of eroneous depravation
1. Where did the dignity interest go
3. Most significant weight is given to the Plaintiff’s interest
2. State action question
1. This was state action
2. But, it could be that although the state wasn’t the Plaintiff, the logic can apply because the state executes the attachemtn
3. So, this would apply to private reposessions
9. From Fuentes there guidelines for exigent circumstances
1. It fits one of the requirements of the Fuentes exception, that it is a need for immeadiate action—hypothetically it would be giving them notice to waste the property
2. Directly necessy to secure an important govenrmental and public interest – which fits one’s paradyme
10. dispute between private litigants
1. The private interests affected
1. Risk of error inherent in the given procedure as opposed to alternative procedures
2. The interest the government sought to protect and
3. Together with the fiscal and administrative burdens of alternative procedures
4. Defendant interest (might not be so salient)
1. State court has upheld the impoundment law (taking car without conviction)
2. Possibilities that the car is rental car
3. The defendant’s interest would plummet
4. This is different than when a private party would the power of the government
11. Fuentes says that even if one can regain possession of property by posting a bond, their right to due process is still violated without a hearing
1. Broad reading of Fuentes: any prejudgement sequestration that did not provide notice and an opportunity to be heard prior to the attachment was constitutionally suspect
1. with judicial approval, a vendor’s lien (rather than anything else),made available a procedure to get the goods back, force the Plaintiff to domesonstate the bass for sequestration rather than allow sequestration based solely on conclusatory evidence
2. even with a bond of twice the attachment amount, no early hearing was provided, altough the defendant could repossess by posting a counter-bond
1. Statute authorizing seizsure without a hearing must have the following provisions
1. Credit most post a pbond to safegrad interest of the debtor
2. Creditor or someone with personal knowledge of the facts myust file file a affividavit which sets out a prima facia claim for pre-judgment attachment of the property
3. Neutral magestrate must determine that the affidavit is sufficient before issuing the writ of attachment or replevin
4. Ther must be a provision for a reasonably prompt post-attachment hearing for the debtor
2. Pre-notice might not really bre with it for people who lack the intellectual capacity to take advantage of the courts
3. To get quasi-in rem jurisidciton, prejudicicial attachment might be necessary
1. With quasi in rem judgment there is LIMITED LIABILITY.
1. Quasi in rem jurisdiction subjects the defendant to liability only to the extent of attached or garnished in-state property, whereas in personam jurisdiction subjects the defendant to unlimited personal liability.
2. LIMITED EFFECT OF JUDGMENT. A judgment based on quasi in rem jurisdiction is not res judicata. Therefore, the plaintiff cannot sue to enforce the judgment in other states — if the plaintiff wants to recover more from the defendant, he must retry the case by attaching other property of the defendant or sue in a court with personal jurisdiction over the defendant).
3. QIR: Whenever the laws of the state in which it sits permit quasi in rem jurisdiction, pursuant to FRCP 4(n); E Ch.2-V(E). However, under the federal rules, the plaintiff must show that he cannot get personal jurisdiction over the defendant by reasonable efforts. E Ch. 2-V(E)(2). NOTE: For federal diversity cases (where the amount in controversy must be satisfied), federal courts are split as to whether it’s the value of the attached property or the value of the claim that should control in determining whether the jurisdictional amount has been satisfied
4. Types of jurisdiction
1. Quasi-in-rem -- the power comes from within a state's borders
1. Federal use of QIR: Whenever the laws of the state in which it sits permit quasi in rem jurisdiction, pursuant to FRCP 4(n); E Ch.2-V(E). However, under the federal rules, the plaintiff must show that he cannot get personal jurisdiction over the defendant by reasonable efforts. NOTE: For federal diversity cases (where the amount in controversy must be satisfied), federal courts are split as to whether it’s the value of the attached property or the value of the claim that should control in determining whether the jurisdictional amount has been satisfied.
2. Quasi in rem: will only settle one party's interest
3. Quai in rem ii: where the property is unrelated to the action -- the fundamental fairness test dictates that mere location oaf a stock is not enough to subject someone to QIRii jurisdiction ) . The purpose for allowing states to exerise quasi-in rem jurisidction is to ensure that one's resident have protection against the action of out staters.
4. In rem: won't encounter much except for admiralty or governmetn (Calims of an object against the world)

In persona

1. Issue before the actual trial – why does the Plaintiff need temporary relief
1. It has to be showing that there is irreprable harm that they are trying to prevent
2. Preliminary injuctions maintains the status quo
1. Stops everything so that no changes will ensure
2. This freezes the status quo
3. Requirements for issuing a preliminary injunction
1. Always needs to be a hearing
2. Stong liklihood of success
1. Can he simply rely on the allegations to show a strong liklihood of success on its merits
2. But, in a noticepleading jurisdiciton the complains can be skeletal
3. Not only is it possible to have a hearing, but to combine it with the trial
4. Can get the grievances in front of PLAINTIFF
5. The injury isn’t full-blown – we can save the Plaintiff, and the irreprable harm requirement is met
6. It says imminent irreparable harm
1. On the balancing of hardships – who is favored?
4. imminent irreparable harm would happen
1. Would need to bring in expert testimony
2. There are no guidelines, it seems

1. This way a way typically used in the preliminary injunction contexts
2. We show the inadquacy of mney by hsowing the liklihood of irreprable harm – for permanent injunctions will also have to show that money won’t do
1. They are borader
2. Might not do because of the irreprability of the harm
3. He would have to file repeated lawsuits
1. Calculation of damages would be too messy

1. The harm has to be fairly iminant, as opposed to being speculative
2. There is no administiatve exhaustion requirement that goes with rule 65
3. Issuance is in public’s iterest
1. Refers to general public interest
2. Not going to see a lot of courts grappel with this issue
3. Instead the public interest is usually implicated where there is a disput like in the million youth march
1. In public law cases, court will more likely recognize a public law cases and guess what it is
2. Regulations might be indicative
3. Courts, in private dispute ignore the requirement that the dispute be in the public’s interest
4. Factors to be considered for preliminary injunctions
1. Strong likhood of success on merts
2. Irreprable harm should preliminary relief be dined
3. Baloace of hardships favors Pls issuing the injuction will advance public interest
5. Permanent injunctions
1. Whether the Plaintiff has actually succeeded on the merits
2. Whether has has an adaquate remedy at law
3. Whether he risks the imminent irreprable harm
4. Whether the balace of hardships weighs against inssurance of an injuction, whether aninjuction would serve the publiuc interest anmd whether the court can, as a paractical matter, administer the injunction
6. Court’s power to enforce injuctions
1. Contempt
2. Compsnsatory civil conempt
3. Coercive contempt

1. Maybe granted without notice to the targetted party
1. Can only last for 10 days without a hearing

1. Subject matter (can be raised any time)
2. Personal
3. Notice
4. Service
5. Venue
6. Removal
7. Waiver

1. Exceptions for guardians, subrogees, etc.
1. Can be raised at any time, but subject to estoppel defences

1. Collateral attack is defined as he enforcing court can always inquire as to whehter the rendering state had juridiction in the first place and refuse to enact it if eit did not
1. He could littigate the issue in his home state

1. Rules will neither expand nor contract a court's jurisdiction
2. Minimum contacts (expectation of being sued) for non-present defendants -- can't be induced into a state by fraud
1. Long arm statute: Does the forum state’s long-arm statute provide for jurisdiction over the defendant? (Such statutes typically list the contacts required — domicile, use or ownership of in-state property, results arising from in-state tortious acts, contracts performed wholly or partially in-state.)
1. Long-arm statutes can be applied based on consent to jurisdiction
2. Present defendant
1. : obligations to pay debts travel with the person
3. someone can only be served in the being in federal court doesn't take away your personal jurisdiction problem -- though it extends the bulge rule

1. one has to get 120 days notice for the pleading

1. For a non-present defendant, they need minimum contacts to be sued in the forum state that were initiated by the defendant
1. Specific jurisdiction: The only contract that matter are contracts that relate to or arise from the Plaintiff’s cause of action
1. The only contracts that count, are contacts that relate to or arise from the Plaintiff’s cause of action

1. If the cause of action arises out of or relates to the defendant’s contacts with the forum, the jurisdiction is known as "specific" jurisdiction. Contacts sufficient to merit "specific" jurisdiction include the defendant’s acting in the forum to wrong the plaintiff; the defendant’s use of the mails instead of going to the forum to harm the plaintiff; and the defendant’s sending an agent to act on his behalf in the forum and the agent’s committing an act which wrongs the plaintiff.
2. the mere fact that the cause of action arises from contacts with the forum is not sufficient to justify personal jurisdiction; the contact must still be sufficient to give the defendant a reasonable expectation of being haled before the courts of that state.

