CIVIL PROCEDURE OUTLINE

I. PERSONAL JURISDICTION

-Whether a court has the power to hear a case regarding a certain person -Focus is always on the D -Full faith and credit clause= states constitutionally required to enforce decisions of other states regarding citizens of own state -State always has personal jurisdiction over D if domiciled there -A federal court has jurisdiction only if the state courts in which the federal court sits has jurisdiction A. In personam jurisdiction= jurisdiction over the person; court exercises jurisdiction over the D, and can enter a judgment to create a personal obligation to pay money or perform an act (can attach property) B. In rem jurisdiction=jurisdiction over property; jurisdiction extends only to the particular property. Either ownership of the property or just simply attach the property to assert court's jurisdiction C. In order for a court to have personal jurisdiction over D: 1. Served in person in the state (in personam) or 2. Attach the property of the person in the state at the time of the suit (in rem) (Pennoyer v. Neff---Neff couldnt be found in OR (no service of process), and couldn't attach the property since there was no property to attach at the beginning of the lawsuit (did not own it)) -Pennoyer established: i. the rule that the person or the property must be present to have personal jurisdiction; law not followed today ii. State has power to require a corporation to designate an agent for service of process and notice in legal proceedings iii. Due Process issue: whether it is fair to have personal jurisdiction in the case D. Collateral attack doctrine: not allowed to re-litigate after losing, but allowed to attack personal jurisdiction of the court from another state i. Collateral attack: claim saying that court did not have personal jurisdiction, from another state--when you fail to show up to court and respond to the complaint and usually default judgment issued against you ii. However, if one appears in court and answers the complaint and defends himself, he cannot move to dismiss for lack of personal jurisdiction--b/c consenting to jurisdiction by arguing on the merits--once you consent, you waive the issue, and cannot appeal it later 1) Consent by: litigating on merits, defending oneself, or answering complaint 2) However, if you appear to attack the jurisdiction only, you are not consenting to the jurisdiction (special appearance) iii. Only issue you can litigate is jurisdiction--if you lose on the jurisdiction issue, you lose the entire case and cannot argue on the merits or litigate iv. Can't relitigate twice on the same issue in the same or different court--collateral estoppel E. Direct attack-- when you attack the personal jurisdiction of a court within that state 1

-Preferred to collateral attack, since if you lose on the personal jurisdiction question, you can still attack on the merits and litigate -If lose on direct attack, you cannot appeal until a final judgment has been rendered on the merits F. If attacked by a foreign jurisdiction--3 options i. Collateral attack--Not show up to the foreign court, you default on that judgment, and collateral attack the personal jurisdiction of the foreign court in own court ii. Special appearance by showing up in the foreign court and only argue the personal jurisdiction claim iii. Direct attack--Show up to the foreign court and defend the case, in which you waive your right to attack personal jurisdiction - Can only appeal once the final decision on merits has been made G. New Rule (shift from presence to fairness): D must have minimum contacts with the forum that comports with traditional notions of fair play and substantial justice (International Shoe) -Overturns requirement of presence established in Pennoyer; establishes need to comport with DP clause -Seen as a balancing scale and likely two different test: some justices see jurisdiction established if there are many substantial contacts with low substantial justice; whereas others establish if there is high substantial justice absent many contacts -The more just it is for the case to be heard in the forum, the less contacts with that forum are required Substantial Justice tests: 1. Ps interests 2. States interests and policy considerations 3. Witness and evidence interests (hassle) 1. Relation of the claim to the D's contacts with the statehelps determine if contacts are sufficient (Contacts do not necessarily refer to the quantitative number of jurisdiction, but more to the quality of the contacts as well as the quantity) i) General jurisdiction: D's contact with the state is not connected with the nature of the claim, therefore need more substantial contacts a. If you have so many contacts, aka substantial and pervasive contacts with the state, you are on the hook for any type of claim within the state, even if contacts are entirely different from the claim made b. To have general jurisdiction, a corporation must have systematic and continuous contacts with the forum -Often determined by listing the contacts and arbitrarily determining if sufficient c. Also for corporations, either the principal place of business or state of incorporation (since they will always have systematic and continuous contacts there)

d. For individuals, usually the place of domicile (measured by when the suit takes place; and also because will always have systematic and continuous contacts there) -Also, general in personam jurisdiction established by a forum if personally served with process while in that forum ii) Specific jurisdiction: Where the claim arises out of the nature and quality of the contact with the forum (only need minimum contacts, often one relevant contact suffices) -For corporations, their in-state activities for the forum in question a. Single act contact or continuous but limited contacts iii) The more closely related D's contacts are to the claim, the fewer the contacts are required (minimum) to comport with fair play and substantial justice (due process); The less closely related D's contacts are to the claim, the more the contacts are required to comport with fair play and substantial justice Tests to establish minimum contacts and substantial justice for specific jurisdiction: H. Purposeful availment test (McGee; Hanson)Did the D purposefully avail (take advantage of to benefit) the forum and its laws? --often by voluntarily doing business and profiting there -Usually must be voluntary; if forced to do business they have not purposefully availed and no PJ - For corporations, need to purposefully avail itself with the forum and direct business there; solicit business there I. Reasonable foreseeability test (Gray)If it is reasonably foreseeable that a product would end up in a certain forum, it is reasonably foreseeably to be haled into court there; mere awareness is not enough-- PJ is established -If something is sold throughout the country, it may be foreseeable to be hauled in any state J. Stream of Commerce test--If place product into stream of commerce, they are purposefully availing themselves in the marketoften not followed K. Purposefully direct test (WW Volkswagen): merely placing a product into stream of commerce and awareness that it might enter the forum is not enough to establish jurisdiction; the D must purposefully direct the product to a particular forum -Asahi Metal: The substantial connection between the D and the forum necessary for a finding of minimal contacts must come about by an action of the D purposefully directed towards the forum. -The placement of a product into the stream of commerce does not fulfill this; additional conduct must indicate an intent to serve the market in the forum. (plurality) -Mere awareness does not indicate this intent and does not establish substantial connection with forum. -Minority opinion: do not need minimum contacts, but look to substantial justicewhether placing in stream of commerce is enough to fairly expect to be haled there L: Effects test (Calder)Where the most significant effects of the contact are locatedif most of the effects take place in one state, then that state likely has PJ - Where the biggest effects are felt, via brunt of the harm, that is where you should have jurisdiction (Revell v. Lidovinternet case)

-Often, D must have intended or had knowledge that greatest effects would be felt in that forum M: Burger King-- Contacts are minimum when the actions of D create a substantial connection with the forum in the form of continuing obligations in the forum or deliberate and significant activities there (meets purposely availment requirement). -Other factors, once minimum contacts are established, may be taken into account to determine if substantial justice and fairness met: burden on D, Forum's interests in case, P' interest in relief and verdict, clash of policies between the states, foreseeability to the point where a party could reasonably expect to be haled into court there -Foreseeability is based off the parties involved; a savvy business person could more readily foresee something than a layperson N: NoticeIf buyer tells seller they are going to a certain forumOutcome doesnt change unless corporation purposefully avails themselves in that forum where claim is being made O. Consent and choice of law provisionif there is consent, you do not need to go through minimum contacts and substantial justice test a. Choice of law provision v. choice of forum provision -Choice of law: provision that states that a particular states law is to apply even if claim not brought in that state -Choice of forum: provision detailing that suit must be brought in certain state i. When you enter into a forum selection clause in a K, this is consent to be haled into that forum 1) Consent issue--did they consent to be haled into the forum? 2) Notice issue--did you know that forum selection clause was on back of ticket? a) If you have notice of the clause, and you continue with the K, then this is consent b. Can also consent to personal jurisdiction by appointing an agent for service of process within the forum c. A party may also waive their opportunity to object to PJ by filing any pre-answer motions or arguing on the merits d. Special appearance statutes--can specially appear in court to challenge personal jurisdiction, and appearance does not mean consent P. In Rem and Quasi in Rem--Property now is solely a consideration for minimum contacts test (Shafer v. Heitner) 1. SC says that must satisfy minimum contacts and substantial justice test for in rem as well as in personamoverthrows Pennoyer requirements for in rem a. No longer any free standing assertion of in rem jurisdiction, where you can attach property at beginning of claim and give actual notice via service of process or constructive notice via publication 2. Property itself may be sufficient to establish minimum contacts and substantial justice, but it may not, so it needs to be a part of that test Q. Transient/Tag Jurisdictionas opposed to specific or general jurisdiction 4

-An exception to minimum contacts; established if a D is served with process in person while present within the forum, then that forum has personal jurisdiction (Burnham v. Superior Court of CA) -More emphasis put on fairness aspect over minimum contactswhether it is fair to be subject to jurisdiction in the forumex: on a plane, induced by fraud, kidnappedno tag jurisdiction since not fair -fairness has no certainty, so decide on case by case basis -Burnham reduces the number of jurisdiction cases that would fall under international shoe--only need to serve person while they are in the forum to get jurisdiction; do not need to establish minimum contacts and substantial justice test R. Jurisdiction over corporations 1. Corp can be sued in any state with purposeful contacts, not just state of incorporation i. State of incorporation plays the role of property for minimum contacts test 2. All states require out of state corps to appoint in state agent for service of process which most hold is sufficient to establish personal jurisdiction i. Based on consent argument--by appointing an agent, the corporation consents to jurisdiction ii. No jurisdiction for in state service for a transient corporate agent, unlike transient individuals 3. In partnerships, personal jurisdiction over one of the partners establishes jurisdiction over the partnership S. Personal Jurisdiction and the Internetinteractivity not sufficient enough to establish personal jurisdiction 1. General jurisdictionfor passive websites, apply substantial and continuous contacts test with the forum 2. Specific jurisdictionfor interactive websites, apply the effects test-- Where the biggest effects are felt, via brunt of the harm, that is where you should have jurisdiction (Revell v. Lidovinternet case) -Often, D must have intended or had knowledge that greatest effects would be felt in that forum - Forum must be the focal point of the article and the harm suffered, and directed towards the forum's readers T. States Long Arm Statutesstatutory limits on PJ 1. Long arm statutes: specify the personal jurisdiction of a state: 2 types1) will allow PJ to state in all cases in which Constitution permits (min contacts/substantial justice) or 2) specifies higher standards than the Constitution (start with long arm statute, then move to constitutional min contacts/sub justice test if meet long arm statuteusually if meet state statute, you meet the constitutional test)but still do both test analyses-statute then constitutional 1) Must fall within the terms of the state statute (modifies cases that may be constitutional, but do not fulfill higher standard of state statute) 2) Then, must fall within the terms of the constitutionminimum contacts and sub justice - Cases which are constitutionally permissible, that a state may choose not to accept by enacting a more stringent standard than the constitution 3) Does the long arm statute confer jurisdiction? Does the long arm statute comport with Due Process under 14th Amendment? 4) Rule 4eFederal courts within the state apply the state long arm statute 5