1. International Shoe spectrum -- applies to corporate as well as inidividauls
1. Penoyer -- people can't bring suits wherever they want
2. Gray: whether the contacts are minimum or not can be based on whether it was a purposeful availament -- to satisfy the long-arm/constitutionality test
3. Quality and nature of the contacts are what count (not causal or isolated)
1. Must be someone who purposely avails themselves of the benefits and protections of the law of a state
2. Must be a significant amount of business in the state
4. Insurane company constitutes enough business
5. McGee: Specific in persona jurisdiction -- acts arising from the quality and nature of contracts with the state
6. Burger King: continuous, but limited activity in the forum states, such as the ongoing business relationship
7. General in persona jurisdiction lies somewhere between the contract that support general in peronam jurisdiction and those that support only specific minimum contacts jurisidction
1. Under a general in persona jurisdciton, a majoory American compamny would be subject to personal jurisdiction in many, if not all state, regardless of whether the claim in arose the state where the suit was brough
8. Hansen: must be purposeful availament
2. General jurisdiction: If the cause of action is unrelated to defendant’s contacts with the forum, the requirements are far more stringent than for "specific" jurisdiction: The contacts must be "systematic and continuous" to justify jurisdiction (e.g., maintaining an office in the state).
1. There has to be an effort to market (not just foreseeability)
2. Note that, if minimum contacts are satisfied, it would be extremely unusual for the exercise of jurisdiction to be unreasonable, because the interests of the plaintiff and the forum will generally justify even a serious burden on the defendant. But see Asahi Metals v. Superior Court (U.S.1987).
3. According to the majority, it is not enough for a component manufacutre to merely put its products into the stream of commerce
1. This is called "general" jurisdiction, and it gives forum courts jurisdiction over the defendant for any claim, whether related to the "systematic and continuous" contacts or not.
1. General jurisdiction -- based on a long term of continuous contacts that were continuous
2. General jurisdiction is rare.
1. 4d addresses serving corporate defendants
2. Purchaes, even at regular interval do not subject a state to foreign corporation to state jurisdiction if the purchases are unrelated to the cause of action

1. The Plaintiff needs to purposefully avail themselves of the forum
2. If one is doing business in one state, they are considered to have fair notice of at least a kind of lawsuit – even if you can’t anticipate a particular kind of Plaintiff
1. Putting things into the stream of commerce do not necessary satisfy the minimum contacts test.
2. Consent to jurisdiction
1. If he consents to jurisdiction (e.g., a corporation registers to do business in forum state; the defendant has consented contractually to forum state jurisdiction; the defendant had made a general appearance to defend the action)

1. Contacts have to relate to the cause of action or be general jurisdiction

1. Fair play test
1. One may be deprived of substantive due process by being forced to appear far from home
2. Is the assertion of jurisdiction "reasonable"? That is, does it comport with "traditional notions of fair play and substantial justice"?

1. Burden on the defendant;
2. Interests of forum state;
3. The plaintiff’s interest in obtaining relief.

1. Proper service

1. Diversity jurisdiction: Controversy between citizens of different states or different countries -- congress can expand and retract the jurisdiction of the federal courts
1. Has to be within the state's long-arm statute and be constitutional
2. We determine diversity based on the citizenship at the time of filing the of the lawsuit.
1. Courts won’t allow diversity to be created by collusion
1. there is no rule that forbids defeating diversity jurisdiction by collusive joinder (and thereby preventing removal, since, without complete diversity, the case could not have been brought in federal court in the first place).
1. Can’t remove based on a counterclaim
1. A counterclaim is only compulsory if it relates to the same transaction or occurrence as the original claim and does not require joinder of third parties over whom the court does not have jurisdiction.
2. If there is no compulsory coutnerclaim, than things may not be precludedf
1. If there isn't the ability of the lower court to hear a counterclaim, something may not be issue precluded.
2. modern trend is away from the rule, with federal courts citing their "inherent" power in invalidating assignments and nzs designed solely to defeat diversity jurisdiction. W §31 pp. 185-88; E Ch.3-I
2. Finding diversity -- burden of proof is on party invoking the federal court jurisdiction if challenged

1. Residence plus intent to remain indefinitely equals citizenship
1. Where she pays her taxes and how long she has been in Idaho may be probative
2. Definition of housing might be maintains an apartment that she doesn’t sublet, year-round
3. One can have several residence

1. Corporate citizenship is defined as To determine citizenship of corporate defendant it is where it is incorporated and where it has its principle place of business
1. For federal diversity jurisdiction, on the other hand, a corporation is a "citizen" both of the state in which it is incorporated and the state where it has its principal place of business.
1. Corporations are citizens of the state where they are incorporated, and the principle place of business
1. "Nerve center" test — principal place of business is the corporate headquarters, where decision making takes place.
2. "Muscle" test — principal place of business is where the corporation does a majority of its manufacturing or provides most of its services.
3. Insurance proviso – claims against an unsurance company give the insurance company the citizensship of where the claim is filed

1. Non-resident aliens and Americans residing abroad are not citizens of any state
2. Need to have high amount of damages – to permissively join two claims, one needs to have claims that result from the same transaction
1. A single Plaintiff can aggregate all claims in the federal court irregardeless of transactional relations
2. The majority rule in non-damage claims (e.g., where an equitable remedy like specific performance or an injunction is sought) is for the court to measure the value of the claim to the plaintiff
3. Where there are multiple parties and neither satisfies the amount in controversy requirement, claims cannot be aggregated to satisfy the amount in controversy requirement of federal diversity jurisdiction (more than $75,000).
1. Where the claims are joint claims (where there is a single title or right in which the plaintiffs have a "common and undivided interest")— e.g., the plaintiffs are joint tenants in a piece of land and they’re suing for trespass, or as co-obligors, co-obligees, etc. — where the claims can be aggregated to satisfy the amount in controversy requirement..
2. Subject to joinder as a necessary party only (not indispensable):
1. Joint obligors and joint obligees in lawsuit on the obligation.
4. Joined claims must still have independent grounds for Subject matter jurisdiction
1. Joined claims are never required, but they can make something subject to Res judicata
5. Permissive counterclaims are not covered by Subject matter jurisdiction
1. A counterclaim is only compulsory if it relates to the same transaction or occurrence as the original claim and does not require joinder of third parties over whom the court does not have jurisdiction.
6. Exceptions to complete diversity
3. Exceptions to complete diversity
1. Note: unincorporated associates, such as unions, are citizens of every state which it has any memberw
2. Statutory interpleader: Only minimal diversity is required
3. Claims covered by supplemental jurisdiction, such as those brought by third-party defendants: Class actions (and some other representative actions), in which only the citizenship of the representative(s) need be diverse.
4. One a third party counterclaim is in, he can assert anything. It dones't mean that the court will apply it.
5. Appellate jurisdiction does not like to review trial court’s findings of diversity jurisdiction
1. Difficulty of overturning the finding that the Plaintiff is a citizen of Idaho
1. Factual finding are reviewed under a deferential or "clear error" standard –
2. Appellate court would show deference to the original court.
1. Trial court would be closer to the evidence, etc.

1. Some lower courts have adopted the 6^th circuit's ruling that if you can prevail under state law, it should stay there
2. Complete diversity needed for federal court to try state law (Strawbridge rule)
1. Complete diversity determined at filing: burden of proof is on party invoking the federal court
1. Corporate citizenship is defined as To determine citizenship of corporate defendant it is where it is incorporated and where it has its principle place of business
1. Corporations are citizens of the state where they are incorporated, and the principle place of business
1. "Nerve center" test — principal place of business is the corporate headquarters, where decision making takes place.
2. "Muscle" test — principal place of business is where the corporation does a majority of its manufacturing or provides most of its services.
3. Insurance proviso – claims against an unsurance company give the insurance company the citizensship of where the claim is filed
2. Non-resident aliens and Americans residing abroad are not citizens of any state
2. Individual citizenship
1. Residence plus intent to remain indefinitely equals citizenship
1. Where she pays her taxes and how long she has been in Idaho may be probative
2. Definition of housing might be maintains an apartment that she doesn’t sublet, year-round
3. One can have several residences (for venue purposes)
3. Courts won’t allow diversity to be created by collusion
1. there is no rule that forbids defeating diversity jurisdiction by collusive joinder (and thereby preventing removal, since, without complete diversity, the case could not have been brought in federal court in the first place).
1. modern trend is away from the rule, with federal courts citing their "inherent" power in invalidating assignments and joinders designed solely to defeat diversity jurisdiction.
2. The 75,000 for divresity claims

1. A single Plaintiff can aggregate all claims in the federal court irregardeless of transactional relations
2. Where there are multiple parties and neither satisfies the amount in controversy requirement, claims cannot be aggregated to satisfy the amount in controversy requirement of federal diversity jurisdiction (more than $75,000).
1. Where the claims are joint claims (where there is a single title or right in which the plaintiffs have a "common and undivided interest")— e.g., the plaintiffs are joint tenants in a piece of land and they’re suing for trespass, or as co-obligors, co-obligees, etc. — where the claims can be aggregated to satisfy the amount in controversy requirement. W §36 p. 211.
1. Subject to joinder as a necessary party only (not indispensable):
1. Joint obligors and joint obligees in lawsuit on the obligation.
2. Joined claims must still have independent grounds for Subject matter jurisdiction

1. Review: Appellate court does not like to review trial court’s findings of diversity jurisdiction
1. Factual finding are reviewed under a deferential or "clear error" standard –
1. Appellate court would show deference to the original court.
1. Trial court would be closer to the evidence, etc.

1. Removal jurisdiction (presupposed concurrant jurisdiction if the defendant wishes to remove something – no ability for Plaintiff to exercise – even if on counterclaim)
1. Removal has to be filed within 30 days of reeving the pl's pleading
2. Most things a federal court can hear, the state court can hear it as well.
3. If something is in state court, but there are supplemental claims that are separate and independent causes of action in the federal jurisdiction the entire case may be removed (including the state law claims) and the district court may determine all issues therein, or, in its discretion, may remand all matters in which state law dominates
1. if a non-removable cause of action is joined with a federal claim and removed, at the federal court’s discretion, the federal court can dismiss the fedearl claims and remand to the state court all matters in which state law predominates
4. can’t remove based on a counterclaim
5. there is no expicity authority for removing things from federal court.
6. Federal venue rules do not apply in removed action
7. Note: Transfer displaces the Plaintiff's geoegraphical choice for litigation while removal switches system
8. Removal applies to cases, not claims
9. Analysis for removal
1. removal: cannot be made on the basis of an anticipated defense, just as a case cannot be filed in federal on the basis of an anticipated defense
1. can only look to four corners of complaint as a grounds to removing the case
1. some division as to whether compulsory counterclaims (whereby the Defendant must make all claims – e.g. auto-accident) can be precluded from removing to Federal Court if the four-corners of the complaint do not provide a federal question
2. seem to be unfair, because it leaves the Defendant with only a chance to exercise a 1257 (writ or cert) claim to bring his counterclaim into federal court – as soon as it goes as far as the highest court in the state will take it
2. general test is that a case is removal only if it could have been heard in federal court

1. exceptions: (only in diversity) - §1441b
1. no removal if any defendant is a citizen of the forum

1. there is no removal more than one year after the case was filed in state court – §1446b
1. can’t remove based on a counterclaim
2. all defendants must agree to be removed
1. but one defendant can removed to federal court if there is a separate and independent federal question claim
3. review of state courts review of state tribunals by federal courts is de nova – because they do not have access to the full set of record
1. Ginsberg: federal courts might not have expertise overl local policies
2. Federal courts should decline jurisdiction as a matter of discretion if the state law claims are either novel or complex, or more overwhelming than the federal claim

1. remanding
1. motion to remand the case on the basis of any defect other than lack of Subject matter jurisdiction must be made within 30 days after the filing of the removal. If there ia loack of Subject matter jurisdiction the case will be remanded – but it can also be severed and remanded.

1. Federal Question jurisdiction: Federal question jurisdiction: (§1331) Issues concerning the federal constitution, a federal statute, or treaties of the US (Civil Rights, Admiralty, Patent, or State laws that refer to federal laws)
1. Supreme court seems rigid in deciding when a question is federal – for instance, negligence by means of violation of a federal statute, that does not provide for specific civil remedies is not a federal question -- but actions that would normally be state actions that relate to federal interests are federal actions
1. Implied private right of action: Court will look to congresses’s intent in deciding whether it intended suits to be brought at the federal level or the state level – and whether it intended tort claims to be brought as a federal tort claims (e.g. RICO v. Negligence)
1. Court will look at which classes congress intended the statute to benefit, leaving the Plaintiff with simple state common law negligence
2. Supplemental jurisdiction -- adding a claim (a federal question has to be your anchor claim) -- do not think about until one considers whether there is an independent basis of Subject matter jurisdiction
1. pendant jurisdiction – Plaintiff adding a judicial insufficient federal claim to a sufficient claim (joinder of Defendant's by Plaintiff)
1. Diversity only
1. Addition of state law claims to diversity transactions, they must be transactionally realted. If all the Plaintiff is attempting to do is to add a state law claim – ask if the state law claim is transactional related (common nucleus of operative fact)
1. If one is addding a party, it also must be
2. Can allege "conspiracies" or "policies" as basis for transaction
1. Requirements
1. At least one Plaintiff has to have had dealings with at least one of the proposed defendants
2. For purposes of rule 20 joinder, each Plaintiff needed seek relief against any defendant – one Plaintiff that is seeking releief against each of the defendants
2. If the anchor claim is dismissed, the federal has the discretion about whether to also dismiss the state law claim
1. Discretionary factors in Gibbs that done when a federal court should be hearing state claims based on pendant jurisdiction
1. Would the interests of judicial economy, convenience, and fairness to the litigants be served by the court’s exercising pendant jurisdiction
2. Do the state issues predominate or is the state claim so clearly tied to the question of federal policy that it should be decided by a federal court?
3. Which is stronger under the facts of the given case, the desire to avoid needless decision of state law in the interest of federalism, or the need for a federal court to decide issues closely related to the application of federal law
4. Would a jury be confused by combining the federal and state claims in a single trial
2. pre-emption – a judge can decide what claims pre-empt a state-law claim
1. Earlier state actions about the same set of circumstances are res -- covered under the full faither and credit statute. But, we have to look at the similarity of the state law to the federal law.
3. Even if a claim is transactionaly related as per Rule 14 -- every party must have an independent basis of jurisdiction
1. Authority is divided as to whether counterclaims against the Plaintiff need independent Subject matter jurisdiction as well
2. Supplemental claim jurisdiction --
1. In supplemental jurisdiction one is appending a state law claim to a federal question claim
2. Needs to be transactionally related
3. Only one party needed to bring the matter into this jurisdiction.
1. Can there be a divergence on the set of fact – between their anchor claim and their supplemental claim
2. There needs to be a state law claim that could be heard in federal court
3. The supplemental claim will always be a state law claim
2. Ancillary jurisdiction (Federal courts will get ancillary jurisdiction in the case of compulsory (not permissive) counterclaims, interpleader, and intervention)
1. According to some courts: Counterclaims by the defendant – if they exceed 75,000 will satisfy diversity jurisdiction
1. Exceptions are made for arbitration awards
2. Counterclaim
1. Compulsory counterclaims are those that result from the same transaction
1. If Compulsory counterclaims aren’t raised, they are waived
2. Permissive counterclaims are those which do not result from the transaction or occurrence of the original claim – not subject to ancillary jurisdiction
1. May be raised at later time
2. Permissive counterclaims require additional grounds
1. Can't encourage people to evade the complete diversity requirement
2. With ancillary jurisdiction a non-federal claim can be added
3. Impleader: can only impleade someone when the third party may have be liable for part of the claim by the Plaintiff against the Defendant -- have to look at Eerie doctrines and state law
1. If it transactionally related, doesn’t have to be the total overlap of the evidence m to make a difference): Even if one claim is eliminated there is still a supplemental claim and supplemental jurisdiction analysis: Plaintiff can claim against implead parties based on transactional relations and if there is independent Subject matter jurisdiction
2. If someone is a defendant, or the complaint is amended, there is no supplemntal jurisdiction over things that are based over amended complaints
3. The Plaintiff may assert claims against the 3^rd-party defendant arising from his 3^rd-party counterclaim -- provided this is transactionally related (it is done by amending the complaint)
1. As a policy matter it seems that defendants get benefit of doubt when it comes to impleding third-parties
4. Reasons for impleader
1. Indemnifacation: Right to indemnification can either be express (a contractual provision in which someone agrees to compensate for the damage caused by someone else) or implied (a person without fault is held legally liable for damages another’s fault caused).
2. Subrogation: One person’s succession to the rights of another, making him a "subrogee.
3. Breach of warranty: In general, violation of a seller’s representation concerning the character of (or title to) a product.
4. Contribution: Covers the following situation: A joint tortfeasor is held liable for damages to his victim. The joint tortfeasor can thereafter seek contribution from his fellow joint tortfeasor(s), to reflect his/their fair share of the burden.
5. Impleader – rule 14 -- where another potential defendant is transactionally related (according to the defendant) – the rule does not allow for addition targets – but it allows defendants to find additional targets to pass on liability (which ever theory of liability the defendant choses, msut be supported by state law)
1. In impleader, must claim that the impled’s liability is derrivitive – not simply a case of pinning liability on someone else
6. Types of impleaders -- must be based on substantive state law
1. Indemnity is defined as the Right to indemnification can either be express (a contractual provision in which someone agrees to compensate for the damage caused by someone else) or implied (a person without fault is held legally liable for damages another’s fault caused).
2. Subrogation is defined as One person’s succession to the rights of another, making him a "subrogee." Here’s a common example. Some jerk hits your car, and your insurance company pays for repairs pursuant to your car insurance policy. The insurance company can seek recovery from the jerk on a subrogation theory to the extent the insurance company was liable to you under the policy.
3. Contribution: Covers the following situation: A joint tortfeasor is held liable for damages to his victim. The joint tortfeasor can thereafter seek contribution from his fellow joint tortfeasor(s), to reflect his/their fair share of the burden.
4. Breach of warranty: In general, violation of a seller’s representation concerning the character of (or title to) a product.
7. For impleader purposes, the secondary defendant is only liable if the primary defendant is liable
1. Impleader rules require that the 3^rd-party defendant be responsible to the 3^rd-party Plaintiff and not the original Plaintiff
2. Once the defendant impledes a 3^{rail-road-party} defendant, he can join to his impleader any other claims that he has against another party
3. A party facing impledaer may raise any available defences to the original cause of action in the answer
4. Impleader must be done in 10 days – or with leave of the court
1. Implead third parties must assert claims or additional claims against transactionally related parties
5. Can be counterclaims (at the option)
6. Third parties can move to sever the dispute
7. If a counterclaim is lodged by a 3^rd-party, against Plaintiff, the Plaintiff can implede additional parties
8. Impleader of third-party defendants (FRCP 14), but only as to claims by and against third-party plaintiffs and claims by third party defendants, not claims by the original plaintiff against third-party defendants; do not require an independent basis of Subject matter jurisdiction
3. intervention
1. Intervention as of right
1. SUBJECT MATTER INTEREST: The intervenor must have an interest concerning the property or transaction involved in the case;
2. IMPACTED INTEREST: Disposition of the action may, as a practical matter, impair the intervenor’s ability to protect his interest; and
3. INADEQUATE REPRESENTATION: The present parties do not adequately represent his interests (generally due to collusion between the representative and the adverse party, the antagonism of the representative’s interest to those of the intervenor, or the intervenor’s desire to appeal an adverse judgment when the representative refuses to do so).
1. Examples
1. Property suits like mortgage foreclosure or quiet title
2. specific performance of a contract (where any party to the contract can intervene as of right).
2. that a "necessary party" under FRCP 19(a) would also be an intervenor as of right under FRCP 24(a) — if the court orders joinder, it’s a necessary party; if the party wants to join, it’s intervention.
4. JURISDICTION: Intervention as of right is covered by ancillary jurisdiction and, thus, creates no jurisdictional problems. (Compare this with permissive intervention, which must meet independent jurisdictional grounds).
1. TIMELINESS: Intervention should be timely, but the court should rarely deny intervention as of right due to untimeliness (since the potential intervenor may be seriously harmed if excluded).
2. APPEALABILITY: The order granting intervention as of right is not a final order, so it is not appealable. If the intervention is denied, it is appealable; the appellate court will look at the merits and reverse if it was of right.
5. Intervenors (what about those representing the public) are collaterally estopped after the case is overIntervenors as of right need diversity (only entiteld to ancilliary jurisdiction if they do not break diversity)
2. Permissive interventions
1. "applicant’s claim or defense and the main action have a question of law or fact in common," or a federal statute permits permissive intervention.
1. The most important facet of permissive intervention is that, as the name suggests, the trial court may permit it — it’s discretionary. As a result, predicting in any given circumstances whether a court will permit intervention is very difficult. A court should not, however, allow permissive intervention that would unduly delay or prejudice adjudicating rights in the main action. FKM §6.10 p. 373-5.
2. JURISDICTION: Since permissive intervention is not covered by ancillary jurisdiction, it requires independent jurisdictional grounds. Thus, in a diversity case, the intervenor must not have the same citizenship as any opposing party, and his claim must meet the amount-in-controversy requirement. Since intervention as of right is covered by ancillary jurisdiction, this is the most important practical ramification of how you classify an intervention.
3. analysis’s
1. Where there is no alternative form where everyone can be brought, chances are that absentees won't be indispensable
2. Way to intervene as of right
3. Interests may be harmed
1. Even though there may be stare decisis, one must be certain the the present interest in the contravercy is sufficient to begin with
2. Have to know what harm is specifically
4. Interests are not protected
5. Would not allowing them to be heard have a stare decisis effect
1. Would it be irreprable harm
2. Sufficient represenations
1. Ways to intervene as of right
2. Interesests that can't be protected
6. 3^rd party beneficiaries might have standing to sue, and rate payers might not
7. distinction to tell if someone is adequately represented: an interferon is someone who could have brought the lawsuit anyway
8. way to get around standing requirement
1. Cascade: economic interst supported by anti-trust interest
2. Trobovitch: his direct interst in the union falls within the zone of interst protect by the statute
1. Zone can come from statute or common law
1. Anti-trust laws are public law and public law is within the zone of interst
3. Economic interest suffices for economic interst when the intervenor owns the economic interest
4. NOPSI: they have to own the economic interest
1. Natural resources
2. Question is whether an intermediate body besides the court would react in a certain way
1. Two kinds of standing
1. Common law or statute
2. Zone of interst