II. PROCEDURAL DUE PROCESSneed 1) notice and 2) opportunity to be heard Notice and Opportunity to be Heardseparate standard from jurisdiction or consent to establish PJ need both 1. Notice is a separate requirement needed in addition to either jurisdiction or consent to have personal juris. a) Jurisdiction and notice--if have jurisdiction, still need adequate notice, and if not then court has no jurisdiction (Pennoyer) b) Consent and notice-- whether one consents to jurisdiction or not, still need notice of the suit to have jurisdiction (Shute) -Ex: Pennoyer--no facts that he received notice or that anyone representing him had notice 2. Notice has to be reasonably calculated (reasonable efforts) to notify D of a suit affecting his/her rights (Mullane v. Central Hanover Bank) a. Constructive notice (ex: publication) is only sufficient for Ds whose whereabouts and addresses are unknownthis is fair since no other reasonable way to notify them i. Unknown Ds interests are still protected even without being notified personally, if you notify the group that D belongs to (this is constitutional). It is assumed that by notifying the members of the group who are present, they will represent the interests of those who are not presentdo not need to notify every member if it is sufficient to notify most members who are present ii. Cant lose notice interest as long as someone else is protecting that interest for you b. Constructive notice not sufficient to those whose addresses are known, since there are better ways of notifying, such as by mailmiddle ground in that publication is not sufficient, but do not need to personally notify i. Notice by mail is not required; there may be other ways of notice that are reasonably calculated (but mail still most common and accepted) c. Under Federal Rules of Civil Procedure, service of process is permitted upon an individual by delivering personally or leaving copies of a summons and complaint at the individuals dwelling house or usual place of abode, and having some person of suitable age and discretion residing therein to receive it (Natl Dev. Co. v. Triad Holding Corp.) i. A person can have more than one dwelling or abode. ii. Where a party has several residencies which he permanently maintains, occupying one at one period of the year and another at another period, service is valid when made at the dwelling house in which the party is then living at the time 3. Statutory rule--Rule 4, set up to comport with constitutional requirements--if comply with Rule 4, then you comply with constitutional notice i. Rule 4 1) Waiver of service to get around mail service 2) Rule 4 a a) Specifies what needs to be in summons (basic information to get D to appear in court), judge does not need to be involved b) Complaint--sets out claim and damages c) Service i) Summons must be served with complaint, 4 e

-Must serve D within 120 days after complaint filed; otherwise court can dismiss (without prejudice--means can bring claim again after the dismissal; with prejudice--cannot being claim after dismissal) -Must be 18 to serve summons and complaint on behalf of someone else d) Waiving service of summons i) Requesting a waiver by P to D--to avoid expenses, you request D waive formal service of a summons by signing the waiver, establishing your notice ii) Incentive to waive service of summons--you agree you do not need formal summons on you, and therefore D does not have to pay for the service of process iii) Also, incentive given of longer time to answer complaint if waive service of summons e) Serving an individual within a judicial district of the US i) Use same process to serve someone for fed district court as you would for state court h) Serving a corporation or partnership 4. Opportunity to be heard a. D must receive sufficient advance warning to allow time to prepare an adequate defense -Some kind of hearing, not necessarily a trial

III. SUBJECT MATTER JURISDICTION -Determines which court can hear certain kinds of claims and where to bring claimstate or federal 1. Federal court subject matter jurisdiction a. Limited subject matter jurisdictionlimited to Art 3 sec 2 1) Diversity Jurisdiction--1332--citizens of different states, citizens of a state and citizens of a foreign state75000 requirement 2) Federal question jurisdiction1331---claims arising under the constitution or federal laws ii. Diversity setting--allows for state law claims to be heard in federal court 3) Sec 1331 and 1332p. 339--codifies US Constitution for civil procedure a) District courts shall have original jurisdiction of all civil actions arising under the constitution, fed. laws, or treaties of the US b) District courts shall have original jurisdiction of all civil actions where the matter exceeds the sum of $75000 exclusive interests and costs and citizens of different states, citizens of a state and foreign state b. Original jurisdiction--where the case starts and is decided 1) Trial courts; Lies within federal district courts, not to US SC 2) Only for diversity and federal question cases c. Appellate jurisdiction 1) Usually federal circuit courts and SC 2) Always have right to appeal case from trial court and appeal to circuit court 2. State Court subject matter jurisdiction 7

a. General Jurisdictioncan hear any type of case, including most federal claims b. Concurrent jurisdiction case satisfies both federal and state court requirements; P chooses where to file -Exceptions reserved to the federal courts: maritime, admiralty, bankruptcy, antitrust, patents, copyrights 3. Ps Burden to establish federal subject matter jurisdiction a. Unlike personal jurisdiction, there is a presumption against federal subject matter jurisdiction; thus P must properly plead that it exists and if D challenges the statement, P has burden of proving the SMJ b. If case dismissed for lack of SMJ, P then has to start claim over in state court, as long as statute of limitations hasnt run 4. Diversity of Citizenship and Alienage Jurisdiction-1332 -Occurs whenever there is a state claim in a federal court--Federal court must apply the same law that the state in which it sits would have applied -Diversity measured when the claim is filed, not when the judgment is made a. Complete Diversity Rule: Ps cannot be from the same state as any D (Strawbridge v. Curtiss) -Constitution only requires minimal diversityat least one party must be diverse -P cannot later join a D from the same state as him, if he already had diversity with the original D b. Citizenship qualificationsDiversity when claim is filed, not when judgment is made i. For diversity purposes, citizenship means domicile, residence is not enough. ii. Domicile= 2 factors a) Physically present at the permanent establishment b) Intent to remain and return there if gone iii. A change of domicile occurs only when 1) take up residence in a different domicile and 2) with intention to remain there. iv. A person can have only one domicile at a time, and thus can be a citizen of only one state at a time - Ascribed the domicile of parents at birth, until you change it v. A permanent resident alien is not diverse from a citizen of the same state nor from another alien in the same state c. Amount in controversy must be at least $75,000 i. Only for diversity cases, the amount in controversy is not the amount awarded, but the amount claimed by P in good faith. ii. Aggregation of claim--P can add up the different claims he has against D to make up over 75000 even when they are not legally related claims, but cannot aggregate parties - But cannot aggregate the claims of more than one plaintiff against one defendant or more than one defendant to make up the 75000 requirement d. Determining citizenship of entities 1. Corporations

i Corporations are citizens of both the state of incorporation and the state of principal place of business (Randazzo v. Eagle Picher Industries) - *P must allege both to invoke subject matter jurisdiction ii. What does principle place of business mean? a) the place where the corporation's high level officers direct, control, and coordinate the corporation's activities--"nerve center" or headquarters (Hertz v. Friend) 2. Non Incorporated Businesses i. LLC or unincorporated business or partnerships are citizens of all the partners and all members (Belleville Co.v. Champaign LLC) e. Representative suits and assignment of claims -If a person wants a case to be heard in federal court over state, they can assign someone else from a different state to bring the claim on behalf of them in order to satisfy the diversity requirement - However, under sec. 1359, a district court has no jurisdiction over cases in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court For ex: if the assignee gives the assignor back 95% of the profits won, then there is no jurisdiction - This rule does not apply to a P who changes her domicile to create diversity f. Domestic Relations and Probate Exceptionsnarrow exceptions 1. Even if requirements for diversity of citizenship are met, the federal courts refuse to hear domestic relations cases--only divorce, alimony, child custody cases--always to state courts 2. Federal courts also will not probate or administer a decedent's estate or appoint an executor--interferes with state probate courts 4. Federal Question Jurisdiction-1331 - Claims arising under the constitution, federal laws, or treaties1331 and Constitution - No amount in controversy requirement for federal question claims -In most cases, you can bring federal question in either federal or state court--except for patent, admiralty, bankruptcy, maritimebut leaves open possibility of D removing it to federal court a. Well Pleaded Complaint Rule 1. To have federal question jurisdiction, the complaint must pose a federal question and not a state law claim (Louisville and Nashville Ry. v. Mottley) 2. No well pleaded complaint, and therefore no federal jurisdiction, if the P does not raise a federal question in the cause of action; not a federal question if raise federal question in anticipation of a defense by D and not in the complaint, and even if D answers complaint with a federal issue 3. Subject matter jurisdiction cannot be waived and the court must raise it sua sponte if they discover a defectif dismissed, then P can file in state court b. Well Pleaded Complaint Problems raised by declaratory judgment 1. Non coercive remedy; request court to declare rights of the parties 9

2. Declaratory judgment must be supported by an independent basis for jurisdiction, such as diversity or another federal question; the declaratory judgment itself does not invoke federal jurisdiction c. Centrality of the Federal Claim 1. The federal issue must be part of well pleaded complaint and must also be sufficiently central to the dispute to justify federal court jurisdiction 2. State law claim embedded with federal questions--Smith exception i. Traditionally, if state cause of action, doesnt meet well pleaded complaint rule and cannot have jurisdiction (American Well Works) ii. Later, in Smith, if have state law claim, but central focus concerns federal law, then the federal courts may have federal question jurisdiction iii. 2 Prong Test to determine if court will have federal question jurisdiction (Grable v. Darue) 1) Federal issue must implicate substantial questions of federal law and 2) Federal interests generally must be more important than the state court's right to hear case solely because of state cause of action--cannot upset the balance between federal and state jurisdiction --such as if it opens floodgates to state courts to state claims imbedded with federal issues - Balance is not upset b/w state and federal courts if holding jurisdiction would not open up the state courts to a flood of state law cases embedded with federal issues -Determined by how likely the type of claim is arise repeatedly in state courtif it is not a claim that would be frequently filed, then it does not upset the balance d. Removal Jurisdictiongoverned by 1441, 1446, 1447 1. 1441 a) -Can only remove a case if it could have originally been filed in federal court--diversity or federal question -Whenever you have removal, case must start in state court, and D must remove it to district court that the state court where the action was filed 2. 1441 b. -Federal question--if remove on basis of federal jurisdiction, then do not have to worry about diversity - Diversity--only removable if none of the D's is a citizen of the state in which such action is broughtINSTATE DEFENDANT RULE Diversity is to protect out of state citizens against biases of local courts, but do not need to worry about that if already a D within the state Instate Defendant Rule: if any D is a citizen from the state where seek to remove from state to federal, then cannot remove--since should not be worried about bias 3. Procedure 1446 a)-- Because the D is invoking federal subject matter jurisdiction, the D has the burden to demonstrate that the P's claim invokes that jurisdiction - To remove, do not have to tell state court anything, only need to file with federal district court-have 30 days to do so 10

- Need to allege federal question or diversity matter i. If allege federal question--only need to show federal question P's complaint based on ii. If allege diversity--need to show diverse citizenship and show that D is not a citizen of the state where filed 4. 1447 c - If P wants it back in state court, he must file motion to remand and must be made within 30 days after the removal notice was filed by D - If at any time before final judgment, it appears that federal district court lacks SMJ, the case shall be remanded to state court 5. If original complaint was removable 30 days from commencement of actions, an addition of a new D does not start the time for removal anew (Noble v. Bradford) i. The failure of initial D to remove during the original 30 days is a waiver of the right of removal which is binding on added D's ii. However, second filed rule says that a second defendant should have the chance to cajole the first D into removing the caseunfair to have the first Ds inaction bar the later joint D ii. All Ds must agree to remove iii. Courts stated that diversity of citizenship must exist both when the D removes the case and when the P files it in state court iv. A P cannot defeat removal by joining a nondiverse D against whom he has no bona fide claim

IV. VENUE 1. Statutory creation for convenience and to assure that P will have a fair trial somewhere1391 and 1392 - Venue can be waived 2. State Venue Provisions a. Where within the state--which county or city--cases are to be adjudicated i. Civil actions--brought in county where D resides, carries regular business, or is employed; For Corporations, where its principal offices are in the state ii. Multiple defendants--if there is no applicable venue to all, all may be sued in a county in which any one of them could be sued or county where the cause of action arose 3. Federal diversity suits may be brought: 1391 A(hierarchy, go through 1first then, 2 , 3) 1. In a district where D resides, if all Ds reside in the same state OR 2. In a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated OR 3. A judicial district in which any D is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought 4. Federal question suits may be brought in: 1391 B a. A judicial district where any D resides, if all D's reside in the same state 11

b. Judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial party of property that is the subject of the action is situated ex: Bates v. C and S Adjustersfederal question invoked; Court said there was venue in NY over PN because substantial events that gave rise to the claim, the delivering of the notice, occurred in NY c. Judicial district in which any D may be found, if there is no district in which the action may otherwise be brought - Easier test than diversity 1391 Abut still similar because of transient jurisdiction under Burnham, still similar to personal jurisdiction 5. Need to prove personal jurisdiction, subject matter jurisdiction, and venue--need all three to be sued in a federal district 6. Transfer A. 1404 Transfer of federal district courtsD may get a change of venue 1. May be done for 1) convenience of the parties, 2) Convenience of the witnesses or 3) in the interest of justice, so long as the suit could have been originally brought in the new forum (if it has subject matter and personal jurisdiction) -Must be made by motion, consent, or by stipulation of all the parties involved 2. States can only transfer to other courts within same states 3. Federal courts can transfer to any district in country, across state lines--more expansive than state courts, because states are to maintain their own sovereignty B. 1406Improper Venue: If a district court where the case is filed is in the wrong division/wrong venue, the court shall dismiss or transfer the case to any district where it could have been brought -Completely courts discretion to dismiss or transfer to a venue where it is proper a. Goldlawr transfers 1) 1406 a--transfer of cases filed in an improper venue 2) If case is filed in a district where venue is improper and which lacks personal jurisdiction, then case can be transferred since it conforms with the statute of "removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits" -Policy--promotes justice to where interests are C. 1631Case must be transferred if the court does not have personal jurisdiction to a court that has personal jurisdictionin the interest of justice D. Most states allow D to seek transfer if feel would not get fair trial where the case is filed G. Forum selection clauses 1) In contracts, forum selection clause specifies where litigation concerning the contract is to occur within the statespecifies exactly in which district a case is to be heardallowed as long as prove personal and subject matter jurisdiction 2) Federal courts not required to honor, but weigh them significantly H. Choice of law 1) Each state has its own choice of law doctrine or rules to decide which state's law to apply 2) When litigation occurs in state court, the forum applies its choice of law rules 12