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9. Interpleader: defendants deciding who has the claim to a stakeholder’s money -- doesn’t bring together all littigation resulting from an incident, just clarifies the obligations of stakeholder. Even there is only one suit, interpleader can be raised as a preventative measure
1. Statutory interpleader -- where only two rival claimants must be diverse with each other
1. Minimal diversity is all that is necessary (claimants can be anywhere in the coutnrY0, and there is only a minimum of $500
2. Statutory interpleader suit can be brought in any district in which any claimant resides
3. Nationwide service of process in interpleader
1. If the claimants are from the same state, staturory impleader isn’t available
4. Must desposit money with the court
2. Rule interpleader m-- based on where the stakeholder not being co-citizens with any of the claimants
1. No diversity among the interplead complaintants
2. Rule interpleader requires that the stakehold have diversity from all of the claimants
3. No need to desposit the money with the court

1. Determined when action is filed
2. Note: corporate defendants are in proper venue in any place that they would be sufficient to make it subject to personal jurisdiction

1. (not only one state is going to be its place of bussiness for diversity purposes)
2. a corporation may be subject to personal jurisdction, but it may be in an improper forum if
1. it would not suffice that it was subject to personal jurisdiction onj some other claims related to the case before the court
2. venue only in the particular districts state where the defendant has contacts
3. hence, some jurisddictions in the state would be improper venue

1. dismissing -- or tranferring
1. common law doctrine
1. Bivens: Court can create a federal common law to protect the constitution protected rights (e.g. creating a cause of action)
2. IN diveristy cases, no removal of a citizen who is a citizen of the form. And no removal one year after a case was filed.
1. 1404, and forum-non are always relevenat (1404 is what lets people transfer)
1. Venue: there can be multiple venues
1. Forum non-convience…

1. Forum non-conviens transfers (can't be waived by defendants)
1. Personal jurisdiction exists in the transferee district
2. Is the district a proper place for venue
3. Was service of process possible in the transferee district

1. 14014, 1406 -- proving for the option of forum non-convinence
2. Plaintiff will always have proper venue--401 is transfer
3. 404 is dismissal

1. Forum non-conviens transfers (can't be waived by defendants)
1. Personal jurisdiction exists in the transferee district
2. Is the district a proper place for venue
3. Was service of process possible in the transferee district
4. Venue: there can be multiple venues
1. Forum non-convience…
2. 14014, 1406 -- proving for the option of forum non-convinence
3. Plaintiff will always have proper venue--401 is transfer
4. 404 is dismissal

1. Federal question
1. Venue is proper in a juducicial district where any defendant resides (if all the defendants reside in the same state)
2. Where it happened
3. Where defendant may be found (e.g. subject to tag personal jurisdiction)
4. Venue determined when claim filed personal jurisdction determined when claim arose
5. Any jurisdiction in the countr is proper if the defendant is an alient 1391d
6. Note: venue is propper where any of the events occurred
7. In rem: if a substantial part of the property was in somewhere
8. Personal juridiction -- only look at the state
9. Defects
1. 1404 -- in proper venue
2. 1406 -- in improver venue
2. Diversity cases
1. Defendant residnces
2. Judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is sitated
3. A judicial district in which any defendant is subject ot personala jurisdiction at the tim ewhthe action is commenced, if there is no district in which the suit may otherise be brought
3. Other cases
1. Defendant resides
2. Substnaila part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the actionis sitatted
3. A judicial district in which any defendant may be found if there is no district in which the action may otherwise be brought
4. Residence
1. A personwho is subject to personal jurisdiction is subject to jurisdiction anywhere in theat tstate
2. Residence seems to mean domicile
5. Venue can be based on where the substnaitla parts of the claim occurred
6. If the claim can't be broughtanywhere else, it can be brought in a judicial district in which any defendant is subject to personal jurisdiction
7. Venue can be waived by the defendant
8. For corporate defendants, venue is decided based on whether the judicial dsitrct is possible, if it were a separate state

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3. Diversity venue
1. Where any defendant resides, if all defendants reside in the same state
2. Where a substantial part of the events giving rise to the claim occurred
1. If for in-rem, where a substantial part of the property is located
3. If neither, then where any defendant is subject to personal jurisdiction
4. Federal question venue
1. Where any defendant resides, if all defendants reside in the same state
2. Where a substantial part of the events giving rise to the claim occurred
1. If for in-rem, where a substantial part of the property is located
3. If neither, where any defendant may be found -- treating the district as a state
4. Note: there are some actions which have special venue provision
5. Removal venue
1. When a state action is removed by defendants, venue doesn't matter