3) When litigation occurs in federal court: a) Where there is no federal statute on point, a federal court ordinarily applies state law b) Federal court should apply the choice of law rules of the state in which it sits 4) When a federal case is transferred: under 1404 a only a) Transfer is simply a change of courtroom and should not change the law that is applied--so likely the transferor b) Transferee court should apply whatever law the transferor court would have applied I. Forum Non Convenies Dismissalsonly applied to federal courts 1. Case thrown out of US judicial system by US federal courts because of a more appropriate forum in a foreign court 2. Private and Public Factors Tests to determine to grant Forum Non Conveniens a. Private factors: ease of access of proof, ease of witnesses, view of premises, inexpensive b. Public factors: flow of court congestion, local interest of having local controversies at home, having diversity case in a forum that is at home with the law that must govern the action, complication of courts applying foreign law 3. Only apply public and private factors test; dismissal may not be barred solely because of the possibility of an unfavorable change in law to P (Piper Aircraft v. Reyno--private and public interest factors point to Scotland) 4. Can personal jurisdiction be sufficient to do what forum non conveniens does? Yes, since the public and private factors are very similar to the substantial justice factors and

V. PLEADINGS - Pleadings--documents filed by litigants, setting forth their claims and defenses and factual contentions --Today, notice pleading--less emphasis on making sure initial complaint is factual, because only point of complaint is to put other side on notice of a claim against them and give them reasonable time to respond, and discovery will take care of facts -but also makes litigation more expensive with discovery -Some states also have code pleading--more specific with facts; allows for gatekeeping from frivolous claims -Amount of detail in complaint depends on the complexity of the law being claimed -After you establish personal jurisdiction, subject matter jurisdiction, and venue; then you can file a complaint - Serving the Complaint- Rule 4 and 12--P must give notice to D through service of process, which contains summons and a copy of P's pleading a. D can then respond in an answer, where he responds to the allegations in the complaint and may raise new matter called affirmative defenses--P may then respond in his reply b. Rule 4(a)= what the summons must have c. Rule 4 (d)= waiver of service, where you can mail the complaint along with form 5 and 2 copies of form 6 -All P has to do is take the form 5, attach the complaint and 2 copies of form 6 and mail it -Once you get the form 6 waiver back you take it and file it with the court clerk d. If D decides not to waive service, they get 21 days to answer the complaint. But if they do waive it, they get 60 days. And D must pay for refusing to waive service. -The 60 days starts on the day P mails back the waiver of service, not the day it is filed, and the 21 days starts from the day D actually gets served if they decide not to waive service. If D doesnt do so in time allotted, then sanctions. 13

e. P must serve a reply to an answer within 21 days of being served with an order to reply 1. ComplaintsRule 8 A. Rule 8 a) 1-3 1) A pleading must contain: a) A short and plain statement of the grounds for the court's jurisdiction--personal, subject matter, and venue; unless the court already has jurisdiction b) A short and plain statement of the claim showing that the pleader is entitled to relief i) Ex: duty breach cause harm -Sufficient facts to show a plausible claim c) A demand for the relief sought, which may include relief in the alternative or different types of relief i) Break down relief sought by each claim of damages, and amount for each 2. Federal Rules Pleading A. There is no pleading requirement of stating facts sufficient to constitute a cause of action, but only that there be a short and plain statement of the claim showing that the pleader is entitled to relief (Dioguardi v. Durning-1944) -Otherwise, meritorious claims may be thrown out because of procedural blunders B. Pleadings taken in light most favorable to P C. Pleading Today: Notice pleading but more like de facto code pleadingas response to 12 B 6 motion a. The pleading must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action; not enough to allege entitled to relief, must show entitled to relief with facts (Bell Atlantic v. Twombly) b. Mere possibility of success is not enough in complaint, it needs to be plausible; yet does not need to be to the level of heightened pleading or probability of winning=standard applicable to every type of civil action: Ex: Ashcroft v. IqbolConstitutional/civil rights infringement case; P fails to state plausible claim based on facts because relies on legal conclusionsonly conceivable, but not plausible -2 Principles to base decision on if plausible: 1) First tenet that a court must accept as true all of the allegations contained in a compliant, is inapplicable to legal conclusions 2) Only a complaint that states a plausible claim for relief based on the facts survives a motion to dismiss What is plausible? Context specific to the case based on judicial experience and common sense=Vague standard that can be interpreted by judges in different ways c. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

14

d. Therefore, today an attorney needs to make complaint as plausible as possible, by way of adding more facts to the complaint, instead of waiting for this during discovery = More like code pleading D. Heightened Specificity Requirements --Rule 9only applies to fraud or mistake a. Rule 9b--In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. b. The heightened pleading standard contradicts the notice pleading standards set by federal rules 8 a 2), which only requires a short and plain statement of the claim showing that P is entitled to relief. (Leatherman v. Tarrant County) c. 9 b) only addresses two instances where heightened factual specificity is required--claims of fraud and mistake--and do not include civil rights complaints alleging municipality liability (Leatherman) -Policy implicationsbecause of stigma from the information sought, require more code pleading to protect the client E. Pleading Inconsistent Facts and Pleading in the Alternative a. Rule 8 d 2 and 8d3 -8d2: A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient -8d3: A party may state as many separate claims or defenses as it has, regardless of consistency -Though not stated in rule, plead alternative theories when you are in doubt as to which facts or theories are true b. P to plead inconsistent counts in the alternative, where he is genuinely in doubt as to what the facts are and what the evidence will show. Not grounds for dismissal that one count contradicts those in an alternative count, since each presents a separate question. (McCormick v. Kopmann) F. Jurisdictional Challenges a. D. Collateral attack doctrine: not allowed to re-litigate after losing, but allowed to attack personal jurisdiction of the court from another state i. Collateral attack: claim saying that court did not have personal jurisdiction, from another state-when you fail to show up to court and respond to the complaint and usually default judgment issued against you ii. However, if one appears in court and answers the complaint and defends himself, he cannot move to dismiss for lack of personal jurisdiction--b/c consenting to jurisdiction by arguing on the merits--once you consent, you waive the issue, and cannot appeal it later 1) Consent by: litigating on merits, defending oneself, or answering complaint 2) However, if you appear to attack the jurisdiction only, you are not consenting to the jurisdiction (special appearance) iii. Only issue you can litigate is jurisdiction--if you lose on the jurisdiction issue, you lose the entire case and cannot argue on the merits or litigate iv. Can't relitigate twice on the same issue in the same or different court--collateral estoppel b. Direct attack-- when you attack the personal jurisdiction of a court within that state

15

-Preferred to collateral attack, since if you lose on the personal jurisdiction question, you can still attack on the merits and litigate -If lose on direct attack, you cannot appeal until a final judgment has been rendered on the merits c. If attacked by a foreign jurisdiction--3 options i. Collateral attack--Not show up to the foreign court, you default on that judgment, and collateral attack the personal jurisdiction of the foreign court in own court ii. Special appearance by showing up in the foreign court and only argue the personal jurisdiction claim iii. Direct attack--Show up to the foreign court and defend the case, in which you waive your right to attack personal jurisdiction - Can only appeal once the final decision on merits has been made Ex: Baldwin v. IA State Mens Assoc.-- P attempted to challenge personal jurisdiction in direct attack by making special appearance, and lost; P then attempted to challenge personal jurisdiction in collateral attack - SC said you cannot challenge personal jurisdiction in collateral attack after losing in direct attack-- only get one chance to attack personal jurisdiction - Therefore, more likely to challenge on direct attack--since you can litigate and attack the merits after if you lose on direct attack; whereas in collateral attack you can only challenge personal jurisdiction, and if you lose then subject to default judgment and cannot attack on the merits 3. Defenses and ObjectionsResponsive Pleadings (answers and motions) -D can either answer within 21/60 days of being served process, or file pre-answer motions under rule 12 b or do nothing A. Defendant's options in response to a complaint a. Not here--subject matter jurisdiction/personal jurisdiction/venue challenges b. So what?12 b) 6P failed to state a claim on which relief can be granted c. Vague complaints--12 e)--ask for a more definite statement d. Denial--say claim is not true e. Affirmative defense--claim true, but have a defense for doing it f. Third party claim/cross claim--Not my fault, but B's fault g. Counterclaim--counter a claim against P - First 3 do not require the D to take a position as to the truth of the facts pleaded by P--so made by motion, and not an answer - Answer--requires D to take a stance towards the complaint 4-7 B. Rule 12 B-motions -Every defense to a claim for relief in any pleading must be asserted in the answer, or a party may assert the following defense by motion -Motions--requests that the court order something 16

12 B i. every defense to a claim for relief in any pleading must be asserted in the responsive pleading (answer). But a party may assert the following defenses7 motions 1) Lack of SMJ 2) Lack of personal jurisdiction 3) Improper venue 4) Insufficient process 5) Insufficient service of process 6) Failure to state a claim upon which relief can be granted--even if every fact in complaint is in favor of P, they still have no claim if there is no relief based on how P plead the caseif leave out essential information 7) Failure to join a party under rule 19 ii. Motion asserting the defenses must be made before pleading an answer iii. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading (answer) or in a motion--like a special appearance - Ex: file motion for lack of personal jurisdiction and improper venue 12 G--joining motions 1) A motion may be joined with any other motion under this rule 2) Except as provided in rule 12 h 2, or 3, a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion 12 H-1) a party waives any defense in rule 12 b 2-5 by omitting it from a motion in the circumstances under rule 12 g 2 or failing to either:-a) Make it by motion under this rule or b) Include it in a responsive pleading or in an amendment *motions 2-5 must be all be plead together right away in a pre-answer motion or as an affirmative defense in your answer to preserve them from being waived 2) 12b6 failure to state a claim upon which relief can be granted, to join a person required by Rule 19b, or to state a legal defense to a claim may be raised: a) In a pleading b) By a motion c) At trial 3) Court must dismiss if determines it lacks SMJ--but can never be waived by the parties - Motions for summary judgment--if facts are undisputed and D is entitled to a judgment as a matter of law - Motions to seek more definite statements or to strike under rule 12 e and f--for insufficient defense or redundant, immaterial, impertinent, or scandalous matter or claim for relief not available - Courts have power to decide on a motion at any time during the process C. The Answer: Rule 8 b, c, and d a. D can do 2 things: must admit or deny specific allegations 17