1. Compulsory joinder (one can make a motion to dismiss if not they aren’t included
1. Necessary parties
1. if the outsider must be joined in order to give complete relief to the parties
1. without him, proceeding would be substantially prejudicial, because it would either impede his ability to protect his interest (in later proceedings)
2. or it would expose the current parties to the risk of multiple liability or inconsistent obligations. (The mere possibility of multiple lawsuits doesn’t suffice.
2. Feasible parties
1. Neeed to have an independent basis for Subject matter jurisdiction because the Plaintiff is impleading them
3. Indispensible parties: -- courts really dislike dismising cases
1. Prejudice
1. note: The mere possibility of lawsuits that are inconsistent result is not protected
2. Standard is what harm may be accrue if party joinder is not ordered, rather than what policy should be satisfied though joinder
3. If the existing party or the absent party would be prejudiced by the result, the court looks at a way that it could reshape the settlement to avoid this
1. Court can decide that it is possible to shape relief in a certain way to avoid prejudice to the absent party (if possible)

1. Now the courts do not want to dismiss the case

1. Courts may try to either give a different remedy, or withhold relief
1. One possible way is for absentee to intervene using defensive interpleader: the defendant can make cross-claims or

1. Mitigation
1. Whether Plaintiff has an alternative forum will be considered. IF he has an alternative forum, the court is more likely to find an absent party to be completely indispensable
2. The court will not grant relief if the judgment would be ineffective (e.g. unwound by subsequent litigation by the absent party)
1. e.g.: must sue the executor, and avoid "takings"
2. effect of dismissal – whether Plaintiff would be prejudiced by the dismissal
3. cannot be merely speculative – must be, real and not just a possibility.
4. Were there is no alternative form where everyone can be brought – chances are that absentees wont’ be indispensable
5. Parties brought in through impleader or interpleader are not indispensable
6. Partition actions make all parties involved indispensible
7. Joint tortfeasors are never indispensible parties
2. adequate remedy
1. courts look creatively at the suit to determine whether parties are jointly and severally liable
2. note: joinder of joint obligors is up to the Plaintiff's discretion
3. Joint obligees are usually held to be indispensable – and non-joinder has led to a dismissal of action (indispensible)
3. effect of dismissal
1. The court must determine whether the absent person has an interest in the action that may "as a practical matter" be adversely affected in his absence
2. The court must consider whether the absence of the person will expose any existing party to multiple or inconsistent obligations
1. Substantive law can provide for double or multiple liability. – and the court will accept it (e.g. joint and servable liability)
2. Asking for something, that someone else might have a right to makes for a high chance of multipel liability
3. Judicial gloss

1. Risk of several lawsuits
2. Risk of defendant bearing several liability for this risk he shares with another
3. Absentee’s interests in avoiding from the proceeding

1. Examples
1. Patent/copyright owner when exclusive licensee of patent/copyright brings infringement claim against third party;
2. All other owners of same property when a co-owner of property seeks to quiet title in (or partition) the property;
3. Original lessee when lessor sues sublessee to force forfeiture of main lease due to sublessee’s acts;
4. Partial assignees;
5. All beneficiaries of a trust when action is to fix shares in trust;
6. All partners in a suit by a partner to dissolve the partnership;
7. All owners of property in a suit to establish an adverse interest in the property (e.g., foreclose a mortgage or remove an easement);
8. Corporation in a shareholder derivative suit.

1. If joinder is not feasible, the case will be dismissed based on the following criteria in good equity on conscience:

1. Permissive joinder every defendant must meet Subject matter jurisdiction jurisdiction requirements (must have personal jurisdiction)
1. Criteria for allowing permissive joinder -- interpreted broadly (even the same injury)
1. Transactional relationship
2. Must be a common question of law or fact that ties them togetehr
2. If there are Multiple plaintiffs who join under "permissive joinder" they do not need an independent basis for Subject matter jurisdiction
2. Tolling aspect – in that when someone is in Federal Court, the state STATUTE OF LIMITATIONS is running – so there might be a tolling issue

1. Forum non-convenes – court’s discretionary decline of personal jurisdiction despite the fact that this is This is geographically where one could bring the suit
1. Factors
1. Interests of the littigants
2. Convienience of the original forum
3. Effect of keeping action in the original court

1. Just because you sues in one state, it doesn’t mean that that state law will apply to the lawsuit
2. Choice of law issue that arose from a diversity suit in federal court

1. Although they are brought in federal court, they are about state law
2. It is a question of whether you apply federal law or state law
1. It is about state law, but there are different aspects of a state law that are either controlled by state law or federal law
2. Question of who has the burden of proof varies between state and federal law – this is an conflict (an Eerie conflict)
1. Burden of proof is really 2 things -- bruden of going forward (production) -- wherther youhave presented enough evidence to get to the jury, and burden of persuasion once you get to the jury whether they belive them or not. Summary judgment only deals with the burden of production
2. If it is a substantive issue then state law would apply, federal law substantive
1. The real problem is in determining whether something is procedural v. substantive –
1. Procedural vs. substantaive Hanna case: if ignoring the state rule would be outcome determinative, than the state rule is substantive than we have to apply state law
2. Things that are arguably argubaly procedural will now be handled under federal rules
3. Certificaiton (in some states) -- in general the federal court might look to state substative law -- and may may an edjudcated guess as to what state law would be basd on persuasive authority
3. Eerie won't be applied when the US is a party because of the overwhelming need for uniformity (need outweights state's interests)
4. Dismissing a case, 1367c provides discretion for the federal court when a federal court may decline to here a state law claim
1. Novel of complex issue of state law
2. The state claim substantially predominiates over the claim or claims over which the district court has jurisdiction
3. The district court has dismissed all claims over which it has original jurisdiction
1. All meaning all claims in the suit – even by other Plaintiffs
4. In exceptional circumstances, there are other reasons for declining jurisdiction
1. Layering With ancillary jurisdiction (where there may be grounds for suing one party, but not the other), if the grounds for suing the first evaporate, the court may say that supplemental claims based on the 2^nd may be judicially inefficient
5. History of eerie Conflict
1. Tyson:
2. Eerie: 10^th amendment reigns -- in a federal question the federal court can create a fedearl law. Federal court have to follow state law if outcome determinitive.
3. York: Federal courts are bound by state law if the procedure is otucome determinative
4. Byrd: Refining -- see if the fedral interests are weightier than the state's interests . We have to ask why the state is intersted in doing what it has done. We know that the staes have gone too far when they have alterend the essential funcation of the federal court.
5. Hanna: if there is a rule and there is a close call, the rule governs (e.g. Hanna modifies York if there isn't a federal common law) (Hanna also includes the fiarness test). There seems to be a bifurcation between the primary conduct (negligence or non-negligence) (the test fo substantial, si whether disregarding the ste law would be said to effect the privmary conduct, the state law is substantivae)
1. Hanna -- when the federal rules are on point
1. Federal court doesn't necessarily have to substitute state court rules for its own -- if there would be inequitable adminstaiton of the laws
2. If it is a federal rule that is in conflict with the state common law, than the federal rule applies
3. Hanna: if there isa federal rule, use (if it doesn't abridge, enlarge any substantive)
1. E.g. jury trial
2. Hanna -- if there is a conflict than go to "arguably procedural" and REA -- if it is not arguable procedural than it is REA
1. Hanna number 1 Federal judicial practice is trumped by state law if there is a conflict. If there is a conflict
2. Hanna number 2 -- Federal rules and statutes trump State, unless abridges or modifies any substantiv e law (REA, 28 USC §2072)
3. Benefit of doubt is given to federal laws (in deciding whether procedural or not)
6. York -- the outcome determinitive test
7. Byrd: federal courts must honor state-created rights
1. Importance of state policy balanced with importance of federal policy
2. Eerie is used when there is no federal rule
8. Eerie (if no federal, apply state law -- do not make new federal common law)
3. State Law v. Federal Common law
1. Deciding whether the state law is procedural (when it could be disregarded in favor of federal law)or substantive, in which case it must be applied
1. Hannah test: if you disregard state law, then that state law is substantive and one has to apply it
2. This test applies to this sort of conflict, as it applies to state law and federal common law
1. By outcome determinative – disregarding would be outcome determinative if it would encourage forum shopping
2. Disregarding the state law would be state law if it would encourage forum shopping
1. Encouraging litigants to seek a state law to hear a state law claim in the hopes of finding a better outcome
1. One is supposed to get the same outcome
2. If disregarding the state law would encourage litigants to go to the state law to get a better outcome – because it is a state law claim
3. Disregarding the state law will also be outcome determiniative it it would lead to a significantly different result in the case – then we must apply state law
2. Choice of law and the Eerie Doctrine: The outcome in a diversity case that is brought in federal court should be the same as if was brought in state court – when it is not the same, it has constitutional implications.
1. If the Federal courts are producing different outcomes than the state would produce, this would conflict with the idea of federalism -- this is when it would be outcome determinative.
1. Under SD law, for example, the PLAINTIFF has burden of pleasing or proving contributory negligence

1. Relaxed Eerie doctrine
1. Bivens: Court can create a federal common law to protect the constitution protected rights (e.g. creating a cause of action)
2. Federal rules will be supreme, if they are not outcome determinitive, but protect some federal interest

1. by appealing, rather than amending, the Plaintiff has attmeped to --
2. the same reasons that a court might decide or not decide to treat a admission as a denial might be the same reasons that it might deny leave to amend
3. being dilatory is a reason to not grant leave to amend
1. set off claims -- where the is a claim in addition to a Liquidated Damages Clause
2. where a denial is made in bad faith, a coury may deem in to be admitted
4. law of the case -- operates -- by appealing, rather than amending the Plaintiff
1. one waives their right to a new legal theory by appealing
1. relation back (claims relate back to the original pleading)
1. if the Plaintiff seeks to amended the compalint after the statute of limitations would have run on the claim there is a question of whether the amended compalint relates back to the date of the filing or the other claim
1. relation back ius usually permitted -- once you file something, you can add on transactionally related things
2. can't relate back to new parties
1. if the party knows (or should know) that he will be joined, this will be viewed as a relation back
3. for telation back to apply to a new defendant, the defendant must have been on notice within the 120 days -- amended in federal diversity case

1. Fed rule 8 requires a short and plain statement of the claim demonstatint ght that Plaintiff is entitled to relief
1. Conley v. Gibson -- court will construe - but defendant is entitled to know the basis on which the Plaintiff is seeking damages
1. Short, plain statement is all that is necessary
2. The defendant is entitled to know the basis on which the Plaintiff is seeking damages
3. One reason for notice pleading, is that sometimes the Plaintiff won’t know all the specific of her own case
2. unintelligibility
1. can get a motion for a more definite statement
2. The standard tends to be unintelligibility

1. This does not allow you to give a simply admit or a deny

1. Why does the court refuse to dismiss this claim – the Plaintiff doesn’t have enough information to say that the Plaintiff might be negligent
2. discovery things are reasonably calculated to turn up admissible evidence
1. the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c).
2. if it relates to a material fact, than it is relevant
1. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
3. Have right to everything at the depo, except for the things that are privildiges. (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. --vagueness has to be made imediately
1. having joined a claim, medical evidence ceased to be privilidged
2. if you do not object to a question, one can be compelled to testify about privildiged material
3. employees personify a company, even if they aren’t managing people if they are communicating with counsel
4. work products might be asking for the attorney's own facts on the situation
1. specifics common law work product
2. codifies the work product
1. seems to give the courts some discretion
3. caryover immunity about whether or not something was deemed to be a work product increases if the cause of actions are the same
5. control group theory is disproved. -- but it has to be a confiedenial statement and it has to be a communication with an attorney
6. work product v. attorney client priv: how a subject matter is defined is subject to a court's jurisdiction
4. automatic disclosure rule
5. rule 26 -- motion for a protective order
3. Burdon of proof on requester, and court can make interloquatory rulings
1. That is is relevant
1. Info relevant to subject matter
2. Info that is relevant to narrow allegations of the Plaintiff’s lawsuit
2. That it is reasonable calculated to lead to the discovery of the admissible evidence
1. These could show a pattern or a conspiracy
2. Assuming that the contracts are the same, one might show a pattern
3. If they are different, one might show that the defendant’s became --
4. The Plaintiff’s suit is about his own contract and not his own contract
3. The information can’t be prividldged
1. Attorney-client priv
1. Purpose
1. To facilitate a free-flow of information between the attorney and the client
2. In the absence, one might not have the free flow of information
3. Is it in the absence of the client to be forthright with the attorney
2. A contract is prividledge only between the attorney and the rest – the communication has to be confidental (or undisclosed)
1. For purposes of obtaining legal advise, for the purpose of receiving or dispensing legal advice
1. The commication, in fact, has to have been lep confidential
4. investigationor discovery. The court will treat a "I do not know" as an admission
5. Discovery doesn’t have to lead to something that would be admissible, but something that the contacts might be inadmissible. Giving them to the Plaintiff might lead to the discovery of admissible evidence
1. This could lead people to testify as well, about admissions against interests.
2. Even it isn’t admissible at trial, but it is reasonably calculated to result in something admissible at trial.
6. Most discovery takes place outside the court
1. Discovery rulings are applied on an "abuse of discretion standard." (v. the de Novo standard)
1. There are legal determinations being made that are subject to a wide latitude of discretion.
2. The appellate court will show deference on the abuse of discretion standard – and they will not lend themselves to categorical, clear-cut answers.
1. The appellate court might determine that these things are harmless error – but that they might have happened afterwards

1. Motion for a more definite statement
2. Motion for a judgment on the pleadings has to be made soon after the pleadings are closed

1. In a motion for a new trial the standards are more lienient, he can’t weight the evidence.
1. New trial standard is more lienient – doesn’t happen much because he probably has some disposition about the case
2. If the Plaintiff were at trial, how much of a liklihood would they need to show that he died of an accident (preponderance of the evidence)
1. At the summary judgment stage, it would be less
3. It is also the standard on summary judgment that the Plaintiff has to satisfy the summary judgment standard
1. When we say that on Summary judgment that a Plaintiff could find for summary judgment, we are saying that the Plaintiff has to show that under the applicable burden of proof, a reasonable juror could find for it.
1. This way, there are two burdens that we are dealing with on summary judgmen
1. The non-movement would survive if we could show that a reasonable juror could inf for a non-movement

1. Could a reasonable juror find for the non-movement under the applicable burden of proof
2. Need to show causation yet Strict liability makes it to the jury – where he has to prove that there was an inherant defect in the product.
1. Always have to show causation – and show that there was no comparative negligence
2. The Defendant’s answer to its defense is that the mower was state of the art. And claimed that the deadman switch wasn’t available
3. Before the court addresses the question of unreasonable dangerousness, and the question of causation, there is a procedural issue that the Plaintiff raises
1. Judge delives a JNOV – when the court grants a JNOV, it is saying that the "the reasonable minds can’t differ"
4. Juries are permitted to draw reasonable inferences from the facts
1. They are permitted to connect the estimated amount of time it took to get the existing blade to stop – and permitted to infer from this, that it is the absence of a dead man device that caused the Plaintiff’s injury
2. Jury verdicts are sacred -- the standard seem to be deference's
1. Can be overturned because of matters of law
2. Can be overturned because of incorrect discovery rulings
1. We are concerned with the reasonableness of the jury’s decision
3. As it turns out there is never direct evidence everything requires direct evidence