1) Respond to the allegations of the complaint--8 b and 2) Raise new matter through an affirmative defense--8 c b. Responses to the P's allegations8 B i. Rule 8b and 8d (allegations not denied are deemed admitted) 1. Admissions--8 b1 1) Often for undisputed factsanything admitted is deemed as fact for trial, and anything not denied may at times be concluded as admitted 2. Denials--8 b2 1) General denial--where D denies each and every allegation of the complaint--only acceptable if D can in good faith deny all allegations of the complaint 2) Specific denials--to specific allegations; often accompanied with admissions to the other complaints - Often go paragraph by paragraph to see if you admit or deny the allegation in that paragraph 3) Qualified general denial--admits to allegation in one paragraph, and deny the rest of the allegations 4) D who wants to deny should simply do so without getting fancy or demanding 5) Rule 8b2--requires that a denial must fairly respond to the substance of the allegation; thus D should resist temptation to plead contrary facts 3. Denials for lack of knowledge or information8 B 5 1) Rule 8b5--a party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and this has the effect of a denial - But not a defense if the D has reasonable access or is public record c. Affirmative defenses--8 c i. 8 c) 1 requires D to raise affirmative defenses--19 defenses -If include motion in affirmative defense, it must have been made in pretrial motion or answer firstor else lose them ii. Avoidance--admit to P's allegations, but raise new matter that would avoid liability to the allegation iii. Affirmative defenses are different from denials because they inject new matter into the dispute--saying might have done what is alleged, but have a defense as to why 1) Each party has burden of producing evidence at trial on the elements she must plead 2) D must plead their affirmative defenses in their answer d. CounterclaimD brings a claim of fault against P e. Cross claim2 Ds, but say second D is at fault f. Default judgmentwhere D does nothing and a default judgment gets entered, D can then challenge jurisdiction collaterally 18

4. Dismissals A. Voluntary Dismissal41a) 1) P may dismiss an action without a court order by filing: a) A notice of dismissal before the opposing party serves either an answer or a motion for summary judgment OR b) A stipulation of dismissal signed by all parties who have appeared - Unless the notice or stipulation states otherwise, the dismissal is without prejudice--P can re-file same claim again - Ex: can file first through notice of dismissal, then if dismissed without prejudice, by a stipulation -A dismissal of a complaint by P "without prejudice" means that the P can reinstate the case - A dismissal ''with prejudice'' or "on the merits" bars the P from bringing the claims again 2) Otherwise, an action may be dismissed by P's request only by court order B. Involuntary dismissal41 b) 1. Failure to prosecute by P, or if P fails to comply with these rules, or if P fails to court order, D may file a motion for court to dismiss the complaint and it will always be with prejudice and cannot be readjudicated 5. Amended PleadingsRule 15very liberal rules allowing parties to amend pleadings A. 15 a)= Leave to amend shall be freely given when justice requires i. A party may amend its pleading once 1) 21 days after serving other side with the pleading (be it a complaint or an answer for D) or 2) 21 days after service of a responsive pleading/answer or motion by D under rule 12 ii. Cannot amend without consent of either other party or the court--Can either wait for consent from D, or ask the court to allow to amend complaint--court should do so when justice so requires iii. Time to respond--D has at least 14 days to respond to amended complaint in answer B) Amendments during and after trial15b) i. 15 b--amendment to complaint--when there is evidence on a point not covered in pleading=variance 1) Court wants relevant information to case, even if not specifically in the complaint or answer-liberal basis 2) Court should freely permit an amendment when doing so will aid in presenting the merits and opposing party does not prove that the amendment would prejudice their defense on the merits C) Relation back to amendments15 c) i. An amendment to a pleading relates back to the date of the original pleading when: 1) The law that provides the statute of limitations allows relation back 19

2) Amendment asserts a claim or defense that arose out of the conduct, occurrence, or transaction set out or attempted to be set out in the original pleading or 3) The amendment changes the party or the naming of the party against whom a claim is asserted which falls within the period of rule 4m--1 year after time action arose ii. Statute of repose--D should be free of mind from being a party to a suit after a period of time iii. *As long as original claim and amended claim are related, then amendment does not infringe on D since they should have had notice of the amended claim, and amendment may be allowed even if statute of limitations runs 6. Supplemental Pleadings15 d) 1) Supplemental pleading sets forth events occurring after a pleading is filed to be attached to the pleading--may change the relief sought or add new parties (cant amend complaint since the events occurred after the original pleading) - Does not include facts that occurred before the original filing, but were discovered after--would need amendment 2) Allowed only with court permission--freely granted unless there is undue delay, bad faith, or prejudice - Allows P to allege new facts without having to amend original complaint, but also allow D an answer to supplemental complaint 7. Rule 11--signing pleadings, motions, and other papers, representations to the court, sanctions A) Attorney must verify specifics, and sign to assure that assertions reasonably grounded on fact and law, and court may impose sanctions if do not comply -Every pleading or motion or other paper must be signed by at least one attorney of record; court must strike the paper without the signature unless omission is promptly corrected - By signing, representing to court: 1. A proper purpose for claim 2. Claim warranted by existing law and not frivolous 3. Factual contentions have evidentiary support 4. Denials are warranted by evidence B) Sanctions: if attorney fails to sign and properly represent claim to court 1. Sanctions may be imposed, and law firm must be held jointly responsible 2. Safe harbor provision--motion for sanctions must not be filed to court until 21 days have passed after serving the motion to the opposing party--to allow them time to appropriately correct the violation Ex: Rector v. Approved Federal Savings Bankfrivolous $20 billion claim, D files rule 11 sanctions, but the sanctions never were served on P, but sent straight to court within 21 days -Safe harbor is not a jurisdictional issue, so can be waived -P waived this argument since he did not bring it as a defense on first appeal 3. Inherent power of court to sanction bad faith conduct by litigants or counsel 8. Model rules of professional conduct--emphasizes what is in rule 11 20

VI. DISCOVERY -Discovery does not start until pleadings stage ends--when issues are joined--pleadings and responsive pleadings both made -*1) Is the information relevant? 2) Is the information privileged? 3) Has the privilege been waived? 1. Policy: Purposes of discovery rules: i. Permit the preservation of evidence that might otherwise be lost before trial ii. They provide mechanisms for narrowing the issues in dispute between the parties, and iii. They permit the parties to acquire greater information about their own and the other side's case 2. Rule 26 b) 1 and 2 i. Discovery scope and limits--3 categories 1) Relevancy to party's claim/defense: Scope is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense a) Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidenceAsk: is this evidence that P will use to support a claim? Is it evidence that D will use to support a defense? OR 2) Relevancy to subject matter: 2 categories a) For good cause, the court may order discovery of any matter relevant to the subject matter involved in the actiontherefore, must get court order and up to the whims of the court b) For electronically stored information: must be reasonably accessible, and not unduly burdensome and costly to get, and must have good cause 3) Court must limit extent of discovery if: i) Discovery is unreasonably cumulative or duplicative or can be obtained from other sources, or ii) Party seeking discovery has had ample opportunity to obtain the information by discovery in the action, or iii) Burden or expense of the proposed discovery outweighs its likely benefit 3. Stages of Discovery A. Rule 26 f conferencemeeting between the parties in order to set up a discovery plan and calendar and any settlement prospects. Must be held as soon as possible and at least 21 days before the rule 16 b conference with the judge B. Initial disclosures--26 a 14 categories 1) Disclosures that automatically must be made by both parties without a discovery request: name, number, address of any individual witness with likely discoverable information 2) A copy, or description of all documents, electronically stored information, and tangible things that disclosing party has in its possession and may use to support its claims 3) Computations of damages 4) Insurance coverage that must be disclosed

21

i. Time for initial disclosures: within 14 days after the parties rule 26 f) discovery conference b/w the parties--conference to determine what the discovery plan is to be--how long it will last, how many depositions and interrogatories will be allowed, etc. ii. Unacceptable excuses--generally, no excuses for not filing disclosures within 14 days if information is reasonably available -Exception: If the party is served or joined after the Rule 26 f conference, they must make the initial disclosures within 30 days after being served or joined C. Rule 16 b conference with the judgescheduling conference allows the judge to manage the trial docket by establishing a plan by which the parties will follow in conducting discovery. Violators may be liable for sanctions. Helps to facilitate settlement. -Done as soon as practicable or at the latest 120 days of a party being served or within 90 days of the party making an appearance D. Expert disclosures26 a 2must disclose of experts who plan to testify as if they were witnesses but must also include a written report by expert and signed by expert of what the expert plans to testify about with specifics under 26a2breport must be made before any deposition given a. P only needs to disclose information of testifying experts. Non testifying experts are treated as work privilege26b4b b. Experts must be disclosed 90 days before trial c. Rule 26 b 4 B--ordinarily a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been "retained or specially employed" by another party in anticipation of litigation or to prepare for trial who is not expected to be called as a witness. -Exception: exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. d. Types of experts 1) Testifying expertsdiscoverable 2) Experts retained or specially employed in anticipation of litigation but not expected to be a witness i) Except under rule 35 for an examining physician, the facts and opinions of experts in this category cannot be discovered except for exceptional circumstances. 3) Experts informally consulted in preparation for trial, but not retained or specially employed or to be a witness. i) No discovery allowed of the names or views of these experts ii) Why? Policy: On one hand, want people to freely consult experts and see the claim they have. But at same time, this allows parties to be able to shop for experts for a favorable opinion. Agenda over objective accuracy. 4) Experts whose information was not acquired in preparation for trial--Ex: bystanders, treating physicians i) Freely discoverable as with any other ordinary witness 5) The status of each expert must be determined on an ad hoc basis E. Pretrial disclosures26a3 22

-An updated version of the previous disclosures. Disclosures of witnesses expected to be called or whose depositions will be used and a list of documents to be used as evidence. Must be made 30 days prior to hearing. F. 26 b 1 and 3 stage above G. Discovery only through leave of the court--26 b2 a and b stage 4. Depositions--rule 30, 31 i. Witnesses placed under oath and responds to questions by attorneys from each side, typed by stenographer ii. 2 types: oral response and written responses iii. 30 b) 6 witness-- for corporations, the corporation must determine the appropriate spokesperson to be deposed in the issue iv. Can only depose 10 people, and can only last 7 hours, unless otherwise specified 5. Interrogatories--rule 33 i. Less expensive and may be better for detailed, objective information than a deposition ii. Any party may send to any other party written questions that require a written response under oath 1) Unlike depositions where the witness is required to answer based on knowledge at the time of the deposition, interrogatory parties are required to provide facts that are reasonably available to them, even if they have to review documents, but not required to supply information they do not have 2) But answers are likely to be drafted by the attorney, so do not ascertain the credibility of the witness iii. Limited to 25 and other party has 30 days to respond 6. Production of Documents and Things--Rule 34 i. Permits a party to require another party to produce for inspection, copying, or testing all relevant documents or other tangible thingsmust describe what is sought with particularity; must respond within 30 days 7. Medical Examination--Rule 35 i. Can file a motion for the court to order a medical examination where the health and physical or mental condition of a party is in controversy ii. If the party who was examined deposes, or asks for the examiners report, they waive any privilege from previous medical exams or subsequent medical exams based on the same controversy or condition35b4 8. Requests for admissions-- rule 36 i. Used to determine what issues are and are not in dispute about ii. Usually used to get parties to admit to certain issues, in order to narrow down to the actual disputed issue respond in 30 days 9. Discovery permitted in product liability cases if it involves: (United Oil v. Parts Assoc.) i. The same or similar claims previously made arising from ii. Same or similar products at issue a. Sometimes need to go through each interrogatory to see if it is relevant: reasonably calculated to lead to admissible discovery and therefore relevant 23

b. The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the federal rules. However, at trial, the burden is on the offering party to demonstrate relevance, to show that there is "substantial similarity" of other accidents, complaints, claims, or lawsuits. 10. Electronic Discovery i. Spoliation =the destruction or alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation ii. Counsel has a duty to: (Zubulake v. UBS Warburg) 1) In anticipation of litigation, preserve the information through litigation hold 2) locate relevant information and preserve that information, often through learning retention policies of the company and communicating directly with the key players 3) Then must produce it to other party - Discovery of ESI has become increasingly important, and vast amount of information is in electronic form iii. Adverse inference instruction--given for spoliation of evidence if 3 elements are establshed: 1. That the party having control over the evidence had an obligation to preserve it at the time it was destroyed 2. That the records were destroyed with a culpable state of mind 3. That the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense -This supports an inference that the destroyed evidence was adverse to the party responsible for its destruction. iv. WI electronic discovery rules 1. Court management of electronic discovery--court can appoint a referee to help in e discovery process 2. Meet and confer obligation 3. Producing e business records--make them more like federal e discovery rules 4. Treating e discovery rules same as paper documents 5. Safe harbor provision--if information destroyed as normal business practice without culpable mind, then safe harbor provided if it is routine operation and good faith operation 11. Privilege i. Trumps relevance always ii. 2 questions: a. Is there a privilege?--Confidential communication between doctor/patient, lawyer/client, etc.not the underlying facts b. Has it been waived?Ex: If person voluntary opens the door to the public, such as to their own mental health and alleges mental health claim in suit (i.e. emotional distress cases), they waive their confidentiality rights of their mental health records -Once a party discovers that they disclosed privileged information, they can notify the other party and that other party must return it or dispose of it until after a determination on the privilege has been made26b5b iii. Protective Order: Rule 26 c:

24

a. Things that are relevant and unprivileged, but still shouldnt be discoverable b/c of a special needif information is not relevant, is privileged, or potentially harmful/embarassing to the client b. First, party must demonstrate that they attempted to work it out with the other party before asking the court to intervene; then the Court balances need of discovery against collateral harm to person if allowed to be discovered--ex: trade secret c. Judicial discretion over whether to let it in the information--court and attorneys may look at it, but not public (seal) iv. Work product privilegeonly applies to work in anticipation of litigation a. Work productattorneys notes, legal impressions, intuitions about witnesses and a case b. Rule 26 b 3 trial preparation materials is not discoverable unless substantial needno other way to get access and unduly burdensome to do so 1) *Exception: Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by another party or attorney, but the materials may be discovered only if: a) It would otherwise be discoverable under rule 26 b 1--if the information is relevant: reasonably calculated to lead to admissible evidence OR b) The party shows that it has substantial need for the materials to prepare its case and cannot obtain the information without undue hardship (necessity) b. Are work products from opposing counsel discoverable? No, even though they are relevant, it would allow one attorney to take advantage of all the work that the other attorney has done and opposing attorney is supposed to come up with own legal impressions of the case (Hickman v. Taylor) -If the opposing attorney is not unduly burdened from getting the information, then they must do so on their own through depositionscannot take another attorneys notes and impressions otherwise 12. Sanctions on DiscoveryRule 26g and Rule 37 a. 26g= Anything that the attorney signs and certifies that later turns out to be incorrect may be liable for sanctions b. 37a=Motions for the court to compel discovery must be made after a good faith effort to resolve it without the courts involvement b. 37b= Sanctions allowed for parties that fail to properly disclose under 26ainitial disclosures c. 37c= 1) If party fails to disclose/supplement the disclosures, then any evidence you didnt disclose cannot be used at trial 2) Failure to admit something that is later proven at trial will open the party up to sanctions d. 37d=Sanctions if after being properly served with proper notice, fails to appear at deposition, or if properly served with interrogatories or request for inspection fails to serve its answers, objections, or written responses -Has requirement that confer with other side before file motion for sanctions for discovery abuse--like a safe harbor provision e. 37e= Failure to provide electronic information cannot typically be sanctioned if there was good faith destruction f. 37f= failure to participate in the 26f conference makes you liable for sanctions 25

VII. ADJUDICATION 1. 6th amendment requires trial by jury in both state and federal court for criminal cases; 7th Amendment: "In suits at common law, the right of trial by jury shall be preserved" a. Technically, 7th amendment does not apply to states, but most states have laws that apply the same rule 2. Rule 38--whether or not to seek jury trial after pleadings made a. If dont bring claim within 10 days after last pleading, then you waive it b.Why have a jury trial? Most plaintiffs want a jury in civil cases, since juries more likely to be sentimental to their claim; whereas D might want a bench trial since less passion and more law based 3. 2 Part Test to determine whether a civil case should have a jury trial: (Chauffeurs Local v. Terry) 1) Compare the action to the type of actions back in 1791 before the merger of courts of law and equity--whether it was of law or equity claim back then -Why? Because jury right is to be "preserved" under the 7th--meaning if it was a legal claim in 1791, it is a legal claim now -Ex: Terry a) Union argues that Union is like a fiduciary, and when it does not represent the employee, it is a breach of trust which is equitable, and not liable to jury trial. b) Employee argues that claim is like attorney malpractice, a tort for money damages, which is a legal remedy, and liable to trial. c) However, SC agree that fair representation is more like a trust, and equitable. However, the claim of breach of contract against the employer is more like a breach of contract, which is legal in nature. So, b/c both, need to look to second prong of test. 2) *Examine the remedy sought to determine whether it is legal or equitable in nature--more weight given to this component -Ex: Terry a) The only relief sought is compensatory damages seeking backpay, and therefore is legal in nature, and subject to jury trial. b) Title 7 claims under civil rights act seek compensatory damages but are still considered equitable, but title 7 is restitutionary and an equitable relief. Whereas the claim here is public in nature and is legal in nature. -Concurring: the historical test should be and can be simplified. Should decide 7th Amendment cases on the basis of the relief sought and its history. If the relief is legal in nature, in that it is historically available as a legal remedy, then the parties have a constitutional right to trial by jury. The nature of the remedy is more important than the nature of the right. -Dissenting: Agree with the test the majority used. However, the case is most analogous to a trust action, which is equitable in nature. 4. Policy on 2 part test: Should the historical test be simplified or junked altogether? -Yes, because makes judicial experience easier for judges to make more just and predictable decisions. Judges should not be expected to be historical scholars. Too many cases do not have prima facie analogies to 1791 cases.

26

-No, since history is prevalent to law and need to be able to fit within the common law framework. Prevents judges from allowing their own prejudices or decide a case based on whatever basis they feel, over a historical basis. - Should cases be heard by a judge or jury? Jury more persuaded by emotions and sentimental relief. Judge more experience with questions of law. 5. Non article 3 courts and juries a. Not all adjudication of federal claims occurs in courts with Art III judges 1) Ex: state courts, federal agencies and administrative courts, specialty courts b. SC: In non Art III courts, a jury is required for the adjudication of "private rights" but not for "new statutory public rights" 6. Juries in State Courts a. 7th amendment does not apply to state courts, but most state constitutions provide a right to a jury in civil cases comparable to the 7th i. May also grant jury when the federal courts would not, like in equity cases 7. Jury Selection and Voir Dire a. The Venire and Voir Dire i. Jurors summoned from a master roll of prospective jurors--venire 1) Must represent a reasonable cross section of the population--voter registration lists, licensed drivers, taxpayers, etc. ii. Voir dire--process of selecting jurors and eliminating others by gathering information about prospective jurors knowledge, bias, or opinions about the case or a close connection with any of the parties 2) Juror can be struck by judge or through peremptory challenge by an attorney--generally no need to be given for peremptory challenges iii.) Voir dire may be done entirely by a judge, or by an attorney, or both and may be done in a group or individually 3) Struck "for cause"--unable to be unbiased, stake in case, too much knowledge, etc. b. Peremptory challenges i. Challenges by each sides attorneys to strike a potential juror for bias, or knowledge, or stake in the case ii. Helps legitimize verdicts and help equalize the playing field between the parties iii. In federal civil cases, each side is limited to 3 1) In federal felony prosecutions, D is entitled to 10, and P 6 2) In capital cases, each side allowed 20 iv. Traditionally, lawyers could exercise for any or no reason without explanation--but today it is subject to important qualifications c. JEB v. Alabamacan peremptory strikes be made on the basis of gender solely or is this forbidden under equal protection as discrimination, as it is for racial strikes? i. Paternity and child support case, D used all peremptory strikes to eliminate all male jurors from jury, and jury entirely made of women. P, father, said that strikes violated equal protection for intentional discrimination based on gender. 27

ii. SC majority: Intentional discrimination on the basis of gender violates the equal protection clause, particularly where the discrimination serves to ratify and perpetuate archaic stereotypes about the relative abilities of men and women. Gender alone is not an accurate predictor of juror attitudes, and this is the type of stereotype the equal protection clause protects against. -Also, allowing such challenges does not give a fair representation of the community iii. Gender based peremptory challenges, which are held to heightened scrutiny, does not lead to legitimate state interestschallenge must be exceedingly persuasive to sustain a gender based selection iv. 3 step process for determining whether a peremptory challenge is discriminatory: i) Opponent must establish a prima facie case of discrimination ii) Burden shifts to the proponent of the strike to come forward with a constitutionally permissible explanation iii) Court must determine whether impermissible discrimination has been established v. Concurring: Peremptory challenges enables each side to exclude jurors it believes will be most partial to the other side, and should still be allowed to be exercised without reasons stated, as long as it is not based on discrimination. If keep adding constitutional restraints, then this hurts the rationale for a peremptory strike, that they should be made for lawyers strategy and intuitions. v. Dissenting 1: The two sexes differ, and have different outlooks on cases. Therefore, there is a legitimate interest in such challenges since it is strategic for the attorney to win the case. vi. Dissenting 2: Cannot say that men were singled out for discriminatory treatment in the case since P struck as many female jurors as D did male jurors. Both sides had to have struck the same group to invoke discrimination concerns. -Overall, should be able to take gender into consideration with how it may affect the type of case at issue, but should not be able to strike the person solely because of their gender. The strikes should be based on the individual, their experiences and views, and this should be the main consideration in making the peremptory strikes. A male and a female may have the same opinion on an issue, whereas two females or two males may have entirely different views on the issue. Gender may be a consideration, but this should be outweighed by the individuals views and experiences as based on the issue in the case at hand. Taken all these considerations in the aggregate should determine whether the strike is constitutional. There should be more weight given towards for cause questioning over gut instinct and assumption-based peremptory challenges. 8. Summary JudgmentRule 56 a. Rule 56c =authorizes the court to enter judgment without benefit of a trial whenever it appears that: "1) there is no genuine issue as to any material fact and 2) that the movant is entitled to a judgment as a matter of law" i. Determines whether there is an issue of fact to be tried--judgment entered without benefit of a trial b. 2 situations where summary judgment is appropriate: i. When parties agree on all the "material" facts and the dispute is entirely about the law--whether liability exists; matters of law are for the judge to decide ii. When the parties disagree about the facts, but there is no "genuine" dispute--one side has so little evidence that no reasonable jury could find for that side c. Different than 12b motion to dismiss, which says that P does not have a legally cognizable claim for relief; whereas a summary judgment deals with un/disputed facts Differences: 28

i. 12b--whether there are sufficient facts that a plausible claim existsless than summary judgment ii. Summary judgment--are material facts disputed? If yes, then no summary judgment. If have undisputed facts, do the undisputed facts state a genuine claim? i.e. is the movant entitled to a verdict? Must be yes to have summary judgment to show entitled to relief 1) Material--if elements of the substantive law points to whether the fact may affect the success of the claim 2) Genuine issue--if reasonable jurors could reasonably disagree over whether a verdict can be given to the nonmoving party/P d. 56 a) and b)--summary judgment can be filed by either P or D and can be made for entire claim or on partial claim e. 56 c--Time for a motion, response and reply, proceedings i. Party may move for summary judgment up to 30 days after close of all discovery ii. Party opposing motion must respond within 21 days after motion is served iii. Movant may file a reply within 14 days after response is served f. 56e--affidavits; further testimony i. Affidavits are not required, but an affidavit can be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits ii. In response, an opposing party may not rely on own pleading; but response must set out specific facts showing a genuine issue for trial - Movant has burden of pleading no genuine issue of fact, but the party challenging the summary judgment cannot rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial--ie. that a jury might return a verdict in his favor. (Anderson v. Liberty Lobby) g. Issue over how a judge is supposed to determine the sufficiency of the evidence for summary judgmentif a reasonable juror could find for nonmoving based on the facts--if they are not allowed to weigh the evidence, as this is to be up to the jury 1. Judges are not to weigh evidence, but assess it to insure that it is at least plausible and capable of being accepted by a rational factfinder h. Burden of persuasion: the degree of certainty the fact finder must have before it can find for one side. 1. Always on the moving party 2. Usually preponderance of the evidence, but sometimes clear and convincing standard--in b/w preponderance and beyond a reasonable doubt.likely does not make that much of a difference i. Burden of production for summary judgment: coming forward with some evidence -For the central issue as a whole, it is always on the P 1. Old law standard: Burden of production is on moving party, usually D, to have to prove that nonmoving does not show any disputed facts and a general claimwith some type of evidence, including affidavits, interrogatories, depositions, etc. 2. Current law standard: Ultimate burden of production on the non-moving party, usually P, to show there is a genuine issue and disputed material facts