1. Class actions -- have to see whether the federal rules would be outcome determinative -- stategic advantage in decertifying claims
1. Zahn rule: each member of the class must have a claim for more than the jurisdictional amount -- only the representive needs to have more than the amount -- but can't aggregate (one lower federal court says that you can) -- but for equitable releif there might not need to be a specific amount
1. What if it is a federal question and not diversity
2. Haynesbury: being a party to a contract donesn't make you a class
1. Being forced into a class because you signed a covenant makes it a contract -- especialy when the covenant signed before hand -- the obligations of a covenatn run the the people individually -- not as a class.
2. To be a class representative, their intersts must co-oncide with yours
3. There will be no aggregation of claims to get diversity
2. Prerequisites
1. Is there an identifiable class
1. There only needs to be general contours of what a class is
2. just participating in agreement or making an agreement does not make one a class – as there is a contract action based on this
1. if the obligations be0ing sued upon run to each members severally it might mean that this isn’t a class as there can be contract actions
2. Are those purporting to represent that class members of it
1. This is so that the principle class members will adequately protect the interests of the class
2. Not every representative need be a member of a class – only one of them need be a member of a class
3. Is the class so large that joinder is impracticable
1. The class has to be so large that joinder would be impracticable
2. Other factors
1. Nature and complexity of the action
2. The size of judicial claims
3. The geographic distribution of the members of the class
4. The character of the property that is the subject to the suit
5. Turnover in the members of the class
4. Are there questions of law or fact common to all the class members
1. Sometimes only one significant issue of law or fact will suffice
2. E.g. was a class of people denied counsel
5. Are the claims or defenses of the representatives of the class typical of those of other class members?
1. This usually means whether there is antagonism between the members of the class
2. The courts have ruled that there only need be transactional relationships present – only when the representatives claim is markedly different from that of the other class members will typicality be lacking
3. It will be fatal if there are significant antagonisms between the class members
6. Will the representatives adequately represent and protect the interest of the absent class members?
1. The judge has broad discretion in determining whether the requirements have been met
7. Sometimes the judges have asked that the class succeed on its merits -- this is no longer true
3. Must be determined whether the particular class action falls within the definition of one of the class actions -- notice requirements for class actions -- check this
1. In order to satisfy notice requirements, notices has to be reasonably calculated to have reached the defendant (under all circumstnaces) -- rule 4
2. Before you get to notice, one has to have power of the defendant International shoe: we will imply consent to be sued based on conduct within the state (two tests are implied consnent, and presence (from Pennoyer) -- plus a fairness test
3. bind a non-party unless you have a representative suit
1. one might not be bound to an older suit if the older suit was a victory based on an improper suit
2. in Hainesbury, the nominal defendants, it doesn’t appear that their interests in defeating the contract outweighed their interest in establishing its validity.
4. 23b1 – the anti-prejudice class action (common fund)
1. when the prosecution of separate action might result in inconsistent or varying adjudication that would establish incompatible standard of conduct for the party opposing the class
2. when individual litigation might result in judgment that would be dispositive of those interests of other members of the class who are not parties to those individual actions
1. 23b1b – potentially inconsistent obligations that would be imposed on the defendant census bureau
5. 23b2 (civil rights/equity)
1. the party opposing the class has acted or refused to act on grounds generally applicable to the class as a whole and
2. the class representatives are seeking final injunctive relief or corresponding delclaretory relief
3. will be met if the opponent has either acted in a consistent manner toward the class members, or there is a regulatory scheme that affect or indirectly affects members of the class
4. the mere fact that the complaints requests an award of damages in addition to injunction or declamatory relief does not defeat a rule 23b2 class action – as long as the damages sought are viewed as incidental
5. court can decertify the class or create subclasses
6. joinder becomes impractical because you can't identify who the class members are
1. the class members do not have to have identical griev ances
2. liability is established by the class reprsenatives
3. certification ins't permanent
6. 23b3 – common question or damage -- catch all class action
1. big numbers of people
1. two requirements -- must be significant factors in the case
1. predominance
2. superiority
2. common questions of law or fact must predominate over questions that affect individual class members
1. have to check this
3. the class action procedure must be superior to other means for adjudicating the controversy
4. the best notice practical must be given to the class members of the institution
5. class members must be given a chance to opt out
6. courts wants to know if there are another methods for resolving the action
1. remitting the dispute for individual adjudication
2. joinder of the absent class members through interpleader
3. intervention
4. consolidation of separate cases for common adjudication
5. transfers to a single court for consolidated and coordinate pretrial activities
6. remitting the matter to an administrative body
7. and treating one of three claims as a test (Katz v. Carte Blacnche)
7. factors considered in 23b3a-d: that assess whether a class would work
1. the judge is invited to inquire whether individual class members have an interest in controlling the prosecution or defense of individual suits involving their rights
2. strong desire for individual control may reflect dissatisfaction with the representation or may lead a significant number of class members to opt-out of the action, undermining the utility of proceeding on a class basis
3. the judge will consider whether other action concerning the controversy are pending – and whether they can be enjoined or stayed
4. efficiency
5. whether the management difficulties will be too big
6. best notice
8. two requirements
1. the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members
2. and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
1. It isn’t just a question of looking for common threads, the commonality in 23b requires that the common question be one of the more significant questions In the case – one has to then look at the substantive law, and the State of the art defense is so significant that it meets the predominance requirement.
3. Factors to be considered from 23b3
1. the interest of members of the class in individually controlling the prosecution or defense of separate actions
2. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class
3. the desirability or undesirability of concentrating the litigation of the claims in the particular forum
4. the difficulties likely to be encountered in the management of a class action.
7. hybrid class action where there is injunctive relief and money
1. there may be a requirement that parties opt in
4. 23a is defined as numerousity requierment for class action
1. the intent to settle doesn't change the commonality requirement, nor does it effect the numerousioty or the commonality reuqirement.
2. Intents to settle effect one representative of the class. The intent to settle heightens the stingency requirement -- courts can decertify at any point. A court can decertify a subclass. District court under 23 will effect the fairness of a settlement.

1. standard for review is abuse of discretion
2. can be done by motion or sua esponte
3. 23d has rule for what happens to avoid repetition
1. Rule 23 requires notice to each of these class members – if you know where they are you have to notify them.
1. 23 precludes the trickery of getting more money because of the opt-out provision.
4. the court can manage the activities of the class rep vis-à-vis the other players
1. just participating in agreement or making an agreement does not make one a class – as there is a contract action based on this
5. class certification might not be based on who actually is in the class – but just by how big it is
1. This is a valid distinction – and rule 23 doesn’t provide any mechanism for determinning a basis for determining who should be included in the case.
2. If you can decertify people the claims get smaller
6. Every member of a class must meet the requirement that they satisfy the amount in controversy requirement, except when the class members are seeking to enforce a single title or undivided interest.
1. Aggregation used to only be permitted in true class actions, but not hybrid or spurious
2. The no aggregation rule of Zahn has little effect on 23b2 – because these actions are more equitable.
3. Diversity suits under 23b1 are not effected by 23b1 – because the rights of class members are deemed to be joint or common
4. Zahn rule usually applies to a common class action for damages when jurisdictions is based on diversity, and with small individual claims -- here it has to be in state courts

1. in Shutts – 23b3 the court said what factors allows someone who is bound by the jdugement to break it
1. the Plaintiff must receive must notice and an opportunity to be heard
2. notice must meet the Hannover standards
3. absent Plaintiff must have been provided an opp to opt out

1. before 1966 there was post-judgment intervention to get a part of a favorable judgment

1. district courts can assess the fairness of a settlement
1. Why can’t we allow it to be addressed under 23e
2. 23e can’t trump this – by relying solely on 23e and ignoring a and b
3. the court can’t certify a class action (as per 23e) if it violates the tenatns of what a class aciton is – as per 23a and 23b
1. 23a and b talk about whether the is class unity – and the court can trump this by certifying that a settlement is good
2. notice is still required
3. satisfy the commonality and the numerousity requirement
4. may be competing and divergent interests
5. the intent to settle doesn’t change the commonality requirement
6. intent to settle doesn’t effect the typicality requirement – if there are divergent claims people can be remvoed from classes
7. intent to settle effects the stringency of the reprsentational requirement
1. courts can decertify a class at any point
8. WHERE THE SUIT IS NEVER GOING TO PROGESS TO THE POINT where conflicts of interest will become apparent then it is a case where there is a heightened representation requirement (if the class exists for settlement purposes)
1. Question of predominance -- interest in settlement predominates with the class reps
2. Certain sub-classes can be interested in settling
3. They don’t’ know what their damages would be – it is too vague.
4. The settlement cannot mask over the substantive interests.
5. This procedural device isn’t enough to satisfy the commonality requirement.
10. Bbb

1. Motions to dismiss based on non-joinderof claims does not have a preclusive effect
2. If one can get dismissal of parties under rule 19, than parties can refile
3. Many things that are decided (perhaps in error) might become moot by the time the case comes to trial
4. Res Judicata (claim preclusion)
1. Requires the same parties, the same claim, and the final judgment in the first suit
1. One gets the same claim where the first and the second suits are transactional related
2. Issue preclusion Privity: similarity of legal represenation and witnesses is not suffient enough to create privity. The subsequent littigant did not have control over the first.
2. Res Judicatta will preclude you from brining the battery claim later
1. Collateral estoppel is only interested in what was actually brought and what was actually litigated.
2. The same issue is different from the concept of the same clai
3. The same issue can arise in very different contexts, and very different factual settings.
4. The party against whom collateral estoppel is used, needs to have been a party to the prior litigation –

1. Do not have a different claim because you bring a different legal theory to your case
2. Party that one seeks to estopp needs a full and fair opportunity to relitigate the claim
3. There is no estoppel based on the dicta of a prior claim
4. This is the reverse side of permissive and compulsory joinder
5. Collateral estoppel and res judicata attach certain consequences to their decision –