29

i. Moving party just needs to file for summary judgment, saying P cant prove D did it based on the evidence, and nonmoving must prove that there is a genuine issue of material fact A moving party may carry its initial burden of production by: 1. showing that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial OR 2. Producing evidence negating an essential element of the nonmoving party's case (easier) ii. Must be based on affidavit, interrogatory, or other evidence, and the evidence cannot be based merely on the pleadings -If moving party moves for summary judgment, and nonmoving party does not bring any evidence in defense showing a material dispute, if there is an inference on the evidence that moving party brings that could result in a reasonable ruling in favor of nonmoving, then summary would not be granted 9. Directed Verdicts/JMOLRule 50 -Only difference with summary judgment, is the time filed. Instead of after discovery, filed during trial. Same standard applied. a. If the court determines there is insufficient evidence to support a jury verdict, it may decline to submit the case to the jury and instead enter a judgment as a matter of law/directed verdict/JMOL b. Or the court can submit the case to the jury and if the jury returns a verdict for which there is insufficient evidentiary support, the court may enter judgment notwithstanding the verdict (JNOV) c. Process: Directed verdict during trial: at end of plaintiff's case before D's case. D asks for directed verdict. Almost always denied. Then D makes its case, then P moves for directed verdict. Then likely denied. Closing arguments then made by both sides, then jury instructions given. Jury deliberates, renders a verdict. Then losing party moves for a directed verdict or judgment notwithstanding the verdict, and in the alternative, judgment for a new trial. 1) Directed verdict and judgment notwithstanding verdict are same thing, but just at a different time. 2) Same standard is applied under rule 50 for both and for summary judgment: Whether a reasonable jury could return a verdict for the nonmoving party on the evidence presented. Only when the evidence is so weak for one side that no reasonable jury could find for that side is it to be granted. d. Rule: P needs one reasonable inference supporting the verdict from the facts to prevent the court from ordering a directed verdict or a JNOV i. As long as P makes a reasonable inference to the jury based on the facts, judgment is not subject to attack by directed verdict or JNOV ii. Only when there is a complete absence of probative facts to support the conclusion reached by the jury is there warrant for a JMOL or JNOV iii. Just like a trial judge during summary judgment is not supposed to weigh the evidence, but only rule on law, similarly, the appellate court is not supposed to re-weigh the credibility of the evidence, and say whether the facts given to a jury could render a verdict for the D (Lavender v. Kurn) e. New TrialRule 59 i. Rule 59--If jury verdict is against the great weight of the evidence, the court can order a new trial with a new jury

30

1) P often files for a directed verdict, or in the alternative, the lower threshold of a new trial -Lower threshold to meet than JMOL, but still rareissued over JMOL when the issue is based on factual determinations -Ask: Should a new trial been granted, or was the evidence so clear against the party to warrant a directed verdict? -Usually rendered when the issue still left in question is factually based, misconduct by counsel, error in trial process, mistakes made by jury f. Other ways of controlling juries i. Jury instructions: No guarantee that the juries will follow instructions, but the instructions focus the jury's attention on particular matters and provide a structure for the deliberations ii. Form of the verdict: seek a general verdict, where jury determines who wins or loses, or a directed verdict, where counsel directs the jury to the verdict via questions prepared by the counsel in line with the jury instruction iii. Motion to set aside the judgmentrule 60: Broad range of grounds by which a party may move to set aside judgment; Only allowed if there is a fundamental flawlikely to be denied

VIII. ERIE DOCTRINE AND WHAT LAW APPLIES IN FEDERAL COURT 1. Only applies to diversity cases; vertical choice of law: whether federal courts are to apply federal law or state law in diversity cases 2. Rules of Decisions Act: Sec 1652: In diversity cases, the laws of the several states, except where the Constitution or federal statute applies, shall be regarded as rules of decision in civil actions in the federal courts in cases where they apply" a. Swift v. Tyson: In diversity cases, federal courts were required to apply state law only where there was an applicable state statute or the issue was one of "local law" and there was no federal statute trumping on point at issue. It was not to follow general state common law; in such cases federal courts were permitted to set forth a general federal common law ruling. -law under the Act= state statutes and local law, not common law b. Erie: Overruled Swift, and held that in diversity cases where there is no federal statute or constitutional provision on point, the federal court is required to apply state law, including both state statutes and common law -law= state statutes and state general common law -Answers judicial federalism issue: When there is no federal statute or constitutional provision on point, the federal courts must defer to state decisions on the issue, be it by statute or common law. Otherwise, the federal courts would not be recognizing and respecting states ability to create law via common law -Forum shopping issue resulting from Erie? Concern over a state and federal court coming up with opposite rulings on the same issue. They should come up with the same outcome. Otherwise it is inconsistent with fairness and justice -There is only no general federal common law= when there is no federal statute or constitutional provision and there exists a state statute or state common law, trumping -There is still federal common law regarding federal statutes 3. York test: Erie doctrine only applies to substantive law, not procedural. If the issue only deals with procedural law, then the federal courts are to use its own federal procedural rules over deferring to state procedural rules 31

a. Outcome determinative test: Whether applying the state rule will determine the outcome of the case--if yes, then it is substantive and therefore not procedural, and Erie applies i. However, many procedural rules are outcome determinative--such as statute of limitations--and therefore, doesnt answer own question with this test, and led to federal courts almost always applying state rule 4. Byrd balance test: Adds to York test, that even if state rule dictates outcome of the case, the fed. court must still balance the state interest against the federal interest in maintaining the integrity of the fed judicial system before applying the state rule Ex: Even though state law (allowing judge to determine case outcome) is outcome determinative, it infringes on federal interest in upholding 7th amendment right to trial by jury in federal cases 5. Hanna 2 prong test: When federal rule and state rule clash Hanna 1) Does a federal rule of civil procedure apply to the case on point? If yes, it must apply. a Technically, it applies unless it violates the Rules Enabling Actif federal rule enlarges, abridges, or modifies another statute and substantive rights-rule 2072 i. 2072b--federal rule must be a procedural law, not procedural rules that are substantive and have determinative outcome b. However, all rules of civil procedure today are found to be in line with each other and strictly procedural, so a federal rule of civil procedure on point always applies over state law -Ex: Shady Grove v. Allstate Insurance--Rule 23 of FRCP is on point and in direct conflict with state law, so it applies in class action suit issue. Scalia: Under Hanna test, focus on federal procedural law and whether it conflicts and applies; Stevens: focus state substantive law and whether it is conflicted against Hanna 2: If no federal civil procedure rule on point, but a federal practice that conflicts with state practice, then it is a pure Erie issue. Must ask whether applying the federal practice over state practice: 1) Encourages forum shopping AND 2) Leads to inequitable administration of laws--leads to different outcome in state court and federal court over same claim a) If it does neither, then the federal law applies. If it does both, state law applies since federal law seen as more substantive than procedural Ex: GasperiniState law allowing appellate court to order new trials when jury award deviates materially from similar cases is to apply over federal law under 7th amendment forbidding such a practice, and only allowing fed courts to award new trials if the jury award shocks the consciencesince this standard is lower than the state standard, it encourages forum shopping to federal court and would lead to a different outcome in federal court, allowing more cases to recover and higher recoveriestherefore, state law is to apply -Apply Hanna test, but Byrd test is still good law and can be appliedif strong countervailing federal interest to the state law, then still need to balance in addition to Hannacan be seen as apart of the inequitable administration of laws 6. Erie guess: The federal court must make its best efforts to predict how a state court would rule; if it does so, then it fulfills Erie. a. By filing a state law claim in a federal forum when could have filed it in state court, the P assumes the risk that any open question of state law would be decided and interpreted by a federal court over a state court (Baldinger)

32

b. A federal court with an uncertainty of state law can certify the question to a states highest court and request the opinion of that court on the issue 7. If bring federal question in state court with concurrent jurisdiction with federal court, then state court must apply federal law to the casesupremacy clause

IX. PRECLUSION DOCTRINE 1. Claim Preclusion--a claimant may only sue on a single claim or cause of action once.--Ex: suing for property damage, then injury damage from same claim a. One chance to vindicate all rights to relief encompassed in a single claim; failure to do so is a loss of right to pursue other aspects of relief encompassed in that claim -Policy: efficiency to force parties to seek all rights of relief from a single cause of action in one case b. 3 requirements: 1) The two cases must involve the same claim 1.Old majority rule that when there is one wrongful act and a single cause of action/transaction that exists, only one action may be brought. 2.Majority Restatement rule: Claim encompasses all rights to relief with respect to all or any part of the transaction or series of connected transactions out of which the action arose 3. Minority states hold that a single tort causing separate damages gives rise to two distinct causes of action (Carter v HinkleP and D in car accident, P brings first claim and wins for property damage. P then brings later claim against D for personal injury) 2) The parties to the two suits must be identical or nonparty in privity with litigant in prior case a. "privity"--relationships that justify binding a nonparty a) If the nonparty was sufficiently "represented" by a party to another case--class action; guardians and fiduciaries b) If there is a substantive legal relationship b/w a litigant and a nonparty, where nonparty cannot sufficiently bring own case--successive owners of a property, heirs in an estate bound by decisions on the decedent -If party represented or have substantive legal relationship, not necessary that represented party has notice of the representation-- still bound by judgment b. Configuration of the parties 1) Claim preclusion requires that the parties in the first and second cases have the same litigation posture in both cases a) Both the first and second cases must be brought by the same P against the same D=configuration b) Both cases can involve the same parties, but not the same configuration in order to not have claim preclusion--ie. P can sue D, then D can sue P 2) Compulsory counterclaim rule--13a1: Requires a D to assert all counter claims against the P in the pending case as arising out of the same transaction -If claim is unrelated, D can bring it in a separate action 33

3) The first case must have ended in a valid final judgment on the merits a. Valid--that the court had subject matter and personal jurisdiction in the case b. FinalityMust prove there was a final judgment (verdict, dismissal, etc.) in first case to preclude second case. Nonfinal and interlocutory decisions are entitled to be revisited by the judge before decision on the case is final c. On the merits--Judgments based on the validity of the P's claim rather than on a technical procedural ground, like jurisdiction, improper venue, nonjoinder or misjoinder of parties -Includes trial, directed verdict, summary judgments Exceptions to claim preclusion: - Does not apply if: 1) Parties agree that P may split his claim 2) Court in first action expressly reserves P's right to maintain a second action 3) When a P was unable to rely on a theory in the first case because of the lack of subject matter jurisdiction 4) Judgment in the first action was unconstitutional or against a statute allowing P to split his claim 5) Policy allows in a case involving a continuing or recurrent wrong to allow P to sue from time to time as damages occur 6) Policies favoring preclusion are overcome for an extraordinary reason c. Claim preclusion is an affirmative defense, and is waived if it is not asserted 2. Issue Preclusion--Prevents relitigation of particular issues that were actually litigated and determined in the first case -Issue preclusion different from stare decisis and appellate decisions--appellate deal with questions of law, while preclusion addresses fact or law. Also, appellate decisions bind all lower courts in the jurisdiction; preclusion only deals with the parties in the case 5 Requirements: 1) The issue must be the same issue actually litigated and determined in the first case a. Policy: adversary system provides that all get their day in court and already issued a legal judgment b. Since preclusion law is outcome determinative, since it ends the case, it is substantive and state law applies under Erie c. The judgment on the merits concerning the issue estops not only every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented in the case for later cases. (Cromwell) -However, if the second action is based on a different claim, the judgment in the prior action is only preclusive as to those matters in issue upon the determination of which the final verdict was rendered. d. Special v. general verdict hyposp. 614: Generally, issue preclusion can be used if a special verdict was given determining the issues in the first case. If a general verdict was issued, issue preclusion may not always be allowed, if no proof that the general verdict conclusively decided on the issue. 2) The issue must have been essential to the judgment in the first case - An issue is not essential to the judgment in the first case if it is rendered against the party that actually wins the casesince it did not control the final judgment of the case (Rios v. Davis)

34

Ex: Rios found negligent, but won the case since P was contrib. Rios could not appeal a finding upon his negligence since he won the case, but could relitigate it. -If in case, P is found negligent and D found not negligent, and judgment entered for D. D is denied preclusive effect on both issues since the judgment could have been decided on either, so neither was essential, unless one or both are later affirmed by appellate courthypo p. 617 3) Was the holding on that issue embodied in a valid, final judgment on the merits?same as claim preclusion 4) Against whom may issue preclusion be asserted? a. Preclusion can be used against parties in the prior case or those nonparties in privity with parties in first case b. Virtual representation--requires an express or implied legal relationship that the parties in the first suit are accountable and representative to nonparties in a second suit on the same issue. Interest in the same issue is not enough. (Hardy) -If issue preclusion was applied, then D's would not have their day in court and violate due process rights -Today, virtual representation is not enoughneed adequate representation or substantive legal relationship c. If do not have same parties in second case, generally no claim or issue preclusion, but 6 exceptions of privity (Taylor v. Sturgell): 1) If the present party agrees to be bound by the issues in the first case *2) Existence of a substantive legal relationship between the party in the first case and the present party (succeeding owners of property, assignee-assignor, decedent--executor) *3) Adequate representation by someone with the same interests who was a party to the first suit-class actions, fiduciaries 4) If the nonparty assumes control over the litigation in which that judgment was rendered-already have day in court 5) If the nonparty who did not participate in the litigation later brings suit as the designated representative of a person who was a party to the prior case--like an agent 6) If an existing statute precludes the nonparty and is consistent with due process 5) Who may assert issue preclusion? a. Traditional law: Mutuality of preclusion--issue preclusion can be used only by someone who was a party or in privity to the first case -Policy: Someone who cannot be hurt by a prior judgment should not be entitled to take advantage of it -Today, Courts free to reject -Mutuality generally abandoned as long as the party that preclusion is issued upon had their full and fair opportunity to litigate in the first case b. Shift to permitting nonmutual issue preclusion--assertion of issue preclusion by someone who was not a party or privity to the first case c. Rejection of defensive mutual preclusion in favor of nonmutual defensive preclusion: i. Defensive preclusion--A plaintiff is precluded by a nonmutual D for asserting a claim that the P had previously litigated and lost against another D. Precludes a P from relitigating identical issues merely by switching Ds, since had their full and fair opportunity to litigate.

35

-Defensive preclusion gives incentive to P to join all Ds in first suit d. Rejection of offensive mutual issue preclusion in favor of nonmutual offensive preclusion: i. Offensive preclusion--when a nonmutual P seeks to preclude a D from relitigating the issues which the D previously litigated and lost against another P, as long as D had a full and fair opportunity to litigate. ii. New rule: in cases where a P could easily have been joined in the earlier case or where the application of offensive preclusion would be unfair to D, a trial judge should not allow the use of offensive estoppel. -Unfairness factors to D: 1. Easy joinder in first case by P 2. Foreseeability of litigation/incentive to litigate 3. Inconsistent prior judgments on issue--If D had favorable cases in the past but is overthrown by an anomaly case in favor of P. 4. Different procedures--if D was forced to defend in inconvenient forum (venue); difference in having jury or judge, etc. iii. Policy: Offensive preclusion does not promote judicial economy in the way defensive does as it gives P an incentive to have a wait and see approach, since they would not be bound by a prior case in favor of D by another P, but is bound if it favors P. This will increase litigation. 6. Exceptions to the operation of issue preclusiondoes not apply if: 1. The party against whom preclusion is sought could not, as a matter of law, obtained review of judgment in the initial action 2. The issue is one of law and a) the 2 actions involve substantially unrelated claims or b) a new determination is needed to avoid inequitable administration of laws or to account for a change in the law 3. A new determination of the issue is warranted b/c of differences in the quality or extensiveness of the procedures or allocation of jurisdiction followed by the court in the first case compared to the second, or if one court does not 4. *The party whom preclusion is sought has a heavier burden of persuasion in the first claim than the second, or vice versa for the opposing party 5. There is a clear need for a new determination of the issue a) b/c of adverse impact on public or persons not parties to the action b) b/c it was not foreseeable that the issue would arise in the subsequent action or c) if party sought to be precluded did not obtain full and fair adjudication in the initial action 7. Federalism and issue preclusion a. Full faith and credit clause--requires every state court to give full faith and credit to the judicial proceedings of every other state - Also, by statute, every state court and federal court to give the same full faith and credit to a judgment as it would receive in judgment rendering state b. State to state, state to federal, federal to state i. In these circumstances, the court in the second case must give preclusive effect to the first case Ex: State to state--where the first judgment is rendered in state A and the second case filed in state B -State B must give full faith and credit to judgment of state A as long as state A had personal jurisdiction over D

36

State to federal--where the first judgment is rendered in State A, and second case filed in federal court - Statute requires a federal court in state B to give full faith and credit to a valid judgment of state A--must be the same judgment in federal court B as delivered in state A to every detail and must apply state A's preclusion law Federal to state--when first judgment rendered in federal court and second case filed in state court - The state court must respect the federal court judgment on the ruling of issue preclusion - If the state court is a different state than which the federal court sits, the federal ruling has preclusive effect on the other state if the state's law in which the federal court sits would dictate the result for the other state c. Federal to federal--neither constitutional nor statutory provision applies b/c within same uniform federal court system X. JOINDER AND SUPPLEMENTAL JURISDICTION 1. Rule 18aPermissive claim joinder: Broad power, says that a party asserting a claim, counterclaim, or crossclaim, may join as many claims as it has against an opposing party (even ones that are not from same transaction) -*However, even though it is broad, the joined claim must be backed by an independent basis of SMJ--fed question or diversity -Joinder rules are procedural and they by themselves cannot extend the jurisdiction of a court--claim needs to be backed by SMJ element -Rule 18a cannot be the first claim, since it deals with claim joinder, b/c you first need to join the party to which the claim is being brought against,--which must come from either 13 (counterclaim, crossclaim), 14 (impleader), 20 (party joinder)--and can only be a subsequent claim 2. Real party in interest, capacity, and standing A. Rule 17a--An action must be brought in the name of the real party in interest i. RPI--a party who has suffered a harm ii. Substitution--If someone other than an RPI sues a D, D can substitute in the RPI to its benefit--ex: if the RPI being substituted in breaks diversity iii. Assignment--when a P has a claim against D, but assigns the right to sue to a third party iv. Capacity--a person's or entity's ability to sue and be sued--minors, mentally ill need representatives v. Standing--P must suffer "injury in fact" before suing. 3. Claim Joinder by PsSupplemental Jurisdiction A. Supplemental jurisdiction--Allows a federal court to hear a state law claim that has no SMJ independent backing as long as it 1) comes from the same nucleus of operative facts as the federal claim that has SMJ backing 2) Transactional test: Must be so closely related to the federal claim with SMJ within the same transaction or occurrence that it essentially makes up one single case or controversy (fulfills constitutional requirement) 3) Rooted in Art III Sec 2--" Supplemental jurisdiction, which allowed the state law claim in the case, exists whenever there is a state claim arising under the constitution, federal laws, or treaties, and that the federal law claim and state law claim comprise but one constitutional case. The federal claim must have substance sufficient to confer SMJ." (Gibbs--D sued P in federal district court for violations of conspiracy, unlawful boycott, and interference with an employment relationship under the Labor 37

Management Relations Act and also a state law in TN. There was SMJ backing for the federal law claim, but no diversity or federal question claim under the state law) B. Sec. 1367Codification of Gibbs rule for supplemental jurisdictionso related that make up a single case or controversy under Art III sec 2 4. Permissive Party Joinder by Ps A. Rule 20: 20a1joining Ps; 20a2joining Ds: 2 tests must be met in order for a P to join either a D or a P 1) Transaction test: persons may be joined as P's or Ds if they assert a right to relief jointly, severally, or in the alternative arising out of the same transaction 2) Common question test: There must also be one common question of law or fact to the between the joined D or P and the original claim B. Joinder of multiple P's and D's depends broadly upon the assertion of a right to relief, or a liability, arising out of the same transaction or series of transactions, and the existence of one common question of law or fact. An action may be severed and actions pending in the same court may be consolidated as an aid to convenience, whenever it can be done without prejudice to a substantial right (Schwartz v. Swan) 1) Severance is not allowed if it is clear based on the evidence that each injury can be attributed to one of the accidents over the other. 2) Rule 21 a. Severance--remedy for improper joinder of parties, results in separate case, and separate docket number b. Separate trials--separate trials w/ separate juries used for different aspects falling under same case--to help prevent jury confusion 3) Rule 42--consolidation; separate trials i) If actions involve a common question of law or fact, the court may join for hearing or trial any or all matters at issue; consolidate the actions; or issue any other necessary orders -The only thing needed for consolidation is one common question; no need for same transaction test ii) Court may also order separate trials in a single case for separate issues or claims based on convenience, to avoid prejudice, or to be economic. Court must preserve any federal right to trial by jury. C. P's like to enjoin as many D's as possible, since they may blame each other in front of a single jury and help P's case; suing them individually would be expensive; and also to prevent possible nonmutual defensive issue preclusion against P 1) Prevents "whipsaw"=when one D is able to convince the jury that some absentee D is really to blame D. Jurisdictional aspects 1. Even if joined party meets rule 20 tests, still need independent basis of jurisdiction for joined party 2. 1367a--Joinder supplemental jurisdiction=When P has a federal SMJ claim against one D and a claim against a second joined party that does not invoke federal SMJ, but a state claim i) As long as the state claim against joined party shares a nucleus of operative fact with the jurisdiction invoking claim, assertion of supplemental jurisdiction appears to be constitutional