1. Collateral estoppel or issue preclusion – would be inefficient to retry and try the negligence issue
1. collateral estoppel is a question of what was brought and what was actually littigated
2. non-mutual collateral estoppel (defensive). – only parties and their privities may take adavantage of a judgment -- but a non-party make be benefitted by a decree only arises in the context of collateral estoppel
1. we now have liberal joinder rules so more parties are bound
2. Need a final judgment on the merits. Non-mutual collateral estoppel , the first party to whom collateral estoppel is used needs to have been a party to the first suit.
3. Non-mutual collateral estoppel. Defensive (defendant) -- and by Plaintiff -- (Park-laine): a nonparty to a prior equitabl action may asser collateral estoppel. Non-mutual collateral estoppel encourgaes a wait and see attitude. Could eliminate a right to rial by jury. Non-mutual use of collateral estoppel may not be held against the government
4. there is not a scientific definition of what a transactional relationship iss
1. in some jurisdicitons, mutuality is limited. – traynor has allowed the notion of who was privity with the suit to be enlarged to create a binding effect
1. whether identical issues are involved
2. whether there is a final judgment on the merits
3. whether the person against who estoppel was asserted was a party or in privity with a party
5. If you want to estopp someone from relittigating an issue, you need to have the same issue in each lawsuit
1. The issue is the same whether you were negligent
6. One needs a final judgment for the claim on a first suit
1. Fourth, one needs to know that the party against who issue preclusion is saugt, (the city) or the Parry had a full and fair opportunity to littigate the issue
2. It would be an extraordinary thing to
3. Finality of judgements – normally the supreme court can only handle state court judgements. (28 USC 1257) – but the supreme court has been creative in finding finality especially when treaties or federal rights that were unsuccessfully asserted instate courts are a question -- finality only need to attach to the judgment exercising the power of review
7. Instead of merely stopping a person from relittigating an issue, the defendant is asserting that the claim has already been litigated.
1. The argument is tha thtere is a clsoe enough relationship (privity) such that in effect when the insurer littigated the claim against the defendant, it was actually the claimant.
2. Setting the privity issue aside is that this is an effort at res judicatta at claim preclusion – or collateral estoppel – check this
8. Response to Res judicata is that if attack it, you might be ratifying an incorrect decision.
1. Res judicata bars relitation of anupappealed adverser judgment where other Plaintiff in similar actions against common defendant successfully appealed the jdugements against them.
2. IN federal court: Res judicata, something that is unappealed is final -- even it is final as to other Plaintiffs. Res judicata will bar religttigation, of unappealed adverse judgment where defendants have successfully appealed judements against them. Even if someone else wins on appeal, you can't relittigate
1. Res judicata isn't a collateral attack -- appeal
1. Where legal and equitable claims are tied together and one is dismissed -- then one may raise both again (Lytle). The same issues can be relittigated in front of a jury;
2. Conclusions as to intent
1. If there is a conclusion as to intent on one grounds (bankrupcy) -- it is not preclusiive as to the intent of the other issues. Multiple findings are less reliable Three aproach 1) all are preclusive 2) only one is preclusive 3) Restatement view is judgment them on their merits
3. If the claim that is seperated, after it is adjudicated would result in res judicatta or collateral estoppel, then they should be tried in one judicial preceeding
1. Doesn't apply to government
2. If we do not know what the jury or the judge based his facts on, collateral estoppel can't be applied
3. For res judicatta purposes, a party may want to join all claims in one lawsuit – as after the lawsuit is over, he loses the right to sue certain parties
4. Can't bind someone who hasn't had their day in court
2. The party against who issue preclusion is sought – needs to have been a party to the first suit
1. The party that you are trying to use issue preclusion aginst needs to have been a party to the first suit. This is related to the fourth requirement.
1. Subject matter jurisdiction, joinder, and res judicatta, are interrelated and they all have this transactional relational
2. In first suit less of an effort was put forward to defend smaller suit – and won judgment
3. If there were going to be two separate juries, than the jury would be more influenced where one jury would have to find on both of these claims
4. Possibility of a form of harassment
1. This is a form of pestering the defendant
2. Efficient, juridical economy
3. One is wasting judicial resources if they can seat one jury, get rid of this, and move on
1. If the city wasn’t found to be negligent, how many chances does it get on the same set o facts.
2. Set of concerns about allowing her to split her claim
1. Ohio seems to let her split her claim where there is an injury to property and perso

1. Can no longer get an interloquatory judgment on purely equitable grounds --
2. Interlocutory orders continue, modify or refuse injunctions
3. Interlocutory orders of great importance nay be appealed immediately if the trial court certifies that an immediate appeal may materailly advance the ultime determinatation of the litigation. The appelate court usually has the discretion to refuse to accept the interlocutor appeal despite the certification
1. Normally the trial court must certify the issue, and the appealate court must accept the appeals - trial court must certify that it meats the following criteria
1. The order must involve a controling issue of law
2. There must be substantial ground for differernce of opinion as to the controling question of law
3. It must appeal that an immeadiate appeal from the order may be materially advance the ultimate determination of the littigation
2. Appelate court has disgretion
1. Appealate court rules on the basis of a clear abuse of disgretion
4. Other ways to appeal non-final orders
1. A writ of mandamus – and order to public official to do his duty
1. The criteria is outlined on page 32 of the rulebook –
1. Clear abuses of disgression
1. No adequate alternative means to obtain the relief
2. Indisputable right to the writ
2. This can only be used in extreme cases
3. Only available when non of the other interloquatory appeals can be utilized – other appeals must be impossible to exercise
2. Collateral order doctrine
1. Issue has to be one which conclusive determines the question
2. Example of such an issue is a jurisdictional dispute
3. The issue would effectively be unreviewable on appeal from the final judgment

1. in an action for soncpsiracy, sj ay not be granted unless a defendant can show that no evidnce thereof exissts.
2. SJ must be entered agianst a party who fails to make a showing suffient to establish the existnace of an element essential to his case on which he bears the bruden of prrof at the trial
3. if credibility is the only instance, it isn't for the judge to decide. (credibility)
1. Can't have an issue with evidence in terms of credibility in the abstrct
2. Summary judgment (Dyer) is approprite when all the individauls involved (as being key) deny it -- e.g. that there was no defamatory statements
3. If there are specific facts that go to a witnesss's creidbility on the issue than credibility can be a basis for denying summary judement
4. Three options for sjh
1. Currie -- I want summary judgment (isnt' a burden
2. reuqiremnt thenm to negate or disporive nonmvants clai
3. Lous midpoint
5. if no question of material fact
6. To me a sj oit is only necsasy to show that the viddec put on at trail can only be reasonable calcualted to turn up the evidence
7. Hard to show any intent -- but can show pattern
1. If there is no evidence of liable because of everyone denying that it happened, then it is sh

1. Relief of a prior judgment
1. Granted under the following means
1. Clerical mistakes in judgements or other parts of the record
2. Mistake, surpise, or excusable negliect
1. E.g. reasons why the party failed to include the alledged error inhis motion for new trial or why he was late in filing an appeal
3. Newly discovered evidence that probably would change the result and could not have been discvoed before
4. Fraud, misrepresnenation or other party misconduct
5. The judgemetn is void
6. The judgment has been satified, released or vacated, or it is no longer equitable that the judgmeent has prospect effect
7. Any grounds justifying relief
2. Must be made within a reasonable time or one year (for clerical or other mistakes)

1. Any judgment involving consideration of the merits of the claim (e.g., a trial);
2. Any adjudication after and including summary judgment;
3. Consent judgments;
4. Any judgment in favor of the plaintiff in the original action (including a default or summary judgment);
5. If the original judgment was in favor of the defendant, the issue’s a bit stickier. Not a judgment on the merits: Any claim dismissed without prejudice due to non-merits problems, including dismissals for lack of personal jurisdiction over the defendant, inability to join an indispensable party, the court’s lack of subject-matter jurisdiction, improper venue. FRCP 41(b) (state courts agree). Keep in mind, however, that such dismissals will be conclusive as to issues decided (e.g., residency of defendant).
1. Judgment on the merits: Any dismissal with prejudice, including:
1. Dismissal for failure to state a claim on which relief may be granted:
2. Federal court (12(b)(6) motion): judgment on the merits unless court states it’s without prejudice (rationale: Since federal courts are so liberal on permitting amendment of pleadings, if plaintiff doesn’t amend, he shouldn’t be allowed to institute new proceedings on the same claim);
1. rule 15 has a liberal amendment procedure
3. State courts now following federal code (demurrer): generally not a judgment on the merits (exception: defect going to merits, e.g., plaintiff seeks relief law doesn’t allow).
4. Failure to prosecute or failure to comply with a court order (FRCP 41(b); most state courts agree);
5. Summary judgment.
1. Settlements: Generally a judgment on the merits unless parties agree otherwise (also, since a settlement is a contract, keep in mind that the parties can always attack the contract itself on contract principles, e.g., fraud or lack of consideration).
2. 8b - affirmative defences v. non-affirmative defences
3. affirmative defences really create additional issues -- but affirmative defences possibly shift the burden of the pleading and possibly the burden of proof
4. 8c -- list of affirmative defences -- they are not to be confused with counterclaims
1. 13a -- in order to be a compulsory counterclaim, it has to arise out of the same transaction or occurance. Tests 1) logical relation test 2) same evidence, same swittnesses, same docuemntary evidence, lapse of time, common question of law or fact
5. admissions
1. under rule 8, it seems that a court might not deny an admission to be a denial

1. One free dismissal
2. you have 21 days from the filing of the complaint to get to state that it is sufficeint that it elimades the provisions of
1. sanctions for a frivoulosu coplain,t and the 21 day grace period.
3. rule 8 facilitates a harsh Res judicata rule -- and there is a desire to make people state claims more fully in the case of fraud cases
4. Rule 9 talks about fraud, mistake, etc
5. There might be an exception to rule 9, if we have to look at the four corners of the pleading.
6. admissions run through the case (rule of the case)
7. 12b7 -- motion of deficienices timetables in the rulebook at page 1015

1. 60b -- when a final judgment can be vacated

1. Directed verdict: standard for mere scintilla is now changed to be some quantym.
2. Seem to take a broad look at the evidence and say that it doesn’t come close