38

3. 1367b--In diversity cases, P cannot join Ds under rule 20 if doing so would be inconsistent with diversity jurisdiction (does not apply to federal question cases) i) Ex: P (WI) sues D (IL) and attempts to join X (WI) as a D--not allowed ii) However, P can join other Ps even if inconsistent with diversity, if supplemental jurisdiction is met (common nucleus of facts) Ex: A (90,000) (VT) joins B (25000) (CA) v. C (CA) -In this case, A has diversity jurisdiction over C, and B invokes supplemental jurisdiction for claim against C (However, in Allapatah, the SC said that the amount in controversy and diversity of citizenship are separate claims, and in this case no supplemental jurisdiction) 5. CounterclaimsRule 13 A. Compulsory Counterclaims 1. Rule 13a--A judgment precludes or waives whatever could have been pleaded in a compulsory counterclaim but wasnt. Requires that a pleading (answer): 1) include the counterclaim if the claim arises out of the same transaction as opponent's subject matter claim and 2) Does not require adding another party over whom the court cannot acquire jurisdiction 2. In settlements, the counterclaim is waived if not originally brought in pleading. If P had opportunity to assert the counterclaim and knew of his right to and didnt, then it does not matter if there was no final judgment, his counterclaim is still waived (Dindo) 3. Compulsory counterclaim rule also precludes D from bringing counterclaim if D did not plead and answer in the first case, but instead enters a default judgment (Carteret Savings) 4. Jurisdictional aspects 1. Well pleaded complaint rule applies to counterclaims--federal question must be in P's complaint for D's counterclaim to bring federal question -Ex: if P's complaint only brings state law claim, then D cannot bring a counterclaim invoking a federal question 2. If Ps original claim invokes diversity, then automatically Ds counterclaim invokes diversity too since both are diverse a) However, if Ps claim invokes either diversity or federal question, but D's counterclaim invokes neither, then the only way the compulsory counterclaim can be heard is if it invokes supplemental jurisdiction B. Permissive Counterclaims 1. Rule 13b--A pleading may state as a counterclaim against an opposing party any claim that is not compulsory (i.e. one that does not meet compulsory test under 13adoesnt arise from same transaction) 2. Jurisdictional aspects a. Because permissive counterclaims do not meet transaction test, it therefore does not meet supplemental jurisdiction either since supplemental requires that it comes from the same operative nucleus of facts/transaction

39

-Only minority courts allow supplemental jurisdiction if the permissive counterclaim is loosely related to the factual claims of the first case 6. Crossclaims against co-partyRule 13g A. Rule 13gA pleading may state a crossclaim by one party against a co party if the claim arises out of the transaction or occurrence that is the subject matter of the original claim or counterclaim. It may include a claim that the coparty is or may be liable to crossclaimant for all or part of the claim against the crossclaimant B. Jurisdictional aspects - B/c the crossclaim must arise from the same transaction as the underlying dispute, it fulfills use of supplemental jurisdiction 7. ImpleaderRule 14 A. 14a1) D may implead a party with a summons and complaint as a third party defendant who is or may be liable to D for all or part of the claim against D. Must be made within 14 days after serving answer; need court permission after 14 days a.Impleader is a specific type of crossclaim, and only applies to indemnity or contribution claims i. Contribution--is based on the common, but not always identical, liability of two or more tortfeasors, and equalizes their burden by making them pay his own proportion of the damages. ii. Indemnity--enables one tortfeasor to shift the entire burden of the judgment to another tortfeasor, who may be the actual culprit. b. Can be brought at the beginning of the case c. By state law, contribution may not be allowed until a judgment is entered against D, but rule 14a accelerates assertion of the claim against the D and allows it 1) Rule 14 a does not create a substantive claim, but only a procedural device to accelerate a substantive claim B. 14A (2) Third-Party Defendant's Claims and Defenses: The person served with the summons and third-party complaint the third-party defendant: (A) must assert any defense against the third party plaintiff's claim under Rule 12; (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a) (compulsory), and may assert any counterclaim against the third-party plaintiff under Rule 13(b)(permissive) or any crossclaim against another third-party defendant under Rule 13(g); (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and -TPD can bring a defense on behalf of D (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. -Downsloping=must be transactionally related C. 14A(3) Plaintiff's Claims Against a Third-Party Defendant: The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The thirdparty defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g). 40

-Upsloping D. Jurisdictional Aspects-If P (IA) sues D(NE) and has diversity, and D impleads TPD (IA) w/ diversity b/w D and TPD, but no diversity b/w P and TPD -For diversity cases, look at each claim separately--there is diversity the original claim by P against D, and Ds impleader claim against TPD -There is supplemental jurisdiction by parties impleaded or joined by D -1367bthere is no supplemental jurisdiction if P tried to join TPD to destroy diversity -If one of the three claims does not have SMJ, can supplemental jurisdiction attach? a) Ds impleader claim against TPD meets supplemental jurisdiction test since impleader claims arise from the same nucleus of facts since it requires a TPD to be liable to D for P's claim b) Downsloping claims--claims made by TPD against P also meet the test since they can only be asserted if they arise from the same nucleus of facts (14a2d) -What if P wants to upslope a claim against TPD under 14a3, but no diversity? -1367b---no supplemental jurisdiction for upsloping claim by P against TPD joined under rule 14, 19, 20, 24-- b/c would allow P to completely destroy diversity of the case --or against parties proposed to be joined as Ps -Therefore, since rule 13 is not mentioned, if TPD with no diversity with P brings a 14a2d (downsloping) claim against P, P has a right to bring a compulsory counterclaim under 13a and it wouldnt destroy jurisdiction. However, P cannot bring a permissive counterclaim under 13b, b/c not transactionally related, so doesnt fall under supplemental jurisdiction. 8. Compulsory JoinderRule 19 Rule 19: Persons required to be joined if feasible A(1) Required Party: A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or Ex: Hass v. Jefferson National Bank i. H sues B arguing that B owes him stock as an owner. G is not represented on party, but decision may have impact on him. If H wins, then G would lose his ownership in B. G is under practical harm under 19a1b(i) (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. B: When joinder is not feasiblegives courts discretion to say that even if person is feasible, can still dismiss case to state court

41

-If a person who is required to be joined if feasible cannot be joined (b/c no SMJ), the court must determine whether, in equity or good conscience, the action should proceed among the existing parties or should be dismissed.--whether the missing person is indispensable that the case should be dismissed. Factoring: (1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person's absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. 1. Joint tortfeasors are not necessary parties (Temple v. Synthes) 1) Joint tortfeasor can seek contribution from the other through impleader. 2) B/c no multiple and inconsistent obligations, and no practical harm to the second tortfeasor for a decision on the first tortfeasor 2. 3 steps to rule 19 analysis: i) Court must assess whether the absentee is a "required party" under 19a1A or 19a1B. ii) If the absentee is a required party, the court must assess whether her joinder is "feasible"--whether the absentee is subject to personal jurisdiction, whether venue is proper, and whether the claim asserted by or against the absentee would invoke SMJ--fed question or diversity iii) If joinder is not feasible under step 2, the court must assess whether it should "in equity and good conscience" proceed with the litigation without the absentee or dismiss the pending case.--guided by four factors of rule 19b 3. Jurisdictional Aspects 1) 19a allows joinder only if the joinder will not deprive the court of SMJ 2) If the claim asserted by or against the required absentee would not invoke diversity or federal question, the court must consider whether to proceed or dismiss under Rule 19b a) Alignment--When the party proposes to join an absentee, the party will suggest whether the absentee is to join as a P or D--affects SMJ i) However, Court may realign absentee on the side with which her interests are most compatible 3) However, claims by or against a necessary absentee would fall within the Gibbs test for supplemental jurisdiction, so only question is whether it infringes on diversity under 1367b 4) Generally, a rule 19 absentee cannot be joined as a P if it violates diversity. However, it is held that if P joins a rule 19 absentee as a D, then supplemental will be upheld even if P and absentee are from same state.

XI. MULTIPARTY LITIGATION Class Actions: Rule 23-One or more class representatives are formally joined as parties in the case, the members they represent are not joined, and thus technically not considered parties, but are bound by the outcome of the litigation 42

A. Policy and ethical issues i. Efficient, instead of handling hundreds of cases. 1) But also might create litigation that otherwise would not exist 2) Helps individuals who may not have money to bring a claim, to bring a claim ii. Creates incentives for settlement for D--b/c potentially huge losses for D 1) D often seeks to abuse this by requiring that no further P's can sue if settlement is reached B. Constitutional Considerations a. Representative must adequately represent the interests of the class to meet due process of 14th -Where the interests of those not joined are the same as the interests of those who are, and where the parties fairly represent the nonparties on the common interest, then a class action may proceed (Hansberry) b. Noticedo not need to give notice to every member of class, only those whose addresses are knownthe others not given notice will be adequately represented by way of having same interests as those given notice C. Rule 23Requirements for certification under rule 23 2 steps to determine whether case is class action: a) The class must satisfy each of the prerequisites of rule 23a b) Then, the representative must demonstrate that her class falls within one of the 3 types of class actions recognized by 23b A. Prerequisites of 23a (assumes that there is an existing class) "One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable, (numerosity) (2) there are questions of law or fact common to the class, (commonality) (3) the claims or defenses of the representative parties are typical (the same) of the claims or defenses of the class; and (typicality) (4) the representative parties will fairly and adequately protect the interests of the class." (Adequacy) -2, 3, and 4 tend to merge a. 23a1--Numerosity 1) No set limit which satisfies the requirement 2) Goes beyond pure number to look at practicality--i.e. whether joinder would destroy diversity, or when all members are of a same state b/c it would be easy to join them then b. 23a2--Commonality 1) Very broad since refers to both questions of fact or laweasily me c. 23a3Typicality 1) Representative must have suffered each of the harms alleged in the class action and cannot have had a unique harm from the rest of the class or a defense that is not available to the rest of the class d. 23a4Adequacyboth by representative and the class appointed attorney (dont take first settlement just to take money) 43

D. Types of Class Actions under Rule 23b-- Once 23a prerequisites are met, the representative must demonstrate that the class fits a recognized category in rule 23b A class action may be maintained if Rule 23(a) is satisfied and if: Limited Fund cases: (1) prosecuting separate actions by or against individual class members would create a risk of:--(similar to compulsory joinder under 1923b1 comes into play when compulsory joinder not practicable) (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; Equitable claims: (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or Money claims: (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. -*Plaintiffs would rather bring class action claim under 23b2 over 23b3, because there is no extra requirements (predomination, superiority) and no opt out clause (once you give opt out rights, then class becomes unmanageable since opt out people may bring own individual claim, which may hurt superiority requirement) easier to meet; also you must give notice to everyone in the class under 23b3 -More requirements under 23b3 money claims, because they are allowed jury trial in civil cases for legal claims under 7th amendment -If class is certified, it is often the end of the case because it creates incentive for D to settle to avoid huge judgment against them E. Notice: Rule 23c-- Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses. (2) Notice. (A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class. therefore, for limited fund claims, and equitable claims, notice is not required (B) For (b)(3) Classes. For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; 44

(v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). -Notice to be paid for by class representing attorney -Individual notice required for b3 classes because they can opt outto make it so individuals know they have the right to opt out F. Settlement: Rule 23e In class actions, judges are now more than neutral umpires, but are more active in managing case to make sure that the class members are being fairly represented. 1. Rule 23e: The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise: (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. for b1 b2 and b3 classes (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. (4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. (5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval. G. SMJ of class actions 1. Only the named representative's citizenship is relevantapplies to entire class 2. For amount in controversy, supplemental jurisdiction can apply (used to have to look at each class member) a. Issue over whether representative who meets the 75000 requirement, permits the jurisdictionally insufficient claims of others of the class to invoke supplemental jurisdiction (as long as there is complete diversity with the representative and representative meets the amount in controversy requirement) (Exxon v. Allapattah)Yes, b/c arises from same transaction b. Rule: If the court has original SMJ jurisdiction over a single claim in the complaint, it has original jurisdiction over the entire civil action, including joinder of claims and additional parties who may not have SMJ jurisdiction. 1367b restricts supplemental jurisdiction over claims by P's who are indispensable parties under 19, but it does not restrict it over claims of P's permissively joined under 20. -Claims that are jurisdictionally defective as to amount in controversy do not destroy SMJ over other claims--they are split. Complete diversity and amount in controversy are to be split. 3. Unlike complete diversity requirement, which must be present throughout the entire case, the amount in controversy requirement can be looked at claim by claim and other class members can be added via supplemental -A P in a diversity case cannot overcome a lack of complete diversity through supplemental jurisdiction must have been present at the beginning, and throughout the case H. Personal Jurisdiction 1. Must the court have personal jurisdiction over all P class members? No, the nonparty members can opt out at any time and bring own claim (if b3), and are not required for personal jurisdiction

45

-Also, personal jurisdiction is to protect Ds from foreign forum, and not P who brings claim. P does not have to worry about a judgment against them and have to pay, like a D would, but only that they lose the case and dont get anything

46

47